Tani on ASLH Panel: Gender, Soldiering, and Citizenship in the 20th Century United States

This post on the 2009 American Society for Legal History conference comes from Karen Tani, the Sharswood Fellow in Law and History, University of Pennsylvania:

Among the many offerings at this year’s meeting of the American Society for Legal History was a Friday morning panel on “Gender, Soldiering, and Citizenship in the Twentieth Century United States,” chaired by Jill Hasday (University of Minnesota). The three papers spanned almost the entire twentieth century, but clustered around similar themes: the shifting but persistent connection between warfare and welfare; the deeply gendered nature of American social welfare provision; and the difficulties that arise when special categories of citizens – women, soldiers, racial minorities – make competing claims on the polity.

The first panelist, Rebecca Rix (Princeton University), presented “‘No Longer the Men of Lexington’: Unfit Draftees and the Changing Meaning of ‘the General Welfare,’” which is a piece of a book project. Rix opened her talk by referencing the mythic “Men of Lexington”: skilled citizen-soldiers capable of rallying to the nation’s defense at a moment’s notice. The Selective Service Act (1917) – or rather the medical evaluations that resulted from it – revealed a very different male population: four fifths of those evaluated had some “defect”; one third were deemed unfit for service. This revelation shocked the War Department and helped trigger a wave of new social welfare legislation. Women and children were key beneficiaries, Rix explained, because policymakers traced draftee defects to the care that men received in their infancy and youth. But Rix’s larger argument hinged less on particular programs, which came and went, and more on policymakers’ increasingly capacious definition of the “general welfare.” Rix concluded by suggesting that the government’s (and in particular, the federal government’s) expansive use of the police power during and after World War I established a crucial element of modern liberalism.

Melissa Murray (University of California, Berkeley) was unable to present her paper, “‘Made with Men in Mind’: Veterans’ Benefits, Gender, and Social Policy,” but Laura Kalman (University of California, Santa Barbara) gave it a lively reading. The paper revolved around one central insight: veterans’ benefits and preferences did not just benefit and prefer men: they entrenched (deliberately, Murray argued) traditional understandings of manhood and womanhood. Men were protectors and providers; women were dependents. Thus when women were allowed to serve in the military, they were tasked with work that “supported” male soldiers; when women were recruited into the industrial work force, government spokespersons took pains to portray that work as within the domestic sphere; and when it was time to reward veterans for their service, the rewards reinforced the notion that male veterans were returning as workers (and female veterans were not). This last point, Kalman noted, bears emphasis, as it has not been the focus of other studies of the GI Bill: the drafters of the Bill were deeply concerned with fueling and stabilizing the postwar economy; veterans’ benefits (monthly stipends, support of education) were a hedge against unemployment.

Serena Mayeri (University of Pennsylvania) rounded out the panel with a paper titled “Preferred Veterans, Prison Guards, and Pregnant Workers: Attacking ‘Disparate Impact’ in the 1970s.” The paper, which focused on how legal challenges to veterans’ preferences fit with feminist legal campaigns, is part of Mayeri’s ongoing book project, Reasoning from Race: Legal Feminism in the Civil Rights Era. Mayeri began by identifying an important shift in feminist legal strategy in the mid-1970s: from an “anti-differentiation” model (based on the notion that like should be treated alike) to a “disparate impact” model (based on the idea that “neutral” policies and practices should be deemed invalid when they have a disparate effect on particular groups). Feminists believed that the disparate impact theory held particular promise in the pregnancy context. Thus Mayeri spent a few minutes discussing the legal trail that began with Geduldig v. Aiello (1974) and ended with the Pregnancy Discrimination Act (1978). But Mayeri focused her presentation on Personnel Administrator of Massachusetts v. Feeney (1979), through which feminists challenged a Massachusetts veterans’ preference law that disparately impacted women. The holding in Feeney is well known: the Court upheld the law because its consequences for women, though foreseeable, did not indicate intent to discriminate. Mayeri illuminated a less well-known aspect of the decision: veterans were not, at least for some justices, the overriding concern. Justice Powell in particular was unsympathetic to the Massachusetts law. But he worried about the race/sex analogy that was by the late 1970s embedded in the case law; he understood that because of the analogy a decision for Feeney would undercut the Court’s decision in Washington v. Davis (1976) (refusing to recognize disparate impact liability in a failure-to-hire equal protection case brought by two African Americans). Mayeri’s overarching point was that analogizing sex to race, as a feminist legal strategy, had limits and risks; these came to the fore when the interests of women, African Americans, and other special categories of citizens collided.

Gretchen Ritter (University of Texas) gave thoughtful comments on each paper and offered several provocative observations about the panel as a whole. For example, she noted the clear nexus between social welfare and military service; that nexus meant that during and after war, social welfare provision could expand – but at what price? At whose cost? Ritter also wondered about the potential of the veterans’ preference tradition, which she described as one of inclusion and enablement. This tradition lives on in the Americans with Disabilities Act and in affirmative action policies. Why can’t we seem to develop this model further?

In the time that remained the panel took questions from the audience. The discussion included observations about the gendered nature of American warfare, the important distinction between veterans’ preferences and veterans’ benefits, and the implications of Supreme Court cases that appear to sanction affirmative action on behalf of women (even as the Court edges closer to a “colorblindness” standard in cases involving race).

Women pilots in WW II

The ASLH's Annual Meeting: H-Law's Report

[We'll shortly be posting some reports on individual sessions at the just-concluded annual meeting of the American Society for Legal History. In the interim, here is H-Law's report.]

The American Society for Legal History has concluded its 2009 meeting in Dallas. The newly elected members of the Board of Directors are Mary Bilder, Holly Brewer, Risa Goluboff, Dylan Penningroth and Vicky Saker Woeste. The new members of the Nominating Committee are Sally Gordon and David Konig.

The Cromwell book prize went to Rebecca McLennan for The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776-1941 (Cambridge University Press). The Cromwell dissertation prize went to Jed Shugerman "The People's Courts: The Rise of Judicial Elections and Judicial Power in America" (Yale, 2008).

The John Philip Reid Award likewise went to Rebecca McLennan for her book "The Crisis of Imprisonment." [I add that the book also received the Littleton-Griswold Prize of the American Historical Association and appeared in the series Cambridge Historical Studies in American Law and Society, edited by Christopher Tomlins. DE.]

The Preyer Scholars selected were Cary Franklin, who presented on "Sex Roles and the Foundations of Constitutional Sex Discrimination Law" [forthcoming in volume 85 of the NYU Law Review--DE] and Elizabeth Katz, who presented "'Wife Beating' and 'Uninvited Kisses' in the Supreme Court and Society in the Early Twentieth Century." David Konig, who chaired the Preyer Memorial Committee, gave lengthy citations for both as well.

