Saturday, October 10, 2015

Weekend Roundup

  •  Via HNN, a very cool graphic that let's one browse Yale's collection Farm Security Administration photographs, including this one from my hometown of Dubuque, Iowa, by John Vachon.  DRE
  • According to the Legal Intelligencer, on October 17, the attorney Malcolm J. Gross will speak to the Lehigh County Bar Association at Gettysburg on "The Gettysburg Address: Its Roots, Constitutional Background, and Importance in American Legal History."  On December 1, he will speak to the same group on "Oliver Wendell Holmes, His Background and Legacy" on Dec. 1.  He has already addressed the Monroe County Bar Association on "Thaddeus Stevens, Assemblyman, Congressman, Abolitionist, Pennsylvania Lawyer."
  • Dr Miriam Aziz, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, has posted a film of the 4th Max Planck Master Class in International Law with Professor Emmanuelle Tourme-Jouannet of Sciences Po.  She writes that “the project fused my passion for art and ideas about the law and the choreography of global academic cultures” and that it is about “a masterclass as a performance of the art of the legal academy.”
  • The Idaho Press Tribune recently ran a story on the federal judge who decided Reed v. Reed (Charles R. Donaldson), written by David Adler, President of the Sun Valley Institute, who is writing a book about the case.
  • On October 6, Rebecca J. Scott, University of Michigan and President-Elect of the American Society for Legal History, presented in Michigan’s legal history workshop on “‘Acts of Ownership and Authority': The Enslavement of Eulalie Oliveau.”  H/t: Legal Scholarship Blog
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 9, 2015

Wright on the Public/Private Binary and Family Law History

Danaya C. Wright, University of Florida Levin College of Law, has posted Theorizing History: Separate Spheres, the Public/Private Binary and a New Analytic for Family Law History, which appeared in 2012 ANZLHS Ejournal as Refereed Paper 2:    
There is an extensive scholarship on separate spheres, the public/private binary, and family history that reveals a nuanced understanding of the interconnections and constructedness of these metaphors and rubrics traditionally used in family law history. In exploring the current understandings and limitations of these subjects as analytics for doing my own history of English family law, I turn to Michelle Zimbalist Rosaldo’s critique that we limit our subjects and reinforce power differentials when we use a lens of difference in our scholarship. I first explore the lessons learned about the enduring nature of separate spheres and the power imbalances of the public/private binary in terms of their implications for family law, and try to bring these diverse areas of scholarship together to reflect on the narrow project of family law history. Then I propose a new approach that focuses on the paths not taken, the reforms that were blocked, as providing one way to get around some of the limitations of separate spheres and reveal the stark relations of power in modern constructions of the family and the state.

Image-consciousness and the Law

In my book Laws of Image: Privacy and Publicity in America, I chronicle the rise of what I describe as "laws of image" in the twentieth century, and the phenomenon of "personal image litigation." These legal developments tracked an image-consciousness in American culture -- our fascination with our looks, public personas, and the impressions that we make.

An especially intense brand of image-consciousness took root in the 1920s, an age when consumer culture and mass entertainment assumed a central position in American life, and when advertising, fashion, celebrity, and the media became important arbiters of values and conduct.
1925 beauty ad (credit) 

New visual media, such as photography, photojournalism, and motion pictures, accentuated the importance of appearances and created the sense of being subjected to the critical gaze of others. Images had become part of the public landscape, appearing on billboards, product packaging, and movie screens. Film stars, who exercised meticulous control of their images, became role models and icons, modal selves in a culture where the key to success was seen as the ability to create a pleasing image to amuse and impress others.

The emerging advertising industry, in conjunction with the new field of popular psychology, promised people that they could use conspicuous consumption to achieve a stunning image and distinguish themselves from the crowd. Advertisements played upon popular insecurities with identity and appearance, and they reinforced the perception that images were essential to social advancement. As an ad for Woodbury's Soap warned: "Strangers' eyes, keen and critical -- can you meet them proudly -- confidently -- without fear?" In the social world depicted in 1920s ads, the potential for humiliation, shame, and social failure lurked everywhere.

Thursday, October 8, 2015

Monti on the Italian Business Firm in the Late 19th Century

Annamaria Monti, Bocconi University Department of Law, has posted Form, Size, 'Governance'. Remarks on Italian Late 19th-Century Companies, a paper presented at the workshop The Small, Medium-Sized and Large Company in Law and Economic Practice (Middle Ages-Nineteenth Century), Brussels, May 2015.  Here is the abstract:    
The late 19th century Italian experience concerning form, size and governance of companies and partnerships limited by shares represents a good case study in the contemporary European context, especially for the coexistence of small and big companies, each with a specific role and different needs.

Moreover, neither the few big businesses nor the many smaller companies chose the classical corporation form, namely a company limited by shares, which in Italy, as in France, was called società anonima.

At least at the beginning of their business activities, they mainly preferred the juridical form of the so called accomandita per azioni, i.e. partnerships limited by shares, where in addition to one or more general partners who didn’t enjoy limited liability, there were one or more limited partners, i.e. partners with limited liability. And this was for different reasons which I am going to discuss in the paper.

Law and Governance in pre-Modern Britain

[Via H-Law, we have an announcement for the conference Law and Governance in pre-Modern Britain, October 23-24, 2015.]

Law and Governance in pre-Modern Britain is the fifth conference on this general theme held at Western University, London, Ontario, Canada, and the second to focus entirely on the pre-modern period. The theme of the conference is intentionally broad, and the speakers have been asked simply to talk about whatever aspect of their research interests them most at the time.

Over the course of two days we will hear from an international group of leading legal historians with interests in crime, religion, the intersection of laws, the development of the profession, pardon, prison, process and trade. The range of topics is broad but their intersections are complex and varied. Two of the speakers are involved with the Early English Laws project to re-edit and translate all English legal texts written before Magna Carta, and thus are playing a role in revolutionizing the way we access sources and conduct research. Three are authors of volumes of the Oxford History of the Laws of England, either in print or in preparation, and thus are shaping the way we will understand the field for a generation.

The conference will take place in the Moot Court room of the Faculty of Law, and the atmosphere will be informal, with ample opportunity for discussion and conversation during breaks or over the conference lunch or Friday night dinner. Registration is available online, but will also be available on-site at the time of the conference. Space at the conference dinner on Friday evening is limited: early booking is strongly recommended and no bookings will be taken after October 19.

[Update: The draft program is here.]

