Student Prizes in Legal History

A webpage noting that Samuel David Robinson has won the William and Mary Law School's William Hamilton Prize, awarded to "the student with outstanding performance in legal history," reminds me that other law schools give out similar awards. If yours does, please let us know the winner and something about his or her project!

CFP: The Eichmann Trial at 50

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THE EICHMANN TRIAL AT 50
A two-day international symposium to discuss one of the most important trials of the 20th Century
Melbourne Law School
14-15 October 2011

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

Organizers: Kevin Jon Heller & Gerry Simpson
CALL FOR PAPERS
Deadline for Abstracts: 15 June 2011
On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem. The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world. Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced to death. Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20th century.

2011 marks the 50th anniversary of the Eichmann trial. The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other. The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial. The organizers thus encourage proposals from any discipline on any topic related to Eichmann.

The symposium will be held over two days. We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided. A speakers’ dinner will be held on the evening of the 14th and an informal dinner on the 15th for those who remain in town.

The symposium is the third of four symposia being held as part of the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.” The organizers intend to publish a selection of papers presented at the symposium as an edited book, although there will be no obligation to publish. Conversely, the organizers are happy to consider contributions to the book from scholars who are unable to attend the symposium.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 15 June 2011 to Kevin Jon Heller, c/o Cathy Hutton, the APCML Administrator. Doctoral students are welcome to submit abstracts. Participants will be selected by July 1 to facilitate travel plans.

Questions about the symposium should be directed to Kevin.

More on Company Towns, Legal History, and Economics

An anonymous commenter writes:

The company towns example raises a concern I have about an economic approach being applied too readily. The difficulty with economic analysis as it is often (not always) applied is that it omits the non-financial issues which clearly were important to people - it's like people who rely on Adam Smith but have read the Wealth of Nations, but never the Theory of Moral Sentiments. One needs to read both to understand Adam Smith's ideas fully.

Taking a British example, a number of nineteenth century industrialists set out to provide effective company towns for their workers. However, others did not. One distinction was that the owners of companies who created company towns were often methodist or otherwise "evangelical" low-churchmen and thought they had a moral (not financial) obligation to their workers.

Good economic analysis can incorporate such ideas as and motivations within it, but often the only way one realises that one needs to incorporate the ideas is by doing good history in the first place - starting from the economic perspective alone won't do it.

I agree with the overarching sentiment, but I'm not sure that what the commenter is suggesting is actually at odds with an "economic perspective."

Surely, there is a crude economic perspective that suggests that individuals are motivated by financial self-interest, or, from the Marxian perspective, class interest. But I don't think that this perspective has many adherents in neoclassical circles (I can't say that I'm up on the latest in Marxist theory).

The real economic puzzle here is "why have a company town"? A pat answer: because this allowed the "company" to exploit the workers, who had no bargaining power. Economically-oriented response: "Wait, that doesn't make sense, if the company was simply exploiting the workers, it could just pay them less." So "why have a company town?" If one answer is, "because some rich Methodists who were not accountable to shareholders thought it was their duty to 'uplift' their workers, even at the expense of greater profits," that is a perfectly reasonable ECONOMIC motivation, if we understand economics, as Ludwig von Mises famously suggested, to be the "science of human action."

"Economics," as I understand it, takes people's preexisting goals--be they venal, charitable, religious, racist, or whatever--as a given, and then assumes that people will try to achieve those goals in the least "costly" (in financial and other costs) manner. If a businessperson is acting through purely venal motives, trying to exploit his workers, one would expect that he will simply pay them less, rather than set up a Rube Goldbergesque scheme of local monopoly that will be less effective in achieving his exploitative goal. On the other hand, if a businessperson feels a paternalistic obligation to his workers, one method he may try is to establish a company town that will both provide basic social services to his workers, and also enforce moral norms that will make it more difficult for his employees to fall victim to drink, gambling, or other vices.

I'm at fault for not making this clear. I wrote, "economics teaches us that companies aren’t likely to do something that’s contrary to self-interest." I should have written something more like that "economics teaches us that companies seeking to maximize profit aren't likely to engage in widespread behavior that seems obviously contrary to that goal"--like trying to "exploit" powerless workers by setting up a company town, rather than simply reducing their wages. In my previous post, I provided a few plausible explanations as to why profit-seeking enterprises might nevertheless set up company towns. The "Methodist" example is another possible explanation--that maximizing profits was subordinate in some cases to other goals--and yet another possibility is that company towns were a risky and often temporary venture, and no one else may have been willing to invest the needed capital in housing and the like.

All of these are plausible answers to the company town mystery, and none are necessarily exclusive of the others; different explanations, or a combination of explanations, may explain any given town. Economics provides the tool to question the simplistic "exploitation" argument, and perhaps provide hypotheses to explore, but it takes good historical work to figure out what was actually going on. And that's why I think economics and history are allies, not enemies.

Peraza reviews Lubet, "Fugitive Justice"

Back in February, Mary noted Steven Lubet's article on the Oberlin slave rescue. We now have a review, courtesy of H-Law, of the book from which Lubet adapted the article: Fugitive Justice: Runaways, Rescuers, and Slavery on Trial (Cambridge: Belknap Press of Harvard University Press, 2010).

Steve Peraza (University at Buffalo (SUNY)) 
offers the following summary:

That the fugitive slave law overcame social, political, and legal challenges is one of the lessons of Fugitive Justice: Runaways, Rescuers, and Slavery on Trial, a well-researched and elegantly written monograph by Williams Memorial Professor of Law Steven Lubet. But the purpose of the study is not to measure the effectiveness of the law. Rather, Fugitive Justice explains how federal enforcement and prosecution of the law pushed abolitionist lawyers to advance radical legal theories in defense of the runaways and rescuers they represented. To do so, the monograph retells the stories of three high-profile fugitive slave trials in Pennsylvania, Massachusetts, and Ohio, respectively, focusing acutely on the legal arguments delivered for and against the fugitive slave law during each case. In this way readers experience both the palpable drama of antebellum trials in the United States as well as the ideological and rhetorical battles among prosecutors, defense attorneys, U.S. commissioners, and federal judges.

