Campbell on "General Citizenship Rights"

Jud Campbell, University of Richmond School of Law, has posted General Citizenship Rights, which will appear in the Yale Law Journal:

Current scholarship and case law assume that citizenship rights come in only two sets: state and national. This binary approach reflects broader contemporary attitudes about the positivist grounding of constitutional rights and the dualistic character of American sovereignty. From the Founding up until Reconstruction, however, many Americans took a different view. For those steeped in older ways of thinking, citizenship rights included not only local and national rights but also general citizenship rights. Premised on social-contractarian assumptions and a common jurisprudential heritage, general citizenship rights were fundamental rights that were putatively held by all American citizens. Moreover, these rights were secured across state lines through the conferral of general citizenship in Article IV, reflecting the interstate dimensions of federalism. Coming in three sets, not two, citizenship rights were thus based not only on the positively enacted law of particular sovereigns but also on general law, coupled with the notion that Americans belonged to a federative political family. Recovering these ideas of general citizenship rights and general citizenship enables new ways of seeing our constitutional past and can help to clarify or resolve long-running controversies about the Privileges and Immunities Clause in Article IV and the Privileges or Immunities Clause in the Fourteenth Amendment. This history also points toward a different way of framing those disputes, focused less on linguistic analysis of constitutional text and more on underlying conceptions of fundamental rights, federalism, and sovereignty.

--Dan Ernst

Honor, Conscience, and Rules

[Michael S. Ariens's posts on The Lawyer's Conscience continue.  DRE]

The lawyer’s duty to abide by standards of behavior higher than the marketplace was successively but often unsuccessfully buttressed by concepts of honor, conscience, and rules. When lawyers were relatively few in number, the duty to behave honorably could be invoked by fellow lawyers. The standard of honor was exterior: others decided whether the lawyer was honorable. In theory, lawyers protected themselves (and indirectly, the people) by policing fellow lawyers under this standard. In a few instances, a lawyer initiated a disbarment proceeding. In 1823 in the District of Columbia, lawyer Francis Scott Key, composer of The Star-Spangled Banner, accused lawyer Levi S. Burr of “practices unbecoming a practitioner at the bar,” including having a “general reputation as to your ill-conduct in your profession.” Burr was disbarred. A decade later, he was a prisoner in New York’s Sing-Sing prison, serving his sentence after a perjury conviction. Such policing, however, was inconstant at best, and nonexistent at worst.

In 1836, Baltimore lawyer David Hoffman published the second edition of A Course of Legal Study, a student guide to the study of law, and nearly nine hundred pages long. This edition included fifty Resolutions in Regard to Professional Deportment, standards of ethical conduct. Hoffman believed lawyers should seek honor, in large part by practicing law virtuously. Hoffman’s emphasis on honor led him to conclude a lawyer should never take advantage of one’s clients, to represent the poor, including by taking a case on a contingent fee, and defend the weak against the powerful. He also believed no lawyer should represent a party with a “bad cause,” including making any claim or defense that was “knowingly in the wrong.” Thus, no lawyer should plead the statute of limitations or the defense of infancy. 

The first edition of A Course of Legal Study (1817) had been published to a number of enthusiastic reviews, including one by Supreme Court Justice Joseph Story. The second edition was largely ignored, including Hoffman’s fifty Resolutions. Though Hoffman later blamed his publisher for the lack of attention given the 1836 edition, the book was unpopular because it did not meet the interests (or needs) of those in the market for such works. Lawyers (and law students) sought practical publications; A Course of Legal Study was anything but. Lawyers had also rejected Hoffman’s pursuit of honor, or at least the particular actions Hoffman deemed honorable. Lawyers regularly invoked the defenses of the statute of limitations and infancy. There seemed little appetite to serve the poor when the Panic of 1837 devastated the economy. A decade later, Hoffman published a book collecting all his works concerning standards of lawyer behavior, Hints on the Professional Deportment of Lawyers. It was not reviewed at all, but simply disappeared. 

The standard of honor was being displaced by the standard of conscience. Conscience was an internal standard. Outwardly, the lawyer was to behave as a professional. A professional acted according to his legal knowledge and his public role, in the light of his conscience. A professional lawyer also acted with integrity and dignity, distinguishing oneself from the pettifogger (and soon, the “shyster”). In an 1839 address to law graduates, Timothy Walker framed the lawyer’s professional duty in light of conscience: “When a client has a bad cause, shall we prosecute it for him?” Yes, for “a lawyer is not accountable for the moral character of the cause he prosecutes, but only for the manner in which he conducts it.” Because only the lawyer who took the cause knew its strengths and weaknesses, other lawyers should refrain from criticizing the lawyer’s decision. If the lawyer could satisfy his conscience, even if it was a “bad cause,” that decision was immune from criticism. 

American lawyers would on occasion recur to the standard of honor, but the standard of conscience predominated through the end of the nineteenth century. As the numbers of lawyers climbed, particularly in the last third of the nineteenth century, references to internal conscience became less appealing to some lawyers, and appeared less effective. The work of many corporate lawyers became bureaucratized. Elite lawyers claimed too many railroad lawyers had become “servants” of their clients rather than “counsellors.” Such clients too often hired lawyers “not to give advice but to obey; not to counsel, guide, inform, protect, but to carry out plans … to make legal that which is devious, to devise means for ends which are doubtful.” Another elite lawyer bemoaned the loss of independence of “corporate” lawyers. They had become “little more than a paid employee, bound hand and foot to the service of his employer,” “virtually owned and controlled by the client he serves.” 

This loss of independence, or the fear of its loss, led Alabama lawyer Thomas Goode Jones to propose to the newly-formed Alabama State Bar Association that it adopt rules of professional behavior. Six years later, it adopted Jones’ Code of Ethics (1887). His Code followed much of George Sharswood’s antebellum An Essay on Professional Ethics. In general, the fifty-seven rules remained centered on the lawyer’s conscience as central to understanding one’s duties. Some rules provided particular standards, but these were relatively few in number.

Two voluntary state bar associations quickly adopted Jones’ Code, but it took nearly a decade before other state bars followed. Jumping in front of a forming crowd, the American Bar Association (ABA) in 1905 began considering adopting an oath and canons of ethics, which it approved in 1908. It is unclear why the adoption of a code of ethics by other state bars (thirty of which were formed by 1887, and nearly all by 1899) was so halting in the early 1890s and so popular beginning in the late 1890s.

A likely reason appears to be a crisis of identity among elite lawyers. President Theodore Roosevelt criticized (and also praised) elite lawyers for serving the interests of the wealthy at the expense of the public in a 1905 speech. The ABA responded by creating a committee to investigate whether to adopt a code of legal ethics; its President suggested the ABA demonstrate it had kept its “high standard which its position of influence in the country demands.”

The 1908 Code remained the guide to lawyer behavior in most states for over six decades. It served largely to exhort lawyers to be and do good and not bad.  One critic complained the ABA Code failed because it focused on what a lawyer may not do. What lawyers needed instead, he concluded, was an expression of some worthy ideals in the practice of law, for “ideals of some kind, lawyers, like other men, necessarily must have.”

Kexel Chabot on the President's Approval Power and the Unitary Executive

Earlier today we noted the upcoming symposium on the Unitary Executive at Fordham Law
Christine Kexel Chabot, Loyola University Chicago School of Law, has posted her contribution to it, The President's Approval Power, which is forthcoming in the Fordham Law Review:

This Article introduces the President’s approval power as it was originally understood in the United States. Leading proponents of a unitary executive President have asserted that her absolute power to control subordinate officers includes power to veto or approve subordinates’ discretionary actions before they take effect. This Article reconsiders approval’s purportedly unitary function and presents previously overlooked evidence of the originalist foundations of a presidential approval power. My comprehensive analysis of every public act passed by the First Federal Congress shows that the Founding generation never understood Article II to grant the President general authority to approve subordinates’ decisions. Approval was instead a permissive power that the First Congress withheld in a vast majority of statutes and granted in only a handful of laws. Even when statutes granted the President or superior officers an approval power, moreover, they did not gain unitary control. Approval afforded only ex post review without power to force non-removable subordinates to initiate regulatory action implementing superiors’ preferred policies.