Entick v. Carrington 250 Years On

Hart Publishing announces Entick v Carrington: 250 Years of the Rule of Law, edited by Adam Tomkins, John Millar Professor of Public Law at the University of Glasgow, and Paul Scott,  Lecturer in Public Law at the University of Southampton.
Entick v Carrington is one of the canons of English public law and in 2015 it is 250 years old. In 1762 the Earl of Halifax, one of His Majesty’s Principal Secretaries of State, despatched Nathan Carrington and three other of the King’s messengers to John Entick’s house in Stepney. They broke into his house, seizing his papers and causing significant damage. Why? Because he was said to have written seditious papers published in the Monitor. Entick sued Carrington and the other messengers for trespass. The defendants argued that the Earl of Halifax had given them legal authority to act as they had. Lord Camden ruled firmly in Entick’s favour, holding that the warrant of a Secretary of State could not render lawful actions such as these which were otherwise unlawful.

The case is a canonical statement of the common law’s commitment to the constitutional principle of the rule of law. In this collection, leading public lawyers reflect on the history of the case, the enduring importance of the legal principles for which it stands, and the broader implications of Entick v Carrington 250 years on.
TOC after the jump.

Wednesday, October 7, 2015

Johnson on Chae Chan Ping

Kit Johnson, University of Oklahoma College of Law, has posted Chae Chan Ping at 125: An Introduction, Oklahoma Law Review 68 (2015):
In 2014, the University of Oklahoma College of Law held a symposium to mark the 125th anniversary of the U.S. Supreme Court opinion in Chae Chan Ping v. United States, 130 U.S. 581 (1889), also known as the Chinese Exclusion Case. Chae Chan Ping was a Chinese migrant who had lived in the United States for 12 years before he left the country, which he did only after obtaining legal permission to return. While Chae Chan Ping was at sea on his way back to the United States, Congress passed a law revoking reentry certificates for Chinese migrants, and Chae Chan Ping was denied reentry. A unanimous Supreme Court determined that Congress’ decision to revoke the reentry certificates was “conclusive upon the judiciary.” That holding has become known as the “plenary power doctrine,” and it has been foundational to constitutional immigration jurisprudence. Under this doctrine, any laws passed by Congress with respect to immigration, even those that would be unconstitutional if applied to citizens, are not subject to judicial challenge. In this introduction, I explain the relevance of this seminal decision and introduce the symposium contributions.
H/t: Legal Theory Blog

Arbitration in Historical Perspective: A Symposium and Student Writing Competition

[We have the following announcement.]
William Blackstone, via the CSDR

A student writing competition is being organized in conjunction with the annual symposium convened by the Center for the Study of Dispute Resolution at the University of Missouri School of Law.  This year’s symposium is convened by Prof. Carli Conklin and is entitled “Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective.”  The symposium features Professor James Oldham, the St. Thomas More Professor of Law and Legal History at Georgetown University Law Center, as keynote speaker as well as expert panelists from England and the United States.

The competition is sponsored by the Center for the Study of Dispute Resolution and offers a $500 prize to the competition winner.  The author of the winning paper may be invited to publish the winning submission in the symposium issue of the Journal of Dispute Resolution, subject to the agreement of both the editors of the Journal of Dispute Resolution and the winning author.

Submissions should bear some relationship to the history of dispute or conflict resolution, broadly defined.  Topics may therefore consider issues relating to the historic development of international or domestic negotiation, mediation, conciliation and/or arbitration, among other things.  There is no requirement that papers discuss U.S. law.  Papers must be received no later than 11:59 p.m., Central time, on Monday, November 9, 2015.

Further information on the writing competition is available on the symposium website.

Questions may be directed to:
Professor S.I. Strong
University of Missouri School of Law
Tel.:  +1 573 882 2465

An Oral History of an African American JAG (1943-46)

We recently noticed Major Dan Dalrymple’s An Extraordinary Life Span: A Summary and Analysis of an Oral History of the Honorable William A. McClain, United States Army (1943-1946), which appeared in the Military Law Review 218 (2013): 196-227.  (The link is to the entire issue.)  Cribbing from the introduction:
William A. McClain (Credit: CHLA)
William A. McClain was a World War II era African American Judge Advocate.  While his longevity in years is noteworthy by itself, more so is the scope of his achievements and the constellation of personal connections he forged.  Born into poverty in the Jim Crow South, he rose to become an accomplished orator, lawyer, judge advocate, city solicitor, state court judge, and leader in the civil rights movement.  Along the way, he broke down racial barriers, often with the help of white teachers and colleagues, as well as the personal involvement of a governor, senator, and future Supreme Court Justice.  Many of his professional accomplishments occurred in the City of Cincinnati, a conservative bastion, and hotbed for racial unrest.

This article is a summary and analysis of interviews conducted with the Honorable William A. McClain in 1999 and 2003, interviews later transcribed and bound in An Oral History of William A. McClain, which is maintained at the Library of The Judge Advocate General’s Legal Center and School, United States Army, Charlottesville, Virginia.
Judge McClain’s papers are at the Cincinnati History Library and Archives, Cincinnati Museum Center.

Tuesday, October 6, 2015

The Nancy Weiss Malkiel Fellowship for Junior Faculty

[We have the following announcement.]

The Woodrow Wilson National Fellowship Foundation is proud to announce a one-time, highly selective fellowship for junior faculty, created in honor of Nancy Weiss Malkiel, a 1965 Woodrow Wilson Fellow, distinguished historian, and longtime Princeton dean.

The Nancy Weiss Malkiel Fellowship, created on the occasion of Dr. Malkiel’s 40th year of service on the Woodrow Wilson Foundation Board, is designed to support junior faculty as they work towards achieving tenure. Five 12-month awards of $10,000 will be made in the 2015–16 academic year.

This one-time Fellowship program will support a small cadre of emerging faculty leaders whose careers promise—like Dr. Malkiel’s—to play a significant role in shaping American higher education. Applicants, who must have passed their third-year review no later than January 29, 2016, may be working in any field of the humanities or social sciences. Preference will be given to those addressing topics related to 20th- and 21st-century American history, politics, culture, and society, with emphases including but not limited to African American issues, women’s issues, and/or higher education. Applications are due by December 1, 2015.

To learn more about the Malkiel Fellowship and download a brochure, please visit Please feel free to share this information widely and post it to whatever listservs and social media channels you use. We are eager to hear from your very best candidates.

Stephanie J. Hull, Ph.D. 
Executive Vice President and Chief Operating Officer
The Woodrow Wilson National Fellowship Foundation
5 Vaughn Drive, Suite 300, Princeton, NJ 08540
T: 609.452.7007 x115   |

O'Connor on the Lost "Art": of the Patent System

Sean M. O'Connor, University of Washington School of Law, has posted The Lost “Art” of the Patent System, which appears in the University of Illinois Law Review 2015: 1397-1478:
Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause. Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production. The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over the proper scope and nature of the patent system, especially with regard to upstream patenting. I argue that this loss is leading to over- and underinclusive senses of patent eligible subject matter as well as amnesia as to the long-standing importance of method patents. I offer suggestions on how to reorient the patent system back to a focus on (useful) ‘‘art.’’

Morrison v. Olsen: The Oral Argument Reenacted

[We have the following announcement of a reenactment of the oral argument in Morrison v. Olson.  Early arrivers for the ASLH meeting take special note!]

