Tuesday, May 31, 2016

Yin on the Origins of the Percentage Depletion Allowance

George K. Yin, University of Virginia School of Law, has posted A Maritime Lawyer, the Percentage Depletion Allowance, and the Joint Committee on Taxation:
This year marks the 90th anniversary of both the percentage depletion allowance and the Joint Committee on Taxation. This essay relates the curious tale of Norman Beecher, a New York maritime lawyer with little background in energy, natural resources, or tax, who convinced Congress in 1918 to adopt a tax proposal that helped lead to both of these important features of the tax system eight years later. While Beecher’s idea ended up providing a major tax break for the oil and gas industry, this essay presents evidence that the source of the proposal was Beecher himself, and not the industry, as a result of his misunderstanding of the proposal’s tax effect. Since the conditions especially favorable to enactment of the proposal were very short-lived, this essay offers the intriguing possibility that but for Beecher (or his misunderstanding), the tax system might never have included percentage depletion or, conceivably, the Joint Committee.

Special Issue: Regulated Self-Regulation

The French-German online-journal Trivium (Fondation Maison des sciences de l'homme Paris) has announced the publication of a special issue (No. 21, May 18, 2016) devoted to “Regulated Self-Regulation.”  It is edited by Peter Collin, Sabine Rudischhauser and Pascale Gonod.  Here, in German and French, are its contents:

Einleitung: Peter Collin und Sabine Rudischhauser

Übersetzungen ins Französische

Ulrich Scheuner: L’État, la formation et le contrôle des associations dans l’Allemagne du
XIXe siècle

Michael Stolleis: La naissance de l’État interventionniste et le droit public
Dieter Grimm: L’autorégulation régulée dans la tradition de l’État constitutionnel
Peter Collin: « Autorégulation sociétale » et « autorégulation régulée » – des catégories fécondes
pour une analyse (juridico-)historique?

Gerd Bender: Autonomie tarifaire, autorégulation régulée, corporatisme. Une esquisse
Übersetzungen ins Deutsche:

Steven L. Kaplan und Philippe Minard: Der Korporatismus, Ideen und Praktiken: Die
Streitpunkte einer Dauerdebatte

Claire Lemercier: Frankreich nach 1789 – eine unmögliche Zivilgesellschaft?

Alain Supiot: Aktualität Durkheims. Notizen zum Neokorporatismus in Frankreich

More on the journal after the jump.

Ms. Peppercorn Considers: Best Practices for Acknowledging Others' Work

Dear readers, it is my pleasure to bring you our latest installment of MS PEPPERCORN CONSIDERS! An occasional advice column for legal historians facing knotty problems (by regular guest blogger Sarah Barringer Gordon)*
Credit: Bitmoji
Dear LHB readers: Ms Peppercorn received the following questions from an author who just published a book, and is dealing with a stomach churning issue that we all face:
It seems inevitable that I've left someone out of the acknowledgments, or failed to mention someone's work in my footnotes, even though I surely benefited from that person's wisdom and hard work. How can I get over feeling anxious about this? And what should I do if I learn that someone is actually upset with me?
Going forward, what should I consider best practices for footnotes in which I am not citing someone for a particular argument or factual finding, but want to show recognition of their scholarship? Phrased differently, how do I honor the hard work of other scholars without overwhelming my own readers (and pushing my luck with the publisher)?
The issue seems both timely and important, so your columnist searched her own bookshelf for an exemplar whose work consistently achieves both generosity in citation and manageability of note length. Brian Balogh of the University of Virginia (and co-host of Backstory with the American History Guys – super cool) and author of highly acclaimed books, including Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America (Cambridge UP 2009) and The Associational State: American Governance in the Twentieth Century (Penn UP 2015), is our choice, and you will see why when you read his response. Here goes:
“One of the features that distinguishes scholarship, from many other genres of writing, is that it is a collective endeavor. No matter how much primary research we do as scholars, the vast majority of the words that we write ultimately rely upon the research and interpretation of others. This is why your question is such a good one and why it is difficult to answer. Because acknowledgments and substantive footnotes come at the end of the publication process, writing them is usually a pleasurable way to remember and review the journey – kind of like looking through photographs upon arriving home from a long trip. So my first advice to you is to do your best to enjoy the process! Second, to extend the travelogue metaphor, in the digital age, it is relatively easy to review your business expenses from the trip. I know that nobody likes organizing that pile of receipts that our paymasters demand, but in the case of the intellectual debts we incur, going through e-mail correspondence, journal entries, long-since discarded drafts, can be great reminders of the day-to-day discoveries and detours we maneuvered through, some of which turned out to be more rewarding than the five minutes we spent in front of Michelangelo’s Pieta`.”
“Even with best of intentions and despite the fond memories, we are all bound to leave something out. Indeed, one of the first things that occurs after I approve a final draft is that I remember somebody, or many people, I forgot to thank in the acknowledgements or acknowledge in the footnotes. A simple e-mail to those folks apologizing for the oversight, and if you have time, distilling the specific nature of that scholar’s contribution to your intellectual development is bound to be appreciated. As for discovering that somebody is upset with you, it really depends upon how well you know the person. If you know them well, you could easily write with an apology. If not, it is probably best to simply live with this, looking for the next opportunity to show your appreciation for their contributions should the occasion arise.”
Ms Peppercorn would only add that we would be interested to hear how others balance delicate issues of attribution and acknowledgment, especially when a critical dimension is present. Please let us know how legal historians navigate these shark-filled waters!