This Article also draws on historical practice to situate approval power within the broader unitary executive debate. At the Founding, approval offered a partial measure of accountability that Congress could incorporate when allocating decisionmaking power within the executive branch. Approval sometimes checked spending and contracting decisions that would be difficult to undo by removing an officer. In other instances approval governed executive adjudications conducted by officials who operated outside formal levers of control established by appointments and removal. The latter category of approval powers provides originalist evidence of an important alternative to formal requirements of plenary removal power. Unitary scholars following Justice Scalia’s Morrison dissent may likewise agree that it is proper for Congress to require approval as an alternative form of supervision for tenure-protected inferior officers and officials farther down the chain of command. 

--Dan Ernst

Malz on Rodriguez and Contingency in Constitutional Law

Earl M. Maltz, Rutgers Law School, has posted The Road to Rodriguez: Presidential Politics, Judicial Appointments, and the Contingent Nature of Constitutional Law, which is also to appear on Virginia Law Review Online:

San Antonio Independent School District v. Rodriguez was by any standard one of the most consequential decisions of the early Burger era. Not surprisingly, the doctrinal arguments that underlay the Court’s analysis in Rodriguez have been dissected in detail by many academic commentators. By contrast, this essay, which was prepared for a symposium commemorating the fiftieth anniversary of the decision, focuses on the institutional context in which the decision was rendered. The essay argues that the outcome of the case was in fact prefigured by a series of events that took place almost five years before the decision was handed down and led to the creation of a Court where a majority of the justices were hostile to the claims of the plaintiffs. Thus, Rodriguez provides a classic illustration of what might aptly be described as the contingent nature of constitutional law.

--Dan Ernst

Unitary Executive: History and Practice

[We have word of the following symposium.  DRE]

Unitary Executive: History and Practice, Friday, February 17, 2023, Fordham Law School, Costantino Room, 150 West 62nd Street, Second Floor, New York, NY

Live Broadcast via Zoom Webinar.  Register here.

The symposium will feature panels discussing one of “the oldest and most venerable debates” in administrative and constitutional law: whether the President of the United States is a “unitary executive” with unrestricted power to remove and control the actions of executive officers who run administrative agencies, and with insulation of executive power from the oversight or conditions set by Congress and the judiciary.

10:00 - 10:30 a.m. | Check-In and Breakfast

10:30 - 10:40 a.m. | Welcome and Introduction

10:40 a.m. - 12:10 p.m. | Panel 1: The Founding Era (1.5 CLE credits)
Michael McConnell, Stanford School of Law
Jim Pfander, Northwestern Pritzker School of Law
Christine Chabot, Loyola Chicago School of Law
Gary Lawson, Boston University School of Law
Saul Cornell, Fordham University School of Law
Jane Manners, Temple University Beasley School of Law
Andrew Kent, Fordham University School of Law

12:10 - 1:00 p.m. | Lunch

1:00 - 2:30 p.m. | Panel 2: Article II & Executive Practice (1.5 CLE credits)
Anya Bernstein, University at Buffalo School of Law
Cristina Rodriguez, Yale Law School
Peter Shane, Ohio State University School of Law
Barry Sullivan, Loyola-Chicago School of Law
Andrea Katz, Washington University School of Law
Nicole Hemmer, Vanderbilt University
Ethan Leib, Fordham University School of Law

2:30 - 2:45 p.m. | Break

2:45 - 4:15 p.m. | Panel 3: Article III and Adjudication (1.5 CLE credits)
Harold Krent, Chicago-Kent College of Law
Bijal Shah, Boston College School of Law
John Golden, University of Texas at Austin School of Law
Tom Lee, Fordham University School of Law
Abner Greene, Fordham University School of Law
Jennifer Mascott, Antonin Scalia Law School
Noah Rosenblum, New York University School of Law

4:15 - 4:30 p.m. | Concluding Remarks

4:30 - 6:00 p.m. | Reception

Weekend Roundup

• In honor of Black History Month, "[t]he Citing Slavery Project will be highlighting one case a day that is still used as good legal precedent today, despite the fact that the original case upheld slavery." More.

• Via Rorotoko: Alison Peck (West Virginia University College of Law) on her book The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction.

• From In Custodia Legis, the blog of the Law Librarians of Congress: "Syndication Regulation and TV’s Big Three: Broadcasting Regulations and 1970s Television." Also, "A Brief Legislative History about Homebrewing in the United States": Part I and Part II.
  

• Constitutional Crisis Hotline, a podcast hosted by Jed Shugerman and Julie Suk (Fordham Law), has released an episode on "The 50th Anniversary of Roe v. Wade." Linda Greenhouse and Reva Siegel (Yale Law School) join as guests.

• The Law and Society Association at Stanford Law School (LSAS) will hold its Seventh
  Conference for Junior Researchers, on the theme "the role of courts, litigation, and other legal institutions in an age of social conflict." The CFP is here. Deadline Feb. 12.

• From Daniel Farber (Berkeley Law) at Legal Planet: "50 Years Ago: Environmental Law in 1973." (h/t David Schorr's Environment, Law, and History blog)
  

• On February 21, at 4 pm Hong Kong Time, Martti Koskenniemi will deliver the lecture The Legal History of International Power: Sovereignty & Property, at the Centre for Chinese and Comparative Law, City University of Hong Kong, in partnership with Wuhan University School of Law and Fudan University School of Law.   The discussant will be Ignacio de la Rasilla.  Register here.
  

• From the Washington Post's "Made by History" section: Brianna Frakes (University of Virginia), "The Emancipation Proclamation sparked fierce resistance. That matters today."
  

• Update: Critical Legal Theory has posted podcast interviews of David Trubek and Duncan Kennedy on the Critical Legal Studies movement. 

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

Henry J. Abraham Early Career Research Grant

[We have the following announcement.  DRE]

The Supreme Court Historical Society announces the Henry J. Abraham Early Career Research Grant for research on the history of the United States Supreme Court.  The award is named for the distinguished scholar whose numerous works on constitutional law and the judicial process have had an enduring impact on the field of Supreme Court history.

Awarded on a competitive basis in June of each year, the $1,000 grant supports the research of those who are pursuing academic careers in legal history, including graduate students, law students, and those who are no more than five years from completion of either the Ph.D. or J.D.  The award will be given on the basis of the applicant's potential for producing publishable work in the field of Supreme Court history, and the grant recipient will be expected to produce an article for submission to the Journal of Supreme Court History.

A completed application consists of a c.v., the name and contact information of a faculty reference, and a 750-1,000-word proposal, which should include a general description of the project and a plan for research.  Applicants should submit all materials to Clare Cushman, Executive Editor of the Journal of Supreme Court History (ccushman@supremecourthistory.org) by May 1, 2023.  The award winner will be notified by June 1, 2023.

The Divided Lawyer

[Here is Guest Blogger Michael S. Ariens's first post.  DRE]

“In America THE LAW IS KING,” wrote Thomas Paine in Common Sense (1776). Paine’s epigram announced that the people were sovereign and they ruled through the law. The problem with Paine’s formulation is that the law acts only through its agents, the lawyers and judges who shape and make it. Former Harvard Law School Dean Roscoe Pound noted in a 1937 essay, “there is no law without lawyers.” A half-century later, legal ethicist David Luban took Pound’s statement a large step further: “Lawyers are the law.” If American lawyers were the law, they possessed extraordinary power. As power tends to corrupt, the people have long feared the possibility that lawyers would exercise power to benefit the clients who paid them to represent their interests at the expense of the interests of the public. American lawyers implicitly understood the elevated social position this power gave them, and they worked to justify to the people their exercise of it.

