Sunday book roundup

Too hot to go to that conference?  Or pick up the draft of that essay?  Or, let alone, go for that run!?   Legal historians looking to beat the heat will enjoy these book reviews.

In The Guardian, Colin Kidd reviews Continental Drift by Benjamin Grob-Fitzgibbon, a diplomat in the US State Department and former academic. In this history of Britain’s uneasy relationship with European unity projects since WWII, Grob-Fitzgibbon “emphasises the ways in which the empire and Commonwealth influenced Britain’s relationship with the European project.” 

In the same publication, Julia Lovell examines The Cultural Revolution: A People’s History 1962-1976, which is final volume in Frank Dikotter’s history of communism in China reveals the brutality and caprice of Mao's final years. Dikotter makes “more intensive use of evidence drawn from China’s local archives,” which many historians have ignored. He explores the capitalist aspects of the Cultural Revolution, and tracks growth of a private economy during the 1970s, “China’s reddest decade.” (Dikotter describes ’70s China--albeit more briefly--in this month’s issue of History Today).

In the Times Literary Supplement, Mark Roseman reviews Final Solution: The Fate of the Jews 1933-1949, by the late historian David Cesarani. Cesarani not only “incorporates a wide swathe of recent work into an accessible narrative” but illustrates the “shifting, often unanticipated, and improvised character of anti-Jewish policies,” making it a text of interest for legal historians of mid-century Europe and the Holocaust.

John Strausbaugh’s “City of Sedition” is reviewed by Harold Holzer in the Wall St. Journal,. The book chronicles New York City’s city’s “violent” opposition to Lincoln, Unionism and emancipation. Strausbaugh, says Holzer, “finds the roots of its disloyalty sowed in a zeal for pre-war, conscience-free commerce with the South, which spawned a convenient moral indifference to slavery, which was nourished by blatant racism.” The book is also reviewed in the New York Times, Vice and Newsweek, which carries an excerpt. Legal historians of a naval persuasion might enjoy the Journal’s review of George C. Daughan’s Revolution on the Hudson and Eric Lee’s Operation Basalt: The British Raid on Sark and Hitler's Commando Order.

Also in the New York Times, one can read about Carlos M. N. Eire’s Reformations: The Early Modern World, 1450-1650 and Jeffrey Toobin’s book about Patty Hearst. Want another take on Toobin, Hearst and the “the madness of the ’70s”? Kate Tuttle reviews the book in the LA Times, and in The New Republic, Malcolm Harris wonders why Toobin “refuses to take her radical beliefs seriously.”

Legal historians may also enjoy the New Books Network’s coverage of two new books on voting and voting rights in America (Zachary Roth’s The Great Suppression: Voting Rights, Corporate Cash, and the Conservative Assault on Democracy and Ciara Torres-Spelliscy’s Corporate Citizen? An Argument for the Separation of Corporation and State) might be of interest to some legal historians.

H-Net has reviews of Elie Podeh’s Chances for Peace: Missed Opportunities in the Arab-Israeli Conflict; Stephen M. Saideman, R. William Ayres. For Kin or Country: Xenophobia, Nationalism, and War, and Security: Dialogue across Disciplines, edited by Philippe Bourbeau.

Finally, The Huffington Post’s Suggested Reading List for Donald Trump includes submissions from legal historian Robert W. Gordon (who says “I’m thinking of Edmund Morris’ three-volume biography of Theodore Roosevelt … and of James MacGregor Burns’ biography of Franklin Roosevelt”). The impending election also looms large in Max Bloom’s review of Harold H. Bruff’s Untrodden Ground: How Presidents Interpret the Constitution.

Weekend Roundup

•  Legal history and the German Law Journal.   

• ConSource’s 7th annual Constitution Day Lecture is a conversation with Judge Robert Katzmann, Chief Judge, United States Court of Appeals for the Second Circuit, and Emily Gold Waldman, Pace University School of Law, in the Robert H. Smith Auditorium of the New-York Historical Society at 8:30 on Thursday, September 15, 2016.  The topic is Judging Statutes: Interpreting Congress’ Laws Under the Constitution.

• The Socio-Legal Review, “a student-edited, peer-reviewed journal which is published by the Law and Society Committee, National Law School of India University, Bangalore,” invites submissions for its its thirteenth volume to be published in two issues in 2017.

• The European Inter-University Centre for Human Rights and Democratisation has launched the first MOOC of the Global Campus Open Learning Series.  It is Disability as a Human Rights Issue: Global and National Perspectives and opens on September 12, 2016. 

• Seth Barrett Tillman teases a project on the Presidential Succession Act of 1947.

• ICYMI: Amanda B. Moniz on OUPblog on how history can inform public policy today.

• The American University International Law Review vol.31(2) features articles by Arudra Burra, Dinusha Panditaratne, Kalyani Ramnath, and Umakanth Varottil on the colonial continuities debate in South Asian legal studies.

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

A New Edition of Blackstone

Just published is the Oxford Edition of Blackstone: Commentaries on the Laws of England, prepared under he general editorship of Wilfrid Prest, Professor Emeritus of History and of Law at the University of Adelaide:

Oxford's variorum edition of William Blackstone's seminal treatise on the common law of England and Wales offers the definitive account of the Commentaries' development in a modern format. For the first time it is possible to trace the evolution of English law and Blackstone's thought through the eight editions of Blackstone's lifetime, and the authorial corrections of the posthumous ninth edition. Introductions by the general editor and the volume editors set the Commentaries in their historical context, examining Blackstone's distinctive view of the common law, and editorial notes throughout the four volumes assist the modern reader in understanding this key text in the Anglo-American common law tradition.

Book I: Of the Rights of People                     Book II: Of the Rights of Things
Volume Editor: David Lemmings                 Volume Editor: Simon Stern

Book III: Of Private Wrongs                          Book IV: Of Public Wrongs
Volume Editor: Thomas P. Gallanis             Volume Editor: Ruth Paley

The University of Adelaide’s press release is here.

Monti on German Legal Thought and Italian Law Teaching

Annamaria Monti, Bocconi University, Department of Law, has posted “Interdisciplinary” Legal Studies and the Emergence of New Academic Teachings: A Research Project on Law Courses in 19th-20th Century Italy, which appears (in English) in CIAN: Revista de Historia de las Universidades 19 (2016): 91-113:

The profound change in thinking about the law experienced by European jurists at the turning of the 20th century is well known: they renewed their methods, also through the influence of German legal thought and the impact of new social sciences. Focusing on the Italian experience, the research intends to investigate how this innovative change was linked to the teaching of law. Most certainly, new courses were introduced. Concerning the contents of the teachings, another point to investigate are the connections with the legal thought circulating at a transnational level in those times.

