Milton Katz Writes His Mother

[An earlier post considered some of the circumstances that made the early years of the New Deal appealing to highly credentialed recent law graduates. Here is how one of them sized up the situation in a letter to his mother. Milton Katz (1907-1995) received his A.B. (1927) and LL.B. (1931) from Harvard. He clerked for the great federal judge Julian Mack then went to the Reconstruction Finance Corporation in the last year of the Hoover administration. From there he went to the National Recovery Administration and (in 1935) the Securities and Exchange Commission. After considering joining Carter, Ledyard & Milburn, he opted for the Harvard Law School, first as a lecturer in 1939 and then as a permanent member of the faculty in 1940. Soon he was back in Washington at the War Production Board; after the war he would serve as general counsel of the Marshall Plan. His Cases and Materials on Administrative Law (1947) focused on the development of the Interstate Commerce Commission, the Securities and Exchange Commission, the Federal Trade Commission and the National Labor Relations Board; today it serves as something of a historical sourcebook for those agencies.]

June 9, 1933

Dear Mum:

Your letter raised a very serious question, to which I have given weeks of thought. I believe the course I am pursuing is a wise one, for a number of reasons.

1. Professional success depends in part on specifically technical equipment--”knowledge of the law” and familiarity with court procedure. In at least as large a measure, it depends upon the capacity to cope with situations and deal with people, and upon connections. Up to the beginning of this year, my training had related almost exclusively to the first aspect of professional competence. I think that I may therefore profitably devote myself for a while to developing the second, and in my judgment, more important aspect. Of course, the shift is merely one of emphasis, and I shall continue to maintain contact with the more technical phase of the profession, as I have in the course of the past year.

2. I feel that we are in a rapidly changing world, and that a young man who plans his life with reference to certainty and security runs a risk of falling far behind the times. I think that it is difficult to avoid thinking in terms of 1900 or 1910 when a young man who entered the profession addressed himself to the task of filling a niche in a good office and developing routine competence, with a view to stepping into broader fields of activity in middle age after he had established himself. I feel that the only way to plan in our fluid contemporary world is to immerse yourself in it, to lend yourself to its impulsion, to move as close to the center of activity as you possible can, and so to grow and change with the times.

3. This opinion is confirmed by the advice of older men of reliable judgment, and by the experience of people who are roughly my contemporaries. Mr. Justice Brandeis, for example, has expressed himself to the effect that although in ordinary times almost the best thing that a lawyer could do would be to procure a position in the office of the United States Attorney, in times like these it is wiser to participate in the activity in Washington. Moreover, consider the cases of certain of my friends. There’s Tom Corcoran, for example, who at thirty-two had as good a place in as good an office in New York as one could expect, drawing a good salary, well-known, and apparently well on the way to high professional advancement. Nevertheless, he felt that it simply wouldn’t do to continue in the same groove, and so he threw it up and came to Washington. He brought with him four younger men from his office, who had been out of school for only a year or two. He too feels strongly that it is the part of wisdom to remain in Washington during the present period of activity. There is Tommy Austern, with a fine place in an excellent law office in Washington, who feels that he is at a dead end and expressed himself as candidly envious of my position. And there are many others whose situations bear the same significance.

4. The course I have chosen has a much deeper emotional significance for me than the mere matter of attaining an established financial and social position. As you know, the legal profession as such has never meant very much to me. I’ve always thought of it merely as a stepping stone to something else. I have felt and still feel that the only work in which I’ll find genuine satisfaction will be some broad constructive work in the work-a-day world of public affairs. By “public,” of course, I don’t mean necessarily governmental, although I think that there is a distinct possibility that the United States is reaching a stage in its history in which a young man of limited means may quite properly think of government as a possible career. Consider the enormous extension of governmental activity which we are now witnessing; people of trained and flexible intelligence will be needed to run the new machinery. There is a kind of lawyer who differs markedly from the ordinary run. I am referring to lawyers like Brandeis in his day, or Dwight Morrow, or Joseph P. Cotton. They were all of them men whose careers consisted in coping with situations complex, difficult and varied, sometimes specifically legal, sometimes specifically financial, more often more broadly economic or political. There is a faculty for dealing with situations, for devising practical solutions and getting things done, and it was that faculty which they developed, and around which they built their lives. They used the legal profession only as a thread of continuity through their lives, as a line of guidance, as a point of departure. That is the only sort of lawyer that I would care to be. It is difficult, of course, but why not play for high stakes? Each of us in the course of his life has to strike a balance between the need for security and the desire for large achievement. If there is any period in a man’s life in which he may properly honor the claims of adventure rather than certainty, it is when he is young. The risk is real, but I’m going into it with my eyes open. And thus far I have grown considerably during the past year, and that I have made genuine progress toward the condition of a fully developed, powerful personality. If ever I get there, I will be secure, in so far as security is possible to any human being; and I shall be having a hell of a good time in the attempt.

New "New Deal Lawyers"?

Between news reports of a revival of interest in the New Deal spawned by recent economic events and a rereading of Laura Kalman’s Abe Fortas for my seminar, I’ve been wondering what it would take to set off something like the migration of law graduates to Washington that took place during Franklin D. Roosevelt’s first two presidential administrations. The odds against one are substantial:

1. During the New Deal, starting salaries in government jobs were often higher than in corporate law firms. To state the obvious: today entry-level salaries at leading corporate law firms are much higher, and the debt burden of the average law student burden makes the money even harder to pass up. Granted, law firm hiring will be down significantly–I heard a guess of 20 percent, even before the credit crisis became acute–but I still imagine that the best graduates of the best law schools (however measured) will find work.

2. During the New Deal quite a few “Wall-Street-grade” law graduates--law review editors from elite, case-method law schools (especially Harvard Columbia and Yale)--could not find work in corporate law because of anti-Semitism and anti-Catholicism of senior partners in the leading firms. I can’t identify a similar bias against analogous “identities” among today’s elite law graduates at the entry-level. (Partnering is another story.)

3. During the New Deal young lawyers were given enormous responsibility at the outset of their career. They had much easier access to ultimate decisionmakers. (“There was no bureaucracy, none at all,” Gerhard Gesell [pictured at left] explained in an oral history.) Today’s young lawyers find themselves in much more densely populated institutions in the executive branch and presidency.

4. During a New Deal, lawyers who went to an “alphabet agency” got in on the ground floor, before job ladders were even established, much less occupied by lawyers who got their before them. Moreover, if they did see their way blocked in one agency, they could jump to another one: from the Agricultural Adjustment Administration to the Securities and Exchange Commission, or the National Recovery Administration to the National Labor Relations Board. Does anyone think a comparable burst of federal statebuilding is in the offing?

