Bassok on Constitutional Thought and the Havard Law Review Forewords

Or Bassok, University of Nottingham Faculty of Law and Social Sciences, has posted Beyond the Horizons of the Harvard Forewords, which is forthcoming in volume 70 of the Cleveland State Law Review (2021):

American constitutional thought is controlled by certain paradigms that limit the ability to think beyond them. A careful reading of the Harvard Law Review Forewords—the “tribal campfire” of American constitutional thinkers—is one way to detect these paradigms. Based on reading these Forewords since their inception in 1951 and until 2019, I track how the concept of judicial legitimacy has been understood over the years. My analysis shows that in recent decades an understanding of judicial legitimacy in terms of public support has risen to the status of a controlling paradigm. While this understanding is currently considered commonsensical, it stands in tension with an understanding of judicial legitimacy in terms of expertise that goes back to Alexander Hamilton and dominated the Forewords up until the 1960s. Rather than viewing the Supreme Court as requiring public support to function properly, according to the Hamiltonian view, the Court requires “merely judgment.” Tracking the genealogy of judicial legitimacy in the Harvard Forewords also shows how the shift from Hamilton’s understanding of judicial legitimacy to the current understanding was connected to the invention of public opinion polling. This invention allowed for the first time in history to measure public support for the Court. Before this invention, with only elections as the accepted tool for measuring public support, understanding the Court’s legitimacy in terms of public support was impossible. With the rise of opinion polls as an authoritative democratic legitimator, the concept of judicial legitimacy changed as is reflected in the Harvard Forewords.

That “tribal campfire” metaphor is pretty terrific, especially when you remember that someone was always getting roasted.  

–Dan Ernst

Peer Review: A Casualty of the Pandemic?

I confess: even in the best of times, my first impulse upon spotting an email from a journal or book publisher or tenure and promotion committee that I just know is a request for peer review has not been to rejoice at yet another chance to serve and sustain the Republic of Scholars.  Now, with so many other unexpected demands on our time–personal as well as professional–how could we not be expected to reply “Sorry; just can’t,” hit send, and return to whatever mishegas had been enveloping us?

When the latest request arrived, I clicked “yes,” then paused to wonder why I did.  My first thought was simply that I could: with my children employed and out of the house and my family members healthy, the pandemic has disrupted my personal far less than many, many other legal historians; it was time for the fortunately situated to step up. 

A second thought was more self-ish.  The pandemic disrupted many of the behaviors through which I realize and affirm aspects my professional identity.  So much of my sense of myself as a teacher, for example, is borne of spontaneous interactions in the classroom; with the start of remote teaching, I wasn’t quite sure I was who I always thought I was until my students, eager to affirm their own emerging identity as professionals, reassured me with their enthusiastic engagement.  I’m not sure which of us was more grateful for the experience.

Peer review is an opportunity to affirm another part of a professor’s professional identity, that of a contributor to a scholarly discipline.  I know what you’re thinking, and it’s not wrong: “I can do that by producing my own scholarship, an activity that’s gotten a lot harder recently, in case you haven’t noticed.”

Well, of course you can, and it has.  And yet we all know that, however solitary it sometimes feels, scholarship is a collective activity, which we advance no more vitally than when we explain what a particular manuscript or body of work contributes to the whole.  Peer review, then, is a way to affirm the collaborative side of one's scholarly identity

A third thought used to strike me as alarmist, but, with so many stopping their ears to the warnings of epidemiologists, it now seems undeniable: credentialed knowledge is, if not quite an endangered species, under stress in an increasingly hostile epistemological habitat.  Such authority as it retains would collapse without collective, expert assessment.  Call it the Tinkerbell effect if you must, but a demonstrated belief in the value of peer review anywhere can help sustain it everywhere.

So when the next request arrives, if you just can't, don't.  But, if it's a close question, before declining consider what we would lose if peer review became a casualty of the pandemic.  

--Dan Ernst

A Better Book: Development Editors

              Today’s post concerns the secret weapon of many an excellent (legal history) author, the development editor. I worked with two on my book, Almost Citizens. They were crucial to my learning curve. Without them, I would never have crafted a book that resembled the vision in my head.