The 1701 Massachusetts attorney oath of office ended with injunction that the lawyer pledge “all good fidelity as well to the courts as to your clients.” This was echoed by Judge George Sharswood, whose writings on legal ethics were largely adopted in the second half of the nineteenth century. In his 1854 lectures on legal ethics to law students at the University of Pennsylvania, Sharswood agreed with the Massachusetts oath. A lawyer was “not merely the agent of the party,” but also “an officer of the Court.” Former President and future Chief Justice William Howard Taft declared in a 1914 lecture that lawyers owed “a double allegiance, a duty toward one’s client and a duty toward the court.” American Bar Association President David Maxwell praised lawyers in his 1957 farewell address for their “dedication to the public interest.” But how were lawyers to serve faithfully and in equal measure court and client? In a 1791 law lecture, Supreme Court Associate Justice James Wilson perceived little if any conflict: These “obligations are, by no means, incompatible: both will be discharged by uniform candour [sic], and by a decent firmness properly blended with a dignified respect.” A second approach minimized any conflict by arguing the lawyer’s legal knowledge made the client dependent on the lawyer, and the lawyer relatively independent of the client. A third approach was to ostracize as “unprofessional” those lawyers who served their clients at the expense of their duty to serve as officers of the court.

Finally, lawyers claimed they obeyed standards higher than the morals of the marketplace. They were in the marketplace, but not of the marketplace. Lawyers served clients and received fees for their exertions. They were paid agents of their principals. But they distinguished themselves from ordinary agents in asserting a duty to meet standards of behavior inapplicable to ordinary agents. These standards required lawyers to serve their clients in a detached, independent manner, which made more likely fulfillment of their duty to the court and any corresponding duty to serve the public. The responsibility to meet both obligations made lawyers a part of a profession rather than an ordinary business. This emphasis on non-market-based standards of behavior led Roscoe Pound and others to downplay the fact that lawyers made a living from the fees paid by their clients. “Historically,” wrote Pound in 1944, “there are three ideas involved in a profession: organization, learning, and a spirit of public service. These are essential. The remaining idea, that of gaining a livelihood, is incidental.” But the vast majority of American lawyers have practiced law to earn a living. The need for paying clients gave lawyers some incentive to represent them faithfully. (Even so, plenty of contrary examples exist and are discussed in The Lawyer’s Conscience.) In contrast to the present needs of one’s current clients, the duty a lawyer owed the court, the legal system, or the interests of the public, was diffuse and abstract. As between these two duties, the lawyer primarily focused on the duty to serve one’s clients. 

There was, of course, tension in the duty one owed to one’s clients and the interest of the lawyer in success, financially and reputationally. In Sharswood’s opinion, a lawyer “should never take a case “with a view to one single end, success.” A lawyer who sought only success might be willing to ignore all constraints on one’s behavior, to act as an ordinary agent. But Sharswood did not offer a practical substitute, and the adversary system and the market for clients heightened the lawyer’s devotion to success.     

The Lawyer’s Conscience: A History of American Lawyer Ethics is a history of American lawyers and their efforts to justify the power accorded them by the people.

Muñoz, "Religious Liberty and the American Founding"

The University of Chicago Press has published Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses (2022), by Vincent Phillip Muñoz (University of Notre Dame). A description from the Press:

The Founders understood religious liberty to be an inalienable natural right. Vincent Phillip Muñoz explains what this means for church-state constitutional law, uncovering what we can and cannot determine about the original meanings of the First Amendment’s Religion Clauses and constructing a natural rights jurisprudence of religious liberty.  

Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, Muñoz demonstrates that adherence to the Founders’ political philosophy would lead neither to consistently conservative nor consistently liberal results. Rather, adopting the Founders’ understanding would lead to a minimalist church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Thorough and convincing, Religious Liberty and the American Founding is key reading for those seeking to understand the Founders’ political philosophy of religious freedom and the First Amendment Religion Clauses. 

A sample of advance praise:

"This book is the culmination of a decade of Muñoz’s scholarship on the religion clauses of the First Amendment. Those who imagine there is nothing new and valuable to say on this much-analyzed topic should think again. Muñoz has written the best account in one place of the way in which the political theory of the founders regarding religious liberty connects with the delphic legal text of those clauses." ― Michael W. McConnell

More information is available here. (H/t New Books Network)

-- Karen Tani 

Halpern & Ben Dor, "Boycotts: A First Amendment History"

 Josh Halpern (Harvard Law School) and Lavi Ben Dor (University of Pennsylvania) have posted "Boycotts: A First Amendment History." Here's the abstract:

Over the past decade, more than half of U.S. states have enacted laws that prohibit recipients of public contracts and state investment from boycotting the State of Israel. These so-called “anti-BDS laws” have triggered a debate over whether the First Amendment’s Free Speech Clause includes a “right to boycott.” This Essay is the first to take up that question thoroughly from a historical standpoint. Examining the boycott’s constitutional status from before the Founding to the present era, we find that state actors have consistently treated the boycott as economic conduct subject to governmental control, and not as expression presumptively immune from state interference. Before the Founding, the colonists mandated a strict boycott of Britain, which local governmental bodies enforced through trial proceedings and economic punishments. At common law, courts used the doctrine of conspiracy to enjoin “unjustified” boycotts and hold liable their perpetrators. And in the modern era, state and federal officials have consistently compelled participation in the boycotts they approved (like those of apartheid-era South Africa and modern-day Russia), while prohibiting participation in the ones they opposed (like that of Israel).

The Essay concludes that modern anti-boycott laws not only fit within, but improve upon, this constitutional tradition. As the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware illustrates, the common law approach risks violating the First Amendment if the doctrine is applied to restrict not only the act of boycotting or refusing to deal, but also the expressive activities that accompany such politically-motivated refusals. Modern anti-boycott laws avoid that problem by surgically targeting the act of boycotting, while leaving regulated entities free to say whatever they please. From the standpoint of history, these laws reflect First Amendment progress, not decay. 

The full draft is available here, at SSRN.

-- Karen Tani

Fleming on "Poland, the United Nations War Crimes Commission, and the Search for Justice"

Cambridge University Press has published In the Shadow of the Holocaust: Poland, the United Nations War Crimes Commission, and the Search for Justice (2022), by Michael Fleming (Polish University Abroad, London). A description from the Press:

In the midst of the Second World War, the Allies acknowledged Germany's ongoing programme of extermination. In the Shadow of the Holocaust examines the struggle to attain post-war justice and prosecution. Focusing on Poland's engagement with the United Nations War Crimes Commission, it analyses the different ways that the Polish Government in Exile (based in London from 1940) agitated for an Allied response to German atrocities. Michael Fleming shows that jurists associated with the Government in Exile made significant contributions to legal debates on war crimes and, along with others, paid attention to German crimes against Jews. By exploring the relationship between the UNWCC and the Polish War Crimes Office under the authority of the Polish Government in Exile and later, from the summer of 1945, the Polish Government in Warsaw, Fleming provides a new lens through which to examine the early stages of the Cold War.

