Yoo on George Washington and Executive Power

George Washington

George Washington and Executive Power is a new paper by John Yoo, University of California at Berkeley School of Law.  The paper is from Yoo's new book, Crisis and Command: Executive Power from George Washington to George W. Bush (2010).  Here's the abstract:

This paper examines current debates over the scope of presidential power through the lens of the Washington administration. We tend to treat Washington’s decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered.

Washington filled these gaps with a number of foundational decisions - several on a par with those made during the writing and ratification of the Constitution itself. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. He centralized decision-making in his office, so that there would be no confusion about his responsibility and accountability. He took the initiative in enforcing the law and followed his own interpretation of the Constitution. He managed diplomatic relations with other countries and set the nation’s foreign policy. At the end of his two terms, the Presidency looked much like the one described in The Federalist Papers.

None of this was foreordained. Washington could have chosen to mimic a parliamentary system or a balanced government with executive branch officials drawn from an aristocratic social class. He could have considered the Presidency as Congress’s clerk, committing himself solely to carrying out legislative directions. He might even have thought of himself as the servant of the states. But instead he read his constitutional powers broadly to lead the nation through its first growing pains; restore the country’s finances; keep the nation out of a dangerous European war; open the West to American expansion; and see the Constitution through the appearance of the first political parties.

Kwall on Creativity and Cultural Influence in Early Jewish Law

Creativity and Cultural Influence in Early Jewish Law has just been posted by Roberta Rosenthal Kwall, DePaul University - College of Law.  It is forthcoming in the Notre Dame Law Review.  Here's the abstract:

Human creativity thus lies at the heart of Judaism, both from a theological and a legal standpoint. Therefore, there is much scholars who are interested in the creative process from a secular standpoint can learn from the Jewish tradition. On the secular side, legal scholars currently are turning their attention to analyzing law within cultural terms because political “culture” struggles are being waged increasingly on legal turf. This pairing of law and culture requires clear articulations of what culture means and what the relationship between law and culture should look like. This approach enables us to transcend the standard inquiries of what the law is, and what we want it to be, by asking instead what the law makes us. Among those scholars who invoke cultural analysis, there is a general sense that law and culture should not be viewed as two distinct entities but rather as embodiments of one another. When law is seen as culture and culture as law, it becomes logical to discuss how to interpret law in cultural terms.

Jewish religious law, known as halakhah, has been influenced by cultural developments both within the Jewish community and outside of it. Cultural analysis reminds us that cultures are not hermetically sealed but continuously interact with the world around them. This reality is especially true with respect to Jewish law given that the history of the Jewish people is such that they have been living in foreign cultures in the Diaspora for thousands of years. This Article illustrates how these cultures, generally and particularly with respect to Hellenism, have exerted an enormous influence on the development and application of Jewish law in its formative period. It adopts a cultural analysis perspective, thus positing that Jewish culture and Jewish law are inextricably intertwined. Further, it argues that from an early stage in the development of Jewish law, its inherent creativity derives from its confrontation with outside cultural influences.

Part I of this Article examines the analytical relationship between law and cultural analysis, and establishes the important symbiotic relationship between law and culture. Part II initially explores the fundamental tenets of the Jewish legal system in the law’s formative years. It then investigates the influence of the surrounding cultures, particularly the Hellenistic influence, on the development of early Jewish law. Throughout this Part, the Article develops the argument that the need for adaptation to the surrounding environment insured the inherent creativity of the law’s development and application. Part III contrasts the situation involving American Jewry in the twenty-first century with earlier times. It posits that the familiar and successful pattern of acculturation that historically insured a creative Jewish legal system is no longer viable in the sociological milieu in which most American Jews live.

Phillips-Fein on "the roots of the conservative grievance industry"

Over at Bookforum, historian Kim Phillips-Fein (New York University) offers her take on four recent books that, in different ways, attempt to capture the modern conservative movement: David Courtwright's No Right Turn: Conservative Politics in a Liberal America; Dominic Sandbrook's Mad as Hell: The Crisis of the 1970s and the Rise of the Populist Right; Michael Reagan's The New Reagan Revolution: How Ronald Reagan's Principles Can Restore America's Greatness; and J. R. Dunn's Death by Liberalism: The Fatal Outcome of Well-Meaning Liberal Policies. Courtwright and Sandbrook are historians; Reagan is President Ronald Reagan's adopted son; Dunn is a novelist, editor, political commentator, and, to use Phillips-Fein's words, "intellectual descendant of Friedrich von Hayek."

Phillips-Fein opens the essay with a provocative question: Has anyone come closer than Hofstadter did at mid-century to nailing down modern conservatism?

The late Richard Hofstadter famously described "pseudo-conservatives" as dwellers in an unreal world, practitioners of a "paranoid style" of politics. They were, he argued, downwardly mobile lost souls, at sea in the mass-consumption economy of midcentury America, who turned their economic rage into an irrational attack on the intellectuals and liberals they believed responsible for their problems. They were victims of the American dream who did not know "who they are or what they are or what they belong to or what belongs to them." Out of their desperate search for status came a striking penchant for a Manichaean politics of good and evil, which scripted the elitists of Washington as the insatiable persecutors of virtuous small-town America. Ever since Hofstadter wrote his essays, historians have been criticizing his dismissive tone and his interpretation of conservatism as something akin to mental illness; in retrospect, Hofstadter's detractors have argued, he erred badly by making the right seem a declining force in American life at the very moment it was poised to sweep into power. But for all the obvious condescension in Hofstadter's argument, he captured, as few others have, the sheer strangeness of the conservative movement, and the way its rage manages to concoct a shadow America always on the brink of revolution or worse. Have modern scholars been able to do much better?

Phillips-Fein ends on another provocative note -- by suggesting that no historical account has explained adequately the trajectory and tenor of today's conservative movement, a movement that, in her view, is both more "mainstream" and more extreme than its predecessors: "To get a sense of how today's conservative movement has transformed the fringe vision of a rapacious, violent state that Hofstadter chronicled at midcentury into a mainstream political refrain, it's not enough to read about the right," Phillips-Fein concludes, "you've got to go straight to the source.

You can read the entire review here.

Image credits: Hofstadter; No Right Turn.

Walker reviews Tsai's "Eloquence and Reason"

H-Law recently circulated a review of Robert Tsai's Eloquence and Reason: Creating a First Amendment Culture (New Haven: Yale University Press, 2008). The reviewer, Anders Walker (St. Louis University School of Law), describes the book as a "nuanced, novel, and compelling" interpretation of First Amendment jurisprudence, and "[p]erhaps the only study of American constitutional law to adopt an explicitly Geertzian approach."