The Surrency Prize went to Gautham Rao for his article "The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America" and the Sutherland Prize went to Paul Halliday and G. Edward White for "The Suspension Clause: English Text, Imperial Contexts, and American Implications."

The 2010 American Society for Legal History meeting will be November 18-21, in Philadelphia. The ASLH returns to Philadelphia for the first time since the Bicentennial of the Constitution in 1987.

Hat tip: H-Law

Preyer's Blackstone in America

In the words of the dedication in the Fall 2005 issue of Law and History Review, Kathryn T. Preyer (1925-2005) was "a distinguished American legal and constitutional historian and professor emerita of history at Wellesley College, where she taught from 1955 until her retirement in 1990." To honor her generosity, especially to beginning and junior scholars, the American Society for Legal History selects two "Kathryn T. Preyer Scholars" to present what would normally be their first papers at the ASLH's annual meeting. Now Cambridge University Press has recognized Professor Preyer's scholarly achievements by publishing Blackstone in America: Selected Essays of Kathryn Preyer, edited by Mary Sarah Bilder, Maeva Marcus, and R. Kent Newmyer. According to the Press:

Blackstone in America explores the creative process of transplantation – the way in which American legislators and judges refashioned the English common-law inheritance to fit the republican political culture of the new nation. With current scholarship returning to focus on the transformation of Anglo-American law to “American” law, Professor Kathryn Preyer's lifelong study of the constitutional and legal culture of the early American republic has acquired new relevance and a wider audience.

All nine of Professor Preyer's important and award-winning essays are easily accessible in this volume, with new introductions by three leading scholars of early American law. The collection includes Preyer's work on criminal law, the early national judiciary, and the history of the book.

Here are the Contents:

General Introduction: Stanley N. Katz

PART I: LAW AND POLITICS IN THE EARLY REPUBLIC
1. Federalist Policy and the Judiciary Act of 1801
2. The Appointment of Chief Justice Marshall
3. The Midnight Judges
4. United States v. Callender: Judge and Jury in a Republican Society

PART II: THE LAW OF CRIMES IN POST-REVOLUTIONARY AMERICA
5. Penal Measures in the American Colonies: An Overview
6. Crime, the Criminal Law, and Reform in Post-Revolutionary Virginia
7. Jurisdiction to Punish: Federal Authority, Federalism, and the Common Law of Crimes in the Early Republic

PART III: THE HISTORY OF THE BOOK AND TRANS-ATLANTIC CONNECTIONS
8. Cesare Beccaria and the Founding Fathers
9. Two Enlightened Reformers of the Criminal Law: Thomas Jefferson of Virginia and Peter Leopold, Grand Duke of Tuscany

Centuries of Citizenship: A Constitutional Timeline

New on the website of The National Constitution Center is Centuries of Citizenship: A Constitutional Timeline. The Center describes the exhibit as

is an online experience highlighting some of the key dates and events that mark more than 200 years of our constitutional history. These timeline entries, taken as a whole, tell the evolving story of the U.S. Constitution and the continuing role that it plays in our lives.

Visitors can browse through a collection of stories and headlines -- annotated by images, audio and video clips and interactive content -- to explore some of the people, events and issues that have shaped the Constitution and the history of our nation.

Hat tip.

Sunday book notes

A quick book post from Dallas:

Via Ralph Luker:

Tom Carson, "American Original," Barnes & Noble Review, 11 November, reviews Joan Biskupic's American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia.

Reviewed in the New York Times:

TOO BIG TO FAIL: The Inside Story of How Wall Street and Washington Fought to Save the Financial System From Crisis — and Themselves by Andrew Ross Sorkin and HOW MARKETS FAIL: The Logic of Economic Calamities by John Cassidy.

THE GROUND TRUTH: The Untold Story of America Under Attack on 9/11 by John Farmer.

Abrams on Immigration, Westward Expansion, and the Mercer Girls

The Hidden Dimension of Nineteenth-Century Immigration Law is a new article by Kerry Abrams, University of Virginia School of Law. It appears in Vanderbilt Law Review (October 2009). Here's the abstract:

This Article challenges the conventional wisdom that the law had little to say about immigration before 1875. Instead, it offers a reframing of immigration law history as including what scholars have previously thought of as settlement history”: The immigration of whites to the western territories. The Article focuses on a particular group of immigrants-the so-called Mercer Girls-to explore both how the failure to invoke exclusionary immigration law and the presence of other kinds of laws (including homestead acts and anti-miscegenation statutes) functioned to shape the population of the nascent western territories. A close look at this type of immigration and this group of immigrants in particular facilitates a reconceptualization not only of narratives of American westward immigration, but also of the way immigration law actually works, both on its own and in tandem with other doctrinal schemes. The story of the Mercer immigrants can help us put exclusionary immigration law in context as part of a broad set of legal strategies used to produce, shape, and maintain populations. More importantly, it shows us that the study of restriction only tells part of the story of our country. To understand whether immigration policy is meeting its goals, we must look to see how the law fosters immigration as well as how the law restricts it.

Image credit: The Mercer Girls.

2010-11 National Miller Center Fellowships

[A few years back, I had the pleasure of serving as a mentor to a Miller Center National Fellow. Here's the announcement for next year's Fellowship.]

The Governing America in a Global Era (GAGE) program at the University of Virginia’s Miller Center of Public Affairs invites applications for the 2010-11 National Miller Center Fellowship. The Miller Center Fellowship is a competitive program for individuals completing their dissertations on American politics, foreign policy and world politics, or the impact of global affairs on the United States. The GAGE fellows represent a new cohort of academics who seek to address critical issues facing our nation by engaging a larger public in a discussion about patterns in American political development.

The fellowship provides up to eight $20,000 grants to support one year of research and writing. Along with the fellowship grant, the Miller Center assists the fellow in choosing a senior scholar as fellowship “mentor” to make suggestions on the literature in which the fellow should frame the project, read the fellow’s work, and give general advice on research.

The Miller Center also invites applications for the Wilson Carey McWilliams Fellowship. The McWilliams Fellowship supports a graduate student in political science or history whose dissertation combines the special blend of Political Theory and American Politics that characterized the late Wilson Carey McWilliams's extraordinary scholarship. The applicant must be a Ph.D. candidate who is expecting to complete his or her dissertation by the conclusion of the fellowship year. The McWilliams fellow will participate in the regular Miller Center Fellowship program and will also be paired with a fellowship “mentor.”

The Miller Center encourages applicants from a broad range of disciplines, including but not limited to history, political science, policy studies, law, political economy, and sociology. Applicants will be judged on their scholarly quality and on their potential to shed new light upon contemporary developments in American Politics, Foreign Policy, or World Politics.