The full review, which gives close attention to Lubet's sources and arguments, is here.

The "Constitutional Jester": Theory & History on the 9th Amendment

"Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism," by Michael Seidman (Georgetown--law), published in a recent issue of the California Law Review (Vol. 98, No. 6., Dec., 2010) may be of interest to constitutional historians. The article mostly is a work of constitutional theory, but includes accounts of history and discussions of originalism. The abstract follows, and the full article can be found here.

The Ninth Amendment—our resident anarchic and sarcastic “constitutional jester”—mocks the effort of scholars and judges alike to tame and normalize constitutional law. The Amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.
Part I of this essay presents a new originalist account of the Ninth Amendment. It argues that the Amendment deliberately leaves unsettled the status of unenumerated rights. Because of the Ninth Amendment, the Constitution does not “deny” or “disparage” these rights, but neither does it embrace or imply them. The Amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text.
Part II argues that the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive.

New release: the sociology and legal history of Lawrence Friedman

Over at the Faculty Lounge, Al Brophy has posted a reminder about Cambridge's release of the "Lawrence Friedman Festchrift," Law, Society, and History: Themes in the Legal Sociology and Legal History of Lawrence M. Friedman, edited by Robert Gordon and Morton Horwitz.

Here's the TOC:

Part I. Overviews and Assessments of Friedman's Work

1. Lawrence Friedman and the canons of law and society Lauren Edelman
2. 'Then and now': Lawrence Friedman as an analyst of social change Vincenzo Ferrari
3. Lawrence Friedman and the bane of functionalism Victoria Woeste
4. Lawrence M. Friedman's comparative law Thomas Ginsburg

Part II. Applications of Concepts, Insights and Methods in Friedman's Work

5. To influence, shape and globalize: popular legal culture and law, Jo Carrillo
6. Exploring legal culture: a few cautionary remarks from comparative research, Jose Juan Toharia
7. The travails of total justice, Marc Galanter
8. 'Total justice' and political conservativism, Robert A. Kagan
9. Friedman on lawyers: a survey, Philip Lewis
10. Legal culture and the state in modern Japan: continuity and change, Setsuo Miyasawa and Malcolm Feeley
11. The death of contract: dodos and unicorns or sleeping rattlesnakes? Stewart Macaulay
12. Law society and the environment, Robert V. Percival
13. American religiosity: why the difference with France? James Whitman
14. Same-sex marriage: situating a modern controversy in historical context, Joanna L. Grossman

Part III. Facts from the Underground: Digging Legal History out of the Cellar

15. Historian in the cellar, George Fisher
16. The discreet charm of inquisitorial procedure: judges and lawyers in a case of lèse majesté in late 18th century Venezuela, Rogelio Pérez Perdomo
17. 'Keep the negroes out of the classes with the most girls': lynching, standardized testing, and portraiture as support for white supremacy at the University of Texas, 1899–1999, Thomas D. Russell
18. Legal realism goes offshore: debates over rule of law and the control of ocean resources, 1937–53, Harry N. Scheiber

Part IV. Perspectives from Other Conceptual Worlds

19. Sociological jurisprudence – impossible but necessary: the case of contractual networks, Gunther Teubner
20. How American legal academics' positions on economic-efficiency analysis, moral philosophy and valid legal argument disserve law and society empirical research, Richard Markovits.

Thanks, Al!

Comparative Constitutional History, continued

As I mentioned in my previous post, I’m trying to come up with ways to smake my comparative constitutional history course something more than a course in comparing other constitutions to the US constitution. That aim assumes, of course, that it’s wrong to teach the seminar from a US centered perspective, and not everyone shares that view. I should also note that its a lot easier to use the US Constitution as the centerpiece of the course, especially in light of the fairly recent (since I last taught the seminar, that is) publication of George Billias’s book.

But I think there’s something to be said for trying to rise to the challenge of teaching a real comparative history course. So that’s the goal and here are the ways I’ve tried to set about reaching it:

How Historians Can Benefit from Economics

I’ve noticed over the years that many historians, including legal historians, are hostile to economics. Indeed, I’ve experienced this hostility personally, as a couple of times my “George Mason University School of Law” i.d. tag has attracted venomous comments from ASLH attendees (GMUSL is known for its focus on law and economics).

[UPDATE: For example, at my first ASLH meeting as a GMUSL professor, an attendee looked at my name tag, saw George Mason, and said, in a disgusted voice, something like: "GEORGE MASON! I hope you law and economics people are not going to try to do legal history what you've done to other fields! The last thing legal history needs is economics." I politely responded that I while I'm not an economist, I don't see why economics should be considered a threat to legal history. The individual in question then just walked away.

Also, it's been suggested in the comments that I'm "characterizing an entire field." I apologize if it came off that way, but I didn't say that "all" or even "most" historians are hostile to economics, I said "many." On reflection, perhaps a bigger problem is that even among historians who aren't actively hostile to economics, there is a widespread perception that engaging with economic thought is not useful for historians. And if you don't think it's economics is likely to be useful, and "many" of your colleagues will look unkindly at it, it's obviously unlikely that you will pursue it.

And let me reiterate that, as suggested immediately below, economists have their own issues with history, so the problem goes both ways.]

I can understand why historians are suspicious of economics. First, economists sometimes decide to interpret history to ensure that it coincides with their preexisted understanding of what economics says “must have” occurred, without engaging in objective historical research. Second, economists with an empirical bent are too prone to attributing causation (1) based on necessarily incomplete data sets, so long as they can get a “statistically significant” result, while (2) sometimes forgetting that in any event, statistically significant correlation does not necessarily equal causation. And, third, it doesn’t help that economics is perceived as “conservative” by the more lefty historical community.

Nevertheless, I think historians could benefit from economics in two ways. First, economists are very good at defining their terms, something that seems to me to be a weakness among many historians. I could give numerous examples, but one that I’ve noticed over the years from attending ASLH is that historians will casually refer to certain groups (especially nineteenth century workers) as “exploited”, without defining what “exploited” means. These, in my experience, are almost always historians from history departments, not law schools; at most law schools, one wouldn’t get past 5 minutes of the q & a without someone asking what the author means by “exploited.” A lack of precision isn’t conducive to good history writing.

