Two from Green on Equal Protection Revisionism

Christopher R. Green, University of Mississippi, has posted two new papers calling for a revisionist approach to the Equal Protection Clause. The first is: The Original Sense of the Equal) Protection Clause: Pre-Enactment History. Here's the abstract:

The Supreme Court has long understood the Equal Protection Clause - "[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws" - as a generic antidiscrimination provision. This article challenges that interpretation. Applying a constitutional theory that takes the sense historically expressed by constitutional language as interpretively binding, but not that language's historically-understood or historically-intended referent, I argue that the Clause instead requires States to supply "the protection of the laws" - and supply it equally - to everyone subject to the State's decrees. This article reviews evidence from the 1866 Congressional debates, explains how the language of the Clause in its historical setting expresses the allegiance-for-protection contractual tradition, documents the extensive tradition of using "the protection of the laws" to refer to the remedial and law-enforcement functions of government, and criticizes the textual foundation of the traditional view of the Clause. Elsewhere I consider subsequent interpretations of the Clause and explain why a duty-to-protect Equal Protection Clause would have great significance today.

Green's second paper is The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application. Here's the abstract:

The Supreme Court has long understood the Equal Protection Clause--"[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws"--as a generic antidiscrimination provision. This article challenges that interpretation. Applying a constitutional theory that takes the sense historically expressed by constitutional language as interpretively binding, but not that language's historically-understood or historically-intended referent, I argue that the Clause instead requires States to supply "the protection of the laws"--and supply it equally--to everyone subject to the State's decrees. Elsewhere I consider how the allegiance-for-protection contractual tradition and the history of "the protection of the laws" support a duty-to-protect reading of the Clause. This article reviews how a duty-to-protect reading of the Equal Protection Clause was adopted in the Civil Rights Act of 1871 and explained at great length in the debates leading to it, and argues that the Privileges or Immunities Clause, which speaks of the rights of citizens, makes far more sense than the Equal Protection Clause as a provision forbidding second-class citizenship and civil inequality. The duty-to-protect view found a few early judicial adherents, but it was soon swamped by a generic antidiscrimination reading after Slaughterhouse. A duty-to-protect Equal Protection Clause would forbid gross misbehavior in the provision of protective services, act as an open-courts provision akin to Magna Charta paragraph 40 and related state-constitutional provisions, require that police services be supplied equally, forbid inequalities like race-based jury nullification that favor criminal or civil defendants, fill a gap in the reasoning in Roe v. Wade on the inference from fetal personhood to the requirement of protection, require that the marital rape exemption be abandoned, suggest serious constitutional troubles for our current system of prosecutorial discretion, and allow the federal government to provide enforcement and remedial services when states have failed to do so.

Risk, Race, the Right and Teapot Dome in the Book Reviews

In this "age of terror," with scholarly institutes focusing on the significance of fear, it is interesting to have two new books out that argue that this isn't such a frightening age after all. Risk: The Science and Politics of Fear, by Dan Gardner (Virgin)and Panicology, by Simon Briscoe and Hugh Aldersey-Williams (Viking) are reviewed in today's Guardian (UK). Rafael Behr writes of Gardner's findings:

Our poor troglodyte minds are simply not equipped to process the complexity of modern living, especially where risk is concerned. We hear about a terrorist attack; we see the gruesome consequences on TV and before we can calculate the probability that we personally will be blown up, our brains have reacted as if we are being charged by a rhino: no time to think! Run!...Evolution has taught us to prioritise anecdotal evidence because, unlike statistics, our imaginations can process it into something resembling our personal experience. 'It could have been me' is a common response to news of a disaster, although usually the mathematical probability of it actually having been you is infinitesimal.

Panicked about the impact of the corporation on politics? Time for a new take on Teapot Dome. The Teapot Dome Scandal: How Big Oil Bought the Harding White House and Tried to Steal the Country, by Laton McCartney (Random House) is reviewed today in the Philadelphia Inquirer. Leonard Boasberg writes:

Harding was a "dark horse" for the presidential nomination. But the "Oil King of Oklahoma," Jake Hamon, shopping for a president, decided that this undistinguished senator was his man, with the understanding that Hamon would become secretary of the interior. In that position, he would try to wrest control over the naval oil reserves at Teapot Dome in Wyoming and Elk Hills and Buena Vista, Calif., from the secretary of the Navy....Hamon strewed money around the Chicago GOP convention, buying delegates and influence. Collaborating with Harding's campaign manager and political brain, the crafty Ohio fixer Harry Micajah Daugherty, Hamon bought the nomination for Harding, according to McCartney. Alas, Hamon never took office. His mistress shot him.

The story continues, here.

Legal historian Daniel Sharfstein, Vanderbilt, reviews Richard Thompson Ford's new book THE RACE CARD: How Bluffing About Bias Makes Race Relations Worse (Farrar Straus & Giroux). "When Ford delves into the intricacies of post-racist America," he writes, "the book crackles with insight and pierces the pieties of left and right." However,

The legacy of Jim Crow is more pervasive than Ford allows. He suggests, for example, that the incompetent response to Hurricane Katrina can be attributed to President Bush's narrow political self-interest, not to his racism. But Ford doesn't address the modern Republican Party's calculated strategy to become the party of segregationists and white Southerners. Similarly, if discrimination against Spanish speakers seems distinct from race in the abstract, language was an unsubtle proxy for race in segregated schools, workplaces and jury pools in the American Southwest for much of the 20th century. But this history only heightens the urgency of today's problems, to which Ford, in his pragmatic and passionate effort to redefine civil rights, brings a jolt of clarity.

Finally, Eric Arnesen, University of Illinois, reviews William A. Link's new book Righteous Warrior: Jesse Helms and the Rise of Modern Conservatism (St. Martin's) for the Chicago Tribune. He finds it "a judicious and comprehensive biography of Helms, a man who 'left a permanent stamp on late-twentieth-century American public life,'" noting that "the book is, if anything, overly kind to its subject."

Kelley on Exporting Western Law to the Developing World: The Troubling Case of Niger

Thomas Kelley III, University of North Carolina, Chapel Hill, has a new essay Exporting Western Law to the Developing World: The Troubling Case of Niger. It appeared in Global Jurist (2007). Here's the abstract:

In recent years the West has dispatched "rule doctors" across the developing world to guide poor countries through the process of legal modernization and westernization. Their goal, laid out by the so-called Washington Consensus, has been to reform those countries' legal systems so that they might share in the economic bounty of globalization. But things have not always gone well, particularly – this paper argues – where those rule doctors have ignored existing legal traditions. The paper focuses on the particular case of Niger, one of the poorest countries in the world. At present, most of Niger's citizens rely on magio-religious traditions to accomplish what we in the West would consider law. One important, and from a Western perspective colorful, Nigerien legal tradition is its citizens' reliance on an oracle called the gon to identify wrongdoers and restore harmony to their communities. The paper will describe the gon, and will point out some of the ways that it differs fundamentally from Western conceptions of law. It then will conclude that Washington Consensus law reform in Niger will fail, and will very likely cause social unrest, unless it takes a different tack and finds a way to accommodate existing legal traditions.