The Historical Society of the District of Columbia presents Separation of Powers and the Independent Counsel: Morrison v. Olson Revisited, Wednesday, October 28, 2015, 4:30 p.m. – 6:00 p.m., Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.

In the 1980s, the Executive and Legislative Branches engaged in a titanic battle over production of internal EPA documents. Acting under the Ethics in Government Act, the Special Division of the D.C. Circuit Court appointed an Independent Counsel to investigate the role of the Department of Justice, particularly Theodore B. Olson, then Assistant Attorney General, Office of Legal Counsel, in allegedly obstructing the congressional investigation. Subpoenaed to appear before a grand jury, Olson moved to quash, arguing that the Independent Counsel statute violated the constitutional doctrine of separation of powers by vesting the appointment authority in an Article III court rather than in the Executive Branch. The Court of Appeals agreed with Olson that the statute violated the separation of powers doctrine (opinion by Judge Silberman, joined by Judge Williams; dissenting opinion by then-Judge Ruth Bader Ginsburg). On further review in Morrison v. Olson, the Supreme Court rejected the separation of powers challenge and upheld the statute.

Our program will include a reenactment of the separation of powers arguments presented to the Court of Appeals, followed by a panel discussion. Professor Amanda Frost will set the stage. Theodore Olson will represent himself [emphasis supplied], Catherine Stetson will argue for the Independent Counsel, and Judge Laurence Silberman will sit as the Judge. Former Judge Patricia Wald will moderate a discussion focused on the separation of powers doctrine, the influence of the Court of Appeals and subsequent Supreme Court decisions, and the case’s legacy today.

Setting the Stage
Amanda Frost, Professor of Law, American University, Washington College of Law

For appellants, Theodore B. Olson, Gibson Dunn & Crutcher LLP
For Independent Counsel, Catherine E. Stetson, HoganLovells LLP
Sitting as judge, Laurence H. Silberman, Senior Judge, U.S. Court of Appeals for the D.C. Circuit

Moderator of Panel Discussion

Patricia M. Wald, former Judge, U.S. Court of Appeals for the D.C. Circuit (1979-99)

Admission is free.  Reservations are not required.  A reception with light refreshments will follow the program.

Society programs depend on the generosity of members, law firms, and others. Non-members are invited to join the Society or to make a contribution. For information, call 202.216.7346 or visit here.  The Historical Society of the D.C. Circuit is a 501(c)(3) organization independent of the Courts.

Barbas at BC Legal History Roundtable

[We have the following announcement from our friends at Boston College concerning our guest blogger, Samantha Barbas.]

We are delighted that on Thursday, October 15, 2015, Samantha Barbas will be joining us for the Boston College Law School Legal History Roundtable. Professor Barbas will be speaking about her new book: Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). A selection can be found on the Roundtable's webpage.

Samantha Barbas researches and teaches in the areas of legal history, First Amendment law and mass communications law. Her work focuses on the intersection of law, culture, media and technology in United States history. Her recent research has explored the history of the law of privacy and defamation. Barbas holds a Ph.D. in American history from the University of California, Berkeley, and a J.D. from Stanford Law School. She was previously an assistant professor of history at Chapman University, a visiting professor of history at U.C. Berkeley, and a lecturer at Arizona State University. She clerked for Judge Richard Clifton on the Ninth Circuit Court of Appeals in Honolulu, Hawaii. Barbas’ work has appeared in several law and history journals, including the Yale Journal of Law and the Humanities, the Rutgers Law Review, and the Columbia Journal of Law and the Arts.

Professor Barbas is working on another book, on the history of privacy and freedom of the press, Time v. Hill and America's Search for Privacy, under contract with Stanford University Press. She is also the author of Movie Crazy: Fans, Stars, and the Cult of Celebrity (Palgrave Macmillan, 2001) and The First Lady of Hollywood (University of California Press, 2005).

The event begins at 4:30PM in the rare book room of the BCLS law library.  Refreshments will be available starting at 4:15.  Parking is only allowed in white-lined spaces if you do not have a BC parking permit.  If you will be able to join us, please let Patrick Mahoney know in advance by emailing 

As is our usual practice for the roundtable, Professor Barbas will start by speaking for 10-15 minutes about the book, e.g., what prompted her interest in the project, major points, difficult questions, etc.  Then we have a more general conversation with the group as a whole, present questions and comments, and so forth.

The Right to "Privacy"

Thanks again to the Legal History Blog for the opportunity to share ideas from my book Laws of Image: Privacy and Publicity in America.

We often think of the right to privacy as a "right to be let alone." In my book, I suggest that the right to privacy -- the tort of invasion of privacy -- has also been a right to one's image. The privacy tort, a creation of the late 19th century, was a response to an emerging "image-conscious sensibility" in the culture of the time.

In small towns and villages, a person's reputation was often a product of deep, ongoing contact with one's community. By contrast, in the expanding cities of the late 19th century, social identity was often a function of images -- what observers might infer about someone based on first impressions and chance encounters on the streets and other public venues. There emerged a new image-consciousness, and a preoccupation with mastering and perfecting one's social appearance. New technologies and media -- especially photography -- heightened the sense of being an image in the eyes of others. There was a potential reward for the scrupulous management of personal image -- respect, upward mobility and the possibility of social and material success.

It was in this social environment that the "right to privacy" was born. The 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis, "The Right to Privacy," decried information about personal affairs "spread broadcast in the columns of the daily papers."
Marion Manola (OSU)

The article accused the press of "invading privacy" when it revealed a person's emotions, activities, and idiosyncrasies before a public audience, even though such matters were not "private" in the sense of being secret or concealed. Newspapers could invade privacy when they published a person's photograph, even if it was taken in a public place. The article discussed the recent case of Manola v. Stevens, involving photographs of an actress taken without her permission as she appeared on the stage. Such publications were said to "invade privacy" because, in presenting the subject out of context and before an audience not of her own choosing, they impaired her ability to construct her public image as she wished.

Warren and Brandeis proposed a right to privacy that would allow people to recover damages for emotional distress when the press interfered with one's public image in an egregious, unwarranted manner. Privacy's domain, they wrote, was the lofty realm of dignity, the soul, and the "spirit." The right to privacy also had a more earthly, instrumental aspect. In an increasingly image-oriented culture, unfavorable, embarrassing depictions in the press were damaging in that they undermined a person's ability to cultivate one's image and maximize one's fortunes and social potential. The right to privacy was rooted in growing concerns with public image in American social life.

Monday, October 5, 2015

Littleton-Griswold Prize to Dayton and Salinger!