Second, economics can help historians find interesting topics to research. Consider “company towns.” Standard histories assert that large mining and other companies exploited (there’s that word again) workers by forcing them to live in company housing and buy from company stores. But when an economist reads about company towns, an obvious question arises: if the companies were simply out to exploit their workers, who lacked the bargaining power to resist, why not just pay them less? A mining company has no particular expertise in running a housing market, or a store; it would be much easier, and more profitable, to simply offer lower wages and let the workers fend for themselves.

But economics teaches us that companies aren’t likely to do something that’s contrary to self-interest, so that leaves several possibilities to be investigated by historians: For example, (1) The companies were pulling a bait and switch. They advertised high wages, but only when the employees reached the town, and became dependent on employment there, did they realize that the wages were only high because the company extracted profit from monopoly housing and grocery fees; (2) The companies benefited from controlling housing and shopping because they could control the workers that way. A union leader could not just be fired, but evicted from the town. The company could extract more productivity from its workers by prohibiting the sale or use of alcohol in town; and (3) Perhaps some workers preferred company towns precisely because of the social control the company enforced. If so, the company could actually offer lower total compensation. I once caught a few minutes of a documentary about a company town. The narrator was interviewing and elderly woman who had resided in a company town. She was asked whether she resented the control the company had over every day life. To the contrary, she said, she and her husband specifically sought out this town, because most steel town were full of drunk, rowdy men who made the town unfit for family life. She and her husband wanted to live in a town where “troublemakers” were expelled, and good Christian morality was enforced.

Any or all of these alternatives might explain any given company town, but any such detail is far richer and, if done well, more accurate that simply asserting that company towns existed because of workers' lack of bargaining power (again, why not just pay them less).

Ellison and Martin on Policing and the Northern Ireland Civil Rights Campaign

Policing, Collective Action and Social Movement Theory: The Case of the Northern Ireland Civil Rights Campaign has just been posted by Graham Ellison, Queen's University Belfast School of Law, and Greg Martin, University of Sydney.  It appeared in the British Journal of Sociology, Vol. 51, No. 4, pp. 681-699, December 2000.  Here's the abstract:

In this paper we examine the relationship between social movements and the police through an analysis of the Civil Rights Movement (CRM) which emerged in the late 1960s in Northern Ireland. Following della Porta (1995) and Melucci (1996) we argue that the way in which episodes of collective action are policed can affect profoundly both levels of mobilization and the orientation of social movements. We also submit that the symbolic and representational dimensions of policing can be a significant trigger in the stimulation of identification processes and collective action. The paper concludes by questioning some of the assumptions contained within social movement theory, and their applicability to divided societies such as Northern Ireland.

CFP: ASLH Preyer Scholars

Below is the call for papers for the Preyer PrizePanel, at the American Society for Legal History Conference.  The panel features promising new work by early career scholars.  This is a great opportunity, and comes with support to attend the meeting.

Submissions are welcome on any legal, institutional and/or constitutional aspect of American history and the history of the Atlantic World. Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable state, are eligible to apply. Papers already submitted to the ASLH Program Committee--whether or not accepted for an existing panel--and papers never previously submitted are equally eligible.

Submissions should include a curriculum vitae of the author, contact information, and a complete draft of the paper to be presented. The draft may be longer than could be presented in the time available at the meeting (twenty minutes) and should contain supporting documentation, but one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2011. The Preyer Scholars will be named by August 1.

Kathryn T. Preyer Scholars will receive a $250 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society's annual meeting in Atlanta, GA, on November 10-13, 2011.

Please send electronic submissions to the chair of the Preyer Committee, Christine Desan, cc'd here.

Ruskola, Where is Asia? When is Asia?

Where is Asia? When is Asia? Theorizing Comparative Law and International Law has just been posted by Teemu Ruskola, Emory University School of Law.  It will appear in the UC Davis Law Review, Vol. 44, No. 102, 2011.  Here's the abstract:

Ever since Henry Luce pronounced the twentieth century an American one, numerous critical observers have predicted that Asia will preside over the twenty-first one. Yet even today, that prediction still confronts us as a question: "Asian Century?" In this Essay, I approach the question by disaggregating the way it conflates space and time. I ask, separately, "Where is Asia?" and "When is Asia?" I seek to answer the first question in terms of cultural geography and the second one in terms of historiography. Effectively, I suggest that the "problem" of Asia is an epistemological one. I also consider what it means for comparative lawyers and international lawyers to take that problem seriously. I so do by using the so-called "Asian Values" debate as a point of entry to consider the methodological relationship between comparative and international law as disciplines. Both the Asian Values debate and the two legal disciplines are structured around a dialectic opposition between universal and particular values. Rather than positing preconstituted objects of legal knowledge and seeking to classify them as either universal or particular, I urge that we examine the worldview that gives rise to such binaries and makes them intelligible: How do the entities we analyze come to be seen as distinctive and oppositional to each other in the first place? Focusing on Chinese law, I consider an approach that is neither Eurocentric nor Sinocentric but de-centers both axes of comparison.

Maguire, Children of the Abyss: Permutations of Childhood in South Africa's Child Justice Act

Children of the Abyss: Permutations of Childhood in South Africa’s Child Justice Act has just been posted by James Maguire, Harvard Law School JD 2011.  It will appear in the New Criminal Law Review, Vol. 15, No. 1, 2012.  Here's the abstract:

This article critically examines recent legislation in South Africa intended to systematically overhaul the country’s juvenile justice regime. Developed and heatedly debated over the course of a decade, the Child Justice Act implements novel procedural protections and large-scale restorative justice programs. By analyzing the political history, social context, and evolving text of the Child Justice Act, I call into question prevailing assumptions about post-apartheid South Africa’s socio-legal history. Close examination of the act’s major drafts (in 2002, 2007, and 2008) reveals a set of tensions in the political and rhetorical status of youths as alternately victims of circumstance and threats to society. Rather than confronting and resolving this tension, which subverts the linear logic of post-apartheid “transition”, the act reinscribes that tension in a new vocabulary and logic of governance and social management. Contemporary South African history thus demonstrates a pattern not of transition but of problematic permutations.

