SHFG to Host Roundtable on 1965 Immigration Act

[We're moving this up, as the lecture is this Thursday.]  
[Via H-Law, we have the following announcement.]

The Society for History in the Federal Government announces the Annual Richard G. Hewlett Lecture and Reception: “Legacies of the Immigration and Naturalization Act of 1965”

The Society’s annual Richard G. Hewlett Lecture will be held at the Woodrow Wilson Center, Washington, DC, on Thursday, October 22. A meet and greet reception will begin at 6 p.m., followed by a roundtable discussion on the Immigration Act of 1965 at 7 p.m.

Signed into law by President Lyndon B. Johnson on October 3, 1965, this act significantly reformed the United States' immigration procedures by eliminating national origins quotas as defined by the Immigration Act of 1924 and replacing the quotas with overall hemispheric caps on visas issued to applicants. Fifty years after the Immigration Act's implementation, the Hewlett Lecture panelists will briefly discuss the legacies of the Immigration Act, then will engage the audience in a question-and-answer session.

The roundtable will feature Tom Gjelten, Correspondent for Religion and Belief on the National Desk at NPR; Marian L. Smith, former Chief Historian for the U.S. Citizenship and Immigration Services; Ruth Wasem, currently a Kluge Fellow at the Library of Congress; Phil Wolgin, Center for American Progress, For more information and registration, [here.]

Fernández-Villaverde on Magna Carta, the Rule of Law, and the Limits on Government

Jesus Fernández-Villaverde, Department of Economics, University of Pennsylvania, has posted Magna Carta, the Rule of Law, and the Limits on Government.  Cribbing from the introduction:

[W]hat is exactly the “rule of law”? This question is pertinent because, while jurists and politicians nearly unanimously praise this legal principle as a prerequisite for democracy and prosperity, scholars vehemently disagree about the actual content of this rule. As German lawyers love to say, law is full of indeterminate legal concepts (unbestimmte Rechtsbegri). And few concepts seem more indeterminate than the “rule of law.”

Fraley on the History of Waste Law

Jill Fraley, Washington and Lee University School of Law, has posted Waste Law:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

George on the Sex Research and the Decriminalization of Sodomy

Marie-Amelie George, Associate in Law, Columbia University Law School, and ABD Yale University, has posted The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States, which appears in the Journal of the History of Sexuality 24 (2015): 225-61.

Sexual psychopath statutes, under which courts committed individuals charged with or convicted of certain crimes, typically sex offenses, to psychiatric institutions, proliferated in the United States between the late 1930s and early 1960s. Twenty-nine states and the District of Columbia enacted versions of these statutes in response to a sex-crime panic that swept the nation after a wave of publicity about violent sex crimes committed against children. While the statutes varied widely in terms of the crimes that triggered the laws’ application and in their definitions of sexual psychopathy, they were almost always applied to men convicted of consensual sodomy and were used to commit homosexual men to institutions. However, in 1955 -- only four years after the rush to enact sexual psychopath laws ended -- the American Law Institute (ALI) voted to exclude consensual sodomy from its Model Penal Code (MPC), indicating that consensual sodomy was not a criminal matter. Therefore, in a very short period, a group of influential legal thinkers had moved consensual homosexual activity from a sign of possible pathology to a legally benign, albeit still immoral, practice. The MPC, a model criminal statute aimed at stimulating penal law reform throughout the United States, became highly influential in legislative efforts to revise state criminal codes, leading twenty-two states to repeal their sodomy statutes by 1978.

This article explains how American law evolved from the widespread implementation of sexual psychopath statutes to the decriminalization of sodomy, arguing that this shift emerged out of debates around sexual psychopath laws and Alfred Kinsey’s reports on male and female sexual behavior, which questioned many of the assumptions underlying both sexual psychopath statutes and criminal code provisions on consensual sodomy. State commissions evaluating sexual psychopath laws relied on Kinsey’s data to argue that the statutory schemes were not based on scientific evidence and therefore needed to be amended or repealed. The majority of their reports commented on the inappropriateness of including consensual sodomy under the umbrella of psychopathy, thereby separating homosexuality not just from pedophilia but also from violence. Several commissions also questioned whether consensual sodomy should be criminalized at all. The sexual psychopath commission reports influenced the ALI’s decision to decriminalize sodomy, presaging and contributing to a significant change in American criminal law, as members of the MPC committee drew upon the commission debates in their arguments for the decriminalization of consensual sodomy. The state commission reports, by providing a forum for politicians and lawyers to develop and express a reformist viewpoint, created a discourse in favor of changing criminal laws on consensual sodomy. This thus article identifies the missing link between a legal regime that characterized homosexuality as psychopathy and one that adjudicated consensual homosexual sodomy as noncriminal conduct.

Weekend Roundup

• It was a pleasure to see Catherine Fisk, University California Irvine School of Law, workshop some draft chapters from her forthcoming book Authors at Work: Writing for Hire in Twentieth Century Film, Television, and Advertising, in the Law and Public Affairs (LAPA) Seminar at Princeton University last Monday.  Think Dalton Trumbo meets Don Draper! 

• While we're mentioning LAPA events, the program hosts a book talk by Sophia Lee, Penn Law, on The Workplace Constitution from the New Deal to the New Right (Cambridge University Press, 2014) on Monday, October 26, at 12:15, and a workshop presentation by my fellow LAPA Fellow Sherally Munshi on Immigration, Imperialism, and the Legacies of Indian Exclusion.  DRE 

• Welcome to the Blogosphere: The Historical Society of the New York Courts has a blog! 

• Duke U. Observes 100th Birthday of John Hope Franklin: We missed the Oct. 15 lecture by Thomas C. Holt, “John Hope Franklin and the Black Intellectuals of The Greatest Generation,” but other events (including a symposium featuring Harvard's Drew Faust) are upcoming.

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

CFP: Comparative Legal Profession Histories

[We have the following call for papers and/or panels.]  The Seventh International Legal Ethics Conference (ILEC VII) will take place at Fordham Law School in New York City from July 14 to 16, 2016.  Planners are currently seeking presentations for a panel on “Comparative Legal Profession Histories.”  Interested participants should send their CVs and paper/presentation abstracts to scarle@wcl.american.edu by Nov. 1, 2015.  

Christopher Waldrep: Scholarship, Teaching, and Professional Citizenship

Christopher Waldrep (SFSU)

Earlier this week, Charles Zelden, the lead editor of H-Law, noted the following announcement on the website of the American Society for Legal History, regarding the ASLH’s upcoming annual meeting in Washington, DC:

We are pleased to announce that arrangements have been made for Christopher Waldrep to attend the roundtable session in his honor [“Christopher Waldrep: Scholarship, Teaching, and Professional Citizenship”] during the 3:30-4:30 panel slot on Friday, October 30th. Chris was the founding editor of H-Law and wrote extensively on constitutional themes in the southern United States before a tragic accident compelled him to retire.

