Call for Submissions: Kathryn T. Preyer Scholars

Kathryn T. Preyer

[We have the following call for submissions for the Kathryn T. Preyer Scholars award of the American Society for Legal History.  Over the years, the award has been one of several ways American legal historians have recognized promising new entrants to the field.]

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.

Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.

Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers, as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2015.

Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting in Washington, D.C. in November 2015.  The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.

Please send submissions as Microsoft Word attachments by June 15, 2015, to the chair of the Preyer Committee, Serena Mayeri, University of Pennsylvania <email>. She will forward them to the other committee members.

The 2015 Preyer Memorial Committee
Serena Mayeri, (2013) Chair, University of Pennsylvania <email>
Sam Erman (2013), University of Southern California <email>
Melissa Hayes (2014), Independent Scholar <email>
Michael Hoeflich (2014), University of Kansas <email>
H. Timothy Lovelace (2014), Indiana University <email> 

More information, including a list of past Preyer Scholars, can be found here.

Stone to Lecture on “Sexing the Constitution: Getting to Gay Marriage?”

Geoffrey R. Stone will deliver the University of Chicago’s 2015 Nora and Edward Ryerson Lecturer on Sexing the Constitution: Getting to Gay Marriage?  on April 22.  The UC press release reports that “Stone will explore historical attitudes to homosexuality and how laws discriminating against homosexuals first came to be seen as raising possible constitutional questions. Furthermore, he will explain how the nation’s high court, building on a long line of earlier decisions involving such issues as sterilization, contraception, miscegenation, abortion and discrimination against women, has now come to the threshold of recognizing a constitutional right of same-sex couples to marry—a position that would have been unimaginable in the first 200-plus years of American constitutional history.”

Lebovitz Named Berger-Howe Fellow

[We have the following announcement.]

Adam Lebovitz has been named the Raoul Berger-Mark DeWolfe Howe Legal History Fellow for 2015-2016 at the Harvard Law School.  He is a graduate of the University of Chicago and Harvard Law School and is currently a Golieb Fellow in Legal History at NYU.  He will use his fellowship year to complete his dissertation on “French and American Constitutional Thought, 1774-1800,” which he is writing for his Ph.D. in Political Theory in the Department of Government at Harvard.

Sunday Book Roundup

H-Net has a review of Brendan C. Lindsay's Murder State: California's Native American Genocide 1846-1873 (University of Nebraska Press).

Salon has an excerpt from Dream Chasers: Immigration and the American Backlash by John Tirman (MIT Press).

New Books has an interview with the editors of Democratizing Inequalities: Dilemma of the New Public Participation (NYU Press)--Caroline Lee, Michael McQuarrie, and Edward Walker.

Kevin Kruse has an excerpt of his new book, One Nation Under God: How Corporate America Invented Christian America (Basic), published in Salon.

In The Washington Post, Frank Bruni's Where You Go is Not Who You'll Be: An Antidote to the College Admissions Mania (Grand Central) is reviewed.

Steven Brill's America's Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System (Random House), is reviewed in The New York Review of Books.

On Slate Gregory P. Downs's After Appomattox: Military Occupation and the Ends of War (Harvard University Press) is reviewed.

Also from New Books is an interview of Leigh Ann Wheeler, discussing her book, How Sex Became a Civil Liberty (Oxford University).

Ablavsky and Belt to Stanford Law School

This fall Stanford Law School will increase its already impressive roster of legal historians by two: we have word that former guest blogger Gregory Ablavsky (Sharswood Fellow and Ph.D. Candidate, University of Pennsylvania) and Rabia Belt (Researcher, Georgetown University Law Center / Ph.D. Candidate, University of Michigan) have both accepted offers to join the faculty as assistant professors.

Ablavsky and Belt shared an LHB headline earlier this academic year when both were named winners of the ASLH's Kathryn T. Preyer award.

Ablavksy is currently working on a dissertation titled "Federal Ground: Sovereignty, Property, and the Law in the U.S. Territories, 1783-1803" (Michael Zuckerman, Chair). Belt's dissertation-in-progress is titled "Disabling Democracy in America: Disability, Citizenship, Suffrage, and the Law, 1830-1920" (Phil Deloria, chair). Their published and forthcoming work is available here and here, respectively.

Congratulations to Greg Ablavsky and Rabia Belt!

Do you have hiring news to share? Feel free to email us. We're always happy to spread good news. 

Weekend Roundup

• Paul Brand, Professor of English Legal History at the University of Oxford and, this year, the Miegunyah Distinguished Visiting Fellow at the University of Melbourne, will deliver the 2015 Miegunyah public lecture on The First Century of Magna Carta and the Law at the Melbourne Law School on Wednesday, 15 April from 6.30pm. 

• Picturing the DC Circuit: A new on-line exhibit of the Historical Society for the DC Circuit posts "the official photographs of all the Courts of Appeals of the D.C. Circuit from 1905 until 1977, the final year of the Bazelon Courts. Now, for the first time, readers of the many famous opinions that have been handed down in the Circuit can easily find the faces of the men and women who wrote them."

• After Appomattox: Gregory Downs in Conversation with David Blight, on Monday, April 27, 6:30 pm, in the Elebash Recital Hall, CUNY Graduate Center. The Slate review of Downs's book is here.

• Kimberly Phillips-Fein, on Invisible Hands: The Businessmen’s Crusade Against the New Deal (W. W. Norton, 2010) on New Books in History.

• Mark Stoler, professor emeritus of history at the University of Vermont, will speak in the Miller center for Public Affairs Historical Presidency Series on Commander in Chief: FDR and Leadership in World War II, on April 21, 3:30-5:00 p.m.  The recording will be posted or you may listen live.

• Ray Raphael on HNN: This Is What the Framers Said About the Senate’s Power to Offer Advice and Consent.

• The American Archive of Public Broadcasting has launched a new website making available "American public radio and television content dating back to the 1950s.”

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

Wurman on the Fallacies of Legal Historians

Ilan Wurman, Winston & Strawn LLP, has posted Law Historians' Fallacies, which is forthcoming in the North Dakota Law Review:    

A common line of attack against originalists is that lawyers just aren’t good at doing history. But in his famous book Historians’ Fallacies, David Hackett Fischer noted that many historians aren’t good at doing history either: They often fall into one or more of numerous fallacies that he catalogued in his celebrated and often devastating three-hundred page book. This Article points out the many ways in which originalists and other legal historians fall into, but also how they may avoid, some of the same fallacies committed by the historians whose works made their way into Fischer’s book. It will then point to corresponding lessons that lawyers-turned-historians ought to employ to write better history. The belief is that lawyers, judges, and legal academics can become good — or at least better — historians.

Part I confronts two general attacks on the use of history, both of which challenge the possibility of obtaining relevant and objective historical knowledge. Part II establishes the importance of investigative questions and describes fallacies of question-framing that lead originalists astray. Part III explores fallacies of factual verification that stem from reliance on flawed types of evidence. Part IV addresses one fallacy of factual significance — which we shall call the originalist’s fallacy — that leads some originalists to misunderstand the significance of certain evidence. Part V illustrates fallacies of narration, including fallacies of anachronism and presentism, that too often create fruitless investigations and provide ahistorical answers. Part VI, although recognizing the importance of generalization, demonstrates how originalists (and other legal historians) often generalize improperly.