Hat tip: Comparative Law Blog.

Litman on 'Billowing White Goo' (aka copyright history)

Billowing White Goo is a new essay by Jessica Litman, University of Michigan. It is forthcoming in the Columbia Journal of Law & the Arts. Here's the abstract:

In this paper, written for a symposium on Fair Use: Incredibly Expanding or Extraordinarily Shrinking?, I argue that the size of the fair use footprint has remained about the same over the past three decades, while the size and scope of copyright's exclusive rights have expanded markedly. In order to protect a broader range of worthy uses under the fair use umbrella, courts have adopted new tests tailored to privilege particular sorts of uses, but in doing so they haven't expanded fair use so much as they have moved it around. In part I of the paper, I briefly summarize the recent history of fair use from the Copyright Office's initial recommendations that Congress codify it through the tests the courts have articulated for applying it. I then turn to the expansion in exclusive rights under section 106. Some of that expansion derives from the architecture of the 1976 Act. Although Congress sought, with particular exceptions, to draft the statute to incorporate the substance of extant law, it drafted the bounded exclusive copyright rights in broad terms and the exceptions to those rights in specific terms. Over 30 years, the specifically worded exceptions have grown obsolete much more quickly than the broadly worded exclusive rights, leaving those rights subject to fewer and narrower exceptions than when the law was enacted. This may be a poor design for copyright laws in policy terms, but it was a choice Congress made. In contrast, the massive recent expansion in the scope of individual section 106 exclusive rights is occurring outside of the legislative process. Advocates have persuaded courts to construe each of the once-bounded exclusive rights more broadly. Once discrete exclusive rights are morphing into an all-purpose general use right. Our understanding of copyright is evolving into the notion that all uses of copyrighted work must be authorized, either by the statute or by the copyright owner. Unauthorized uses, it would follow, must be piracy. I argue that that construction of the copyright statute is completely untenable, especially as it applies to personal uses. Moreover, I suggest, expansion of that sort is as a practical matter inconsistent with a resolve to keep fair use cabined within traditional boundaries as a special privilege for exceptional cases.

Goldberg, A Historical Guide to the Future of Marriage for Same-Sex Couples

A Historical Guide to the Future of Marriage for Same-Sex Couples, just posted by Suzanne B. Goldberg, Columbia, consists of a short essay introducing an historical brief in a New Jersey same-sex marriage case. It was published, with the full brief in the Columbia Journal of Gender and Law (2006). Here's the abstract:

This article critically analyzes the evolving history of marriage, prompted by the marriage equality claims brought by same-sex couples. The article includes a copy of an amicus brief submitted on behalf of historians to a New Jersey appellate court in Lewis v. Harris, an ultimately successful challenge to the denial of relationship recognition rights for same-sex couples.

George Fredrickson has died

George Fredrickson, a towering figure in U.S. and comparative history, died February 25 at home in Stanford, California at the age of 73. He was the Edgar E. Robinson Professor of United States History, Emeritus, at Stanford. The Stanford Report remembers him his way:

Frederickson was a powerful force in reshaping historical views of the Civil War and race relations in the United States. He helped invent the field of comparative history through his seminal work White Supremacy: A Comparative Study of American and South African History, which was a finalist for the Pulitzer Prize. Few, if any, other historians have so imaginatively used a comparative approach to racism in America.

"George Fredrickson was an incredible scholar. The cope and depth of his knowledge was breathtaking," said Hazel Rose Markus, the Davis-Brack Professor in the Behavioral Sciences. "Even in a brief conversation with hi,m non-historians immediately understood how today was composed of the past and everyone knew they needed to know more.

"Most significantly, his work has changed the way historians and social scientists think about race. George Fredrickson has helped us understand race as a dynamic system of attitudes and institutionalized practices. This system is rooted in a belief in white supremacy, and it persistently shapes societies and individuals."

He was an activist who participated in the 1963 March on Washington, campaigned for divestment in South Africa at Stanford, and after the 1992 riots in Los Angeles, "he decried 'the new face of racism' in the Stanford Daily: 'The heart of the matter is the probable belief of these decent citizens that they are in no way responsible for the inner city conditions that spawn crime, disorder and police brutality.'"

Among his books, White Supremacy: A Comparative Study in American and South African History (1981), which compared the histories of South African apartheid and racial segregation in the United States, was a finalist for the Pulitzer Prize. Today's Los Angeles Times obituary draws from David Brion Davis's New York Times review, calling the book "a model of comparative history, 'one of the most brilliant and successful . . . ever written.'"

"He was a pioneer," Ariela Gross, a professor of law and history at USC who studied for her doctorate under Fredrickson, said this week. "He published 'White Supremacy' at a time when most people studying slavery in the United States were doing groundbreaking work but very locally focused, looking at the social history of the U.S. . . . Now everybody is writing about slavery from an Atlantic perspective. Everyone is doing comparative and transnational work, 25 years later."

At The Edge of the American West, where he is eloquently remembered, are these words of Fredrickson's:

I am convinced that the few who have a genuine interest in ideas and a powerful urge to find meaning and coherence in their experience are able to tell us more about a crisis of values, with its inevitable confusion and ambivalence, than the many who avoid difficult issues and are content to speak in outdated clichés.

George Fredrickson's books included: The Inner Civil War: Northern Intellectuals and the Crisis of the Union (1965); The Black Image in the White Mind: The Debate on Afro-American Character and Destiny (1971); White Supremacy: A Comparative Study of American and South African History (1981); The Arrogance of Race: Historical Perspectives on Slavery, Racism and Social Inequity (1988); Racism: A Short History (2002); Black Liberation: A Comparative History of Black Ideologies in the United States and South Africa (1995). His last book, Big Enough to Be Inconsistent: Abraham Lincoln Confronts Slavery and Race (Harvard University Press), was published shortly before his death.

There is much more here, here and here.

Update: A 2006 special issue of Safundi: The Journal of South African and American Studies took up the impact of Friedrickson's work. He is remembered here in the New York Times. Hat tip.

Zuker, Better a Catholic Than a Communist?

Better a Catholic Than a Communist has just been published by James Zucker, a recent University of Virginia Law School graduate and 5th Circuit law clerk, in the Virginia Law Review. It is nice to see a law school supporting good student work in legal history all the way to publication. Here's the abstract:

In 1948, the Supreme Court in McCollum v. Board of Education declared a “released time” program for religious instruction in the Champaign, Illinois, public schools unconstitutional. Four years later in Zorach v. Clauson, the Court upheld an almost identical program in the New York City public schools. The Court distinguished the two programs on the grounds that the instruction in Champaign occurred in the school building, while the instruction in New York occurred off school grounds.