The AHA has announced its 2015 prize winners.  The Littleton-Griswold Prize "for the best book in any subject on the history of American law and society, broadly defined" goes to Cornelia H. Dayton, University of Connecticut, Storrs, and Sharon V. Salinger University of California, Irvine, for Robert Love’s Warnings: Searching for Strangers in Colonial Boston (University of Pennsylvania Press, 2014).  Congratulations!
The Littleton-Griswold Prize in US law and society, broadly defined
Cornelia H. Dayton (Univ. of Connecticut, Storrs) and Sharon V. Salinger (Univ. of California, Irvine), Robert Love’s Warnings: Searching for Strangers in Colonial Boston (Univ. of Pennsylvania Press, 2014)
- See more at:

Rethinking Protest Music

[We have the following announcement.]

Rethinking Protest Music, October 24–25, 2015, Bowl 016, Robertson Hall, Princeton University, Princeton, NJ.

Few moments seem as ripe as the present for a reconsideration of protest, protest cultures, and music’s role in both. The past decade has witnessed a notable surge in protest activity across the globe, as witnessed in the Red Shirt rebellion in Thailand, the Arab Spring uprisings, post-Fukushima anti-nuclear protests in Japan, the Greek anti-austerity movement, the Occupy movement, the Gezi Park protests in Turkey, the Euromaidan movement in the Ukraine and, most recently, the “Black Lives Matter” movement in the United States. The inventiveness and ingenuity with which activists have mobilized music and related sonic practices within these and other recent protest movements point to ways in which the familiarity of this object of inquiry might profit from its defamiliarization, as much in theory as in practice. This conference gathers scholars from a range of disciplines to reexamine the place of music and sound in protest, with a view toward generating fresh perspectives on this subject.

Stack on Goodnow, Freund, Wyman and the Leg-Reg Course

Kenneth M. Stack, Vanderbilt Law School, looks back to the administrative law scholars Frank Goodnow, Ernst Freund, and Bruce Wyman for Lessons from the Turn of the Twentieth Century for First-Year Courses on Legislation and Regulation, Journal of Legal Education 65 (August 2015): 28-44.  He finds that (1) “these early scholars’ arguments for administrative law, made a century or more ago, add further urgency to adoption of a first-year leg-reg course today”; (2) their writings provide "a vantage point on the material to be covered in a leg-reg course”; and (3) that the objections they faced help explain “the continued wariness about a first-year leg-reg course in a jurisprudence for which the case method is the privileged pedagogy."

Entin on the Curious Case of the Pompous Postmaster

Among the contributions to the symposium Executive Discretion and the Administrative State in the Case Western Reserve Law Review 65 (2015): 891-1199, is The Curious Case of the Pompous Postmaster: Myers v. United States (pp. 1059-81) by Jonathan L. Entin, Case Western Reserve University.

An Anthology of Alabama Legal History

Quid Pro Books announces the publication of New Field, New Corn: Essays in Alabama Legal History, which the press describes as “an anthology of research papers that explore a range of topics from the rich legal history of the state of Alabama and its influential legal and judicial figures.”  It is edited by Paul M. Pruitt, Jr., Special Collections-Collection Development Librarian, Bounds Law Library, University of Alabama School of Law.  Here is the TOC:

Bryan K. Fair’s Foreword: “Critiquing Our Present, Interrogating Our Past”
Paul M. Pruitt, Jr.’s Introduction: “Alabama Legal History as a Field of Study”
Warren Hoffman: “Developments of the Enclosure Movement in Alabama: Disrupting the Free Roaming”
Paul Rand: “Flush Times in the Chancery: A Brief Note on the History of Equity and Trusts”
Helen Eckinger: “The Militarization of the University of Alabama”
Eddie Lowe: “Economic Growth in Blount County: Attorneys, Companies, and Cases”
Mike Dodson: “Pioneers in Alabama Legal History: A Firm Understanding of the History of Alabama”
Courtney Cooper: “A Man in a Boy’s Coat: The Evolution of Alabama’s Constitutions”
Deirdra Drinkard: “The Uniform Beneath the Robe”
Ellie Campbell: “The ‘Breakthrough Verdict’: Strange v. State

Here are two endorsements:

“Alabama legal history can be surprising. Usually, this history is identified with dominant one-party politics, slavery, racial segregation, and limited social welfare. Paul Pruitt’s collection of young lawyers’ research reveals a new field. It extends out from legal subjects, embracing new perceptions of law in society across Alabama history. The collection rests on broad research. Lawyers working in diverse fields have produced Alabama legal history that sets a new standard.”
— Tony Freyer

New Field, New Corn presents eight new essays on Alabama legal history from the pre-Civil War era through the Civil Rights era. These elegant and novel chapters survey a broad spectrum, from economics, race, education, and professional concerns of lawyers, to plain old legal doctrine, to show how those variables affected the state’s development. These essays reveal why we need intensive studies of American law at the state and county level in the 19th and 20th centuries. For they demonstrate that law is embedded in our culture. These invite many other studies, from the county level on up, in other states, to demonstrate how law lies at the center of nation’s history. They reaffirm my faith that there are many, many fascinating stories left to tell about our nation’s journey towards fulfilling the promises of law.”
— Alfred L. Brophy
Judge John J. Parker Distinguished Professor of Law
University of North Carolina–Chapel Hill
Author, Reparations: Pro and Con (2006) and Reconstructing the Dreamland (2002) 

Mirow's "Latin American Constitutions"

M. C. Mirow, Florida International University College of Law, has published Latin American Constitutions: The Constitution of Cádiz and its Legacy in Spanish America, with the Cambridge University Press:
Latin American Constitutions provides a comprehensive historical study of constitutionalism in Latin America from the independence period to the present, focusing on the Constitution of Cádiz, a foundational document in Latin American constitutionalism. Although drafted in Spain, it was applied in many regions of Latin America, and deputies from America formed a significant part of the drafting body. The politicization of constitutionalism reflected in Latin America's first moments proved to be a lasting legacy evident in the legal and constitutional world of the region today: many of Latin America's present challenges to establishing effective constitutionalism can be traced to the debates, ideas, structures, and assumptions of this text. This book explores the region's attempts to create effective constitutional texts and regimes in light of an established practice of linking constitutions to political goals and places important constitutional thinkers and regional constitutions, such as the Mexican Constitution of 1917, into their legal and historical context.
Here is the table of contents:

1. Constitutional limbo in early nineteenth-century Latin America
2. The Constitution of Cádiz: America's other first constitution
3. The colonies speak to the metropole: transatlantic constitutionalism
4. The failures and successes of metropole constitutionalism
5. Latin American constitutionalism after independence
6. The legacy of the Constitution of Cádiz: twentieth-century Latin American constitutionalism
7. Constitutional promise: Latin American constitutionalism today

Sunday, October 4, 2015

Sunday Book Roundup

From The Dallas Morning News, there's a review of Will Haywood's Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America (Knopf).