Requirements: An applicant must be (1) a Ph.D. candidate expecting to complete his or her dissertation by the conclusion of the fellowship year, or (2) an independent scholar working on a book. This is not a post-doctoral fellowship.

Residence is strongly encouraged but not required. All fellows are expected to participate in and contribute to the intellectual discourse at the Center, as well as attend conferences in Fall 2010 and May 2011. These two conferences will provide a forum for presenting research and findings to the scholarly community at the Miller Center and the University of Virginia.

To Apply: Please complete our online application here. All applications must be submitted online by February 1, 2010. Applicants will be notified of the selection committee’s decision in April 2010. Inquiries should be directed to Anne Mulligan at acm8k@virginia.edu or 434-243-8726, or Bart Elmore at bje5d@virginia.edu . Additional information is available here.

Image credit.

Blank on The Laws of War in Shakespeare

The Laws of War in Shakespeare: International vs. Internal Armed Conflict has just been posted by Laurie R. Blank, Emory Law School. It appeared in the New York University Journal of International Law and Politics (Fall 1997/Winter 1998). Here's the abstract:

International humanitarian law distinguishes between international armed conflict and internal, or non-international, armed conflict and sets forth the rules and obligations of parties to each type of conflict. Throughout history, states have recognized that different rules apply to their behavior in internal conflicts than to actions in international conflicts; indeed, many of the normative principles underlying modern international humanitarian law date back to the Middle Ages and even to classical times. This article examines the distinction between internal and international wars in Shakespeare, and demonstrates that the normative and legal rules in force recognized and highlighted the dichotomy between domestic and foreign conflicts. Throughout Shakespeare’s works, foreign wars differ greatly from domestic conflicts in the formalities observed, the obligations of the parties toward each other, and the actual law imposed in the event of wrongdoing - and the language used demonstrates his understanding of these legal and moral distinctions. This article focuses on three primary areas to showcase the distinction between international and internal armed conflict in Shakespeare: the manifestations of the applicable law, the justifications for starting a war in the international arena versus an internal war, and the different rules governing actions in foreign war and domestic conflict, such as the treatment of opponents and the obligations of the chivalric code.

Lund on Hamburger, Law and Judicial Duty

Judicial Review and Judicial Duty: The Original Understanding has been posted by Nelson Lund, George Mason University School of Law. It is forthcoming in Constitutional Commentary. Here's the abstract:

What we call “judicial review” was not established in Marbury v. Madison, or by American courts. It had existed in English and then American law for centuries, not as some kind of peculiar power but rather as a corollary of the judicial duty to decide cases according to the law of the land. While that duty sometimes required judicial courage in the face of political threats, this was not its most difficult or pervasive demand. The real challenge was the requirement that judges purge their decision-making of the influence of their own wills, which required them to set aside their own views about natural law, God’s will, sound policy, and even justice itself.

Phillip Hamburger’s Law and Judicial Duty advances and defends these claims with subtlety and detailed evidence. He carries his historical study up through the end of the eighteenth century, and thus has little to say about subsequent changes in the understanding of judicial review and judicial duty. But there are obvious implications for our contemporary debates about the proper role of judges and about the distinction between law and politics. This review touches on those debates, and suggests that a broadened political role for the federal judiciary may have been more clearly foreseeable than the leading proponents of our Constitution thought it wise to acknowledge during the ratification debates.

ASLH Final Program

If you're attending the American Society for Legal History Conference, you can find the final version of the program, with panels, receptions, and all the details, right here. A guide to Dallas is here.

Carbolic Smoke Ball: The View from the History of Medicine

Over on the OUP Blog is a brief posting on the Carbolic Smoke Ball case, prompted by the publication of Asthma: The Biography, by Mark Jackson, a professor of the history of medicine at the University of Exeter. "While Carlill v. Carbolic Smoke Ball Company became a celebrated moment in legal history," Jackson writes, "it also reveals several dimensions of contemporary approaches to respiratory diseases, including asthma." More.

Call for ASLH Guest Posts

If you are attending the American Society for Legal History meeting this week in Dallas, the Legal History Blog welcomes your guest post about any panels you attend. For examples of terrific guest posts, see Karen Tani's coverage of last year's meeting, here and here. Even those attending the meeting cannot hear all the papers, so readers always appreciate this kind of ASLH conference news.

To sign up for guest post(s), please e-mail me. No technical expertise is required -- we take care of that for you.

And apologies for sparse posting over the weekend, since both Dan and I are going to Dallas.

Ely asks Whatever Happened to the Contract Clause?

Whatever Happened to the Contract Clause? is a new paper by James W. Ely Jr., Vanderbilt University School of Law. Here's the abstract:

This paper examines the decline of the contract clause in constitutional jurisprudence. Although the contract clause occupied a key and much-litigated place in constitutional law during the nineteenth century, the Supreme Court never read the clause with literal exactness. Over time the Court began to limit the reach of the contract clause in a number of ways. It early distinguished between contractual rights and the remedy available to enforce such rights. States retained some room to modify enforcement procedures. Thereafter the Court insisted upon strictly construing legislative grants and recognized an inalienable police power to protect the health, safety, and morals of the public. Moreover, the Supreme Court upheld rent control laws and mortgage moratorium measures as valid legislative responses to emergency conditions which trumpted contracts between individuals. In short, the Supreme Court recognized so many exceptions to the contract clause as to virtually read it out of the Constitution. The advent of New Deal constitutionalism in the late 1930s, which downplayed economic rights and affirmed broad regulatory authority, completed the effective destruction of the contract clause. Despite some fleeting interest in revitalizing the clause, and a few decisions enforcing contract clauses in state constitutions, this once-powerful provision remains at the fringe of modern constitutional law. The paper contends that the decline of the contract clause likely reflects a diminished faith in contractual bargaining and competitive markets.

Garrett on TVA v. Hill

Elizabeth Garrett, USC Law School, has posted on bepress The Story of TVA v. Hill: Congress Has the Last Word, which is forthcoming in Eskridge, Frickey & Garrett, eds., Statutory Interpretation Stories (Foundation Press, 2010). Here’s the abstract:

TVA v. Hill, often noted for its importance in shaping environmental law, is also a key case in statutory interpretation law. The case involves the conflict between finishing the Tellico Dam and Reservoir, a project of the Tennessee Valley Authority that many characterized as pork barrel spending, and protecting the habitat of the rare snail darter fish. Although the Supreme Court’s decision halted construction of the nearly finished dam, Congress subsequently passed legislation ordering completion of the reservoir project. Drawing on key legislative materials and judicial documents, Professor Garrett shows how this case illuminates the interactions among the three branches of government on a question of statutory interpretation. Participants in all branches of government were keenly aware of the involvement of the other governmental actors and made their decisions in light of expected reactions by others. This chapter traces the Tennessee Valley Authority’s decision to build the Tellico Dam and the years of congressional attention to the project through the annual appropriations process; details the litigation brought to stop the dam by a law professor and his students; and analyzes legislative reactions to the Supreme Court decision interpreting the Endangered Species Act to protect the snail darter’s habitat. The story of TVA v. Hill illustrates that, despite internal rules discouraging appropriations riders and the judicial canon disfavoring such provisions, Congress can achieve its purposes by passing a clearly worded provision within the text of annual appropriations bills.