Howell on Street Gangs

James C. Howell, National Gang Center, has published The History of Street Gangs in the United States: their origins and transformations with Lexington Books (Rowman & Littlefield). From the press:

This book is an historical account of the emergence of youth gangs and thetransformation of these into street gangs in the United States. The author traces the emergence of these gangs in the four major geographical regions over the span of two centuries, from the early 1800s to 2012. The author’s authoritative analysis explains gang emergence and expansion from play groups to heavily armed street gangs responsible for a large proportion of urban crimes, including drive-by shootings that often kill innocent bystanders. Nationwide, street gangs now account for 1 in 6 homicides each year, and for 1 in 4 in very large cities. In recent years, the number of gangs, gang members, and gang homicides increased, even though the U.S. has seen a sharp drop in violent and property crimes over the past decade. 

The author’s historical analysis reveals the key contributing factors to transformation of youth gangs, including social disorganization that occurred following large-scale immigration early in American history and urban policies that pushed minorities to inner city areas and public housing projects. This analysis includes the influence of prison gangs on street gangs. The first generation of prison gangs emerged spontaneously in response to dangers inside prisons. The second generation was for many years extensions of street gangs that grew enormously during the 1980s and 1990s, particularly in large urban areas in which public housing projects have served as incubators for street gangs. The third generation of prison gangs is extremely active in street-level criminal enterprises in varied forms, often highly structured and well managed organizations that are actively involved in drug trafficking. In recent years, returning inmates are a predominant influence on local gang violence. Now, prison gangs and street gangs often work together in street-level criminal enterprises. 

This book identifies the most promising ways that gang violence can be reduced. The best long-term approach is a combination of gang prevention, intervention, and suppression strategies and programs. Targeted suppression of gang violence is imperative. Street-workers that serve as violence interrupters can break the cycle of contagious gang violence.  

Praise after the jump.

Davies on Taft on Law as a Vocation

Ross E. Davies, George Mason University-Antonin Scalia Law School, has posted Debate and Switch: William Howard Taft on Law As a Vocation, Journal of Law  6 (2016): 1:

William Howard Taft, 1908 (LC)

Were William Howard Taft’s shifting views on the proper roles and supply of lawyers really just manifestations of crass professional self-interest? Did President Taft talk trash about lawyers in Congress to get a leg up on policy competitors without regard to the collateral effects of America’s most powerful lawyer impugning the integrity of a whole category of other powerful lawyers? Did Professor Taft write enthusiastically about careers in law to a generation of young Americans serving their country in World War I knowing full well – at least according to himself just three years later – that back home the nation was already oversupplied with lawyers? (A ploy known to a later generation as a law school scam.) And did Chief Justice Taft demean as incompetent and unnecessary many members of the bar – those who lacked a college education, at a time when access to higher education was far more limited than it is today – in order to prop up the profession for those who already had (or would be able to get) a college degree? Or, instead, was Taft getting wiser with age? Or were his views shifting in keeping with changing times? Or did someone or some new idea trigger a shift? Reasonable minds can differ about the answers, but Taft himself could have made it easy. He could have explained himself – why he was reversing, or at least refining, his thinking. Or how circumstances had changed while his thinking had not. Isn’t that what good leaders (and scholars and judges) do?

H/t: Legal Theory Blog

NEH Next Generation Grants Announced

We learned yesterday that the National Endowment for the Humanities has just announced its annual grants, including those from a new Next Generation program that seeks to encourage reconfiguration of graduate education to better prepare doctoral students for non-academic as well as academic careers.  University of Chicago, University of Delaware, and Duke University received implementation grants of up to $350,000; twenty-five institutions received planning grants of up to $25,000.  Duke’s press release is here; a (gated) story in the Chronicle of Higher Education is here.

Cheng on "How Eighteen-Year-Olds Got the Vote"

Jenny Diamond Cheng (Vanderbilt University) has posted "How Eighteen-Year-Olds Got the Vote." Here's the abstract:

Recent legal challenges to state voter ID laws have raised pressing questions about the correct interpretation of the constitutional amendment that guarantees eighteen-year-olds the right to vote. The Twenty-sixth Amendment, which was ratified in 1971, lowered the minimum voting age from twenty-one to eighteen. This Article offers a new, urgently needed comprehensive political history of the amendment's origins. Drawing on exhaustive primary source research, the piece traces the story of eighteen-year-old voting from World War II to the present and demonstrates that the story of eighteen-year-old voting is far more complicated that is commonly thought. This Article argues that the motives and rationales both for and against eighteen-year-old voting shifted over time and were always deeply embedded in their particular historical moments. As such, the history of the Twenty-sixth Amendment poses a challenge to those who would look to original intent to interpret it.

Hat tip: Legal Theory Blog

Brophy's "University, Court, and Slave"

Out this month from OUP is University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War, by Alfred L. Brophy, University of North Carolina School of Law:

University, Court, and Slave reveals long-forgotten connections between pre-Civil War southern universities and slavery. Universities and their faculty owned people-sometimes dozens of people-and profited from their labor while many slaves endured physical abuse on campuses. The profits of enslaved labor helped pay for education, and faculty and students at times actively promoted the institution. They wrote about the history of slavery, argued for its central role in the southern economy, and developed a political theory that justified slavery. The university faculty spoke a common language of economic utility, history, and philosophy with those who made the laws for the southern states. Their extensive writing promoting slavery helps us understand how southern politicians and judges thought about the practice.

As Alfred L. Brophy shows, southern universities fought the emancipation movement for economic reasons, but used history, philosophy, and law in an attempt to justify their position. Indeed, as the antislavery movement gained momentum, southern academics and their allies in the courts became bolder in their claims. Some went so far as to say that slavery was supported by natural law. The combination of economic reasoning and historical precedent helped shape a southern, proslavery jurisprudence. Following Lincoln's November 1860 election, southern academics joined politicians, judges, lawyers, and other leaders in arguing that their economy and society was threatened. Southern jurisprudence led them to believe that any threats to slavery and property justified secession.

Bolstered by the courts, academics took their case to the southern public-and ultimately to the battlefield-to defend slavery. A path-breaking and deeply researched history of southern universities' investment in and defense of slavery, University, Court, and Slave will fundamentally transform our understanding of the institutional foundations of pro-slavery thought.

Professor Brophy discusses his book here.  TOC here; endorsements after the jump.