Here's an excerpt of the review:

More than presenting simply a history of litigation strategy or Supreme Court politics, Tsai focuses on language, positing that freedom of speech is “a distinctive way of life” and “a sophisticated system of devotional practices,” not unlike the “webs of signification” that Clifford Geertz associated with culture (pp. 1, 6n13). Animating free speech culture, argues Tsai, are certain inspired rules of rhetoric, or what sixteenth-century political theorist Thomas Wilson called “precepts of eloquence.” Such precepts, continues Tsai, not only “set fire to reason” as Oliver Wendell Holmes famously noted, but also elevate constitutional discourse from mere assertions of brute power to discursive constructs that simultaneously define Americans even as they bind them, ruler and ruled alike (pp. 12-13).

You can read the rest here.

As a side note, how many of you now create websites for your books? In researching this post, I noticed that Tsai chronicles his book's "life" here.

Legal History at Iowa Law

The Iowa Advocate, the alumni magazine of the University of Iowa College of Law, recently posted on-line a notice of the launching of a Program in Law and History at the school. The announcement commences:

The University of Iowa has a proud tradition of scholarship and teaching in the field of legal history. Among the many legal historians who have taught at the University of Iowa are Professors Percy Bordwell (d. 1970), Donald Sutherland (d. 1986), and Henry Horwitz (emeritus 2004). Building on this tradition, the College of Law has founded the Program in Law and History, with the aim of bringing together faculty and students to foster research and teaching at the intersection of law and history. Four faculty with sustained scholarship in legal history are at the center of the new Program. In alphabetical order, they are: Thomas P. Gallanis, recently hired as the N. William Hines Chair in Law; Herbert Hovenkamp, the Ben and Dorothy Willie Chair in Law; Linda Kerber, the May Brodbeck Professor in Liberal Arts and Sciences; and Lea VanderVelde, the Josephine Witte Chair in Law. Gallanis and Hovenkamp have secondary appointments in the Department of History, and Kerber has a secondary appointment in the College of Law.

More

Latinos and the Law: Recent Review Essays

In my work, I've looked at how Mexican Americans living along the U.S.-Mexico border in the nineteenth century interacted with the newly-imposed American legal system. Since I began that inquiry in graduate school, scholarship in the area of Latino legal history has expanded quite dramatically. Current issues of the Journal of American History and the Journal of Legal Education attest to that expansion. Both have special content dedicated to recent work in Latino history, including some discussion of legal history. In a section of the September 2010 issue of the JAH entitled "Latino History: An Interchange on Present Realities and Future Prospects," ten scholars of Latino history discuss the state of the field. The issue also contains reviews of ten recent books in this area. Of particular interest to legal historians will be the reviews by Grace Peña-Delgado of Patrick Ettinger's Imaginary Lines: Border Enforcement and the Origins of Undocumented Immigration, 1882—1930, and one by Eduardo Obregón Pagán of Cynthia E. Orozco's No Mexicans, Women, or Dogs Allowed: The Rise of the Mexican American Civil Rights Movement.

Orozco's book is also reviewed, along with three others, in an essay by Michael A. Olivas in the November issue of the Journal of Legal Education. In "The Arc of Triumph and the Agony of Defeat: Mexican Americans and the Law," Olivas looks at what he calls "an understudied and fascinating topic: the litigation for Mexican American educational and civil rights following WWI and WWII." He examines Orozco's work as well as Richard R. Valencia's Chicano Students and the Courts: The Mexican American Legal Struggle for Educational Equality; Philippa Strum's Mendez v. Westminster: School Desegregation and Mexican-American Rights; and Ignacio M. Garcia's White But Not Equal: Mexican Americans, Jury Discrimination, and the Supreme Court. (The link to the table of contents of the issue is here; the full text of the essay is here.)

Triger on Golda Meir and the Beginnings of the Pre-State Women's Movement

Golda Meir

'I Have Never Joined the Women's Liberation Movement': Golda Meir and the Beginnings of Pre-State Women's Movement is a new essay by Zvi H. Triger, The College of Management Academic Studies (COMAS) School of Law.  The essay will appear in ONE CONSTITUTION AND ONE LAW FOR MAN AND WOMAN: WOMEN, RIGHTS AND LAW IN MANDATORY PALESTINE, Eyal Katvan, ed., Bar Ilan University Press, 2010.  While the topic is fascinating, the abstract is just a sentence, and the essay itself is in Hebrew.  Here's the abstract:

This article examines Golda Meir's complex relationship with the Jewish Women's Liberation Movement in Mandatory Palestine.

Note: Downloadable document is in Hebrew.

Boyer on Prest on Blackstone

Allen D. Boyer has just published Law's Architect: William Blackstone: Law and Letters in the Eighteenth Century, a review essay of Wilfrid Prest, William Blackstone: Law and Letters in the Eighteenth Century. It appears in 22 Yale Journal of Law & the Humanities 127 (2010). Here's the abstract:

This fine biography of Sir William Blackstone displays both Wilfrid Prest's command of English legal history and his ability to tell the dancer from the dance. For more than two centuries now, Blackstone the jurisprudent has been obscured by Blackstone the law-book. Behind the lucidity and balance of Blackstone's Commentaries, Prest reveals the pompous, energetic man who penned them: an orphan, a scholar, a forceful academic politician, a shrewd estate manager, and, finally, when his ship came in, a thoughtful and progressive judge. Prest has also overcome the temptation to dwell on his subject's times rather than his life. To our continuing discussion of Blackstone, this book restores the human element. The William Blackstone who appears in these pages is a man to be taken on his own forceful terms.

Pfander and Hunt on Private Bills and Govermental Accountability

James E. Pfander, Northwestern University School of Law and Jonathan L. Hunt, Mayer, Brown & Platt, have posted Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic. It is forthcoming in the New York University Law Review and may usefully be read alongside Jerry Mashaw's articles on the "lost century" of administrative law, here, here, here, and here which I recently had the pleasure of reviewing for a conference on the forthcoming book manuscript hosted by Timothy Lytton at the Albany Law School. Here is the abstract for Pfander's and Hunt's paper:

Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oft-cited case, Little v. Barreme, pursued this avenue of indemnification successfully. As a result, the ultimate loss associated with that officer’s good faith effort to enforce federal law fell on the government rather than on the officer himself.

This paper fills out the picture of government accountability in the early nineteenth century by clarifying the practice of congressional indemnification. After identifying cases in which officers sought indemnity from Congress through a petition for private relief, we examine the way official liability, as administered by the courts, interacted with private legislation, as administered by Congress, to shape the incentives of government officers to comply with the law. We find that a practice of relatively routine indemnification took the sting out of sovereign immunity, a doctrine that key players – including James Madison and John Marshall – treated as thinly formalistic. We also find that Congress assumed responsibility for deciding when federal officers were entitled to indemnity for acts taken in the scope of employment.

The antebellum system thus contrasts sharply with modern government accountability law. Jurists today tend to regard sovereign immunity as a barrier to relief, rather than a principle of forum allocation that preserves legislative primacy in the adoption of money bills. Moreover, courts today often refrain from deciding the question of formal legality in an effort to strike a proper balance between the victim’s interest in accountability and the official’s interest in immunity. Whatever the wisdom of the resulting body of qualified immunity law, the doctrine reflects judicial control of matters that the early republic had assigned to the legislative branch.