              Before starting my book, I had never contemplated paying someone to help me improve my writing. Legal history is a specialized area, and I chose my words carefully to hew to what the sources supported. I worried that someone from outside the field would seek to simplify or expand my claims in ways that I would just end up reversing. The problem was that I also knew that I could benefit from fresh eyes on my writing. By the time I’d drafted a few chapters and signed with Cambridge University Press, I felt confident about my narrative structure and cast of characters. But I found it more difficult to do smaller-scale reorganizations and line edits. This was partly because I was so close to the manuscript. It was also because writing is a skill, and I had more to learn.

Despite having many generous readers, none seemed likely candidates to become writing mentors. Colleagues and reviewers grappled with my work and provided incisive comments. But that feedback almost always involved the substance of the argument rather than its tone and constituent sentences. Given the economic realities of book publishing, many publishers hardly do any editing of manuscripts in progress. I did have the good fortune to publish with American Society for Legal History’s book series (which I discuss here). Sally Gordon was my editor there, and she was a tireless and skilled reader. But she soon saw that the book and I could both gain from more editorial engagement than she could devote to a single book in her series. So she recommended that I consider a development editor.

              I had never heard the term. Perhaps because I live just down the road from Hollywood, my mind immediately went to the entertainment executives who tell show runners that their sitcoms need more dogs or a kooky sister to really draw in the millennials. But (spoiler alert!) that was not whom I was to encounter. The editors I would work with helped me produce the best possible version of my book. Sometimes, such work is called development editing. Sometimes it goes by different names.

              I sought someone who could help me make my prose sing (or at least hum occasionally) without sacrificing nuance and accuracy. Given my topic, that meant an editor who could engage legal and historical arguments, had a sense of the evidentiary norms in the field, and understood the potential audiences for the work. But finding such an editor is a bit like turning up a good contractor for a renovation; you ask around, check out samples of the person’s work, and ultimately take a leap of faith that the (intellectual) place that you lay your head will be transformed for the better.

              I had the good fortune to work with two excellent development editors. I learned of both through admired colleagues who sang the praises of having collaborated with them. The first was Grey Osterud, an accomplished academic historian. Rather than teach, she complements her research with editing colleagues’ work. I was thus confident from the outset that she knew and honored the standards of academic history. Once I had the manuscript drafted, I undertook a rewrite with Pamela Haag, an author of serious histories for broader audiences. Notably, she also has a contract with Yale University Press for a style guide for the scholar-writer that I look forward to adding to my shelf soon.

              As Grey and Pamela helped me improve the book’s prose, they were also teaching me to be a better writer. One set of lessons had to do with the difficulties of evaluating choices about organization when one is too close to the text. Because I was circulating individual chapters to colleagues for feedback, I tried to put enough at the front of each chapter to orient them. The result was bloated chapter introductions. My development editors saw the problem immediately. They worked with me to shorten the chapter introductions and have them serve more as bridges between chapters than as introductions to standalone essays. Similarly, my immersion in the particularities of the book’s events had led me to subdivide the book’s chronology into overly narrow chronological bands. As Grey and Pamela perceived, such fine distinctions muddied the broader argument rather than clarifying it. Thus, a chapter that I had written with six sections, one for each of three characters at each of two times (ABCABC), came to contain just three character-centered sections (ABC).

              Careful editing by others is a wonderful way to discover one’s own writing tics. I had been particularly blind to two. I wrote long, intricate sentences and was overly fond of metaphors. I had to learn to reduce clauses and interjections, break up sentences, and clarify which verbs and nouns went together in what ways. Similarly, I had to unmix metaphors and close them out before they ceased to clarify. The difficulty in both cases was less fixing the problems than perceiving them in the first place. Grey and Pamela sensitized me to my propensity to create these tangles, which was all I needed to start fixing them.

              Like many historians, I revel in the details and complexity of what I study. Seeing the danger, my dissertation committee co-chair Jesse Hoffnung-Garskof counseled that my job was to over-claim and that his job was to rein me in. But knowing that I should trim and sum up did not wholly cure me. My development editors urged me to go further. Curate evidence. Don’t cut one of five quotations; leave just one. Remove tangents. Lead with bold claims. Qualify them later. Or don’t. The result was much more accessible prose. Arguments rose to the surface, no longer drowned by my sea of evidence.

