Kuo on Nation Building, Yick Wo, and Chinese Exclusion

The Duality of Federalist Nation-Building: Two Strains of Chinese Immigration Cases Revisited is an article by Ming-Sung Kuo, Max Planck Institute for Comparative Public Law and International Law. It appeared in the Albany Law Review (2003). Here's the abstract:

This Article aims to provide a systematic understanding of Wo v. Hopkins and the Chinese Exclusion Case by situating them in the context of American nation-building during the period following the end of the Civil War. Both the protagonists in these two cases are Chinese immigrants while the judicial attitudes toward them in these two cases were completely different. Thus, theses two cases have long been separately categorized in the scholarship and the jurisprudence of constitutional law. Nevertheless, this 'dichotomist position' will be called into question when the structural similarity and temporal proximity between these two cases are considered. This Article seeks to achieve a comprehensive reading of these two cases and to assess how this new perspective can contribute to our understanding of the course of American constitutional development. My argument is that as a transitional period in the wake of the turbulent Civil War and Reconstruction and at the turn to the 'American age,' the 1880s exhibited the dual ambitions of consolidating the ideal of a nation in the federalist scheme and of burnishing its image of a national sovereign in the imperial era. This duality of a federalist nation-building project is the presupposition needed for a comprehensive understanding of Yick Wo and the Chinese Exclusion Case.

Balleisen on American Business Self-Regulation

Edward J. Balleisen, Duke University, has posted Private Cops on the Fraud Beat: The Limits of American Business Self-Regulation, 1895–1932, which originally appeared in Business History Review 83 (Spring 2009): 113–160. Here is the abstract:

From the late 1890s through the 1920s, a new set of nonprofit, business-funded organizations spearheaded an American campaign against commercial duplicity. These new organizations shaped the legal terrain of fraud, built massive public-education campaigns, and created a private law-enforcement capacity to rival that of the federal government. Largely born out of a desire among business elites to fend off proposals for extensive regulatory oversight of commercial speech, the antifraud crusade grew into a social movement that was influenced by prevailing ideas about social hygiene and emerging techniques of private governance. This initiative highlighted some enduring strengths of business self-regulation, such as agility in responding to regulatory problems; it also revealed a key weakness, which was the tendency to overlook deceptive marketing when practiced by firms that were members of the business establishment.

Call for Papers: Conference on Empirical Legal Studies

Fourth Annual Conference on Empirical Legal Studies

USC Gould School of Law

November 20 & 21, 2009

Call for Papers (Submission Deadline: 15 July 2009)

The Fourth Annual Conference on Empirical Legal Studies will be held at the USC Gould School of Law in Los Angeles, California on Friday, November 20 and Saturday, November 21, 2009. The meeting is the annual conference of the Society for Empirical Legal Studies (SELS). It will feature original empirical and experimental legal scholarship by leading scholars from diverse fields.

Papers for the conference should be submitted no later than July 15, 2009. Information and instructions on how to submit a paper online are available here.

Comprehensive information about the conference -- including information about registration, paper submission, travel, and hotels -- is available here.

The conference's objectives are: (i) to encourage and develop empirical and experimental scholarship on legal issues by providing scholars with an opportunity to present and discuss their work with an interdisciplinary group of people interested in the empirical study of law; and (ii) to stimulate ongoing conversations among scholars in law, economics, political science, demographics, finance, psychology, sociology, and other disciplines. The conference's audience will include paper presenters, commentators, and other attendees, and will include many of the nation's leading empirical legal scholars. The goal is productive discourse on both particular papers and appropriate methodologies. We especially encourage submissions from junior scholars.

We welcome submissions of papers in all areas of empirical and experimental legal scholarship.* You are welcome to register for and attend the conference whether or not you submit a paper and whether or not your paper is accepted.

This year's conference is organized by USC Gould School of Law. Daniel Klerman and Mathew McCubbins chair this year's Organizing Committee, which includes Gillian Hadfield, Thomas Lyon, Dan Simon, and Matthew Spitzer. The SELS Board of Directors are Jennifer Arlen (NYU), Bernard Black (University of Texas), Shari Seidman Diamond (Northwestern), Theodore Eisenberg (Cornell), Dame Hazel Genn (University College London), Valerie Hans (Cornell), Michael Heise (Cornell), Daniel Klerman (USC), Mathew McCubbins (UC San Diego & USC), Geoffrey Miller (NYU), Jeffrey Rachlinski (Cornell), and Roberta Romano (Yale).

General inquiries concerning the 2009 conference program should be directed to the conference organizers at: cels2009@law.usc.edu

If you have other questions you may contact: Mira Dalpe or Marie CleavesUSC Gould School of Law(213) 821-1239 or (213) 740-3841mailto:740-3841cels2009@law.usc.edu

* Since it has not always been clear whether legal history is welcome at meetings on "empirical legal studies," I asked my colleague Dan Klerman, a legal historian and conference organizer, about papers by legal historians. He encourages you to submit. When doing so, pay particular attention to this instruction (on the conference webpage):

Paper Submission Policies:

This conference is for "empirical" and "experimental" studies of law and law-related issues. Studies that are not empirical or quantitative in nature, or are not about law or law-related issues are usually outside its scope.

· A loose definition of "empirical": the collection, description and analysis of "data" (usually accompanied by application of statistical methods), plus well done case studies, preferably several to allow comparison across the studies.

· Data can be usually understood to be the sufficient plural of anecdote to permit application of said statistical methods.…

· We may on occasion accept case studies or interview-based studies that engage in detailed discussion and analysis of subjects on which quantitative empirical evidence is important, yet difficult to come by. The term "case studies” does NOT INCLUDE traditional legal scholarship which examines particular judicial decisions, including scholarship which descriptively studies and compares decisions….

If in doubt, please ask: If you are not sure if a paper fits the conference scope, please feel free to ask one of the organizers before submitting the paper at cels2009@law.usc.edu.

Dan suggested that "Legal history papers which use quantitative or statistical methods are the most obviously appropriate, but, as the policies set out above suggest, some other kinds of legal history (especially of a comparative kind) might be appropriate as well."

Finkelman on Justice John McLean

John McLean: Moderate Abolitionist and Supreme Court Politician is a new essay by Paul Finkelman, Albany Law School. It appeared in the A symposium issue on neglected Justices in the Vanderbilt Law Review (2009). Here's the abstract:

His thirty-two years on the Supreme Court put him among the top dozen of all justices for length of service. At the time of his death, he was the third longest serving Justice in the history of the Court, and he is sixth in length of service among all Justices who served before the twentieth century. He wrote about 240 majority opinions and another sixty or so separate, concurring, and dissenting opinions. And he is about as obscure a justice as we can find. Few Justices have worked so hard, for such a long period of time, and had so little impact on the Court. His importance is complicated by the fact that while on the Court he was constantly running for president, and was "in play" in every election but one from 1832 to 1860. McLean's most significant contributions on the Court involved economic issues, slavery, and the rights of free blacks. He provided a counter-balance to the pro-slavery jurisprudence of the Taney Court majority while also defending the nationalist economic jurisprudence of the Marshall Court in the face of the Taney majority's anti-nationalist economic jurisprudence.

Image credit.