Bush, Decision Points, and more in the book pages

Updated
"The first great American autobiographies both appeared in the 19th century, were born of conflict and written by public men — "The Life and Times of Frederick Douglass" and "The Personal Memoirs of Ulysses S. Grant," writes Tim Rutten in the Los Angeles Times.  "Since then, what we might call the publishing-industrial complex has turned the reminiscences of our public men and women into a never-ending stream."  Decision Points by George W. Bush is the latest addition to this genre.  "Where does Bush's account of his astonishingly eventful eight years rank in such company? Probably far higher than many of his detractors expected," Rutten writes.

Writing in the Washington Post, Jonathan Yardley finds the book "competent, readable and flat. The voice in which it is written is occasionally recognizable as that of George W. Bush -- informal, homespun, jokey -- but more often it's the voice of a state paper, impersonal and dutiful."

Not so fast, writes Anis Shivani in Huffington Post: 

Reviews in the Los Angeles Times, Washington Post, and New York Times treat Bush respectfully -- much as a Machiavellian prince would desire to be treated after going into retirement; too often reviewers play Bush's game by humanizing him, or treating him with humor, or safely relegating him to history. But Bush truly was a transformative president, among the rare few, and we deceive ourselves -- as many in the commentariat continue to do, as with Maureen Dowd's light-hearted mockery of him -- if we consider him an anomaly, a rare eruption of a virus that won't repeat itself. This book's ideas will have resonance with a large segment of the population, and a notable number among the elites; we need to study Decision Points (Crown, Nov. 9) seriously, as onerous a task as it may be, if we are to make sense of the perpetual aura of crisis that has enveloped America, and why we seem to be stuck on a self-destructive path.

Continue reading here.

DRIVEN WEST:  Andrew Jackson and the Trail of Tears to the Civil War by A. J. Langguth is reviewed by Jon Meacham for the New York Times.  According to Meacham, the author argues that

the passage of the Indian Removal Act of 1830, Jackson’s breaking of Indian treaties and his support of the Southern states, especially Georgia, in resisting a Supreme Court’s ruling in favor of the Cherokees were “salvos . . . fired in the nation’s first civil war” — a war that gave us the next, more cataclysmic one three decades later. But the horrors of the Trail of Tears did not take America from the 1830s to the horrors of the Civil War.

The author "rightly identifies the struggle between central and state power as the defining American drama, and the battle over Indian removal is a much neglected story that he brings to interesting life." However "the narrative itself does little to advance or even articulate in any sustained way the argument implied in the subtitle: that Jackson’s removal policy led to the Civil War."  Continue reading here.

Also reviewed in the New York Times is THE KILLING OF CRAZY HORSE by Thomas Powers.  Other books reviewed this week: Cleopatra: A Life by Stacy Schiff in the Los Angeles Times; FACTS ARE SUBVERSIVE: Political Writing From a Decade Without a Name by Timothy Garton Ash in the New York Times; THE CIVIL WAR OF 1812: American Citizens, British Subjects, Irish Rebels, & Indian Allies by Alan Taylor is in the Boston Globe.

Now On-Line: A Rare Jamaican Case Report

Et Seq., the blog of the Harvard Law School Library, announces the availability of a digitized version of its exceedingly rare copy of Notes of cases adjudged in Jamaica, May 1774 to Dec. 1787 (Edinburgh: Printed by Adam Neill and company, 1794). According to the blog post:

As the volume’s prefatory ‘Advertisment’ on pages iii-iv explains, these reports of high court cases are based on “the very full notes of every case that came before” John Grant, a native of Inverness-shire (Scotland), and chief justice of Jamaica’s Supreme Court from 1783-1790. Colleagues had encouraged Grant to publish his notes for their use at court, and after retiring to Edinburgh, Grant began to revise his notebook with that goal in mind. Grant died on March 29, 1793, leaving three quarters of his notes unprinted. The task was picked up and continued by friends and colleagues who saw the work through the press; the volume was published in 1794.

Update: via H-Law we have the following from Linda Sturtz, Professor of History, Beloit College:

There are at least two other copies of John Grant's Notes on Cases: I consulted one at the National Library of Jamaica (Kingston) though they now issue readers with the photocopy version and another at the Inns of Court. In addition, there is a useful article by Mindie Lazarus-Black on this volume of cases. "John Grant's Jamaica: Notes Towards a Reassessment of Courts in the Slave Era," Journal of Caribbean History 27(2) (1993): 144-159.

OAH and LSA awards - deadlines approaching

Every year the Organization of American Historians sponsors or co-sponsors a substantial number of prizes, awards, fellowships and grants. Deadlines for some of the big ones (the Lerner-Scott dissertation prize, the Frederick Jackson Turner Award) have already passed, but others have a December 1 deadline. These will be of particular interest to graduate students

• The Huggins-Quarles Award, given to "one or two graduate students of color to assist them with expenses related to travel to research collections for the completion of the Ph.D. dissertation."

• The Louis Pelzer Memorial Award, for the best essay submitted by a graduate degree candidate. "Essays may deal with any period or topic in the history of the United States. The winning essay will be published in the Journal of American History."

The Law & Society Association also offers a series of prizes and awards every year, and some of the deadlines are fast approaching. Ones that may be of interest include --

• The J. Willard Hurst prize, given annually "for the best work (in English) in sociolegal history published in the previous year." The LSA defines the field of sociolegal history "to include the history of interrelationships between law and social, economic, and political change; the history of functions and impact of legal agencies, legislative and administrative as well as judicial; the social history of the legal profession; and similar topics." Nominations are due December 15, 2010.

• The John Hope Franklin Prize, established in 2010 "to recognize exceptional scholarship in the field of Race, Racism and the Law." Articles published in the two calendar years prior to the award year are eligible. Nominations are due February 1, 2011.

• The Dissertation Prize, awarded "to the dissertation that best represents outstanding law and society scholarship." Nominations are due December 15, 2010.

There are several others, so consult the full list if you have something in mind.

Masur reviews Egerton, Foner, and "Discovering the Civil War"

In the Chronicle of Higher Education, Louis Masur (Trinity College) writes about the spate of books and exhibits commemorating the sesquicentennial of the Civil War. He focuses on Douglas R. Egerton's Year of Meteors: Stephen Douglas, Abraham Lincoln, and the Election That Brought on the Civil War (Bloomsbury Press); Eric Foner's The Fiery Trial: Abraham Lincoln and American Slavery (W.W. Norton); and "Discovering the Civil War," a two-part public exhibition at the National Archives and Records Administration. Masur predicts that over the next four years "we will be inundated with reflections and publications."