The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain by Ilya Simin (University of Chicago Press) is reviewed in The New Rambler.
"As a committed libertarian and an up-and-coming scholar of property and constitutional law, Somin was ideally situated to serve both as the leading conservative academic commentator on the case and as a participant in the emerging backlash. Somin’s work on eminent domain has consistently straddled these two worlds of scholarship and property rights advocacy. He has written scores of blog posts on the issue. He has testified before the Senate Judiciary Committee, where he criticized then-Supreme Court nominee Sonia Sotomayor for her vote in a post-Kelo eminent domain case while she was a judge on the Second Circuit. But he has also written several well regarded law review articles on Kelo. And now, in his new book, The Grasping Hand: Kelo v. New London & the Limits of Eminent Domain, Somin offers the most comprehensive review to date both of the case itself and of the various legal reforms the backlash against it has sparked. The book is something of a ten-year retrospective of Somin’s own intellectual engagement with the issue of eminent domain."
Robert L. Benson's posthumous Law, Rulership, and Rhetoric: Selected Essays of Robert L. Benson (University of Notre Dame Press) is reviewed on H-Net.

Thomas Borstelmann's 1970s: A New Global History from Civil Rights to Economic Inequality (Princeton University Press) is also reviewed on H-Net.

From The New York Times, a review of The Gay Revolution: The Story of the Struggle by Lillian Faderman (Simon & Schuster).
"Yet Faderman’s book populates even the familiar corners of gay history with new and vivid life. Perhaps the most obvious contribution is the equal attention it gives to women. Faderman is often called a “lesbian historian,” based on her distinguished work in the field, notably “Surpassing the Love of Men” (1981) and “Odd Girls and Twilight Lovers” (1991). She brings the heft of a career to bear here — of the more than 150 interviews she draws on for this new book, some date back decades, like her 1987 interview with the lesbian pioneers Del Martin and Phyllis Lyon. An expert in lesbian history certainly has an advantage in writing a truly balanced account of the movement as a whole, given that such accounts have often heavily favored men."
And, from The Federal Lawyer, there is a review of Michael Bryon's Submission and Subjection in Leviathan: Good Subjects in the Hobbesian Commonwealth (Palsgrave Macmillan).

Saturday, October 3, 2015

Weekend Roundup

  • Adam Goodman (University of Southern California) has compiled a list of all the events marking the 50th anniversary of the signing of the 1965 Immigration Act
  • Recent guest blogger Mitra Sharafi (University of Wisconsin) recently spoke to the BBC News about Parsi matrimonial courts.  
  • Via the Faculty Lounge, we hear that "C-SPAN begins a twelve-part television series on landmark Supreme Court decisions next week, kicking off with Marbury v. Madison."  Also: Dred Scott, Slaughterhouse, Lochner, Youngstown, Baker v. Carr and so on.  More.
  • As we said, it’s hard to keep up with all those Constitution Day talks. The Image of Liberty was Steven Douglas Smith’s at the University of San Diego School of Law.  It “compares the state of constitutional governance today to that of the Roman Empire, as famously discussed by the historian Edward Gibbon, and discusses alternative strategies that might be contemplated by those who believe that current American governance does not conform to the requirements of the historical Constitution.”
  • The National Archives in conjunction with Consource continues its conversation with US Supreme Court justices, moderated by Akhil Reed Amar, Yale Law School, with Justice Samuel Alito, at 7PM on Thursday, October 29, in the William G. McGowan Theater in the Archives 1 Building. More.
    Sean Wilentz responds to his critics
  • ICYMI: On September 29, Sara Mayeux, the Sharswood Fellow at the University of Pennsylvania Law School, presented in the University of Michigan’s Legal History Workshop on “The ‘Progressive’ Public Defender (and Its Alternatives) in Los Angeles, 1914-1949.”  H/t: Legal Scholarship Blog
  • This past week at The Junto: a roundtable on narrative in historiography.
  • Update: Here, via H-Law, is an interesting ISO for “a third presenter and a commentator to round out our panel proposal for next year’s Conference on Policy History. The panel will focus on various aspects of regulatory diffusion across political borders." More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Norma Basch: An Appreciation by Sarah Barringer Gordon

[We are postponing the Weekend Roundup until later today for this appreciation of Norma Basch, Professor Emerita Rutgers University-Newark, by Sarah Barringer Gordon, Arlin M. Adams Professor of Law and Professor of History, University of Pennsylvania. We're grateful to Professor Gordon for this very thoughtful post and for word of a memorial service for Professor Basch, which will be held at 2 p.m., Sunday, October 25, at the Village Temple, 33 E 12th St, New York.  There will also be a book at the Studies in Legal History book table at the ASLH meeting, where those who wish to can include their remembrances of Norma and condolences for her family.]

Norma Basch, a founder of the modern field of legal history and professor of history at Rutgers University-Newark for 25 years, from 1979 to 2004, and a regular at the NYU Legal History Colloquium since the 1980s, died on September 29 at the age of 81.  She was the author of field-defining work in legal history, including In the Eyes of the Law:  Women, Marriage, and Property in Nineteenth Century New York (Ithaca: Cornell University Press, 1982) and Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999). She was also a fine essayist and reviewer, serving for many years on the Journal of American History editorial board, and contributing frequently to Reviews in American History, as well as publishing more than thirty articles, comments, and book reviews in leading peer-reviewed journals.  Last but not least, Norma was a friend and mentor to many of us in the field of legal history.  She was generous with her time, and had a wry wit that delighted her friends and interlocutors.

Basch began her academic career in 1979, with an article in Feminist Studies titled “Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America.” The law of marriage became her central focus, and in this first article she debuted the sharp and articulate style of writing that became her hallmark: “If the legal oneness of the husband and wife was a common law axiom, the legal invisibility of the wife was its corollary.” (p. 347).  When In the Eyes of the Law was published three years later to great acclaim, it became clear that Basch understood how the common law rule of marital unity could survive the passage of New York’s 1848 Married Women’s Property Act.  The essential conservatism of the law (and those who administered it) was to blame, as the law did not address directly core doctrines of the common law of coverture, and courts held those doctrines survived the legislation.  Thus Basch successfully challenged Mary Beard’s 1946 classic Woman as a Force in History, showing that Beard’s emphasis on equity law as a refuge for married women elided the all important survival of marital unity, which sharply limited the scope and sweep of equity jurisprudence.  And yet, as Basch shows, a shift did occur, even though the revolution was stopped at the courthouse door.  In political culture, subtle changes shifted the conversation toward concepts of equality as a way of thinking about women and the state – the early woman’s rights movement, for example, marked the passage of the property act as a significant advance.