It is clear this factual distinction was persuasive to at least one justice, yet Justice Douglas inexplicably included in his opinion for the Court another justification for finding the New York plan constitutional. He wrote that Americans “are a religious people whose institutions presuppose a Supreme Being.”

This Note offers an explanation for Justice Douglas’s appeal to Americans as a religious people and contends that the argument was persuasive to the majority, save for Justice Burton. It argues that increasing post-war anti-Catholicism and the Court’s decision in Everson created a climate in 1948 where the country was concerned with a growing Catholic influence in the public schools. Following Everson, McCollum provided the Court with an opportunity to draw a line and establish Mr. Jefferson’s high wall, so much discussed in Everson, between the church and state sponsored education.

Following McCollum, however, the country’s concern shifted to Communism. With this shift, the country’s perception of “released time” public education changed. Instead of viewing these programs as opportunities for Catholic influence in the public schools, the country viewed public religious education as an opportunity to oppose the spread of “Godless Communism,” and opposition to “released time” education was characterized as support for totalitarianism.

This Note posits that Justice Douglas’s appeal to the religious character of America reflected the changed historical context from McCollum to Zorach, namely, that by 1952 it was better to be a Catholic than a Communist.

Collins on Jurisdictional Exceptionalism

Michael G. Collins, University of Virginia, has just published Jurisdictional Exceptionalism in the Virginia Law Review (2007). Here's the abstract:

Challenges to federal court subject matter jurisdiction enjoy exceptional treatment: They resist procedural regulation, they are immune to waiver, and they may be raised at any time during a case, even by the party who invoked the federal court’s jurisdiction in the first instance. Such treatment is said to arise from the limited nature of federal judicial power. Nevertheless, the current ability to raise jurisdictional challenges—however and whenever—proves to be a comparatively recent development. During the early Republic, the federal courts were governed by a highly formalized common-law pleading regime that constricted the time and manner of jurisdictional objections, that embraced a robust notion of waiver, and that created disincentives to challenging jurisdiction. The result was that federal courts heard cases in which the pleadings may have suggested subject matter jurisdiction but in which jurisdiction was lacking in fact. Mid-nineteenth century developments associated with code pleading brought an increased focus on jurisdictional facts, and the Reconstruction Congress provided greater opportunities for jurisdictional challenges than those available at common law. But it was not until the mid-1930’s that the Supreme Court fully articulated the modern notion that jurisdictional defects could be raised in any manner and at any time—a notion that was soon embodied in the Federal Rules of Civil Procedure. This underexplored history of pleading and jurisdiction—particularly that of the early Republic—suggests understandings of the federal courts’ limited jurisdiction that may be in tension with current views. It may also offer possibilities for (as well as limits on) procedural reform aimed at restricting the currently open-ended ability to raise jurisdictional challenges in federal court.

Fenster on The 9/11 Commission and Institutional Form

Mark Fenster, University of Florida has posted a new paper, Designing Transparency: The 9/11 Commission and Institutional Form. Here's the abstract:

Surpassing the low expectations established by previous investigatory commissions and overcoming the political and legal obstacles created by the Bush administration's opposition to its creation, the 9/11 Commission accomplished what appeared to be the impossible: an authoritative investigation, a widely-read final report, and direct influence on significant legislation. At a time when legal scholars have committed themselves to the study of innovative institutional design, the formal legal innovations and administrative operations of the 9/11 Commission warrant close examination to consider whether and how it can serve as a model for similar institutions in the future. This Article argues that the 9/11 Commission indeed offers an important model for encouraging or forcing the executive branch to disclose information about an especially significant and controversial past event or future decision. As such, it suggests that Congress or the President consider establishing such commissions when information held by the executive branch can help the public to hold the state accountable for past actions or decide whether to support important, irreversible decisions the state must imminently make. The 9/11 Commission demonstrates that transparency can be better achieved in a time of crisis through institutional design than through constitutional common law and statute. The Article is less sanguine, however, about the 9/11 Commission as a model for policy formation. With limited accountability and relative independence from the political branches, an ad hoc, independent institution can make errors or misjudgments that can in turn have undue influence over the legislative process. Congress or the President should therefore limit the legal authority granted to investigative advisory commissions established during times of crisis so that political actors can fully deliberate over their prescriptions.

Adams on Cardozo and the history of the American Law Institute

The American Law Institute: Justice Cardozo's Ministry of Justice? is a new article by Kristen Adams, Stetson University College of Law. It appeared in the Southern Illinois University Law Journal (2007). Here's the abstract:

This paper explores an influential reform agenda - the notion of a Ministry of Justice - advanced by Justice Benjamin Nathan Cardozo, one of the American Law Institute's founding members. The article in which Justice Cardozo introduced the concept of a Ministry of Justice was published in the Harvard Law Review the very month that the exploratory committee was formed that ultimately recommended the formation of the American Law Institute, and two years before the Institute itself was founded. This article explores the extent, if any, to which the reform agenda that Justice Cardozo propounded in this famous article was fulfilled by the founding of the Institute.

Image credit.

Kessler is new LHR Book Review Editor for non-American Legal History

Amalia Kessler, Stanford Law School, is a new Associate Editor of the Law and History Review, and will join Alfred Brophy in editing book reviews. According to LHR Editor David Tanenhaus,

Professor Kessler will be responsible for book reviews on the non-Americas. Her research focuses on the evolution of commercial law and civil procedure and explores the roots of modern market culture and of present-day due process norms. The American Society for Legal History (ASLH) awarded her "Enforcing Virtue: Social Norms and Self-Interest in an Eighteenth-Century Merchant Court," the 2005 Surrency Prize for the best article published in LHR in 2004. Professor Brophy will continue his excellent service as LHR's Associate Editor responsible for book reviews on the Americas.

Kessler has a new book, A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France (Yale University Press, 2007). Here's what the press had to say about it:

This groundbreaking book provides the first comprehensive account of the juridiction consulaire, or Merchant Court, of eighteenth-century Paris. Drawing on extensive archival research, Amalia D. Kessler reconstructs the workings of the court and the commercial law that it applied and uses these to shed new light on questions about the relationship between commerce and modernity that are of deep and abiding interest to lawyers, historians, and social scientists alike.

Kessler shows how the merchants who were associated with the court—and not just elite thinkers and royal reformers—played a key role in reconceptualizing commerce as the credit-fueled private exchange necessary to sustain the social order. Deploying this modern conception of commerce in a variety of contexts, ranging from litigation over negotiable instruments to corporatist battles for status and jurisdiction, these merchants contributed (largely inadvertently and to their ultimate regret) to the demise of corporatism as both conceptual framework and institutional practice. In so doing, they helped bring about the social and political revolution of 1789.

Highly readable and engaging, A Revolution in Commerce provides important new insights into the rise of commercial modernity by demonstrating the remarkable role played by the law in ideological and institutional transformation.