Telman on Marshall, Thomas and Higher Law

D. A. Jeremy Telman, Valparaiso University Law School, has posted The African-American Interest in Higher Law in the Supreme Court: Justices Marshall and Thomas, which is forthcoming in the Temple International and Comparative Law Journal:

This paper was written for a Festschrift in honor of Henry J. Richardson III. It reviews the constitutional jurisprudence of Justices Thurgood Marshall and Clarence Thomas from the perspective of Professor Richardson’s presentation of an African-American interest in higher law. Both African America Supreme Court Justices’ constitutional jurisprudence is informed by higher law norms as well as by positive law. The paper contrasts Justice Marshall’s approach, which evaluates legal norms in particular socio-legal contexts, with Justice Thomas’s principled adherence to procedural rules. The paper contends that Professor Richardson’s approach to legal history better accords with Justice Marshall’s methodology, which is the approach most likely to result in the realization of African-American interests in legal recognition and vindication of substantive rights.

H/t: Legal Theory Blog

Cau on Corporatism in Italian Legal and Political Culture after WW2

Maurizio Cau, Istituto storico italo-germanicoas has posted, auf Deutsch, The Heritage of Corporatism in Second Post-war Legal and Political Italian Culture.  Here is the English abstract:

The day after the fascist regime’s breakdown, the corporatism’s doctrinal heritage was overcome by the “clearing the past” politics carried out by the Italian political and intellectual world, looking for a cultural and institutional breaking with authoritarianism.

Nevertheless, thought on corporatism influenced the public discourse in the newborn republic. In Italy the process of transition between totalitarian and democratic constitutional culture went also through the critical elaboration of corporatism.

In the immediate second post-war not everyone looked at the abandonment of corporatism with relief. Among that season’s protagonists there was also who deplored the treason of original ideals, trying to rebuild those doctrines in a democratic frame.

The research will focus on the permanency of corporative issues during the very first years of the republican experience. The deliberations of the Constituent Assembly themselves show how vivid suggestions on corporative social framework and political obligation still were.

A particularly interesting topic is the reflection that took shape within the catholic political and legal culture, that in late 19th century produced the corporative reflection and during the Fascist period expressed – in its less compromised with fascism components – its discomfort for a statist and not authentically organicist corporatism.

The abandon of the corporative theoretical horizon was a quick but hard experience, that deserves deeper attention by historical research.

Rotman on Canada's Fusion of Law and Equity

Leonard I. Rotman, Schulich School of Law, Dalhousie University, has posted The “Fusion” of Law and Equity?: A Canadian Perspective on the Substantive, Jurisdictional, or Non-Fusion of Legal and Equitable Matters, which appears in the Canadian Journal of Comparative and Contemporary Law 2 (2016): 1-40:

Equity, in its broad understanding, has long been a fundamental part of law. Its history may be traced through principles illustrated in the Old Testament and, in various formulations, through Ancient Greek and Roman legal constructs, as well as in Natural Law and Canon Law. While the historic presence of equity within various systems of law is unquestioned, the jurisdiction of equity within contemporary legal systems has been a matter of significant debate and confusion. Facilitating a better understanding of the contemporary role of equity requires knowledge of its meaning and the implications of the historic merger of legal and equitable jurisdictions. This paper establishes a framework for appreciating the contemporary challenges faced by equity by examining the Supreme Court of Canada’s analysis of the merger of legal and equitable jurisdictions in two major cases involving allegations of breaches of fiduciary duty: Canson Enterprises Ltd v Boughton & Co and Hodgkinson v Simms. The inconsistent application of equitable principles in these cases demonstrates the court’s confusion over the effects of the historic merger of law and equity and offers a valuable perspective for the administration of justice in contemporary law.

CFP: SHARIAsource

[We have the following announcement.]

We invite submissions for short articles concerning law in the early modern or modern Ottoman Empire, for publication on SHARIAsource, a digital project based at Harvard Law School and directed by Prof. Intisar Rabb, that will be launched in late 2016.

SHARIAsource is an online research portal to collect and house primary sources and commentary on Islamic law. It is designed to be both a reference for scholars and a reliable resource for people outside the academy: lawyers, journalists, policy-makers, activists, and so on. Articles published by SHARIAsource will be blind peer-reviewed and meet the highest scholarly standards, but should also be accessible to non-specialists.

For more details, an article on SHARIAsource was published last year in the Harvard Magazine.

Currently, we would like short articles (approx. 1500-3000 words) on any subject related to law, judicial institutions and legal practices in the Ottoman Empire since 1450. We accept submissions in any relevant scholarly discipline.

There are various potential formats for the article:

• A primary source, such as a sijill entry or other legal document, in English translation with commentary.

• A summary of a journal article or book that you have published recently, detailing its argument and conclusions.

• An article on a key controversy in Ottoman legal studies.

• An article on a key event or trend in Ottoman legal history (for example, the 1876 Ottoman Constitution)

• An article on a key concept (for example, kānūn, or citizenship)

• An article on a significant jurist or other actor in Ottoman legal history.

Feel free to suggest other formats as well.

As the above suggests, articles submitted to SHARIAsource need not be original research in their own right, but they should be based on original research. SHARIAsource aims to expand access to existing scholarship as well as facilitate new research.

By contributing to SHARIAsource, you will help to inform the global public debate on Islamic law, and you will also be able to raise the profile of your published work, connect with people inside and outside the academy and forge interesting new collaborations.

Please send submissions relevant to the period 1450-1839 to James Baldwin at james.baldwin@rhul.ac.uk, and submissions relevant to the period 1839-1924 to Will Smiley at smileyw@reed.edu.

Sunday Book Roundup

This week's roundup features, yet again, a heterogeneous assortment of reviews.

In the New York Times is a provocatively critical review of Andrew Scott Cooper's pro-Pahlavi The Fall of Heaven: The Pahlavis and the Final Days of Imperial Iran.  Also reviewed is John Strausbaugh's City of Sedition: The History of New York City During the Civil War.  

In the Washington Post, Daniel Kanstroom raises a number of questions about the history of discretionary deportation in his review of John Lennon vs. The U.S.A.: The Inside Story of the Most Bitterly Contested and Influential Deportation Case in United States History.  Also in the Washington Post is a review of The Lynching: The Epic Courtroom Battle That Brought Down the Klan.

On H-Net this week is a review of Daniel Richter's Native Americans' Pennsylvania.  Also on H-net is a review of Mario Jimenez Sifuentez's Of Forests and Fields: Mexican Labor in the Pacific Northwest.   Finally, there is a review of Lennard J. Davis' Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights.

This week the New Books Network carries several interviews of potential interest:  Eric Schickler is interviewed about his Racial Realignment: The Transformation of American Liberalism, 1932-1965.  Jon Hale is interviewed about his The Freedom Schools: Student Activists in the Mississippi Civil Rights Movement.  Finally, there is an interview with Russell Rickford about his We Are An African People: Independent Education, Black Power and the Radical Imagination.