Basch’s second book, Framing American Divorce, was a pathbreaking vision of how to do legal history.  In three separate sections (titled rules, mediations, and representations), Basch first explored the complex and fascinating ways that divorce in the first century of American national history was intimately linked to the Declaration of Independence, which "at once explained, decreed, and sanctified a divorce from the bonds of empire; and from the bonds of empire to the bonds of matrimony, it was but a short conceptual step." (p. 25)  In careful case studies of the very different legal regimes in New York and Indiana, moreover, Basch showed how deeply divorce was tied to assertions of state power over marriage, in addition to the expression of traditional male as well as nascent female authority within marriage.   The deep political and legal debates over divorce, in other words, did not fit neatly into a feminist or patriarchal mold.  All too frequently, a wife initiated divorce proceedings not to protect themselves from their husbands, but to formalize her husband’s informal desertion of her.  And finally, she explores popular culture, including trial pamphlets and fiction that pulled in different directions, respectively increasing the visibility and desirability of liberal divorce and raising the tone of shame and defeat associated with it.  This creative and sophisticated exploration of divorce in multiple settings across time integrated in fresh and lasting ways the study of divorce as both a cultural and social matter, as well as a legal process.

One particularly notable outgrowth of this second project is a 1993 article in the Journal of American History on the complex divorce of President Andrew Jackson’s wife Rachel from her first husband, and the role that the story of the bungled divorce played in the bitter partisan politics of the 1828 presidential election.  Desertion, seduction, and adultery, Basch showed, played well in an atmosphere of increased voter participation and the growth of party organizations, especially given the proliferation of newspapers.  As Basch elegantly described the mix, the 1828 election was a “journalistic and political watershed,” combined with an early and powerful example of “organized manipulation of a sexual scandal.” (p. 892) As supporters of the two candidates fought over whether Rachel and Andrew Jackson were licentious and unprincipled (and thus Jackson was unfit for public office, per the Adamsites), or the “domestic peace” and privacy of the generous and genuine Old Hickory had been unduly invaded and his wife driven to an early grave (per the Jacksonites).  The success of the hero of New Orleans, Basch cautions, should not be interpreted simply, but rather as a tale of the gradual erosion of the metaphorical association between household and polity, to note just one of several important insights Basch draws from the story.

Thus Basch leaves a powerful legacy of sharp prose, careful research, and keen analysis of women’s lives and legal experience in the nineteenth century.  She will be greatly missed.

Friday, October 2, 2015

Norma Basch (1934-2015)

[Over at H-Law, R. B. Bernstein has reported the sad news of Norma Basch’s death.  The New York Times obituary is here.  We will be posting an appreciation as early as first thing tomorrow, but in the interim here is an announcement from Jan Ellen Lewis, Dean of Faculty and Professor of History, at Rutgers-Newark College of Arts and Sciences, where she was Professor Basch’s colleague.]

It is with deep sadness that we report the death yesterday afternoon of Professor Emerita of History Norma Basch, who taught at Rutgers University-Newark from 1979 until her retirement in 2004.  The publication of her landmark book In The Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York, vaunted her to the forefront of the emerging field of women's legal history, a position she continued to occupy throughout her career.  Several months before her passing, she signed onto the amicus brief filed by Historians of Marriage and the Family and the American Historical Association and cited in the majority opinion in Obergefell v. Hodges, the Supreme Court case that validated marriage equality.  Her major works, both her first book and her second, Framing American Divorce: From the Revolutionary Generation to the Victorians, are listed in the bibliography to the amicus brief and cited in its first footnote, a testament to the abiding impact of her work.

A native of Worcester, MA, Professor Basch moved to New York to attend Barnard College, from which she received her B.A. in 1956, and where she met her husband Sheldon, then a student at Columbia.  Discouraged as a woman from pursuing graduate studies at that point, she instead devoted herself to her children, Rachel and Fred, not entering graduate school until they were in school, by which time the feminist movement had made advanced studies for women less anomalous.  She received her Ph.D. from New York University in 1979, with her dissertation winning the university's Bayrd Still Prize for the best dissertation in history that year.

Basch remained a feminist, both personally and professionally, throughout her life, inspiring students, colleagues, and other scholars with the acuity of her insights and analysis and the passion of her commitment.  She wrote with unusual clarity and panache, illuminating complex issues in the history of the law with compelling stories of women and men who shaped legal practices and pushed at the law's constraints to accommodate their needs and interests and the intricacies of their remarkable lives.  Widely recognized as a leader in her field, Basch held a number of leadership positions in the American Society for Legal History; she served as well on the editorial boards of the Journal of American History and the Journal of the Early Republic. Her work was supported by fellowships from the Woodrow Wilson Foundation, the National Endowment for the Humanities, the American Council of Learned Societies, and the American Antiquarian Society. Three of her articles were awarded prizes, one each from the Organization of American Historians, the Berkshire Conference of Women's Historians, and the Society for Historians of the Early American Republic.  Framing American Divorce won the Scribes Book Award, given out annually by the American Society of Writers on Legal Subjects.  Basch also served a term as Chair of the Department of History at Rutgers University-Newark, providing outstanding leadership during a period of growth.

Norma Basch is survived by her husband Sheldon; her daughter Rachel, a novelist; her son Fred, an architect, and his wife Sue; and three grandchildren, all of whom made her enormously proud.

Update:  A memorial service will be held at 2 p.m., Sunday, October 25, at the Village Temple, 33 E 12th St, New York.  There will also be a book at the Studies in Legal History book table at the ASLH meeting, where those who wish to can include their remembrances of Norma and condolences for her family.

Ted Kennedy Oral History Project Released

Sen. Edward M. Kennedy (1990)
On Wednesday, the Miller Center for Public Affairs at the University of Virginia and the Edward M. Kennedy Institute announced the release Ted Kennedy Oral History Project.  A complete list of interviewees is here.  Of special interest to legal historians, because of their insight into Senator Kennedy and deregulation, are interviews by Justice Stephen Breyer (here and here) and by David Boise.

Call for Submissions: Journal of Constitutional Studies

Via H-Law, we have the following call for submissions:
Constitutional Studies invites submissions. The journal seeks work of the highest quality that expands our understanding of constitutional democratic institutions and the bases for their legitimacy, practices of constitutional self-government, formal and informal constitutional systems, approaches to constitutional jurisprudence, and related subjects. We welcome submissions from a comparative, empirical, historical, normative, or analytic perspective from scholars across the range of the social sciences and humanities.
Interested authors should visit our website at <> for instructions on formatting and submission. Potential articles should be no more than 10,000 words.  All submissions will be subjected to double-blind peer review.  Questions about the journal or submissions can be sent to <>.
The journal is supported by generous funding from the Bradley Foundation and the Center for the Study of Liberal Democracy and published by the University of Wisconsin Press.

Howard Schweber, Editor
Jennifer Brookhart, Managing Editor

Magna Carta: The View from Hong Kong

[We have the following announcement.]

The three Hong Kong law schools will be organising a joint conference on Saturday, 31 October 2015 to commemorate the 800th anniversary of Magna Carta. The conference entitled “Magna Carta and the Rule of Law in Hong Kong” will be held at the Graduate Law Centre of the Chinese University of Hong Kong.