Jus Soli Citizenship before the DC Circuit

Sam Erman and Nathan Perl-Rosenthal, University of Southern California Law and History (more or less respectively), have published an op-ed on Tuaua v. United States, a pending case before the D.C. Circuit raising the question whether American Samoans should be U.S. citizens under the Fourteenth Amendment.  The pair filed an amicus brief (“Brief of Citizen Scholars”) accessibly through this link to filings in the case.  Both address “the history of jus soli citizenship in U.S. constitutional law.”

New Release: Rosen's "Border Law"

New from Harvard University Press is Border Law: The First Seminole War and American Nationhood, by Deborah A. Rosen, Lafayette College:

The First Seminole War of 1816-1818 played a critical role in shaping how the United States demarcated its spatial and legal boundaries during the early years of the republic. Rooted in notions of American exceptionalism, manifest destiny, and racism, the legal framework that emerged from the war laid the groundwork for the Monroe Doctrine, the Dred Scott decision, and U.S. westward expansion over the course of the nineteenth century, as Deborah Rosen explains in Border Law.

When General Andrew Jackson's troops invaded Spanish-ruled Florida in the late 1810s, they seized forts, destroyed towns, and captured or killed Spaniards, Britons, Creeks, Seminoles, and African-descended people. As Rosen shows, Americans vigorously debated these aggressive actions and raised pressing questions about the rights of wartime prisoners, the use of military tribunals, the nature of sovereignty, the rules for operating across territorial borders, the validity of preemptive strikes, and the role of race in determining legal rights. Proponents of Jackson's Florida campaigns claimed a place for the United States as a member of the European diplomatic community while at the same time asserting a regional sphere of influence and new rules regarding the application of international law.

American justifications for the incursions, which allocated rights along racial lines and allowed broad leeway for extraterritorial action, forged a more unified national identity and set a precedent for an assertive foreign policy.

Endorsements by Eliga Gould and Daniel Hulsebosch after the jump.

Leiter, Priel and Barzun on American Legal Realism

Legal Realism is the subject of two recent papers posted on SSRN.  Brian Leiter, University of Chicago Law School, has posted Legal Realism and Legal Doctrine, which is forthcoming in the University of Pennsylvania Law Review (2015):

In this contribution to the symposium on "The New Doctrinalism," I argue that American Legal Realists did not reject doctrine, because the Realists did not reject the idea that judges decide cases in accordance with normative standards of some kind: "doctrine" after all is just a normative standard about what should be done, but one formulated and made explicit by a statute or a court or a treatise. A judge who decides cases based on the norm "this breach of contract is efficient" still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non-legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely. And it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this symposium show, precisely because the realist law reform movement was successful in so many arenas.

Dan Priel, Osgoode Hall Law School, and Charles L. Barzun, University of Virginia School of Law, have posted Legal Realism and Natural Law, forthcoming in Law, Theory and History: New Essays on a Neglected Topic, ed. Maksymilian Del Mar & Michael Lobban (2015):

The possibility of any meaningful relationship between the legal realists and natural law looks at first rather far-fetched. When it first appeared on the jurisprudential scene, legal realism was savagely attacked by proponents of natural law theory. To this day legal realism is depicted as a modernist, critical, at times almost nihilist approach to law, the polar opposite of the ancient natural law theory that traces its roots to Greek and Roman philosophy, and insists on unchanging objective values. And yet, two of the most famous legal realists, Karl Llewellyn and Jerome Frank, expressed in some of their writings more than a passing endorsement of natural law theory. The purpose of this essay is to try and explain this seemingly odd aspect of their work and in this way help in reassessing their work. We do so by explaining how they understood natural law and how they incorporated it in their work. Though they did not understand the term in precisely the same way, for both of them natural law was connected to the values of the community, which both of them thought were central to understanding law, for explaining how it could remain relatively certain, and ultimately, how it derived its authority.

Studying Slavery through Court, Notarial, and Lawyers' Records

[The Allure of the Judicial Archives Workshop sends this announcement of a session to be held today in 1014 Tisch Hall, Department of History, University of Michigan.]

Studying Slavery through Case Files, Dockets, Lawyers' Papers, Notarial Registers, and Silences: A Discussion of Pre-Circulated Papers

Session 1: 10 to 11:00: Chez le notaire: Jean Hébrard and Rebecca Scott

Session 2: 11:15-12:15: Scraps of paper and puzzling legacies: Ada Ferrer and Sueann Caulfield.

Session 3: 1:45 to 3:15: What kinds of things might constitute a "judicial archive"?: Martha Jones, Ariela Gross, Hendrik Hartog.

Concluding Session: 3:30 to 4:30: Comments: Natalie Zemon Davis, Keila Grinberg, audience.

For access to the CTools website with the papers, please contact Terre Fisher (telf@umich.edu). For additional information about the event, please contact Rebecca Scott (rjscott@umich.edu)

This workshop is sponsored by: The University of Michigan Institute for the Humanities; The University of Michigan Law in Slavery and Freedom Project; The Program in Race, Law & History of the University of Michigan Law School; The Eisenberg Institute for Historical Studies.

That Symposium on Lee's "Workplace Constitution"

Early last week I noted that a symposium on Sophia Lee’s Workplace Constitution was forthcoming on Penn Law’s RegBlog.  It has transpired:

Appreciating The Workplace Constitution, by Deborah C. Malamud, NYU Law
A Contribution to Both Legal History and Constitutional Theory, by Mark Tushnet, Harvard Law
Administrative Constitutionalism and Administrative Power, by Nicholas R. Parrillo, Yale Law
A Window into America’s Administrative State, by Gillian E. Metzger, Columbia Law
Administering the Workplace Constitution, by Sophia Lee, Penn Law   

ACLS, Guggenheim, LAPA and Law & Society Fellowships Announced

Congratulations to Sarah Barringer Gordon, Mark Fathi Massoud, and Michael Willrich for winning Guggenheims (that is, they’ve been named as John Simon Guggenheim Memorial Fellows).  Professor Gordon's Guggenheim is supported by the Dorothy Tapper Goldman Foundation.  Professor Willrich was also named an American Council of Learned Societies Fellow for "The Anarchist’s Advocate: War, Terror, and the Origins of America’s Surveillance State."  H. Timothy Lovelace, Jr., and I will be Law and Public Affairs Fellows at the Woodrow Wilson Center at Princeton University next year, where we’ll be joined by (among others) Professor Massoud and Sherally Munshi, who is currently a Law Research Fellow at the Georgetown University Law Center.

Congratulations as well to Amanda Hughett, a doctoral candidate in History at Duke University, for receiving a Dissertation and Mentoring Fellowship from the Law and Society Association.

(Apologies to anyone I missed.  Please let me know and I'll update.)