And the blurbs:

"A really good historian as well as a really good lawyer, Kessler offers an accomplished and imaginative interpretation of the origins of liberal legal-economic market culture in eighteenth-century Paris."—Robert W. Gordon, Yale University

“A Revolution in Commerce is an erudite, original, and compelling treatment of one of the great problems of modern historiography: the relationship between capitalism and merchant practices, on the one hand, and late eighteenth-century political revolution, on the other.”—John Fabian Witt, Columbia University

Rao on posse comitatus, Tucker on Canandian shareholder liability and more in the new LHR

The full Spring 2008 issue of the Law and History Review is published and available on-line. Susanna Blumenthal's article and the responses have been noted earlier. The Spring issue also includes The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America by Gautham Rao; Shareholder and Director Liability for Unpaid Workers' Wages in Canada: From Condition of Granting Limited Liability to Exceptional Remedy by Eric Tucker and a long list of book reviews by various legal history luminaries. Here's editor David Tanenhaus's introduction:

This issue of Law and History Review presents three articles on North America. The authors are all interested in the emergence of legalities, especially the role that ideas and ideologies play in their creation and maintenance. Collectively, they investigate the problem of slavery for the development of nineteenth-century American statecraft, the enduring tensions between protective labor law and corporate capitalism in modern Canada, and the elusive question of individual responsibility in nineteenth-century American jurisprudence.

Our first article, by Gautham Rao, examines the federal posse comitatus doctrine (i.e., the federal government's power to compel the service of free individuals) to investigate how the problem of slavery redefined the relationship between individuals and the federal state in mid-nineteenth-century America. In theory and practice, this doctrine underscored the massive expansion of government power during the Civil War and Reconstruction. Without adequate capacity to enforce the Fugitive Slave Law of 1850, the federal government "commanded" American citizens to assist law enforcement as a posse comitatus. But the doctrine's foundational relations with slavery proved problematic. For those subjected to its power—abolitionists, union and confederate conscripts, and defeated southerners—the posse comitatus itself appeared as a category of servitude. The Posse Comitatus Act of 1878 conveniently repudiated an era of federal power that was inextricably connected to slavery and servitude. Once freed from the image of slavery, the federal posse comitatus doctrine quietly entered the mainstream of the American state.

In our second article, Eric Tucker examines what has happened in Canada when protective labor law has conflicted with the norms of capitalist legality. As he explains, shareholder liability for unpaid workers' wages was first enacted in mid-nineteenth-century New York State as a condition of providing investors with easy access to the corporate form at a time when there was deep disquiet about its legitimacy. Although the Canadian debate was more muted, prominent reform politicians expressed similar concerns about the corporation, leading them to impose first shareholder and then director liability for unpaid workers' wages. In the latter part of the nineteenth century, as the norms of separate legal personality and the limited liability of the makers and managers of corporations hardened into legal bedrock, the understanding of director liability as a condition of incorporation was inverted by the judiciary and treated as an exceptional privilege to be enjoyed only by the most vulnerable workers. In the late twentieth century, the Supreme Court of Canada adopted a similar line of reasoning to justify its holding that workers were not entitled to recover unpaid termination and severance pay from directors when their corporate employers defaulted.

Our third article, by Susanna Blumenthal, serves as the foundation for this issue's forum, "Consciousness and Culpability on Trial." As she notes, scholars have often depicted nineteenth-century American lawyers as resolute guardians of traditional ideas about freedom and responsibility, dogmatically opposing the deterministic doctrines of medical science. By focusing on the works of those who forged the interdisciplinary field of medical jurisprudence in the antebellum period, she reconsiders the problem of responsibility as it was conceived by doctors and lawyers. She reveals that both professions subscribed to the same basic model of moral agency—one reflecting the influence of the optimistic Common Sense philosophy of the Scottish Enlightenment. This model encouraged the identification of freedom with conventional rationality and morality, pointing toward the paradoxical conclusion that the only fully responsible persons were those who would never deviate from the laws of God and man. As they grappled with this attributive dilemma, medico-legal commentators came to see the wisdom of the alienists' hypothesis of insanity, endorsing substantial revisions of the common law of non compos mentis. However, most of these commentators—doctors as well as lawyers—drew the line at the doctrine of "moral insanity" and continued to insist that "self-neglect" was the root cause of most forms of depravity. This remained the case to the end of the century, even as a rising generation of medical scientists offered new reasons for doubting the autonomy of the will. Yet it is difficult to discern whether those who held to this model of moral agency did so as a matter of principle, practicality, or sheer habit. Sarah A. Seo and John Fabian Witt, and John Mikhail, offer comments on Blumenthal's essay. Her response concludes the issue's exploration of the emergence of enduring North American legalities.

Continue reading here.

Miller and Ruru on The Doctrine of Discovery in the United States and New Zealand

Robert J. Miller, Lewis & Clark, and Jacinta Ruru, University of Otago, have posted a new paper, An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand. Here's the abstract:

North America and New Zealand were colonized by England under an international legal principle that is known today as the Doctrine of Discovery. When Europeans set out to explore and exploit new lands in the fifteenth through the twentieth centuries, they justified their sovereign and property claims over these territories and the Indigenous people with the Discovery Doctrine.

This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of Native people and gained political and commercial rights over the inhabitants. England was an avid supporter of the Doctrine and used it around the world.

The English colonial governments and colonists in New Zealand and America, and later the American state and federal governments and New Zealand governments, all utilized Discovery and still use it today to exercise legal rights to Native lands and to control their Indigenous people.

In this article, the authors, an American Indian and a New Zealand Maori, use a comparative law methodology to trace and compare the legal and historical application of Discovery in both countries. The evidence uncovered helps to explain the current state of United States Indian law and the New Zealand law relating to Maoris. While the countries did not apply the elements of Discovery in the exact same manner, and at the same time periods, the similarities of their use of Discovery are striking and not the least bit surprising since the Doctrine was English law. Viewing American and New Zealand history in light of the international law Doctrine of Discovery helps to expand one's knowledge of both countries and their Indigenous peoples.