Why so much interest? Masur believes that the Civil War, perhaps more than any other event in American history, "invite[s] . . . speculation about whether it could have been avoided, or turned out differently." It raises "nettlesome" questions about causation and contingency.

Americans also continue to view the Civil War as transformational. And they are right to do so, Masur suggests. He ends his essay on this note:

In 1873, Mark Twain and Charles Dudley Warner observed that the Civil War had "uprooted institutions that were centuries old, changed the politics of a people, transformed the social life of half the country, and wrought so profoundly upon the entire national character that the influence cannot be measured short of two or three generations." The sesquicentennial will provide a continuing opportunity to try to fathom those changes and to understand how the nation is still challenged by forces unleashed in those uncompromising years.

The piece also includes a useful list of other recent and forthcoming sesquicentennial studies: Donald Stoker, The Grand Design: Strategy and the U.S. Civil War (Oxford University Press); George C. Rable, God's Almost Chosen Peoples: A Religious History of the American Civil War (University of North Carolina Press, forthcoming); David Goldfield, America Aflame: How the Civil War Created a Nation (Bloomsbury Press, forthcoming); and Gary W. Gallagher, The Union War (Harvard University Press, forthcoming).

Hat tip: bookforum
Image credit

Pfander and Birk on Artilce II and the Scottish Enlightenment

James E. Pfander and Daniel D. Birk, Northwestern University School of Law have posted Article III and the Scottish Enlightenment, which is forthcoming in the Harvard Law Review. Here is the abstract:

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.

This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.

The Struggle for Land in Comparative Early Modern Europe and the Americas

Center for Renaissance Studies of the Newberry Library announces its Symposium on Comparative Early Modern Legal History for 2011, “The Struggle for Land: Property, Territory, and Jurisdiction in Early Modern Europe and the Americas.” It will be held from 9:00 a.m.–5:00 p.m. on Friday, April 8, 2011. The announcement states:

The Symposium on Comparative Early Modern Legal History gathers under the auspices of the Center for Renaissance Studies at the Newberry Library in Chicago to discuss the comparative legal history of the Atlantic world in the period c. 1492 to 1815. The one-day conference brings together law professors, historians, and social scientists to explore a particular topic in comparative legal history, broadly understood.***

The struggle to possess and control land, both as property and as jurisdictional territory, was central to the formation of early modern European societies as well as their colonial domains. This conference will look at how Europeans and indigenous peoples defined the right to land. We will examine how so-called European expansion influenced the conceptualization of property and territorial jurisdiction and the relationship between them. Conference participants may explore how notions of property and territoriality changed over time; and how colonial needs and the encounter with new cultures reshaped these notions. In what ways did “international competition” and the emergence of an “international law” (to use an anachronism) modify property and jurisdiction? How did economic, social, and political developments influence new ideas and experiences regarding the land? In what ways did these ideas and experiences shape practical strategies for claiming land and asserting rights to govern it and profit from it? We are particularly eager to know whether these encounters encouraged, consciously or not, borrowing between different European legal systems as well as between settlers and indigenous peoples. How was the movement and refashioning of legal knowledge bound up with the movement of peoples and refashioning of modes of control over land? We would like to encourage an interdisciplinary conversation among lawyers, historians, sociologists, geographers, and literary scholars.

A list of speakers and more information are here.

Vermeule reviews Eskridge & Ferejohn on Superstatutes

For some time now, William Eskridge, Jr. (Yale Law School) and John Ferejohn (New York University School of Law) have been writing about "superstatutes." These are laws or series of laws that, according to Eskridge's faculty profile,

(1) seek to introduce or consolidate a norm or principle as fundamental in our polity, (2) over time do “stick” in the public culture even as the norm evolves through a series of debates and even conflicts about its elaboration or specification, (3) such that the super-statute and its normative principle have a broad effect on the law—including effects beyond the four corners of the statute.

Eskridge and Ferejohn's new book, A Republic of Statutes: The New American Constitution (Yale University Press, 2010), expands on and elaborates their theory. The book is the subject of a recent review, by Adrien Vermeule (Harvard Law School), in The New Republic. Here's an excerpt:

William Eskridge and John Ferejohn . . . claim that the United States is a republic of “superstatutes,” which in some sense possess constitutional importance. Eskridge and Ferejohn know a great deal about America’s major statutes, and have put it all between two covers. The book’s ambition is clear, but in many respects it leaves the subject of constitutional statutes murkier than it was before.

Eskridge and Ferejohn start with the indisputable observation that the large-c Constitution of 1789, which can be seen under glass in the National Archives, is only a part—and arguably not a large part—of America’s “working constitution.” The small-c constitution includes a large class of statutes that, they claim, are best understood as constitutional superstatutes. They describe the superstatutory constitution in nine overstuffed chapters, each of which studies statutes, judicial precedents, and history in a given area of public policy. Their list is heterogeneous. It encompasses the “constitution of equality,” exemplified not only by the Civil Rights Act, but also by the Pregnancy Discrimination Act and the Family and Medical Leave Act; the “democratic constitution,” exemplified by the Voting Rights Act; the “constitution of the market,” exemplified by the antitrust rules courts and agencies have elaborated under cover of the Sherman Act; the “constitution of the family,” exemplified by a hodgepodge of state laws regulating marriage, sex and property; the “green constitution,” exemplified by the Endangered Species Act and the Clean Water Act; the “monetary constitution,” exemplified by the Federal Reserve Act and other statutes establishing the federal system of financial and monetary policy; the “antihomosexual constitution,” now partially dismantled but shored up by the Defense of Marriage Act; and the “national security constitution,” transformed in important ways after 9/11.

The entire review is worth reading, but to cut to the chase, here is Vermeule's final assessment:

Eskridge’s and Ferejohn’s treatment of the statutory constitution is so capacious, the boundaries of their enterprise so ill-defined, that it threatens to swallow up all of ordinary politics. In many of their chapters, Eskridge and Ferejohn basically describe the give-and-take struggle of lawmaking and regulation on more or less humdrum subjects—family and medical leave, antitrust, clean water laws—and then attach the label “constitutional” to the results. But if everything is constitutional, nothing is. The nagging merit of the book is that there is, clearly, some category of superstatutes with more than ordinary force and stature; but after reading the book, the nature and boundaries of that category are all the more opaque.

Pascoe Remembered

Estelle Freedman has published an obituary of Peggy Pascoe, the Beekman Professor of Northwest and Pacific History and professor of ethnic studies at the University of Oregon, in the AHA Perspectives. Freedman observes that Professor Pascoe "leaves behind an exceptional professional legacy, not only in her prize-winning scholarship on women and multicultural relations in the West, but also through the careers of the students and colleagues she mentored over the decades." More.

Image credit: Ellen Herman

Update: Historiann's posting of Freedman's obituary has occasioned some appreciative comments, here.