Update: And congratulations to Linda Przybyszewski, Notre Dame, for winning a major grant from the Spencer Foundation in support of her book-in-progress on the “Cincinnati Bible War.”

Tax Reform in Historical Perspective: A Congressional Briefing

[We have the following announcement from the National History Center.]

The National History Center of the American Historical Association is pleased to announce our upcoming Congressional briefing, co-sponsored with the Joint Committee on Taxation, on “American Families, Global Competition, and Comprehensive Tax Reform in Historical Perspective.” Ajay Mehrotra of Indiana Law School [and an LHB Guest Blogger]; Bruce Bartlett, former deputy assistant secretary of the Treasury; and Joe Thorndike of Tax Analysts will discuss the history of tax reform in the United States.  Professor Dane Kennedy, Director of the National History Center, will moderate the discussion.

The briefing will be held on Friday, May 8, at 10 a.m. in Rayburn House Office Building, Room 2103.  RSVPs are requested.  To RSVP or for further information, please contact the Center’s assistant director, Dr. Amanda Moniz, at amoniz@historians.org or 202-450-3209.

Kochin on the Framers and National Security

Michael S. Kochin Tel Aviv University and Claremont McKenna College, has posted The Constitution Viewed from Without:

The drive for constitutional reform in the 1780’s was largely motivated by the perception that until the Federal government was strengthened the United States would not be able to meet its foreign and security policy challenges. Once I put the foreign and security policy difficulties of the 1780’s on the table, I will address two questions: First, why does The Federalist argue for the foreign and security policy need for the Union when nobody who opposes the 1787 Constitution argues against the “perpetual Union” created by the Articles? Second, what is the pressing “crisis” in foreign and security matters that, in Publius’s view, should persuade the remaining states to ratify the constitution hastily?

Seo is Inaugural McCurdy Fellow at UVA

[From a press release of the University of Virginia School of Law.]

As the inaugural Charles W. McCurdy Legal History Fellow, Sarah Seo is exploring police searches of automobiles and the implications for individual freedom. Starting this summer, the legal historian will hone her dissertation on the subject while participating in a yearlong residency at the University of Virginia School of Law.

Seo's appointment, which is sponsored by the Law School, the UVA History Department and the Miller Center, comes with a $32,000 stipend, and is the latest addition to the Miller Center National Fellowship Program, which will announce its complete roster of new history fellows this month.

[More.]

Stanley I. Kutler (1934-2015)

Stanley I. Kutler was many things, some of which I got to observe first hand during my two-year fellowship at the University of Wisconsin-Madison in the mid-1980s.  I suspect most people know him from his work on Watergate: the litigation that preserved and opened the Nixon tapes to the public, his Wars of Watergate (to which I contributed a summer’s research assistance), his play “I, Nixon,” and many of his columns for the Christian Science Monitor and other news outlets.  Reviews in American History, which he and Stanley N. Katz created and edited, was essential reading for my generation of history graduate students.  “Reviews 10"–an issue devoted to a series of field surveys including Daniel T. Rodgers’s “In Search of Progressivism”–was something of a bible.  As an ABD trying to find a dissertation somewhere within the legal history of labor law, I relied heavily on his dissertation-based articles on the labor cases of the Taft Court to get my bearings.  I saw at once and still believe that his Privilege and Creative Destruction is the best book every written on a single case in American constitutional history.  Only a little later in my career, after I realized that Kutler’s generation of legal historians had turned to political history to professionalize the field of American legal history, did I recognize his Judicial Power and Reconstruction Politics for the landmark it was. 

It would be scarcely metaphorical to characterize Kutler’s interactions with me as avuncular, so close was his relationship to my dissertation adviser Stanley N. Katz.  To this day, I find myself repeating his advice.  One counsel, which my seminar students will be hearing shortly, came after he had struggled through a dissertation chapter of mine that pitched readers into a blizzard of names, dates, and events.  To cushion the blow that it needed much compression and omission, he observed, “The hardest thing for a historian to do is to let go of a hard-won fact.”  Another piece of advice, shared when I went on the job market for the first time, was “Go where you can do the best work.”  The independent variables in that equation, he made clear, ought not to be limited to narrowly professional factors, like teaching load and research leave.  They also included the happiness of a spouse, of children, and of anyone else whose state of mind was inextricably joined to one’s own. 

American legal and constitutional history has lost one of its greatest practitioners.

The Milwaukee Journal Sentinel's obituary is here; the Washington Post's is here.  I'll update as more come to my attention.

Update: The UW press release; an appreciation in The Nation; R. B. Bernstein's thorough and thoughtful obituary for H-Law (with a slight correction); another obituary on Madison.com; a remembrance by Ruth Conniff, editor of The Progressive; Bernard Weisberger and Michael Ebner (the latter of whom focuses on Reviews in American History) on HNN; "One who wasn't at all the president's man," in the Sydney Morning Herald; "Usa: addio a Stanley Kutler, storico del Watergate," in L'Unione Sarda; Watergate historian Kutler who fought for release of Nixon’s tapes dies, in The Hindu; the New York Times obituary.

Around the State Historical Journals

Much legal history is out in recent issues of the journals of state historical societies.  Perhaps the most notable is the March 2015 issue of the Indiana Magazine of History, guest edited by former Indiana Supreme Court Chief Justice Randall Shepard:

Peter S. Onuf, Thomas Jefferson Foundation Professor Emeritus at the University of Virginia, examines how Indiana’s statehood and its 1816 constitution functioned as part of the new American republic’s westward expansion of empire. Thomas D. Hamm, Professor of History and archivist at Earlham College, considers how courts in Indiana adjudicated the issue of church and state from 1816 until the second Indiana constitution of 1851. Paul Finkelman, Senior Fellow at the Penn Program for Democracy, Citizenship, and Constitutionalism at the University of Pennsylvania, studies how the 1816 constitution and its ban on slavery and indentured servitude was interpreted in important early state court cases. Finally, George T. Patton Jr., partner at Bose McKinney & Evans LLP, and Julianne Sicklesteel, a law student at the Maurer School of Law at Indiana University Bloomington, look at the 1851 constitution and how the modern Indiana State Supreme Court has interpreted that document.

Race and civil rights figure in Lou Falkner Williams, "Federal Enforcement of African American Voting Rights in the Post-Redemption South: Louisiana and the Election of 1878," Louisiana History 55 (2014), 313-43; Beth Kressel Itkin, "Creating `What Might Have Been a Fuss': The Many Faces of Equal Public Rights in Reconstruction-era Louisiana," Louisiana History 56 (2015), 42-74; and Noel K. Wolfe, "Shaping a Civil Rights Vanguard: The Earliest Influences on Constance Baker Motley," Afro-Americans in New York Life and History 38 (Aug. 2014), 37-82.  Property gets its due in Stephanie M. Lang, "`Titles Must be Perfect': The Broad Form Deed, Politics, and Landownership in Eastern Kentucky at the Turn of the Twentieth Century," Register of the Kentucky Historical Society 113 (2015), 27-57.