A sample of advance praise:

"This pathbreaking book sheds important new light on post-war attempts to prosecute Nazi war criminals and collaborators through an analysis of the participation in the United Nations’ War Crimes Commission of representatives of the Polish government, first that established in the west after the Polish defeat and then by the pro-communist government established by the Soviets. It is essential reading for all those interested in the problem of how to prosecute genocide and crimes against humanity." -- Antony Polonsky

 More information is available here. (h/t New Books Network)

-- Karen Tani

Moyn and Stern on Thayer's Judicial Self-Restraint

Samuel Moyn, Yale Law School, and Rephael Stern, Samuel I. Golieb Fellow in Legal History, NYU School of Law, and Ph.D. candidate, Department of History, Harvard University, have posted To Save Democracy from Juristocracy: J.B. Thayer and the Tragic Origins of Constitutional Theory:

James B. Thayer (LC)

As many Americans once again worry that their democracy is hostage to judicial power, this Article recovers how the country’s first constitutional law professor set out on a mission to stave off the syndrome before it stuck. The first archival reconstruction of how James Bradley Thayer (1831-1902) arrived at his epochmaking theory of judicial deference — which remains the most influential piece of scholarship on American constitutional law in the country’s history — this Article demonstrates that Thayer was determined to preserve the democratic revolutions of the Civil War and Reconstruction and to transform America in the direction of British legislative supremacy. Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the new American democracy, Thayer bet on something new in global history: mass democracy understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated with the early twentieth century: far from simply foreseeing the Supreme Court’s defense of laissez-faire to come, Thayer mobilized in the first instance in response to forgotten manifestations of an American juristocracy after the Civil War. His inspiration, moreover, came from witnessing England’s rapidly-expanding representative democracy in which Parliament — and not the courts — reigned supreme. And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard” — which this Article shows had the same English roots as his democratic faith — has tragically misled reform. An archival genealogy of rational basis review in constitutional law, this Article explains why Thayer called for it but also why his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own.

--Dan Ernst

Welcome: Michael Ariens!

Our Guest Blogger this month is Michael Ariens, Aloysius A. Leopold Professor of Law, St. Mary’s University School of Law, on his recently published book, The Lawyer's Conscience: A History of American Lawyer Ethics (University Press of Kansas):

In 1776, Thomas Paine declared the end of royal rule in the United States. Instead, “law is king,” for the people rule themselves. Paine’s declaration is the dominant American understanding of how political power is exercised. In making law king, American lawyers became integral to the exercise of political power, so integral to law that legal ethics philosopher David Luban concluded, “lawyers are the law.”

American lawyers have defended the exercise of this power from the Revolution to the present by arguing their work is channeled by the profession’s standards of ethical behavior. Those standards demand that lawyers serve the public interest and the interests of their paying clients before themselves. The duties owed both to the public and to clients meant lawyers were in the marketplace selling their services, but not of the marketplace.

This is the story of power and the limits of ethical constraints to ensure such power is properly wielded. The Lawyer’s Conscience is the first book examining the history of American lawyer ethics, ranging from the mid-eighteenth century to the “professionalism” crisis facing lawyers today.

Here is an endorsement:

“Michael Ariens has written an exceptionally well-researched and thought-out book on the history of US legal ethics. The Lawyer’s Conscience is a brilliant exposition of the events and concerns that produced the ethical rules by which American lawyers live today. In its depth of research and in its critical judgment, it is unparalleled in the literature about legal ethics. Every lawyer should buy a copy and study it with great care.”—M. H. Hoeflich, John H. & John M. Kane Distinguished Professor of Law, University of Kansas School of Law

--Dan Ernst.  TOC after the jump.

CFP: Celebrating Women in Legal History

 [We have the following CFP.  DRE]

Selden's Sister invites abstracts for the Symposium, “Celebrating Women in Legal History: The Lives and Legacies of Early Women Legal Historians,” The University of Liverpool School of Law and Social Justice, 1st September 2023.

This one-day hybrid symposium aims to celebrate the contributions of women to early legal historical scholarship, to commemorate the achievements of under-appreciated figures in legal history, and to assess their contributions in light of present understandings of the discipline. We particularly encourage papers that engage with the work of nineteenth and twentieth-century researchers.

Papers might consider (but are not restricted to): 

• The work of particular women, or groups of women, whose research significantly impacted legal, constitutional, or administrative history.
  

• Current research projects that make extensive use of the work of one or multiple early women legal historians.
  

• Biographical accounts of women who undertook legal historical research in the nineteenth and twentieth centuries.
  

• Historiographical accounts of areas of legal history that have been significantly developed by women scholars.
  

• Accounts of other contributions made by women to early legal historical scholarship, for example as patrons, librarians, editors, or typists.  
  

• Fictional or artistic accounts of women in legal history

Abstracts are welcomed from scholars of all genders, disciplines, and career stages. Delegates will be able to present their papers in-person or online. There is a limited amount of funding for travel within the UK and accommodation expenses, priority for which will be given to postgraduate and early-career scholars.

Please submit any queries and abstracts of no more than 300 words to seldenssister@gmail.com by Friday 21st April 2023.

Selden's Sister are a collaborative body of legal historians across multiple UKHE institutions. We seek to champion the work of contemporary female legal historians, and highlight past contributions of women to legal history.

Silber's "Outside In: The Oral History of Guido Calabresi"

Norman I. Silber, Maurice A. Deane School of Law, Hofstra University, has just published Outside In: The Oral History of Guido Calabresi (Oxford University Press).  A notice on the Yale Law School website describes the work as “part oral history and part biography.”

Guido Calabresi is an extraordinary person. His family, of Jewish heritage, occupied a secure and centuries-old position near the top of Italian society-- until the rise of fascism. Guido's parents fled to America on the eve of the war in Europe, with their children, to avoid political and religious persecution. They arrived without money or social standing. Guido's talents and good fortune helped him to thrive at several elite American institutions and to become a leading legal scholar, teacher, law school dean, and judge. He would receive prizes and awards for his contributions; to legal theory, especially for opening up the area of 'law and economics'; for contributions to the modern transformation of American law schools, as the Dean of Yale Law School; and for advancing the development of law including through progressive decisions as a member of the United States Court of Appeals for the Second Circuit.

Outside In is a unique sort of account spread across two volumes and written in Guido's remarkable voice based on recordings that which took place over a decade. It is a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context.

–Dan Ernst

U Minnesota's Legal History Workshop

The schedule for the Legal History Workshop of the University of Minnesota’s Program in Law and History is now out.  Abstracts and more information are here.

FEBRUARY 2
Emily Prifogle, Assistant Professor of Law and Assistant Professor of History, University of Michigan
“The Country Lawyer” (Chapter 4 of the forthcoming book, The Heartland's Legal Landscapes & the Remaking of Modern Rural America, 1920-2020)

FEBRUARY 9
Brittany Farr, Assistant Professor of Law, NYU Law School
Finding Black Litigants

FEBRUARY 16
Julilly Kohler-Hausmann, Associate Professor, Department of History, Cornell University“Voter Fraud,” Registration Wars, and the Persistence of Conditional Citizenship since the 1965 Voting Rights Act

FEBRUARY 23
Cornelia Dayton, Professor, Department of History, University of Connecticut
Litigating and Lawyering while Black in Late 18th-Century Massachusetts

MARCH 2
Lauren Benton, Barton M. Biggs Professor of History and Professor of Law, Yale University
Law and Imperial Plunder: Households and Small Wars in European Empires

MARCH 16
Kate Masur, Professor of History, Board of Visitors Professor, Department of History, Northwestern University
“Different Measures of Oppression: Local Legal Cultures and the Campaign against the Black Laws in Antebellum Illinois”

MARCH 27
Felicia Kornbluh, Professor, Department of History, University of Vermont
Book talk: A Woman’s Life Is a Human Life My Mother, Our Neighbor, and the Journey from Reproductive Rights to Reproductive Justice.