Palmer on Historical Notes on the First Codes and Institutions in French Louisiana

Historical Notes on the First Codes and Institutions in French Louisiana is a new paper by Vernon V. Palmer, Tulane Law School. It is forthcoming in ESSAYS IN HONOR OF SAÚL LITVINOFF, Moréteau et al. eds. (Claitor's Publishing, 2008). Here's the abstract:

The attachment of people to their laws and their use of it as a proxy to continue their culture cannot be more graphically illustrated than in the case of Louisiana. The various links between a general history of the times and legal history in a more narrow sense cannot be divorced or overemphasized. Indeed a purely "legal" history devoid of socio-political context is probably just as misleading as a "general" history that makes no mention of law. Though aware of a need for balance, my purpose in these Notes is in fact to stress the legal side of history before and after the Purchase. One reason why I believe this has value is that there is clear linkage between legal developments in the two periods. I would offer only one illustration. The same kind of chauvinism in 1768 which insurrected against the sudden introduction of Spanish law would resurface in 1803 as a Spanish-French chauvinism now ready to defend a mixed civil-law heritage and to resist by all political means the introduction of Common Law in Louisiana. The link between figures such as Lafrenière and Livingston, who were of course widely separated by time and circumstance, would lie in their common defense of the legal status quo against abrupt legal change and their mutual dread of alien laws. The second and more important reason for publishing these Notes is that relatively little is known or has been written about the earlier period. With but few exceptions, historians who have written about the law and institutions of the colonial period have been non-lawyers and they have sometimes given us a rather fanciful interpretation of the legal documents at their disposal. This is undoubtedly due in large measure to the difficulty of accessing the original sources in the archives of Louisiana, France and Spain, but there has also been the difficulty of understanding the background legal context into which they fit.

Wiki-loving & more in the Book Reviews

Nicholson Baker's New York Review of Books essay, The Charms of Wikipedia, is ostensibly a review of Wikipedia: The Missing Manual by John Broughton (Pogue Press/O'Reilly). But instead it is an entertaining account of his own journey-to-the-center-of-the Wiki-earth.

Eric Arnesan has a round-up of newer and older works in African American history in the Chicago Tribune, including Pullman Porters and the Rise of Protest Politics in Black America, 1925-1945 by Beth Tompkins Bates (University of North Carolina Press, 2000) and Time Longer than Rope: A Century of African American Activism, 1850-1950, Charles M. Payne and Adam Green, eds. (New York University Press, 2003).

1968 is the topic of Sway, a new novel by Zachary Lazar (Little, Brown), reviewed in the Philadelphia Inquirer by Dan DeLuca. He finds that "the great accomplishment of Sway is to take figures of '60s myth and turn them into compelling, believably human - if often abrasive - characters that live and breathe on the page."

9/11 Revisionism in Shenon, The Commission

"Now its the revisionists' turn," says Michael Dobbs in his Washington Post review of THE COMMISSION: The Uncensored History of the 9/11 Investigation by Philip Shenon (Twelve). The 2004 Report of the 9/11 commission was praised as a "tour de force" by Arthur Schlesinger Jr. and others. Shernon's new book instead focuses on its failings.

According to Dobbs, the book is "a detailed narrative of the most important government investigative body since the Warren Commission." The story's "hero, or anti-hero, of The Commission is Zelikow, a history professor at the University of Virginia, former State Department counselor and author of several books on foreign policy, including one written with Secretary of State Condoleezza Rice. Shenon recounts several conflicts of interest that might have raised questions about Zelikow's suitability to direct the 9/11 investigation."

Although the author "makes a good case that Zelikow, for all his brilliance, was often arrogant and abrasive," he is "less convincing when he argues that Zelikow used his position to try to skew the final report. As the commissioners noted in their statement defending Zelikow, the 'proper standard for judgment is the quality of the report' itself." Further, Shernon's "sourcing falls short of the standard set by the 9/11 commission. His book includes 14 pages of often vague notes, compared to 114 pages in the 9/11 report." Dobbs concludes: "Future historians will almost certainly come across evidence that the commission overlooked. But four years later, the 9/11 report stands up pretty well -- despite Shenon's dogged revisionism."

Buccafusco on Spiritualism and Will(s) in the Age of Contract

Spiritualism and Will(s) in the Age of Contract is a new paper by Christopher J. Buccafusco, University of Chicago. Here's the abstract:

Spiritualism was one of the most salient cultural phenomena of late-nineteenth-century American life. The belief of considerable numbers of respectable citizens that they could communicate with the dead via an entranced medium called into question both popular and scientific conceptions of rationality, volition, and freedom. In turn, these changing ideas about the mind challenged American law's commitment to its belief in free and reasonable legal actors. This Article, the first to consider Spiritualism's implications for American law, examines the legal reaction to the anxieties Spiritualism generated for the age of contract. Principally, it looks at the judicial response to cases of Spiritualists' wills that were challenged on the grounds of insanity and undue influence. In dealing with such cases, I argue, American judges adopted a realist, pragmatic strategy of promoting polyphonic discussion and preserving democratic decision making. Approaching the subject from the perspective of cultural legal history, I suggest that popular culture, science, and the law were mutually constitutive discourses in which nineteenth-century Americans enacted their anxieties about the mind, the will, and the family. Finally, I argue that a contextualized understanding of these nineteenth-century debates can suggest much about current legal debates about rationality, responsibility, and volition engendered by recent discoveries in behavioral economics, the psychology of emotions, and cognitive neuroscience.

New Blog: Cruz Lines

My colleague David Cruz at USC Law School has just launched his new blog, Cruz Lines. He describes it as "a legal blog offering excursions into the Constitution, equality law, sex, gender identity, and sexual orientation."

Welcome to the blogosphere!

Drafting the Future of Human Rights

"2048: DRAFTING THE FUTURE OF HUMAN RIGHTS" will be held at Boalt Law School (U.C. Berkeley) tomorrow. Speakers include Mary Robinson, Past President of Ireland and a former United Nations High Commissioner for Human Rights, and Robert Haas, Chairman Emeritus of Levi's and Karima Bennoune, Professor, Rutgers University, Board Member, Amnesty International USA.

The historical context will be addressed at an afternoon panel: "Looking Back on the Future of Human Rights: 1948, Race, and the Cold War."

Panelists:

Jonathan Simon, Associate Dean for Jurisprudence and Social Policy, UC Berkeley (moderator).

Carol Anderson, Professor of History, University of Missouri, author of "Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights."

Elizabeth Borgwardt, Professor of History, Washington University in St. Louis, author of "A New Deal for the World: America's Vision for Human Rights." (She is unable to attend, but her book is essential reading.)

Mary L. Dudziak, Judge Edward J. and Ruey L. Guirado, Professor of Law, History, and Political Science, University of Southern California, author of "Cold War Civil Rights: Race and the Image of American Democracy" and "Exporting American Dreams: Thurgood Marshall's African Journey."

The program and on-line resources on the Universal Declaration of Human Rights are here.

Stewart on "Customs in Common": The Old Emperor's Clothes

'Customs in Common': The Old Emperor's Clothes has just been posted by Iain M. Stewart, Macquarie University. It appeared in the Macquarie Law Journal (2006). Here's the abstract:

Assesses whether the concept of 'custom' continues effectively to identify a more popular alternative to formal law, as canvassed by E.P. Thompson in Customs in Common (1991). Traces the development of the idea of 'custom' or 'customary law' in the western legal tradition, from Justinian through Norman law (Laws of William, Glanvill, Bracton) and common law, then in the respectively anti-popular and pro-popular reflections of Savigny and Marx. Agrees with Thompson that popular customs can be nasty as well as nice. But concludes that, whatever sense the concept of 'custom', may once have been made in legal or law-related discourse, that sense has now disintegrated. Little remains but Owl's observation to Pooh that 'the customary procedure' is 'the Thing to Do'.