Advice for legal historians on the entry-level law market: Part I

I've hesitated to blog about this subject, since I just went through the process of interviewing for entry-level law teaching jobs and I haven't yet seen the hiring side. (It wouldn't exactly be the blind leading the blind, but I'm an extremely near-sighted guide.) That said, I remember how I felt at this point last year: I craved information. With hopes that others will chime in, I'd like to pass on to legal historians in the candidate position a few general lessons I took from the experience, as well as some of the valuable advice I received from mentors and friends.

I'll start with a suggestion: around this time last year, I found it useful to take stock of all my works-in-progress and decide, in consultation with my advisors, what would work well as a job talk. My sense is that legal historians, probably because many come from Ph.D. programs, don't tend to be in the position of having to create a job talk paper from scratch over the summer; rather, they refine and rewrite material that they have already developed.

Here are some of the questions I asked myself as I looked over my work and considered how to shape part of it into a job talk paper.

• What makes me special as a candidate and what aspect of my larger project will show that off? For example, one skill that historians bring to the table is an ability to find and analyze primary sources. I tried to craft a paper that highlighted that skill.

• What is the core of my research agenda, and how can I show that off in a short piece while still advancing a manageable argument? My project, writ large, is about how welfare administration changed between 1935 and 1960 from a localized, highly discretionary system in which welfare payments were gratuities to a more centralized, legalistic system in which welfare payments had many of the trappings of legal rights. It's a project that seeks to advance big arguments about the practices of American federalism, the uses of rights discourse, and the roles of law and legalism in welfare administration in the years before the welfare rights movement. I toyed with the idea of using a short summary of the dissertation as a job talk paper, and I wouldn't be surprised if candidates have done that in the past (anyone?). I felt most comfortable using a chapter of the dissertation as the core of my job talk paper. (I chose one about the rights language that federal administrators used to talk to state and local welfare departments in the late 1930s and 1940s.) I then made revisions that signaled my larger arguments and ambitions.

• What will engage the audience? Or, phrased differently, how can I make my project interesting and accessible to a wide swath of legal scholars? Casual conversations are a good starting point: bat around some ideas with legal scholars of different backgrounds and specialties and see what aspects of your project get people talking. If you can bring those aspects to the fore in your job talk paper, you have a better chance of convincing interviewers that your work is relevant and exciting. For example, there are parts of my dissertation that delve deeply into historiographical debates. I hope that someday other historians in my area will engage with my views, but I quickly learned not to expect non-historian legal scholars to be interested.
  

Readers, do you have additional advice on this topic?

War in the Book Reviews

The nature of war is the subject of a number of book reviews during the past week. Newspaper reviews focus especially on one new book: TO END ALL WARS: A Story of Loyalty and Rebellion, 1914-1918, by Adam Hochschild.  "In his previous works, on subjects as diverse as the Belgian Congo and the victims of Stalinism, Hochschild has distinguished himself as a historian 'from below,' as it were, or from the viewpoint of the victims," writes Christopher Hitchens in the New York Times, in the best of three reviews.   In this "moving and important book," Hochshild "stays loyal to this method in 'To End All Wars,' concentrating on the appalling losses suffered by the rank and file and the extraordinary courage of those who decided that the war was not a just one."

The accounts of Hochshild's book all raise the question of whether war produces war, and, in this example, whether "the war to end all wars," as Woodrow Wilson memorably put it, made Word War II inevitable.  In Hitchens on Hochshild:

We read these stirring yet wrenching accounts, of soldiers setting off to battle accompanied by cheers, and shudder because we know what they do not. We know what is coming, in other words....What is really coming, stepping jackbooted over the poisoned ruins of civilized Europe, is the pornographic figure of the Nazi....[Hochshild] approaches a truly arresting realization: Nazism can perhaps be avoided, but only on condition that German militarism is not too heavily defeated on the battlefield.

While the point that World War I's resolution paved the way to World War II has been made by others, Hochshild finds American complicity in the military role in this outcome:  

If General Pershing’s fresh and plucky troops had not reached the scene in the closing stages of the bloodbath, universal exhaustion would almost certainly have compelled an earlier armistice, on less savage terms. Without President Wilson’s intervention, the incensed and traumatized French would never have been able to impose terms of humiliation on Germany; the very terms that Hitler was to reverse, by such relentless means, a matter of two decades later.

Read the rest here.  Hochshild is also reviewed in the Washington Post and the Boston Globe.

The nature of war, and the difficulties of historical reconstruction, take a different focus in Simon Akram's review of War and the Crisis of Youth in Sierra Leone by Krijn Peters In The New Republic/The Book.  Akram sets the book in the context of a conflict over the meaning of the war in Sierra Leone.

The point of departure for the debate was Robert Kaplan’s article ‘The Coming Anarchy,’ which appeared in The Atlantic in 1994. It characterized the war as a kind of intrinsic, unfathomable African mayhem, with Sierra Leone “beyond salvage.” A year after the Clinton administration got its fingers burned in Mogadishu, the piece attracted much attention. The Department of State even faxed a copy to every American embassy in the world. Subsequently a succession of other writers vigorously disputed Kaplan’s ideas, variously claiming that the atrocities committed by the Revolutionary United Front reflected the ‘lumpen’ or urban-criminal character of its members, or that the brutality of the war was far from mindless but instead a reflection of harsh economic realities, notably the attraction of Sierra Leone’s fabled diamond deposits.

This new book "is the latest skirmish in this dispute.... In Peters’s reading, the violence that the [Revolutionary United Front] would go on to perpetrate was a departure from an initially legitimate rebellion."  Ultimately, Akram finds writing on this war to be unsatisfactory.  "Generally the literary treatment of the war has been divided between bang-bang banality and footnoted technicality." Akram places Peters in the latter category, which is in some ways a journalist's predictable criticism of an academic for being, well, an academic.  For Akram, it appears as if the academic's effort to understand Sierra Leone becomes an act of obfuscation.