CFP: Annual Meeting of the Law & Society Association

The Law & Society Association is now calling for participation at its Annual Meeting, June 2-5, 2011, in San Francisco. This year's theme is "Oceans Apart? Narratives of (Il)legality in Liminal Locations." Here's the announcement:

Law and Society scholars have consistently challenged both the fit and the applicability of these and other binaries, questioning what citizenship status, class, race, or politics really mean in myriad contexts. However, early in a new decade (and new century), many law and society scholars find ourselves in somewhat of a liminal space, facing whole new sets of border crossings, blurring boundaries, empirical challenges, and conceptual conundra. For example, in the U.S., the continued growth of mass incarceration coupled with the extended reach of criminal law and “civil” municipal regulations have destabilized entire communities, where categories of “incarcerated” and “free” are no longer clearly distinguishable. Around the world, political and legal responses to human migration have broken down lines between immigration law, economic regulation, and criminal justice in complex and often troubling ways.

As a result of these kinds of boundary dissolutions, notions about citizenship, sovereignty, illegality, and rights (to name a few) have all been complicated, challenging a number of longstanding assumptions underlying legal scholarship. How does the law in its many forms help or hurt the resulting conversations? The theme of the 2011 LSA Meeting–Oceans Apart? Narratives of (Il)legality in Liminal Locations–invites us to ponder the shifting and dissolving boundaries around us, empirical and conceptual, and also what they may tell us about law’s relevance, and limitations, in shaping our global future. It is fitting that we begin this exploration in San Francisco, one of the great transnational cities in the world. San Francisco, with its proximity to the Pacific Ocean, is located in a state that borders Mexico (and once was part of that nation), and which was once traversed only by native peoples. This locale is subject to tectonic forces, literal as well as environmental and social, which shape the human uses of law and responses to law. San Francisco constitutes an ideal setting for convening scholars who are concentrating their efforts on these issues.

You can find instructions for submitting paper and panel proposals here. The due date is December 8, 2010.

Leiter Poll Results are Up

The results from Brian Leiter's "Best Law School Faculties in 'Legal History'" poll are now up.  It goes without saying -- this is an unscientific poll that registers only how anonymous responders ranked schools/gamed the poll/whatever.  Many eminent legal historians do not teach at the schools listed.  Students interested in legal history should consider many factors when selecting a school.  Do your homework -- don't rely on someone else's list.

Update:  the raw data is here.  

Legal History in U.S. Law Schools (2

Here’s an update on the raw data that can be culled from the AALS Directory's list of Law Teachers by Subject. Between 1931 (the first year that the Directory provided subject of interest listings) and 1950 the average number of law teachers expressing interest in legal history was pretty stable at 21. In the 1950s the average increases modestly to 36, and in the 1960s to 55. The 1970s see the first big jump, to 180. Growth thereafter is pretty steady: 270 in the 1980s, 384 in the 1990s, and 426 in the decade beginning 2000. These numbers accord quite well with my general sense of when interest in legal history “took off” and what the interest curve has looked like over time.

Some words of caution. First, these are very simple numbers – I do not yet have counts on the number of law teachers expressing interest across all subjects, so we do not yet know to what extent growth of interest in legal history is simply a factor of growth in the overall number of expressions of interest in all subjects registered by law teachers. Second between 1940 and the early 1960s the Directory’s coverage of subjects of interest is decidedly spotty. Between 1940 and 1961 there are only eight listings – six in the 1940s and two in the 1950s. Still, it is unlikely that the absence of figures for most of the 1950s conceals any dramatic variation, because the numbers for the early 1960s fall below the average of the two listings for the 1950s.

Some points of interest. The early 1930s shows a jump upward in interest that peters out quickly. The rapid growth in the 1970s appears to begin in 1967. And throughout there are quite marked fluctuations above and below the secular trend line.

The next step is to look at the whole population of law teachers and their entire subject-of-interest profile over time. This will take a while!

Lahav, A Small Nation Goes to War: Israel's Cabinet Authorization of the 1956 War

Another new paper from Pnina Lahav, Boston University - School of Law:  A Small Nation Goes to War: Israel's Cabinet Authorization of the 1956 War.  It appears in Israel Studies, Vol. 15, No. 3, pp. 61-86, Fall 2010.  Here's the abstract:

The Suez War had long term ramifications for Israel's status in the Middle East and for its relations with the U.S., Europe, and the USSR. This article is a first segment in the examination of the interplay between military and diplomatic means deployed by Israel in its quest to consolidate the gains of the 1948 war and secure its sovereignty. It provides a detailed analysis of the Israeli cabinet deliberations as it reached the decision to authorize war. The article examines the cabinet's opinions on the language of the motion to go to war, the list of casus belli offered, the secret agreement with France and Britain which precipitated the war, considerations of possible complications, the theory of war and peace, the likelihood of regime change in Egypt, and the preparedness of the home front. It raises the question of the relevance of the comparative size and strength of a nation as it ponders the option of launching a war.

D.C. Area Legal History Roundtable: Call for Papers

The D.C. Area Legal History Roundtable is an informal gathering of law professionals and historians who live and work around Washington, D.C.

The next meeting of the Legal History Roundtable will be held March 25, 2011 and hosted by the Federal Judicial Center’s Federal Judicial History Office at the Thurgood Marshall Federal Judiciary Building in Washington D.C. (located adjacent to Union Station).

We invite papers from legal scholars and historians whose work touches on any aspect of the history of federal law or the federal judicial system. Topics may include, but are not limited to, development of court organization, federal criminal and civil jurisdiction, litigation in federal courts, the evolution of federal practice and procedure, constitutional law, or judicial biography.

For further information and to submit a paper proposal, contact Ryan Rowberry, at rrowberry@fjc.gov. The deadline for proposals is January 31, 2011.

Law and Marriage in Medieval and Early Modern Times

[Here's the Call for Papers for the conference "Law and Marriage in Medieval and Early Modern Times," to be held May 4-6, 2011, at the Carlsberg Academy in Copenhagen, Denmark. The keynoters are Charles Donahue, Jr., Harvard Law School, and Philip L. Reynolds, Emory University, Candler School of Theology.]

We are happy to announce the upcoming eighth Carlsberg Academy conference in the interdisciplinary series on medieval legal history and therefore invite colleagues whose research touches upon aspects of law and marriage in the Middle Ages and Early Modern Times to submit proposals for papers of 20 minutes duration. A title and an abstract of 200-250 words should be sent by e-mail to the following members of the organising committee: Helle I. M. Sigh, Institute for History and Area Studies, University of Aarhus: hishim@hum.au.dk; or Kirsi Salonen, Department of History and Philosophy, University of Tampere: kirsi.l.salonen@uta.fi

The deadline for proposals is December 15, 2010. The final programme will be published soon thereafter. All proposals and presentations should be in English. The selected speakers will be notified in advance.

Suggested themes are:

Contracting a marriage, marital life, dissolving a marriage, continuation of marital traditions from the Middle Ages to the Reformation Period, and the effects of marriage institutions on politics and society.