Professor Zelden notes that Professor Waldrep was H-Law’s founding editor and the lead editor for eighteen of H-Law’s twenty-two years.  “Without Chris, there would have been no H-Law,” Professor Zelden writes.  “ Everyone who is planning on attending this year’s ASLH is invited to attend this roundtable which will include commentary on Chris and the creation of H-Law, his scholarship and his teaching.”

Western New York Women Pioneers in the Law

[Here’s another event sponsored by the Historical Society of the New York Courts.]

Western New York Women Pioneers in the Law: A Celebration.  Presented by The Historical Society of the N.Y. Courts, SUNY Buffalo Law School, & Phillips Lytle LLP.  Thursday, November 5, 2015, 5:30-7:00 PM,SUNY Buffalo Law School, UB North Campus, John Lord O'Brian Hall, Rm. 106, Buffalo, NY 14260.

Post-Program Reception - Open to Everyone! Join us at the reception proceeding the program where you'll be able to mingle with program participants and invited guests. This reception is free and open to everyone.

Introductory remarks by Hon. Eugene F. Pigott, Jr., Associate Judge N.Y. Court of Appeals, Hon. Paula L. Feroleto, Administrative Judge, 8th Judicial District and James A. Gardner, Interim Dean, SUNY Buffalo Law School.

This program, moderated by Hon. Albert M. Rosenblatt (former Associate Judge NY Court of Appeals and President, The Historical Society of the New York Courts) will look at the contributions of women from western New York to our legal heritage and will highlight:

Belva Lockwood, 1915 (LC)

Belva B. Lockwood, First woman admitted to practice before the U.S. Supreme Court. Presented by Hon. Erin M. Peradotto, Associate Justice, Appellate Division, Fourth Judicial Department.

Kate Stoneman, First woman admitted to practice in New York. Presented by Michelle Henry, County Historian, Chautauqua County.

Helen Z.M. Rodgers, First woman graduate of Buffalo Law School. Presented by Bernadette Gargano, Lecturer in Law, Legal Analysis, Writing and Research, SUNY Buffalo Law School.

Charlotte Smallwood-Cook, First woman District Attorney in New York (Wyoming County, 1950-1953). Presented by Michael B. Powers, Clarence Town Justice, Partner at Phillips Lytle LLP.

Shirley St. Hill Chisholm, First African-American woman elected to the U.S. Congress (NY 12th District, 1969-1983). Presented by Brian Higgins, United States Congressman, 26th Congressional District of N.Y.

Women Attorney Trailblazers in New York State Exhibit.  You are invited to visit the display which will be set up nearby.  A display created by the NYS Bar Association’s Committee on Women in the Law will be available for viewing the evening of the program. This exhibit highlights 10 women lawyers who made significant contributions in the legal profession, after overcoming gender barriers and, in some cases, racial discrimination, paving the way for generations of women attorneys to come.

Roberts, CJ, to Lecture on Hughes, CJ

Charles Evans Hughes et al. (LC)

The Historical Society of the New York Courts announces Nominated from New York: Charles Evans Hughes: Chief Justice of the U.S., to take place on Friday, November 20, 2015, from 6:30-7:30 PM in the Tishman Auditorium.  “We are pleased to present a program featuring The Hon. John G. Roberts, Jr., Chief Justice of the U.S.," writes the Society.  "The Chief Justice will speak on Charles Evans Hughes and will be followed by an interview.”  

We can’t say we're surprised.

Libel law and "image consciousness"

In my book Laws of Image: Privacy and Publicity in America, and in my posts on the Legal History Blog this month, I've described how an emerging cultural sensibility in the first half of the 20th century -- an "image conscious sensibility," concern with one's public image and self-presentation in public -- was reflected in the creation and development of tort privacy law in the U.S. "Image consciousness" also shaped the modern law of libel.

Traditionally, the tort of libel protected reputation -- one's good name among one's peers. A defamatory or libelous statement was one that seriously lowered a person's esteem in his community: it exposed a person to "hatred" or "contempt," "injured him in his profession or trade, [and] caused him to be shunned or avoided by his neighbors."

By 1930, some courts were broadening the definition of a defamatory publication to include statements that didn't necessarily lower a person's reputation, but nonetheless caused distress and embarrassment. A publication could be defamatory if it tarnished a person's image in his own eyes, causing emotional distress.

Stanislaus Zbyszko (credit)

In Zbyszko v. New York American, from 1929, the newspaper published an article on the theory of evolution. In one part of the article, the text read: "The Gorilla is probably closer to man, both in body and in brain, than any other species of ape now alive. The general physique of the Gorilla is closely similar to an athletic man of today, and the mind of a young gorilla is much like the mind of a human baby." Near that text appeared a photograph of the well-known wrestler Stanislaus Zbyszko, in a wrestling pose, and under it a caption: "Stanislaus Zbyszko, Not Fundamentally Different from the Gorilla in Physique." He sued the New York American for libel. Though it was unlikely that anyone would think worse of the wrestler for the article, a jury sympathized with his sense of affront and awarded him $25,000.

Legal scholars observed an "increasing tendency" among courts in defamation cases to go "beyond the traditional reaches" of the protection of reputation to protect plaintiffs against "personal humiliation and degradation." A reflection of the image-conscious sensibility, courts were expanding libel's domain from external, interpersonal relations to include self-perception and one's feelings about one's public image.

Thomas and Boisseau on the ERA as the "Next Logical Step"

Tracy A. Thomas, University of Akron School of Law, and Tracey Jean Boisseau, University of Akron, have posted After Suffrage Comes Equal Rights? ERA as the Next Logical Step, which is forthcoming in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism, ed. Lee Ann Banaszak and Holly McCammon (Oxford University Press, 2016):

Alice Paul, September 1920 (LC)

Almost a full century in the making, the campaign for an ERA far exceeded in longevity the campaign for woman suffrage, however much a “logical next step” women's equality seemed to some following the spectacular achievement of the Nineteenth Amendment. The history of the amendment reveals how resistant to the idea of equality between men and women a political system -- even one that includes women as voters -- can be. In this chapter, we re-examine the route taken by the ERA through its many permutations in the century since the passage of woman suffrage. Proposed by Alice Paul in 1923 and immediately opposed by social feminists advocating protective labor laws, the ERA wound itself in and out of feminist, conservative, and public favor before its final defeat in 1982, three states short of adoption. Woven into the Supreme Court's analysis of Lochner and substantive due process, and the later evolution of equal protection law, women's equality -- or difference -- has been the foundation of much of the development of modern constitutional doctrine.