APRIL 6
Serena Mayeri, Professor of Law and History, Penn Carey Law, University of Pennsylvania
The Status of Marriage: Marital Supremacy Challenged and Remade, 1960-2000

APRIL 13
Garrett Felber, Visiting Fellow, American Studies Department, Yale University
My Spirit Unbroken: Martin Sostre and the Struggle for Bodily Sovereignty and Collective Liberation

APRIL 20
Catherine Evans, Assistant Professor, Centre for Criminology & Sociolegal Studies, University of Toronto
“Burning Down Wooden Towns: Investigating Incendiarism in Nineteenth-Century England and Canada”

--Dan Ernst

Cushman on Court-Packing in Context

Barry Cushman, Notre Dame Law School, has posted Court-Packing in Context which is forthcoming in the Journal of Supreme Court History:

Burton Wheeler, March 1937 (LC)

There is a curious lacuna in the literature on the Court-packing crisis of 1937. The proposal for reform of the federal judiciary that received the most attention and consideration in that year was of course President Franklin D. Roosevelt’s proposal to enlarge the membership of the Supreme Court from nine to fifteen justices. Yet both before and throughout the battle over the President’s “Court-packing plan,” members of Congress introduced a wide variety of alternative measures for addressing their dissatisfaction with recent decisions of the Supreme Court invalidating various state and federal laws designed to relieve economic distress and stimulate economic recovery. Some of these proposals would have taken statutory form, while many others would have amended the Constitution in various respects. In the end, none of these measures was reported out of Committee. Nevertheless, they were the subject of serious discussion in multiple contemporary venues.

Scholarly treatments of the Court-packing episode typically are focused on two related questions: first, what were the Court-packing plan’s prospects for ultimate congressional enactment, and second, to what extent, if any, did the pendency of the Court-packing plan affect the outcomes in the Court’s major constitutional decisions in the spring of 1937? Perhaps as a consequence of this focus, proposed alternatives to Court-packing tend to be treated as something of a sideshow. Discussion of such proposals typically concentrates on the strategic reasons for which Roosevelt rejected them in favor of his own Court-packing plan. Largely overlooked is the rich contemporary legal, newspaper, and periodical literature in which these alternative measures received sustained legal and policy consideration. Similarly, the Senate Judiciary Committee hearings on Roosevelt’s bill, at which such proposals also were the subjects of extensive deliberation, routinely receive rather limited exploration. In some cases, discussion is largely confined to the manner in which the bill’s opponents used the hearings to delay its ultimate consideration. Other treatments offer more fulsome accounts of the arguments made for and against the President’s bill, but pay little if any attention to the substantive arguments witnesses raised concerning alternative proposals.

At a time when proposals for Court reform have resurfaced in public conversation, it may prove illuminating to reconstruct the robust discussion of the topic that took place in the 1930s. That, in any event, is the aim of this article. First, I briefly canvass the arguments concerning Court enlargement offered at the Senate Judiciary Committee hearings on the President’s bill. I then survey the various alternatives to Court expansion introduced by members of Congress, and review the wide array of policy and constitutional arguments made with respect to these proposals. I next examine the debate over the Administration’s claim that a statutory solution to the “Court problem” was necessary because the process of amending the Constitution was too slow and difficult. In the Conclusion I offer some thoughts on the motivations of the Senators and Representatives who introduced such alternative proposals, and the reasons for their ultimate failure of enactment.

--Dan Ernst

Weekend Roundup

• Reva Siegel, YLS, on Dobbs and the Politics of Constitutional Memory on Balkinization.  Also, here. 
  

• Stanford Law School has a report on that Celebration of Lawrence Friedman, during which “nine panelists showered tributes on the still-prolific, 92-year-old legal historian," and "Amalia Kessler, director of the Stanford Center for Law and History and an organizer of the event, spoke of  “our beloved” Friedman’s 'great intellect' and 'tremendous menschlichkeit,'”
  

• The Harvard Law School "will collaborate with the Royall House and Slave Quarters--a museum in Medford, Massachusetts that is among the last freestanding quarters where enslaved people lived in the north--to conduct research and collaborate on educational programming" (Reuters).
  

• From In Custodia Legis, the blog of the Law Library of Congress: Caitlin Connelly on Chew Heong v. United States, Sarah Friedman on  Hansberry v. Lee, and Rachel Star Koladis on Alchemy and The Act Against Multipliers.
  

• Randall Kennedy, HLS, will speak on Wednesday, February 1, at the University of Mississippi School of Law on“The Greatest Lawyer in American Legal History: Thurgood Marshall.”  More.
  

• From the Washington Post's Made by History section: Yael Schacher on how Biden’s announced asylum transit ban undermines access to life-saving protection.  Joel Zapata (Oregon State) argues that Border enforcement has been deadly by design.  Felicia Kornbluh (University of Vermont) on What the next 50 years of reproductive rights activism can learn from the last 50.
  

• John Q. Barrett, St. Johns, discusses the new documentary “Nazis at Nuremberg: The Lost Testimony,” over at the Jackson List.
  

• Chicago-Kent College of Law invites submissions for the Roy C. Palmer Prize on Democracy, Civil Liberties, and the Rule of Law. This $10,000 prize “honors a work of scholarship that explores threats to, or supports of, the liberal democratic constitutional order.” (H/t Legal Scholarship Blog)
  

• New online in the AJLH: Charitable Trusts of Cemeteries and Places of Worship in Thailand: A Historical Anomaly, by Surutchada Reekie.
  

• “The Labor and Working-Class History Association and Labor: Studies in Working-Class History will jointly award a $2,000 research grant for a contingent faculty scholar, independent scholar, or community college faculty member engaged in work related to working people, their lives, workplaces, communities, organizations, cultures, activism, and societal context in any period and place.” Deadline February 1.
  

• The Levin Center for Oversight and Democracy at the Wayne State University Law School will hold a Zoom webinar on How Courts Are Shaping Congress' Power to Investigate on February 8, 2023, 12:00 - 1:30 p.m. ET.
  

• ICYMI: Is debt limit unconstitutional? Answer is yes, some argue, based on the 14th Amendment's public debt clause (ABAJ).  A timeline on the history of reproductive rights  (History).
  

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

History & Judicial Review of the APA

The recordings of the Notre Dame Law Review's Federal Courts Symposium, "History & Judicial Review of the Administrative Procedure Act," held at the Notre Dame Law School on January 23, 2023, are now posted to YouTube.  The three panels, with corresponding links, are:

Panel I – Interpretation

•  Prof. John A. Ferejohn, New York University School of Law
•  Prof. Kristin E. Hickman, University of Minnesota Law School
•  Prof. Christopher J. Walker, University of Michigan Law School

Panel II – Outcomes & Remedies
•  Prof. Aditya Bamzai, University of Virginia School of Law
•  Prof. Ronald M. Levin, Washington University School of Law
•  Prof. Jill E. Family, Widener Law Commonwealth Law School

Panel III – Historical Backdrop
•  Prof. Evan D. Bernick, Northern Illinois University College of Law
•  Prof. Emily S. Bremer, Notre Dame Law School
•  Prof. Noah A. Rosenblum, New York University School of Law

 --Dan Ernst

Landmark Cases in Labour Law

New from Hart Publishing: Landmark Cases in Labour Law, edited by Jeremias Adams-Prassl, Alan Bogg, and ACL Davies:

This book features essays by leading legal scholars on 'landmark' labour law cases from the mid-19th century to the present day. The essays are acutely sensitive to the historical and theoretical context of each case, and the volume provides original and sometimes startling new perspectives on some familiar friends.

There are few activities as distinctively human as work and labour. The book traces the development of labour law through the social struggles and economic conflicts between workers, trade unions, and employers. The narrative arc of its landmark cases reveals the richness and complexity of the human story played out in the working lives of real people. It also charts the remarkable transformation of the constitutional role of courts in labour law, from instruments of class oppression to the vindication of workers' fundamental rights at work.

The collection will be of interest to students, scholars, and legal practitioners in labour and equality law, as well as students in management studies, industrial relations, and labour history.

TOC after the jump. 