Image credit.

CFP: Grad Student Conference on Biopolitics Across Borders

The Department of History
COLUMBIA UNIVERSITY
Biopolitics Across Borders: Ideas and Practices
A Graduate Student Conference
April 9, 2010

Proposal deadline: January 18, 2010

Graduate students are invited to submit paper proposals for the annual graduate student conference in international and global history at the Columbia University Department of History, to take place in New York City on April 9th, 2010.

What happens when human life itself becomes an international problem? The questions of defining and regulating biological life have confronted every society — and with the rapid growth of biomedical technologies and techniques of ecological and environmental intervention, they are especially urgent today. What, then, have been the ideas and practices of transnational biopolitics, and how can we periodize them? How have the challenges of managing and optimizing human life contributed to international conflict and cooperation? How have challenges to transnational biopolitics registered at an individual and community level?

Possible paper topics include but are not limited to:
- colonial and anti-colonial biopolitics
- gender in biopolitics
- biopolitical constructions of race and racism
- eugenic doctrines and practices
- international health
- international scientific communities
- transnational population movement and management
- effects of biopolitical ideas on international relations
- human rights ideas and law
- biopolitics and the human environment
- impact of religious and moral thought on biopolitics
- human and non-human actors in transnational biopolitics
- contested concepts of the human

Specialists from Columbia University will provide commentary.

We welcome submissions from all time periods - ancient, medieval, early modern, and modern - and geographic regions. We encourage interdisciplinary research, and although proposals with a historical perspective are particularly welcome, we will also consider contributions from fields including anthropology, economics, literary studies, philosophy, political science and sociology.

Limited funding for travel and assistance in arranging accommodation may be available.

Graduate students interested in participating should submit a paper abstract of no more than 300 words and a recent CV as email attachments (word or PDF format preferred) by January 18, 2010 to Trey Straussberger, at the following address: jfs2129@columbia.edu.

Isabel Gabel
Organizing Committee, Graduate Student Conference in International History Columbia University

Hat tip: H-Diplo.

Devins on How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars

How 'Planned Parenthood v. Casey' (Pretty Much) Settled the Abortion Wars is a new article by Neal Devins, William & Mary Law School. It appears in the Yale Law Journal, Vol. 118, p. 1318, 2009. Here's the abstract:

More than twenty-one years after Robert Bork’s failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this essay, I will debunk those claims. First, I will explain how Casey’s approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey - either by restoring the trimester test or by overruling Roe altogether. Third (and most important), I will explain how it is that Casey stabilized state abortion politics. The national consensus favoring limited abortion rights remains intact. Correspondingly, the template of laws approved by the Supreme Court in Casey were politically popular at the time of Casey and remain politically popular today. Indeed, since Pennsylvania has always been one of the most restrictive states when it comes to abortion regulation, very few states are interested in pushing the boundaries of what Casey allows. And while a
handful of outlier states have pushed the boundaries of what Casey allows, these states (which account for a quite small percentage of abortions) have largely worked within parameters set by the Court in Casey. Perhaps most telling, neither the confirmation of Chief Justice Roberts and Justice Alito nor the Supreme Court’s approval of federal partial-birth abortion legislation has significantly impacted state antiabortion efforts. For all these reasons, pro-choice and pro-life interests would be better served shifting their energies away from legalistic fights over abortion regulation and toward shaping the hearts and minds of the women who may seek abortions and the doctors and clinics that may provide abortion services.

Tamanaha's "Beyond the Formalist-Realist Divide"

Brian Z. Tamanaha, Washington University School of Law, has just published Beyond the Formalist-Realist Divide: The Role of Politics in Judging, with the Princeton University Press. We’ve noted several essays advancing the arguments developed in the book here and here and here. The Press's description is as follows:

According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.

Blurbs Larry Solum:

Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against naïve or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!

And Sanford V. Levinson writes:

Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative.

Cooper's Wilson: The Wilson Center Book Launch

The United States Studies Program of the Woodrow Wilson International Center for Scholars announces a book launch for Woodrow Wilson: A Biography, with the author, John Milton Cooper, Jr., History, University of Wisconsin and the commentators David S. Patterson, the former Chief Editor of the Foreign Relations of the United States Series, and Leo P. Ribuffo, History, George Washington University. The launch will take place on Tuesday, November 10, from 3-5 p.m., with a reception to follow. It will be held in the 5th Floor Conference Room, Woodrow Wilson Center, 1300 Pennsylvania Avenue N.W., Washington, DC. It is a free public event, but acceptances are required to usstudies@wilsoncenter.org.

Larson on Rethinking the Right of Publicity Through the Leopold Case

Murder Will Out: Rethinking the Right of Publicity Through One Classic Case has just been posted by Edward Larson, Pepperdine University School of Law. It is forthcoming in the Rutgers Law Review (2009). Here's the abstract:

In this forthcoming article, the author uses the protracted legal battles over the right of publicity stemming from the lasting celebrity created by the so-called “crime of the century” to propose a legal test for applying the right of publicity generally. These legal battles were fought during the 1960s over the right of celebrity slayer Nathan Leopold to control the use of his name and personality in a novel, movie, and stage play. After conflicting lower court decisions that had a chilling effect on writers and publishers, the case was eventually decided against Leopold. The author agrees with this result but argues that, because there has been a tendency to decide such disputes on a case-by-case basis, similar uncertainty continues to arise in analogous cases. He proposes a clear test, easily understood by both creators and users of celebrity personality, which would balance the interests of the parties and bring added predictability to this area of the law.

Image: Nathan F. Leopold, Jr.

Kellogg on Holmes on Judicial Restraint

Frederic R. Kellogg, University of Edinburgh Law School, has posted Holmes, Common Law Theory and Judicial Restraint, which originally appeared in John Marshall Law Review 36 (2003): 457. Here is the abstract:

Judicial restraint is a subject properly bound with the interpretation, and hence the definition, of law. The nature and contours of what judges interpret dictate what is appropriate for them to do. Supreme Court Justice Oliver Wendell Holmes, Jr., who was a scholar and a philosopher before a judge, espoused a pronounced form of judicial restraint in constitutional law. In form and explanation, Holmes' judicial self-restraint is unlike versions found in recent literature. Rooted in a theory of the common law and associated with insights common among early American pragmatic philosophers, its most remarkable aspect is a radical form of nonintervention, not mere moderation. To be properly understood, it must be examined in light of a distinctive concept of law.