*note snappy new avatar -- Ms P, although no spring chicken, is so current with her bitmoji!

Monday, May 30, 2016

Burra is New McCurdy Fellow

Ananda Burra (credit)
The new Charles W. McCurdy Fellow in Legal History at the University of Virginia School of Law and UVA's Miller Center is Ananda Burra, who holds a J.D. and a master's degree in history from the University of Michigan; his doctoral dissertation, “'Petitioning the Mandates’: Anticolonial and Antiracist Publics in International Law,” as the UVA Law press release has it, “tracks the development of public international law from the 1920s to the 1960s, focusing on the transition from the League of Nations to the United Nations.”

Sunday, May 29, 2016

Sunday Book Review Roundup

Good morning, legal historians. There are quite a few book reviews to check out this Memorial Day weekend.  Appropriately, many are somber but thought-provoking accounts of our capacity for violence and the law's power to control it.

In today's New York Times, Bernard-Henri Lévy reviews Philippe Sands’ “East West Street: On the Origins of ‘Genocide’ and ‘Crimes Against Humanity.’ ” East West Street describes the history of two central concepts in international law, as well as to the two men conceived of them: crime against humanity (Hersch Lauterpacht) and genocide (Raphael Lemkin). “The result,” Lévy says, is an “unprecedented narrative” and “thrilling” tale. Lisa Appignanesi tackles Sands’ book in The Guardian, agreeing that it is a “thrilling,” (and “important and engrossing”) family memoir and intellectual history. David Herman reviews Sands’ book (a “moving history” that “reads like a detective story”) alongside A.T. Williams’ A Passing Fury: Searching for Justice at the End of World War II, which portrays the Nuremberg trials as a rushed and at times inhumane process, forming “an original polemic against our assumptions about these trials.” Sands was also recently interviewed by Vanity Fair.

In the New York Times Alan Taylor reviews “An American Genocide: The United States and the California Indian Catastrophe, 1846-1873,” by Benjamin Madley, concluding that “the label ‘genocide’ ultimately obscures the decentralized and populist nature of killings that involved thousands of Americans, high and low in society.”

Also in the Times, Imani Perry reviews Elizabeth Hinton’s “exceedingly well researched” study of how “the federal government’s failed efforts to reduce crime, which resulted from bad data collection, bad social science and bad police practices, led to an expansion of the carceral apparatus rather than a serious reappraisal,” adding to a collection of works showing that “the backlash to black radical movements and urban uprisings produced the turn to mass incarceration.”

Legal historians may be interested in this weeks issue of The Guardian, in which columnist Ian Black reviews Salman Abu Sitta’s memoir, Mapping My Return, in which Sitta uses his personal history to make a “forceful re-statement of the Palestinian conviction that Zionism is illegitimate, from the Balfour Declaration of 1917 to the present day.”

In the Washington Post, Deborah Pearlstein assesses “Rogue Justice: The Making of the Security State," in which Karen Greenberg analyzes national security law post-9/11. Greenberg’s book is impressive in its evenhanded assessment of moments where the legal system operated “as it should to constrain raw exercises of power,” but is emblematic of the fact that the country has yet to wrestle with its invocation of the laws of war in a variety of oblique situations.

In Dissent’s blog, Timothy Shenk interviews Meg Jacobs about Panic at the Pump: The Energy Crisis and the Transformation of American Politics in the 1970's.  And in Civil War Book Review, H. Robert Baker reviews Christian G. Samito’s Lincoln and the Thirteenth Amendment.

In the New Rambler, Herbert Hovenkamp reviews Jacob S. Hacker's and Paul Pierson's American Amnesia: How the War on Government Led Us to Forget what Made America Prosper.  This "very engaging book" is an “effort to dismantle the idea that the Founding Fathers, James Madison in particular, were radical anti-government activists and that the Constitution reflected that judgment." In this argument, Hovenkamp says, the authors are “precisely correct,” even if they “do not document their historical conclusions particularly well.”

Writing for the same publication, Daniel Hemel reviews Taxing the Rich: A History of Fiscal Fairness in the United States and Europe, by Kenneth Scheve and David Stasavage, which argues that governments tax the rich “during and in the wake of mass mobilization for war” because wartime enables governments to make “compensatory arguments” about the need for sacrifice. Hemel takes issue with the broadness of the term “compensatory arguments” and other limitations of Scheve & Stasavage’s assessments and summarizes the timeliness of the study.

Finally, the New Rambler presents Alison LaCroix’s review of Hamilton. LaCroix notes, not all too controversially, that the show is "brilliant," and then uses lines from the play, particularly Eliza Hamilton and Aaron Burr, to explain its attentiveness to the historian’s craft--to both “what happened [and] the deeper question of how we know what happened.”