Samito on Military Service, Citizenship and the Irish during the Civil War

Christian G. Samito has posted Thomas F. Meagher, Patrick R. Guiney, and the Meaning of the Civil War for Irish America: The Questions of Nationalism, Citizenship, and Human Rights, which appeared in So Conceived and So Dedicated: Intellectual Life in the Civil War-Era North, ed. Lorien Foote and Kanisorn Wongsrichanalai (Fordham University Press, 2015):

In this essay, I examine how two Irish American leaders considered, and helped to shape, several threads within the transformation of American nationalism that took place during the Civil War era. Both men went further than simply urging devotion to the Union; they interpreted military service to that cause as a way for Irish Americans to claim fuller inclusion in the American people. As I show, Meagher and Guiney point to a more nuanced possibility than is offered by most historians who debate whether Irish American service to the Union helped accelerate assimilation of their ethnic community into American society: fuller integration alongside maintenance of an ethnic and religious identity. As a part of this impulse, Meagher and Guiney envisioned a more robust and better defined concept of American national citizenship in law and practice, one that incorporated greater protection for naturalized citizens abroad and a stronger emphasis on human rights overall. Moreover, in the context of war, both men underwent a political transformation to espouse the ideals of the Republican Party regardless of the criticism aimed at them by some of their fellow Irish Americans for doing so. While Meagher died early in Reconstruction, Guiney revealed the depth to which he embraced Republican egalitarianism by serving as a vocal proponent of its principles during his postwar political career in Boston. Meagher and Guiney not only contributed to the Union by serving in its army but also by helping to interpret the ideological meaning of its victory.

Jus Gentium: A Journal of International Legal History

[Via H-Law, we have the following announcement.]

Talbot Publishing [an imprint of The Lawbook Exchange, Ltd.] is pleased to announce the publication of a new legal history journal. Jus Gentium Journal of International Legal History is the first dedicated journal in the United States to address the history of international law. Much of modern scholarship on the history of international law is preoccupied not with international law, but with international legal doctrine; the doctrinal writings of remarkably few individuals dominate the discourse while the rest remain unseen or overlooked. This journal will encourage further exploration in the archives, for new materials and confirmation of the accuracy of past uses, but welcoming the continued reassessment of international legal history in all of its dimensions.

Jus Gentium is a biannual interdisciplinary journal commencing January 2016. The journal welcomes, in addition to the classical learned article, biographical or historiographical materials on international lawyers, newly-discovered, newly-identified, or newly-translated primary and secondary sources of State practice or doctrinal gloss, analytical reviews of old or new literature, fragments of diplomatic or military history that inform the presence or absence of opinio juris, memoirs or recollections of international legal practitioners in the broadest sense of the word, inquiries into the lexicon of international law, materials that illuminate non-European contributions to the law of nations or that document the migration of international legal concepts from one part of the globe to another. The contributions of the auxiliary historical sciences (numismatics, bookplates, philately, archaeology, etc.) are as welcome as are those of our sister social sciences. Bibliographical essays and review articles are welcome, as are appropriate guides to other international legal materials that will benefit historians of international law. To the extent we are able to do so, we will notice publications in some of the lesser known languages and invite authors or publishers to bring these to our attention.

We are currently accepting submissions for papers, essays and book reviews. Submissions may be made by hard copy submitted through a courier or postal service or by e-mail attachment (web15@psu.edu) in Microsoft Word. These are subject to peer review; responses of acceptance or otherwise will be made as promptly as possible. Interested authors may see our website for instructions on submissions.

EDITOR

William E. Butler, John Edward Fowler Distinguished Professor of Law and International Affairs, Pennsylvania State University

EDITORIAL BOARD
Jean Allain, Queen's University, Belfast
Olga V. Butkevych, Kyiv Shevchenko National University
Volodymyr Butkevych, Sometime Judge, European Court of Human Rights
Chen Yifeng, Peking University Law School
Vincent Chetail, Graduate Institute of International and Development Studies, Geneva
Mark Janis, University of Connecticut School of Law; Visiting Fellow, University of Oxford
Arnulf Becker Lorca, Brown University
Peter Macalister-Smith, Ph.D., Max Planck Institute for Comparative Public Law and  International Law, Heidelberg, Germany
Oleksandr Merezhko, Andrzej Frycz Modrzewski Krakow University
Stephen Neff, University of Edinburgh
Alexander Orakhelashvili, University of Birmingham, England
Michael Palmer, University of London SOAS & IALS
Gennadii S. Starodubtsev, Russian University of Friendship of Peoples, Moscow
Alexander Vylegzhanin, Moscow State Institute of International Relations

Walter Muir Whitehill Prize in Early American History

The Colonial Society of Massachusetts announces the 2015 Walter Muir Whitehill Prize in Early American History.  This prize of $2500, established in memory of Walter Muir Whitehill, for many years Editor of Publications for the Colonial Society and the moving force behind the organization, will be awarded for a distinguished essay on early American history (up to 1825), not previously published, with preference being given to New England subjects. The Society hopes that the prize may be awarded annually.

A committee of eminent historians—Douglas Anderson of the University of Colorado, David Hall of the Harvard Divinity School, and Mary Beth Norton of Cornell University—will review the essays. Their decision in all cases will be final.

By arrangement with the editors of the New England Quarterly, the society will have the winning essay published in an appropriate issue of the Journal.  Essays are now being accepted for consideration. All manuscripts submitted for the 2015 prize must be postmarked no later than 31 December 2015. The Society expects to announce the winning candidate in the spring of 2016.  Entries submitted for consideration should be addressed to:

Whitehill Prize Committee
The New England Quarterly
Department Of History
University of Massachusetts, Boston
100 Morrissey Blvd.

A paper on legal history was a recent winner: Ian Saxine, "The Performance of Peace: Indians, Speculators, and the Politics of Property on the Maine Frontier, 1735-1737,” NEQ 87:3 (September 2014).  A complete list of past winners is here.

Walker on Race and City-County Politics in St. Louis

Anders Walker, Saint Louis University School of Law, has posted House to House: Mergers, Annexations, & the Racial Implications of City-County Politics in St. Louis, which appeared in the St. Louis University Public Law Review 34 (2014):

According to most scholars, Jim Crow's death elevated African Americans even as white departures depressed them, condemning blacks to isolated neighborhoods, segregated schools, and crumbling urban cores. To counter such reversals, liberals endorsed the consolidation of urban and suburban zones, hoping that such moves might thwart flight, promote integration, and ameliorate the effects of what scholars began in the 1970s to term “institutional” or “structural” racism. Initially such efforts focused primarily on schools, but quickly expanded to include other types of consolidation as well, including the consolidation, or merger, of major metropolitan areas and surrounding counties. While the rubric of consolidation has tended to enjoy a progressive cast, certain aspects of metropolitan mergers bode ill for African Americans, particularly in the area of electoral influence. For example, St. Louis City boasts a comparative black majority of 47.9% (with whites totaling 46.4% and Asians 3.1%), while the adjoining county claims only 23.7% African American residents. As this essay shall demonstrate, full integration of the two entities would lead blacks to lose significant electoral clout, particularly over county positions like the prosecutor's office, leaving them politically weaker across the board.

CFP: Constitutional History: Comparative Perspectives

[Via Balkinization, we have the following announcement.  We're guessing it's a companion conference to this.]

Paper proposals are invited for the Second Annual Illinois-Bologna conference on Constitutional History: Comparative Perspectives.  The conference will be held in Chicago on April 12 & 13, 2016.  It is sponsored by University of Illinois College of Law, University of Bologna School of Law, Center for Constitutional Studies and Democratic Development, University of Illinois Law Review.   The conference keynote speaker will be Justice Rosalie Silberman Abella of the Supreme Court of Canada.