Image credit

Weekend book notes

Borrowing from Ralph Luker this weekend:

Carlin Romano, "Perspectives on the fall of the Berlin Wall," LA Times, 8 November, reviews Stephen Kotkin's Uncivil Society: 1989 and the Implosion of the Communist Establishment, Michael Meyer's The Year That Changed the World: The Untold Story Behind the Fall of the Berlin Wall, Constantine Pleshakov's There Is No Freedom Without Bread!: 1989 and the Civil War That Brought Down Communism, and Jeffrey A. Engel, ed., The Fall of the Berlin Wall: The Revolutionary Legacy of 1989.

Ted Widmer, "Electoral excitement, all over again," Washington Post, 8 November, reviews Dan Balz's and Haynes Johnson's The Battle for America: The Story of an Extraordinary Election.

Gregory Cowles, "Stray Questions for: Woody Holton," Paper Cuts, 6 November, interviews the University of Richmond historian, whose new book on Abigail Adams appeared this week.

Jenna Weissman Joselit, "Founding Father," Tablet, 5 November, reviews Bruce Feiler's America's Prophet: Moses and the American Story.

Melanie Kirkpatrick, "China's Mystery Lady," WSJ, 3 November, reviews Hannah Pakula's The Last Empress: Madame Chiang Kai-shek and the Birth of Modern China.

Tariq Ali, "The life and death of Trotsky," Guardian, 31 October, reviews Bertrand M. Patenaude's Stalin's Nemesis: The Exile and Murder of Leon Trotsky and Robert Service's Trotsky: A Biography.

Harold Bloom, "The Critic's Critic," NYT, 5 November, reviews David Nokes's Samuel Johnson: A Life.

Wefing on Richard J. Hughes

Just published by the Rutgers University Press is The Life and Times of Richard J. Hughes, by John B. Wefing, Seton Hall University School of Law. According to the Press, the book

explores the influential public service of this two-term New Jersey governor. He was the only person in New Jersey history to serve as both governor and chief justice of the New Jersey Supreme Court.

This biography illuminates the governor’s accomplishments between 1962 and 1970, including the creation of the Hackensack Meadowlands Commission, formation of the county college system, establishment of stringent antipollution laws, design of the public defender system, and the adoption of a New Jersey sales tax, as well as his pivotal role during the Newark riots. As chief justice, Hughes faced difficult issues—school funding, low and moderate income housing needs, freedom of speech, and his decision in the right-to-die case involving Karen Ann Quinlan. With a career characterized by liberal activism, Hughes also contributed nationally and internationally, from serving as host of the 1964 Democratic National Convention to monitoring elections in South Vietnam.

John B. Wefing’s research includes interviews with prominent politicians and leaders who worked with Hughes at various points in his career. The result is a rich story of a public servant who possessed a true ability to work with members of both political parties and played a significant role in shaping modern New Jersey.

Robert Williams, Distinguished Professor of Law, Rutgers University School of Law, Camden, blurbs, "This is a must for those interested in New Jersey. It is not just about Hughes, but also about New Jersey politics and society in a very important period."

Hat tip: Ron Collins

Goodfriend on Baer, Trial of Frederick Eberle

H-SHEAR has published Ethnicity and Language in the Early Republic, a review by Joyce Goodfriend, University of Denver, of Friederike Baer, The Trial of Frederick Eberle: Language, Patriotism and Citizenship in Philadelphia's German Community, 1790 to 1830 (New York University Press, 2008). The review commences:

This small book tackles a very large subject, nothing less than what it meant to be an American in the early Republic. It does so through a minute examination of a language dispute in Philadelphia’s German Lutheran Church that spilled over into the courtroom. If initially one has doubts whether such an obscure congregational matter could lend itself to an exploration of the crucial question of national identity, Friederike Baer’s incisive analysis of the episode and its larger significance sets them to rest. Thoroughly in command of the details of the escalating conflict that embroiled the local German community for several decades, she marshals a surprisingly rich cache of evidence to elucidate the social composition and political leanings of the competing parties; differentiate the positions of clergy, lay leaders, and rank-and-file church members; and craft illuminating biographies of key figures in the drama.

More.

Hat tip: H-Law

Brandeis at the National Archives

The National Archives, in conjunction with the Freedom Forum’s First Amendment Center, will be hosting a panel, Supreme Court Justice Louis D. Brandeis, the Law and the 21st Century, to be held at the Archives’s William G. McGowan Theater, 7th Street and Constitution Avenue, N.W., Washington, D.C., on Thursday, November 19, at 7 p.m.

According to the announcement:

As a Supreme Court justice (1916–1939), Louis D. Brandeis developed the modern jurisprudence of free speech and laid the basis for a constitutionally protected right to privacy. He helped draft the Federal Reserve Act, the Clayton Antitrust Act, and the law establishing the Federal Trade Commission (FTC). Melvin Urofsky, author of Louis D. Brandeis: A Life, and a distinguished panel discuss Brandeis’s story and his continuing effect on American society. Adam Liptak, Supreme Court correspondent for the New York Times, will moderate. Panelists include Jon Leibowitz, chairman of the FTC; Thomas L. Ambro, third circuit judge, U.S. Court of Appeals; and Maeva Marcus, director of the Graduate Institute for Constitutional History.

A book signing of Louis D. Brandeis: A Life will follow the program.

Hirtle, et al., on Copyright and Cultural Institutions

Peter B. Hirtle, Cornell University Library, Emily Hudson University of Melbourne Law School, and Andrew T. Kenyon, University of Melbourne Law School have posted Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums ( Cornell University Library Press) on SSRN and here. Here is the abstract:

Digital communications technologies have led to fundamental changes in the ways that cultural institutions fulfil their public missions of access, preservation, research, and education. Institutions are developing publicly-accessible websites in which users can visit online exhibitions, search collection databases, access images of collection items, and in some cases create their own digital content. Digitization, however, also raises the possibility of copyright infringement. "Copyright and Digitization" aims to assist understanding and compliance with copyright law across libraries, archives, and museums. It discusses the exclusive rights of the copyright owner, the major exemptions used by cultural heritage institutions, and stresses the importance of "risk assessment" when conducting any digitization project. It also includes two cases studies, examining digitizing oral histories and student work.