There is one big downside to a development editor: she costs money. How much varies by who you hire, for how long, and for what. But price tags in the thousands of dollars would be common. The best solution is to have someone else pay. My law school (USC’s Gould School of Law) is extremely generous in its support for junior scholars’ work. While schools and departments may vary substantially in what they are able to offer, it is always worth asking. Knowing that peer institutions have offered similar funding can sometimes help shake out extra funds.

Had I had to pay for my development editors entirely out of pocket, I might have balked at using them or using them so extensively. In my case, that would have been a mistake. Their services were worth far more than the cost. As an early-stage scholar, the benefits were quite large. I have many productive years left in which to benefit from what I have learned in terms of writing and argumentation. The book is stronger too. That matters because the book is my debut in legal history as a mature scholar. It was also the centerpiece of my file for tenure (which I just received--Yay!).

My biggest fear when I began working with development editors was that I would not recognize the final text of the book as my own prose. In fact, the opposite was true. By the time I began working with Grey, I largely knew what I wanted to argue, which historical actors and narratives I wanted to feature, and what evidence I wanted to rely upon. But I found it frustratingly hard to translate the book that I had in my head into words on the page. As Grey and then Pamela and I worked on the prose, the gap between it and my envisioned book narrowed considerably (albeit with some nice additions suggested by my development editors that I had not foreseen). Almost Citizens ended up being very much my book—even more so than I had at first hoped.

--Sam Erman

On Scholarship and Productivity – a Farewell to the Legal History Blog and a Confession

Back in June 2018, when Mitra Sharafi invited me to be a guest blogger for a month, she mentioned, among other things, that she would love a post with tips on research productivity. I did not want to end this blogging experience without complying with her wish.  

Twenty-five years after I defended my dissertation and with some twenty-or-less years before I retire, what have I learned about research and writing? 

The first thing is that, although intuitively we tend to think that focusing on smaller things and a shorter time span would enable a greater efficiency, this is usually untrue. In my own experience, the larger and wider you look, the quicker you understand what you see. This was a lesson my driving teacher taught me when I was sixteen years old. She explained that if I looked right in front of the wheels (which was what I naturally wanted to do) I would see nothing; but that if I looked to the horizon I would see everything. I am sure she did not mean to give me a life-long advice, but her wisdom guides me (also) as I imagine, plan, or execute, new projects. 

Looking to the horizon requires, among other things, to ignore the most obvious and the most travelled route. I know Robert Frost warned us that the routes we take may not make as huge a difference as we would like to believe, but not being certain where I was going paradoxically allowed me to better listen to the archives. I listened not to what they told me about the past, but also to what they said about my research question. Was it a valid question? Should it be asked differently? How can it be divided into pieces and what should be included? At least twice the archives told me to abandon the search altogether or they suggested that the project I was pursing was of little interest. It was a hard lesson to learn, but I ended up obeying. 

Knowing when to stop was a fundamental issue. Many years ago, as an MA student, my then mentor gave me the advice that when nothing surprises me any longer, it is time to leave. I follow his recommendation religiously, even as I tremble at the thought that an amazing discovery may be waiting for me in the next bunch of papers, which I will never read. 

Efficiency at the archives is one thing; another is to overcome the first blank page of a new project. There are days in which I can write, and days that are useless. I try to come to terms with these fluctuations, knowing that there is little I can do to change them. When I get really stuck I go swimming. Swimming allows me a concentration, which I cannot otherwise obtain. 

Over the years, I learned to avoid peer review. I realize this may be an unnecessary confession, but there is nothing that I like or find useful about peer review. Peer reviewers sometimes know more than you, or as much as you do, but often they do not. Some are generous and engage with your argument, but others want to impose their ideas. I know peer review is supposed to ensure a certain quality across the board and maybe sometimes it does, but in my own experience it mostly produces leveling.  While it guarantees serious and responsible scholarship, it disrupts attempts at doing things differently. Perhaps because I was educated in Paris, as I matured in the American academic system I kept asking myself whether revered French academics such as Foucault, Derrida, or Braudel, would have ever passed a proper peer review. I am convinced they would not. Nonetheless, our scholarly world is better because of what they proposed. Their insights were transformative even if their method was too new, their facts too shaky, and their tendency to generalize too extreme. 