Accompanying the spread of constitutional government around the world has been a profound interest in the comparative aspects of constitutional law. Scholars have catalogued the differing features of national constitutions and examined how different constitutional systems resolve common legal issues. So, too, judges faced with legal questions have sought guidance in the decisions of constitutional courts of other nations. While comparative constitutional law is therefore a well-established field, less attention has been paid so far to the comparative dimensions of constitutional history. This international conference aims to address that shortcoming by energizing the study and analysis of constitutional history from comparative perspectives. The conference has several interrelated goals. It will provide a forum for presentation and discussion of current research on issues of constitutional history that crosses national boundaries. Relevant topics in this regard include such things as the origins of constitutional governments in different nations, changes in constitutional structures over time, comparative studies of the shifting roles of constitutional actors, the development of individual rights in different systems, and the legitimacy and longevity of constitutions in various nations. The conference will also bring together scholars who, at present, are working on constitutional histories of single jurisdictions—with the expectation that conversations among these scholars will allow for sharing of methodologies and point also to fresh areas of research that may transcend national boundaries. In addition, the conference has relevance to the task of judging. In some nations, notably the United States, constitutional history plays an important and sometimes decisive role in the resolution by courts of questions of constitutional law. The conference will take up the place of constitutional history in constitutional adjudication. By comparing the practices of courts around the world, the conference will trace the movement (or not) of constitutional history from the academy to the courthouse and examine the risks and benefits of modern practices.

Scholars interested in presenting a paper at the conference should e-mail a title and summary of the proposed paper along with a CV to Professor Jason Mazzone at mazzonej[@]illinois.edu. Proposals received by November 1, 2015 will receive priority. After that date, submitted proposals will be considered only if space remains.

Papers from the conference will be published in the University of Illinois Law Review.  Conference participants are responsible for their own travel and accommodation expenses.

Privacy and Public Image

By 1940, the tort action for invasion of privacy had been recognized in fifteen jurisdictions. The Restatement of Torts acknowledged it in 1939: "a person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other."

Most privacy lawsuits were brought against the media, and most did not involve publications that were especially "private." A number of privacy suits involved pictures of a person taken on the street and published without consent. In these cases, the law of privacy had little to do with "privacy." No exposure of private life had occurred. "Privacy" was about shielding people from publicity they found unfavorable, misrepresentative, or annoying -- that clashed with how they wanted to be known to others.

In Jones v. Herald Post (1929), Lillian Jones witnessed her husband assaulted and stabbed to death on the street, and she tried to fight back against the attackers. She sued for invasion of privacy when the Louisville Herald Post published her picture with a truthful account of her heroic efforts. She said that the publication was offensive to her.

The plaintiff in the 1931 case Blumenthal v. Picture Classics was an elderly woman, a street vendor, who sued over newsreel footage that depicted her on the streets of New York. The footage was candid and unaltered; she was in the film for six seconds. She complained that the portrayal was "foolish, unnatural, and undignified" and an invasion of privacy. In Sweenek v. Pathe, from 1936, a woman claimed that unauthorized newsreel footage taken of her in an exercise course for overweight women was an invasion of privacy because the footage was embarrassing.

As I argue in Laws of Image: Privacy and Publicity in America, it's only in a culture where people feel possessive and protective of their images that such representations, even if objectively benign, will be experienced as significant harms. Only in a culture that has invested great importance in images, that has freighted personal images with emotional and psychological weight, will the law recognize these kinds of harms and take them seriously. The law tracked American culture's focus on images; in recognizing these privacy claims as worthy of judicial attention, and monetary judgments in some cases, courts validated the "image-conscious sensibility" and the modern image-conscious self.

Goelzhauser on "Graveyard Dissents on the Burger Court"

In plenty of time for Halloween, Greg Goelzhauser, Utah State University, Political Science, has posted Graveyard Dissents on the Burger Court, which appeared in the Journal of Supreme Court History 40 (2015): 188-202.

Chief Justice Burger (LC)

A graveyard dissent occurs when a justice silently acquiesces to the majority disposition and opinion rather than writing separately despite continuing disagreement. Although graveyard dissents were common during the early period of the Court’s history, their continued use in the modern era is puzzling in light of the rise and ubiquity of separate opinion writing. Moreover, voting contrary to one’s sincere preference conflicts with legal and policy based explanations for judicial decision-making. Unfortunately, the systematic exploration of graveyard dissents has been limited by a difficult observational problem: by definition, explanations for this posture are not available in opinions and are otherwise scant in the existing literature. In this article, I leverage memoranda exchanged between justices during the Burger Court era to explain what motivates graveyard dissents. The archival evidence suggests that graveyard dissents are often motivated by institutional time constraints, perceptions of case importance, and the dissolution of minority coalitions. The results shed new light on a puzzling and persistent institutional norm while potentially helping to explain the recent increase in consensus on the contemporary Court.

H/t: Legal Theory Blog

Tomlins on Adelaide's Blackstone

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social PolicyProgram, has posted Adelaide's Blackstone, which is forthcoming in the Adelaide Law Review.

This essay is an extended commentary on the recently-published (2014) essay collection entitled Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts, edited by Wilfrid Prest. The collection is an important element in an ongoing multi-year project of engagement with Blackstone based at the University of Adelaide. It has staked out an ambitious interpretive terrain. In matters of interpretation, essayists move beyond legal analysis and legal history to literary criticism and art history. In assessing the Commentaries’ dissemination and impact, they pursue Blackstone beyond the usual concentration on the British Atlantic world into new, less familiar climes – the French Atlantic (Louisiana and Quebec) and Australasia. In charting the Commentaries’ influence, finally, Re-Interpreting Blackstone’s Commentaries is both enjoyable and instructive. Given the challenge of circumstance – an exceptionally familiar work written by a ‘conventionally dull’ man – this is no small achievement. The essay concludes with commentary on the place of Blackstone in the history of Australian settler-colonialism, with particular reference to the leading "native title" (indigenous land rights) cases of the past half century. It reflects on the place of history in native title litigation, and also on the meaning of resort to Blackstone by indigenous activists and their allies.
they move beyond the history of common law adjudication to the distinctly contemporary subject of American constitutional originalism and its genealogy. The essay finds that

[Update: The TOC of Reinterpreting Blackstone's Commentaries is here.]

Sunday Book Roundup

In Dissent, Amy Dru Stanley reviews Alex Gourevitch's From Slavery to the Cooperative Commonwealth: Labor and Republican Liberty in the Nineteenth Century (Cambridge University Press).

"Gourevitch explores a dissident republican tradition that developed in the century after the American Revolution, amid the contest over chattel slavery and the ascendance of industrial capitalism—a time when freedom was universalized, ex-slaves became equal citizens under the rule of law, and the wage system of labor prevailed throughout the country.  And in this history he discovers a usable past for critics of modern forms of economic domination that erode public life."