Speakers from all over the common law world will be presenting on the historical importance of Magna Carta and its importance in Hong Kong today. Speakers include Justice Bokhary, Professor Christopher F. Forsyth (University of Cambridge), Professor David Seipp (Boston University), Professor Catharine MacMillan (University of Reading), and Mr. Philip Dykes (Senior Counsel). Noted academics from all three law schools will also present papers at the conference.

Please contact Noel Chan ( of Chinese University of Hong Kong if you would like more information or would like to register for this event.

Manion and Careceral Culture and Working Women in Early America

We’ve seen an announcement of Capitalism, Carceral Culture, and the Domestication of Working Women in the Early American City, by Jen Manion, Connecticut College.  This is a meeting of Boston Seminar on the History of Women and Gender and will convene on Thursday, Oct 8, 2015, at 5:30 pm, in the Arthur and Elizabeth Schlesinger Library on the History of Women in America.  Cornelia Dayton, University of Connecticut, will comment.

The announcement explains:
Ideas about race, gender, and sexuality were driving forces in the transformation of both manufacturing and punishment in the nascent years of industrial capitalism. Arrest and imprisonment was an occupational hazard for hucksters, sex workers, and tippling house operators, while the penitentiary imposed ideals of femininity defined by whiteness, domesticity, and submission on the poor working women behind its walls.

The Boston Seminar Series on the History of Women and Gender—cosponsored by the Massachusetts Historical Society and the Schlesinger Library at the Radcliffe Institute for Advanced Study—offers scholars and students an opportunity to discuss new research on any aspect of the history of women and gender in the United States, without chronological limitation.

The seminar series includes four meetings that will take place during the 2015–2016 academic year, each revolving around the discussion of a precirculated paper. Sessions open with remarks from the essayist and an assigned commentator, after which the discussion is opened to the floor.

Registration for the series is required. Registered participants may access the papers online at the Massachusetts Historical Society website.  For more information, please call 617-495-8647 or email

Laws of Image

I'm very happy to have the opportunity to share my work on the Legal History Blog this month. I was invited to blog because of the recent publication of my book, Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). The book offers a cultural and legal history of privacy and libel law in the U.S. from the late 19th century to the present, and it reframes those areas of law by linking them to what I describe as Americans' image consciousness: our concern with our looks, public personas, and the impressions that we make. In the book, I describe libel and privacy law as "laws of public image": laws that protect our ability to control and defend our public images, and to feel good about our images and public presentation of self. In my posts this month, I'll share some highlights from the book.

The book starts with these anecdotes:

In 2013, a woman found that her daughter's picture had been used in an ad for a local ice cream store, without the daughter's or the mother's consent. Her daughter had simply "liked" the ice cream store on Facebook. The woman was outraged and embarrassed.

In 1948, the Saturday Evening Post ran a critique of cabdrivers in Washington, D.C. that accused them of cheating their customers. A photograph appeared with the article that depicted a woman cabdriver, Muriel Peay, talking to the article's author on the street. The caption didn't name her, and the article didn't refer to her. Although the woman had consented to be photographed, she didn't know that the picture would be used in an article on cheating cabbies.

Angry and humiliated, these people could have done any number of things. One thing they did was to initiate lawsuits.

In the past hundred years, Americans have turned increasingly to the law to help them defend and control their public images. The twentieth century saw the creation of a "law of public image," and the phenomenon of "personal image litigation."

Under these laws of image, you can sue if you've been depicted in an embarrassing manner, even if no one thinks less of you for it. If a newspaper or website publishes your picture in a way you find offensive, you can, under circumstances, receive damages for your sense of affront -- for the outrage that someone has taken liberties with your image and interfered with the way you want to be known to the world.

Why does the law in the United States acknowledge rights to one's image? As I'll explain in forthcoming posts, the development of image law is part of a broader story of how Americans became fascinated, even obsessed with manipulating, perfecting, and reflecting on their own personal images.

Thursday, October 1, 2015

CFP: Italian Society for Law and Economics

[We have the following announcement.]

The Italian Society of Law and Economics (ISLE - SIDE) welcomes submissions of papers on any topic regarding the Economic Analysis of Law for its 11th annual conference to be held in Napoli (Italy) on December 18-19, 2015, at the Department of Economic Science of the University of Naples - Federico II.

ISLE invites contributions in all aspects related to Law and Economics, such as Bankruptcy, Behavioural Law and Economics, Competition Policy and Antitrust Law and Economics, Corporate Governance and Corporate Law, Criminal Law, Environmental Law and Economics, Constitutional Law and Economics, Family Law and Economics, History of Law and Economics Thought, Institutional and New-Institutional Economics, Intellectual Property, Judicial Decision-Making, Law & Social Norms, Law and Finance, Regulation, Securities Law, and Taxation.

Submissions must be original and not published elsewhere. People from the Local Organizing Committee and the Advisory Board will select the papers to be presented at the Conference. Priority will be given to completed papers. Please note that, as in previous years, both Italian and English submissions are welcome. The program will guarantee at least one English session for each time slot. A draft or completed paper shall be submitted online through our website.

Paper submission deadline: October 2, 2015
Communication of acceptance: October 16, 2015
Final papers due by: November 27, 2015
Registration before: December 4, 2015
Conference: December 18-19, 2015

Start here to submit a paper to this conference.

Magna Carta: The Octocentennial that Keeps on Giving

[We have the following announcement of an event to take place later today.]

Donald T. Critchlow, the Director of Arizona State University's Center for Political Thought and Leadership, announces] a symposium celebrating the Magna Carta and Its American Legacy on the ASU Tempe campus in the Memorial Union Pima Room (lower level) from 6:30 - 8:30 pm.

This two-hour symposium will analyze the relevance of the Magna Carta both as a historical document and as a catalyst in the development of modern-day American legal thought. The Magna Carta's economic, political, and legal aspects will be debated and illustrated by outstanding writers and scholars from diverse fields. Please join us for this historic anniversary of one of the most important documents in human history.

Free and open to the public.  Refreshments will be served.

6:00-6:30pm:  Light refreshments served
6:30-6:45pm:  Welcome and Introduction
6:45-7:15pm:  "The Importance of Magna Carta For Today" presented by Henry Clark, Visiting Professor, Political Economy Project, Dartmouth College
7:15-7:30pm:  "The Magna Carta: A Tax Professor's Perspective" presented by Adam Chodorow, Willard H. Pedrick Distinguished Research Scholar, Sandra Day O'Connor College of Law, ASU
7:30-7:45:  "Restraints on Executive Authority: Magna Carta and the U.S. Constitution" presented by Myles Lynk, Peter Kiewit Foundation Professor of Law and the Legal Profession, Sandra Day O'Conner College of Law, ASU
7:45-8:30:  Questions and Discussion

Gudridge on Holmes and Moore v. Dempsey

Patrick Gudridge, University of Miami School of Law, has posted Past Present, an essay on Justice Oliver Wendell Holmes and Moore v. Dempsey:
This paper has turned out (I have come to realize) to be the beginnings of a much more ambitious exploration of the Holmes opinion in Moore v. Dempsey and the question of what we might make of it. Moore, I want to argue, is an under-appreciated gateway, points to a notably profound and sober passage back and forth across a longer, accumulating run of pronouncements and possibilities within American constitutional law “writ large” (borrowing Larry Tribe’s apt phrase).