5. The New Deal started with a galvanizing event, the national bank holiday, which came after a long “interregnum of despair,” as banks came crashing down around Herbert Hoover and FDR kept his own counsel. The New Dealer Thomas G. Corcoran (pictured at right) likened the bank holiday's effect on young lawyers to Pearl Harbor: it was "a signal--an objective signal everyone heard.” Granted, things have been very bad lately, but if some comparable signal was sounded, my law students didn’t hear it.

Even after saying all that--and if there’s more to be said, please say it--I still think it might be interesting to look back at one young lawyer’s explanation of the New Deal's appeal. The lawyer was Milton Katz; his letter to his mother, written in the last week of the First Hundred Days, will be my next post.

Update
Perhaps I was unduly pessimistic. A story in today's National Law Journal, "A Grim Verdict Awaits Law Grads," includes the following:

At George Washington University Law School, [Carole Montgomery, the director of career development,] is encouraging students who planned to work at large law firms to instead apply for jobs with government agencies. Not only can graduates gain solid training, but they also can take advantage of loan-forgiveness opportunities, she said.

She is urging students to consider positions beyond those at the more prestigious agencies, including the U.S. Department of Justice or the U.S. Securities and Exchange Commission. Students should open their eyes to possibilities at places such as the U.S. Department of Housing and Urban Development, she said.

Hat tip.

Is British History European?

There is an interesting debate on the question of whether British history should be studied as European history on History Compass Theory and Methods Blog, with posts by Stefan Berger, University of Manchester; Andrew Gow, University of Alberta; Malcolm Smuts, University of Massachusetts Boston; and Laura Smoller, University of Arkansas at Little Rock. Hat tip to AHA Blog. Here's a snippet from Berger's opening post:

The Blackwell History Compass has different editorial sections for Britain and for Europe. Anyone looking for literature on Britain will find next to nothing on Britain in the section on Europe - despite the fact that to all intents and purposes Britain is a European nation state and has been so for many centuries. Not only its geography indicates that it is at the margins of Europe but still it is clearly identifiable as European, and its membership in the European Union, somewhat reluctant at times, also seems to confirm its position as a European nation. Britain was integral to a range of European storylines in the past: the Industrial Revolution, democratisation, colonialism and imperialism, free trade, the world wars of the twentieth century, the Cold War, the development of popular culture and consumption patterns, to mention but the most obvious ones. And yet, British history, at least in the Anglo-Saxon world, has a separate status from European history. People are hired at universities as specialists in either European or British history. Research centres are often designated as either British or European. Editors’ catalogues are subdivided into British (sometimes Irish is added here) and European sections, and, to come back to the beginning, our journal is also subdivided into British and European sections.

If we ask why this is so, the answer lies, of course, in history. I would argue that it has much to do with the prevalence of national history in history writing between (roughly) the 1850s and 1950s....

Berger concludes that

continued exclusion of the British Isles from continental Europe will only prolong the mistaken assumption of an alleged ’splendid isolation’ of Britain within European history. The continued widespread division of university courses in Britain into British and European history is a most unfortunate one and needs to be challenged. The history of the European continent can neither be taught nor written without proper reference to the British Isles. Hence I conclude by calling for the abolition of distinctions between British and European history.

You can follow the debate, and add your two cents, here.

McDonald on The Role of the Media in the Unsolved Civil Rights Era Murder Prosecutions

Heroes & Spoilers: The Role of the Media in Unsolved Civil Rights Era Murder Prosecutions is an article by Janis L. McDonald, Syracuse University College of Law. It will appear in the Ohio Northern University Law Review (2008), and once published can be downloaded here. Here's the abstract:

The author is a co-director of the Syracuse University College of Law Cold Case Justice Initiative consisting of volunteer law students, faculty, investigative reporters and family members dedicated to bringing long delayed justice for individuals murdered by members of the Ku Klux Klan. This article describes the relative roles played by the black press and the mainstream white controlled press in the early days of the civil rights era and in the current efforts to address these unsolved cases. The author discusses the 2007 federal conviction of James Ford Seale, a member of the White Knights of the Ku Klux Klan of Mississippi for the kidnapping leading to the deaths of Henry Hezekiah Dee and Charles Eddie Moore in May, 1964. According to the testimony of a fellow klansman who was given full immunity from prosecution Seale and others kidnapped the two nineteen year old black men, tortured them by whipping them for three hours and then carried them across the Mississippi and drowned them in an old tributory of the river.

The article describes the comparative silence by the media about the disappearance of these two men as opposed to the three Freedom Summer civil rights workers, two white and one black, who were murdered by the Klan later that summer. In fact, when the Navy Seal divers were dredging the river searching for the three civil rights workers they found some of the remains of Mr. Dee and Mr. Moore, however, the attention returned to the other murders and almost no attention was paid to the deaths of these two young men. After forty-three years, as a result of the efforts of Mr. Moore's brother, Charles Moore, and a documentary film maker from the Canadian Broadcasting Corporation, David Ridgen, renewed interest in the case by the media led to the prosecution of Seale.This article identifies some of the powerful ways the media has contributed to reviving unsolved murder investigations and also some of the potential pitfalls of their efforts. Questions of problems leading to a change of venue, the role of "ancient documents", and the use of media exposure as impeachment material are addressed briefly and in the context of the James Ford Seale federal prosecution. As this article goes to press two new events have affected the recent efforts to bring justice to these cold cases. In mid September the United States Court of Appeals for the 5th Circuit reversed the conviction of James Ford Seale based on its retroactive application of a change to the statute of limitations. A decision on a petition for a rehearing en banc is pending. A local prosecution against Seale for murder remains a viable option. Further, the United States Senate, on September 24th, passed the "Emmett Till Unsolved Civil Rights Act" which will allocate ten million dollars a year for the next ten years to the FBI and the Justice Department to focus on investigations and prosecutions of unsolved civil rights era murders that occurred before 1969. In addition two million will be available from the Justice Department to local prosecutors for related murder prosecutions. The Justice Department Civil Rights Service division will receive 1.5 million each year to provide for community outreach in an effort to solve these cases.

Images: Charles Eddie Moore (L) and Henry Hezekiah Dee (R).

Pritchett, Robert Clifton Weaver and the American City

Robert Clifton Weaver and the American City: The Life and Times of an Urban Reformer by Wendell E. Pritchett, University of Pennsylania, has just been published by the University of Chicago Press. Here's the book description:

From his role as FDR’s “negro advisor” to his appointment, under Lyndon Johnson, as the first secretary of Housing and Urban Development, Robert Clifton Weaver was one of the most influential domestic policy makers and civil rights advocates of the twentieth century. This volume, the first biography of the first African American to hold a cabinet position in the federal government, rescues from obscurity the story of a man whose legacy continues to impact American race relations and the cities in which they largely play out.