Colley on British Constitutionalism

Linda Colley, Princeton University, is to deliver a Centenary Lecture at the University of Bristol, entitled "Writing Constitutions into British History", on Thursday, June 18. The University of Bristol's press release is here; registration for this free lecture is through the university's calendar, here. The latter explains:

Today, Britain famously possesses no single written constitution, yet in the past it generated many important documents to do with political freedoms and the regulation of power and also shaped the written constitutions of many of its one-time colonies. In this lecture, Linda Colley explores these islands’ mixed history of constitution-making and some of the possible consequences of this for the 21st century.

Katz on "Vanishing" History Courses

In his blog for the Chronicle of Higher Education, Stanley Katz, a former president of the American Society for Legal History (among other things) weighs in on the article in the New York Times on the disappearance of "traditional" history courses that Mary commented on last Friday. Katz concludes:

I don’t think we should be concerned about the loss of traditional historical categories or courses. We are on the whole much better off for the much richer array of subject matter now offered by history departments. What is wrong is the overly technical orientation of our undergraduate courses. We should be very worried about both the hyperspecialization of both historians and their courses, which are increasingly based on narrow research interests and decreasingly based upon either student interest or need. It would be a good time for history departments to reconsider how their courses contribute to the liberal education of undergraduates rather than to the research needs of their faculty. And of course if we rethought our courses, we might select faculty in a very different manner.

More.

Image credit: Philosophy Reigning over the Seven Liberal Arts

Sheyn on Bowers v. Hardwick as a Mobilizing Force

The Shot Heard Around the LGBT World: Bowers v. Hardwick as a Mobilizing Force for the National Gay and Lesbian Task Force is a new paper by Elizabeth R. Sheyn, J.D. University of Pennsylvania 2008, and currently a federal judicial law clerk. The article will appears in the Touro Law Center Journal of Race, Gender, and Ethnicity (May 2009). Here's the abstract:

The United States Supreme Court decision in Bowers v. Hardwick, which held that laws criminalizing sodomy did not violate the constitutional right to privacy, shocked gays and lesbians. It was a sign that the Court and, by extension, society, did not accept homosexuals. Although it was a clear setback for the gay rights movement, the Bowers decision galvanized gay activists and lesbian, gay, bisexual and transgender (“LGBT”) organizations. In particular, in response to Bowers, the National Gay and Lesbian Task Force established the Privacy Project to repeal sodomy laws on a state-by-state basis. From 1986-1991, the Privacy Project did not successfully persuade any state legislatures to repeal existing sodomy laws. However, it was able to establish and expand the reach of statewide LGBT organizations, bring together gay and lesbian individuals, educate the public about gay rights issues, and put a “human face” on the gay rights movement. This Article argues that these achievements, when combined with the work of litigators, historians, and other LGBT organizations, and with the passage of time, ultimately set the stage not only for the subsequent repeal of a majority of state sodomy laws, but also for the total invalidation of Bowers by the Supreme Court’s decision in Lawrence v. Texas.

Kastenberg on "the Blackstone of Military Law"

Recently published is Joshua E. Kastenberg's The Blackstone of Military Law: Colonel William Winthrop (Scarecrow Press, 2009). The table of contents for this biography for this author of the leading American treatise of military law is here. The publisher explains:

Colonel William Winthrop singularly was the most influential person in developing the military law of the United States. A half century ago, the Supreme Court tendered to Winthrop the title, "The Blackstone of Military Law," meaning simply that his influence outshone all others. He has been cited over 20 times by the highest court and well over a 1,000 times by other federal courts, state courts, and legal texts. In this, he surpasses most other legal scholars, save Joseph Story, John Marshall, or Felix Frankfurter. But while biographies of each of these Supreme Court Justices have been written, there has been none to date on Winthrop.

The Blackstone of Military Law: Colonel William Winthrop is the first biography on this important figure in military and legal history. Written in both a chronological and thematic format, author Joshua E. Kastenberg begins with Winthrop's legal training, his involvement in abolitionism, his military experiences during the Civil War, and his long tenure as a judge advocate. This biography provides the necessary context to fully appreciate Winthrop's work, its meaning, and its continued relevance.

Reviewed: Lears, Rebirth of a Nation

Rebirth of a Nation: The Making of Modern America, 1877-1920 is Jackson Lears' "most ambitious work yet," writes Tim Rutten in the Los Angeles Times. Hat tip. Rutten continues:

In "No Place of Grace: Antimodernism and the Transformation of American Culture, 1880-1920," Lears skillfully delineated the role of aesthetic radicals -- Englishmen John Ruskin and William Morris and their American disciples -- in staking out humane alternatives to consumerism that gradually shifted from social justice to ideals of therapeutic personal fulfillment. In "Fables of Abundance: A Cultural History of Advertising in America," he explored the exploitation of that hunger for "authenticity" that resulted from the earlier process.

"Rebirth of a Nation"...builds brilliantly on those earlier projects. The Rutgers University professor makes a convincing case that the transformations America underwent in the half century's journey from out of the "long shadow of Appomattox" and into the terrible flare-lit night of the European trenches remains fundamental to our understanding of ourselves -- and to the conduct of our affairs.

In this work,

An earlier 19th century notion of "manliness" gave way to an amoral militarism, which fused with a muscular new Protestantism and evolving theories of racial supremacy; these, in turn, conjoined with a new economic order in which capital made way for capitalism. All were able to meld because each began in the post-Civil War hunger for "regeneration." The result was an assertive, aggressive, frequently intolerant national identity.

Continue reading here.

Magill on the Lost History of 'Standing for the Public'

M. Elizabeth Magill, University of Virginia School of Law, has a new article, Standing for the Public: A Lost History. It is forthcoming in the Virginia Law Review. Here's the abstract:

This article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and explains how and when it died. It then speculates about why the federal courts retreated from the doctrine when they did. The now-anachronistic view of the permissible scope of standing, which is called here 'standing for the public,' permitted Congress to authorize parties who had no cognizable legal rights to challenge government action, in order to, as the Supreme Court itself said 'represent the public' and bring the government’s legal errors before the courts. Ironically, the federal courts retreated from this approach to standing law in the 1960s and 1970s, the very period that is best known for its doctrinal innovations that liberalized standing law. The article tells the (complicated) tale of how the courts erased the standing for the public principle from the case law, places those actions action in context by looking at contemporaneous developments in the legal profession and Congress, and speculates about why this approach to standing law died when it did.

Sally Greene/State v. Mann roundup

Many thanks to Sally Greene for great guest posts on her archival research on State v. Mann. In case you missed anything, Sally's posts are here:

New evidence on an old case, State v. Mann, and why it matters.

State v. Mann: the archives deliver.

Who was John Mann, and who was his lawyer?

Did Ruffin fudge the facts?

Sally's new article, State v. Mann Exhumed, can be found on SSRN.

The Oxford International Encyclopedia of Legal History

For further evidence that we are living in a Golden Age of reference works on legal history, here is the publisher's description of the recently published Oxford International Encyclopedia of Legal History, whose general editor is Stanley N. Katz. It is available as a six-volume set and on-line as part of Oxford's Digital Reference Shelf.