Gerber on Law and Religion in Colonial Connecticut

Scott D. Gerber, Ohio Northern University Pettit College of Law has posted Law and Religion in Colonial Connecticut, which is forthcoming in the American Journal of Legal History 55 (April 21015); 205:

Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle — a set of “human passions that set it in motion” — and that each form can be corrupted if its animating principle is undermined. For the colony of Connecticut the animating principle was Puritan Congregationalism.

Part I of my paper chronicles how central Puritan Congregationalism was in the organic law, statutory law, and common law of the so-called River Colony at which Connecticut was originally planted. Part II explores the law of the New Haven Colony, a separate community settled in 1638 that joined with the River Colony in 1665 to create a unified Connecticut Colony. Part III examines the law of the Connecticut Colony and endeavors to discern when Connecticut’s laws began to deviate from Puritan Congregationalism. Part IV concludes the paper by assessing the events that led to the official demise in the Connecticut Constitution of 1818 of Puritan Congregationalism as the animating principle of Connecticut.

Theorizing Contemporary Legal Thought

Just out in Law and Contemporary Problems is the symposium Theorizing Contemporary Legal Thought, which is guest edited by Justin Desautels-Stein, University of Colorado Law School, and Duncan Kennedy, Harvard Law School.  It includes much of interest to legal historians.

Foreword
Justin Desautels-Stein & Duncan Kennedy   

The Presence and Absence of Legal Mind: A Comment on Duncan Kennedy’s Three Globalizations
Christopher Tomlins

Three Globalizations: An Essay in Inquiry
John Henry Schlegel

Structuralist Legal Histories
Justin Desautels-Stein

The Organizational Premises of Administrative Law
William H. Simon

The Law and Political Economy of Contemporary Food: Some Reflections on the Local and the Small
Amy J. Cohen

From Comparison to Collaboration: Experiments with a New Scholarly and Political Form
Annelise Riles

How To Do Things With Hohfeld
Pierre Schlag

The Great Alliance: History, Reason, and Will in Modern Law
Paulo Barrozo

Munshi on Naturalization and Racial Difference in the Early Twentieth Century

Sherally K Munshi, who this year has been a Law Research Fellow at the Georgetown University Law Center and next year will be a Law and Public Affairs Fellow at Princeton University, has posted 'You Will See My Family Became so American': Towards a Minor Comparativism, which is forthcoming in the American Journal of Comparative Law (2015):

How does the appearance of racial difference impede recognition of citizenship and national belonging? This Article seeks to answer that question by introducing to comparative legal scholarship a method of analysis — which I call “minor comparativism” — to challenge the nation’s self-image by engaging the perspectives and reflections of its minorities. This Article examines the role that laws regulating citizenship, immigration, and naturalization in the United States have played in constructing the appearance of racial difference, in turn, naturalizing whiteness as the embodiment of citizenship. I focus, in particular on the experience of Indian immigrants to the United States in the early twentieth century — a history which has received little attention within existing legal scholarship. In United States v. Bhagat Singh Thind (1923), the Supreme Court held that immigrants from India were racially ineligible for citizenship because they were visually inassimilable. The Court recognized that while many Indian immigrants had proven themselves capable of cultural assimilation, unlike their European counterparts, Indian immigrants could not be naturalized because they “indefinitely retain clear evidence of their physical group characteristics.”

This Article proceeds from an analysis of Thind to a close reading of the denaturalization trial of Dinshah P. Ghadiali, one of several dozen citizens of Indian origin that the United States sought to denaturalize in the wake of Thind. Since the Court had announced that visual assimilability was the relevant test for naturalization, Ghadiali strained to demonstrate that he and his family looked American. At his denaturalization trial, Ghadiali presented to the court several photographs of himself, his family, and his properties, promising the Judge, “you will see my family became so American.” By focusing on these photographs, I explore the demands of visual conformity that the law imposes on racialized minorities. As such, this Article recommends that we should regard the visual archive not as a supplement to more authoritative legal representations of the nation, but as a critical register through which we might collaborate in reconstructing forgotten histories, projecting alternative futures, and reenvision the meaning of citizenship and national identity.

Katz on Judicial Patriarchy, Domestic Violence, and the Family Privacy Narrative

Elizabeth Katz, a doctoral candidate in History at Harvard University, with an JD and MA in history from the University of Virginia, has posted Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, which is forthcoming in the William and Mary Journal of Women and the Law 21 (Winter 2015): 379-471.  Ms. Katz received the Kathryn T. Preyer Award of the American Society for Legal History for an earlier version of this article.

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.

Whitman on the Presumption of Innocence in the Us and Europe

James Q. Whitman, Yale Law School, has posted Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice, which is forthcoming in the Texas Law Review:    

American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.

Jones on the Lynch Nomination on HuffPo

Martha S. Jones, University of Michigan History and Afroamerican and African Studies, over at Huffington Post on the Loretta Lynch nomination and the political power of African-American women.

Barbas on Time, Inc. v. Hlll

Samantha Barbas, State University of New York Buffalo Law School, has posted When Privacy Almost Won: Time, Inc. v. Hill (1967), which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against the press for the publication of nondefamatory private facts.

The Hill case represented the culmination of a longstanding tension in American law. Since the early 20th century, states had recognized a “right to privacy” that permitted the victims of unwanted, embarrassing media publicity to recover damages for emotional distress. The privacy tort was praised for offering protection against an exploitative press, and at the same time decried by the publishing industry as an infringement on its freedoms. In the 1950s and 60s, with the growth of the media, an increase in privacy actions, and large judgments against the press, the privacy-free press conflict raised contentious debate.

Privacy and free speech were charged issues in American culture more generally. In an era that saw the introduction of computers, large-scale data collection, and increasing government surveillance, “privacy” emerged as a major national focus. Free expression rights also assumed new meaning and urgency in the turbulent social climate of the postwar era. These concerns were reflected in the Supreme Court’s decisions from this time. New York Times v. Sullivan (1964) held that the press had an expansive right to report on the public conduct of public officials, including a right to publish falsehoods, unless they were made with reckless disregard of the truth. One year later, Griswold v. Connecticut declared a constitutional right to privacy, protected by “penumbras” and “emanations” of guarantees in the Bill of Rights.

Time, Inc. v. Hill cast these freedoms in opposition. The case called upon the Warren Court, the Sullivan Court and the Griswold Court, to reconcile the two constitutional rights it had championed and created. A majority led by Justices Warren and Fortas initially voted to uphold the Hills’ claim. But after a bitter fight, votes switched, and a narrow majority voted for Time, Inc. The opinion by Justice Brennan rejected the notion of a constitutional right against unwanted publicity and declared an expansive view of the First Amendment as protection for all “newsworthy” material. The right of the press to publish on “matters of public interest,” from political reporting to articles about Broadway plays to movies and comic books, outweighed the privacy interests of unwilling subjects of media publicity.