Bryan R. Early's Busted Sanctions: Explaining Why Economic Sanctions Fail (Stanford University Press) is reviewed on H-Net.

The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer & Fanny Hill by the Lawyer Who Defended Them (Open Road Media) by Charles Rembar is reviewed on the Los Angeles Review of Books.

New Books in History talks with Lawrence M. Friedman about his latest, The Big Trial: Law as Public Spectacle (University Press of Kansas).

They also interview David Frick about his book, Kith, Kin and Neighbors: Communities and Confessions in Seventeenth-Century Wilno (Cornell University Press).

"He weaves in birth, marriage and death records, litigation filed by citizens against each other, as well as guild and poor relief roles, to demonstrate the "practices of toleration" that allowed Vilnans to cross confessional boundaries and to define separate identities."

A Nation of Nations: A Great American Immigration Story by Tom Gjelten (Simon & Schuster) is reviewed in The Washington Post.

"Gjelten has produced a compelling and informative account of the impact of the 1965 reforms, one that is indispensable reading at a time when anti-immigrant demagoguery has again found its way onto the main stage of political discourse."

The Post also has a review of Lillian Faderman's The Gay Revolution: The Story of the Struggle (Simon & Schuster).

Weekend Roundup

• It is invitation-only, but LHB readers might be interested anyway: The conference, The Laws of War as an International Regime: History, Theory, and Prospects, sponsored by the Niehaus Center for Globalization and Governance, will take place at Princeton University on October 16-17, 2015. 

•  Via HNN, a very cool graphic that let's one browse Yale's collection Farm Security Administration photographs, including this one from my hometown of Dubuque, Iowa, by John Vachon.  DRE

• According to the Legal Intelligencer, on October 17, the attorney Malcolm J. Gross will speak to the Lehigh County Bar Association at Gettysburg on "The Gettysburg Address: Its Roots, Constitutional Background, and Importance in American Legal History."  On December 1, he will speak to the same group on "Oliver Wendell Holmes, His Background and Legacy" on Dec. 1.  He has already addressed the Monroe County Bar Association on "Thaddeus Stevens, Assemblyman, Congressman, Abolitionist, Pennsylvania Lawyer."

• The Latin American and Caribbean Digital Primary Sources site is now available for consultation.  

• Did everyone else know about the existence of the Index to Law School Alumni Publications and decide not to tell us? #saveopenstacks

• Dr Miriam Aziz, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, has posted a film of the 4th Max Planck Master Class in International Law with Professor Emmanuelle Tourme-Jouannet of Sciences Po.  She writes that “the project fused my passion for art and ideas about the law and the choreography of global academic cultures” and that it is about “a masterclass as a performance of the art of the legal academy.”

• The Idaho Press Tribune recently ran a story on the federal judge who decided Reed v. Reed (Charles R. Donaldson), written by David Adler, President of the Sun Valley Institute, who is writing a book about the case.

• Via Indian Country Today: “The University of Oklahoma Board of Regents has named Dr. Lindsay Robertson the first Chickasaw Nation Native American Law Chair at the University of Oklahoma College of Law.”  Professor Robertson holds a PhD in history from the University of Virginia and is on the program for that conference in honor of Charles McCurdy early next month.  He is the author of Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford University Press, 2005).

• On October 6, Rebecca J. Scott, University of Michigan and President-Elect of the American Society for Legal History, presented in Michigan’s legal history workshop on “‘Acts of Ownership and Authority': The Enslavement of Eulalie Oliveau.”  H/t: Legal Scholarship Blog

• Update: The Chattanoogan reports that "Lee University hosted the Constitution Bowl, bringing to its campus local high schools to compete in a political science quiz over the Constitution and other documents."

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Wright on the Public/Private Binary and Family Law History

Danaya C. Wright, University of Florida Levin College of Law, has posted Theorizing History: Separate Spheres, the Public/Private Binary and a New Analytic for Family Law History, which appeared in 2012 ANZLHS Ejournal as Refereed Paper 2:    

There is an extensive scholarship on separate spheres, the public/private binary, and family history that reveals a nuanced understanding of the interconnections and constructedness of these metaphors and rubrics traditionally used in family law history. In exploring the current understandings and limitations of these subjects as analytics for doing my own history of English family law, I turn to Michelle Zimbalist Rosaldo’s critique that we limit our subjects and reinforce power differentials when we use a lens of difference in our scholarship. I first explore the lessons learned about the enduring nature of separate spheres and the power imbalances of the public/private binary in terms of their implications for family law, and try to bring these diverse areas of scholarship together to reflect on the narrow project of family law history. Then I propose a new approach that focuses on the paths not taken, the reforms that were blocked, as providing one way to get around some of the limitations of separate spheres and reveal the stark relations of power in modern constructions of the family and the state.

Image-consciousness and the Law

In my book Laws of Image: Privacy and Publicity in America, I chronicle the rise of what I describe as "laws of image" in the twentieth century, and the phenomenon of "personal image litigation." These legal developments tracked an image-consciousness in American culture -- our fascination with our looks, public personas, and the impressions that we make.

An especially intense brand of image-consciousness took root in the 1920s, an age when consumer culture and mass entertainment assumed a central position in American life, and when advertising, fashion, celebrity, and the media became important arbiters of values and conduct.

1925 beauty ad (credit) 

New visual media, such as photography, photojournalism, and motion pictures, accentuated the importance of appearances and created the sense of being subjected to the critical gaze of others. Images had become part of the public landscape, appearing on billboards, product packaging, and movie screens. Film stars, who exercised meticulous control of their images, became role models and icons, modal selves in a culture where the key to success was seen as the ability to create a pleasing image to amuse and impress others.

The emerging advertising industry, in conjunction with the new field of popular psychology, promised people that they could use conspicuous consumption to achieve a stunning image and distinguish themselves from the crowd. Advertisements played upon popular insecurities with identity and appearance, and they reinforced the perception that images were essential to social advancement. As an ad for Woodbury's Soap warned: "Strangers' eyes, keen and critical -- can you meet them proudly -- confidently -- without fear?" In the social world depicted in 1920s ads, the potential for humiliation, shame, and social failure lurked everywhere.

Monti on the Italian Business Firm in the Late 19th Century

Annamaria Monti, Bocconi University Department of Law, has posted Form, Size, 'Governance'. Remarks on Italian Late 19th-Century Companies, a paper presented at the workshop The Small, Medium-Sized and Large Company in Law and Economic Practice (Middle Ages-Nineteenth Century), Brussels, May 2015.  Here is the abstract:    

The late 19th century Italian experience concerning form, size and governance of companies and partnerships limited by shares represents a good case study in the contemporary European context, especially for the coexistence of small and big companies, each with a specific role and different needs.

Moreover, neither the few big businesses nor the many smaller companies chose the classical corporation form, namely a company limited by shares, which in Italy, as in France, was called società anonima.