I also believe it is important to remember that there are many ways to think about productivity. The most obvious is to measure it by the number of books and articles. Another is by evaluating the divergence between them, and the degree by which they respond to different questions, methodologies, areas, or subjects of expertise. What kinds of linguistic and archival competence is required is another important point, as well as whether sources are available online or demand dislocation, where to, and how user-friendly are the deposits. 

Beyond all these considerations, the greatest lesson I learned is that, although we tend to think about productivity as a personal achievement, in earnest, it often depends on the individuals and institutions around us. Teaching in universities with excellent students, interesting colleagues, great libraries, and comfortable office space, facilitates things tremendously. So does having many sabbaticals, preferably, many more than the term usually implies. A supportive domestic and social environment is crucial. We often give thanks to our families and friends because of what they had endured while we did research and writing. I am thankful to them on this account, but I am mostly grateful for the conversations they facilitated. I found dialogues with my twin boys surprisingly illuminating. When they were younger, I needed to explain things simply; when older, my aim was to make them more complex. But, as I dragged them across countries and continents, I learned a new art of explaining and discovered new ways to think about what I believed I already knew. 

There is a famous saying that behind every successful man there is a great woman. Fortunately, I belong to a generation that can also affirm the contrary. I am certainly privileged to be backed by a great man. It is to him, that great man who listens, shares, discusses, assists, reads, and advises, that I dedicate this last piece.

Campbell on Natural Rights and the First Amendment

Jud Campbell, University of Richmond School of Law, has posted Natural Rights and the First Amendment, which is forthcoming in the Yale Law Journal.

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding-Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding-Era elites shared understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Muller on Voter Registration Battles, Then and Now

Derek T. Muller, Pepperdine University School of Law, has published What’s Old Is New Again: The Nineteenth Century Voter Registration Debates and Lessons About Voter Identification Disputes, Washburn Law Journal 56 (2017): 109-121.  Cribbing from the introduction:

There is a raging debate over the administration of elections, which is undoubtedly familiar to many. There has been a significant increase in a particular kind of election law pertaining to how states go about administering elections. These laws have largely been promulgated by Republicans and target election fraud—actual or perceived—in an attempt to restore some integrity to the electoral process. Democrats, for the most part, have opposed these laws and often critiqued them as a kind of voter suppression tactic, one that disproportionately burdens racial minorities, the poor, and those who have recently moved into a precinct. Over the years, these positions have hardened into fairly partisan and seemingly intractable positions.

This story, of course, is also the story of the voter registration debates in late nineteenth century America.

Chetail on Sovereignty and Migration from Vitoria to Vattel

Vincent Chetail, Graduate Institute of International and Development Studies, has posted Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel, which appears in the European Journal of International Law 27 (2016): 901–922:

This intellectual history of hospitality from Vitoria to Vattel provides an alternative story to the prevailing narrative of migration control. Although migration control is frequently heralded as falling within the domestic jurisdiction of states, the movement of persons across borders is a permanent feature of history that has been framed by international law for ages. The early doctrine of the law of nations reminds us that migration was at the heart of the first reflections about international law through the enduring dialectic between sovereignty and hospitality. This long-standing debate was framed by early scholars following three main trends, which constitute the focus of this article. The free movement of persons was first acknowledged by Vitoria and Grotius as a rule of international law through the right of communication between peoples. By contrast, Pufendorf and Wolff insisted on the state’s discretion to refuse admission of aliens as a consequence of its territorial sovereignty. Yet, in-between these two different poles – sovereignty versus hospitality – Vattel counterbalanced the sovereign power of the state by a right of entry based on necessity. As exemplified by the founding fathers of international law, the dialectic between sovereignty and hospitality offers innovative ways for rethinking migration.

Danner on Langdell and the Labratory Metaphor

Richard A. Danner, Duke University School of Law, has posted Law Libraries and Laboratories: The Legacies of Langdell and His Metaphor, which is forthcoming in the Law Library Journal 107 (2015):

Langdell Hall (LC)

Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.

New Release: Empire by Treaty

Out recently from the Oxford University Press is Empire by Treaty: Negotiating European Expansion, 1600-1900, edited by Saliha Belmessous, senior research fellow at the University of New South Wales.