This article explains how privacy almost won--how the Supreme Court almost recognized a constitutional right to privacy against the press--and why it didn’t. Time, Inc. v. Hill marked a crossroads, a moment when the law could have gone in one of two directions: towards privacy and a measure of press restraint, or towards a freer--if not at times unruly and uncivil-- marketplace of ideas. The Court chose the latter, and we have lived with the consequences since.

New Release: "Toward an Intellectual History of Black Women"

Just out from the University of North Carolina Press is Toward an Intellectual History of Black Women, edited by Mia E. Bay, Farah J. Griffin, Martha S. Jones, and Barbara D. Savage.  It is in the John Hope Franklin Series in African American History and Culture:

Despite recent advances in the study of black thought, black women intellectuals remain often neglected. This collection of essays by fifteen scholars of history and literature establishes black women's places in intellectual history by engaging the work of writers, educators, activists, religious leaders, and social reformers in the United States, Africa, and the Caribbean. Dedicated to recovering the contributions of thinkers marginalized by both their race and their gender, these essays uncover the work of unconventional intellectuals, both formally educated and self-taught, and explore the broad community of ideas in which their work participated. The end result is a field-defining and innovative volume that addresses topics ranging from religion and slavery to the politicized and gendered reappraisal of the black female body in contemporary culture.

Contributors are Jon Sensbach, Arlette Frund, Natasha Lightfoot, Mia E. Bay, Alexandra Cornelius, Corinne T. Field, Farah J. Griffin, Kaiama L. Glover, Thadious Davis, Maboula Soumahoro, Judith Byfield, Cheryl Wall, Sherie Randolph, Barbara D. Savage, and Martha S. Jones.

Campbell on 17th-Century Equity Law--for Non-Lawyers

Joseph Charles Campbell, University of Sydney Faculty of Law, has posted The Development of Principles in Equity in the Seventeenth Century: An Introduction for Non-Lawyers:

When an identifiable Court of Chancery emerged in the fifteenth century it supplemented the common law by using the notion of conscience. Its account of conscience derived from Thomist ethics, and was that the requirements of conscience in a particular fact situation were derivable from what the law of God and nature required to be done, which was objectively knowable. The English Reformation led to conscience losing its objectivity, because different understandings of scripture emerged from individuals having access to the Bible in English and interpreting it for themselves. in the course of the seventeenth century Chancery ceased to apply the notion of conscience directly, and increasingly articulated principles and rules that were applied to decide what behaviour was required. This process was assisted by numerous diverse contingent historical events and trends. Because all the equitable principles and rules developed in the context of an adversary system of litigation, with issues arrived at by pleading, the principles and rules did not take the form of a simple proposition that behaviour of a certain type was required in a certain situation. Rather, the principles and rules led to a conclusion that an equity, or claim, to require behaviour arose in a particular type of situation. Whether the court actually required that behaviour to occur depended on whether there was a better equity.

Noll's Guide to Civil Procedure before the FRCP

For every teacher of Property, Contracts or Torts whoever hoped but was not quite sure that the Civil Procedure professor has covered common-law pleading, David L. Noll, Rutgers-Newark Law, has posted A Reader's Guide to Pre-Modern Procedure:

This short essay fills a minor but consequential gap in the civil procedure literature. Many sources describe the general badness of procedural systems that predated the Federal Rules of Civil Procedure but few describe how those systems actually worked. This essay — intended as a reference for law students, law professors, and anyone else required to read and make sense of archaic judicial opinions — does just that.

The Tulsa Law Review, Book Review Issue

The second issue of Tulsa Law Review's Volume 50 is out and full of book reviews. The table of contents for the special issue can be found here, and a full list of reviewed books can be downloaded here.

Early Americanists will find Jane Fiegen Green's "Procreation and Power in Early America" of interest. In her review she includes 

• Mark Kann's Taming Passion for the Public Good: Policing Sex in the Early Republic (NYU Press).
• M. Michelle Jarrett Morris's Under Household Governance: Sex and Family in Puritan Massachusetts (Harvard University Press).
• Mark E. Brandon's States of Union: Family and Change in the American Constitutional Order (University Press of Kansas).

"Why are governments interested in the procreative habits of their citizens? Why especially does a democratic government—ostensibly formed to protect individual rights—concern itself with the private activities of consenting adults? These questions could be raised in debates over same-sex marriage or insurance coverage for contraception in the twenty-first century United States. But three recent books on the intersection of family, sex, and the law show us why the regulation of parents and children has been central to the organization of power since the colonial period."

There's plenty on rights in the special issue. For example, Bruce Ackerman's We the People, Volume III: The Civil Rights Revolution (Belknap) is doubly reviewed. First by James Fleming in "Fidelity To Our Constitution," and second by Sidney Tarrow in "The People Maybe? Opening the Civil Rights Revolution to Social Movements." Tarrow's opening paragraph:

"Bruce Ackerman has done it again: he has published the third in his magisterial se- ries of books on American political/constitutional history. The first volume, We the People: Foundations, made the greatest splash among constitutional lawyers. Its innovation was to range well outside formalist boundaries to bring popular politics into the study of constitutional revision. His second volume, We the People: Transformations, focused on the transformations in U.S. constitutional practice from the Civil War through the New Deal. The third volume, We the People: The Civil Rights Rovolution (hereinafter CRR), brings the story up to the civil rights revolution, which Ackerman sees as the latest con- stituent moment in American history. Among them, these three volumes contribute to one side of a growing bridge between constitutional scholars and students of social movements." 

Leslie Goldstein's review, "The Birth and Rebirth of Civil Rights in America" takes a look at both

• American Founding Son: John Bingham and the Invention of the Fourteenth Amendment by Gerard N. Magliocca (NYU Press).
• Civil Rights in the Shadow of Slavery: The Constitution, Common Law and the Civil Rights Act of 1866 by George Rutherglen (Oxford University Press).

Laura Woliver's "Dissent is Patriotic: Disobedient Founders, Narratives, and Street Battles," includes reviews of

• Government by Dissent: Protest, Resistance, and the Radical Democratic Theory in the Early American Republic by Robert WT Martin (NYU Press).
• Lewis Perry's Civil Disobedience: An American Tradition (Yale University Press).

There's loads more reviews after the break.

Sunday Book Roundup

In The New Rambler, Martha Minow reviews Sherry L. Smith's Hippies, Indians and the Fight for Red Power (Oxford University Press).

"Sherry L. Smith examines another true but unlikely alliance in Hippies, Indians and the Fight for Red Power.  Here, members of the American counterculture during the 1960s and 1970s offered help and collaboration as American Indians struggled for political and legal power and recognition. This nuanced analysis underscores the central role of Indian activists and the often ignorant and inconsistent contributions of non-Indians, but nonetheless shines light on the efforts of hippies, Quakers, and other non-Indians in the uphill struggle for fishing rights, land claims, and self-determination by Indian tribes."

Fareed Zakaria's In Defense of a Liberal Education (Norton) is reviewed at The Daily Beast.

H-Net has a review of James E. David's Spies and Shuttles: NASA's Secret Relationships with the DOD and CIA (University Press of Florida).