The Oxford International Encyclopedia of Legal History is a comprehensive, international, interdisciplinary reference work that includes approximately 1,000 articles on all aspects of legal history throughout the world from ancient to modern times. Articles deal with private law, public law, and constitutional/higher law throughout the world; each article is signed by one of the set's many noteworthy contributors, which include major scholars and experts.

For years, scholars have been investigating the remote origins of their respective national and religious laws. Only recently has there been a developing interest in and study of the history of law in modern times. The Encyclopedia will bring together the study of ancient law with the study of modern law - examining statutes and administrative rulings as well as judicial decisions, legislatures, agencies, and courts.

The Encyclopedia covers ancient, medieval, early modern, and modern law in eight legal traditions and geographical/cultural areas: Ancient Greek Law, Ancient Roman Law, Chinese Law, English Common Law, Islamic Law, Medieval Roman Law, United States Law, and law in other regions (Africa, Latin America, and South Asia among them). It also addresses major categories of law within these traditions, including private law (contract, tort, civil procedure), varieties of public law (criminal law, administrative law, statutory law), and higher law/constitutional law. It is the first encyclopedia of law to provide historical and contemporary comparisons of world legal systems.

Another slow news day at the NY Times

My New York Times arrived late on Thursday, and hence I was spared the opportunity of a quick response to the Times latest take on the history profession: Great Caesar’s Ghost! Are Traditional History Courses Vanishing? Claire Potter and her great commenters take up the reporter Patricia Cohen's odd choice of presenting women's and gender history as the villain that swallowed up the field of diplomatic history...without apparently speaking to women historians, whether they be female diplomatic historians, historians of women's history, or in other fields. Brian Ogilvie (scroll down) makes the point that the story simply isn't news.

What strikes me is that the "upstart" fields Cohen mentions have been around for a generation now. Why this article now?...It's certainly not news. More newsworthy, perhaps, would be the growth of world or global history in the past decade--much of which involves economic, diplomatic, and political history, the fields that are supposedly disappearing....

This is actually the second history non-news story covered by Cohen of late. The same reporter brought us breaking news about an article submission to the American Historical Review. Though the piece had not yet made it to the desk of the AHR's editor, its very submission was the occasion for a front page article. When the article was rejected, that warranted more coverage. Little did I know that I should be sending out press releases with my article submissions. But then most historians get little press notice, even for groundbreaking research.

There is much actual news to cover related to history and historians. A starting point might be the way a committed cadre of graduate students and recent Ph.D.s continue to cast their lot with the academy at a time when larger enrollments on some campuses mean that students need them more than ever, but university budget cuts and hiring freezes make their futures more uncertain. Why a backward-looking article about the way the pie should be divided, when the more pressing news story is the impact of the economic crisis on the next generation of historians, regardless of field?

Dean Minow!

Not legal history news, per se, but news about a friend of legal history: Martha Minow has been named Dean of Harvard Law School. From the announcement:

A member of the Law School faculty since 1981, Minow is a distinguished legal scholar with interests that range from international human rights to equality and inequality, from religion and pluralism to managing mass tort litigation, from family law and education law to the privatization of military, schooling, and other governmental activities. She is also a widely admired teacher who chaired the Law School’s curricular reform efforts of recent years and was recognized with the School’s Sacks-Freund Award for Teaching Excellence in 2005.

“Martha Minow has been an intellectual leader, a devoted teacher and mentor, a collaborative colleague, and an exemplary institutional citizen across her nearly three decades of service on the Harvard Law School faculty,” said Faust in announcing the appointment. “She’s a scholar of remarkable intelligence, imagination, and scope, with a passion for legal education and a deep sense of how the law can serve essential public purposes. She has played an important and influential role in the institutional life of the Law School and the University over the years, and I am delighted that she has agreed to serve as dean during a critical time in the long and storied history of the School.”

Minow's many publications include Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (1998), and Making All the Difference: Inclusion, Exclusion, and American Law (1990). Her newest book, with Jody Freeman, is Government by Contract: Outsourcing and American Democracy (2009). And in a great service to the rest of the academy, she co-edited with Michael Ryan and Austin Sarat, a volume of key works by the deeply missed legal historian Robert Cover, Narrative, Violence, and the Law: The Essays of Robert Cover (1995).

Congratulations!

Green on An Intellectual History of Judicial Activism

An Intellectual History of Judicial Activism is a new article by Craig Green, Temple University, James E. Beasley School of Law. It is forthcoming in the Emory Law Journal. Green suggests that the term "judicial activism" comes from Arthur Schlesinger, who "minted 'judicial activism' in a fourteen-page Fortune [magazine] article" in 1947. The article came in the wake of a broader critique of the courts before and after the 1937 "switch-in-time," however. On the broader history of judicial review and its critics, Barry Friedman's work is essential. On critiques of courts in the first three decades of the century, Maxwell Bloomfield's Peaceful Revolution is quite helpful.

Here's Green's abstract:

Over the past six decades, the term "judicial activism" has become an immensely popular tool for criticizing judges' behavior. Despite the term's prominence, however, its meaning is obscure, and its origins have been forgotten. This article seeks to correct such deficiencies through a detailed conceptual and historical analysis of judicial activism.

First, the article analyzes legal rhetoric, describing the post-war origins of the phrase "judicial activism," its eighteenth- and nineteenth-century prehistory, and its rise to prominence in the late twentieth-century. Second, the article rejects as incoherent modern definitions of judicial activism, and instead describes a functional "concept" of activism based on unenforced norms of judicial propriety. Because judges make many decisions without supervision by other public officials, debates over judicial role are crucial to our legal system's operation. These debates - regardless of whether they use the word "activism" - illustrate why the concept of judicial activism remains inescapably important. Third, the article offers a two-part, common-law method of determining whether particular decisions or judges are activist. This method contrasts with other ways of evaluating activism such as textualism, originalism, and jurisprudential theory. If widely adopted, the proposed approach to judicial activism might yield clearer perceptions of judicial behavior and might reduce destructive schisms between expert and non-expert discussions of judicial role.

The Yale Biographical Dictionary of American Law

It's out. The Yale Dictionary of Legal Biography, edited by Roger K. Newman, was recently published by the Yale University Press. Here's the publisher's description:

This book is the first to gather in a single volume concise biographies of the most eminent men and women in the history of American law. Encompassing a wide range of individuals who have devised, replenished, expounded, and explained law, The Yale Biographical Dictionary of American Law presents succinct and lively entries devoted to more than 700 subjects selected for their significant and lasting influence on American law.

Casting a wide net, editor Roger K. Newman includes individuals from around the country, from colonial times to the present, encompassing the spectrum of ideologies from left-wing to right, and including a diversity of racial, ethnic, and religious groups. Entries are devoted to the living and dead, the famous and infamous, many who upheld the law and some who broke it. Supreme Court justices, private practice lawyers, presidents, professors, journalists, philosophers, novelists, prosecutors, and others—the individuals in the volume are as diverse as the nation itself.

Entries written by close to 600 expert contributors outline basic biographical facts on their subjects, offer well-chosen anecdotes and incidents to reveal accomplishments, and include brief bibliographies. Readers will turn to this dictionary as an authoritative and useful resource, but they will also discover a volume that delights and entertains.