Tracing Weaver’s career through the creation, expansion, and contraction of New Deal liberalism, Wendell Pritchett illuminates his instrumental role in the birth of almost every urban initiative of the period, from public housing and urban renewal to affirmative action and rent control. Beyond these policy achievements, Weaver also founded racial liberalism, a new approach to race relations that propelled him through a series of high-level positions in public and private agencies working to promote racial cooperation in American cities. But Pritchett shows that despite Weaver’s efforts to make race irrelevant, white and black Americans continued to call on him to mediate between the races—a position that grew increasingly untenable as Weaver remained caught between the white power structure to which he pledged his allegiance and the African Americans whose lives he devoted his career to improving.

A crucial and largely unknown chapter in the history of American liberalism, this long-overdue biography adds a new dimension to our understanding of racial and urban struggles, as well as the complex role of the black elite in modern U.S. history.

And the blurbs:

"Wendell E. Pritchett's engaging biography of Robert Clifton Weaver is a tour de force. Appointed by President Johnson as the first secretary of the Department of Housing and Urban Development, Weaver was the first African American to hold a cabinet position. However, few Americans are aware that Weaver was also an important figure in shaping the development of American racial and urban policy, and one of the nation's foremost authorities on urban issues. Pritchett brilliantly captures the life and contributions of this great racial pioneer and in the process reveals how racial tensions profoundly influenced battles over the future of American cities."-William Julius Wilson, author of When Work Disappears (William Julius Wilson, author of When Work Disappears )

"Wendell Pritchett's fascinating book delivers just what any reader wants in a good historical biography. Robert Weaver emerges as a complex, talented man caught in the contradiction between seeking a race-blind world and serving his race. And his personal struggles and achievements bring to light in a compelling way the shifting terrain of federal governmental authority, urban policy, and civil rights over the course of the twentieth century. This is a wonderful portrait of a man and, through that man, of dreams won and lost for a new, more equitable urban America."-Lizabeth Cohen, author of A Consumers' Republic (Lizabeth Cohen, author of A Consumers' Republic )

"We need to know the story of Robert Clifton Weaver, and to know more about the period between the Harlem Renaissance and the 1960s, a period for which African American history has not been explored with quite the same fervor as other periods. This important and accessible biography sheds light on these overlooked subjects and pays a previously unrecognized historical debt."-Arnold R. Hirsch, author of Making the Second Ghetto (Arnold R. Hirsch, author of Making the Second Ghetto )

The table of contents is here, and you can read and excerpt here.

Sarkin compares Reconciliation in East Timor, South Africa, and Rwanda

Jeremy J. Sarkin, Hofstra, traces the late-20th/early 21st century history of conflict resolution in Reconciliation in Divided Societies: Comparing the Approaches in Timor-Leste, South Africa and Rwanda. The paper will appear in the Yale Journal of International Affairs (2008). Here's the abstract:

This article traces the surge in interest regarding reconciliation as a transitional justice mechanism in recent decades, including the policy motivations behind this interest. It then trains a critical eye upon the most popular reconciliation instruments, including truth commissions, in part by examining the efforts of South Africa, Rwanda, and East Timor. This comparative analysis reveals that, while the goals of reconciliation programs are indeed laudable, the specific policies and instrumentalities by which these goals are achieved remains case specific. Post-conflict states should thus refrain from adopting truth commission templates and instead critically examine their own circumstances-such as history and economic outlook-before embarking upon a particular reconciliation scheme.

Hovenkamp on Coase and Pigou

Herbert J. Hovenkamp, University of Iowa College of Law, has posted The Coase Theorem and Arthur Cecil Pigou. [Below: Pigou at left; Coase at right.] Here is the abstract:

In "The Problem of Social Cost" Ronald Coase was highly critical of the work of Cambridge University Economics Professor Arthur Cecil Pigou, presenting him as a radical government interventionist. In later work Coase's critique of Pigou became even more strident. In fact, however, Pigou's Economics of Welfare created the basic model and many of the tools that Coase's later work employed. Much of what we today characterize as the "Coase Theorem" was either stated or anticipated in Pigou's work. Further, Coase's extreme faith in private bargaining led him to fail to see problems that Pigou saw quite clearly and that remain with us to this day.

Gordon-Reed and Faust Finalists for National Book Award

The National Book Award Nonfiction Finalists for 2008 are:

Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War (Alfred A. Knopf)
Annette Gordon-Reed, The Hemingses of Monticello: An American Family (W.W. Norton & Company)
Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday)
Jim Sheeler, Final Salute: A Story of Unfinished Lives (Penguin)
Joan Wickersham, The Suicide Index: Putting My Father’s Death in Order (Harcourt)

Hardy on The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights

The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, edited and annotated by David T. Hardy, have been posted on SSRN. Here's the abstract:

St. George Tucker was a prominent legal figure in the early Republic. He taught law at William and Mary from 1790 to 1804, and in 1803 published the first edition of Blackstone's Commentaries to be annotated with American legal references. This paper is a transcription of his lecture notes dealing with the Bill of Rights, which are archived in the Swem Library of the College of William and Mary. The body of the text appears to date from 1791-92, with some footnotes added at later dates. It is thus significant evidence of original public understanding.

Tucker's view of the Bill of Rights, written within months of its ratification, is modern and robust. Like Justice Black, he is a First Amendment absolutist. He sees the Second Amendment as an individual right. He considers the Fourth Amendment's warrant requirement as a subset of its reasonableness mandate. He sees the Fifth Amendment prohibition on takings as a response to Revolutionary War "impressment" of personal property for military use.

Tucker's edition of Blackstone's Commentaries is available on-line.

Call for Papers: The Cinema of Spike Lee

Since the suggested themes for this conference include "Spike Lee and the politics of culture (class, gender, religion, nation, race)," I bet there's a legal scholar with a paper that will fit what looks to be an incredibly interesting conference. Here's the call for papers:

Spike Frames: The Cinema of Spike Lee

In 1993, the NYU Departments of Cinema Studies, Film and Television, and Africana Studies collaborated in staging a major international conference focused on Pan-African Cinema, which uniquely showcased the contributions of film critics, academics, and industry professionals and explored the achievements of black cinema in a global context. Building on the success of that conference and the insights and debates it inspired, we propose a major international conference to critically survey and celebrate the work of preeminent film-maker Spike Lee. The objective of this conference will be to revisit and discuss anew the remarkable achievements of Lee, as producer, director, film-maker, actor, and teacher in the context of the history of American cinema and, more specifically, within the developmental trajectory of ‘Black American Cinema,’ and its complex, tangled histories and debates. The conference title “Spike Frames” was chosen to suggest the diverse ways in which the outstanding quantity and flow of Lee’s films have ‘framed’ or influenced American film-making from the mid-‘80s into the 21st century. We will also interrogate the ways the ‘Spike Lee phenomenon’ has often directly challenged the expectations and exclusionary practices of the dominant commercial film industry. As well, we will look at the ways Lee’s work has played with the seemingly contradictory ‘double bind,’ of what it means, exactly, to be an ‘independent’ film-maker while being a successful commercial ‘mainstream’ director. Moreover, it is our aim that the conference contribute to the research, debate, and scholarship on black American cinema, while also considering it in the broader context of global filmmaking the 21st century. It is our goal that this conference will create support for the archiving and preservation of African American film through the Tisch School of the Arts Moving Image Archiving and Preservation Program, with every expectation that this will significantly contribute to building strong institutional structures for the study of black film-making, its debates, issues and images.