Historical Event in the Northern District of Illinois

Chicagoans: at 4:30 p.m. on Tuesday afternoon, January 31, 2023, in the Parsons Courtroom in the Dirksen Building, US District Court for the Northern District of Illinois will celebrate the hanging of photograph of portraits of its judges that will have to that point been omitted from a courtroom display.  Two sitting judges–Judge Tom Durkin and Judge Manish Shah--will preside and Christopher W. Schmidt, Chicago-Kent College of Law, whom, the announcement states, “is preparing a biography of Judge Kenesaw Mountain Landis,” will comment.  Rich Chan, one of the authors of Chicago Rules: Federal Cases that Defined the City and the Nation, will also speak.

Tani, "After 504: Training the Citizen-Enforcers of Disability Rights"

UPDATE: The final published version of this article is now available here.

I'm excited to share the almost-finalized version of an article I've been working on for some years, on government-funded disability rights trainings in the late 1970s and early 1980s. The title of the article is "After 504: Training the Citizen-Enforcers of Disability Rights."

This article was scheduled to be published last year in the Disability Studies Quarterly, but because of an editorial transition, there has been a delay. With permission from the journal, I've posted an un-finalized draft version (i.e., one that has not gone through the final stages of the editorial process). I especially wanted to put this out in the world because this year marks the 50th anniversary of statutory provision that generated these trainings: Section 504 of the Rehabilitation Act of 1973. 

Here's the abstract:

This draft article, forthcoming in the Disability Studies Quarterly, chronicles and analyzes an underexplored episode in the history of civil rights law and the disability rights movement: a series of government-funded citizen trainings that followed the enactment and administrative interpretation of Section 504 of the Rehabilitation Act of 1973. The first major U.S. civil rights law to address disability-based discrimination, Section 504 is now relatively well known, as are the dramatic protests that helped convince the federal government to finally release implementing regulations. But much less is known about how Section 504’s imagined beneficiaries learned about the content of this new law, or how they gave it meaning in their own lives and communities in the law’s crucial early years. The history of the “Section 504 trainings” provides rich and important insights. Drawing on archival research, recorded oral histories, and original interviews, this article reconstructs those trainings.

The article demonstrates that over the course of three years (1979-82), disability rights groups such as the Berkeley-based Center for Independent Living taught thousands of disabled trainees from around the country to think about Section 504 in a capacious, affirmative way and, further, to think of themselves as rights-bearings citizens, entitled to access and participation. The trainings, which were often disability-led, also taught trainees realistic techniques for identifying and addressing rights violations at the local level, laying the groundwork for the “private enforcement” on which Section 504 and related laws depend.

This article also analyzes the legacies of the Section 504 trainings. First, there was a legacy of political and legal engagement, at both the local and national levels. The individual and collective power of trainees helped initiate change and and prevent backsliding, while also infusing the disability rights movement with energy. Second, the trainings affected how at least some participants thought about themselves — as individuals, as members of communities, and in relation to government. This effect is hard to show, and was not part of every trainee’s experience, but appears too frequently in the sources to discount. The article concludes on a less sanguine note: although there is much to celebrate in this history, these trainings are implicated in a larger architecture of disability rights enforcement that too often claims the labor of disabled individuals only to perpetuate their exclusion and subordination. 

The full article is available here. For a summary of some of the article's main points, check out this Twitter thread.

-- Karen Tani

Stern on Omniscient Narration and the Fellow-Servant Rule

Simon Stern, University of Toronto Faculty of Law, has posted Omniscient Narrative Modes in Law: From Trial Strategy to the Fellow-Servant Rule, which is forthcoming in Law, Culture, and the Humanities:

Lemuel Shaw (NYPL)

Research in law and literature often uses the term “narrative” as a shorthand for various kinds of motivated legal reasoning, indicating that facts, doctrines, and the relations among them have been chosen and arranged for a particular purpose. Alternatively, speaking of “narrative” may be a way of conveying that one is concerned with interpretation, and may be a signal that the discussion will focus on images, symbols, representations, or ideologies, even if their narrative features play little or no role in the analysis. This article shows how research on narrative might help to clarify aspects of trial strategy and legal doctrine. The first section considers omniscient narration as a way of understanding the effects of various defense strategies, in a criminal trial. The second section considers the role of omniscient narration in the development of the “fellow-servant” rule in the nineteenth century. The law of evidence provides an especially fruitful area for such investigations, but questions of narrative form and technique can help to clarify many other aspects of forensic argumentation and analysis, in both procedural and substantive contexts.

--Dan Ernst

Furtaw on Nemo Tenetur in Equity

Alexander Furtaw, University of Notre Dame Law School, has posted Nemo Tenetur in Equity: Revisiting Chancery's Adoption of the Nemo Tenetur Rule in the Seventeenth Century:

This paper examines Professor Michael T. Macnair's contention that the English Court of Chancery adopted the canon-law nemo tenetur rule in the seventeenth century and concludes that Chancery did not adopt the nemo tenetur rule as Macnair concluded. Rather, the cases that Macnair identified as evidence of Chancery's application of the nemo tenetur rule are merely examples of Chancery's application of equitable rules concerning penalties and forfeitures.

--Dan Ernst

Torrie on Depression-Era Canadian Farm Debt Relief

[I have previously copped to a poorly hidden imperialist motive in my interest in comparative history, my tendency to value of a nation’s history principally as an instructive contrast to the case of the United States.  Can you blame me for succumbing to it again when I learned of the following paper, just days before I teach John Fliter and Derek Hoff’s book on Blaisdell?]

Virginia Torrie, University of Manitoba, has posted Saving the Farm: A Comparative Analysis of the Farmers' Creditors Arrangement Act in Manitoba and Ontario, which is forthcoming in the Manitoba Law Journal:

The Great Depression and Dust Bowl of the 1930s caused great hardship for many Canadian farmers, especially in the prairie provinces. In response to falling prices and crop yields, as well as increasing debt levels, Parliament enacted the Farmers’ Creditors Arrangement Act (FCAA). The mandate of the bold, new statute was to keep farmers on the land by reducing and rescheduling debts to suit the productive value of the farmland and the capacity of the farmer to pay. There is little academic scholarship that examines the FCAA and how it functioned in practice. This article builds on an earlier pilot study of FCAA case files in two Manitoba counties, and widens the empirical lens to consider applications from several more Manitoba counties as well as two Ontario counties. It offers the first analysis of how the FCAA operated in Ontario, employing both quantitative and qualitative data to provide a rich commentary, using examples of actual farmers. The analysis reveals that the application of the FCAA was strongly influenced by local, county-level factors. Rather surprisingly, there were few factors that can be attributed to differences between the two provinces more generally, notwithstanding the fact that there are notable variations in farming practices, operations and conditions in Ontario, a non-prairie province, and Manitoba, a prairie province. A secondary finding is that, in general, the compromises formulated under the FCAA were highly tailored to the individual farmer’s circumstances. However, there were nevertheless pockets of case files where a fairly uniform approach was used to resolve the financial hardship of farmers who were, seemingly, all in quite similar circumstances. Accordingly, the picture that emerges is complex. FCAA practice evinces stark contrasts – generating compromises which could be either bespoke or boilerplate – and limiting the extent to which one can generalize based on the empirical data from individual counties or regions.

–Dan Ernst

Tully, Schmidt on Amar's "The Words that Made Us"

The Michigan State Law Review recently published a symposium on Akhil Reed Amar's The Words that Made Us: America's Constitutional Conversation, 1760-1840 (Basic Books), which seeks to offer a "usable past" by retelling constitutional history as a "constitutional conversation."