Hat tip: Legal Theory Blog

The Law Are an Ass

Minor Myers, Brooklyn Law School, has posted Supreme Court Usage and the Making of an 'Is' It originally appeared in the Green Bag, 2d ser. 11 (Summer 2008): 457. Here's the abstract:

This survey examines use of the phrases “United States is” and “United States are” in opinions of the United States Supreme Court from 1790 to 1919. The familiar claim, popularized by Shelby Foote in the Ken Burns Civil War documentary, is that the Civil War marked a shift in usage from plural to singular. This survey demonstrates that in the Supreme Court this account of the timing of the change is not accurate. Although patterns of usage changed abruptly in the 1860s, justices continued to use the plural form through the end of the nineteenth century. Indeed, the plural usage was the predominant usage in the 1870s, 1880s, and 1890s. Only in the beginning of the twentieth century did the singular usage achieve preeminence and the plural usage disappear almost entirely.

Here are some responses by well-informed Green Bag readers.

Image credit.

Morag-Levine 's Long View on Agency Statutory Interpretation

Noga Morag-Levine, Michigan State University College of Law, has posted Agency Statutory Interpretation and the Rule of Common Law, which is forthcoming in Michigan State Law Review (2009). Here is the abstract:

American administrative theory and law have long treated as an axiom the notion that agencies are subordinate to the statutes that govern their mandates, and that statutory interpretation is central to the implementation of these mandates. And yet, as recent discussions among administrative law scholars have made evident, statutory interpretation is frequently a poor descriptor of administrative practices that more closely resemble direct policy making. This article argues that the explanation for this dissonance is to be found in the process through which British and later American administrative law came to construct the mandate of agencies through the language of statutory interpretation. Central to this process were long-standing divisions in England over the compatibility of continental-styled royal law-making prerogative with British constitutional principles. The victory of Parliament and the common lawyers at the end of the 17th century formally deprived the executive of prerogative authority in domestic matters, subordinating instead the scope of executive regulatory authority to the terms of statutory mandates. But this formula soon served to disguise unresolved disagreements on whether and when administrators were entitled to make, rather than strictly interpret law. Following England’s lead, the American administrative state evolved over the course of the 19th century through protracted conflict over the legitimacy of continental administrative paradigms and the supremacy of common law principles. I argue that as was the case in England, the view of agencies as interpreters of statutory mandates offered a workable compromise between those who viewed administrative power as incompatible with common law constitutionalism and those who argued for the necessity and legitimacy of agency autonomy in the modern administrative state. The compromise proved resilient largely due to the ambiguous scope of the pertinent interpretive mandate and the broad range of administrative activities that could arguably fit under its expansive umbrella. In the process, longstanding divisions over executive lawmaking were recast as administrative law debates over the degree of deference to be accorded to agency interpretation. The relevance of the historical conflict over prerogative lawmaking to contemporary controversies regarding the nature of administrative power has largely receded from view. On occasion, however, unresolved tensions at the core of the compromise resurface, as in the recent disagreement between Professor Mashaw and Pierce over the existence of a distinct agency policymaking authority. The core values at stake in current discussions of agency statutory interpretation become easier to recognize when viewed in the context of deep-seated historical disagreement over the legitimacy of executive law making within the common law world.

Image credit: A.V. Dicey

SHFG Prizes

[Here's an announcement from the Society for History in the Federal Government:]

The Society for History in the Federal Government awards two prizes each year for outstanding scholarship in a published article or essay related to the history of the federal government. We are inviting submissions for the 2010 prizes, for articles or essays published during calendar year 2009. (The deadline for submissions is December 1, 2009.)

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

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

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

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

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

Darrell Lemke, 9207 Chanute Drive, Bethesda, MD, 20814 lemke trautman@rcn.com)

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

Confronting/Imagining Legal Justice & Injustice: at Harvard tomorrow

Tomorrow at Harvard:

Confronting Legal Injustice/Imagining Legal Justice Friday, November 06, 2009

9:30 AM

Ames Courtroom, Austin Hall

Harvard Law School

Cambridge, MA 02138

This day-long conference will bring together authors from two recent books co-edited by Professors Charles Ogletree and Austin Sarat. Please join us as we discuss the various ways we confront the law’s failures as well as imagine a nation without capital punishment.

9:30 AM - Welcome and Opening Remarks
Professor Austin Sarat, Amherst College
Professor Charles Ogletree, Harvard Law School

10:00 AM - When Law Fails: Making Sense of Miscarriages of Justice
Professor Douglas Berman, Ohio State University, Moritz College of Law
Professor Mary Dudziak, University of Southern California
Professor Linda Meyer, Quinnipiac University School of Law
Discussant: Professor Charles Ogletree, Harvard Law School

12:00 - 1:30 PM - Lunch and Keynote
Stephen Bright, President and Senior Counsel, Southern Center for Human Rights

1:45 PM - The Road to Abolition?: The Future of Capital Punishment
Professor Simon Cole, University of California at Irvine
Professor Deborah Denno, Fordham University School of Law
Professor Bernard Harcourt, University of Chicago
Professor Robin Wagner-Pacifici, Swarthmore College
Discussant: Professor Randall Kennedy, Harvard Law School

3:45 - 4:00 PM - Closing Discussion: Austin Sarat and Charles Ogletree

Co-sponsored by: Charles Hamilton Houston Institute for Race and Justice, Amherst College’s Charles Hamilton Houston Forum on Law and Social Justice, NYU Press.

(I will be in town only long enough for my panel, so apologies to readers and Boston-area friends -- there will be no time for anything else.)

November at the Miller Center

The Governing American in a Global Era Colloquium of the Miller Center of Public Affairs at the University of Virginia has a number of interesting sessions this month. Further about webcasts and attending in person is here.

Friday, November 6
Cell Blocks and Red Ink: Mass Incarceration, the Economic Crisis, and Penal Reform
Marie Gottschalk, Political Science, University of Pennsylvania

Friday, November 13
The Conservative Insurgency and Presidential Power
Stephen Skowronek, Political Science, Yale University

Friday, November 20, 2009
Rethinking the Kitchen Debate: U.S. Supermarkets and the Cold War Farms Race
Shane Hamilton, History, University of Georgia.