At least at the beginning of their business activities, they mainly preferred the juridical form of the so called accomandita per azioni, i.e. partnerships limited by shares, where in addition to one or more general partners who didn’t enjoy limited liability, there were one or more limited partners, i.e. partners with limited liability. And this was for different reasons which I am going to discuss in the paper.

Law and Governance in pre-Modern Britain

[Via H-Law, we have an announcement for the conference Law and Governance in pre-Modern Britain, October 23-24, 2015.]

Law and Governance in pre-Modern Britain is the fifth conference on this general theme held at Western University, London, Ontario, Canada, and the second to focus entirely on the pre-modern period. The theme of the conference is intentionally broad, and the speakers have been asked simply to talk about whatever aspect of their research interests them most at the time.

Over the course of two days we will hear from an international group of leading legal historians with interests in crime, religion, the intersection of laws, the development of the profession, pardon, prison, process and trade. The range of topics is broad but their intersections are complex and varied. Two of the speakers are involved with the Early English Laws project to re-edit and translate all English legal texts written before Magna Carta, and thus are playing a role in revolutionizing the way we access sources and conduct research. Three are authors of volumes of the Oxford History of the Laws of England, either in print or in preparation, and thus are shaping the way we will understand the field for a generation.

The conference will take place in the Moot Court room of the Faculty of Law, and the atmosphere will be informal, with ample opportunity for discussion and conversation during breaks or over the conference lunch or Friday night dinner. Registration is available online, but will also be available on-site at the time of the conference. Space at the conference dinner on Friday evening is limited: early booking is strongly recommended and no bookings will be taken after October 19.

[Update: The draft program is here.]

Entick v. Carrington 250 Years On

Hart Publishing announces Entick v Carrington: 250 Years of the Rule of Law, edited by Adam Tomkins, John Millar Professor of Public Law at the University of Glasgow, and Paul Scott,  Lecturer in Public Law at the University of Southampton.

Entick v Carrington is one of the canons of English public law and in 2015 it is 250 years old. In 1762 the Earl of Halifax, one of His Majesty’s Principal Secretaries of State, despatched Nathan Carrington and three other of the King’s messengers to John Entick’s house in Stepney. They broke into his house, seizing his papers and causing significant damage. Why? Because he was said to have written seditious papers published in the Monitor. Entick sued Carrington and the other messengers for trespass. The defendants argued that the Earl of Halifax had given them legal authority to act as they had. Lord Camden ruled firmly in Entick’s favour, holding that the warrant of a Secretary of State could not render lawful actions such as these which were otherwise unlawful.

The case is a canonical statement of the common law’s commitment to the constitutional principle of the rule of law. In this collection, leading public lawyers reflect on the history of the case, the enduring importance of the legal principles for which it stands, and the broader implications of Entick v Carrington 250 years on.

TOC after the jump.

Johnson on Chae Chan Ping

Kit Johnson, University of Oklahoma College of Law, has posted Chae Chan Ping at 125: An Introduction, Oklahoma Law Review 68 (2015):

In 2014, the University of Oklahoma College of Law held a symposium to mark the 125th anniversary of the U.S. Supreme Court opinion in Chae Chan Ping v. United States, 130 U.S. 581 (1889), also known as the Chinese Exclusion Case. Chae Chan Ping was a Chinese migrant who had lived in the United States for 12 years before he left the country, which he did only after obtaining legal permission to return. While Chae Chan Ping was at sea on his way back to the United States, Congress passed a law revoking reentry certificates for Chinese migrants, and Chae Chan Ping was denied reentry. A unanimous Supreme Court determined that Congress’ decision to revoke the reentry certificates was “conclusive upon the judiciary.” That holding has become known as the “plenary power doctrine,” and it has been foundational to constitutional immigration jurisprudence. Under this doctrine, any laws passed by Congress with respect to immigration, even those that would be unconstitutional if applied to citizens, are not subject to judicial challenge. In this introduction, I explain the relevance of this seminal decision and introduce the symposium contributions.

H/t: Legal Theory Blog

Arbitration in Historical Perspective: A Symposium and Student Writing Competition

[We have the following announcement.]

William Blackstone, via the CSDR

A student writing competition is being organized in conjunction with the annual symposium convened by the Center for the Study of Dispute Resolution at the University of Missouri School of Law.  This year’s symposium is convened by Prof. Carli Conklin and is entitled “Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective.”  The symposium features Professor James Oldham, the St. Thomas More Professor of Law and Legal History at Georgetown University Law Center, as keynote speaker as well as expert panelists from England and the United States.

The competition is sponsored by the Center for the Study of Dispute Resolution and offers a $500 prize to the competition winner.  The author of the winning paper may be invited to publish the winning submission in the symposium issue of the Journal of Dispute Resolution, subject to the agreement of both the editors of the Journal of Dispute Resolution and the winning author.

Submissions should bear some relationship to the history of dispute or conflict resolution, broadly defined.  Topics may therefore consider issues relating to the historic development of international or domestic negotiation, mediation, conciliation and/or arbitration, among other things.  There is no requirement that papers discuss U.S. law.  Papers must be received no later than 11:59 p.m., Central time, on Monday, November 9, 2015.

Further information on the writing competition is available on the symposium website.

Questions may be directed to:
Professor S.I. Strong
University of Missouri School of Law
Email:  strongsi@missouri.edu
Tel.:  +1 573 882 2465

An Oral History of an African American JAG (1943-46)

We recently noticed Major Dan Dalrymple’s An Extraordinary Life Span: A Summary and Analysis of an Oral History of the Honorable William A. McClain, United States Army (1943-1946), which appeared in the Military Law Review 218 (2013): 196-227.  (The link is to the entire issue.)  Cribbing from the introduction:

William A. McClain (Credit: CHLA)

William A. McClain was a World War II era African American Judge Advocate.  While his longevity in years is noteworthy by itself, more so is the scope of his achievements and the constellation of personal connections he forged.  Born into poverty in the Jim Crow South, he rose to become an accomplished orator, lawyer, judge advocate, city solicitor, state court judge, and leader in the civil rights movement.  Along the way, he broke down racial barriers, often with the help of white teachers and colleagues, as well as the personal involvement of a governor, senator, and future Supreme Court Justice.  Many of his professional accomplishments occurred in the City of Cincinnati, a conservative bastion, and hotbed for racial unrest.

This article is a summary and analysis of interviews conducted with the Honorable William A. McClain in 1999 and 2003, interviews later transcribed and bound in An Oral History of William A. McClain, which is maintained at the Library of The Judge Advocate General’s Legal Center and School, United States Army, Charlottesville, Virginia.

Judge McClain’s papers are at the Cincinnati History Library and Archives, Cincinnati Museum Center.

The Nancy Weiss Malkiel Fellowship for Junior Faculty

[We have the following announcement.]

The Woodrow Wilson National Fellowship Foundation is proud to announce a one-time, highly selective fellowship for junior faculty, created in honor of Nancy Weiss Malkiel, a 1965 Woodrow Wilson Fellow, distinguished historian, and longtime Princeton dean.