Spike Frames: The Cinema of Spike Lee is scheduled for November 12-15, 2009. The conference will consist of a series of screenings of key Spike Lee films, plenaries featuring Lee’s collaborators and leading scholars/critics, and panels focusing on various themes. Panels will be comprised of a chair/moderator and three-to-four speakers, presenting papers of 30-minutes each.

The program committee invites proposals for 30-minute papers focusing on one of the following themes:

Spike Lee and American film (industry; aesthetics; politics); Spike Lee and International Cinema (influenced by; influences on); Spike Lee and film aesthetics (cinematography; montage; sound; narration); Spike Lee and genre (revision; hybridity; polyphony); Spike Lee and authorship (as a director; as a producer; as an advertising executive); Spike Lee and marketing (of himself; of others {through bio-pics and public endorsements]; of products {Nike, Pepsi, etc.}); Spike Lee and the city (Brooklyn, New York, Birmingham, New Orleans); Spike Lee and music (as soundtrack; as narrative inspiration; as metatext; music video); Spike Lee and performance (performativity; stardom; ensemble and improvisation); Spike Lee and documentary (documentary use of fiction conventions; fictional use of documentary conventions; performance films); Spike Lee and the politics of culture (class, gender, religion, nation, race); Spike Lee and new technologies (film vs. digital video; webstreaming; social networking); Spike Lee and African American film (legacy of early filmmakers, such as Oscar Micheaux; legacy on contemporary filmmakers, such as John Singleton or Kasi Lemmons).

Send a 500-word proposal and a short curriculum vitae in word format to:

Keith Corson
kmc403@nyu.edu

Photo credit.

Hrezo reviews Burgess, The Founding Fathers, Pop Culture and Constitutional Law

The Founding Fathers, Pop Culture, and Constitutional Law: Who's Your Daddy? by Susan Burgess (Ashgate Publishing Company, 2008) is reviewed in the Law and Politics Book Review by Margaret S. Hrezo, Department of Political Science, Radford University.

In THE FOUNDING FATHERS, POP CULTURE, AND CONSTITUTIONAL LAW: WHO’S YOUR DADDY? (hereafter referred to as WHO’S YOUR DADDY?) Susan Burgess pulls together previously published work and two new pieces to make one overall argument: The golden chord between the legitimacy of judicial review and the intent of the framers must be snapped in order to move beyond the founding period’s brutality, patriarchalism, and lack of concern for the powerless in society. Burgess proposes “narrative analysis, popular culture, parody, and queer theory” as means of (1) democratizing constitutional debate; (2) providing a “more interesting and hip way of understanding and reconstituting politics;” and (3) pointing the way to resolving the generation-long impasse between judicial activism and judicial self-restraint. She pursues her goal by re-casting the constitutional theories of Keith Whittington, Ronald Dworkin, and Derrick Bell as romance, comedy, and tragedy. In the final two chapters on BUSH v. GORE and LAWRENCE v. TEXAS, Burgess relies on queer theory to highlight what she believes to be the instability and constitutional groundlessness of contemporary Supreme Court decision making. In so doing she has produced an immensely interesting and thought-provoking book that should be read by graduate students and scholars of constitutional law as much for its weaknesses as for its strengths.

Burgess analyzes Keith Whittington’s originalism from the perspective of a romance novel. Like a romance novel, she argues that Whittington’s work reads contemporary jurisprudence as engaged in an endless quest to overcome alienation from its “true self” (intent of the framers) and return to a “simpler time characterized by more authenticity and less corruption” (p.13). Activist courts play the role of the villain placing obstacles in the path of return. She provides a close textual reading of Whittington’s work to support her argument and her use of the romantic form to unearth additional layers of meaning succeeds. In Burgess’ view, the American founding is grounded in brutality and self-interest, in particular the brutality of slavery. Why then, she asks, should we honor its views of the meaning of the Constitution (even if they are ascertainable) over all others? Why should the nation continue to privilege a perspective that denigrated, marginalized, and ostracized significant parts of its political community? This may be an impertinent question, but it is one relevant to the discussion of constitutional interpretation....

In many ways this book successfully accomplishes the author’s goal of destabilizing the debate over constitutional interpretation. Burgess demonstrates her talents as a creative scholar who reads texts both carefully and innovatively. At this point in time, any realistic student of constitutional law would be hard-pressed to deny the futility of continuing the fight to “prove” the legitimacy of either judicial activism or judicial self-restraint. Perhaps that is why a number of scholars have treated normative and interpretive minimalism/maximalism separately. However, although this move results in a more nuanced and precise understanding of what actually is happening in judicial decision making, it does not address the problem of legitimacy. What is it that makes a judicial decision a legitimate exercise of authority? Burgess seems to understand this when she writes “The problem for Scalia, and for all parodists, is that revealing the groundlessness and illegitimacy of opponents’ arguments will typically also serve to destabilize other positions – including their own – if, as is usually the case, such positions are grounded at least in part, on the stability of constituent elements of the discourse, such as law, history, liberty, paternity, and so forth” (p.52). The problem for Burgess is that those, such as herself, who attempt totally to remove any stable ground for decision making face the same problem. Human beings are their stories, and old identities cannot be sloughed off like the snake’s skin and replaced with new ones. Further, activism and self-restraint are two ends of a continuum of interpretive and normative approaches to judicial [*901] decision making rather than two totally isolated and unrelated poles.

WHO’S YOUR DADDY? leaves the reader with a sense there is no legitimate foundation for authority. In this book, politics and law are about power and nothing else. This leaves no possible grounding for the tolerance and equality Burgess advocates....

Read the rest here.

Documenting the Legacy of the NAACP

The Journal of African American History (JAAH) announces the special issue "The First 100 Years: Documenting the Legacy of the NAACP." Here is the call for papers:

Over the last 100 years, the [National Association for the Advancement of Colored People (NAACP)] has greatly assisted African Americans and other oppressed groups in their struggles for civil rights, equal treatment, and social justice. Scholars in numerous disciplines have investigated the ways in which the NAACP has worked to end lynching and mob violence and to eliminate legal segregation and the various forms of discrimination in employment, housing, public accommodations, and education. Many recent studies have focused on the role of the NAACP in the historic Brown v. Board of Education Supreme Court decision and its activities on the global stage.