Pages of footnotes referring to obscure journals cannot do justice to Sierra Leone’s horror. The conflict was tragic in a simple sense, but also in a Shakespearean way: a movement rose up against an utterly venal and corrupt regime, yet despite the nobility of their cause the attempted revolution descended into orgiastic violence. Such a story is better told by a sweeping work of narrative history, or in a broad slice of realist historical fiction. Its immeasurable pathos is buried and betrayed by the tepid furies of Africanist academic revisionism.

The rest is here.  Yet it seems that the horrors of war, in Sierra Leone or in the World War I trenches, makes academic work on the nature of 20th century warfare as essential as Akram finds it impossible.

Weekend Round-up

• For all those readers who research at the National Archives, heads up: NARA's tight procedures are about to get tighter. Read about it here, courtesy of the Organization of American Historians.

• On June 9, the Birbeck Institute for the Humanities at the University of London is running a workshop on "How To Write the History of Organised Crime." More info is here. Hat tip: H-Law.

• From the Chronicle of Higher Ed, the Library of Congress adds a jukebox.
  

The Weekend Round-up is a weekly feature compiled by all the Legal History Bloggers.

Comparative Constitutional History

As I suggested earlier, teaching comparative constitutional history has its own unique challenges. The good news is that everyone in the class feels equally uncomfortable with both the constitutions and the historical material. The bad news is… Well, you presumably get the picture.

I teach comparative constitutional history about once every other year as a seminar for a mix of law and grad students.  The course moves more or less chronologically, looking at a constitutional system a week in its historical context.   There are three goals for the course: to think about how and why constitutions (and constitutionalism) changed over time; to look at trends in constitutions; and to think about how history (local and global) and context work together to shape constitutional orders.

Power on Maryland's Adoption of English Law

Garrett Power, University of Maryland School of Law, has posted Adoption of English Law in Maryland. Here is the abstract:

It served as an axiom of Maryland’s constitutional history that settlers carried with them the "rights of Englishmen" when they crossed the Atlantic. In 1642 the Assembly of Maryland Freemen declared Maryland’s provincial judges were to follows the law of England. Maryland’s 1776 Declaration of Independence left a legal lacuna - what were to be the laws and public institutions of this newly created sovereign entity? This paper considers the manner in which the sovereign state of Maryland filled the void.

Rare Book School at the University of Virginia

The Rare Book School at the University of Virginia is accepting applications for summer courses, including "Law Books: History & Connoisseurship" taught by Mike Widener, 13-17 June in Charlottesville, Virginia. This course is aimed at individual book collectors who collect in some aspect of the history of the law and for librarians who manage historical legal collections. The objective is to acquaint them with the tools and techniques for building focused collections of historical materials in Anglo-American, European, and Latin American law, and to equip historians and legal scholars in the use of such collections.

Mike Widener is the Rare Book Librarian at the Lillian Goldman Law Library, Yale Law School, and previously he was Head of Special Collections at the Tarlton Law Library, University of Texas School of Law.

Justices and Journalists

Justices and Journalists: The U.S. Supreme Court and the Media (Cambridge University Press, Feb., 2011), by political scientist Richard Davis (Brigham Young), may be of interest. The book traces the Justices' engagement with print and broadcast media; it is partly a historical account. The book also includes empirical analysis.

The book caught my eye because it touches on questions that legal historians ponder when we analyze the judicial decision making process and interpret legal texts. I have in mind, for example, how judicial culture, conceptions of judicial role, and institutional management impact courts and law; how judicial biographies and personalities shape legal outcomes; and strategic behavior among judges.

Here is the publisher's description of the book; a few blurbs follow.

Justices and Journalists examines whether justices are becoming more publicity-conscious and why that might be happening. The book discusses the motives of justices "going public" and details their recent increased number of television and print interviews and amount of press coverage of their speeches. The book describes the interactions justices have (and have had) with the journalists who cover them. These interactions typically are not discussed publicly by justices or journalists. The book explains why justices care about press and public relations, how they employ external strategies to affect press portrayals of themselves and their institution, and how and why journalists participate in that interaction. Drawing on the papers of Supreme Court justices in the nineteenth and twentieth centuries, the book examines these interactions over the history of the Court. It also includes a content analysis of print and broadcast media coverage of Supreme Court justices covering a 40-year period from 1968 to 2007.

"Supreme Court justices like to cultivate an image of being aloof and apart from politics and the media. Richard Davis' eye-opening book offers ample proof that to varying degrees, justices have engaged with journalists and politicians throughout American history. The Court's lofty mystique will never be the same."
Tony Mauro, Supreme Court Correspondent, National Law Journal

"With the Justices now regularly writing books, publicly debating constitutional issues, and sitting for media interviews, Justices and Journalists could not be more timely. It's a path-breaking study that will generate discussion, debate, and research over the questions of how and why Justices "go public"---and whether they should in the first place."
Lee Epstein, Northwestern University School of Law


Judge Richard Posner reviewed Davis's book for the New Republic. The review, entitled "The Court of Celebrity," mostly offers the judge's normative take on whether the Justices ought to open the work of the Court to public scrutiny, as opposed to cultivate "celebrity" on an individual basis. Here is how Posner frames the subject:

The way in which every person, every institution, relates to people is essentially, though often unconsciously, theatrical. We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy. This is true of the Supreme Court, too, and of the individual Supreme Court justices.

Judge Posner's engaging ideas are well worth a read, but it is important to distinguish between a judicial media presence or judicial media strategy, and the phenomenon of judicial "celebrity." The former might signal healthy engagement with the public and serve educational purposes. By contrast, the latter might simply advance an individual judge's self-interest, as Posner suggests. (I doubt, by the way, that any U.S. Supreme Court Justice actually qualifies as a "celebrity." But I might be pleased if any Justice were as widely followed as say, Brad Pitt or Lebron James).