Johns on Julius Stone

Fleur E. Johns, Sydney Law School, has posted The Gift of Realism: Julius Stone and the International Legal Academy in Australia, which is forthcoming in Julius Stone: A Study of Influence, eds. H. Irving, J. Mowbray & K. Walton (Sydney: Federation Press). Here is the abstract:

This chapter contributes to a series of studies seeking to gauge what has been made of the work of international lawyer and legal theorist Julius Stone. Among Stone’s possible intellectual progeny, this chapter focuses on an obstreperous and, at times, ungrateful brood: scholars and teachers of international law in Australia. Focusing on a forty year period from the 1954 publication of Stone’s first book-length work in international law, Legal Controls of International Conflict, this chapter begins an assessment of the influences - direct and indirect - of Stone’s work upon international legal scholarship in Australia. In so doing, this chapter uses Stone’s role and impact in international legal scholarship in Australia as a way of reflecting on two, broader sets of questions. First, to what extent or in what ways might the Australian legal academy be understood to have ‘received’ American legal realism? If, as Neil Duxbury would have it, American legal realism was more a ‘mood’ than a coherent movement, how has that mood featured in the affective, performative and constative repertoire of legal scholarship in Australia? Second, what might the life or lifelessness of American legal realism in the Australian academy (traced through a single capillary: the impact of Julius Stone’s version in international law), suggest about the vagaries and the stakes of legal transfer in the scholarly domain? What questions might this account pose for students of legal transfer working with the rubrics of ‘transplant’ (Watson), or ‘palace wars’ (Dezalay and Garth)?

Allan C. Hutchinson’s contribution to the volume, on Stone’s essay “The Province of
Jurisprudence Redetermined” (1944), is here.

Image credit.

Historians & others on Obama

From Ralph Luker:

A year after his election, historians assess President Obama: Walter Isaacson, Michael Kazin, Rick Perlstein, Ted Widmer, and Garry Wills, Daily Beast, 2 November; and Doris Kearns Goodwin, Huffington Post, 3 November.

And in the New York Times, reporters assess the Obama presidency.

Fudge and Tucker on Picketing Before the British Columbia Court of Appeals

'Everybody Knows What a Picket Line Means': Picketing Before the British Columbia Court of Appeal has just been posted by Judy Fudge, University of Victoria Faculty of Law and Eric Tucker, York University Osgoode Hall Law School. It appeared in BC Studies, No. 162, pp. 53-79, Summer 2009. Here's the abstract:

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a procedural mechanism for acquiring collective bargaining rights and imposed a duty on employers to recognize and bargain in good faith with certified unions. At the end of the war, all provinces, including British Columbia, enacted collective bargaining legislation based on this model. The law, however, did not alter the judicially created common law rules governing collective action. As a result, important questions about the interaction between the statutory regime and the common law were unresolved. As trade union membership grew and labour militancy increased, the British Columbia Court of Appeal was soon given the opportunity to address these issues and in a series of decisions handed down through the 1950s and 1960s it narrowly limited the ambit for lawful workers’ collective action. The Social Credit government largely supported the court’s approach but when the first NDP government in British Columbia was elected in 1972 it stripped the court of its power to regulate picketing and transferred it to an administrative board. This chapter will examine the court’s work during this period and investigate the reasons for the court’s approach, taking into account the economic, social and political context of British Columbia as well as considering the backgrounds and attitudes of the members of the court during this period.

Mashaw on Administrative Law in the Gilded Age

Jerry Mashaw, Yale Law School, has posted the latest installment in his history of administrative law avant la lettre, Federal Administration and Administrative Law in the Gilded Age. Here is the abstract:

This article has a simple message. The standard history of the development of American Administrative Law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named.

In order to see administrative law in an era that mostly denies its existence, my inquiry is structured around three very general issues of governmental organization. Following the lead of Frank Goodnow [right], I see administrative officers as operating within three overlapping accountability regimes: political accountability to elected officials; hierarchical or managerial accountability to administrative superiors; and legal accountability to individuals and firms through judicial review. The distinctive characteristics of administration and administrative law in particular periods depend upon the relative importance of these regimes in structuring and checking administrative discretion and the particular mechanisms that political, administrative and legal actors deploy. Both the forms of and the balance among regimes shift over time. Indeed, it is the distinctive form and balance among these accountability regimes in the organization of 19th century national administration that has made administrative law invisible. But in every era there is a law of administration. To ignore that “administrative law” prior to the Interstate Commerce Act, in what I now tend to think of as “the lost 100 years of American administrative law,” is to ignore much of how American administrative institutions have been built, maintained and constrained. And, in my view, it is to ignore the incremental and pragmatic processes by which American public law usually develops.

This article treats the Gilded Age incarnation of each of these three accountability regimes in turn. It first describes developments in the political control of administration in Post-Bellum America and the emergence of the “apolitical” civil service ideal, partially embodied in the Pendleton Act of 1883. As in all periods of American history, political control of administration in this period features both organizational changes in the political branches and the continuing struggle between presidents and congresses for dominance. The defining feature of this era might be said to be the migration of the provision of secure tenure in office from a congressional strategy to weaken presidential control over high-level administrators to an institutionalized protection for lower level officials that, in practical effect, constrained congressional power.

The article next looks at developments in judicial review. Prior to 1860 judicial review of administrative action by federal courts had, to modern eyes, a peculiar structure. Review by mandamus or injunction was extremely limited and statutes providing for appeals to federal courts from administrative decisions were virtually non-existent. On the other hand, officers sued as individuals for damages were in effect subjected to de novo review for any error of law or fact. In the post-Bellum world this structure began to weaken, but it would take many years to morph into the almost directly contradictory structure that we know today

Finally, the article depicts the processes and structures of managerial or bureaucratic accountability. This is where 19th century administrative law mostly developed. In many ways the second half of the nineteenth century might be called an age of administrative adjudication. While we now think of mass administrative adjudication as an artifact of the mid-twentieth century welfare state, these practices in fact have a much longer history. Tens of thousands of claims were adjudicated, not just by the Court of Claims in suits against the United States, but also by the United States Patent Office, the Revenue and Accounting Officers in the Treasury’s Division of the Controller, the district and general land offices of the Department of the Interior and the Bureau of Pensions. Notwithstanding the relatively casual attention to administrative procedure in both Congress and the courts, those charged with adjudicating these claims developed highly structured and often quite formal processes of decisionmaking. As we shall see, these processes were not entirely free from congressional or judicial oversight, but important substantive, and virtually all procedural, norms for administrative adjudication were constructed by the agencies themselves.

Moreover, the normative structure of that law, unlike the late 19th century external law of judicial review, is deeply familiar to contemporary administrative lawyers. With scant direction from Congress, and none from the courts, agencies built systems of adjudication that featured transparent procedures and precedents, internal separation of functions, professionalization of adjudicatory personnel, safeguards against personal and political bias and robust opportunities for documentary or oral hearings. From this perspective we might understand the so-called “rights revolution” of the 1960s and 1970s, in part, as a consolidation in constitutional doctrine of administrative practices that represent a continuous, but seldom acknowledged, administrative law tradition.

Image credit.