This Special Issue of The Journal of African American History seeks scholarly essays documenting the NAACP’s legacy at the local, state, national, and international levels. Essays focusing on the history, achievements, and impact of the organization on the social, economic, and political conditions for women and various ethnic minority groups are particularly welcome.

[Possible topics include:] (1) litigation on race, class, and/or gender issues; (2) voting and civil rights mobilization by NAACP branches; (3) relations between branch officers and the NAACP national leaders; (4) ideological conflicts among NAACP leaders; (5) biographical portraits of major NAACP local and national figures; and (6) the NAACP’s responses to Pan-Africanism, the Cold War and U.S. anti-communism, globalization, reparations, and other international issues.

Essays should be no more than 35 typed, double-spaced pages (12 pt. font), including endnotes. The JAAH uses the Chicago Manual of Style, 15th edition (Chicago, 2003) for citations. Guidelines for the manuscript submission are available in the Journal of African American History and on the JAAH website.

Submitted essays will be peer reviewed. Your cover letter should include the title of your essay, name, postal address, email address, phone number, and fax number. Your essay should begin with the title of the essay and should NOT include your name.

Please send three (3) hard copies of your manuscript to:

Prof. V. P. Franklin, Editor
The Journal of African American History
University of California, Riverside
Graduate School of Education
1207 Sproul Hal
900 University Avenue
Riverside, CA 92521

Email: vpf1019@aol.com; or jaah@jaah.org

[To paraphrase Harry Shearer: A tip of the LHB chapeau to Jay Stewart for passing along this announcement.]

Call for Papers: Law and Society Association

Submissions are now open for the Annual Meeting of the Law and Society Association in Denver, Colorado, May 28 - 31, 2009. The LSA regularly hosts innovative panels on legal history. In recent years it has been an especially vibrant meeting for transnational and comparative legal history. Well-known legal history luminaries always appear on the program, but newer scholars should take note: this is a great place to submit your first paper or panel proposal. Many legal historians, including yours truly, presented their first conference papers at LSA. The Society's policy on openness and inclusiveness means that the Program Committee will bend over backwards to find a place for you.

And...I'm on the Program Committee, with responsibility for submissions in legal history.

What follows is the Call for Papers, with more details about how to submit a legal history proposal.

Call for Participation

Due Date: December 8, 2008

The 2009 Annual Meeting of Law and Society Association

Thursday, May 28 through Sunday, May 31, at the Grand Hyatt Hotel, Denver, Colorado

Theme: Law, Power, and Inequality in the 21st Century

Urbanization, race relations, poverty, and crime were central concerns of sociolegal scholars at the Association's founding in the 1960s. After 45 years, fundamental structures of inequality remain substantially unaffected by a variety of efforts of legal reform and reconstruction. New forms of inequality and resistance have emerged as globalization links people, economies, and states in new ways. The theme of this year’s Annual Meeting returns to the Law and Society Association’s historic questioning of the relationships between law, power, and inequality.

The current historical moment presents challenges to achieving equality that pose relevant and probing questions for the Law and Society community to address both globally and locally. New questions about persistent problems of poverty, health care, and opportunities for mobility by oppressed groups must be raised and addressed. Old questions need to be reconsidered, as new forms of inequality demand our attention.

Has the use of law advanced or inhibited individual and group rights? Have new understandings of the intersection of social statuses changed our understanding of the role of law in producing or reducing inequality? What has been the role of new, non-state forms of governance in the production of inequality? Should law and social science provide the expertise to stimulate and inform the impending social agenda? Should social scientists and lawyers become allies to address these pressing problems and if so, how should they collaborate?

LSA invites you to take stock of scholarship on law, power, and inequality and to develop agendas for addressing these continuing challenges to the construction of a just social order.

Proposals for individual papers or fully formed panels will be considered. As with every Annual Meeting, panels need not be centered on the conference theme. Submissions on any law and society topic are welcome.

When submitting a proposal, you need to select two "keywords." Keywords are most important for individual paper proposals. If you select "legal history" as your first keyword, the proposal will go to me, and I will try to put your paper together with other papers to form a legal history panel.

My other keywords are "Justice" and "Security and Terrorism." A full list of keywords and corresponding committee members is here.

Other details about submitting a proposal are here.

Sarkin and Fowler on Reparations for Historical Human Rights Violations -- the case of the Herero of Namibia

Reparations for Historical Human Rights Violations: The International and Historical Dimensions of the Alien Torts Claims Act Genocide Case of the Herero of Namibia is a new article by Jeremy J. Sarkin, Hostra University School of Law and Carly Fowler. It appears in Human Rights Review (2008). Here's the abstract:

Between 1904 and 1908 German colonialists in German South West Africa (GSWA, known today as Namibia) committed genocide and other international crimes against two indigenous groups, the Herero and the Nama. From the late 1990s the Herero have sought reparations from the German government and several German corporations for what occurred more than a hundred years ago. This article examines and contextualizes the issues concerning reparations for historical human rights claims. It describes and analyzes the events in GSWA at the time. It further explores whether international humanitarian law and international human rights law today permits reparation to be obtained. The article therefore examines the origins of international criminal law, as well as international human rights and humanitarian law, to determine whether what occurred then were violations of the law already in force. Finally, the article examines and evaluates the Herero reparations cases as well as the potential impact of the cases on the wider reparations movement that sees an increasing number of claims for events that occurred during colonial times.

Doing Legal History: Four Downloads from Western Legal History

Here are four "how-to" articles that originally appeared in Western Legal History and are available as free downloads at the website of the Ninth Judicial Circuit Historical Society:

Legal Research for Historians by David L. McFadden. From Western Legal History, Vol. 10, Nos. 1 & 2. This article explains the basic sources and techniques of legal research for historians and others not formally prepared to work with cases, statutes, and other legal materials.

Studying the West in Federal Court Records by Larisa K. Miller. From Western Legal History, Vol. 10, Nos. 1 & 2. Federal courts have been intimately involved in the growth and expansion of the American West, and the court records held by the Pacific Region (San Francisco) of the National Archives and Records Administration (NARA) illuminate and enrich the history of that growth. In addition to recording legal decisions and constitutional precedents (which can be obtained from a law library), this vast collection of primary sources documents important issues in the economic, environmental, and social history of the West, and serves as a unique resource for historical research.

The Lives and Careers of Judges and Other Employees in the Federal Judicial System: Some Pointers on Research by Claire Prechtel-Kluskens. From Western Legal History, Vol. 10, Nos. 1 & 2. A variety of records and publications are useful in researching the lives and careers of judges, marshals, clerks of court, and other employees in the federal judicial system, including records of the federal government held by the National Archives and Records Administration. This article identifies some of those sources, with an emphasis on nineteenth-century records.