Most histories of European appropriation of indigenous territories have, until recently, focused on conquest and occupation, while relatively little attention has been paid to the history of treaty-making. Yet treaties were also a means of extending empire. To grasp the extent of European legal engagement with indigenous peoples, Empire by Treaty: Negotiating European Expansion, 1600-1900 looks at the history of treaty-making in European empires (Dutch, Spanish, Portuguese, French and British) from the early 17th to the late 19th century, that is, during both stages of European imperialism. While scholars have often dismissed treaties assuming that they would have been fraudulent or unequal, this book argues that there was more to the practice of treaty-making than mere commercial and political opportunism. Indeed, treaty-making was also promoted by Europeans as a more legitimate means of appropriating indigenous sovereignties and acquiring land than were conquest or occupation, and therefore as a way to reconcile expansion with moral and juridical legitimacy. As for indigenous peoples, they engaged in treaty-making as a way to further their interests even if, on the whole, they gained far less than the Europeans from those agreements and often less than they bargained for. The vexed history of treaty-making presents particular challenges for the great expectations placed in treaties for the resolution of conflicts over indigenous rights in post-colonial societies. These hopes are held by both indigenous peoples and representatives of the post-colonial state and yet, both must come to terms with the complex and troubled history of treaty-making over 400 years of empire. Empire by Treaty looks at treaty-making in Dutch Colonial Expansion, Spanish-Portuguese border in the Americas, Aboriginal Land in Canada, French Colonial West Africa, and British India.

TOC after the jump.

Thank you, Mitra Sharafi

Please join the Legal History Blog team in thanking Mitra Sharafi (University of Wisconsin-Madison) for her fantastic guest blogging during the month of March.

This month she has brought our attention to valuable historical sources and web resources, and discussed her current research in South Asian legal history.

• In praise of small archives
• In praise of private papers
• In praise of memoirs
• Eugenics in South Asian Legal History
• First Book Workshops
• Digital Asian Legal History

For more on Professor Shafari's latest book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge), follow this link, and don't forget to take a look at her work elsewhere online compiling South Asian Legal History Resources.

In praise of memoirs

Legal historians often use memoirs—by litigants, legal professionals and social movement activists—as raw materials for our larger narratives. Few of us reach into the scholarship on memoirs as a genre, although the Journal of Law and Society's special issue on "Legal Life Writing" (March 2015) is a happy recent exception (see this earlier post). What literary scholars call “life writing” includes memoirs, autobiographies, diaries, letters, scrapbooks, and possibly family histories. As Sidonie Smith and Julia Watson describe it, life writing reflects “historically situated practices of self-representation.” I’ve been dipping into this literature for my own work on legal memoirs and family histories, and have come across some real gems. Here are my favorites. 

If you read just one thing on life writing, make it Sidonie Smith and Julia Watson’s superb book, Reading Autobiography: A Guide for Interpreting Life Narratives. This classic offers a "tool kit" of themes (ch.9) that will get you thinking even in your driest moments. Some highlights include: agency, audience, authority and authenticity, coherence and closure, evidence, identity, memory, online lives, space and place, trauma and “scriptotherapy,” and voice. Equally, the book provides a handy list of sixty sub-genres of life narrative (Appendix A), like autohagiography (!), war memoirs, and narratives of captivity, conversion, filiation, imprisonment, slavery, survival, travel, and war.        

McGaughey on German Labor Law in the 20th Century

Ewan McGaughey, King's College, London, Dickson Poon School of Law, has posted The Codetermination Bargains: The History of German Corporate and Labour Law.  Here is the abstract:    

Why does codetermination exist in Germany? Law and economics theories have contended that if there were no legal compulsion, codetermination would not exist. It would seldom arise through voluntary market interactions. This positive analysis typically supports a normative argument that codetermination is inefficient. In response, this article undertakes a careful study of German codetermination from the mid-19th century to the present, and finds that the evolutionary inefficiency argument is at odds with the evidence. In its very inception, codetermination came from collective agreements. It was not compelled by law, but was collectively bargained between business and labour representatives. Codetermination laws then codified the models set by collective agreements. This was true at the foundation of the Weimar Republic from 1918 to 1922 and, after abolition in 1933, again from 1945 to 1951. Those foundational ‘codetermination bargains’ seem to have been made because of two ‘Goldilocks’ conditions (conditions that were ‘just right’) which were not always seen in countries like the UK or US. First, inequality of bargaining power between workers and employers was temporarily less pronounced. Second, the trade union movement became united in the objective of seeking worker voice in corporate governance. As the practice of codetermination has been embraced by a majority of EU countries, and continues to spread, it is important to have an accurate positive narrative of codetermination’s economic and political foundations.