A response by Caitlin Tully (Princeton University) shows how the trajectory of constitutional theory from the 1970s onward foreclosed possibilities for constitutional interpretation in the present. Here's the abstract: 

Over the past several years, constitutional law scholars have struggled to repudiate what many see as the anti-constitutionalism let loose by the Trump administration. Scholars have put forth a range of proposals – from legislation that assumes a popular mandate, to constitutional amendment, to dispensing with constitutional law altogether – in response to this and related concerns. Strikingly, however, this recent turn sidelines substantive constitutional interpretation. As a result, these responses risk conceding the failure of constitutionalism even as they attempt to remedy it. This essay argues that the current impasse is not because constitutional law is inherently doomed to failure. Instead, it reflects blinders left in place by constitutional theory, the fundamentals of which we have not revisited in decades. This essay argues that scholars remain tethered to a binary between countermajoritarianism and popular constitutionalism, both of which recent experience has called into question. Popular constitutionalism’s well-documented inattention to both the specifics of legal argument and separation of powers renders it compatible with the fusion of populism and executive speech on which Trumpist politics relies; countermajoritarianism’s emphasis on courts as supreme interpreters of the law struggles in the face of the basic bad faith many see at the Court. Discussing Akhil Amar’s recent book, “The Words That Made Us: America’s Constitutional Conversation,” as a jumping-off point, I ask how we might think about the seeming failure of interpretation going forward. I argue that it would be a mistake to see the above theoretical lenses as coterminous with the possibilities of interpretation. History shows that substantive interpretation has taken different forms before; it may still yield results if, along with the theory underlying it, it can be reconfigured for the present.

A response by Tom Schmidt (Columbia Law School) provides a history of how courts in the early republic went from minor voices to dominant interpreters. Here's the abstract:

This essay, written for a symposium on Akhil Reed Amar’s The Words That Made Us, explores how the judiciary transformed from a barely audible to a vociferous participant in America’s constitutional conversation in the period covered by Amar’s book. The emergence of written constitutions with special democratic authority offered a judicially tractable source of limits on government power. Then, after the Federal Constitution went into effect, the early Supreme Court Justices made a set of critical institutional choices that both strengthened the judicial voice and made it distinct from the other branches: They separated themselves from the President and his cabinet, suppressed overt partisanship, and started to speak through unified and elaborately reasoned “opinions of the Court” that were disseminated in official reports. These changes, I argue, remain the backbone of the Court’s institutional identity, and enabled the Court to achieve the preeminence it now enjoys in our constitutional conversation.

Amar's response is here.

-- Karen Tani

Freedom of Expression at American Law Schools

 [We have the following announcement of the Hofstra Law Review Symposium for 2023.  DRE]

Freedom of Expression at American Law Schools, Friday, February 10, 8:30 a.m.-4 p.m. ET, Sidney R. Siben and Walter Siben Moot Courtroom, Room 308, Hofstra Law

Commitments to principles supporting the freedom of expression are found in statements of policy at public and private institutions of higher education throughout the United States. American law schools, either as parts of larger universities or standing alone, have embraced similar policies adhering to the principle that free intellectual inquiry is at the core of a law school’s educational and research mission.

General statements about free expression, however, do not always resolve actual controversies. When does expression "go too far?" Are controversies over free expression at law schools different from those elsewhere on campuses? There have been powerful reminders, in recent years, that law school free expression has limits — that at some point it can collide with other values and interests of concern to deans, faculty, and students.

This event will bring together free expression scholars, practitioners, former and current law school deans, and leaders of American universities to discuss the ways forward.
    
RSVP is required. For more information, email lawreview@hofstra.edu.

[The impressive schedule for the symposium is after the jump.]

Residential Law Fellowships at Princeton

[We have the following announcement.  These are in lieu of the late and lamented Law and Public Affairs (LAPA) Fellowships.  DRE]

The University Center for Human Values and the Princeton School of Public and International Affairs invite practitioners, faculty members of any discipline, independent scholars, and lawyers to apply for visiting residential fellowships for 2023-24. Scholars are required to be in residence in Princeton or the local vicinity.

Fellows will devote an academic year to research, discussion, and scholarly collaboration on topics related to law and public affairs. Scholars will participate in a seminar for Law-Engaged Graduate Students (which involves some mentoring of JD/PhD students) and in activities organized by Law@Princeton. The rank is Visiting Research Scholar or Visiting Professional Specialist.

Applicants must have a doctorate, juris doctor, or an equivalent professional degree at the time of submission. Appointments will be made by SPIA or UCHV. Scholars will affiliate with UCHV or a research center/program at SPIA. Applicants should indicate preferences in regard to affiliations and explain how they would benefit from and contribute to the mission of the center/program. A list of SPIA Centers/Programs can be found at https://spia.princeton.edu/faculty-research/centers-programs

Priority will be given to candidates who are willing to teach one undergrad or grad course in SPIA or UCHV. This contribution may be fulfilled by teaching a course on a topic related to normative issues and law for UCHV, or law in public policy for SPIA. Princeton does not have a law school; the course should not be designed primarily for law students. Instead, it should fit a liberal arts undergraduate curriculum or a professional master's in public policy curriculum. All courses are contingent upon approval of the Dean of the Faculty, sufficient enrollments, and required approvals.

The selection committee looks closely at the research proposal. Successful applicants should demonstrate substantial expertise in law-related matters, but in explaining research projects, applicants would be well advised to write for an audience of academic generalists (not necessarily lawyers). We are particularly interested in potential scholars with interests in policy or in normative inquiry.

The selection committee will evaluate applicants on: the quality of their achievements in their field of specialization and their ability to benefit from the activities of the program; the quality and significance of their proposed research projects and writing sample; the contributions they are likely to make in the future to legal scholarship and practice; their ability to contribute to legal studies at Princeton; and their ability to contribute to the curriculum of one of the two sponsoring units and the University generally. The program seeks to appoint scholars with mutual synergies and a balance between senior and junior scholars, domestic and international scholars, and those based in law schools or in the practice of law and those who are home are in other disciplines.

Scholars visiting from other universities may come with sabbatical support from their home institutions, which would allow them to maintain their full salaries over the course of the academic year. This is not a requirement for receiving a fellowship. Scholars not receiving full salary may be eligible to receive up to one-half of their academic-year salary for the appointment period.

Submit online [here] a cover letter; a CV; 1-2 page research statement for a project pursued in the course of the fellowship; a writing sample consisting of a single article or chapter (published or unpublished); and, if applicable, a teaching statement including a description of either one or two courses; as well as names of two persons to provide letters of reference. Verification of employment will be requested prior to approval by the Dean of the Faculty.

The deadline for submission is February 3, 2023, for full consideration. The anticipated start date is on or about September 1, 2023.

Breathnach on the Dublin City Coroner's Court, 1876-1902

Oxford University Press has published Ordinary Lives, Death, and Social Class: Dublin City Coroner's Court, 1876-1902, by Ciara Breathnach (University of Limerick). A description from the Press:

Ordinary Lives, Death, and Social Class focuses on the evolution of the Dublin City Coroner's Court and on Dr Louis A. Bryne's first two years in office. Wrapping itself around the 1901 census, the study uses gender, power, and blame as analytical frameworks to examine what inquests can tell us about the impact of urban living from lifecycle and class perspectives. Coroners' inquests are a combination of eyewitness testimony, expert medico-legal language, detailed minutiae of people, places, and occupational identities pinned to a moment in time. Thus they have a simultaneous capacity to reveal histories from both above and below. Rich in geographical, socio-economic, cultural, class, and medical detail, these records collated in a liminal setting about the hour of death bear incredible witness to what has often been termed 'ordinary lives'. The subjects of Dr Byrne's court were among the poorest in Ireland and, apart from common medical causes problems linked to lower socio-economic groups, this volume covers preventable cases of workplace accidents, neglect, domestic abuse, and homicide.

More information is available here. An interview with the author is available here, via New Books Network.