Photograph above: Interpreters at the Nuremberg War Crimes Trials, c. 1946. Credit: Charles Alexander, Office of the United States Chief of Counsel, Harry S. Truman Library & Museum

Saturday, May 28, 2016

Weekend Roundup

credit: LSA
  • The Law and Society Association annual meeting kicks off in New Orleans in a few days: June 2-5. Plenty of great-looking legal history panels sponsored by CRNs on Law and History, British Colonial Legalities, Colonialism and Post-colonialism, Islamic Law and Society, South Asia, and others. Here is the program. If you'd like to write an LHB blogpost on panels you attend, let us know.
  • Stanford University is to rename a residential complex in honor of the constitutional historian Gerhard Caspar, who, as president from 1992 to 2000, revitalized undergraduate education at the university, and, as dean of the University of Chicago Law School, taught me a stunningly successful course on the separation of powers in the early republic.  DRE
  • H-Asia reminds us that it keeps a running list of digital archives and blogs on Asian studies here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 27, 2016

Digital Collection: Legal History of Myanmar/Burma

credit: MS
Legal studies of Myanmar/Burma have been booming in recent years, with exciting new work coming out by scholars like Australia-based Nick Cheesman and Melissa Crouch. Now the Asian Legal Information Institute brings us a fabulous set of online legal history resources for Myanmar/Burma, thanks to the UNSW Faculty of Law's Australia/Myanmar Constitutional Development Project. These English-language resources are open-access.

Some highlights:
Here is a guide to the collection.

Charles on the Second Amendment Outside the Home

Patrick J. Charles, United States Air Force, has posted The Faces of the Second Amendment outside the Home, Take Two: How We Got Here and Why It Matters, which is to appear in the Cleveland State Law Review 64 (2016): 373-481:
Since the late twentieth century, the Second Amendment has been increasingly promoted as the unfettered right to carry firearms in the public concourse. This expansive meaning, however, lacks historical support. Historical evidence reveals a disparity between the Anglo-American origins of armed carriage laws and present-day interpretations of the Second Amendment. The historical backdrop also reveals the impact pro-gun organizations have had on the expansion of armed carriage. Differences in state armed carriage laws, analyzed from both historical and regional perspectives, will one day require the Supreme Court to determine which version of history should dictate the meaning of the Second Amendment.

Washington History Seminar, Fall 2016

[Here’s the line-up.  More information and an appeal for financial contributions here.]

September 12: Wm. Roger Louis Lecture: Salim Yaqub (University of California at Santa Barbara) on Imperfect Strangers: Americans and Arabs in the 1970s

September 19: Matthew Dallek (George Washington University) on Defenseless Under Night: The Roosevelt Years and the Origins of Homeland Security

September 26: Niall Ferguson (Stanford University) on Kissinger

October 17: Katherine Turk (University of North Carolina) on Equality on Trial: Gender and Rights in the Modern American Workplace

October 24: Mark Philip Bradley (University of Chicago) on The United States and the Origins of the Global Human Rights Imagination

October 31: Tyler Anbinder (George Washington University) on City of Dreams: The 400-Year Epic History of Immigrant New York

November 7: Amanda Moniz (National History Center/AHA) on From Empire to Humanity: The American Revolution and the Origins of Humanitarianism

November 14: Manish Sinha (University of Massachusetts at Amherst) on The Slave’s Cause: A History of Abolition

November 28: Nicole Hemmer (University of Virginia’s Miller Center) on Messengers of the Right: Conservative Media and the Transformation of American Politics

December 5: Jeremy Friedman (Harvard University) on Shadow Cold War: The Sino-Soviet Competition for the Third World

December 12: Susan Carruthers (Rutgers University) on The Good Occupation: American Soldiers and the Hazards of Peace

Thursday, May 26, 2016

CFP: Policing the North American Borderlands

[We have the following announcement seeking contributions for an edited volume.]

We solicit proposals for an edited volume entitled Policing the North American Borderlands. This volume will trace the development of state regulation and policing practices along the US-Canada and US-Mexico borders, as well as their impacts on border people during the nineteenth and twentieth centuries.  Although war and diplomacy established borders on paper, policing made boundaries into borders and in some cases barriers.  We seek papers that examine how policies and state apparatuses create and regulate national borders and how this impacts communities which cross international divides.  We ask for papers that explore how particular legal codes and regulatory practices have attempted to define and delineate the parameters of the state; how citizenship is defined in both law and in practice; and how state regulatory apparatuses monitor and police flows of goods and people across international divides.  This book is centered on two key questions: how has the state (at the federal, state, provincial, and local levels) attempted to regulate and police people and goods at their actual borders; and how have local communities responded to, been shaped by, and/or undermined particular policing objectives and practices?

More details after the jump.

Kahn-Freund's Weimar Memoirs

Ewan McGaughey, King's College London School of Law, has posted, Otto Kahn-Freund, Autobiographical Memories of the Weimar Republic: A Conversation with Wolfgang Luthardt (February 1978), which he translated this year from an original published in German as in Kritische Justiz 14 (1981): 183-200:
“We were all blind. All the conditions for national socialism were laid out...”