Feely and Miyazawa on Japanese Legal Culture and the State

Malcolm M. Feeley, University of California, Berkeley, School of Law, and Setsuo Miyazawa, University of California Hastings College of the Law, have posted Legal Culture and the State in Modern Japan: Continuity and Change, which originally appeared in Law, Society, and History: Themes of the Legal Sociology and Legal History of Lawrence W. Friedman, ed. Robert W. Gordon and Morton J. Horwitz (New York: Cambridge University Press, 2011), 169-187.  Here is the abstract:    

This chapter has surveyed salient features of the legal system in Japan since the late Tokugawa period. Our purpose has been to describe the relation of the legal system to the state and to offer some observations about the autonomy of the internal legal culture of Japan. We found fundamental continuity between Tokugawa Japan and postwar Japan. It remains to be seen whether the justice system reform introduced since 2001 will produce transformations of the relationship between the state and the bar, resulting in a more assertive internal legal culture.

Perez on Lincoln's Legacy for International Law

Antonio Perez, Catholic University of America Columbus School of Law, has posted Lincoln's Legacy for American International Law, which appeared in the Emory International Law Review 28 (2014): 167-236.  Here is the abstract:    

Abraham Lincoln (LC)

This Article argues that Lincoln reframed U.S. rhetoric and practice of international law in ways that subordinated customary international law and elevated general principles of law and treaty commitments. It explains that this reconceptualization was based on Lincoln’s constitutional theory, through which the U.S. was transformed from a plural a sui generis institutional arrangement in the community of states, a Madisonian hybrid, into a singular nation-state performing a sui generis role in the community of states. After explaining the shift in constitutional theory and practice and international law theory and practice, the Article argues that these two shifts were in turn grounded on Lincoln’s ethical commitment to reasoning from first principles, rather than social practice, leavened with modest self-doubt and humility in the exercise of reason. Under Lincoln’s view, the United States would serve as an exemplar of a particular kind of society and the kind of person Lincoln thought normatively superior, a vehicle for the formation of a kind of person he believed made such a society possible, and perhaps even a force in the world for the progressive and universal realization of those ideals. Much as Lincoln’s achievement was to refashion the American state, Lincoln’s vision of American sovereignty made possible and necessary an entirely new approach to international law in which the American state re-defined its relation to the world and its ethical mission coupling reason with restraint in ways from which we can still learn today.

Bernstein on Brandeis between Progressivism and Liberalism

David Bernstein, George Mason University School of Law, has posted From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law, which appears in Notre Dame Law Review 89 (2014): 2029-2050.  Here is the abstract:

This article focuses on the role Justice Louis Brandeis played as a transitional figure in writing opinions that served as a bridge between the statist Progressives of the early twentieth century and mid-century legal liberals.

Brandeis was known as a civil libertarian in his day because he supported freedom of speech and labor union rights, which were the rights that the nascent left-leaning civil libertarian movement held most dear. But Brandeis was far from a consistent civil libertarian as the term has been understood since at least the Warren Court period. Nevertheless, Brandeis was responsible for guiding the Progressive wing of the Court away from the more consistently statist, deferential-to-democratic-majorities path charted by Justice Holmes to an agenda more accommodating to libertarian and equalitarian concerns.

Part I of this Article discusses Brandeis’s many deviations from civil libertarianism as it came to be understood in the post-New Deal period. These deviations include his acquiescence to coercive eugenics, his general lack of interest in African American rights, his support for protective labor legislation for women and concomitant disregard for women’s legal equality, his toleration of government abuses attendant to Prohibition enforcement, and his desire to repeal the Fourteenth Amendment.

Part II shows that despite these deviations, Brandeis had a significantly stronger record on civil liberties as a Supreme Court Justice than one would expect from someone of his Progressive outlook and background. Brandeis’s votes in favor of civil liberties created a civil libertarian corpus from the Progressive wing of the Supreme Court. This prevented judicial protection of what became core civil libertarian concerns from being associated primarily with the soon-to-be-discredited “Lochner Court,” and made it much easier doctrinally for later generations of liberal Justices to abandon early twentieth-century Progressivism’s blanket hostility to judicial review in favor of a jurisprudence favoring civil rights and civil liberties.