-- Karen Tani

Weekend Roundup

• As part of Balkinization's 20th Anniversary Symposium, LHB Founder Mary Dudziak (Emory Law) wrote a fascinating post on "an important methodological problem in the way history is relied on in legal interpretation." Focusing on Korean War history and legal interpretations from the Office of Legal Counsel, she asks: "What should happen when legal interpretation is informed by ideas about history that historians have revised or discarded?" Read on here.  
  

• From the Washington Post's "Retropolis" section: James D. Robenalt, "Original Roe v. Wade ruling was leaked to the press — and we know who did it." And from the "Made by History" section: Christine Adams (St. Mary's College of Maryland), "Universities can’t fend off attacks because they’ve forgotten their roots."
  

• Over at the LPE Blog: Evelyn Atkinson (University of Chicago) on "What the Telegraph Can Teach Us about Moral Economy."
  

• Tom Frost (University of Leicester) has posted a "teaching resource" of interest: "Phillips v Eyre – A Study of Constitutional Law and Empire." (h/t Legal Theory Blog)
  

• From In Custodia Legis: a deep dive into the War Production Board's efforts to place limitations on feminine apparel during World War II. 
  

• National Public Radio's "Fresh Air" interviewed Mary Ziegler (University of California, Davis) for a segment on "The Status Of Abortion Rights In America."
  

• Scott Gerber (Ohio Northern University - Pettit College of Law) has posted a short essay on "Bill Casto and the Pre-Marshall Court." 
  

• Robert M. Kaplan on Daniel M'Naghten: The Man Who Changed the Law on Insanity (Psychiatric Times).  Just published online: Just published online: Ajay K. Mehrotra, Experts, Democracy, and the Historical Irony of U.S. Tax Policy: Thomas S. Adams and the Beginnings of the Value-Added Tax, Modern American History 5 (2022): 239-262.
  

• The deadline for submissions of papers and panels at the Policy History Conference, to be held in Columbus, Ohio from Wednesday, June 7 to Friday, June 9, 2023, has been extended to March 1.
  

• Lawbook Exchange has released its latest catalogue, Scholarly Law & Legal History.
  

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

Kessler on Catholic Conscientious Objection

Jeremy Kessler, Columbia Law School, has posted The Legal Origins of Catholic Conscientious Objection, which appeared in the William & Mary Bill of Rights Journal:

This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to accommodate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s—most especially regulations concerning the provision of contraception and abortion.

Over the past two decades, legal scholars have worked to unearth the social movements and constitutional arguments that paved the way for Roe v. Wade, as well as post-Roe law and politics. These efforts will likely intensify in the wake of Dobbs v. Jackson Women’s Health Organization. This Article contributes to the existing literature by reconstructing some of the institutional and ideological terrain that shaped the Catholic legal reception of Roe as an affront to the Catholic conscience—both coercive of the religious liberty of Catholics and a blow to their equal status as citizens. This history, in turn, helps to clarify the connection between the Roberts Court’s religious liberty and reproductive rights jurisprudence.

--Dan Ernst

CFP: Voices for Liberty

[Although the due date in this CFP has passed, submissions are still open.  DRE]

Voices for Liberty: Free Speech, Civil Rights & Social Progress

Submission: December 31, 2022 — 5 p.m. EST Priority Deadline

Paper proposals must be submitted by December 31, 2022, for full consideration and will be considered after the priority deadline on a rolling basis.  All proposals should include a summary of issues to be addressed, the proposed methodology, and the feasibility of a completed draft by June 2023 and final submission by September 2023. Voices for Liberty will notify those selected by January 31, 2023. Please find the selection criteria and submission guidelines [below].

Full Details:

The Liberty & Law Center at the Antonin Scalia Law School requests paper proposals for its initiative: Voices for Liberty: Free Speech, Civil Rights & Social Progress.  What role has freedom of speech played when it comes to the legal and social progress of groups that have been historically disadvantaged and/or socially marginalized? In the current public debate, some view freedom of speech as detrimental to minority groups, while others champion it as a necessary condition for protecting underrepresented voices. The former view is more often espoused in both the academy and the popular press. As a result, freedom of speech is frequently seen as a countervailing force in tension with civil rights. But is it?

Voices for Liberty aims to:

• Highlight and focus attention on important contributions to the welfare of minority and underrepresented groups made by the ability to speak throughout history;
  

• Analyze the effects of restricting speech;
  

• Assess the argument that limiting speech will help minority groups achieve greater equality; and
  

• Share evidence of the impact of robust speech protections on current and future civil rights movements.

Original scholarship of specific interest includes, but is not limited to:

• A historical examination of the relationship between social progress on minority concerns and freedom of speech for groups and movements such as (but not limited to) abolition, women's suffrage, women’s liberation, religious minorities, the Civil Rights Movement and LGBTQ rights.

• The role free speech plays in advancing the causes of contemporary social movements such as Black Lives Matter, transgender rights, the MeToo movement, etc.

• The role of free speech in making possible new and future civil rights movements.
  

• The impacts of speech regulation, including hate speech provisions, on civil rights movements and underrepresented groups.
  

• The impacts of social media and technology on the relationship between civil rights of minority and underrepresented groups and free speech.

Author Requirements:

1. Research Roundtable, Antonin Scalia School of Law, Arlington, VA (June 2023, Date TBD)
The Initiative will host a research roundtable for the papers, which will bring together scholars and experts to provide feedback on the paper drafts prior to completion. Authors will receive expert feedback to improve the final product. The Liberty & Law Center shall pay for reasonable travel costs to attend the roundtable.

2. Voices for Liberty Symposium (September 22, 2023). The papers will be presented at a public symposium to be held in Arlington, VA. The structure will consist of each author presenting their findings as part of a panel discussion regarding the paper. Authors are expected to attend the Symposium. In addition to the authors, the panelists and moderators will include experts in free speech and other relevant fields from a variety of backgrounds and perspectives. The Liberty & Law Center shall pay for reasonable travel costs to attend the Symposium. The event will be both live-streamed and recorded.

3. Publication of Working Draft on SSRN (September 2023).  Authors are expected to revise their paper based on feedback from the Research Roundtable and have a working draft suitable for publication on SSRN by Sept. 1, 2023. Papers will also be housed on the Initiative’s and Center’s website.

4. Completion of Final Draft and Submission to an Academic Journal (Sept. 2023-Apr. 2024).  The papers will be published on SSRN by the Liberty & Law Center in September 2023 and in academic journals. Authors are responsible for securing placement in a law review or academic journal by April 15, 2024. The Liberty & Law Center may arrange to have the papers published in a symposium issue of a law journal.

5. Op-Ed, Webinars, and Other Media. (Sept. 2023-Apr. 2024).  Each paper will be accompanied by at least one op-ed written by the author and placed in a prominent news outlet. The Initiative work with the author on placing the op-ed.

Application Process:

Paper proposals must be submitted by December 31, 2022, for full consideration and will be considered after the priority deadline on a rolling basis. 

To submit a paper proposal for Voices for Liberty please email your application to VFLI@gmu.edu.  All proposals are treated confidentially. Within the proposal, please include submitter information including: first and last name, position title, email, organization, and a brief bio. All proposals should include a summary of the issue to be addressed, the proposed methodology, and the feasibility of a completed draft by June 2023 and final submission by September 2023.

The Initiative will notify those selected by January 31, 2023. The Liberty & Law Center will offer substantial honoraria to paper authors.

Important Notes Regarding Application:

• On your application, please include your citizenship status (confirmation of current U.S.citizenship or current visa status). Please note that there is a difference in the honorarium payment process and travel processing for authors without U.S. citizenship; this will vary based on the individual’s visa status.
  

• All interested applicants must check with their university or employer before applying to ensure that the individual is cleared to participate in the program and so that their university or employer understands the program’s requirements.
  

• Accepted applicants will be required to sign an agreement confirming they understand the program requirements and payment details.