The Times Literary Supplement has published a review essay on Thomas Laqueur's The Work of the Dead: A Cultural History of Mortal Remains.

The Atlantic has as extended essay reflecting upon Nancy Isenberg's White Trash: The 400-Year Untold History of Class in America.

In the New York Review of Books is a review of Robert J. Gordon's economic history of productivity in the United States, The Rise and Fall of American Growth: The US Standard of Living Since the Civil War. 

History Today carries a review of Heyday: Britain and the Birth of the Modern World by Ben Wilson.

N+1 has a review of Andrew J. Bacevich's America’s War for the Greater Middle East: A Military History.

For the tired academic (or person), the New Republic's review of Anna Schaffner's Exhaustion: A History may prove enlightening (and perhaps enlivening) Sunday reading.

For thoughtful and timely commentary on the history of Rio and the IOC, Public Books has a joint review of Dancing with the Devil in the City of God: Rio de Janeiro on the Brink and Power Games: A Political History of the Olympics by Jules Boykoff.

Weekend Roundup

• John Q. Barrett on the Jackson List on New Month, Quiet; Full Court, Ready (August 1941): (the USSC seventy-five years ago this month). 

• Via H-Law, we learn that the second installment of H-Law Podcasts, conducted by Siobhan Barco, is with former LHB Guest Blogger Samantha Barbas, SUNY Buffalo Law School, on her book Laws of Image: Privacy and Publicity in America.

•  The Peter A. Allard School of Law of the University of British Columbia has posted a notice of W. Wesley Pue’s Lawyers’ Empire: Legal Professions and Cultural Authority (2016).

• The National Constitution Center has posted a three-part podcast with Sidney Blumenthal, William Forbath, and Sean Wilentz on political parties and the Constitution: an introduction plus constitutional histories of the Republican and Democratic Parties.

• Yesterday, Dylan Penningroth and associates and fellows of the American Bar Foundation presented Civil Rights Advocacy: Past, Present and Future as one of several ABF events during the American Bar Association’s annual meeting in San Francisco.

• The Call for Panels is now out for the Commission on Legal Pluralism's conference, "Citizenship, Legal Pluralism and Governance in the Age of Globalization" in a year's time (Aug.9-11, 2017) in Syracuse, NY. The deadline is Sept. 30, 2016. 

• Proclaiming Emancipation, an exhibit drawn from the William L. Clements Library, “with select items from collaborating institutions,” is now open at the University of Michigan’s Detroit Center.

• The 8th Conference of the European network on Gender Differences in the History of European Legal Cultures will meet at the University of Rouen Normandie, Nov.17-18, 2016. Submit your abstract for "North vs. South? Gender, law and economy in Early Modern and Modern Europe (15th -19th centuries)" in English or French (max. 3000 characters) by Sept.1, 2016 to anna.bellavitis@univ-rouen.fr and beatrice.zucca@gmail.com

• Via Environment, Law, and History: word that the Land Use Prof Blog is running a multi-part series on the history of zoning, to commemorate the practice's 100th anniversary.

•  ICYMI: Sarah Vowell shows yet again why she is the favorite of connoisseurs of deadpan humor everywhere.  Also, James E. Goodman, author of Stories of Scottsboro, Blackout, and But Where Is the Lamb? on sacrifices biblical and political.

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

CFP: Workshop on "Legal Migrations, Vulnerability, and Resilience" at Emory

Via the Legal Scholarship Blog, we have word of a Call for Papers that may interest readers. Emory University's Interdisciplinary Initiative on "Vulnerability and the Human Condition" is hosting a workshop on "Legal Migrations, Vulnerability, and Resilience." Workshop conveners Deborah Dinner (Emory), Suzanne Kim (Rutgers-Newark), and Martha Albertson Fineman (Emory) specifically invite contributions from the humanities. Proposals are due by September 16. Read on here.

The Poverty Law Canon: Exploring the Major Cases

We have word of the publication of The Poverty Law Canon: Exploring the Major Cases (University of Michigan Press), edited by Marie A. Failinger, Mitchell Hamline School of Law, and Ezra Rosser, American University, Washington College of Law:

The Poverty Law Canon takes readers into the lives of the clients and lawyers who brought critical poverty law cases in the United States. These cases involved attempts to establish the right to basic necessities, as well as efforts to ensure dignified treatment of welfare recipients and to halt administrative attacks on federal program benefit levels. They also confronted government efforts to constrict access to justice, due process, and rights to counsel in child support and consumer cases, social welfare programs, and public housing. By exploring the personal narratives that gave rise to these lawsuits as well as the behind-the-scenes dynamics of the Supreme Court, the text locates these cases within the social dynamics that shaped the course of litigation.

Noted legal scholars explain the legal precedent created by each case and set the case within its historical and political context in a way that will assist students and advocates in poverty-related disciplines in their understanding of the implications of these cases for contemporary public policy decisions in poverty programs. Whether the focus is on the clients, on the lawyers, or on the justices, the stories in The Poverty Law Canon illuminate the central legal themes in federal poverty law of the late 20th century and the role that racial and economic stereotyping plays in shaping American law.

TOC after the jump.

Graber on State Constitutions as National Constitutions

Mark Graber, University of Maryland  Francis King Carey School of Law, has posted State Constitutions as National Constitutions, which is forthcoming in the Arkansas Law Review:

Practice trumped theory on the precise status of newly independent states when Americans drafted and ratified early state constitutional documents. General agreement appears to exist that the Continental Congress was empowered to conduct the Revolution and make foreign alliances, while the states were empowered to regulate internal police matters. State politicians during the time between the drafting of the Declaration of Independence and the ratification of the federal Constitution, however, consistently undertheorized the basis of the distinction between internal and external affairs, at least when framing official state constitutional documents. 1770s and 1780s pamphleteers and essayists frequently expounded on the proper relationships between the periphery and core, but those responsible for early state constitutions did not adopt any available understanding of federalism in a uniform or clear matter. Broad statements on theory were either ambiguous or conflicting. Some provisions in early state constitutions indicated that the United States was becoming, or was, a confederated union composed of independent, sovereign states. Others evince a more consolidated regime.

The best evidence suggests that under the pressure of time and circumstances, those responsible for state constitutions felt little need to reach agreement or even think deeply about the theoretical foundations of the federal-state relationship when they agreed on the immediate practical division of labor before them. The state constitutional response, or lack thereof, to the ratification of the federal Constitution suggests that Americans reached no greater consensus on the location of ultimate sovereignty in 1788, when the Constitution was ratified, or in 1791, when all states ratified the Constitution.