Saving Yesterday Today for Tomorrow: A Guide to Oral History For The Bench and Bar by Carol Hicke. The information in this guide has been gleaned from a wide array of oral history programs and is based on the knowledge and experiences of oral historians at the Federal Judicial Center in Washington, D.C.; the Oregon Historical Society; the Regional Oral History Office at the University of California, Berkeley; and the Ninth Judicial Circuit Historical Society. The guide is in two parts: the first offers step-by-step procedures for conducting an oral history; the second deals with the problems of establishing a program and includes explanations about the discipline of oral history.

Demos on witch hunting, Gellman on Cheney, and Halliday et. al on political liberalism

Just time for a quick round-up of this weekend's book reviews:

THE ENEMY WITHIN: 2,000 Years of Witch-Hunting in the Western World by John Demos is reviewed by Germaine Greer in the New York Times.

ANGLER: The Cheney Vice Presidency by Barton Gellman is taken up in the New York Times by Jacob Heilbrunn.

FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM, by Terence C. Halliday, Lucien Karpik and Malcolm M. Feeley (eds). is reviewed in the Law and Politics Book Review.

Howard hosts symposium on Thurgood Marshall

Howard Law School is hosting a symposium, Thurgood Marshall: His Life, His Work, His Legacy on Friday, October 24, 2008. This is just one of a number of activities related to Marshall's centennial this year. Here are the details:

Fifth Annual Wiley A. Branton Symposium
Thurgood Marshall: His Life, His Work, His Legacy

luncheon keynote speaker:

Sheryll D. Cashin

Professor of Law, Georgetown University Law Center and former law clerk to U.S. Supreme Court Justice Thurgood Marshall

confirmed former law clerks:

Susan Low Bloch, Dan M. Kahan, Stephen L. Carter, Jordan M. Steiker, Elizabeth Garrett, Carol Steiker, and Mark Tushnet

Friday, October 24, 2008

Moot Court Room

8:30 a.m. - 4:00 p.m.
Howard University School of Law

2900 Van Ness Street, NW

Washington, DC 20008

The program is here (pdf).

For additional information about the fifth annual Wiley A. Branton/Howard Law Journal Symposium, please contact Jacqueline Young at jyoung@law.howard.edu.

Sponsored by Howard University School of Law and Sidley Austin LLP.

Tsesis on Antislavery Constitutionalism

Alexander Tsesis, Loyola University of Chicago School of Law, has posted a short essay, Antislavery Constitutionalism. It will appear in the ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES. Here's the abstract:

This is an encyclopedia entry dealing with the various facets of the antislavery movement. It distinguishes the Garrisonian, radical political abolitionist, and moderate antislavery perspectives on ending slavery. The essay quotes and cites original sources to illustrate the groups' core arguments.

Pound, Freund, Frankfurter

Just a word of explanation that I've had to suspend the posts on Roscoe Pound and the Administrative State to finish the paper I'll be giving at the American Society for Legal History meeting next month, "Ernst Freund, Felix Frankfurter and the American Rechtsstaat, 1894-1932: A Transatlantic Shipwreck." I hope to finish the series on Pound in November.

Right idea, wrong photo?

Thanks to Dan Ernst for his post about legal history on iTunes, which was enough to convince me that I need an iTunes account.

Just one thing...

Dan posted this interesting photo.

But I wonder whether he really intended to post this one:

[Special thanks to WFA for technical assistance.]

We Browse iTunes So You Don't Have To!

Okay, so "The Eye of the Tiger" they're not, but here for your listening pleasure--at the gym or wherever--are some free, legal-history-related downloads available from iTunes:

Lynn Hunt: Inventing Human Rights, UCTV, UC Santa Barbara, UCTV Audio Podcasts

Suppressing the African Slave Trade: The Limits of Legislation, 1794-1865: Paul Finkelman. George and Ann Richards Civil War Era Center, Pennsylvania State University

Legal History - Session I: Distinguished Adjunct Professor R. B. Bernstein, Professor Annette Gordon-Reed, Professor Rebecca Roiphe, Professor and Dean Emeritus James F. Simon, Faculty Presentation Day 2008, New York Law School

Shaping & Breaking the Politics of Legal History: David Lieberman, Stanford University

Thurgood Marshall Before the Court: Stephen Smith, Kate Ellis. Civil Rights: Voices of a Movement, American Public Media

[They should turn up with a simple search of the iTunes website.]

Aliens and Sedition in United States History

The Gilder Lehrman Institute of American History has posted a downloadable mp3 file of what looks to be a very interesting panel discussion, Aliens and Sedition: National Security, Individual Rights and the Law in Historical Perspective. The event took place at the Association of the Bar of the City of New York on May 14, 2008. Here is the Institute's description:

The war on terror has sparked a vigorous debate over how many of our civil liberties, if any, should be sacrificed to keep the public safe from terrorist attack. The conflict between civil liberties and national security has come up before in American history — most notably in the Alien and Sedition Acts at the end of the eighteenth century, President Abraham Lincoln’s suspension of habeas corpus in the Civil War, and the internment of Japanese-Americans during World War II. Join moderator Richard Menaker (Menaker & Herrmann LLP) as he discusses this issue with panelists Alan Brinkley (Columbia University), Joanne Freeman (Yale University), Thomas Kean (Chairman of the 9/11 Commission and former Governor of New Jersey), and Mark Neely (Pennsylvania State University).

Australian and New Zeland Legal History Conference

As a former Fulbrighter to New Zealand, I have been remiss in not touting sooner the 27th Annual Australian and New Zealand Legal History Conference, to be held at the University of Adelaide, South Australia, December 11-13, 2008. Keynoters will be Diane Kirkby (La Trobe University), speaking on "Workplace Opportunities and the Transformative Hazards of Gender," and John McLaren (University of Victoria, British Columbia), speaking on "Planters of the Caribbean: the Chimera of Judicial Independence in Britain’s West Indian Colonies in the Nineteenth Century." The website of the Austialian and New Zealand Law and History Society is here; the conference website is here; the program, here.

Tate on Nonmarital Children in Late Roman Law

Joshua C. Tate, Dedman School of Law, Southern Methodist University, has posted the paper, Inheritance Rights of Nonmarital Children in Late Roman Law, which is forthcoming in volume 4 of Roman Legal Tradition. Here is the abstract

Late Roman legislation regarding the inheritance rights of nonmarital children is a tangled web of seemingly conflicting constitutions. Focusing on the period 371-428 AD, this Article argues that, when two particular Western laws from that era are considered alongside others issued at the same time, it is possible to discern some wider legislative trends that may help to contextualize the different attitudes shown toward nonmarital children. C.Th. 4.6.4 (371), a Western law beneficial to nonmarital children, can arguably be linked with another Western law issued shortly afterward granting a privilege to the daughters of actresses, another disfavored class in the late empire. On the other hand, the later Western constitution C.Th. 4.6.7 (426-27), the exact content of which is uncertain and disputed, appears to have been issued at a time when the Western consistory was especially concerned with promoting the interests of legitimate heirs. This lends support to the theory that the Western C.Th. 4.6.7 (and not a subsequent Eastern constitution hypothesized by Antti Arjava) was the law referred to in C.Th. 4.6.8 (428) as adopting a harsh position with regard to nonmarital children.