See Linda Greenhouse's essay, "Telling the Court's Story: Justice and Journalism at the Supreme Court," 105 Yale L.J. 1537 (1995-96),for the view that journalists' coverage of the Court and Justices' engagement with media is not merely healthy for but integral to democracy. Greenhouse frames her discussion in this way:

This Essay starts from the premise that press coverage of the courts is a subject at least as worthy of public concern and scholarly attention as press coverage of politics, perhaps even more so. Political candidates who believe that their messages are not being conveyed accurately or fairly by the press have a range of options available for disseminating those messages. They can buy more advertising, speak directly to the public from a talk-show studio or a press-conference podium, or line up endorsements from credible public figures. But judges, for the most part, speak only through their opinions, which are difficult for the ordinary citizen to obtain or to understand. Especially in an era when the political system has ceded to the courts many of society's most difficult questions, it is sobering to acknowledge the extent to which the courts and the country depend on the press for the public understanding that is necessary for the health and, ultimately, the legitimacy of any institution in a democratic society.

Greenhouse contemplates a productive interpretative role for journalists in the legal process; whether illuminating commentary emerges in any given scenario is, of course, open to debate.

Technical difficulties

Dear readers,

Blogger, our blog program, is normally very reliable.  It has had technical issues during the last couple of days.  This is why posts have disappeared, and if you attempted to comment, you would have gotten an error message.  These issues are being resolved -- for example I finally am able to post this notice.  Please be patient if you have difficulties with the blog, and please check back for the missing posts.  We'll be back up to speed before too long.

Sloss on Enforcing Treaties Against the States

Treaties and the Constitution: Enforcing Treaties Against the States is a new article by David L. Sloss, Santa Clara University School of Law.  It is forthcoming in the Harvard International Law Journal.  Here's the abstract:

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts.

Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the nation’s treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. The intent-based doctrine is analytically incoherent because it conflates these distinct international and domestic law inquiries. Courts applying the intent-based doctrine give controlling effect to a fictitious “intent of the treaty makers” – that fictitious intent is a judicial fabrication. Hence, the intent-based doctrine encourages the arbitrary exercise of judicial power. In contrast, the two-step approach applies rational legal principles to decide treaty cases. This article elucidates the two-step approach to self-execution, which shifts the foundations of the debate between nationalists and transnationalists, and sheds new light on broader constitutional treaty issues.

The historical section begins on p. 8.

Cornell on "New Originalism"

"There is really only one group in American society that remains largely immune to the lure of originalism: historians." So writes Saul Cornell (Fordham University) in a recent essay on the "new originalist" theory of constitutional interpretation: its provenance, its applications, and, in his view, its errors.

Here's a taste:

THERE IS something deeply ironic about new originalism that its advocates have missed because they lack an understanding of Founding-era history. Focusing on the public meaning of the Constitution, the chief insight of new originalism, is really not new at all. Such an approach was championed by the Anti-Federalist opponents of the Constitution more than two hundred years ago. Following new originalist methodology would not lead to a restoration of the original meaning of the Constitution, but it would give us an Anti-Federalist Constitution that never existed. This is an odd result, given that the Constitution was largely written by Federalists and ratified by state conventions dominated by Federalist majorities, not Anti-Federalist minorities.

The full essay is here, at Dissent.

Hat tip: RBB

Ablavsky on the End of Native Slavery in Revolutionary Virginia

Gregory Ablavsky, a J.D./Ph.D. candidate at Penn, has posted Making Indians "White": The Judicial Abolition of Native Slavery in Revolutionary Virginia and its Racial Legacy, which is forthcoming as a comment in University of Pennsylvania Law Review 159 (1911): 1457-1531. Here is the abstract:

This article traces the history of a series of “freedom suits” brought by Virginia slaves between 1772 and 1806, in which the Supreme Court of Appeals of Virginia judicially abolished nearly two centuries of American Indian slavery in the colony by ruling that slaves who could prove maternal descent from Native Americans were prima facie free. Delving first into the legal history of Indian slavery in colonial America, it then examines the doctrinal shift that led the courts to redefine natives as unfit subjects for enslavement, and argues that its roots lie in a racialization of slavery that separated Africans from Natives. The final section explores the national legacy of these rulings, tracing the spread of these legal principles throughout the antebellum United States and discussing how the racial ideology that divided Native Americans and African-Americans continues to pose legal hurdles in contemporary Indian law cases involving tribal recognition and the Cherokee freedmen.

More on constitutional history

To follow up on some points, questions, issues, etc raised in the comments to my last post.


I think that by and large US Constitutional studies, historical or otherwise, are more court centered than not. There is an exchange about different countries' constitutional scholarship in the International Journal of Constitutional Law, in 2009 (vol. 7 no. 3), and in it Robert Post argues that US constitutional study is different from, and far more court centered/legalistic than, European constitutonal study.


I might not put it exactly the way Post does (though I need to think about that, so perhaps I'll return to that issue in a later post). But I would say that generally constitutional scholarship in the US is court centered and reactive, by which I mean that constitutional scholarship reflects on what the courts (especially the Supreme Court) decide (or ignore) and responds to it. I'm pretty sure I don't think that's a good thing, either for constitutional history or for constitutional study more generally. But the question is how to break out of that box.


To that end, it might be interesting to do some sort of blog symposium on syllabi. At the very least, perhaps we should think about pulling together collections of legal or constitutional history syllabi in some sort of clearinghouse, the way Jurist used to do. My own syllabi (almost all of them, I think) are available on my webpage, at the link for legal history syllabi. (For those of you keeping score at home, the undergraduate courses that I teach in legal or constitutional history have 3000 or 4000 level numbers, the grad and law courses have numbers at the 5000 or 6000 level.)


To respond more completely to Mary's question, how much I manage to avoid teaching the Court's greatest hits depends a lot on who I'm teaching. My undergraduate Constitutional History course is a two semester class, so while we do a lot of cases I do get to go beyond just teaching cases and we read four books a semester to amplify the cases we do read. Since it's an upper level course, I also assume that the students have a fairly good grasp of US history (they aren't all history majors, however, so that assumption can be tested, alas). But that assumption also means that we can cover cases in a fairly complex context in class.


In contrast, my law school Constitutional or Legal History courses are just a semester, and often only two hours a week (compared to three for the undergrads). The law students do not like to read lots of books, or full opinions, so I routinely get evaluations that complain I assign a book a week (which isn't remotely true) or too many pages of opinions.