Garrow on the Writing of Roe v. Wade

David J. Garrow, University of Pittsburgh School of Law, has posted How Roe v. Wade Was Written, which also appears in the Washington and Lee Law Review 71 (2014): 893-924.  Here is the abstract:    

Justice Harry A, Blackmun (LC)

Let me begin with one sentence that Justice Harry A. Blackmun uttered in 1987: “Roe against Wade was not such a revolutionary opinion at the time” that it was handed down in January 1973, and in that statement Justice Blackmun was indisputably correct.

In early May 1971, the Supreme Court agreed to hear Roe v. Wade from Texas and Doe v. Bolton from Georgia. Both had been filed in early 1970 and had then come before special three-judge district courts from which direct appeal to the Supreme Court was possible following the panels’ denials of injunctive relief. Both panels had nonetheless ruled against the existing Texas and Georgia abortion statutes, and with a plethora of other abortion cases already docketed before the High Court — including ones from Louisiana, Missouri, and Illinois — and others known to be looming, it was unsurprising that five Justices — Douglas, Harlan, Brennan, White, and Marshall — voted to accept both Roe and Doe for argument on the merits come October Term 1971.

It is ironic that Harry Blackmun, who has gone down in history first and overwhelmingly foremost as the author of Roe v. Wade, privately opposed making the case’s holding anywhere near as extensive as his final opinion actually came to be. Equally notable, a strong and poignant counterfactual argument can be made that an actual majority of the Roe Court — Blackmun, William O. Douglas, the reluctant Warren Burger and the two actual dissenters, Byron White and William Rehnquist — would have preferred a holding that reached only to the end of the first trimester. But, instead, the more strongly articulated preferences of Lewis Powell, William Brennan, Thurgood Marshall’s chambers, and Potter Stewart decisively prevailed as Blackmun, encouraged also by his clerk Randall Bezanson, moved to adopt U.S. District Judge Jon O. Newman’s influential emphasis in a just-decided Connecticut abortion case, Abele v. Markle, concerning the decisiveness of fetal viability. That a supposedly conservative, southern appointee of Republican President Richard M. Nixon, in tandem with a Roman Catholic justice named to the Court by Republican President Dwight D. Eisenhower, made Roe v. Wade and Doe v. Bolton dramatically more far-reaching than they would have been had Harry Blackmun adhered to the view of pregnancy he brought to those 1972 discussions further underscores how ironic indeed it is that Roe and Doe came to be what they were on January 22, 1973.

Cockfield and Mayles's Long View of Taxation and Anglo-American Politics

Credit: Carol Highsmith/LC

Arthur J. Cockfield, Queen's University Faculty of Law, and Jonah Mayles have posted The Influence of Historical Tax Law Developments on Anglo-American Law and Politics, which appears in the Columbia Tax Law Journal 5 (2013): 40.  Here is the abstract:    

This article highlights the influence of historical Anglo-American tax law developments on the formation of new political institutions and laws. In critical periods of English and U.S. history, individuals rebelled against arbitrary royal taxes. In turn, they demanded new tax laws that became embedded in documents from the Magna Carta to the English Bill of Rights to the Declaration of Independence that promoted democratic constraints on the use of state power to assess and collect taxes. Over time, the idea that individuals are entitled to equal treatment under the law, and possess inalienable human rights, emerged in part as a result of these tax law developments. The discussion in this article supports the view that pragmatic concerns over property and taxation drove important English and American political and legal reforms.

Sunday Book Roundup

This week H-Net provides a couple of interesting reviews including one of Kari A. Frederickson's Cold War Dixie: Militarization and Modernization in the American South (University of Georgia Press). There are also reviews of Michael Scott Van Wagenen's Remembering the Forgotten War: The Enduring Legacies of the U.S.-Mexican War (University of Massachusetts Press) (here) and Steven J. Ramold's Across the Divide: Union Soldiers View the Northern Home Front (New York University Press) (here).

David G. Smith's On the Edge of Freedom: The Fugitive Slave Issue in South Central Pennsylvania, 1820-1870 (Fordham University Press) is also reviewed.