Otto Kahn-Freund (1950) (wiki)
A year before he passed away, the great labour lawyer, Otto Kahn-Freund, was interviewed by constitutional scholar Wolfgang Luthardt. His life as a young man came at one of the most extraordinary, and terrifying periods of German and world history. This interview was published in German in 1981, but until this translation it has been unfamiliar to English audiences. Kahn-Freund had instrumental influence in the architecture of German, British, and European labour law. As a Berlin Labour Court judge, Kahn-Freund represented the courage of millions of Germans like him who resisted Nazi usurpation of the state. Even after Hitler, backed by a cartel of bankers and industrialists, seized the Chancellorship, Kahn-Freund’s last major case awarded maximum damages to radio employees who were dismissed on trumped-up accusations of being communist saboteurs. As European law continues to take shape, and questions press on how to fashion justice in a globalising world, the personal history of a man who cared so deeply about human freedom enlightens us today.

Kraut, "Choreographing Copyright"

Here's a relatively recent release that we missed back in December: Choreographing Copyright: Race, Gender, and Intellectual Property Rights in American Dance (Oxford University Press), by Anthea Kraut (University of California, Riverside). A description from the Press:
Choreographing Copyright is a new historical and cultural analysis of U.S. dance-makers' investment in intellectual property rights. Stretching from the late nineteenth century to the early twenty-first, the book reconstructs efforts to win copyright protection for choreography and teases out their raced and gendered politics, showing how dancers have embraced intellectual property rights as a means to both consolidate and contest racial and gendered power.

A number of the artists featured in the book are well-known in the history of American dance, including Loie Fuller, Hanya Holm, and Martha Graham, Agnes de Mille, and George Balanchine. But the book also uncovers a host of marginalized figures--from the South Asian dancer Mohammed Ismail, to the African American pantomimist Johnny Hudgins, to the African American blues singer Alberta Hunter, to the white burlesque dancer Faith Dane--who were equally interested in positioning themselves as subjects rather than objects of property.

Drawing on critical race and feminist theories and on cultural studies of copyright, Choreographing Copyright offers fresh insight into the raced and gendered hierarchies that govern the theatrical marketplace, white women's historically contingent relationship to property rights, legacies of ownership of black bodies and appropriation of non-white labor, and the tension between dance's ephemerality and its reproducibility.
A few blurbs:
"A magnificently complex argument based in meticulous archival research, Choreographing Copyright examines the function of copyright in both affirming and contesting key cultural values for artists of different raced, classed, and gendered identities." -- Susan Leigh Foster

"Choreographing Copyright is a provocative book that sheds new light on the history of modern, vernacular and commercial dance. By attending to the raced, gendered and classed biases that influence choreographers' claims of originality, authorship and ownership, Kraut lends keen insight into the implicit social politics behind the fixing of moving bodies. She finds in vibrant case studies arguments about subjectivity, property, protection and value writ large and pushes us to recognize the instabilities of bids for personhood through creative expression." -- Nadine George-Graves
More information is available here.

Wednesday, May 25, 2016

Historical Origins of the Scottish Right to Roam

Gregory S. Alexander, Cornell Law School, has posted The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam, which is forthcoming in the University of Illinois Law Review (2016):
In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This Article is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life. One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. This Article argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Bartrum on James Wilson on Popular Sovereignty

Available on the website of the Buffalo Law Review is Ian Bartrum, James Wilson and the Moral Foundations of Popular Sovereignty, 64 (2016): 225-304.  No abstract, but here is a taste:
I suggest that a return to true first principles–in this case, fundamental liberal ideas about human morality and sociability–can provide helpful clarity.  Popular  sovereignty as a political idea has a rich historical lineage in legal and political  philosophy–with origins  in classical Greece, intimations in early Enlightenment thinkers such as Jacques Bodin and Johannes Althusius, and modern  roots in the social contracts of Hobbes, Locke, and Rousseau; I intend here to explore a different intellectual history.  Instead of looking to political theory, this Article examines historical developments in moral philosophy, particularly the moral sentimentalism that emerged from the Scottish Enlightenment, which would ground James Wilson's ideas about popular sovereignty.

Eyer, "Ideological Drift and the Forgotten History of Intent"

Katie Eyer (Rutgers Law School) has posted "Ideological Drift and the Forgotten History of Intent," which will appear in Volume 51 of the Harvard Civil Rights-Civil Liberties Law Review (2016). Here's the abstract:
It would no doubt surprise many readers of contemporary Equal Protection scholarship to hear intent doctrine described as one of the major racial justice victories of the Brown v. Board of Education era. Instead, under the account familiar to most contemporary readers, the institutionalization of intent was a conservative development, marking a turn away from racial justice concerns in the mid- to late 1970s.