Jackson and Resnik's Federal Courts Stories

One doesn't generally expect to find first-rate scholarship in works intended as supplements to law school casebooks. This is true even for the intelligently conceived "Law Stories" series, published by Foundation Press, which "tell the stories behind the leading cases in important areas of law." Its thirty or so volumes have performed the pedagogically useful function of making accessible information that would otherwise remain buried in a case's unpublished record or severely compressed in a casebook note. Although I certainly can't speak to the whole series, my guess is that Ajay Mehrotra's verdict on Tax Stories, published in the Journal of Legal Education, might well apply more broadly. That volume did a better job at using the "vividness of storytelling to attract student interest in some of the landmark Supreme Court cases at the center of the introductory tax course," Mehrotra wrote, than in capturing "the interpretive power of historical analysis," that is, showing how the past matters in any rich understanding of today's doctrines and institutions of taxation.

On the chance that other historians have had a similar reaction, I write to encourage readers to take a fresh look at the just published Federal Courts Stories, edited by Vicki C. Jackson, Georgetown University Law Center, and Judith Resnik, Yale Law School. The editors introduce the volume with a capacious and succinct account of the history of federal courts as a law school course and scholarly field. Leading teachers and scholars of Federal Jurisdiction contribute, including Daniel Meltzer (on Ex parte McCardle) James Pfander (on Bivens), Lauren Robel (on Railroad Commission of Texas v. Pullman Co.), David Shapiro (on Lincoln Mills), and Carlos Vázquez (on Ex parte Quirin). Especially striking is the presence of first-rate constitutional and legal historians among the contributors, including Barry Friedman (on Ex parte Young), Edward A. Purcell, Jr. (on Michigan v. Long), William Michael Treanor (on Marbury, previously noted here), and Ann Woolhandler (on Tarble's Case, with her coauthor Michael Collins, previously noted here).

Because political historians might miss it in a collection of essays on federal courts, I especially want to single out Mark Tushnet's essay "The Story of Crowell: Grounding the Administrative State." I've struggled a bit myself with Crowell v. Benson (1932), in which Charles Evans Hughes, near the start of his chief justiceship, warned federal administrators not to stray beyond the jurisdictional limits set for them by Congress and the Constitution. Tushnet's essay is revealing on the underlying facts, illuminating and penetrating on the doctrinal issues, and thought-provoking on the case's significance for legal "progressives." The essay is essential reading for historians of administrative law and the administrative state.

Shawhan on Lyman Trumbell on Birthright Citizenship

Mark Shawhan, Yale Law School, has posted Domicile and Birthright Citizenship, which is a student comment forthcoming in the Yale Law Journal. Here is the abstract:

This Comment argues that the contemporary debate on the meaning of the Citizenship Clause of the Fourteenth Amendment has overlooked a significant piece of historical evidence. Scholars such as Peter Schuck, Rogers Smith, and John Eastman have argued that the “subject to the jurisdiction” requirement of the Clause should, as a historical matter be read broadly, to, for example, exclude children born here of illegal immigrant parents from constitutional birthright citizenship. In doing so they lean significantly on the statements of Sen. Lyman Trumbull, who drafted the precursor citizenship language of the Civil Rights Act of 1866 and was an influential player in the debates over the Fourteenth Amendment.

Yet Trumbull actually held quite different views. In a previously-unconsidered 1866 letter he wrote to President Andrew Johnson summarizing the Civil Rights Act, Trumbull said that birthright citizenship for children born in the United States turned on whether the parents of those were living permanently, “domiciled,” here. In emphasizing domicile, which at that time turned merely on whether an individual was living permanently in a particular place, Trumbull rejected the consensualist position that a child’s citizenship depended on the political status of that child’s parents within the state, and the presence of a mutual consensual relationship between the parents and the sovereign. This Comment thus suggests that it is no longer tenable for consensualist scholars to rely on Sen. Trumbull’s statements as evidence for their views on the contours of birthright citizenship.

Image credit: Lyman Trumbull

Nackenoff and Sullivan on Women Lawyers and Progressive-Era Governance

Carol Nackenoff, Swarthmore College, and Kathleen Sullivan, Ohio University, have posted Women Lawyers and Governance in the Progressive Era, which they presented at the Annual Meeting of the American Political Science Association in September. Here’s the abstract:

Progressive Era court reform led to creation of new courts that had both formal and informal positions, some of which were filled by women lawyers and representatives of women's organizations. The Juvenile Court in Chicago, the Chicago Morals Court, and the New York Night Court (subsequently Women's Court) differed in the network of activists promoting their creation, and therefore also differed in the amount of influence organized women and women lawyers wielded in these institutions.

Right: Judge Mary Bartelme, Chicago Juvenile Court

Gudridge on Lash's Ninth Amendment in Jotwell

Other Rights, is a summary and appreciation of Kurt Lash's recent Stanford Law Review article on the Ninth Amendment, contributed by Patrick Gudridge, University of Miami School of Law, to the new on-line journal Jotwell. Gudgridge concludes, "It is the great virtue of Lash’s analysis that it is provocative not only in its immediate conclusions, but in the glimpse it affords of its variants – it is itself irreducibly multiple."

Moore on the Osgoode Society at 30

A report by Christopher Moore, "a Toronto-based writer, blogger and commentator," on Friday's conference of the Osgoode Society for Canadian Legal History is here.

Image credit: William Osgoode

"You were always on my mind..."

We are always thinking of you, dear reader, even when your faithful bloggers are spending too much time in various airports, attempting to meet too many deadlines, or are otherwise occupied.

Apologies for sparse blogging over the next week. And if you're out of legal history links, perhaps you'll find some solace here.

Sunday Book Round-up

Ayn Rand and the World She Made by Anne C. Heller is taken up today in the New York Times and the San Francisco Chronicle.

Also in the NY Times, James McPherson reviews THE AMERICAN CIVIL WAR: A Military History by John Keegan.

An interview with Mark Mazower, author of No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations, appears in the Boston Globe.

Children of Armenia: A Forgotten Genocide and the Century-Long Struggle for Justice by Michael Bobelian is reviewed in the Washington Post.

Worse Than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity by Daniel Jonah Goldhagen is reviewed in the San Francisco Chronicle.

1688: The First Modern Revolution by Steve Pincus is discussed by Bernard Bailyn in the New York Review of Books.

Also in the New York Review, Double Exile: Migrations of Jewish-Hungarian Professionals Through Germany to the United States, 1919–1945 by Tibor Frank and Enemies of the People: My Family's Journey to America by Kati Marton are taken up by István Deák.

Johathan Rabban discusses Dorothea Lange: A Life Beyond Limits by Linda Gordon and Daring to Look: Dorothea Lange's Photographs and Reports from the Field by Anne Whiston Spirn in the New York Review of Books, and David Cole discusses American prisons.