The list is by no means exhaustive and other proposals touching on the main theme of law and marriage in medieval and early modern times are most welcome. All papers will, as usual, be published in our series of proceedings.

The conference on Law and Marriage is the eighth in an interdisciplinary series which aim at discussing new approaches to the study of medieval law and legal practice. The first, held in May 2003, examined the question of how 'Nordic' the medieval Scandinavian law books actually were. The outset was the prevalent notion of a recent paradigm shift in the study of medieval laws, in which focus has been moving towards a perspective in which regional laws were seen in a much broader context as part of a general European development. The second conference, in 2005, threw the nets even wider and covered a broad range of aspects concerning the development of medieval learned law, with speakers coming from Belgium, Denmark, England, Germany, Iceland, Italy, Norway, Scotland, Sweden, and the United States. For the third, held in November 2006, we invited a number of internationally distinguished scholars to contribute papers on aspects of law and jurisprudence in the period before the systematization of law, signified by the emergence of Gratian's Decretum. The fourth conference in 2007 continued along these interdisciplinary lines with 16 papers covering various aspects of a broad theme of the interrelation between law and power in medieval societies. Finally, in May 2008 we once more invited a select number of scholars of international distinction to discuss the use (and misuse) of the concept of 'custum' in medieval legal history. In April/May 2009 the focus was on law and private life, and in the coming December it will be on law and Archaeology. Proceedings from all conferences are or will be published in our series.

The conference will be held at the Carlsberg Academy, formerly the family residence of the founder of the Carlsberg Breweries, J. C. Jacobsen. The Academy buildings are beautifully situated, easy to reach by public transportation and close to the centre of Copenhagen.

The registration fee for non-speakers will be EUR 100 or 750 Danish Kroner payable upon arrival at the conference. The fee includes lunch on Wednesday, Thursday and Friday and the conference dinner on Wednesday, all drinks and snacks, as well as an excursion on Friday to the medieval sites and museums in Roskilde. Speakers are of course exempt from paying the conference fee.

Please use the registration form which will be available here in the beginning of January 2011.

The deadline for non-speakers' registration is 15th March 2011. The Academy lecture room can only contain a limited number of participants so please do not hesitate to register as soon as possible.

Gerstle on "Federalism in America: Beyond the Tea Partiers"

Based on the number of recent Tea Party-related articles, blog posts, and books, it seems fair to conclude that academics -- historians, in particular -- find the Tea Party fascinating and confounding. Alan Brinkley, in a recent review essay on the anatomy of the Tea Party, wrote that "[t]rying to describe the ideas of the Tea Party movement" was "a bit like a blind man trying to describe the elephant." Others have devoted long hours to refuting Tea Party interpretations of cherished American concepts, documents, and historical figures. Still others have tried to explain why "Tea Partiers" find those interpretations so compelling.

Now comes Gary Gerstle (Vanderbilt University): in the Fall 2010 issue of Dissent, he takes a concept that is foundational to American governance -- federalism -- and attempts to move it "beyond the Tea Partiers."

Here's the first paragraph of the essay, in which Gerstle offers his understanding of the trajectory of American federalism (by which, I think, he means both the idea and the political practice):

We hear a lot today about federalism, the doctrine that emphasizes the rights and powers of the states versus those of the federal government. The political Right expresses alarm at the dramatic expansion in central government power that began under George W. Bush during the 2008 financial crisis and that continued during Barack Obama’s first eighteen months in office, first through the government’s bailouts of financial institutions and the auto industry and then through the passage of the landmark national health care bill. Liberal groups, on the other hand, have turned to federalism in response to the perceived failure of the federal government during the Bush years to address major economic, social, and ecological challenges. Progressive Californians, for example, have been pushing ecologically friendly bills in their state, given the obstructions such legislation has faced in Congress. Massachusetts enacted its own government health care bill in response to a long period of federal inaction on the issue. Many gay marriage and marijuana legalization advocates now believe that they can accomplish more in state rather than national arenas. These advocates want to “free” their states from the grasp of federal authority on the issues that matter most to them. In this essay I explore the historical background to the current interest in federalism and argue that the powers possessed by state governments throughout the nineteenth and early twentieth centuries were more capacious, influential, and resilient than we customarily recognize them to have been. The durability of the states as a force in economic, social, and cultural affairs can only be understood by reference to an expansive and constitutionally sanctioned doctrine of police power. Police power endowed state governments (but not the federal government) with broad authority over civil society for at least the first 150 years of the nation’s existence. The Civil War posed a sharp challenge to this doctrine, and, for a time, it seemed as though Reconstruction would inter it. But in the late nineteenth century, state legislatures, backed by the federal courts, rehabilitated this doctrine to attack and, in many cases, to reverse the centralization of power in the federal government that the Civil War seemed to have done so much to advance. Federalism finally did weaken in the 1930s and 1940s, but not until the 1960s and 1970s can we say that the central government had superseded the states as the premier center of political authority in America. Federalism’s demise, then, is still a relatively recent phenomenon, a fact that fuels the hopes of those who want to see it revived.

To give a sense where Gerstle takes the essay, here's an excerpt from the end, in which he talks about what "progressive" forms of federalism might look like:

These federalisms would stress the capacious power of government that resides in the states, would call on states to act in the public interest, and would seek to turn state governments into what the liberal jurist Louis Brandeis once celebrated as “laboratories of democracy.” These “government labs” would, in the best-case scenario, develop creative, local, and diverse solutions to economic and social problems that America confronts, with the most successful ones being adopted by the federal state and adapted to problems that are national in scope. Such a process, too, might even resuscitate a popular belief in the capacity of active governments at all levels to expand opportunity and promote equality.

You can read the full essay here. It is adapted from “The Resilient Power of the States Across the Long Nineteenth Century: An Inquiry into a Pattern of American Governance,” in Lawrence Jacobs and Desmond King, eds., The Unsustainable American State (Oxford University Press, 2009), pp. 61–87.

Mehrotra on Taxation and American Economic Development

Ajay K. Mehrotra, Indiana University Maurer School of Law, has posted American Economic Development, Managerial Corporate Capitalism, and the Institutional Foundations of the Modern Income Tax, which also appears in Law and Contemporary Problems 73 (2010). Here is the abstract:

Histories of the modern American income tax have generally focused on the role that social and political forces have played in the development of a new tax system. This article seeks to move beyond the social and political determinants to examine the economic factors that facilitated the adoption of the modern, graduated income tax. Without marginalizing the importance of social and political factors, the central aim of this article is to make a modest contribution to the legal and political historiography of the U.S. income tax by highlighting how changing material economic conditions afforded social groups, political reformers, and lawmakers with a unique, historically-contingent opportunity to transform the American tax system. More specifically, this article investigates how American economic growth and the advent of managerial corporate capitalism provided governments with new and crucial “tax handles” to assess and collect personal and business income. With an increasing amount of economic output and income moving through formal markets, public officials were more easily able to tap the growing tax base. And as income and economic power became concentrated in larger organizational units, namely large-scale, integrated business corporations, it became easier for taxing authorities to identify and access sources of tax revenue.