Drawing on archival and other historical source materials, this Article contends that the former account in fact represents the true genesis of intent doctrine in Equal Protection jurisprudence. During the Plessy v. Ferguson era, restrictive doctrines barred racial justice advocates from challenging laws based on their invidious intent. Intent doctrine arose in the aftermath of Brown as a response by progressive actors to the ways that these Plessy era doctrines allowed rampant Southern evasion of Brown’s desegregation mandate.

Understanding this progressive history of intent doctrine has important implications. There are strong reasons to believe that these early progressive struggles to establish intent-based invalidation helped facilitate the 1970s-era conservative turn in intent doctrine that progressive scholars today decry. Thus, although the normative valence of intent doctrine shifted from progressive to conservative in the early to mid-1970s, progressive and moderate Justices on the Court were slow to realign their own doctrinal preferences. As a result, the Court’s progressive wing rarely resisted—and at times aided—the conservative doctrinal developments of the mid- to late 1970s.

The long history of intent therefore may help us to better understand the genesis of a phenomenon that scholars have long observed: the realignment of Equal Protection doctrine away from racial justice aims. And the long history of intent suggests that it is not only politics, but also doctrine, that plays a key role. Thus, while changes in popular sentiment serve as the backdrop to shifts in the Court’s normative orientation, it is the cooptation of progressive doctrine that renders such shifts familiar and unobjectionable to the Court.
The full article is available here.

Gormley, "The Presidents and the Constitution"

New from New York University Press: The Presidents and the Constitution: A Living History (May 2016), by Ken Gormley (Duquesne University). A description from the Press:
In this sweepingly ambitious volume, the nation’s foremost experts on the American presidency and the U.S. Constitution join together to tell the intertwined stories of how each American president has confronted and shaped the Constitution. Each occupant of the office—the first president to the forty-fourth—has contributed to the story of the Constitution through the decisions he made and the actions he took as the nation’s chief executive.
By examining presidential history through the lens of constitutional conflicts and challenges, The Presidents and the Constitution offers a fresh perspective on how the Constitution has evolved in the hands of individual presidents. It delves into key moments in American history, from Washington’s early battles with Congress to the advent of the national security presidency under George W. Bush and Barack Obama, to reveal the dramatic historical forces that drove these presidents to action.  Historians and legal experts, including Richard Ellis, Gary Hart, Stanley Kutler and Kenneth Starr, bring the Constitution to life, and show how the awesome powers of the American presidency have been shapes by the men who were granted them.  The book brings to the fore the overarching constitutional themes that span this country’s history and ties together presidencies in a way never before accomplished.
Exhaustively researched and compellingly presented, The Presidents and the Constitution shines new light on America’s brilliant constitutional and presidential history.
A few blurbs:
“Everything you ever wanted to know about the Supreme Court and the Presidency but were afraid to ask.” —Nina Totenberg

"An indispensable book on a touchy subject. The American Constitution is not abstract art, it is the foundation of all of our laws. We cut ourselves adrift at great risk to the survival of our civilization. Reviewing the constant, ongoing battle between each successive president and the laws that limited his power offers a perspective that we haven't seen. Gomley has connected the dots and the results offer lessons beyond American history. This is a book about human nature and the struggle for power. As we can see, getting to the White House was not the end of that struggle. It was just the beginning."—Doug Wead,
More information is available here.

Tuesday, May 24, 2016

Author's Query: Melvyn Weiss

[We have the following author's query.]

For a study of Melvyn Weiss, formerly of Milberg, Weiss, Bershad & Schulman, I'm looking for anyone familiar with Mr. Weiss; his career; his firm; his most important cases; his role in the development of class action law; his impact on corporate behavior, including on the insurance industry and accounting profession; and his prosecution.  Please contact:
David Margolick
Contributing Editor, Vanity Fair
60 West 68th St., Apt. 9C
New York, NY 10023
(212) 721-3328

Giuliani on Civilian Treatises on Presumptions

Adolfo Giuliani, Facoltà di Giurisprudenza, University of Perugia, has posted Civilian Treatises on Presumptions, 1580-1620, which appeared in The Law of Presumptions: Essays in Comparative Legal History, ed. R. H. Helmholz and W. David H. Sellar (Comparative Studies in Continental & Anglo-American Legal History) (Duncker & Humblot, Berlin, 2009),  21-71
The theory of presumptions is one of the most obscure branches of medieval and early-modern law. Collected in long and tedious lists, presumptions knew a time of glory between the 16th and 17th centuries with the publication of a great number of treatises among which those by J. Menochio, F. Mantica and J. Mascardo are the most popular.

This essay shows that such practice-oriented works had a place in the formation of high-level legal theory. They were functional to a new vision of judicial procedure which has come to be embodied in a number of basic ideas, such as (i) the separation between law and fact, (ii) the judge’s subjection to principles of reasoning, and (iii) the centrality of will as an autonomous source of contractual obligation. The aim of this paper is to sketch the contribution made by such treatises to the genesis of those three ideas.