The Nancy Weiss Malkiel Fellowship, created on the occasion of Dr. Malkiel’s 40th year of service on the Woodrow Wilson Foundation Board, is designed to support junior faculty as they work towards achieving tenure. Five 12-month awards of $10,000 will be made in the 2015–16 academic year.

This one-time Fellowship program will support a small cadre of emerging faculty leaders whose careers promise—like Dr. Malkiel’s—to play a significant role in shaping American higher education. Applicants, who must have passed their third-year review no later than January 29, 2016, may be working in any field of the humanities or social sciences. Preference will be given to those addressing topics related to 20th- and 21st-century American history, politics, culture, and society, with emphases including but not limited to African American issues, women’s issues, and/or higher education. Applications are due by December 1, 2015.

To learn more about the Malkiel Fellowship and download a brochure, please visit http://www.woodrow.org/fellowships/nwmfellowship. Please feel free to share this information widely and post it to whatever listservs and social media channels you use. We are eager to hear from your very best candidates.

Stephanie J. Hull, Ph.D. 
Executive Vice President and Chief Operating Officer
The Woodrow Wilson National Fellowship Foundation
5 Vaughn Drive, Suite 300, Princeton, NJ 08540
T: 609.452.7007 x115   |   hull@woodrow.org

O'Connor on the Lost "Art": of the Patent System

Sean M. O'Connor, University of Washington School of Law, has posted The Lost “Art” of the Patent System, which appears in the University of Illinois Law Review 2015: 1397-1478:

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause. Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production. The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over the proper scope and nature of the patent system, especially with regard to upstream patenting. I argue that this loss is leading to over- and underinclusive senses of patent eligible subject matter as well as amnesia as to the long-standing importance of method patents. I offer suggestions on how to reorient the patent system back to a focus on (useful) ‘‘art.’’

Morrison v. Olsen: The Oral Argument Reenacted

[We have the following announcement of a reenactment of the oral argument in Morrison v. Olson.  Early arrivers for the ASLH meeting take special note!]

The Historical Society of the District of Columbia presents Separation of Powers and the Independent Counsel: Morrison v. Olson Revisited, Wednesday, October 28, 2015, 4:30 p.m. – 6:00 p.m., Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.

In the 1980s, the Executive and Legislative Branches engaged in a titanic battle over production of internal EPA documents. Acting under the Ethics in Government Act, the Special Division of the D.C. Circuit Court appointed an Independent Counsel to investigate the role of the Department of Justice, particularly Theodore B. Olson, then Assistant Attorney General, Office of Legal Counsel, in allegedly obstructing the congressional investigation. Subpoenaed to appear before a grand jury, Olson moved to quash, arguing that the Independent Counsel statute violated the constitutional doctrine of separation of powers by vesting the appointment authority in an Article III court rather than in the Executive Branch. The Court of Appeals agreed with Olson that the statute violated the separation of powers doctrine (opinion by Judge Silberman, joined by Judge Williams; dissenting opinion by then-Judge Ruth Bader Ginsburg). On further review in Morrison v. Olson, the Supreme Court rejected the separation of powers challenge and upheld the statute.

Our program will include a reenactment of the separation of powers arguments presented to the Court of Appeals, followed by a panel discussion. Professor Amanda Frost will set the stage. Theodore Olson will represent himself [emphasis supplied], Catherine Stetson will argue for the Independent Counsel, and Judge Laurence Silberman will sit as the Judge. Former Judge Patricia Wald will moderate a discussion focused on the separation of powers doctrine, the influence of the Court of Appeals and subsequent Supreme Court decisions, and the case’s legacy today.

Setting the Stage
Amanda Frost, Professor of Law, American University, Washington College of Law

Reenactment
For appellants, Theodore B. Olson, Gibson Dunn & Crutcher LLP
For Independent Counsel, Catherine E. Stetson, HoganLovells LLP
Sitting as judge, Laurence H. Silberman, Senior Judge, U.S. Court of Appeals for the D.C. Circuit

Moderator of Panel Discussion
Patricia M. Wald, former Judge, U.S. Court of Appeals for the D.C. Circuit (1979-99)

Admission is free.  Reservations are not required.  A reception with light refreshments will follow the program.

Society programs depend on the generosity of members, law firms, and others. Non-members are invited to join the Society or to make a contribution. For information, call 202.216.7346 or visit here.  The Historical Society of the D.C. Circuit is a 501(c)(3) organization independent of the Courts.

Barbas at BC Legal History Roundtable

[We have the following announcement from our friends at Boston College concerning our guest blogger, Samantha Barbas.]

We are delighted that on Thursday, October 15, 2015, Samantha Barbas will be joining us for the Boston College Law School Legal History Roundtable. Professor Barbas will be speaking about her new book: Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). A selection can be found on the Roundtable's webpage.

Samantha Barbas researches and teaches in the areas of legal history, First Amendment law and mass communications law. Her work focuses on the intersection of law, culture, media and technology in United States history. Her recent research has explored the history of the law of privacy and defamation. Barbas holds a Ph.D. in American history from the University of California, Berkeley, and a J.D. from Stanford Law School. She was previously an assistant professor of history at Chapman University, a visiting professor of history at U.C. Berkeley, and a lecturer at Arizona State University. She clerked for Judge Richard Clifton on the Ninth Circuit Court of Appeals in Honolulu, Hawaii. Barbas’ work has appeared in several law and history journals, including the Yale Journal of Law and the Humanities, the Rutgers Law Review, and the Columbia Journal of Law and the Arts.

Professor Barbas is working on another book, on the history of privacy and freedom of the press, Time v. Hill and America's Search for Privacy, under contract with Stanford University Press. She is also the author of Movie Crazy: Fans, Stars, and the Cult of Celebrity (Palgrave Macmillan, 2001) and The First Lady of Hollywood (University of California Press, 2005).

The event begins at 4:30PM in the rare book room of the BCLS law library.  Refreshments will be available starting at 4:15.  Parking is only allowed in white-lined spaces if you do not have a BC parking permit.  If you will be able to join us, please let Patrick Mahoney know in advance by emailing patrick.mahoney@bc.edu. 

As is our usual practice for the roundtable, Professor Barbas will start by speaking for 10-15 minutes about the book, e.g., what prompted her interest in the project, major points, difficult questions, etc.  Then we have a more general conversation with the group as a whole, present questions and comments, and so forth.

The Right to "Privacy"

Thanks again to the Legal History Blog for the opportunity to share ideas from my book Laws of Image: Privacy and Publicity in America.

We often think of the right to privacy as a "right to be let alone." In my book, I suggest that the right to privacy -- the tort of invasion of privacy -- has also been a right to one's image. The privacy tort, a creation of the late 19th century, was a response to an emerging "image-conscious sensibility" in the culture of the time.

In small towns and villages, a person's reputation was often a product of deep, ongoing contact with one's community. By contrast, in the expanding cities of the late 19th century, social identity was often a function of images -- what observers might infer about someone based on first impressions and chance encounters on the streets and other public venues. There emerged a new image-consciousness, and a preoccupation with mastering and perfecting one's social appearance. New technologies and media -- especially photography -- heightened the sense of being an image in the eyes of others. There was a potential reward for the scrupulous management of personal image -- respect, upward mobility and the possibility of social and material success.