Wilson's "Destructive Creation"

New from the University of Pennsylvania Press is Destructive Creation: American Business and the Winning of World War II, by Mark R. Wilson,  University of North Carolina at Charlotte.   Legal historians will recognize Professor Wilson from his essay “Law and the American State, From the Revolution to the Civil War: Institutional Growth and Structural Change,” in the Cambridge History of Law in America (2008); and his article “Taking a Nickel Out of the Cash Register": Statutory Renegotiation of Military Contracts and the Politics of Profit Control in the United States during World War II, Law and History Review 28 (2010).

During World War II, the United States helped vanquish the Axis powers by converting its enormous economic capacities into military might. Producing nearly two-thirds of all the munitions used by Allied forces, American industry became what President Franklin D. Roosevelt called "the arsenal of democracy." Crucial in this effort were business leaders. Some of these captains of industry went to Washington to coordinate the mobilization, while others led their companies to churn out weapons. In this way, the private sector won the war—or so the story goes.

Based on new research in business and military archives, Destructive Creation shows that the enormous mobilization effort relied not only on the capacities of private companies but also on massive public investment and robust government regulation. This public-private partnership involved plenty of government-business cooperation, but it also generated antagonism in the American business community that had lasting repercussions for American politics. Many business leaders, still engaged in political battles against the New Deal, regarded the wartime government as an overreaching regulator and a threatening rival. In response, they mounted an aggressive campaign that touted the achievements of for-profit firms while dismissing the value of public-sector contributions. This probusiness story about mobilization was a political success, not just during the war, but afterward, as it shaped reconversion policy and the transformation of the American military-industrial complex.

Offering a groundbreaking account of the inner workings of the "arsenal of democracy," Destructive Creation also suggests how the struggle to define its heroes and villains has continued to shape economic and political development to the present day.

Some endorsements:

"Destructive Creation is a probing account of the World War II mobilization effort that sheds new light on the sources of big business hostility to government regulation. As Mark Wilson demonstrates in absorbing detail, it was the very success of the wartime state that generated such a furious business backlash. This is revisionist history in the most provocative and illuminating sense.—Nelson Lichtenstein, University of California, Santa Barbara

"Mark Wilson offers the decisive account of how the United States became, in the words of Franklin Roosevelt, the greatest 'arsenal of democracy,' allowing for the Allied victory in World War II. Analytically rich and narratively compelling, Destructive Creation tells the story of how American businessmen fought highly contested political battles on the homefront to privatize production, or at least sell the virtue of private enterprise, even as they mobilized for a war paid with public funds. An outstanding reinterpretation of the role of business in the war effort, this volume is a must read for anyone who wants to understand World War II and the world of private contractors that has come to define our modern military."—Meg Jacobs, author of Pocketbook Politics: Economic Citizenship in Twentieth-Century America

"Destructive Creation is a truly important, impressive, and extraordinary history of the mobilization of the United States' economy during the Second World War, with a number of fascinating implications for our understanding of the interactions between business, politics, and American society. Mark R. Wilson makes a compelling case for placing the relationship between the military and business at the center of how we think about modern American history."—Jason Scott Smith, University of New Mexico

TOC and an excerpt here.

Green on the 13th Amendment's Crime Exception

Christopher R. Green, University of Mississippi School of Law, has posted Duly Convicted: The Thirteenth Amendment as Procedural Due Process, which is forthcoming in Georgetown Journal of Law & Public Policy:

Charles Sumner (LC)

This paper argues for four implications of the Thirteenth Amendment’s crime exception — “except as a punishment for crime, whereof the party shall have been duly convicted” — for assessing the influence of abolitionists’ radical understandings of the Fifth Amendment on the meaning originally expressed by the text of the Fourteenth Amendment’s Due Process Clause.

First, Charles Sumner presented radical-abolitionist substantive due process to the Senate in his condemnation of the crime exception in 1864, but his views were quite clearly rejected in favor of a Northwest-Ordinance-style prohibition. Second, “duly convicted” was seen as equivalent to “by due process of law,” but was taken not to require even that sentences be proportional. Third, mainstream-Republican fans of the Northwest Ordinance held that both slavery and fugitive re-enslavement could be simultaneously wrongful but “lawful.” Fourth, because “duly convicted” banned retroactive impositions of slavery, “due process of law” likewise requires prospectivity more generally in deprivations of life, liberty, or property. A procedurally- and rule-of-law-focused reading of the Due Process Clause thus receives support not just from the meaning of “process,” but from forms of “due” and “law” as well.

Law in the History of Capitalism: A Conference Report

[We grateful to Victoria Saker Woeste of the American Bar Foundation (vswoeste@abfn.org) for this full report of an excellent conference.  Note especially the summary of the discussion prompted by the final panel.]

Law in the History of Capitalism:  A Conference for Ph.D. Candidates, July 27-28, 2016

The Legal History Consortium held its annual conference for advanced graduate students on July 27-28, 2016, sponsored by the American Bar Foundation and the University of Chicago Law School.  The consortium consists of members of the law school and/or history faculties at the University of Minnesota, Indiana University, University of Illinois, University of Michigan, and the University of Pennsylvania in addition to the U of C and the ABF.  Together with the American Society for Legal History, which has generously contributed annual grants, these institutions sponsor, organize, and take turns hosting the conference, whose purpose is to bring budding legal historians into conversation with senior scholars in the field and help them conceive broadly the relationships between their dissertation projects and emerging directions in the legal history literature.

This year’s theme, “Law in the History of Capitalism,” attracted a pool of 58 applicants.  Fifteen were selected to attend and present their work, with their travel costs and meals covered by the consortium.  They were joined by two students who came at their own expense, the ABF doctoral fellows and summer diversity research interns, and several area legal historians.  The intellectual lynch pin of the conference was the plenary speaker, Prof. Christine Desan of Harvard Law School.

Here is the list of presenters and discussants, with paper titles and email contacts for all the panelists, with brief descriptions of each paper:

Session I.  Corporations, Personhood, and Privacy
1.  Evelyn Atkinson, University of Chicago, “‘When Will the Mischief End?’  Corporation as Person and Citizen in 19th Century American Law.” 
Evelyn is working on a new history of corporate personhood.  Her main question is not why personhood was granted to corporations, but why the courts gave corporations substantive constitutional rights.  In her analysis of post-Civil War jurisprudence, Atkinson distinguishes between procedural and substantive due process, because the privileges and immunities clause of the 14th Amendment opened the door for corporations to assert substantive constitutional rights.

2.  Judge Glock, Rutgers University, “Private Business Records and the Origins of the Administrative Subpoena.” 
Judge argues that administrative subpoenas supply the legal and common law roots of today’s unwarranted government surveillance.  He traces the emergence of inspection powers and “visitorial powers” to English law, and identifies a change in the old common law notion of civil corporations that began with Blackstone.  He then argues that American law took the visitor concept (or a bastardized version of it) and vested it in courts and legislatures which could then investigate and regulate in the same ways as visitors did; from there, it was a short logical leap to the modern regulatory agency.