"In a provocative, well-researched study of race and freedom in south central Pennsylvania, David G. Smith reveals how African Americans in Adams, Cumberland, and Franklin counties truly lived “on the edge of freedom” during the half century from 1820 to 1870 (p. 1). Focusing on the fugitive slave issue, Smith unveils the contradictions that emerged along the Mason-Dixon Line as many white Pennsylvanians, especially businessmen and merchants in towns close to the border, sought to compromise with southern planters and supported the return of fugitive slaves, even as most African Americans and a large number of rural whites, notably, many Quakers, denounced slaveholding and rallied to help fleeing bondspersons. Drawing on a wealth of primary sources, including letters, speeches, petitions, legislation, court records, and a range of nineteenth-century newspapers, particularly the Gettysburg Star, the Gettysburg Compiler, and the Adams Sentinel, he vividly describes a fascinating--and often very disturbing--antebellum borderland where free blacks, fugitive slaves, and their antislavery white allies encountered enormous challenges stemming from deep-rooted racism, economic ties to southern planters, and ordinary white workers’ fears of heightened job competition from emancipated blacks."

HNN has added a review of The Brothers: John Foster Dulles, Allen Dulles, and Their Secret World War (Times Books) by Stephen Kinzer.

The Washington Post reviews Lincoln in the World: The Making of a Statesman and the Dawn of American Power (Crown) by Kevin Peraino.

The New York Times has a review of Ping-Pong Diplomacy: The Secret History Behind the Game That Changed the World (Scribner) by Nicholas Griffin.

"When the game of table tennis became the focus of diplomatic efforts to defuse Cold War tensions between the United States and China, no detail was too small to warrant careful scrutiny. As Nicholas Griffin demonstrates, in a book filled with well-chosen examples, the Chinese team visiting Colonial Williamsburg in 1972 was comfortable eating apple pie and singing “Home on the Range.” But “Row, Row, Row Your Boat” was dicier: the line “life is but a dream” was politically incompatible with the teachings of Chairman Mao. Thanks to some fancy footwork on the part of a translator, the line quickly turned into “life is full of steam.”"

This week, New Books in History interviewed Yuval Levin about his new book The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left (Basic).

And, although not usual Book Roundup fare, I found Professor Anthony Grafton's comments on the future of the history book to be very interesting. Check out the video on HNN here.

Harvard Legal History Workshop Schedule, 2013-14

I'm pleased to share the schedule for this year's Harvard Legal History Workshop. The lineup is as follows.

Sept 18: Daniel Ernst, Professor of Law, Georgetown University, “Chief Justice Hughes and Administrative Law, 1930-1941”
Comment: Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

Sept 25: Karen Tani, Assistant Professor of Law, University of California, Berkeley Law, “The ‘Indian Problem’: Welfare, Rights, and Citizenship in the Wake of the New Deal”
Comment: Lucie White, Louis A. Horvitz Professor of Law, Harvard Law School

Oct. 9 Risa Goluboff, John Allan Love Professor of Law and Professor of History, University of Virginia, “People out of Place: The Sixties, the Supreme Court, and Vagrancy Law”
Comment: Lisa McGirr, Professor of History, Department of History, Harvard University

Oct 16: Serena Mayeri, Professor of Law and History, University of Pennsylvania, “Status of Marriage: Marital Supremacy Challenged and Remade, 1960-2000”
Comment: Michael Klarman, Kirkland and Ellis Professor of Law, Harvard Law School

Oct 23: Jane de Hart, Professor of History, University of California, Santa Barbara, Department of History, “Ruth Bader Ginsburg: Pursuing Equality”
Comment: Nancy Cott, Jonathan Trumbull Professor of American History, Department of History, Harvard University

Oct 30: Daniel Sharfstein, Professor of Law, Vanderbilt University, “West from Reconstruction: Struggles Over Liberty and Equality, 1865-74”

Feb 26, 2014 Sara Mayeux, HLS Berger-Howe Fellow in Legal History, “The Right to Counsel and the Political Limits of Originalism”

Mar 27, 2014 Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Professor of History, Princeton University, “Imagining Gibbons v. Ogden without the Commerce Clause: A Sketch”

Storrs Discusses "The Second Red Scare"

Karen has previously noted the publication of Landon Storrs's The Second Red Scare and the Unmaking of the New Deal Left (2013).  Professor Storrs discusses the book, which provides an engrossing perspective on the federal loyalty security program, based on recently available sources, on Marshall Poe's New Books in History podcast.