Was John Marshall a Bad Historian?

Many thanks to Mary for inviting me to contribute! I have been a beneficiary of the blog in countless ways in the past few years, so it is an honor to be able to participate. I recently had occasion to delve into a new area of research as I prepared to moderate a faculty workshop at the University of Illinois with the lofty title "Indigenous Subjects in Imperial Law: Johnson v. McIntosh in Hemispheric Perspective" (thanks to the kind invitation of fellow legal historian Daniel Hamilton). As many of you will know, in Johnson v. McIntosh (1823), Chief Justice John Marshall declares the sovereignty of the United States government over American Indian property. According to Marshall, the government had inherited this dominion from Great Britain, which had acquired it through the doctrine of "discovery." The case granted American Indians a "right of occupancy," but no more. I was familiar with the Johnson case largely through teaching it in my first-year property course. Among property professors Marshall is praised for having created at least a modicum of rights for Native Americans and for protecting native land from incursions by white settlers (since Indians could only sell to the U.S. government under his ruling, not to individual citizens). The case later served in the mid-twentieth century as a precedent for American Indian land claims. But as I prepped for the workshop, I discovered that recent work in legal history paints a different view, one that brings into question Chief Justice Marshall's motivations and also demonstrates his own questionable use of history. Stuart Banner's book How the Indians Lost Their Land, Brian Slattery's essay in the edited volume Despotic Dominion, and Lindsay Robertson's book-length treatment Conquest by Law, all come to a similar conclusion: Marshall's interpretation of colonial history was woefully inadequate. To complicate matters, the historical portions of the opinion, which are lengthy, are drawn from Marshall's own prior work: a five-volume biography of George Washington, published in 1804 and later excerpted as the History of the American Colonies, published in 1824. Banner and Robertson also go into great detail about Marshall's hidden motivations for deciding the case in the way he did, namely to protect state grants of preemption rights to white settlers who wanted to purchase Indian land. So it seems we have two conflicting views of the Johnson case and of Marshall's role in particular (and forgive the oversimplification): property professors view the case as good law, in the sense of having created a leg, albeit a weak one, for Indian property rights to stand on; whereas legal historians view the case as bad law, in the sense of being based on inaccurate history (and guided by suspect motivations). So one question that comes to mind for me is this: can bad history make good cases? Does inaccurate history make a case any less legally legitimate? I wonder also if there are other examples of landmark cases based on history that is demonstrably wrong.

“It is the sun and not the laws of man than determines daylight and darkness”

Benjamin Franklin

At about 6:00 a.m. one morning in Paris, Benjamin Franklin was awakened by a sudden noise, and was surprised to find “my room filled with light; and I imagined at first that a number of those lamps had been brought into it; but, rubbing my eyes, I perceived the light came in at the windows.  I got up and looked out to see what might be the occasion of it, when I saw the sun just rising above the horizon., from whence he poured his rays plentifully into my chamber, my domestic having negligently omitted, the preceding evening, to close the shutters.”  Franklin wrote to the Journal of Paris that “your readers, who with me have never seen any signs of sunshine before noon...will be as much astonished as I was, when they hear of his rising so early.”  Franklin goes on to consider all the candles that might be saved if Parisians went to bed and arose earlier.  Some consider Franklin the first proponent of what we now call Daylight Savings Time.

At this point, dear reader, you might pause to change your clocks, since the occasion for this post is that early this morning the United States switched from Daylight Savings to Standard Time.

There is a legal history of daylight savings, complete with a Holmes opinion upholding a Massachusetts daylight saving law.  My interest in the subject, however, stems from the fact that another name for daylight saving in World War II was “war time.” Daylight saving was first instituted in the United States as an energy saving measure during World War I.  While some liked an extra hour of daylight at the end of the day, farmers and others who worked early in the morning complained.  "God knows more about time than President Wilson,” one person protested. 

photo source

While some states and localities adopted daylight savings in later years, in World War II the federal government moved the clock forward an hour, imposing daylight saving all year long.  Secretary of War Henry Simson supported it to save energy and keep war production up.  But many Americans objected, sometimes rather colorfully.  At hearings on a repeal bill in 1944, Congressman Joseph P. O’Hara of Minnesota read this excerpt from a constituent letter into the record:

To delude one’s self that it is 6 o’clock when the sun, moon and stars and God in heaven have ordained that it is but 5 o’clock, I believe justifies the...statement that the so-called daylight saving time probably stands at the head of the list as an example of complete asininity.

Although standard time itself was a human construct, many persisted in the idea that standard time was natural or God-given, like the Oklahoma State Senate, which passed an anti-daylight saving resolution insisting that “It is the sun and not the laws of man than determines daylight and darkness.”

Many of the tensions over war time stemmed from the ways clock time had come to be experienced as an essential element of culture.  While the timing of much farm work was dictated  by the sun, “people want to live by the clock,” a Farm Bureau representative explained.

A “war time” repeal bill passed Congress not long after V-J Day, and daylight saving ended September 30, 1945.  Following a period of “clock chaos,” when some states and localities adopted daylight savings but others did not, Congress adopted national, standardized daylight savings time in 1966.

The basic story of daylight savings time appears in David Prerau, Sieze the Daylight: The Curious and Contentious Story of Daylight Saving Time.

Lahav on American Influence on Israeli Law: Freedom of Expression

American Influence on Israeli Law: Freedom of Expression is a new essay by Pnina Lahav, Boston University - School of Law.  It is forthcoming in THE U.S. AND ISRAEL: SIX DECADES OF RELATIONS, Robert O. Freedman, ed. (Westview Press, 2011).  Only the abstract is posted:

This chapter provides a historical overview of the American influence on Israel’s jurisprudence of freedom of expression from the 1950s to the first decade of the twenty first century. The chapter uses the format of decades, presenting representative cases for each decade, to record the process by which Israeli judges incorporated and sometimes rejected themes from the U.S. jurisprudence of freedom of expression. In the course of discussing the jurisprudential themes the chapter also highlights the historical context in which the cases were decided, from the war in Korea and McCarthyism in the 1950s, to the process of globalization which dominated the first decade of the twenty first century. The chapter asserts that over the decades the Israeli understanding of freedom of expression has matured so that today the appearance of U.S. law is invoked primarily for rhetorical purposes. In contrast to the 1950s, contemporary Israeli courts have enough authentic jurisprudence to guide them in their decisional law.

Best Legal History Faculties: Voting is Open

Also in the "for what it's worth" category:  Brian Leiter's polling on the best faculties in legal history is now open.  Twenty-five faculties are listed.