While I can't say I am terribly moved by those objections, it's hard under those circumstances to come up with a law school course that goes beyond the greatest hits, especially since I can't assume that law students have a firm grounding in US history. For my law school courses in constitutional or legal history, I tend to do three things:


First, I've begn to focus the law school course on a particular sub-topic. I recently taught a course called something like US Constitutional History: Citizenship. There we got away from S.Ct. greatest hits and read articles, a couple of books, and some lower court cases, etc. More to the point, we also got into issues of what citizenship was, and how people exercised their citizenship, in addition to questions of who were citizens when.


Second, I typically lecture to my law school courses (I don't when I teach a seminar, but my Constitutional or Legal History courses tend not to be seminars). This way I supply the context and complexity that lies beneath the cases we read. I taught an American Legal History course one semester that was called something like Legal History of the Law of Work and Workers, whichi was a course on labor and employment laws before the New Deal. There we read some cases and articles every week, and in addition I posted the extra works I used for my lectures every week on the syllabus. That seemed to work pretty well, though it was a lot of effort.


Third, I typically do an extra hour of course work for grad students to supplement the law school course. I teach that as a small reading group that meets every other week or so for an hour or an hour and a half; sometimes we do it in a face to face session, sometimes we do it as a chat online. That lets me assign more books to the grad students and let's us engage the more complicated or theoretical issues in the secondary literature. But its a sort of Rube Goldberg affair that tends to renforce the divisions between the students. It's also hard because the grad students are often, though not always, wrestling with cases for the first time. That means that they are less comfortable with the underlying material than they would be in a "regular history" course, so there's a certain amount of background work that has to be done there.


It's hard to figure out a good way to resolve how to appeal to these different groups in the same class. I've been fortunate to have several grad students who came into the program with JDs in hand. That obviously makes it easier to focus on the historical context and theoretical issues in the grad parts of the class. But I don't want to make a JD a requirement of being admitted to the PhD program (I also don't think I could).


We have experimented a bit with having grad students take some core courses pass/fail at the law school, to get them familiar with legal reason and assumptions. I think that the students who did this found it easier to work with legal materials afterwards, and so that seems like a possible solution. Typically, however, we don't want grad students to do that until they've had a year or so of grad work done (for a variety of reasons that have to do with other requirements), so that means that first year students with an interest in legal history (or MA students) don't have the benefit of that opportunity.


We have a joint degree program, which works quite well for MA/JD students. But for PhD students it's a complicated logistical issue and a financial burden, since their fellowships do not typically extend to cover law courses and law schools typically do not provide fellowships. In the current job market, I hesitate to tell a grad student to take out loans to go to law school, so the funding issue is significant.


Needless to say, when I teach comparative constitutional history, which I do about once every other year, it's even more complicated. But that's a subject for a later post.

Justice Who? Kersch reviews Kens, "The Supreme Court under Morrison R. Waite"

The Law & Politics Book Review has posted a review of Paul Kens, THE SUPREME COURT UNDER MORRISON R. WAITE, 1874-1888 (University of South Carolina Press, 2010).
Reviewer Ken I. Kersch (Boston College; Clough Center for the Study of Constitutional Democracy) begins by recognizing "the relative obscurity of the man serving as this book’s organizing subject, and the ostensible dullness (and brevity) of the period it covers," but urges readers to give the book a chance:

While period experts probably won’t learn a lot, the value-added to others from reading this book could be quite high. Moreover, in reviewing the trajectory of constitutional development in the period, even experts might be spurred by Kens’s account to appreciate in new ways the Waite Court’s perhaps surprising contemporary relevance.

Here's a bit more about the Waite Court:

Waite Court (1874-1888) themes included the relation between the national government and the states, the constitutional powers of governments to regulate the economy, and the powers of the community vis-à-vis big business. Significantly, the Court considered these issues not under the conditions of a now vanished “proprietary-competitive,” agrarian order, but at the very moment when our complex, interconnected, corporate-capitalist political economy was struggling to be born (see Sklar 1986). As such, the Waite Court was the first to grapple seriously with the application of the traditional system of government – and the Founders' Constitution – to the political economy of modern America.

And here's Kersch on the take-away:

This book is largely an overview and synthesis, but it is a good one. Although some of his chapter titles are cringe-inducing (e.g. “Waite, Waite, Don’t Tell Me”), Kens is an otherwise engaging writer who is very much at home in the period. He effectively situates the reader within the era’s complicated and sometimes alien legal categories, presented in their rich economic, political, and social contexts. His capsule profiles of the Court’s justices are nicely drawn.

The book prompts thoughts that are far from antiquarian. As debates about originalism continue, it is striking to be reminded of the degree to which there was almost instantaneous confusion, if not bitter contention, on the Waite Court about the original meaning of the Fourteenth Amendment – despite the [*196] fact that all involved clearly recalled the adoption of those amendments, and its context, which had occurred less than a decade earlier. As Kens emphasizes, the antagonism between Justices Waite and Field became a cynosure for this contention (this book has convinced me that, in overlooking the Waite-Field antagonism in his otherwise wonderful book, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (2007), Jeffrey Rosen missed the boat regarding one opposition that plainly continues to define America today).

The full review is here.

Image credit: Justice Morrison Waite, from the Library of Congress

Kersch's Constructing Civil Liberties

Karen's link (below) to Ken Kersch's review of Paul Kens's new book gives me an excuse to plug Kersch's book, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law, a wonderful book that hasn't received nearly the attention I think it deserves. Here's my review, originally published in the American Historical Review.

This is a relentlessly interesting book, one that can’t help but change the way the reader understands twentieth century American constitutional development. As Kersch persuasively argues, for much of the late twentieth century, American constitutional history was dominated by a whiggish narrative in which progressive forces consistently supportive of civil rights and civil liberties triumphed over the dark forces of reaction. This whiggish narrative, however, is full of holes.