3.  Elizabeth Harmon, University of Michigan, “‘A New Species of Corporation’:  What the Legal Creation of Philanthropic Foundations can tell us about the Development of American Capitalism.”
Liz’s subject is the non-profit philanthropic foundation, which in the early 20th century was rendered a “new species” of corporation by Russell Sage and Carnegie, among others.  She interrogates how new these foundations were as legal creatures, how they related to charitable entities that came before, why they made this move when they did, and why did the federal government and states permit this to happen.  She believes that wealthy Americans purposefully shaped American political economy through the redistribution of their wealth.

Commentator:  Sarah Barringer Gordon, University of Pennsylvania
Sally Gordon began her comments by observing that the Legal History Consortium now includes a charitable foundation (which, sadly, does not boast the wealth of either Russell Sage or Carnegie).  She then noted the ways in which the three papers are in conversation with each other and supplied suggestions for amplifying the way in which they define and analyze corporations in each of their settings.  Sally advised Evelyn not to take the concept of citizenship for granted and to look at the scholarship on the erosion of the concept of national citizenship after the enactment of the 14th Amendment.  She asked Judge to explain more about the enforcement powers of agencies and how they evolved from the concept of the visitor.  For Liz, whose paper was grounded in deep archival research, Sally suggested a bit more integration of doctrine and statutory development into the story of the nonprofit foundation.
 
In conclusion, Sally observed that monopoly plays a prominent role in all three papers. Monopoly created value for government, which then subjected owners to scrutiny for all kinds of malfeasance, as seen in the case of the railroads, treated in all the papers.  She left us with two provocative questions and a suggestion:  how did governments regard these legal entities and how did the awarding of citizenship allow the national government to regulate corporations that, like the railroads, had already subdued the states?  The book recommendation was James Scott’s Seeing Like a State.

Session II.  Plenary Speaker
Prof. Christine Desan, Harvard University, “Making the Modern Market: Capitalism and Legal Design.”  desan@law.harvard.edu
Chris gave us a deeply theorized account of the rise of currency that began with the identification of a binary that separates the Market (marked by transactions, money, profit) from the State (politics, law, and judgment).  She described the conventional definition of capitalism as a political economy in which the market dominates the state and the commercial treatment of things prevails.  According to this approach, capitalism became a system in which people are defined by the need to make money to survive.  Her aim is to recast this story to measure not the extent of the market or critique it but to de-reify it, uncover the rise of the binary between the market and the state, and get to a new definition of capitalism.  When institutional authorities institutionalize profit, redesign the medium of exchange (money), then capitalism has arrived.  The story begins with money and ends with corporations, which interest her greatly, but she thinks it’s money that takes us to corporations, and law is at the center of this process.  Law creates idea that the market is separate from the state.  This is not a court-centered story; law as governance and the evolution of currency in all forms are her focus.  This wide-ranging, expansive lecture drew on Chris’s recent, widely praised book, Making Money: Coin, Currency, and the Coming of Capitalism (Oxford, 2015).  The ensuing discussion was spirited and engaged.

Session III.  Currency and National Debt in Comparative Perspective
1.  Mandy Cooper, Duke University, “A House of Cards: Familial Economic Networks and the State in Antebellum North Carolina.”   
Mandy told a fascinating story about familial economic networks and the state in antebellum North Carolina between 1800 and 1860.  These networks were built on the kinds of social hierarchies that structured the families themselves, yet women were central to the process of extending these networks through emotion and affective labor.  She wants to challenge the views of gender historians by bringing in politics, legal history, and bringing the history of family into the history of the state.  Men built these networks by harnessing the power of the state, and she uses the Cameron and Ruffin families as examples of clans that parlayed their access to state into agreements that shored up their own interests and built their businesses.

2.  Michael Caires, University of Virginia, “What We Owe:  Negotiating the Law of American Money in the Civil War and Reconstruction.” 
Mike is doing a revisionist history of currency regulation during the Civil War and reconstruction.  Tying to Chris’s talk from yesterday, he noted that the state, society, and market were all transformed by changes in money policy during the war.  The Legal Tender Act of 1862 had the unanticipated consequence of transforming money policy permanently.  There were two moments after Appomattox when the country had to make formative decisions; his paper gave us the second, the resorts to courts to stop greenbacks.  Supreme Court Chief Justice Chase embodied the complexity of the politics and law involved in a series of familiar cases.  Mike reads these cases to focus on such questions as how the value of money gets created?  What embodies that value:  the inherent value of gold or the face value of paper money?

3.  Felipe Cole, Northwestern University, “Latin American Debt and the Rise of Sovereign Receivership.”
Felipe compared Latin American sovereign debt to US sovereign debt, tracing how sovereign immunity was invoked in suits on these debts.  Latin American nations were the first republics to undertake public debts, early in the 19th century.  The Grand Columbian loan in 1822 for 2 million pounds was written in a swirl of confusion over whether the Columbian government’s agent had authority to make the loan in the first place. The first defaults in Latin America happened only about 10 years ahead of first U.S. defaults, so American national indebtedness was part of a global trend.  The major problem Felipe is trying to understand is that no specific body of law governed this debt at the national level and absolutely no international law existed whatsoever.  It was therefore essential for nations to figure out remedies for bondholders, and this process took until the 1870s.

Commentator:  Ajay Mehrotra, American Bar Foundation
Ajay said that all three papers are great examples of the new history of capitalism and urged all three authors to explain what is the conventional narrative and how they are challenging it.  As in the first panel, these three papers are in conversation with each other.  Mandy should focus on telling her audience more about what her contribution is, make it more explicit, explain what’s new here, what’s her innovation.  This is the “most tranquil family business I’ve ever heard of.” Where’s the family conflict?  And gender drops out of the story just when it is most relevant.  Ajay urged Mike not to place too much faith in doctrine; Chase’s mental gyrations undermine his reliance on rules per se; also, markets didn’t really care about the rules, they cared about the relationships (see, e.g., Stewart MacCauley).  And he urged Mike to look at how contemporary economists reacted to these cases and how judges read political economists at the time.  Felipe’s project is much earlier in the process than the other two, and Ajay urged him not to bury the lede (which comes on p. 13 of the paper) on the contrast between Latin America and the U.S.  Why do creditors even make these loans?  This issue gets buried but needs to be brought out (see Phillip Hoffman’s recent presidential address in the Journal of Economic History).