Elazar on the Invention of Negative Liberty

New from Yiftah Elazar (Ph.D. Candidate, Princeton University Department of Politics) is a paper likely to interest intellectual and legal historians, as well as those who study the American Revolution. It is titled "The American Debate and the Invention of Negative Liberty."

Here's the abstract:

The argument that the idea of liberty is “negative” first appeared in the work of three 18th century utilitarian writers – Jeremy Bentham, John Lind, and Richard Hey – who were all involved in arguing against the American Revolution. Quentin Skinner and Philip Pettit have suggested that the utilitarians revived the Hobbesian notion of freedom and utilized it against the neo-classical conception of freedom that was employed in support of the American cause.

While acknowledging the similarity between the Hobbesian definition of liberty and the eighteenth century utilitarian definition of liberty, the paper argues for the uniqueness of the latter. Hobbes was arguing for an absolute monarchy, while the eighteenth century utilitarians shared with most advocates of the American cause a respect for the British mixed constitution. In contrast to Hobbes, the utilitarians had an idea of civil or political liberty that included some form of security against the arbitrary will of the government, and they shared the neo-classical idea that protecting the liberty of individuals in society requires a free constitution of government.

The paper argues that the utilitarian invention of negative liberty should be understood in the context of a debate in which neo-classical assumptions about freedom and government were, to some extent, shared, and the question at the heart of the debate was the question of democratic participation.

You can download the full version here.

Hat tip: bookforum

Cliopatria Awards

Nominations are open for this year's Cliopatria Awards for the best in history blogging:

Click here to nominate candidates for Best Post, Best Series of Posts, Best Individual Blog, Best Group Blog, Best New Blog, and Best Writer.

Hat tip.

Law & Humanities Junior Scholar Workshop

Law & Humanities Junior Scholar Workshop
CALL FOR PAPERS

University of Southern California Center for Law, History & Culture, Georgetown University Law Center, Columbia Law School, and UCLA School of Law invite submissions for the eighth meeting of the Law & Humanities Junior Scholar Workshop to be held at USC Gould School of Law in Los Angeles on June 5 & 6, 2011.

PAPER COMPETITION:

The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, and welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.

Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 7, 2011, and should be sent by e-mail to:

Center for the Study of Law and Culture
culture@law.columbia.edu

Columbia Law School
435 W. 116th Street
New York, N.Y. 10027

Please be sure to include your contact information. For more information: Terry Hua, 212.854.7946 or culture@law.columbia.edu.

Best Faculties in Legal History: The Leiter Poll

In the "For What Its Worth" Department, we note that Brian Leiter is conducting one of his "best faculties" polls for American law schools on the field of legal history, here.

History of the Federal Government Prizes

[We have the following call for submissions for two prizes sponsored by the Society for the History of the Federal Government.]

The Society for History in the Federal Government awards two prize each year for outstanding scholarship in a published article or essay related to the history of the federal government. We are inviting submissions for the 2010 prizes, for articles or essays published during calendar year 2010. (The deadline for submissions is December 15, 2010.)

1. The James Madison is an annual award given for excellence in an article or essay that deals with any aspect of the federal government’s history.

2. The Charles Thomson Prize is awarded for the best article or essay on a topic in federal history. The nominated article or essay must have been prepared by a federal historian or for a federal history program, including history offices in the federal agencies and history-related programs in other federal entities.

An entry for either prize should consist of a copy of the published article and a letter indicating the significance and merits of the article (a cover letter from the journal’s editor is preferred,although a letter from the author is acceptable). For articles published late in the year, the Committee will accept photocopies of the galleys in lieu of the final published article. A copy of the submission should be sent separately to each of the members of the Prize Committee:

1. Larry DeWitt, Social Security Administration Historian’s Office, Rm. 1532 OPS, Baltimore, MD. 21235. (email: larry.dewitt@ssa.gov)

2. Michele Lyons, 875 Hunting Lake Drive, Huntingtown, MD 20639 (e-mail: lyonsm@mail.nih.gov)

The Madison Prize commemorates the nation’s fourth President and the principal author of The Federalist Papers. The Thomson prize commemorates the nation’s first federal archivist. Both prizes are awarded at the Society’s annual conference in February.

More information regarding the Society and its prizes is here.

Image credit

Ransel on the Ability to Recognize a Good Source

I'm a big fan of the "Art of History" column in the American Historical Association's monthly newsmagazine (Perspectives on History). According to the latest installment, by David Ransel (Indiana University), one of the "arts of history" is "the ability to recognize a good source."

Here's a brief excerpt:

We know about the extraordinary influence of books such as Montaillou by Emmanuel Le Roy Ladurie and The Cheese and the Worms by Carlo Ginzburg. These talented historians were able to tell a compelling story and explain its meaning for us. But the initial success was their ability to recognize what could be learned from the trial transcripts they came upon during their work on the Inquisition. Indeed, Le Roy Ladurie’s principal source had been published a decade before his study. He was the first to realize its possibilities. Ginzburg had been struck by a reference in a document in the Udine archives to a defendant who held that the world had its origin in putrefaction. Because he was busily searching for material on a different topic, Ginzburg merely noted the number of the trial about the world’s beginnings for future reference. Luckily for us, the defendant’s curious belief stirred Ginzburg’s memory from time to time, prompting him years later to return to the trial document to see if he could understand what the man we now know as Menocchio had meant by his statement about the world’s origin.

My favorite example of a master of the art of recognizing a good source is Laurel Thatcher Ulrich. She was not the first person to encounter the diary of Martha Ballard, on which she based her book A Midwife’s Tale. Several historians had looked through the diary at the Maine Historical Society and set it aside because, as Ulrich recounted, they found that it contained much the same thing day after day. Most likely, they also rejected it because the daily life of a midwife did not qualify as history with a capital H. Laurel Ulrich, by contrast, was interested in learning about how women served their communities, and a knowledge of textiles suggested to her that the patterns of family obligation and professional work evident in the diary wove a revealing fabric of the social and economic contributions of women.

[footnotes omitted]

You can read the rest of the column here. Ransel goes on to consider why recognizing a good source is so difficult, even when it is easily accessible. He concludes by suggesting how historians "can stay open to discoveries that lead to fresh insights."

Amann on Cecelia Goetz, Woman at Nuremberg

Cecelia Goetz, Woman at Nuremberg has just been posted by  Diane Marie Amann, University of California, Davis - School of Law.  The essay is forthcoming in the International Criminal Law Review.  Here's the abstract:

Cecilia Goetz at Nuremberg

Among the many women who played a role in the post-World War II trials of former Nazis and Nazi collaborators was a 30-year-old American, Cecelia Goetz. This essay, part of ongoing research on women at Nuremberg, to be published in “Women and International Criminal Law,” a forthcoming special issue of the International Criminal Law Review, discusses Goetz. Included are not only details on how and why she became a prosecutor in the Krupp trial at Nuremberg, but also a life story marked by many “first woman” chapters, on law review, at the Department of Justice, and, after Nuremberg, in the federal judiciary.