Listed in The Yale Biographical Dictionary of American Law: John Ashcroft, Robert H. Bork, Bill Clinton, Ruth Bader Ginsburg, Patrick Henry, J. Edgar Hoover, James Madison, Thurgood Marshall, Sandra Day O’Connor, Janet Reno, Franklin D. Roosevelt, Julius and Ethel Rosenberg, John T. Scopes, O. J. Simpson, Alexis de Tocqueville, Scott Turow, and more than 700 others.

Fwiw, one of the "more than 700 others" is the great Washington Lawyer Lloyd Cutler, the subject of my contribution to the volume.

Update: Roger Newman has sent me the final list of authors and topics, which includes many inspired pairings. As one might expect, biographers are here in abundance, including Morton Keller on James M. Beck, William Lasser on Benjamin V. Cohen, Dalia Tsuk Mitchell on Felix Cohen, Ken Gormley on Archibald Cox, Brooks Simpson on U.S. Grant, Mark Tushnet on Thurgood Marshall, John Ferren on Wiley Rutledge, and Dorothy Brown on Mabel Walker Willebrandt. Many matches have interesting jurisprudential, historiographic, or personal dimensions: Gaddis Smith on Dean Acheson, Stephen Presser on Raoul Berger, Harold Hongjuh Koh on Harry A. Blackmun, Steven Calabresi on Robert H. Bork, Clinton Bamberger on Edgar and Jean Cahn, Philip Bobbitt on Guido Calabresi, Bruce Kuklick on John Dewey, Dennis Hutchinson on Phillip Kurland, Linda Greenhouse on Anthony Lewis, Zipporah Wiseman on Soia Mentchikoff, Ruth Bader Ginsburg on Burnita Shelton Matthews, Louis Pollak on Walter Pollak, Mark Graber on Roger Taney, Randy Barnett on Lysander Spooner, James Henretta on Martin Van Buren, and Patricia Wald on J. Skelly Wright.

Lawrence Friedman's "Dead Hands"

Just out from Stanford University Press is Lawrence M. Friedman's Dead Hands: A Social History of Wills, Trusts, and Inheritance Law. It figures in a biographical sketch of Professor Friedman in a recent issue of the Stanford Lawyer.

The publisher's description of Dead Hands follows:

The law of succession rests on a single brute fact: you can't take it with you. The stock of wealth that turns over as people die is staggeringly large. In the United States alone, some $41 trillion will pass from the dead to the living in the first half of the 21st century. But the social impact of inheritance is more than a matter of money; it is also a matter of what money buys and brings about.

Law and custom allow people many ways to pass on their property. As Friedman's enlightening social history reveals, a decline in formal rules, the ascendancy of will substitutes over classic wills, social changes like the rise of the family of affection, changing ideas of acceptable heirs, and the potential disappearance of the estate tax all play a large role in the balance of wealth. Dead Hands uncovers the tremendous social and legal importance of this rite of passage, and how it reflects changing values and priorities in American families and society.

"Dead Hands is important, and important to a surprisingly wide audience. It should be read by literally everyone interested in the policies that take effect after a person dies. From how estates are divided to the little understood death tax, Friedman explains this singular branch of the law clearly, and brings it to life by placing it firmly within its social context."
—Gregory S. Alexander, Cornell University

"Friedman gracefully shows why the law of succession matters. Instead of focusing on just one approach, Dead Hands incorporates law, sociology, and history to provide a wide-ranging and accessible guide for the curious reader."
—Richard J. Ross, University of Illinois, Urbana-Champaign

Martin on the Origin of the First-to-Invent Rule in Patent Law

The End of the First-to-Invent Rule: A Concise History of its Origin, is a new article by Michael F. Martin, Drinker Biddle & Reath LLP. It appears in IDEA: The Intellectual Property Law Review (2009). Here's the abstract:

Over the past decade, several proposals to harmonize U.S. patent law with the rest of the world’s patent laws have been successful. The resulting amendments have changed many substantive rules of patent law in the United States, including novelty and loss of rights provisions, confidentiality of pending applications and term length. There is, nonetheless, one rule of patent law in the United States that has repeatedly withstood proposals for amendment, beginning at least in the 1960s and continuing through 2005: the first-to-invent rule of priority. On what seems to be the eve of its demise, this article maps out the extraordinary history of this singular American institution.

Kessler-Harris, In Pursuit of Equity

An earlier review, recently posted on History News Network: Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Pursuit of Economic Citizenship in 20th-Century America, was reviewed by Jennifer Mittelstadt, Dept. of History, BrooklynCollege, CUNY. The review originally appeared on H-Labor. Encountering Kessler-Harris, Out to Work, was for me one of the joys of graduate school. An economic downturn gives her body of work new relevance. In Pursuit of Equity won the Bancroft Prize in 2002.

Alice Kessler-Harris has spent her career documenting the impact of Americans' beliefs about gender on American institutions. In Out to Work: A History of Wage-Earning Women in the United States (1982), she revealed how women workers' occupations, benefits, and union membership were shaped by deeply ingrained beliefs about proper gender roles among employers, government, and unions. In her 1995 co-edited volume, Protecting Women: Labor Legislation in Europe, the United States and Australia, 1880-1920, Kessler-Harris broadened her scope, examining how protective labor law for women reflected broader gendered societal debates about the family, citizenship, and social welfare. In her latest work, In Pursuit of Equity: Women, Men and the Quest for Economic Citizenship in 20th Century America, Kessler-Harris expands upon her studies of labor, gender, and citizenship to present a masterful narrative and analysis of the intersections between gender and the welfare state in modern America. The book integrates a remarkably wide range of historical and theoretical scholarship, spanning welfare state theory and history, labor history, gender theory and history, and studies of citizenship.

Continue reading here.

Macias on Verplanck

Steven J. Macias, California Western School of Law, has posted The Role of Morality in Early Republican Legal Science: The Case of Gulian C. Verplanck. Here is the abstract:

This is the story of one of antebellum New York's most profound legal minds. In fact, a good case can be made that Gulian C. Verplanck rivaled Chancellor James Kent in his legal acumen. Verplanck is less familiar than Kent, however, because his career was so diverse and varied, and his contributions to the law did not always occur in the courtroom. This article is an attempt to restore a worthy member to American legal history and, at the same time, argue for an appreciation of Verplanck's larger importance among a unique group of early-American legal intellectuals who viewed the law as so much more than the pleadings of lawyers and the opinions of judges. Verplanck saw the law as interconnected with all fields of inquiry, especially moral philosophy, literature, and natural science. He vehemently argued that the search for legal knowledge was no different than the search for moral knowledge or the search for scientific knowledge. Thus Verplanck thought all lawyers should be liberally educated and that law should not be treated as a vocation. His theories led him to reject the common law doctrine of caveat emptor, to support an extension of copyright terms, and to make the case that the New York judiciary was in serious need of reform, a conclusion the legal community as a whole came to share within a decade. His proposals, however, were based, not upon precedent or established legal doctrine, but upon the science of political economy, a psychological theory of human motivation, and good old public utility. Verplanck's legal contemporaries were surprisingly supportive of his later endeavors despite his overt contempt for precedent and tradition. It seems modern legal professionals could learn something from Verplanck's desire to place the law in such a broad context even without agreeing with his philosophical foundations or policy conclusions.

Image credit.

Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South

Laura F. Edwards, Duke University, has published a beautiful new book, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (University of North Carolina Press, 2009). In this excerpt, Edwards describes her subject as "the societal equivalent of a silent summer rain shower: changes that eased themselves into the nation's history with so little notification that, once they had been established, it appeared as if things had always been that way." Just published in cloth this spring, the paperback will be out by September 2009 -- in time for course adoptions.

Here's the book description:

In the half-century following the Revolutionary War, the logic of inequality underwent a profound transformation within the southern legal system. Drawing on extensive archival research in North and South Carolina, Laura F. Edwards illuminates those changes by revealing the importance of localized legal practice.

Edwards shows that following the Revolution, the intensely local legal system favored maintaining the "peace," a concept intended to protect the social order and its patriarchal hierarchies. Ordinary people, rather than legal professionals and political leaders, were central to its workings. Those without rights--even slaves--had influence within the system because of their positions of subordination, not in spite of them. By the 1830s, however, state leaders had secured support for a more centralized system that excluded people who were not specifically granted individual rights, including women, African Americans, and the poor. Edwards concludes that the emphasis on rights affirmed and restructured existing patriarchal inequalities, giving them new life within state law with implications that affected all Americans.

Placing slaves, free blacks, and white women at the center of the story, The People and Their Peace recasts traditional narratives of legal and political change and sheds light on key issues in U.S. history, including the persistence of inequality--particularly slavery--in the face of expanding democracy.

And the blurbs:

"This extraordinary book, powerfully conceived and beautifully written, casts a brilliant light on the mysterious processes by which local discretionary justice in the early American republic was gradually overlaid--though never entirely supplanted--by a central, formal state law of rules and rights. From research in thousands of archives, Laura Edwards has brought to life the hierarchical yet communal world of local law in the Carolinas, where rich and poor, husbands and wives, masters and even some slaves brought their claims before courts committed to repair breaches of public order. This book is a pioneering contribution to legal history. It is also a deep and subtle commentary on the rule of law. Subordinate peoples may sometimes fare better in informal regimes that allow their participation than in formal legal systems of individual rights, from which, if they have no rights, they may be shut out entirely."--Robert W. Gordon, Chancellor Kent Professor of Law
and Legal History, Yale Law School

"The People and Their Peace is a landmark book. Edwards recovers a whole world of ground-level activity, thinking, and assumptions about law, and then uses that yet unmapped legal world to rethink the legal history we do know--the world of 'the law' controlled by legislatures, jurists, and high courts. This profoundly significant analysis is grounded in a wealth of evidence and argued persuasively, often elegantly."--Dylan Penningroth, author of The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South

Maori Legal Archive

The New Zealand Legal Text Centre had recently launched an on-line archive of documents relating to the legal history of the Maori, the indigenous people of the islands. Here is the announcement:

The New Zealand Electronic Text Centre is proud to announce the launch of the Legal Maori Archive, a collection of more than 14,000 pages of around 250 19th century documents that illustrate the bi-lingual nature of New Zealand's legal history. The Legal Maori Archive is freely available to the public and can be accessed via the NZETC website.

Among the many documents featured in this collection are the following:

The Proceedings of the Kotahitanga Parliaments

Henry Hanson Turton's Maori Deeds of Land Purchases in the North Island of New Zealand

Maori translations of Acts and Bills circulated among Maori communities by the Crown

The Archive has been created in conjunction with Mamari Stephens from the Victoria University of Wellington's School of Law as part of a project to establish a corpus of legal Maori documents, which will allow the analysis of the language and eventually a dictionary of legal Maori terms and concepts. It is the first time the documents have been brought together in one place and is the largest collection of separate documents that the New Zealand Electronic Text Centre has digitised. The Legal Maori Project seeks to resource speakers of te reo Maori who may not currently have access to a shared vocabulary to describe Western legal concepts. This Project will collate, develop and make available the terminology from Legal Maori texts, including those from the Legal Maori Archive, to all speakers and learners of te reo Maori and all researchers

Hat tip (and comment).

New blog features

On the sidebar are a couple of upgrades. "Recommended Reading" shows the most recent post title from a few select law and history blogs. Other law and history blogs remain in a shortened blog roll further down. The most recent post title from university press blogs appears in a revised section, "University Press Blogs and Websites." This brings highlights of content from these blogs right to the Legal History Blog, helping you decide whether to click over for more. Hope you enjoy this.

Gross and Brundage share Hurst Prize

Ariela Gross, USC Law School, and James A. Brundage, University of Kansas are co-winners of the James Willard Hurst, Jr. Prize from the Law and Society Association. Gross was honored for What Blood Won’t Tell: A History of Race on Trial in America, and Brundage for The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts. The Hurst Prize is given annually for the best work in sociolegal history published in the previous year. The Association seeks studies in legal history that explore the relationship between law and society or illuminate the use, function, and cultural meaning of law and society. Congratulations!

Greene on State v. Mann: Did Ruffin Fudge the Facts?

This is the fourth and final entry in a series of invited guest posts by Sally Greene on newly discovered archival evidence in State v. Mann (1829). See also post 1, post 2, and post 3.

One curiosity about State v. Mann is the timeline of Lydia’s hiring and the way Judge Ruffin handled it. It’s possible he massaged the facts just enough to make a potentially troubling gap disappear. With his keen eye for detail, Ruffin could easily have latched onto this gap and avoided the broad holding that he claimed he had no choice but to issue.

According to the Chowan County trial records, the shooting occurred on March 1, 1829. These records also state that Lydia had been hired by John Mann for the year 1828: “It was proved upon trial, that the negro belonged to Elizabeth Jones, but had been hired to the Defendant for the year 1828 and was in his possession at the time the battery took place.” The case report in the Supreme Court file says the same. There’s no assertion that the contract was formally renewed for 1829.

By custom, hirings followed the calendar year. Harriet Jacobs tells us this, as does another Chowan County slave, Allen Parker. The accounting records kept by Josiah Small, Elizabeth Jones’ guardian, demonstrate that Lydia was indeed hired out January to January. Jacobs tells us that informal renewals (bypassing another trip “to the hiring-ground”) did occur; but if that had been the case, the recital of the facts could have been clearer.

No issue was raised at trial regarding whether a valid contract of hire was in force. The jury was told that Lydia had been hired for 1828 and was “in [Mann’s] possession” on the date of the assault. The jury instruction does not seem to depend on a finding that the contract had been renewed. The judge “charged the jury that that if they believed the punishment inflicted by the defendant was cruel unreasonable and disproportionate to the offence committed by the slave, that in Law the defendant who had only a special property in the slave was guilty.” It’s not clear whether the court cared about the distinction between Mann’s “hire” of Lydia in 1828 and his continued “possession” of her: the jury was asked to assume simply that Mann had only a qualified, “special property” in her and on that basis found him guilty.

Where this issue becomes really interesting is in Ruffin’s drafts.

Two drafts that preceded the final, published draft are included in Vol. 4 of Ruffin’s collected papers. From the first draft: “The slave had been hired by the defendant for the year 1828 from E. Jones; and the battery complained of was committed during that year.” By the second draft, Ruffin apparently had realized his mistake, for this draft is less specific: “Here the slave had been hired by the defendant and was in his possession; and the battery was committed during the period of hiring” (emphasis added; remember that this is precisely what the trial record does not say). This sentence is unchanged in the final draft.