Call for Papers: Politics and the Constitution

Conference on Politics and the Constitution
San Francisco State University
September 16-17, 2008


DEADLINE July 1, 2008.



Call for Papers: Politics and the Constitution. San Francisco State University will host its fourth annual conference exploring the U.S. Constitution and its history. The conference will meet on the campus of San Francisco State University on Tuesday and Wednesday, September 16 and 17, 2008. Our theme this year looks at the Constitution and elections, politics, and the political process. Possible topics include the Electoral College and electoral controversies from1800 to 2000, the Supreme Court's role in the political process, the Supreme Court and constitutional interpretation as a campaign issue,popular constitutionalism, and national security and civil rights.

We invite proposals from graduate students and established scholars on topics dealing with political influences on the judiciary as well as judicial influences on the political process regardless of time period.

The deadline for submission of proposals, consisting of an abstract(s)and a one-page c.v. is July 1, 2008. Complete panels or individual paper proposals will be considered. Send your proposal to Robert Cherny, Department of History, San Francisco State University, San Francisco, California 94132. Alternatively, you can send your proposal as an e-mail attachment to cherny@sfsu.edu. Hat tip.

Gillers on The Transformation of American Obscenity Law from Hicklin to Ulysses II

Stephen Gillers, New York University, has posted a recent article, A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses II. It appeared in the Washington University Law Review (2007). Here's the abstract:

How is it that between 1922 and 1934, James Joyce's Ulysses, considered the greatest English language novel of the twentieth century, could not get published in the United States without risk of prosecution and jail? How did American law get its ideas about obscenity and censorship so wrong? This Article closely analyzes the facts and the reasoning,or lack of reasoning,in R. v. Hicklin, the Queen's Bench decision of 1868 whose throwaway single sentence defining obscenity was reflexively adopted by American courts and became the greatest legal impediment to artistic freedom in the United States for nearly a century. The Article traces Hicklin's influence in the United States through the first third of the twentieth century. Using archival and other sources, it then closely examines the first court test of a part of Ulysses,in New York in 1920-21, a case that might have been won, but ended in the obscenity convictions of two women who published an obscure literary magazine. Their convictions impeded publication of the book until Morris Ernst's brilliant legal strategy gave his client, Random House, confidence that it could publish Ulysses in the United States without fear of prosecution. While the district court decision in Ernst's favor is rightly applauded for freeing Ulysses, the judge's reasoning does not resemble anything we can recognize as law. It is a decision for one book only. Even Augustus Hand's opinion for the Second Circuit affirming Ernst's victory, which cousin Learned joined and which contains the seeds of modern obscenity doctrine, required some jurisprudential sleight of hand to escape unfavorable circuit and Supreme Court precedent. The story from Hicklin to Ulysses II is both riveting in itself and as legal and cultural history. But it is also a lesson about harm done when government interferes with the intellectual and personal autonomy of individuals.

Martinez archival documents posted by Yale L.J. Pocket Part

The new issue of the Yale Law Journal Pocket Part focuses on Jenny Martinez's (Stanford) recent article, Antislavery Courts and the Dawn of International Human Rights Law, which appeared in the Yale Law Journal, posting digital images of some of the archival documents Martinez relied on. Hat tip. According to the article: "between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts were the first international human rights courts." More details are here.

This is a great use of the law review on-line supplement. I hope more journals will use their on-line supplements to link to original research.

Hammer on Catholicism and Evolution from Scopes to Dover

Reconciling Faith, Reason, and Freedom: Catholicism and Evolution from Scopes to Dover has just been posted by Christoper M. Hammer, a JD and History MA candidate at the University of Virginia. Here's the abstract:

The participants in the Scopes trial presented a dramatic tension between religion and science that tended to highlight a mutual exclusivity between traditional belief in God and adherence to the theory of evolution. The reaction of the nation's Roman Catholics to the trial, underrepresented in previous scholarly accounts, tend to undermine this stark dichotomy between religion and science. This paper traces reactions to the trial published in Catholic periodicals to present their acceptance of the principles underlying each side of the trial - the defense's appeal to human reason and the prosecution's appeal to faith - and their rejection of what they considered to be each side's excesses. These same tensions - deriving from the principle of compatibility between the Catholic faith and scientific observation - were present in the Dover litigation over a school district's promotion of the alternative theory of intelligent design to explain human origins.

Call for Proposals: African Studies Association

The African Studies Association is accepting proposals for its 2008 annual meeting, to be held November 13-16, 2008 in Chicago, Illinois. The deadline is March 15. Details about how to submit a proposal are here. The theme for the meeting is “Knowledge of Africa: The Next Fifty Years.”

THEME

Over the past fifty years, the types and levels of academic knowledge produced in African Studies have advanced impressively. African knowledge has gained growing recognition in all fields, from music to the environment, and new constituencies have generated and applied their knowledge to situations on the ground. The fiftieth anniversary of the annual meetings of the African Studies Association marks an important milestone and offers an opportunity to take stock of African Studies and map out possible future directions in the field, which has been characterized by complex interplay between academic analysis and social concern, theory and policy, and knowledge within and outside the continent. Also, knowledge production practices in African Studies have varied between disciplinary and interdisciplinary modes of inquiry; some disciplines and interdisciplinary fields have made greater advances than others.

The theme for the 2008 ASA annual meeting centers on current and projected advances in African Studies as a body of knowledge. The past fifty years of African Studies involved vigorous debate and attempts to overcome Eurocentric theories and analytical models and their application in scholarly and policy discourses. In various disciplines and interdisciplinary fields scholars debated about the relevance of existing theories and methodologies, and sometimes sought to develop new ones, in explaining African phenomena. The applicability of ostensibly universal conceptual schemas was particularly fraught in the realm of policy formation. Many scholars and social activists queried the relevance, and stressed the devastating consequences, of policy prescriptions devised by international agencies and Western governments, such as structural adjustment programs, that were imposed on African countries and took little account of African realities.

As we ponder the next fifty years, based on the past half-century of debate, empirical study, and conceptualization, what are the likely trajectories of knowledge production in the various fields of study and inquiry in African Studies? What are the likely intersections between Africanist and global knowledges, knowledges produced within and outside the continent, and knowledge production and policy formation? Mapping out future directions in African Studies requires an understanding of the changing institutional architecture and ideological trends within Africa and in the major external centers of Africanist knowledge production including the United States—the profound transformations taking place and that are likely to take place in higher education institutions and research systems and in regional and global policy regimes.