It was in this social environment that the "right to privacy" was born. The 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis, "The Right to Privacy," decried information about personal affairs "spread broadcast in the columns of the daily papers."

Marion Manola (OSU)

The article accused the press of "invading privacy" when it revealed a person's emotions, activities, and idiosyncrasies before a public audience, even though such matters were not "private" in the sense of being secret or concealed. Newspapers could invade privacy when they published a person's photograph, even if it was taken in a public place. The article discussed the recent case of Manola v. Stevens, involving photographs of an actress taken without her permission as she appeared on the stage. Such publications were said to "invade privacy" because, in presenting the subject out of context and before an audience not of her own choosing, they impaired her ability to construct her public image as she wished.

Warren and Brandeis proposed a right to privacy that would allow people to recover damages for emotional distress when the press interfered with one's public image in an egregious, unwarranted manner. Privacy's domain, they wrote, was the lofty realm of dignity, the soul, and the "spirit." The right to privacy also had a more earthly, instrumental aspect. In an increasingly image-oriented culture, unfavorable, embarrassing depictions in the press were damaging in that they undermined a person's ability to cultivate one's image and maximize one's fortunes and social potential. The right to privacy was rooted in growing concerns with public image in American social life.

Littleton-Griswold Prize to Dayton and Salinger!

The AHA has announced its 2015 prize winners.  The Littleton-Griswold Prize "for the best book in any subject on the history of American law and society, broadly defined" goes to Cornelia H. Dayton, University of Connecticut, Storrs, and Sharon V. Salinger University of California, Irvine, for Robert Love’s Warnings: Searching for Strangers in Colonial Boston (University of Pennsylvania Press, 2014).  Congratulations!

The Littleton-Griswold Prize in US law and society, broadly defined
Cornelia H. Dayton (Univ. of Connecticut, Storrs) and Sharon V. Salinger (Univ. of California, Irvine), Robert Love’s Warnings: Searching for Strangers in Colonial Boston (Univ. of Pennsylvania Press, 2014)
- See more at: http://blog.historians.org/2015/10/aha-2015-prizes-winners/#sthash.r5hFJjkB.dpuf

Rethinking Protest Music

[We have the following announcement.]

Rethinking Protest Music, October 24–25, 2015, Bowl 016, Robertson Hall, Princeton University, Princeton, NJ.

Few moments seem as ripe as the present for a reconsideration of protest, protest cultures, and music’s role in both. The past decade has witnessed a notable surge in protest activity across the globe, as witnessed in the Red Shirt rebellion in Thailand, the Arab Spring uprisings, post-Fukushima anti-nuclear protests in Japan, the Greek anti-austerity movement, the Occupy movement, the Gezi Park protests in Turkey, the Euromaidan movement in the Ukraine and, most recently, the “Black Lives Matter” movement in the United States. The inventiveness and ingenuity with which activists have mobilized music and related sonic practices within these and other recent protest movements point to ways in which the familiarity of this object of inquiry might profit from its defamiliarization, as much in theory as in practice. This conference gathers scholars from a range of disciplines to reexamine the place of music and sound in protest, with a view toward generating fresh perspectives on this subject.

Stack on Goodnow, Freund, Wyman and the Leg-Reg Course

Kenneth M. Stack, Vanderbilt Law School, looks back to the administrative law scholars Frank Goodnow, Ernst Freund, and Bruce Wyman for Lessons from the Turn of the Twentieth Century for First-Year Courses on Legislation and Regulation, Journal of Legal Education 65 (August 2015): 28-44.  He finds that (1) “these early scholars’ arguments for administrative law, made a century or more ago, add further urgency to adoption of a first-year leg-reg course today”; (2) their writings provide "a vantage point on the material to be covered in a leg-reg course”; and (3) that the objections they faced help explain “the continued wariness about a first-year leg-reg course in a jurisprudence for which the case method is the privileged pedagogy."

Entin on the Curious Case of the Pompous Postmaster

Among the contributions to the symposium Executive Discretion and the Administrative State in the Case Western Reserve Law Review 65 (2015): 891-1199, is The Curious Case of the Pompous Postmaster: Myers v. United States (pp. 1059-81) by Jonathan L. Entin, Case Western Reserve University.

An Anthology of Alabama Legal History

Quid Pro Books announces the publication of New Field, New Corn: Essays in Alabama Legal History, which the press describes as “an anthology of research papers that explore a range of topics from the rich legal history of the state of Alabama and its influential legal and judicial figures.”  It is edited by Paul M. Pruitt, Jr., Special Collections-Collection Development Librarian, Bounds Law Library, University of Alabama School of Law.  Here is the TOC:

Bryan K. Fair’s Foreword: “Critiquing Our Present, Interrogating Our Past”
Paul M. Pruitt, Jr.’s Introduction: “Alabama Legal History as a Field of Study”
Warren Hoffman: “Developments of the Enclosure Movement in Alabama: Disrupting the Free Roaming”
Paul Rand: “Flush Times in the Chancery: A Brief Note on the History of Equity and Trusts”
Helen Eckinger: “The Militarization of the University of Alabama”
Eddie Lowe: “Economic Growth in Blount County: Attorneys, Companies, and Cases”
Mike Dodson: “Pioneers in Alabama Legal History: A Firm Understanding of the History of Alabama”
Courtney Cooper: “A Man in a Boy’s Coat: The Evolution of Alabama’s Constitutions”
Deirdra Drinkard: “The Uniform Beneath the Robe”
Ellie Campbell: “The ‘Breakthrough Verdict’: Strange v. State”

Here are two endorsements:

“Alabama legal history can be surprising. Usually, this history is identified with dominant one-party politics, slavery, racial segregation, and limited social welfare. Paul Pruitt’s collection of young lawyers’ research reveals a new field. It extends out from legal subjects, embracing new perceptions of law in society across Alabama history. The collection rests on broad research. Lawyers working in diverse fields have produced Alabama legal history that sets a new standard.”
— Tony Freyer

“New Field, New Corn presents eight new essays on Alabama legal history from the pre-Civil War era through the Civil Rights era. These elegant and novel chapters survey a broad spectrum, from economics, race, education, and professional concerns of lawyers, to plain old legal doctrine, to show how those variables affected the state’s development. These essays reveal why we need intensive studies of American law at the state and county level in the 19th and 20th centuries. For they demonstrate that law is embedded in our culture. These invite many other studies, from the county level on up, in other states, to demonstrate how law lies at the center of nation’s history. They reaffirm my faith that there are many, many fascinating stories left to tell about our nation’s journey towards fulfilling the promises of law.”
— Alfred L. Brophy
Judge John J. Parker Distinguished Professor of Law
University of North Carolina–Chapel Hill
Author, Reparations: Pro and Con (2006) and Reconstructing the Dreamland (2002)