An excerpt from American Reckoning: The Vietnam War and Our National Identity by Christian G. Appy (Viking) has been published by Salon, "America's not a force for good."

The Los Angeles Review of Books examines Adam Zamoyski's Phantom Terror: Political Paranoia and the Creation of the Modern State, 1789-1848 (Basic).

Also in the L.A. Review of Books is a review of Katha Pollitt's Pro: Reclaiming Abortion Rights (Picador).

HNN has a review of Danielle Allen's Our Declaration: A Reading of the Declaration of Independence in Defense of Equality (Liveright).

James Whitman discusses his book, The Verdict of Battle: The Law of Victory and the Making of Modern War (Harvard University Press) with New Books in History.

David Garrow reviews Bryan Burrough's Days of Rage: America's Radical Underground, the FBI, and the Forgotten Age of Revolutionary Violence (Penguin) in The Washington Post.

"Yet Burrough bestows anonymity upon several crucial Weather participants, including a close Dohrn colleague who went on to be a prominent San Francisco lawyer and who spoke to him extensively. Weather veterans who did not cooperate are given no such favor. A one-sentence characterization of one such person does not explicitly name him, but I immediately realized that Burrough was identifying a man who has been a selfless and celebrated Midwest policy advocate for many years now, as well as a valuable mentor to a close family member of mine. Only in the now-digitized newspapers of almost half a century ago can one discover the Weather leadership role he played in 1969-1970 or his indictment as one of 15 accused bombers several years later. (The charges were later dropped on account of government misconduct.) Having visited his home, and having last shared a meal with him only two years ago, I am taken aback by just how easy it is indeed to pal around with terrorists."

The Nation has an adapted excerpt from The Age of Acquiescence: The Life and Death of American Resistance to Organized Wealth and Power by Steve Fraser (Little, Brown, and Co.).

Michele McKinley to be Fulbrighter

We note in today's Weekend Roundup that Michele McKinley, Oregon Law, will be presenting on the Law and Public Affairs Seminare at Princeton University on April 13.  LAPA's website also reports that Professor McKinley "has been named a 2015  Fulbright Fellow.  This prestigious award will enable McKinley to expand her work on Hispanic urban slavery to Cartagena, Colombia and the viceroyalty of Nuevo Granada (today’s Bogotá). This research is a continuation of McKinley’s LAPA project which is focusing on slavery in sixteenth and seventeenth century Lima."

Tushnet on Civil Rights Policy

Mark Tushnet, Harvard Law School, has posted Civil Rights Policy:

This essay offers an overview of US civil rights policy from the nineteenth century to the present. The expansion of the range of substantive interests covered by the term “civil rights” has been accompanied by an increasing emphasis on the connection between equality and civil rights. From the late nineteenth century through the first half of the twentieth, the term referred to racial equality with respect to whatever fit into the category, whether property rights, the right to vote, or social rights. Starting roughly in the middle of the twentieth century, “civil rights” began to be connected to other categories, such as gender, religion, sexual orientation, and by the twenty-first century quite a bit more. After examining the history of the idea and its implementation, the essay concludes with a discussion of contemporary controversies over disparate impact versus disparate treatment, affirmative action, and accommodation mandates.

Weekend Roundup

• This is apropos of nothing, but I ran across it while noodling over a student's paper on Paul Porter's tenure as chairman of the FCC, and it's too strange and wonderful not to note here. TV is the Thing This Year!

• Michelle A. McKinley, University of Oregon Law School, and one of this year’s LAPA Fellows at Princeton, will present  To Have and to Hold Onto: Domestic Slaveholding, Race, and Intimacy in Colonial Lima to the LAPA Seminar on April 13, 2015.  

• Victoria Saker Woeste, American Bar Foundation, on Huffington Post on the legal expertise Indiana’s Republicans relied upon when passing the state’s Religious Freedom Restoration Act.

Credit: Law Times

• From the Law Times: "For decades, a massive portrait of Sir James Gowan [right] hung in relative obscurity glancing a wary eye over what local lawyers affectionately call “settlement corner” at the Barrie [Ontario] courthouse.  Now, after a concerted effort by the community to restore the painting, the 147-year-old portrait of Simcoe County’s first judge will gain more prominence at the local courthouse.”  More.

• Words-to Live-By Department. John Hope Franklin to Mary Frances Berry: “He said, 'you already know more about this than anybody, why don’t you just write it?'"

• For many years when someone--say, trade unionists--wanted to characterize some measure--say, the labor provision of the Clayton Act--as a fundamental check on power, the metaphor they used was "Magna Carta."  Since the early years of Rights Revolution, however, the first choice has usually been "Bill of Rights."  Is Magna Carta making a comeback, thanks to all the recent anniversary hoopla?  A Digital Magna Carta: Internet Governance and a New Social Contract.

• There's no fighting 3560 SSRN downloads (and counting), so I give up: Orin S. Kerr, George Washington University Law School, The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria.  And I'm told we should all go see The Originalist at Washington, DC's Arena Stage theater for fictional representations not only of Justice Scalia but of my beloved law school classmates at the University of Chicago in the 1980s.

• From the Norwich [Connecticut] Bulletin: "Central Connecticut State University history professor Matthew Warshauer and student Kristin Steeves will lead a discussion on the life and politics of Lafayette Foster, who as president of the U.S Senate served as the second-highest ranking official in the nation under President Andrew Johnson from April 15, 1865 through March 2, 1867.  'Lafayette Foster: A Principled Stand Against the Slave Power' takes place at 7 p.m. Tuesday at the Slater Auditorium on the campus of Norwich Free Academy."

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

Kamali to Harvard Law School

Harvard Law School has announced that Elizabeth Papp Kamali (Ph.D. candidate, University of Michigan) will be joining the faculty in July. Here's an excerpt from the press release:

Elizabeth Papp Kamali ’07, a scholar specializing in medieval legal history, will join the Harvard Law School faculty as an assistant professor in July. Kamali is a Ph.D. candidate at the University of Michigan, where she is completing her dissertation, “A Felonious State of Mind: Mens Rea in Thirteenth- and Fourteenth-Century England.”

“With deep expertise and imagination, Liz explores profound questions about what is and should be a crime through examining medieval laws and culture, with important implications for contemporary legal issues,” said Martha Minow, dean of Harvard Law School. “Already a significant contributor to scholarship in legal history, Liz first developed her interests as a Harvard undergraduate and pursued the work with rigor through her time as a truly impressive Harvard Law School student and more recently in prize-winning work for the Ph.D. at the University of Michigan.  I’m thrilled to welcome her back to Cambridge as a member of the faculty, and I’m excited for students to experience her exceptional teaching and her collegiality.”

Read on here. (Hat tip: Martha Jones)

Congratulations to Elizabeth Papp Kamali!

Do you have hiring news to share? Feel free to email us. We're always happy to spread good news.