This fifty-year anniversary, therefore, provides a good time to review the state of knowledge production in African Studies: the central problems that have been examined, the theories and concepts that have been applied and developed, the most useful principles and methodologies of research, and the relationships among theory, empirical evidence, and policy. Conceptualization and especially theory are central to the development of knowledge in each area of African Studies, so it is critical to interrogate the theoretical and conceptual foundations in the various areas of inquiry in the field. The guiding theories may of course differ in the various categories of disciplines: social science, humanities, arts, liberal professions, natural sciences, and interdisciplinary or transdisciplinary studies.

Out of this systematic attention to knowledge production, it is hoped that the conference will yield an assessment of what the disciplines have become and how African Studies have transformed them. It is also hoped that discussion at the annual meeting will yield a sense of the evident needs and directions of change in African Studies knowledge production.

There is more here.

Benvenisti on The Origins of the Concept of Belligerent Occupation

The Origins of the Concept of Belligerent Occupation is a new article by Eyal Benvenisti, Tel Aviv University. Benvenisti has posted only the abstract. The full text will be available later this year when it appears in the Law and History Review. Here's the abstract:

The law of occupation imposes two kinds of obligations on an army that seizes control of enemy land during war: the obligation to protect the lives and property of the invaded population and the obligation to respect the sovereign rights of the ousted government. These two principles, which reflect the private and public aspects of the law, stem from unrelated intellectual, social, and political roots. This Essay tracks the parallel yet separate evolution of these two aspects of the law until they merge in the text of the 1899 Hague Regulations. The private aspect, the principle of immunity of private property of enemy nationals, was first raised by Vattel and Rousseau in the second half of the eighteenth century, as an extension of the basic distinction between combatants and non-combatants. The public aspect reflects the crystallization of the idea of sovereignty as a collective claim for exclusive control over territory and nationals, inspired by the ideas of the French Revolution and sustained by the balance of power that emerged in Europe at the time. The Essay traces the development of the notion of belligerent occupation as a regime distinct from conquest and its transformation from an idea into a norm of general international law.

Corcos on The Use of Tocqueville's Writing in U.S. Judicial Opinions

Christine A. Corcos, Louisiana State University, has posted a new essay, A Man for All Reasons: The Use of Tocqueville's Writing in U. S. Judicial Opinions. It is forthcoming in the Louisiana Law Review (2008). Here's the abstract:

The United States has never been given to particular adoration of foreign observers of its mores, who quite often turn out to be critics rather than admirers. Nevertheless, one of its favorite visitors since his one and only appearance on the scene in 1831-1832 is the 25-year-old magistrate Alexis de Tocqueville, sent by his government to study penal reform in the new republic. Tocqueville and his good friend Gustave de Beaumont, like young adventurers before and since, took the opportunity to extend their stay, and turned their tour of prisons into a journey through the young nation that furnished the raw material for what readers ever since have considered to be the single most insightful study of the United States ever written. Since the publication of Tocqueville's study, titled De la democratie en Amerique, which appeared in English in 1835, the second volume following in 1840, all manner of students of U. S. society have pored over it, studying it, quoting and misquoting it, and claiming it as support for their varied ideas. Both conservatives and liberals have claimed Tocqueville as a founding father of their thought. But as John Lukacs points out, Tocqueville cannot be so simply categorized.

Through all of these evaluations, assessments and hagiographies, commentators sometimes lose sight of the fact that Tocqueville was, by training and choice, an attorney, and what is more, a civil law trained attorney, a magistrate, a member of the Legislative Assembly, a drafter of the Constitution of France's Second Republic and a member of Louis-Napoleon Bonaparte's Cabinet. Ultimately, as one student of his thought points out, it may not matter.

As a civilian, Tocqueville was trained in a newly formed legal regime. As an attorney practicing within a code enacted only a year before his birth, he had a vital interest in determining how such new codes could be integrated into existing social, political, and legal environments. His interest in the new republic across the ocean, which was engaged in a similar experiment, was at once philosophical and practical. Thus, what use U. S. judges have made of his words in their own opinions is certainly of interest.

Image credit.

Sunday book review round-up

"A strong ideological fixation is not a promising basis for a responsible foreign policy," is the opening line of "One Angry Man," Brian Urquart's review of a Bush Administration memoir, Surrender Is Not an Option: Defending America at the United Nations and Abroad by John Bolton (Threshold), in the New York Review of Books. Bolton, who served as U.S. ambassador to the United Nations on a recess appointment, resigning when it became clear that he would not be confirmed, seems angry at just about everything. But his time as a diplomat was not without its satisfactions. His "happiest moment at State,...was personally 'unsigning' the Rome Statute," which set up the International Criminal Court. For Urquart, however, "These and other of Bolton's achievements as undersecretary did much to undermine America's leadership and position in the world."

Truth and reconciliation commissions are explored in a fictional account by David Park, THE TRUTH COMMISSIONER (Bloomsbury), reviewed by David Horspool for the London Times. Horspool writes:

Park occupies the interiors of all [commission participants] with a sympathy that does not shy away from the squalor of what they have perpetrated and witnessed. The refusal to draw facile lessons is reinforced by the fact that the least likable character is the one with ostensibly the highest moral standing: truth commissioner Henry Stanfield. Unfaithful, venal and irresolute, he is a reminder that whatever the motives behind an institution, it is administered by flawed individuals.

He praises the novel for its "combination of the hardest of realities with a measure of poetry and of humanity."

History, story-telling, and the limits of evidence are touched on in David Waldstreicher's New York Times review of MR. AND MRS. PRINCE: How an Extraordinary Eighteenth-Century Family Moved Out of Slavery and Into Legend by Gretchen Holbrook Gerzina (researched with Anthony Gerzina) (Amistad/HarperCollins Publishers). For this book,

Gretchen Holbrook Gerzina went looking for an African-American Yankee with a royal name, locally famous for performing ballads and arguing for her rights in court. In the case of Lucy Terry Prince, the recoverable truth is limited, but it still has more drama than the sketchy legend....Years of strenuous digging in the account books and personal papers of whites who knew the Princes have enabled Gerzina to present a moving, if less than rounded, portrait of a striving family....But “Mr. and Mrs. Prince” isn’t — it can’t be — the inner life of a vernacular poet and her enterprising husband. Instead of lamenting the limits of the evidence, the author spins a parallel story out of the dig for evidence. For the most part, the search is artfully woven into the story of the Princes’ hard work.

Read more about it here.


Drew Gilpin Faust's acclaimed new book, This Republic of Suffering: Death and the American Civil War (Knopf) is reviewed in the Washington Post by Stephen Budiansky. He writes:

The American Civil War was the first "war of peoples," and as Drew Gilpin Faust vividly demonstrates, the unprecedented carnage of this first modern war overwhelmed society's traditional ways of dealing with death. The customs, religion, rhetoric, logistics -- even statistical methods -- of mid-19th century America were unequal to slaughter on such a scale. How American society attempted to come to terms with death that broke all the rules about dying, and how the nation ultimately did -- and did not -- face up to this new reality of war are Faust's haunting and powerful themes. If nothing else, this finely written book is a powerful corrective to all the romantic claptrap that still envelops a war that took as many American lives, 620,000, as all other wars from the Revolution to Korea combined.