Biondi on Schumpeter's neglected pages

Schumpeter's Economic Theory and the Dynamic Accounting View of the Firm: Neglected Pages from the Theory of Economic Development is a new article by Yuri Biondi, CNRS (Centre national de la recherche scientifique). Only the abstract is posted on SSRN. The paper will appear in Economy and Society (November 2008). Here's the abstract:

The first English translation of some of Schumpeter's (1926) pages of the "Theory of Economic Development" is presented. These neglected pages are remarkable because they significantly add to Schumpeter's masterpiece on a number of issues concerned with accounting, law and economics of the firm. They show that Schumpeter considered understanding the firm, together with innovation, as important scientific problems. Schumpeter doubts the explanatory value of proprietary entrepreneurship and provides an early justification of the dynamic entity view of business activity generated by the firm as a becoming concern. He discusses its implications for understanding issues of economic organization and corporate governance, and suggests some theoretical insights concerning business capital and money under conditions of real dynamics and complexity. The doors opened by Schumpeter indicate that money and accounting are fundamentally coupled as complementary institutions in framing and shaping the economic and monetary process of the firm as an enterprise entity.

Image credit: Joseph Schumpeter.

Higginbotham on the Tuskegee Airmen

F. Michael Higginbotham, University of Baltimore School of Law, has posted Soldiers for Justice: The Role of the Tuskegee Airmen in the Desegregation of the American Armed Forces, which originally appeared in the William & Mary Bill of Rights Journal 8 (2000). Here is the abstract:

Often noted for their heroic prowess as pilots in World War II, the Tuskegee Airmen served just as nobly fighting racial segregation within the Army. Considered exemplary in its integration today, the armed forces were a testing ground for integration in the middle of the twentieth century. Black officers and enlisted men, putting themselves in harm's way for a segregated United States, rebuked the notion of separate but equal, thereby slowly paving the way for integration in the military, and eventually, the nation. In this Article, F. Michael Higginbotham examines the history of segregation in the United States Armed Forces as well as the role and contribution of black soldiers, most notably the American Army Air Corps personnel, in the legal challenges and protests that led the battle to desegregate the armed forces.

Sammons on Brainerd Currie

Jack L. Sammons,Walter F. George School of Law at Mercer University, has posted Brainerd Currie: I Am the Very Model of a Modern Intellectual, which originally appeared in a symposium on Currie's choice-of-law scholarship in the Mercer Law Review in 1997. Sammons's abstract simply describes the paper as "a biographical examination of Brainerd Curre as a model for law professing."

Historians of American legal thought will recognize Currie for his articles on the pedagogy of legal realism, "The Materials of Law Study." Anyone who considers Gilbert & Sullivan parodies riotously funny--I'm afraid I'm not in their number, as much as I revere the memory of Brainerd's son David, who taught me at the University of Chicago Law School and was also a great G&S fan--won't want to miss the Currie's version of the song that inspired Sammons's title. Much the same sensibility comes across in the Green Bag publication, Quidsome Balm, pictured above.

Morris L. Cohen Student Essay Contest

Morris L. Cohen Student Essay Contest The Legal History and Rare Books Section of the American Association of Law Libraries, in cooperation with Gale Cengage Learning, announces the first annual Morris L. Cohen Student Essay Competition.

The essay competition is named in honor of Morris L. Cohen, Professor Emeritus of Law at Yale Law School. Professor Cohen's scholarly work is in the fields of legal research, rare books, and historical bibliography. The purpose of the contest is to encourage scholarship in the areas of legal history, rare law books, and legal archives, and to expose students to the American Association of Law Libraries and law librarianship.

Currently enrolled students attending accredited graduate programs in library science, law, history, or related subjects are eligible to enter the competition. Students may be enrolled either full- or part-time. Membership in the American Association of Law Libraries is not required.

Papers may be on any topic related to legal history, rare law books, or legal archives. No paper, or portion of a paper, that has been published or accepted for publication before April 15, 2009 will be eligible for consideration. Papers and all supporting documentation must be submitted by April 15, 2009. The winner will be announced by May 15.

The winner will receive a $500.00 prize from Gale Cengage Learning. In addition, the winner will receive up to $1000 to be applied towards expenses associated with attendance at the Annual Meeting of the American Association of Law Libraries. The 2009 Annual Meeting will be held July 25-28 in Washington, D.C. Attendance at the Annual Meeting is encouraged, but not required.

Detailed procedures and an application form are available at the website of the Legal History and Rare Books Section of the American Association of Law Libraries.

Questions may be directed to Katherine Hedin, University of Minnesota Law Library: k-hedi@umn.edu OR Jennie Meade, Jacob Burns Law Library, George Washington University: jmeade@law.gwu.edu

Hat tip: H-Law.

Harcourt on the "Neoliberal Penalty"

Bernard E. Harcourt, University of Chicago Law School, has posted Neoliberal Penality: The Birth of Natural Order, the Illusion of Free Markets. Here is the abstract:

This Article represents the culmination of over two-years of historical research, but it arrives at an odd moment, right in the middle of one of the largest financial crises in Western capitalism. In one sense, it is bad timing because the central premise of the Article is that most people today believe that the market is the most efficient mechanism to allocate resources. The federal bailouts of 2008 challenge this central premise and are forcing the American people to reexamine the need for the regulation of the free market.

In another sense, the timing is, sadly, perfect. Perfect because the purpose of this Article is to question the meaning of the phrase "the need for the regulation of the free market" and to suggest that it is precisely the belief in the duality of those two terms - regulation and free market - that is one of the greatest problems we face today. The terms, as well as their companion expressions, "market efficiency," "natural order," "self-adjusting markets," etc., are misleading categories that fail to capture the individual distinctiveness of different forms of market organization. These categories are responsible, first, for facilitating our growing penal sphere, and, second, for naturalizing and thereby masking the redistributive consequences associated with different methods of organizing markets.

This Article asks the question, what work do these categories of "natural order" and "market efficiency" do for us? The story begins very far in time and place, in the Parisian markets of the eighteenth century, with the establishment of the lieutenant generale de police du Chatelet de Paris and the "police" of bakers, grain merchants, and markets.

Morris Cohen and Robert Lee Hale, by way of Louis XV (pictured above)?

Minow, After Brown: What Would Martin Luther King Say?