Opportunities for Law's Intellectual History

We recently realized that papers from the conference Opportunities for Law's Intellectual History, held at the Baldy Center at the SUNY Buffalo Law School, are out as 64:1 of the Buffalo Law Review.  Here they are:

Mark Fenster & John Henry Schlegel, Introduction Opportunities for Law’s Intellectual History, 64 Buff. L. Rev. i (2016) 
Ajay K. Mehrotra, A Bridge Between: Law and the New Intellectual Histories of Capitalism , 64 Buff. L. Rev. 1 (2016) 
Edward A. Purcell, Jr., Capitalism and Risk: Concepts, Consequences, and Ideologies, 64 Buff. L. Rev. 23 (2016) 
Christopher Tomlins, Organic Poise? Capitalism as Law, 64 Buff. L. Rev. 61 (2016) 
Charles Barzun, Causation, Legal History, and Legal Doctrine, 64 Buff. L. Rev. 81 (2016) 
Mark Fenster, Mr. Peabody’s Improbable Legal Intellectual History, 64 Buff. L. Rev. 101 (2016) 
Cynthia Nicoletti, Writing the Social History of Legal Doctrine, 64 Buff. L. Rev. 121 (2016) 
John Henry Schlegel, On Absences as Material for Intellectual Historical Study, 64 Buff. L. Rev. 141 (2016) 
Susanna Blumenthal, Humbug: Toward a Legal History, 64 Buff. L. Rev. 161 (2016) 
Laura F. Edwards, Textiles: Popular Culture and the Law, 64 Buff. L. Rev. 193 (2016) 
Robert W. Gordon, Some Final Observations on Legal Intellectual History, 64 Buff. L. Rev. 215 (2016)

Monday, May 23, 2016

Cromwell Research Fellowships in American Legal History

[We have the following announcement.]  Call to early-career scholars to apply for a Cromwell research grant; Note that the deadline is July 11, 2016.

In 2016, the William Nelson Cromwell Foundation will make available a number of $5,000 fellowship awards to support research and writing in American legal history by early-career scholars. Early career generally includes those researching or writing a PhD dissertation (or equivalent project) and recent recipients of a graduate degree working on their first major monograph or research project. The number of awards made is at the discretion of the Foundation. In the past several years, the trustees of the Foundation have made five to nine awards. The Committee for Research Fellowships and Awards of the American Society for Legal History (ASLH) reviews the applications and makes recommendations to the Foundation. (The Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States. The Foundation has supported the publication of legal records as well as historical monographs. Scholars who are not at the early stages of their careers may seek research grants directly from the Foundation.  For more information, see the Grants page [here].

Application Process for 2016.  Applicants should submit a description of their proposed project (double-spaced, maximum 6 pages including notes; include a working title), a budget, a timeline, and a short c.v. (no longer than 3 pages). The budget and timeline can be part of the Project Description or separate. (There is no application form.) Two letters of recommendation from academic referees should be sent directly to the Committee Chair via email attachment, preferably as pdf files.

Applications must be submitted electronically (preferably in one .pdf file) no later than midnight July 11, 2015. Please send all materials to the chair of the Committee: . Successful applicants will be notified by early November. An announcement of the awards will also be made at the annual meeting of the American Society of Legal History.

This year, the ASLH’s Committee on Research Fellowships and Awards consists of: Cornelia H. Dayton, University of Connecticut, chair; Joanna Grisinger, Northwestern University; Yvonne Pitts, Purdue University; Rebecca Scott (ex officio, ASLH President), University of Michigan; Sandra VanBurkleo, Wayne State University; and Michael Vorenberg, Brown University.

On Federalism (Tani, States of Dependency, Post 4)

Ah, grading season is upon us – thus my lapse in blogging about States of Dependency. (My earlier posts are here, here, and here.) But I’m jumping back in now, lest I lose whatever momentum I still have! My last post was on rights, a topic that I always considered central to my project. This post is about a theme in my work that I've claimed more gingerly, and only in the last few years: federalism.

* * *

Historians who write about American poor relief often have a sense of déjà vu when reading the news. Around this time last year, the Washington Post covered a new Kansas law that bans welfare recipients from using their income support payments to visit swimming pools, see movies, or get tattoos. The mayor of Lewiston, Maine, recently proposed publishing the names and home addresses of everyone in the state who receives public assistance benefits. At a campaign event last fall, presidential hopeful and former governor Jeb Bush responded to a question about how to connect with black voters with a rambling comment about not giving out “free stuff.”

Such stories support a sad refrain in academic writing on poverty policy – a refrain of 'the more things change, the more they stay the same.' And, indeed, there are themes here that demand attention: an enduring impulse to separate the poor into racially coded categories of deserving and undeserving; an insistence that people who receive public support never be better off, or more free, than people who derive their income from paid labor; a suspicion that recipients will take advantage of public generosity unless constantly monitored and disciplined. Little wonder that so many people writing in this area describe an unbroken chain from the Elizabethan Poor Law to today.

I worry, though, that when we focus so much on continuity, we lose sight of change. American poor relief changed dramatically over the course of the twentieth century, in ways that mattered to American governance writ large. One change that I emphasize in States of Dependency is the shift in power from the local level to the state and federal levels, and a corresponding change in the nature of federal-state relationships. In other words, there is a federalism story here that is big and important -- one that might even change how we think about the "New Deal order."