Whitman's "Verdict of Battle" on New Books in History

Just posted over at New Books in History is an interview with James Q. Whitman, Yale Law School, concerning his Verdict of Battle: The Law of Victory and the Making of Modern War (Harvard University Press, 2012), which, as NBH has it, “dissects the law behind eighteenth century European land wars. Whitman’s impressive attempt to sort out the intellectual path of the laws of war leaves us with a clearer understanding of the factors that narrowed the scope of destructive warfare in the 18th century.”

New Release: Richert on the Reagan FDA

Lucas Richert has published Conservatism, Consumer Choice, and the Food and Drug Administration during the Reagan Era: A Prescription for Scandal (Lanham, MD: Lexington Books, 2014):

In the last quarter of the 20th century, politicians in Washington, as well as interest groups, regulatory policy makers, and drug industry leaders were forced to confront the hot-button issue of pharmaceutical regulation. The struggle always centered on product innovation, consumer protection, and choice in the free market. As the American economy stuttered in the late 1970s, the stakes were extremely high for the powerful drug industry and the American public. At the center of this drama was the Food and Drug Administration, which was censured from both the left and right of the political spectrum for being too strict and too lenient in the application of its regulatory powers.

Lucas Richert explores the FDA, drugs, and politics in the context of the watershed Reagan era, a period when the rhetoric of limited government, reduced regulation, and enhanced cooperation between businesses and U.S. regulatory agencies was on the ascent. As he investigates the controversies surrounding Laetrile, Reye’s Syndrome, Oraflex, patient package inserts, diet pills, and HIV/AIDS drugs, Richert argues that the practical application of conservative economic principles to the American drug industry was A Prescription for Scandal.

 An endorsement:

Conservatives, Consumer Choice, and the FDA in the Reagan Era is an engaging analysis of the influence of presidential ideology, congressional oversight, and the political character of the FDA’s leadership on the agency’s institutional identity and regulatory work. Lucas Richert’s compelling and nuanced perspective exposes the limits of the deregulatory ethos of the Reagan era and demonstrates the persistence of an institutional identity that has balanced the imperatives of consumer safety against those of pharmaceutical innovation. This book is a must-read for anyone interested in the recent history of pharmaceutical regulation and for policymakers engaged in the making of pharmaceutical policy.
— Dominique Tobbell, University of Minnesota
TOC after the jump.

Ahlers on the Origins of the Clean Air Act

Christopher D. Ahlers has posted Origins of the Clean Air Act: A New Interpretation, which is forthcoming in Environmental Law 45 (2015) :75-127:    

Given the increased national attention to the use of the Clean Air Act to address climate change, an analysis of the origins of the Clean Air Act is instructive for understanding the law in its current form. Contrary to the traditional view, the formation of the Clean Air Act was not the result of the events of the Year of the Environment, but rather, the gradual evolution of a federal regulatory approach to the medium of air between 1955 and 1970. Far from being weak and ineffectual, the federal air pollution laws of 1955, 1963, 1965, and 1967 laid the legal and conceptual framework for the modern Clean Air Act.

MacMillan on a Trans-Atlantic Migration of Contractual Privity

Catharine MacMillan, Professor of Law and Legal History at the University of Reading, has published The Mystery Of Privity: Grand Trunk Railway Company of Canada v. Robinson (1915), University of Toronto Law Review 65 (Spring 2015).  It's gated, I'm afraid, but it's also too interesting not to note:

This article examines a little known decision of the Judicial Committee of the Privy Council: Grand Trunk Railway Company of Canada v Robinson (1915). The examination is historical and it provides a different insight into the understanding of privity of contract, a doctrine central to contract law. The examination reveals a process of trans-Atlantic legal migration in which English law was applied to resolve an Ontario case. The nature of the resolution is surprising because it appears to conflict with the better known decision of the House of Lords, Dunlop Pneumatic Tyre Company, Limited v Selfridge and Company, Limited, which a similarly constituted panel delivered in the same week. This article argues that there was a greater malleability in the resolution of cases concerned with privity than was thought to have existed. It is also argued that the power of Canadian railway capitalism is a significant factor in understanding the legal resolution of the case. Finally, the article considers the use of English and American precedents relevant to the case. The application of English precedents to the case led to a resolution not entirely befitting Canadian conditions.

Hat tip: H-Law.

Dudziak to Speak on War without Violence

LHB Founder Mary L. Dudziak, the Asa Griggs Candler Professor of Law, Emory University, and, this year, a fellow at the Center for Advanced Study in the Behavioral Sciences, Stanford University, has some upcoming speaking engagements.  In the Rutgers University Center for Cultural Analysis’s seminar on Totality, she will present, on April 7, War without Violence: Rethinking the Totality of America's World War II.  In that same session, Paul Saint-Amour, University of Pennsylvania, will speak on “From Total War to Perpetual Interwar.”  The next day the pair will lead a discussion of readings related to war and totality. 

On April 17, Professor Dudziak be delivering the keynote lecture (“War without Violence”) in the Duke University History Department’s conference, Framing Violence.

Book Talk: The Italian Enlightenment and Early American Constitutions and Laws

We have the following announcement.]

Join ConSource Executive Director Julie Silverbrook and University of Baltimore Law Professor John Bessler for a lunch time book talk on the Italian Enlightenment and Early American Constitutions and Laws.  The book talk will be held on Tuesday, April 7 from 12:00 to 1:30 p.m. on the 12th Floor of 1700 K Street, NW.

During this discussion, Professor Bessler will explore the history of the Italian Enlightenment, including its most influential writers.  Before the Constitutional Convention in Philadelphia, Benjamin Franklin corresponded with Gaetano Filangieri, a young lawyer from Naples who wrote The Science of Legislation; in his own bestseller, Common Sense, Thomas Paine quoted Giacinto Dragonetti, the now little-remembered Italian author of A Treatise on Virtues and Rewards; and Thomas Jefferson copied more than two dozen passages from Cesare Beccaria's On Crimes and Punishments into his commonplace book.  Professor Bessler will describe how the Italian Enlightenment influenced America's founders and early American constitutions and laws.

John Bessler is a law professor at the University of Baltimore School of Law and an adjunct professor at the Georgetown University Law Center.  He is the author of six books, most recently The Birth of American Law: An Italian Philosopher and the American Revolution (Durham, NC: Carolina Academic Press, 2014).

Please register here for Professor Bessler's book talk. Registration will close on Friday, April 3rd at 5 p.m. ET.

Barrett on Jackson on Federal Prosecution, 1940

Attorney General Jackson (LC)

John Q. Barrett’s posts on Robert H. Jackson are always interesting, but his latest, on Jackson’s “Federal Prosecutor” address of April 1, 1940, is especially so.  It provides a window into the politics of the Department of Justice in 1939-40 and, by reproducing a letter from Gordon Dean to Jackson and Jackson’s speech, explains when Main Justice would exercise “centralized control” over prosecution and suggests a new emphasis on respecting civil liberties in law enforcement.  “Those who are in office are apt to regard as ‘subversive’ the activities of any of those who would bring about a change of administration,” Jackson reminded the assembled US Attorneys.  “Some of our soundest constitutional doctrines were once punished as subversive.”