In Budiansky's view, "Faust convincingly demonstrates that the trauma of the Civil War revolutionized the American military's approach to caring for the dead and notifying families," but "is less convincing in making a case that the war's confrontation with death produced a permanent transformation in American belief, politics, character, habits of mind and modes of expression." Read the rest here. Also reviewed is HOW THE SOUTH COULD HAVE WON THE CIVIL WAR: The Fatal Errors That Led To Confederate Defeat by Bevin Alexander (Crown).

Newberry Library Symposium on Comparative Early Modern Legal History

The Newberry Library

Center for Renaissance Studies

Symposium on Comparative Early Modern Legal History

"Criminal Justice in the British Atlantic World, 1500-1850"

Friday, February 29, 2008 ~ 9 am- 5 pm

The Symposium on Comparative Early Modern Legal History is sponsored by the University of Illinois at Urbana- Champaign and organized by Bruce Smith. The Symposium gathers yearly under the auspices of the Center for Renaissance Studies in order to explore a particular topic in the comparative legal history of the Atlantic world in the periodc.1492-1815. For a tentative list of speakers and more information on the symposium, please visit this page.

Registration

While there is no fee to attend the Newberry Library's Symposium on Comparative Early Modern Legal History, participants should register in advance. To register, please contact the Center for Renaissance Studies at 312.255.3514, or at renaissance@newberry.org. Funds may be available for graduate students and faculty of Consortium institutions to travel to the Newberry Library to attend the Symposium on Comparative Early Modern Legal History. If you have any questions,please contact the Center for Renaissance Studies.

Hat tip: H-Law. Image credit.

Richardson, The Origins of African-American Interests in International Law

The Origins of African-American Interests in International Law by Henry J. Richardson III has just been published by Carolina Academic Press.

Book description:

This book explores the birth of the African-American international tradition and, particularly, the roots of African Americans' stake in international law. Richardson considers these origins as only formally arising about 1619, the date the first Africans were landed at Jamestown in the British North American colony of Virginia. He looks back to the opening of the European slave trade out of Africa and to the 1500s and the first arrival of Africans on the North American continent. Moving through the pre-Independence period, the American Revolution, the Constitutional Convention, and the Westward Migration, the book ends around 1820.

This historical period also roughly corresponds to two other key historical phenomena greatly affecting the Atlantic Ocean basin: the rise of international law as a modern legal system (including European states and their Atlantic colonies) and the rise and flourishing of the international slave trade in African slaves to the Americas by European and New World governments and merchants. Only by placing African slavery in the British North American colonies in the context of the international slave system encompassing and linking the New World can the voices, struggles, demands, claims, and decisions of slaves and Free Blacks in North America towards freedom, relative to their evolving interests under international law, be properly understood. These interests comprise no less than the birth of an African-American international jurisprudence.

Endorsement:

This magnificent study by Professor Richardson of the relevance of international law to the struggle of African Americans against slavery and the slave trade of the course of several centuries deserves the widest possible reading. Such an outstanding jurisprudential account of anti-slavery resistance from the perspective of slavery's captives fills a crucial gap in the scholarly literature. It is a great contribution. --Richard Falk, Albert G. Milbank Professor of International Law and Practice Emeritus, Princeton University, and Visiting Professor of Global and International Studies, University of California at Santa Barbara

Richardson's important book might be read alongside works on African Americans and foreign relations, especially Brenda Gayle Plummer, Rising Wind: Black Americans and U.S. Foreign Affairs, 1935-1960 (University of North Carolina Press, 1996). See also The African American Voice in U.S. Foreign Policy Since World War II, Michael Krenn, ed. (Routledge, 1999).

Balmer on the Influence of Hobbes on Holmes

Thomas A. Balmer, Associate Justice of the Oregon Supreme Court, has just posted an article, Present Appreciation and Future Advantage: A Note on the Influence of Hobbes on Holmes. It appeared in the American Journal of Legal History (2005). Here's the abstract:

Oliver Wendell Holmes, Jr., was a major figure in American law, philosophy, and social thought generally, and his influence is still felt in those fields. This article examines the influence of Thomas Hobbes on Holmes. The article examines Holmes's reading of Hobbes's works and Holmes's references to Hobbes in judicial opinions and other writings. It then considers several parallels between the views of Hobbes and Holmes, including their view of life as a ceaseless struggle for self-preservation and power; the absolute nature of sovereign power; and the positivist view of law, in contrast to natural law. The article closes with some observations about the role of literary style in the writings of Hobbes and Holmes.

Image credits: Hobbes, Holmes.

What you missed in Tempe

The imaginative local arrangements committee for last fall's American Society for Legal History conference, chaired by Jon Rose of Arizona State, has not let the end of the meeting put an end to its labors. They've just circulated a slideshow of the meeting, complete with captions. If you missed linking up with colleagues in Tempe, you can find them here.

Davies on Correcting Search-and-Seizure History

Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Meaning of Due Process of Law, is a new article by Thomas Y. Davies, University of Tennessee. It appeared in the Mississippi Law Journal (2007). Here's the abstract:

The conventional view that search-and-seizure history is simply Fourth Amendment history is incorrect. Sir Edward Coke explicated common-law standards for warrantless arrest in detail in his discussion of the due process of law required by Magna Carta's the law of the land chapter, and the Framers were undoubtedly conversant with that treatment. Moreover, framing-era warrantless arrest standards were virtually unchanged from Coke's time.

The framing-era warrantless arrest standards were more demanding than the modern bare probable cause standard. Warrantless felony arrests required (1) a felony having actually been committed in fact and (2) the arresting person personally having probable grounds to suspect the arrestee. Warrantless nonfelony arrests were limited to on-going breach-of-peace offenses.

Because arrest standards appeared noncontroversial, the initial State Framers were content to preserve arrest standards in provisions that prohibited a person being taken or arrested except according to the law of the land. Alexander Hamilton then altered that terminology to due process of law in the 1787 New York arrest provision. The Federal Framers then included due process of law among the pretrial requisites for initiating criminal prosecutions in the Fifth Amendment (rather than among the trial rights in the Sixth). In contrast, the Fourth Amendment simply banned issuance of too-loose warrants, but did not address warrantless intrusions.

Framing-era arrest standards and the Cokean understanding of due process were lost when nineteenth-century state courts relaxed arrest standards to bare probable cause, thereby drastically expanding governmental investigatory powers. The Supreme Court then reinvented search-and-seizure under the Fourth Amendment, and created the modern reasonableness standard, during the early twentieth century. Thus, the authentic history involves lost understandings and drastic doctrinal discontinuities.