For example, progressives of the early twentieth century fought mightily against privacy rights protected by the fourth and fifth amendments, in the name of the right of publicity. More specifically, the statebuilding project supported by progressives required that American businesses be subjected to intrusive and unprecedented inspection by regulatory and other legal authorities. Even future Supreme Court Justice Louis Brandeis’s famous 1890 article supporting a constitutional “right to privacy”—later cited as the progenitor of modern “right to privacy” cases such as Griswold v. Connecticut—actually did not advocate a right to privacy that modern civil libertarians would even begin to recognize. Quite to the contrary, the article advocated recognition of a tort for invasion of privacy as a means of censoring even rather tepid tabloid journalism. Only after progressives had soundly defeated the “old” right to privacy in the economic sphere and established the modern bureaucratic state did they reimagine the right to privacy in terms congenial to modern liberalism, as an island of personal autonomy in a sea of statism. This victory also allowed them to revive the Fourth and Fifth Amendments in the service of protecting street criminals.

The whiggish narrative also asserts that a defining characteristic of American progressivism has been solicitude for the rights of oppressed minorities, especially African Americans. In fact, however, before the New Deal era most progressives were at best indifferent to African Americans’ plight. Indeed, some were openly hostile to African American, and launched such progressive schemes as the wave of residential segregation laws that swept through the United States in the 1910s. These laws were invalidated by a unanimous decision of the “conservative” Supreme Court in Buchanan v. Warley in 1917, to a chorus of criticism by progressive legal scholars.

Organized labor, not civil rights, was the favored cause of progressives in the early twentieth century, and labor unions, especially AFL and railroad unions, were themselves hostile to African Americans. African Americans, in turn, for the most part fiercely opposed labor unionism. In alliance with the businesses that often provided them with work over white workers’ objections, African Americans supported such “reactionary” policies as labor injunctions, strikebreaking, and the legality of yellow dog contracts. Kens argues that progressives only embraced the cause of civil rights when African Americans dropped their prior attachment to pre-New Deal individualistic conceptions of rights, and, modeling themselves on the successful model of organized labor, organized themselves as a constitutional class entitled to group rights in a statist legal and economic superstructure.

Finally, progressive conceptions of appropriate education policy were for the most part driven far more by a vision of imposing a centralized, statist school system on the American people than on any principled conception of civil liberties and separation of church and state. Progressive intellectuals strongly opposed the Meyer, Pierce, and Tokushige Supreme Court opinions of the 1920s, which protected local school board prerogatives and private schooling against progressive demands for homogenization and centralization of education. Progressives, in fact, were overtly hostile to the very existence of Catholic parochial schools; the constitutionality of banning such schools was at the heart of the Pierce case. By the 1960s, progressives and their allies on the scholarly community reinterpreted the quintessentially conservative Supreme Court cases—which their roots in the “reactionary” Lochner v. New York tradition—as civil libertarian cases protecting individual autonomy from conservative religious forces (see Griswold v. Connecticut and Roe v. Wade). However, progressive hostility to traditional Catholicism continued, as the history of both of these cases makes clear.

Similarly, after the New Deal, the overtly statist progressive attempt to in the 1920s to outlaw Catholic schools morphed into an attempt to ensure that government aid to Catholic schools was beyond the constitutional pale. The “civil libertarian” doctrine promulgated to accomplish this goal was the “separation of church and state.” Courts initially used this doctrine primarily to suppress government assistance to Catholic schools and Catholic-dominated “release time” programs. However, as atheists and liberal Jews became increasingly influential in separationist organizations, the attack on Catholic education morphed into a broader war against expressions of Christian religious sentiment in the public schools, culminating in the Lemon v. Kurtzman decision in 1971. Not surprisingly, whiggish narratives neglect the anti-Catholic sentiment that initially spurred these constitutional developments.

Kersch puts all of these examples into the broad framework of American political and constitutional development. Most historians, law professors, and political scientists who write about constitutional history likely think of themselves as independent liberal, perhaps even radical, critics of their government. Kersch, however, will have none of it. He accuses the scholars who spun and sustained the fanciful but entirely mainstream whiggish narrative of the development of “civil rights and civil liberties” of “being heavily implicated in the political project of justifying, institutionalizing and ... defending the New Deal constitutional regime.” Rather than serving as the incisive and independent critics of their own imagination, the academic establishment has served as an implicit fourth (or fifth) branch of government, rewriting American history to retroactively justify the revolutionary changes to the American conception of rights, liberties, and the proper role of government that the New Deal precipitated and institutionalized.

Ultimately, this short review cannot do justice to the brilliance of Kersch’s insights, or the breadth of his research. Suffice to say that Kersch is fully up to the challenge of explaining and defending a revisionist thesis of tremendous magnitude. Constructing Civil Liberties is simply the most provocative and enlightening book on constitutional history that I have ever read.

[David Bernstein]

The Smith Act Prosecutions

Apropos of Scott Martelle, The Fear Within: Spies, Commies, and American Democracy on Trial, recently mentioned on this blog, I discussed the Smith Act prosecutions a few years back in the Northwestern University Law Review. I concluded that ideally the government should have prosecuted the defendants for conspiracy to commit espionage, but that the Smith Act prosecutions may have been a reasonable second-best alternative under the circumstances:

Thus, the government was faced with several unattractive options: prosecute Communists for espionage and reveal the Venona decoding, destroying an extremely valuable source of information on the Soviets; spend huge resources monitoring the CPUSA in a potentially fruitless attempt to disrupt its espionage activities; ignore the CPUSA's espionage and continue to allow American secrets to leak to the country's greatest enemy; or stretch the boundaries of the First Amendment and prosecute CPUSA leaders under the Smith Act, as the government had previously done to Nazi and fascist leaders [prosecutions that are considered far less noteworthy by historians, and that were supported by CPUSA leaders!]. The government did not obviously choose the worst option.

Of course, I spent several pages elaborating on these arguments, so if you're interested, read the whole thing.

Sutherland Memorial Lecture in Legal History

[We have the following from our friends at Iowa Law.] The Program in Law and History at the University of Iowa is pleased to make available the podcast of the 2011 Donald W. Sutherland Lecture in Legal History. The Sutherland Lecture, given annually, honors the memory of Donald Sutherland, a distinguished historian of English law who taught at the University of Iowa for nearly thirty years.

The 2011 Sutherland Lecture was given by Thomas Gallanis, the N. William Hines Chair in Law at the University of Iowa, on the topic "The Evolution of the Common Law." The podcast is available here.