New Release: The Cambridge Companion to Roman Law

Published last month was The Cambridge Companion to Roman Law, edited by David Johnston:

This book reflects the wide range of current scholarship on Roman law. The essays, newly-commissioned for this volume, cover the sources of evidence for classical Roman law; the elements of private law, as well as criminal and public law; and the second life of Roman law in Byzantium, in civil and canon law, and in political discourse from AD 1100 to the present. Roman law nowadays is studied in many different ways, which is reflected in the diversity of approaches in the essays. Some focus on how the law evolved in ancient Rome, others on its place in the daily life of the Roman citizen, still others on how Roman legal concepts and doctrines have been deployed through the ages. All of them are responses to one and the same thing: the sheer intellectual vitality of Roman law, which has secured its place as a central element in the intellectual tradition and history of the West.

Table of contents after the jump

Magna Carta: 800 Years After Runnymede

The Magna Carta Marathon continues with this YouTube video posted by the University of Virginia Law School.   "UVA Law professor A. E. Dick Howard and William & Mary law professor Tom McSweeney discuss the impact of Magna Carta on both American and English law in honor of its 800th anniversary this year. The event, sponsored by the Federalist Society at UVA Law and the Student Legal Forum, took place on March 25 at the University of Virginia School of Law."

Robinette on Newly Discovered Prosser Letters

Christopher J. Robinette, Widener University School of Law, has posted The Prosser Letters: 1919-1948, which is forthcoming in volume 101 of the Iowa Law Review.

William Prosser was one of the most accomplished and influential scholars of the twentieth century. He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress. In spite of his numerous achievements, there is no full-length biography of Prosser. A major reason no one has written such a volume is the lack of Prosser’s papers. Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963. Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further research on his life.

Progress is possible thanks to the serendipitous discovery of a pile of Prosser’s old letters at a garage sale in the Berkeley area. The letters begin when the twenty-one-year-old Prosser is in Europe after fighting in World War I and continue through Prosser’s role as a visiting professor at Harvard Law School in 1948. They provide a first-hand account from Prosser during crucial periods of his life.

This essay is based on a review of those letters. It accomplishes three main things. First, it fills in considerable details of Prosser’s life, including the resolution of several contested issues, such as where Prosser spent his childhood and when he matriculated as a 1L at Harvard Law School. Second, the essay provides a first-hand account of Prosser’s pedagogical experience in law school and how that affected his teaching, his struggle with the decision to become an academic, and his candid appraisal of the academy. Third, the essay reveals Prosser’s assessment of his own honesty, which is especially provocative in light of the controversy surrounding his methods for influencing the law.

 We've previously noted an article by Professor Robinette on a student notebook of one of Prosser's classes.

The National History Center's Video Library

The National History Center has recently posted a pointer to its nicely indexed, web-based library of videos, mostly recordings of the Center's Congressional Briefings and meetings of the Washington History Seminar. Here's the list or recordings for the "State and Society" category:

Congressional Briefings
    NHC Congressional Briefing on Immigration Policy: April 5, 2013
    NHC Congressional Briefing on the Great Depression: May 21, 2009
    NHC Congressional Briefing on the Federal Role in Race and Reconstruction: March 13, 2006

Washington History Seminars
    Human Rights before Carter: December 8, 2014
    The Secret Ballot in the United States: April 7, 2014
    Vagrancy Laws and the Long 1960s: January 13, 2014
    Bureaucracy, Citizenship and Remembrance in Wartime Iraq: April 22, 2013
    Historical Perspective on the Arab Spring: April 8, 2013
    Weatherman Underground Terrorism: April 1, 2013
    Lincoln and the Emancipation Proclamation: January 28, 2013
    Islam and Democracy for the 21st Century: February 13, 2012
    Abraham Lincoln and the Irish: January 23, 2012
    Statelessness in 20th Century America: October 24, 2011
    Civil Military Relations: April 11, 2011
    The “Good Occupation”: Military Government in the American Imagination: March 14, 2011
    Rethinking the History of the French Welfare State: March 7, 2011
    Territory, Statehood, and Sovereignty: From Westphalia to Globalization: February 7, 2011
    The Protestant Boomerang: American Missionaries and the United States: November 15, 2010
    Reflections on the Mau Mau and the End of Empire: September 27, 2010
    Why a Congress and Not a Parliament?: September 13, 2010
    C. Vann Woodward and the Civil Rights Movement: May 10, 2010
    The French and American Revolutions and Modern Democracy: April 26, 2010
    Rising Inequality and the Return of Jim Crow: April 5, 2010

Miscellaneous Events
    Passing the Voting Rights Act, 1965: January 4, 2015 (Audio only)

Forthcoming is the Center's next Congressional Briefing, American Families, Global Competition, and Comprehensive Tax Reform in Historical Perspective, co-sponsored with the Joint Committee on Taxation.  It will be held May 8 at 10 a.m. in 2103 Rayburn House Office Building.

Thank you, Mitra Sharafi

Please join the Legal History Blog team in thanking Mitra Sharafi (University of Wisconsin-Madison) for her fantastic guest blogging during the month of March.

This month she has brought our attention to valuable historical sources and web resources, and discussed her current research in South Asian legal history.

• In praise of small archives
• In praise of private papers
• In praise of memoirs
• Eugenics in South Asian Legal History
• First Book Workshops
• Digital Asian Legal History

For more on Professor Shafari's latest book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge), follow this link, and don't forget to take a look at her work elsewhere online compiling South Asian Legal History Resources.

McGaughey on Labor-Capital Codetermination in Germany

Ewan McGaughey, King's College, London, The Dickson Poon School of Law, has posted The Codetermination Bargains: The History of German Corporate and Labour Law:

Why does codetermination exist in Germany? Law and economics theories have contended that if there were no legal compulsion, worker participation in corporate governance would be ‘virtually nonexistent’. This positive analysis, which flows from the ‘nexus of contracts’ conception of the corporation, supports a normative argument that codetermination is inefficient because it is supposed that it will seldom happen voluntarily. After discussing competing conceptions of the corporation, as a ‘thing in itself’, and as an ‘institution’, this article explores the development of German codetermination from the mid-19th century to the present. It finds the inefficiency argument sits at odds with the historical evidence. In its very inception, the right of workers to vote for a company board of directors, or in work councils with a voice in dismissals, came from collective agreements. It was not compelled by law, but was collectively bargained between business and labour representatives. These ‘codetermination bargains’ were widespread. Laws then codified these models. This was true at the foundation of the Weimar Republic from 1918 to 1922 and, after abolition in 1933, again from 1945 to 1951. The foundational codetermination bargains were made because of two ‘Goldilocks’ conditions (conditions that were ‘just right’) which were not always seen in countries like the UK or US. First, inequality of bargaining power between workers and employers was temporarily less pronounced. Second, the trade union movement became united in the objective of seeking worker voice in corporate governance. As the practice of codetermination has been embraced by a majority of EU countries, and continues to spread, it is important to have an accurate positive narrative of codetermination’s economic and political foundations.