Also in the second and final drafts is a sweeping statement not found in the first: “Our laws uniformly treat the master, overseer or other person having the possession and command of the slave, as entitled to the same authority.”

If Ruffin had thought it mattered legally whether the contract had been renewed or not, such a question sounds like a mixed question of law and fact that could have formed a basis for returning the case to the trial court. Instead, he appears to have gone in the opposite direction—embracing the ambiguity as a means of widening the scope of persons who could stand in the shoes of the master. State v. Mann in its final form would isolate a slave’s master along with anyone “having the possession and command of the slave” from prosecution for assault and battery.

Images: 1. From the trial court record of State v. Mann, as found in the Supreme Court file. North Carolina Office of Archives and History, Raleigh. 2. Courtroom where Mann was tried, Chowan County Courthouse. Photo by Sally Greene.

Carruthers, Guinnane, and Lee on the Passage of the Uniform Small Loan Law, 1907-1930

Bringing 'Honest Capital' to Poor Borrowers: The Passage of the Uniform Small Loan Law, 1907-1930 is a new paper by Bruce Carruthers, Northwestern University, Timothy W. Guinnane, Yale University Department of Economics, and Yoonseok Lee, University of Michigan at Ann Arbor, Department of Economics. Here's the astract: 

The Uniform Small Loan Law (USLL) was the Russell Sage Foundation’s primary device for fighting what it viewed as the scourge of high-rate lending to poor people in the first half of the twentieth century. The USLL created a new class of lenders who could make small loans at interest rates exceeding those allowed for banks under the normal usury laws. About two-thirds of the states had passed the USLL by 1930. This paper describes the USLL and then uses econometric models to investigate the state characteristics that influenced the law’s passage. We find that urbanization and state-level economic characteristics played significant roles. So did measures of the state’s banking system. We find no evidence that party-political affiliations had any effect, which is consistent with the USLL’s “progressive” character. Finally, we find little evidence that the passage of the USLL in one state made passage more likely in neighboring or similar states. If anything, the cross-state influences were negative. Our findings suggest that the Russell Sage Foundation only imperfectly understood the political economy of the USLL, and that a different overall approach might have produced a result closer to their aims.

Pue on Cowboy Jurists & the Making of Legal Professionalism

Cowboy Jurists & the Making of Legal Professionalism is a paper by Wesley Pue, University of British Columbia Faculty of Law. A different version of the paper appeared in W. Wesley Pue and David Sugarman, eds., Lawyers and Vampires: Cultural Histories of Legal Professions (2003). Here's the abstract:

This paper identifies the origins of modern Canadian legal professionalism in the prairie west during the early twentieth century, arguing for the importance of human agency and emphasizing contingency where others assert trans-historical processes. Lawyers combined agendas which were explicitly moral and reforming with a profound restructuring of their profession. Their efforts to reform the curriculum of formal legal education was part of a cultural project, but so too was their desire to attain self-regulation, monopoly, professional independence, and plenary disciplinary powers.

The substantive findings documented here direct our attention to questions of cultural agency and structural revolution that are too easily overlooked. They suggest connections between market control, political lawyering, culture, liberalism and professionalism that have yet to be adequately explored.

This paper might be read along side Eli Wald's new article, The Other Legal Profession and the Orthodox View of the Bar: The Rise of Colorado's Elite Law Firms, which revisits the rise of American law firms from the perspective of the western United States.

Weekend history news

As summer sets in, there is less history in the Sunday book reviews. You can find a round-up of weekend history news and reviews, thanks to Ralph Luker, here and here.

How to Get Your Paper Featured on the Legal History Blog

We like getting tips about new scholarship to feature on the Legal History Blog. If you would like us to consider your work, here's how to bring it to our attention:

The SSRN Legal History Journal.

The easiest way to bring your paper to our attention is to simply post it on the Social Science Research Network (SSRN), and ask SSRN to list your paper in its Legal History Journal. We check the website for this journal regularly, and we will see your paper there. There's no need for you to email us about it. This also puts it on the Legal History Listserv, so that your abstract will be emailed to subscribers.

How to put your paper on SSRN.

If you are a law professor, someone at your law school probably handles SSRN posting. Please ask them to help you. If you are not a permanent member of a faculty with access to SSRN, you might be able to post your paper through an educational institution you are associated with. Increasingly, law and graduate students are posting through their school's membership. If you are an adjunct instructor at a law school, you should inquire about whether you can post through the school. Alternatively, you can join SSRN as an individual. Membership is free. Alternatively, you can create a BE Press Selected Works site to feature your scholarship and post your paper there. This service is free and easy to use. BE Press allows you to customize your page, which you can't do on SSRN. (As an example, my BE Press page is here.)

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Readers sometimes send us unpublished manuscripts to post on the blog, but we're not able to post them. The software doesn't work that way. Your paper needs to be posted on the web elsewhere, and then we can link to it. If you have an article published in a journal, we can we can link to the journal, whether or not it is open-access.

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If your paper is on SSRN or BE Press, you have already written an abstract. If your article is published and it has no abstract, please write one and email it to us. We prefer not to post titles only, and we don't have time to write an abstract or article summary for you. Tips on writing an abstract are here.

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We don't post everything.

While we take a look at all the papers posted on the SSRN Legal History page, and abstracts sent to us by readers, we don't post absolutely everything. We post about papers and articles that we think legal historians should know about, and we define legal history broadly. We post about papers with arguments and methodologies that we disagree with. We sometimes post about papers that are principally legal advocacy projects if they incorporate significant historical sources or analysis. Otherwise, we don't post about legal advocacy projects. (E.g. we would not post about a paper about contemporary legal standards that makes an argument about the way precedent should be interpreted. The discussion of precedent doesn't make it a legal history project). We sometimes don't post about a paper because of obvious methodological flaws or other clear weaknesses, placing it outside the scope of works of interest to legal historians. We sometimes overlook a paper simply because we are too busy and can't cover everything. (Sorry about that!)

Greene on State v. Mann: Who was John Mann, and who was his lawyer?

This is the third in a series of invited guest posts by Sally Greene on newly found archival evidence in the slavery case State v. Mann. Post one is here, and post two is here.

The trails left by Thomas Jones and Josiah Small took me into the ranks of the small farmers of Chowan County, men who, according to Guion Johnson, “sought the county offices and delighted in the title of ’squire which the position of justice of the peace carried with it.” This was the class to whom the community looked for leadership.

John Mann’s story was a different matter. By 1829 he was an old widowed sea captain. His house, a gift from a fellow mariner, had been forfeited as a result of a couple of lawsuits (one brought by the planter Josiah Collins). Through elaborate stratagems—quite possibly fraudulent conveyances—his benefactor and others had bought it back for his benefit. Armed with these facts, I decided to check out a file called “insolvent debtors.”

John Mann’s 1812 bankruptcy file is the largest in the Chowan County records! The insolvent debtor statute did not discharge any debt; it simply forestalled collection until the debtor had assets again. It doesn’t appear that Mann ever crawled out from under his mountain of debt—and that may well explain why the case against him was brought in criminal rather than civil court.