After Brown: What Would Martin Luther King Say? is a new essay by Martha Minow, Harvard Law School. The first Martin Luther King Jr. Day Speech at Lewis and Clark Law School, it appears in the Lewis & Clark Law Review (2008). Here's the abstract:

The occasion of the first Martin Luther King Jr. Day Speech at Lewis and Clark Law School, following on the heels of the Supreme Court's rejection of two voluntary racial school integration plans, warrants revisiting the conception of equality that called for school integration, the prospects for equal opportunity without education, and remaining arguments for integration. "Integration" here means more than terminating legally-enforced segregation, and more than sheer mixing of people with different races and identities in the same setting. As Dr. King described it, integration involves the creation of a community of relationships among people who view one another as valuable, who take pride in one another's contributions, and who know that commonalities and synergies outweigh any extra efforts that bridging differences may require. Before the disillusionment accompanying the apparent failure of judicially-mandated school integration, integration was inseparable from access to opportunity as a goal of civil rights reformers from the 19th century through the middle of the 20th. W.E.B. DuBois and Martin Luther King, Jr. separately emphasized that racially separate instruction by teachers who believe in their students' capacities would be better than racially-mixed instruction by teachers who disparaged African-American children - but integration would be still better. Opposition to court-ordered desegregation remedies and judicial retreat occurred just as approval of racial mixing and even integration succeeded as cultural and political ideals. Current educational wisdom identifies strategies for equal educational opportunity apart from integration. These include curricular and academic supports that demand high standards, prepare minority students to achieve in a sometimes hostile world, and craft for each student the social identity of an achiever who is a member of a community of learners. Focused school reforms aligning the curriculum with standards, more "time-on"task" with longer school days, initiatives to recruit and support effective teachers, and shifts in school finance guided by standards of adequate education and comparable opportunities can mitigate the disparities still associated with racially distinct school communities. But as even the good arguments for socioeconomic integration reveal, failure to pursue racial integration - including efforts to create truly inclusive communities of mutual respect - can recreate racial segregation through tracking, special education assignments, and students' own divisions in lunch tables and cliques. Racial integration informed by the demographic changes making this a multicultural and multi-racial society remains a distinctive goal apart from other efforts to ensure equal educational opportunities. Justice Kennedy's separate opinion in Parents Involved in Community Schools v. Seattle School District No. 1 along with the four dissenters create a fragile majority that would permit school systems and housing developers to local schools with the aim of encouraging racial integration, to develop programs designed to attract racially diverse groups of students, and to hold meetings and recruitment efforts to attract diverse groups of students and teachers. Contrary to the Court's majority opinion, pretending to have achieved color-blind as well as open opportunity - when we have not - disables individuals and communities from understanding what is going on and from becoming equipped to deal with it. In addition to the strategies for integration left open, families and students can choose integrated schools by their residential choices and by making their own lives look like the high-concept ads celebrating integration.

Jerome Hall Postdoctoral Fellowship at Indiana University

The Center for Law, Society and Culture at the Indiana University School of Law-Bloomington announces the creation of the Jerome Hall Postdoctoral Fellowship. According to the announcement,

The Center will appoint up to three post-doctoral fellows per year beginning with the 2009-10 academic year. We invite applications from scholars of law, the humanities, or social sciences working in the field of sociolegal studies. Pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship.

Fellows will devote a full academic year to research and writing in furtherance of a major scholarly project, and will receive a stipend plus a research allowance, health insurance, other benefits, and workspace at Indiana Law. They will conduct research at Indiana University and participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshops and lectures.

The application form and more information are available here. A brief account of Jerome Hall (pictured above) is here.

Pfander on Judicial Compensation and the Definition of Judicial Power in the Early Republic

James E. Pfander, Northwestern, has a new article, Judicial Compensation and the Definition of Judicial Power in the Early Republic. It is forthcoming in the Michigan Law Review (2008). Here's the abstract:

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other problems, fee-paid judges were understood to have a financial interest in expanding their jurisdiction. By placing federal judges on salary, Article III may have provided subtle institutional support for the notion that federal courts were to be courts of limited jurisdiction.

This Article explores the role of judicial compensation in shaping the familiar jurisdictional landmarks of the early Republic. It shows that Congress chose a salary-based compensation scheme, and took early steps to rule out fee payments to federal judges. The Article also demonstrates that the judicial salary was understood to include compensation for official travel, a fact that sheds important new light on the Supreme Court Justices' hostility to the burdens, and expense, of riding the circuit. The Article suggests that financial self-interest may have played a role in shaping the early definition of judicial power and the willingness of the Justices to take on extrajudicial assignments. Such familiar episodes in the historiography of the early Republic as the refusal of the circuit courts to hear pension claims, the Court's refusal to issue advisory opinions, the paradoxical willingness of Chief Justice Jay to accept a position as ambassador to Great Britain, and the Court's complex response in Marbury v. Madison to the repeal and reestablishment of circuit duties all take on new meaning when viewed against the backdrop of financial self-interest. Concluding remarks focus on judicial independence and the way Article III frames debate over judicial compensation and workload.

ASLH Ottawa: An Update

A new preliminary program for the Ottawa meeting of the American Society for Legal History is available on the ASLH website, as a pdf here or as a Word document here.

In addition to a number of small changes, there is an additional panel on "Customary Law as Handmaid to Modernity: Surveys of Customs in Late Nineteenth and Early Twentieth Century China, Korea, and Japan" with papers by Jérôme Bourgon, Tahirih V. Lee, and Marie Seong-Hak Kim. Richard J. Ross will chair the session.

The drop-dead deadline both for pre-registration and conference hotel booking at the special rate is October 12. (The deadline for the room-sharing form is October 7.)

Hat tip: H-Law.

Llewellyn Lives!

Just posted on the University of Chicago's Law Faculty Blog is a downloadable mp3 recording of an undated lecture from Karl N. Llewellyn's family law course, taught sometime during his tenure at Chicago (1951-62). I've been listening; the sound quality is good, and the substance--a pre-feminist, functionalist analysis of the family--is, shall we say, arresting. For example, one concern Llewellyn takes up is how the family reconciles the conflicting orders of the "Court of Pa" and the "Court of Ma." The solution, he explains, with a reference to appellate courts organized into divisions, is to sit in plenary session--nominally, as the "Court of Us," but, practically, as the "Court of Pa," with "Ma" appearing as either the prosecutor or counsel for the defense. The Wayback Machine, indeed!

I'd be happy to post notices of other such audio treasures, if their keepers will let me know as they become available.

Update: Having finally finished listening to the lecture, I believe I erred in describing it as being from a family law course. It's definitely a part of a first-year course and probably from Elements of the Law. As for internal evidence of the date, Llewellyn refers to "Bill Douglas's" recently expressed views on the Third World; I don't know the little books Douglas wrote on the Supreme Court well enough to identify to which Llewellyn was referring. Another clue: the lifting of intrafamilial immunity in tort was quite recent when the lecture was given.