Session IV.  The Capitalist Transition: Trade, Technology, and Slavery
1.  Elbra David, University of California, Irvine, “Atlantic Cotton Merchants, Legal-Pluralism, and the Creation of the Lower Mississippi Valley, 1790-1820.”   
Elbra’s study focuses on the Gulf Coast immediately after the adoption of the constitution.  She notes that continued territorial acquisition meant that localities were switching sovereignties almost constantly.  By the 1790s a “strong capitalist vanguard” was in place.  Commercial trade had been practiced since earlier in the 18th century; the first slaves came around 1720.  Elbra noted that she had in fact sought to get away from slavery but found that she could not.  Slavery played a key part in the capitalist transformation of the region, and the influx of British capital at the time raised the stakes of many commercial disputes.

2.  Alicia Maggard, Brown University, “Law, Technology, and the Specter of Steam.” 
Alicia found herself captivated by a “novel form of technological death,” as she described the mayhem of steamboats, and she formed the question of how the state exerted power through the regulation of technology.  As in other industries, a sophisticated state aimed to modernize services and encourage the development of new technologies by diverting private resources for public ends.  The paper described the domestic costs of accidents, which spread with admission of new states and the expansion of government into new territories.  Alicia noted that she prefers to think of technology in traditional terms, as a machine rather than a description of the state or systems of governance, in order to keep focused on material systems.  To carry out this argument, she needs to explore more and varied sources and identify winners and losers more clearly, and she asks for help in figuring out the stakes.

3.  Aaron Hall, University of California, Berkeley, “Seeing the State’s Slaves:  ‘Public Hands,’ Internal Improvements, and the Developmental Practices of State Slavery.”   
Aaron examines the state as slaveowner and its use of slave labor for internal improvements. This practice was not unheard of; Latin American countries owned slaves too.  Georgia began buying slaves for this purpose as early as 1818, and Aaron uses this practice to show the “unseen face” of slavery and antebellum southern governance.  He argues that in aligning itself with plantation slavery, southern states embraced an extension of public power whose significance has not been recognized.  Public governance thus depended materially on slaves for achieving policy ends state legislatures defined as in the public interest.  Aaron noted that digital sources made this practice so much easier to document.

Commentator:  Barbara Welke, University of Minnesota
Barbara pointed out that all three presenters admitted, somewhat sheepishly, that their projects originated in non-scholarly discoveries, and she not only praised them for their candor but told them to embrace however they came to ask their question and find their sources.  Coming across stories, graphic illustrations, and the like is what grabs us.

The collision of the historic and the curious is embedded in a much larger set of relationships and is shaped by it; so are the states, in the style of Russian dolls that nest inside progressively larger dolls.  Barbara asked Elbra to consider how does law matter;   what role does law play in the creation of the region?  Barbara loved Alicia’s formulation of technology as a “problem and possibility for government” and urged her to connect with Matthew Axtell at Princeton, who is also working on steamboats.  Finally, Barbara urged Aaron to consider the worlds where the parties come from, in order to understand how courts make decisions in cases.

V.  Workers’ compensation and the historicization of labor
1.  Scott McDowell, University of Minnesota, “The Arithmetic of Sovereignty:  Law, Ambiguous Citizenship, and Policing for Capitalism in the Lattimer Massacre of 1897.” 
 Scott, who is just beginning his dissertation, is using the Lattimer Massacre, which he says is very deeply rooted in the historiography of capitalism, to study nineteenth-century labor protests.  He’s interested in asking what law’s relationship to violence is, particularly the kinds of violence that were important for the development of capitalism.  These relationships need to be problematized.  What does corporate indemnity for striking workers’ deaths mean in the context of immigrants?  By not paying indemnities, the federal government kept workers vulnerable, caught in an ambiguous legal situation.  And that’s what interests Scott most:  how federal concerns about sovereignty shaped these outcomes and contributed to the creation of indemnity as a capitalized asset.  “Law is an adept magician, but the magic is an illusion.”  If we start with law and pay full attention to it, then we can get below the niceties, to the muddiness at the edges, where law, capitalism and violence meet.

2.  Nate Holdren, Drake University, “Economizing Workers: Employee Injury Law and the Rhetorical Construction of Commodification in the Early 20th Century United States.”  
Nate shares Scott’s interest in workers, but takes a more literal perspective: his question is how the commodification of the body became legally incorporated into modern capitalism.  He situates this inquiry in cases that attempt to place monetary value on body parts that were lost due to on-the-job injuries.  By looking at cases involving women workers, he brings gender into the story in multiple dimensions, including women’s diminished attractiveness as potential wives in the calculus surrounding the cost of injury.

3.  Gabrielle Clark, Harvard University, “Coercion and Contract at the Margins: Deportable Labor and the Laws of Employment Termination under American Capitalism, 1917-2015.”   
Gabrielle is looking at the history of the state-backed migrant labor contract as an example of the intersection of race, regulation, ethnicity, and law.  Her paper focused on the wartime period when employers did not have the right to dismiss employees under regulations promulgated by the U.S. Employment Services.  The agency, not the employer, had the power to determine if workers would be reassigned, given a new job, or (in the case of non-citizens) repatriated to their own countries.  Because of the wartime economic demand and state-backed labor contracts, the state was liable to workers for three-fourths of their labor contract, unless the workers violated some provision of that contract.  Since then, however, these kinds of rights have steadily eroded.  The federal program regulating labor markets ended in 1947, and after the termination of the bracero program in 1964, migrants lost all of their wartime-era gains.  Laws passed since then to protect migrant workers have been all but ignored.  Her ultimate intellectual goal is to recover the past to serve the present, to inform policy debates that resist resolution.
   
Commentator:  Laura Edwards, Duke University 
In some ways, Laura said, these presentations are hard to compare; one is a book chapter, one an article, the third a dissertation prospectus, but they come together in their critique of the new history of capitalism.  Scott’s critique is the most explicit, but Gabrielle recognizes that she needs to connect her project more fully to the legal history literature. In all papers, law and legal history are crucial to economic history; this is interesting to Laura because in the history of capitalism, the history of economic power is the history of power.  She praises the panelists for charting out a new approach, one that sees law as constitutive of capitalism, not just an instrument of it.  Law is not always a clear, identifiable thing that people use to get what they want; likewise, legal history suggests a complicated relation between power and wealth.  She urged everyone to see law as governance, to take the long view, rather than the instrumental approach.

VI.  Credit, Markets, and Regulation in the Postwar Era
1.  Daniel Platt, Brown University, “Borrowers’ Rights in the Age of Jim Crow.” 
Daniel investigates the development of debt peonage in Progressive Era legal discourse.  Although many saw the system as reproducing slavery in the south, others understood debt peonage “as the end that all market systems approached in their search for predictability and profit.”  Daniel argues that widespread debt peonage contributed to the growth of the myth of the free market.  To frame the topic, he draws on Justice Holmes’s dissent in Bailey v. Alabama, in which he sought to resist the spread of the practice, but did so in a way perceived as excessively legalistic and divorced from what the market was actually doing. If the early twentieth century was the turning point in debt finance, how was it represented in law or popular discourse?  Race and finance cannot be separated from risk, but  He didn’t find what he hoped to.  Daniel asked for feedback on how he could fit Holmes’ personal intellectual struggles into the larger legal story.