Sunday, May 22, 2016

Sunday Book Roundup

Some legal history related book reviews from the past week:

In the Times Literary Supplement, T.H. Breen reviews two books on Benjamin Franklin (by Carla Mulford and George Goodwin) and suggests a continuity between his thoughts on income inequality and his equally unpopular conception of an “empire of equal subjects.”

In the New York Times, Alan Wolfe reviews Sean Wilentz’s The Politicians and the Egalitarians, which “propounds relentlessly” the argument that politicians need to excel at compromise-building as well as idealistic egalitarianism.  If you want a few more takes on the book, it’s also reviewed in The Christian Science Monitor, The Boston Globe and NPR.

From the Wall Street Journal: John Fabian Witt (Yale Law School) reviews Court Martial by Chris Bray. The "central argument," Witt writes, "is that the court-martial and its cousin, the military commission, have been central participants in the main storylines of American history, from emancipation and civil rights to whistleblowing and sexual assault. . . . He also argues, far more contentiously, that military justice 'is neither better nor worse than civilian justice. It’s just different, in good ways and bad.'"
The Times also published a review of  Daniel Czitrom’s New York Exposed: The Gilded Age Police Scandal That Launched the Progressive Era, an “evocative account” of a 1892 investigation of police corruption that “reveals that the nexus between politics, policing and biblical trespasses in the late 19th century, introduced the term “organized crime,” spawned the Patrolmen’s Benevolent Association, demonstrated the power of mass media and even presaged reality television shows”.
In the L.A. Times, David Treuer reviews "The Other Slavery: The Uncovered Story of Indian Enslavement in America,” Andrés Reséndez’s study of the “set of kaleidoscopic practices”--including convict leasing and vagrancy-type laws--that settlers used to control native  Americans even after the Thirteenth Amendment.

The ABA Journal’s Lee Rawles speaks with Risa Goluboff about her new book, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, in the Modern Law Library Podcast.

The New Books Network features reviews of Nicole Rudolph‘s At Home in Postwar France: Modern Mass Housing and the Right to Comfort (which sees the government’s interest in “guaranteeing its citizens the right to safe, hygienic, and comfortable homes” as essential to state building), The Bus Kids (which counts the experiences of small children participating in an inter-district transfer program designed to allow students living in a low-income community to attend better-resourced schools in other nearby towns)  and a new collection called Genocide and Gender in the Twentieth Century: A Comparative Survey.

In Dissent, Linda Gordon reviews two books on abortion rights, including Mary Ziegler’s legal history, which “shows us that it is the failure of the most radical anti-abortion agenda that put us where we are today.” The same issue includes Theda Skocpol’s Who Owns the GOP?, but this is dated Feb. 3.  

Finally, in The Nation, Scott Sherman reviews Benedict Anderson’s memoir, A Life Beyond Boundaries, which he recently published in English.  Anderson’s “neat and tidy” book, Sherman says, is a “primer for cosmopolitanism.” The book elides much of Anderson’s assessment of the coup d’etat in Indonesia that resulted in the detention of the left-leaning Sukarno as well a series of catastrophic massacres (Anderson and colleagues at Cornell published the “Cornell Paper” in 1966, which argued that the coup and resulting violence were “internal army affairs” rather than a Communist power grab by the PKI).  
Instead, Anderson focuses on his own intellectual development, rich descriptions of his academic mentors (including one whose anti-colonialism would result in the revocation of his passport--an affair that sounds right out of Sam Lebovic’s ASLH presentation last year) and--my personal favorite--reflections on the solemnity of academic life (chastised for his lack of seriousness, Anderson reflects, “now I understand what traditional Chinese foot-binding must have felt like”).
I also wanted to point readers to a website called Dissertation Reviews, which publishes non-critical reviews of recently published dissertations.  Some of the reviews might be of interest to legal historians. For example, this February, Faisal Chaudhry reviewed Jean-Philippe Dequen’s "Evolution of the Place of Islamic Law within the Indian Legal Order, 1600-2014".

Saturday, May 21, 2016

Weekend Roundup

  • We’ve noted the Swinburne Law School’s re-launch of Legal History, but the school’s press release is here.
image credit
  • A workshop with a good dose of Islamic legal history took place at Yale on April 9-10, 2016. "Sharia in Motion: Islam, Law, and Mobility in Asia" was organized by Julia Stephens (Yale History). Here is the workshop description, some abstracts, and a list of participants.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 20, 2016

LLMC Launches Open Access Collection

[We have the following announcement.]

LLMC is proud to announce its new Open Access initiative! In addition to the subscription services LLMC offers to members of our consortium, we are proud to provide unrestricted access to select titles. The LLMC Open Access Collection has been made available through partnerships and grants designed to give the world access to specific content.