Who was his attorney? The trial report says Mann’s attorney asked for a new trial. More interestingly, the new trial was sought on the very ground on which Ruffin would reverse the conviction: “Counsel for the defendant moved for a new trial, upon the ground, that it was not indictable for the defendant to punish the negro however cruel that punishment might be, he having hired the negro for the year 1828 and was her master for the time being.” Who was he?

I have a theory—thin, but tantalizing, because it would tie the story of Lydia to that of Harriet Jacobs in a way that dramatizes the contradictions (to put it mildly) inherent in a culture in which some human beings were both “property” and “persons.”

Certain circumstantial evidence points to Samuel Tredwell Sawyer, son of a wealthy old family, descended from Samuel Johnston, a Revolutionary patriot and member of the first U.S. Supreme Court. By the fall of 1829, Sawyer was secretly involved with Harriet Jacobs; during that year she bore the first of their two children. He was an Edenton attorney with a private practice that had been struggling, at least in the past. In 1822 he had asked his wealthy cousin, James C. Johnston, for a “loan” of $100, saying legal work was scarce, admitting he’d probably never pay it back. (The request was refused.) Sawyer signed Mann’s bail bond. He also served as surety several months before, when Mann was issued a peace warrant after having allegedly threatened to kill a man.

My theory is that Sawyer took Mann’s case, possibly for free, as one of his last cases before he was elected to the N.C. House of Representatives. The files contain no record of a court appointment—the records are silent altogether on the identity of Mann’s attorney. So it’s only conjecture. If it could be established, I think Mann’s conviction could assume additional weight: not even a member of the venerable Johnston family could convince the jury that John Mann, a poor white with very rough edges, ought to be considered a master “for the time being.” To Jacobs’ story, it would add yet another ironic twist: the suggestion that even while Sawyer was involved with one enslaved woman, he was defending the right of a poor white man to “master” another one at the point of a gun.

At a recent meeting of the Triangle Legal History Seminar, an interesting question arose: what do we know about the attorneys who argued these cases involving slaves? We were talking with Loren Schweninger about the impressive body of cases he has researched, cases involving slaves suing for their own freedom. Often, they were represented by attorneys who were slaveowners themselves. What motivated them? How did their lawyering shape the legal face of slavery? Productive research remains to be done, we concluded.

Whoever he was, John Mann’s attorney handed Thomas Ruffin the theory for a holding that would lie at the heart of the most notorious opinion in all of American slavery law.

Images:

1. John Mann's Oath of Insolvency, Chowan County insolvent debtors' files, North Carolina Office of Archives and History, Raleigh.

2. The site of John Mann's house, at the corner of Broad and Freemason St. in Edenton, is now a dentist's office. Photo: Sally Greene.

Conference: The Challenge of Carl Schmitt: Human Rights, Humanitarianism, and International Law

The Challenge of Carl Schmitt:

Human Rights, Humanitarianism, and International Law

European University Institute
Max Weber Program and Department of History and Civilization

29-30 June 2009

Cappella, Villa Schifanoia San Domenico di Fiesole, Italy

The German jurist Carl Schmitt (1888-1985) has earned the reputation of being one of the most notorious and influential political thinkers of the twentieth century. After rising to prominence during the 1920s, he served as a close adviser to conservative nationalist politicians during the end phase of the Weimar Republic, and afterwards played a prominent role in legitimating the early legal regime of Nazi Germany.

Schmitt's critique of the international rule of law, first framed during the interwar period, has come to be regarded as one of the most devastating attacks on modern liberal democracy. In spite of his morally compromised career, Schmitt has continued to exert a profound-and some would argue worrying-influence on German and European intellectual life, and his legal and political thought has helped to shape the development of critical legal realism in North America.

In the post-Cold War environment, Schmitt's thought has also become a standard point of reference for scholars who grapple with the challenges of a new international rule of law and with the problems that beset liberal approaches to international relations. Critics of Western exceptionalism, global capitalism and the Anglo-American rule of law have frequently cited Schmitt's ideas, in particular his claim that the language of humanitarianism only serves to mask pure power interests. At the same time, those who wish to defend the expansion of the Western human rights tradition have found themselves compelled to address Schmitt's work.

This conference will subject Schmitt's intellectual legacy to critical examination; each participant will present a 50-minute paper addressing specific aspects of Schmitt's work in relation to just war, human rights regimes, humanitarian intervention and the global rule of law.

Program:

Monday, June 29, 2009

9:30-11:00: - Peter Schroeder, University College London
"Carl Schmitt's Appropriation of the Early Modern European Tradition of Political Thought on the State and Interstate Relations."

11:00-11:30: Coffee break

11:30-13:00: - Tim Stanton, University of York
"Hobbes and Schmitt"

13:00-14:30:Lunch

14:30-16:00: Joshua Derman, European University Institute
"Schmitt on Land and Sea"

16:00-16:30: Coffee/tea break

16:30-18:00: John McCormick, University of Chicago
"Schmitt, Strauss and the Weimar Critique of Enlightenment Humanitarianism"


Tuesday, June 30, 2009

9:30-11:00: William Novak, University of Chicago
"Legal Realism and Human Rights"

11:00-11:30: Coffee break

11:30-13:00: Liisi Keedus, European University Institute
"Arendt and Schmitt"

13:00-14:30: Lunch

14:30-16:00: Niklas Olsen, European University Institute
"Carl Schmitt, Reinhart Koselleck and the Foundations of Political Order"

16:00-16:30: Coffee/tea break

16:30-18:00: Jan-Werner Mueller, Princeton University
"Carl Schmitt's Challenge to International Law: Three Responses'."


For more information, please contact:
Joshua Derman (joshua.derman@eui.eu)
Susan Karr (susan.karr@eui.eu)

Hat tip: H-Diplo.

Leonard on Dred Scott

Gerald Leonard, Boston University School of Law, has a new essay, Law and Politics Reconsidered: A New Constitutional History of Dred Scott. It will appear in Law and Social Inquiry (2009). Here's the abstract:

This essay synthesizes recent writing on the constitutional history of slavery, featuring Mark Graber’s Dred Scott and the Problem of Constitutional Evil (2006). It offers a historical and legal analysis of Dred Scott that attempts to clarify the roles of both law and politics in controversial judicial decisions. It joins Graber in rehabilitating Chief Justice Taney’s Dred Scott opinion as a plausible implementation of a Constitution that was born in slavery and grew only more suffused with slavery over time. It integrates much recent writing on the social, political, and constitutional history of slavery to develop the context in which the Dred Scott opinions must be read. And it finds that Justice Curtis’s celebrated dissent amounted to an unjudicial manipulation of the law, not the judicial masterpiece of historiographical lore, although driven by the higher purpose of striking at the political hegemony of the slaveholding class.

This essay is an unabridged version of a shorter work that is forthcoming in Law and Social Inquiry (Summer 2009).

More from Greene: State v. Mann: The Archives Deliver

This is the second in a series of invited guest posts by Sally Greene on newly found archival documents related to the landmark slavery case, State v. Mann. Greene's first post is here.