2.  Sean Vanatta, Princeton University, “Prices Are Political:  Credit Card Interest in the Age of Inflation, 1968-1980.” 
Sean began by defining three features of the political economy of finance:  state-based regulatory systems, financial institutions with limited, specialized functions, and a state-imposed regime of price controls.  In the early days of credit cards, government did not regulate banks when they published interest rates or set credit card ceilings.  Consumer and labor groups, especially the AFL-CIO and the National Consumers League, decided to lobby state and federal governments to pass legislation combating the reckless expansion of credit card lending.  These groups pushed for government to create a political economy in which safe, inexpensive credit was widely available.  Congress then passed the Truth in Lending Act to provide uniform disclosure rules that would enable consumers to make informed decisions when shopping for credit.  This paper describes the law’s implementation and the amendments added to it in response to pressure from Wisconsin and Minnesota.

3.  Erik Erlandson, University of Virginia, “Redesigning the American State: The Struggle to Manage ‘Big Government’ and the Legacy of the 1970s.” 
Erik describes his paper as a “slog through administrative procedure,” but his subject is captivating.  During the deregulation era of the 1970s and 1980s, the federal government sought to limit the reach of its own authority.  The investigative powers of such agencies as the Food and Drug Administration, the Federal Trade Commission, and the Federal Power Commission, were turned from business in general to the effects of regulation on the economy.  The 1970s brought an intensified judicial focus on procedural safeguards to protect private business from overintrusive public action.  Federal agencies began to review regulations to determine how faithfully they followed statutory provisions.  Erik then described the rise of a regulatory reform as a new political movement, which was guided ideals of efficient government and restricted agency discretion.  Ironically, the “small government” movement led to the creation of more regulatory bodies at the federal level.

Commentator:   Jane Dailey, University of Chicago  dailey@uchicago.edu
Jane began her comments with some observations on narrative technique.  The aim, she said, is to get readers to turn the page, to keep going.  First, she urged the panel—and all the participants—to reorient their thinking as they begin to write.  Instead of marking off the presentation as a detached piece of a bigger story being told somewhere else, identify the question that you’re trying to answer and make clear its larger relevance.  Second, she said she was struck by how the storylines in each of the three papers were driven by chronology, but the authors hadn’t used chronology as a framing device.  Chronology, she observed, helps emphasize progression—that is, progression as historical process—and she suggested that everyone seek to make intellectual arguments that hinge on chronology.
 
The spirited question and answer session that followed this session was punctuated by Chris Tomlins’s observation that none of the presenters was asking grand questions about history, capitalism, or law; he also noted that some papers fit better with the theme than others.  He suggested that everyone look at the “vast theoretical literature” (Picketty, Bordieu, etc.) that he believes historians in this field have neglected.  We tell stories about chronology and people, but Chris notes that these stories will not succeed unless we address the work that brings law and capitalism together.  He was careful to say that his observation was not aimed at this panel in particular but was meant to entreat everyone as historians to interrogate the intersection of law and capitalism critically.  You can do this in whatever way you want, he said, but you must pick one of the theoretical hooks.
 
The group responded animatedly.  Bill Novak agreed with Chris’s critique, but said he also heard in the papers the beginnings of a project that can reanimate the field of legal history.  This project can be done pluralistically or individually but he agreed it should engage the much larger tradition dialectically, even if historians don’t agree with that tradition.  This led to a discussion about how a collective project might be conceived, what questions would animate it, and what form of history we are trying to create.  And several of the students pointed out that the risks of going outside conventional forms at the dissertation stage are high:  they have to think about landing jobs, publishing contracts, and tenure.  So the challenge is how to add to the ongoing discourse by asking new questions without appearing to reject or repudiate the categories of historical thinking that shape such things as hiring decisions.
 
Chris Tomlins persisted, asking everyone to think about how to conceive the relationship between law and capitalism as something other than as story, chronology, and people?  How does scholarship inform our understanding of the history of economy, the history of world capitalism?  Jane replied that the question of “is there a field” does not imply some general notion of conformity, but there is now a field of “capitalism studies” (economic history having died a slow and painful death), and we can all look to theory to ask larger questions; some of the papers don’t ask a central question yet, but that is where to begin with revisions. 
 
Barbara Welke and Sally Gordon pushed the conversation further in the direction of what the intended purpose of the conference was for early career scholars.  Our aim is to bring early career scholars into the field of history, Barbara pointed out, to think about the stakes of what we’re all doing, to identify the limits of history in its traditional frame, its traditional boundaries; what can history do for larger political projects, for the politically engaged scholar?  Sally asked a pointed question:  Who has figured out what capitalism is, or what law is?  This is the stuff of a career.  This is why we asked you here.  The craft is decades long.  “Thirty years in,” she observed, “my first drafts still suck.”  

Bill Novak thought the dissertations previewed at the conference will change the field of legal history, get people jobs, and earn them tenure, and this is all to the good.  But suggesting that every paper change the world is a big thing to expect.  The relationship between law and capitalism is the question of our time, from the Progessive movement through the regulatory state, the Law and Society movement, J. Willard Hurst, to critical legal studies.  This conference will reorient the field, he declared, but he thinks we can all go further, push Picketty further.  Can we be not just historians?  The form that history takes often doesn’t speak to other disciplines, but the energy in this room can help us begin to do this.

Exploring the Progressive Legacy on Racial Justice

[We have the following announcement of a free public event.]

"From Anti-Lynching to Social Security to Civil Rights and Black Lives Matter: Exploring the Progressive Legacy on Racial Justice,” A panel discussion at the Henry A. Wallace Center of the FDR Presidential Library at 7:00 p.m. on August 5, 2016.

The FDR Presidential Library and the Roosevelt Network will host a panel discussion on Friday, August 5, 2016 at 7:00 p.m. focusing on race and the Roosevelt legacy, as well as how Americans can address the racial rules in our society through policy work today.

The panel will be moderated by Jonathan Jayes-Green, co-founder of UndocuBlack, and panelists will include: Andrea Flynn, Roosevelt Institute Fellow and co-author of Rewrite the Racial Rules: Building an Inclusive American Economy; Carl Amritt, Roosevelt Network member and a student at Bard College; and Paul Sparrow, Director of the FDR Presidential Library & Museum.