Our first contributions to the Open Access Collection include these impressive materials:

  • The Documentary History of the Supreme Court of the United States, 1789-1800, ed. by Maeva Marcus et al, Vol. 1-8 in 9 books.
  • More than 70 titles from the LLMC Digital Hawaiian Kingdom Collection (original documents are located in the Hawaiian State Archives/Honolulu). This unique Collection was digitized in collaboration with the Hawaiian State Archives and the Ka Huli Ao Center for Excellence in Native Hawaiian Law at the William S. Richardson School of Law, University of Hawaii.  Public access to this content is also available through the Library of Congress’ noteworthy Indigenous Law Portal | Law Library of Congress.  Much appreciation to Dr. Jolande E. Goldberg Policy & Standard Division Acquisitions & Bibliographic Access Directorate for orchestrating this initiative.

PhD Positions at the ASSER Institute

The ASSER Institute for European and International Law in The Hague is recruiting two PhDs with a focus on legal history in the framework of a research project on "The Global City: Challenges, Trust and the Role of Law."  The two PhD researchers will explore seventeenth-century Amsterdam’s intellectual history, that is, the early modern Portuguese Jewish body of social-political and legal thought on diversity, identity, and global trade relations as found in the holdings of Ets Haim/Livraria Montezinos.

For more information please visit our website.  Deadline: 5 June 2016.

Grisinger on Sabin on Environmental Lawyers and the New Deal Order

Over at Jotwell, Joanna Grisinger, Northwestern University, has posted Did Public Interest Lawyers Undermine the New Deal Order?, a review of an article by Paul Sabin, "Environmental Law and the End of the New Deal Order," 33 Law & Hist. Rev. 965 (2015). Here’s a taste:
Paul Sabin’s recent article puts elite liberal lawyers at the center of the story of the demise of the “New Deal order” – that “period of time between the 1930s and 1970s when the federal government, in close partnership with business and labor organizations, greatly expanded its coordination of the national economy and individual industries, as well as its development of natural resources and public infrastructure projects.” (P. 969.) Sabin draws on a wealth of oral histories, interviews, and archival materials to provide an engaging history of public interest environmental lawyers and organizations – including the Environmental Defense Fund, the Center for Law and Social Policy, the Natural Resources Defense Council, and the Sierra Club Legal Defense Fund. These lawyers and law firms challenged New Deal assumptions; in doing so, Sabin argues, they were as key to the fracturing of New Deal-style liberalism as its conservative critics.

CFP: “150 Years of Jurisprudence”

[Via Legal Theory Blog, we have the following announcement.]

Colleagues:  You are invited to submit a paper for possible inclusion in a special issue of the Washington University Jurisprudence Review (Volume 9, Issue 2) entitled: “150 Years of Jurisprudence”. This journal is sponsored by Washington University School of Law in St. Louis, MO. The journal welcomes articles and notes to be considered for this special issue.  “150 years of Jurisprudence” is meant to be an opportunity for the journal to commemorate the sesquicentennial anniversary of the law school, while simultaneously celebrating the contributions that jurisprudential thought has made to legal scholarship as a whole.

Areas of interest for this special journal issue include, but are not limited to, the following topics:

- Jurisprudence “Then and Now”
- A discussion on the jurisprudential work of any prominent legal scholar in the past 150 years
- An analysis of the evolution of jurisprudential thought over the past 150 years
- The potential for further development of jurisprudence looking forward

The full manuscript of your paper, as a PDF file, should be emailed directly to the journal at jurisprudence@wulaw.wustl.edu along with your CV or resume by September 30th, 2016 at 11:59 PM. You will receive notification as to whether your article has been selected for publication on a rolling basis, but no later than November 11th, 2016 at 11:59 PM.

Thursday, May 19, 2016

CFP: First Nations & James Douglas

Credit: Songhees Nation
[We have the following Call for Proposals from Pooja Parmar of the University of Victoria. She is co-organizer of the Law and Society Association's CRN 15: British Colonial Legalities. Note the deadline of June 21, 2016.]

First Nations, Land, and James Douglas:
Indigenous and Treaty Rights in the
Colonies of Vancouver Island and British Columbia, 1849-1864

The Songhees Nation and the University of Victoria Faculty of Law and History Department
invite your participation in a conference on this theme
at the Songhees Wellness Centre, Victoria, B.C. February 24-26th 2017.

We anticipate that there will be tours of Songhees traditional territory by land and sea on
Friday the 24th before the first presentations and that the conference will include
a mix of academic and community presentations.

We welcome individual and panel proposals for presentations from researchers, legal
professionals, and community members, on topics including, but not limited to, the following:

1) Relations between First Nations and James Douglas
2) Indigenous and Colonial Concepts of Land, Law and Territory
3) Hunting and Fishing Rights
4) The End of Treaty-Making
5) The Roles of the HBC and the Colonial Office
6) The History of Douglas Era Reserves
7) Current relevance of these historical events.

Please send a 250-500 word description of the proposed presentation and a one page resume
or cv to any of: Cheryl Bryce <Cheryl.Bryce@songheesnation.com>; John Rice Jr.
<John.Rice@songheesnation.com>; or John Lutz jlutz@uvic.ca.
Deadline for proposals is: June 21st, 2016.