The file folder containing the crucial “missing” documents in the case of State v. Mann was hiding in plain sight, but it was the hand of an extraordinary archivist, George Stevenson, that led me there. I knew that Stevenson had worked closely with Jean Fagan Yellin, helping her establish that Incidents in the Life of a Slave Girl was the actual autobiography of Harriet Jacobs, not the fabrication of her white editor Lydia Maria Child. Yellin recalls in her biography of Jacobs how Stevenson first had to convince himself that Yellin’s story was right. He worked a whole night through to see if her theory of the identity of Jacobs’ father was correct. After those facts panned out, he was committed to the project for what turned into years of detective work. By the time I got Stevenson’s attention he was near retirement, but I too gained the benefit of his encyclopedic knowledge of the holdings of the North Carolina State Archives. It didn’t hurt that State v. Mann had arisen in Chowan County, in Edenton to be precise, the home of Harriet Jacobs.

The file would not be within the main section of criminal action papers for Chowan County, Stevenson told me. He directed me to a tab near the back of the drawer, the one labeled “Miscellaneous.” Among those index cards was a category called “Slave Records,” and within that category were “Criminal Actions Concerning Slaves,” organized by year. (This whole category of “miscellaneous,” by the way, was absent from the online finding aid.)

In the folder for 1829, at the top of the stack, lay the grand jury indictment of John Mann, accompanied by his arrest warrant, recognizance bond, and several subpoenas. What a moment! Tangible documents, new names, a slim thread of new evidence, new clues. Where would they lead? I knew that the trail of the slave Lydia’s owner, Elizabeth Jones, had grown cold; if she had left obvious records in Chowan County, someone would have found them by now. I certainly had not identified her. The presentment to the grand jury was sworn out not by anybody named Jones, but rather by a Josiah Small. Who was he, and what relation did he bear to Elizabeth Jones? My husband took a guess. Could Elizabeth have been a minor, and Small her guardian? I proposed this question to Stevenson. He was skeptical.

But as with Jean Yellin’s hunches, he decided to do his own test. He called the next day to confirm: court records showed that Josiah Small was the guardian of James, Elizabeth, and August Jones. From there it was a short step to the discovery that their father Thomas Jones had died intestate in 1822. An older child, Matilda, was married to Josiah Small; these three minor children became his wards. Further records showed that an enslaved woman named Lydia, age 16 at the time of Jones’ death, became part of Elizabeth’s inheritance, property that Small was duty-bound to keep hired out. (Small was from a Quaker family, but this doesn’t seem to have colored how he felt about slavery.)

And so began a long, fascinating journey. Tedious hours of sleuthing in the archives in Raleigh were balanced by a few memorable trips to Edenton, where much of the antebellum landscape is preserved, including the courthouse where John Mann was tried.

Here’s some advice for anyone lucky enough to have an archival project:

1. Make friends with archivists, for they can be true friends of yours. Do some advance work to make sure you are talking to the most qualified archivists in your
field.

2. Do not neglect the “miscellaneous.”

3. Do not rely entirely on online finding aids.

4. Go out on limbs and follow all hunches (then test them against facts).

5. Be persistent, then patient, then more persistent.

6. Enjoy. (And come up for air occasionally.)

Images:
1. Grand jury indictment of John Mann for assault and battery, on sworn presentment by Josiah Small, North Carolina Office of Archives and History, Raleigh, NC. Photo by Sally Greene.
2. Chowan County Courthouse. Photo by Sally Greene.

Dane on Beale

The posting by Perry Dane, Rutgers-Camden School of Law of his biographical entry on Joseph Henry Beale, the high formalist scholar of conflict of laws, gives me an excuse to reproduce Thurman Arnold's poetical mock tribute (which Dane quotes in part) and to post the terrific portrait by Charles S. Hopkinson. Here's Dane's abstract.

This short entry in the Yale Biographical Dictionary of American Law, edited by Roger K. Newman, discusses Joseph Henry Beale, Jr. (1861-1943), Royall Professor of Law at Harvard Law School and the founding dean of the University of Chicago Law School. Beale is best remembered for his work on conflict of laws, which was the highest expression of a decidedly formalistic approach to the subject, and the foil for the Legal Realist critiques that eventually overturned that formalism.

Beale's work on conflict of laws spanned much of his career, culminating with his 1935 treatise and with the First Restatement of Conflict of Laws, for which he was the reporter. His approach emphasized mechanical rules based on identifying specific, territorially defined, rights-creating events, and was already the object of sustained attack by the time these publications appeared. Legal Realist opponents battered his notions of territorially defined vested rights, and their critique ultimately led to a revolution in choice of law. More profoundly, Beale's work became for many the emblem of antiquated formalism in legal thinking.

Such criticism aside, however, Beale grounded his approach in sophisticated, if debatable, jurisprudential assumptions. He was a more subtle thinker, widely read in foreign sources and interested in legal theory and history, and often a more wry and ironic writer than the caricature would allow. A surprising number of his writings, which ranged widely from criminal procedure to taxation and municipal corporations, paid heed to social facts and legal adaptation.

Beale was an interdisciplinary thinker in his own way and was more jurisprudentially self-conscious than most American legal scholars of his generation. Indeed, there is no better evidence of his intellectual breadth than his commitment to conflict of laws, which Beale introduced to the law school curriculum and put at the center of legal scholarship.

Here's Arnold's poem, which I quote from Laura Kalman's Legal Realism at Yale:

Beale, Beale, marvelous Beale,
Only in verse can we tell how we feel,
When our efforts so strenuous to overthrow,
Your reasoning tenuous, don't seem to go.
For the law is a system of wheels within wheels.
Invented by Thayers and Sayres and Beales,
With each little wheel so exactly adjusted,
That if it is damaged the whole thing is busted.
So cease from refuting what can't be disputed,
Abandon disputing what can't be refuted,
And BOW to the frantic pedantic romantic
Evasive, persuasive, marvelous Beale.

Finally, I was surprised to learn recently that Beale taught a boundary busting course combining Torts and Criminal Law in a search for common principles of "legal liability." (Harvard Law Review 28 (1914): 83.) As a participant in a long-running alternate curriculum for the first year at Georgetown, I knew of course that we had precursors, including the "Contorts" course at Rutgers-Camden. Even so, it was a little hard to discover that a high priest of legal formalism had been there before us.

Image credit.

Update: Thanks to David Warrington, Special Collections Librarian at the Harvard Law School, for sending me another poetical tribute to Beale by one of his students. This one is from Francis T.P. Plimpton, Reunion Runes: Being Verses Read at the 25th Reunion of the Harvard Law School Class of 1925 on April 29, 1950 (1950), 22. [N.B.: Joy = Joey.]

Now Beale received from Cambridge U
(He earned it at a canter)
A flowing gown of crimson hue
With scarlet tam-o-shanter,

Which flops about that noble brow --
And looks! Unless you saw his,
You really can't imagine how
Undignified the law is.

Joy tends to be a mite severe
In classroom conversation,
But it would do you good to hear
His ratiocination.

The ones that argued--how they cried!
You really should have heard 'em,
As he with banging fist applied
Reductio ad absurdum.

He calls upon his learning wide
And uses perfect diction,
As with a solemn quiet pride
He justifies a fiction.

Bewildered pupils hear with awe
His logic unrelenting,
As he with force lays down the law--
With Justice Holmes dissenting.

I'll tell you this--you'd better know
It now as well as later--
When Joy asserts a thing is so,
It's res adjudicata.

As David points out, the "flowing gown of crimson hue" appears in the Hopkinson portrait.