Moore addressed events in Phillips County, Arkansas, beginning in 1919 -- the “Elaine Massacre,” white killings of African American tenant farmers and their families consequent to a union organizing effort, deaths (we now estimate) of maybe 243 African Americans and one to five white participants: perhaps the single bloodiest incident in “the war of race” that raged throughout the period after Reconstruction running well into the twentieth century. The Supreme Court’s ruling, as Holmes constructed it in his majority opinion in Moore, was in the end a plainly aggressive intervention in the Phillips County outrage, demanding federal district court full review of local murder prosecutions of African Americans, but as written it looks to be near to microscopically terse. Holmes of course is an uncertain, controversial, and difficult writer for us now. But the opinion taken as it is, I think, quite surprisingly opens up, travels back and forth across a wide “past” (further and wider than this draft shows), and an emphatic approach to constitutional law still available for use in what we think of as “present” (in more ways than this draft suggests).

Note: Except for some introductory comments, this essay was put together initially for purposes of participating in Michael Froomkin’s JOTWELL conference last fall. JOTWELL is a remarkable invention, well worth a visit to its overarching website.

When Omission Matters: Diverse Perspectives on the Legal History of the Administrative State

Last week we noted Mike Konczal's recent essay, "Hail to the Pencil Pusher," which appeared in the Boston Review. Konczal, a fellow at the Roosevelt Institute, admirably synthesizes academic work by Bill Novak, Jerry Mashaw, Dan Ernst, Anuj Desai, Jeremy Kessler, William Eskridge, Jr., John Ferejohn, and Sophia Lee to demonstrate "American bureaucracy's long and useful history." Konczal also explains clearly and concisely why this research ought to matter to the general public. Most notably, in his view, it challenges an alternative history, popular among some contemporary conservatives, in which American bureaucracy is a recent and generally harmful invention.

I was delighted to see someone outside of academia place a spotlight on some of our field's most exciting work. I could say many more good things, both about the essay and the research that informed it. (Read it! All of it!) Instead -- and without appearing ungrateful, I hope -- I am going to use Konczal’s essay to provoke some conversations that I think legal historians should be having. Specifically, I want to talk about omission and gender. Of the authors discussed, only one (Lee) is a woman. Does that matter? If so, why? Review essays needn't be comprehensive, of course, especially in this type of venue, but as I explain after the jump, I think we would do well to at least reflect on gender disparities when we spot them.

Welcome, Samantha Barbas!

Samantha Barbas (credit)
We are delighted to have with us as a guest blogger this month Samantha Barbas, Associate Professor of Law at SUNY Buffalo Law School. Professor Barbas holds a Ph.D. in American history from the University of California, Berkeley, and a J.D. from Stanford Law School. She was previously an assistant professor of history at Chapman University, a visiting professor of history at U.C. Berkeley, and a lecturer at Arizona State University. She clerked for Judge Richard Clifton on the Ninth Circuit Court of Appeals in Honolulu, Hawaii.  She is the author of two previous books: Movie Crazy: Fans, Stars, and the Cult of Celebrity (2001) and The First Lady of Hollywood: A Biography of Louella Parsons (2005).

She is also the author of Laws of Image: Privacy and Publicity in America, which is just out from the Stanford University Press.
Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights.

Laws of Image tells the story of how Americans came to use the law to protect and manage their images, feelings, and reputations. In this social, cultural, and legal history, Samantha Barbas ties the development of personal image law to the self-consciousness and image-consciousness that has become endemic in our media-saturated culture of celebrity and consumerism, where people see their identities as intertwined with their public images. The laws of image are the expression of a people who have become so publicity-conscious and self-focused that they believe they have a right to control their images—to manage and spin them like actors, politicians, and rock stars.
Endorsements from Lawrence Lessig, Hendrik Hartog, and Stuart Banner appear after the jump.  Welcome, Samantha!

Wednesday, September 30, 2015

Jewish Legal Theorists in the 19th and 20th Centuries

[Via H-Law we have the following announcement.]
The Simon Dubnow Institute for Jewish History and Culture at Leipzig University is planning a new research group centered on the biographies and life work of nineteenth and twentieth century Jewish legal theorists. Within the research group's framework, the Institute will sponsor three closely aligned, interdisciplinary studies of individual jurists. We welcome project proposals from interested scholars.
The biographies are meant to address problems of cultural and legal history and be oriented towards the chronology of each jurist's œuvre. The projects should place special emphasis on the interaction between law and experience, with both dimensions explored through a juxtaposition of the biographies and work of – prominent and still hardly known – legal theorists. Of special interest here are the influences of political and historical constellations, social and life experiences, and religious background on a jurist's particular legal understanding. Importantly, we discourage approaches meant to demonstrate simple causalities between work and events; rather, we invite approaches grounded in both a careful distinction and simultaneous connection between origins, biography, and conceptual development.
We encourage inquiries oriented toward a complex of shared biographical, professional, and theoretical features: Were there, for example, legal areas for which the Jewish jurists felt special affinity? Can we identify legal tendencies of a theoretical-philosophical nature that were perceived as particularly compelling? In what ways did the Jewish legal theorists stamp the development of relevant schools and juridical realms? Did specifically Jewish experiences contribute to the formation of particular legal concepts? And crucially, to what extent did legal concepts and styles change with transformations in the historical, political, social, and cultural environment?
Our research group wishes to explore such questions against the backdrop of various breaks that were decisive for nineteenth and twentieth century general history and Jewish history in particular. These include the emergence of ethnically homogenizing nation states from the bankrupt old empires after World War I, the transfer of power to Hitler, the beginning of the postwar period, and the movements of migration and flight catalyzed by these developments.
In the framework of a project workshop, there will be a possibility of presenting selected project outlines in the first quarter of 2016.
We invite interested scholars to submit supporting documents, including a vita and a three-page project outline, to:
Simon Dubnow Institute for Jewish History and Culture
at Leipzig University
Professor Dr. Raphael Gross
Goldschmidtstraße 28
04103 Leipzig
or per email to Dr. Jan Gerber (
Application deadline: 1 November 2015
The Simon Dubnow Institute places special emphasis on equal opportunity in hiring and research support; applications from qualified women are thus particularly welcome.
Contact Info: 
Simon Dubnow Institute for Jewish History and Culture
at Leipzig University
Professor Dr. Raphael Gross/Dr. Jan Gerber
Goldschmidtstraße 28
04103 Leipzig
Contact Email:

Stephens on Maori Constitutionalism

Māmari Stephens, Victoria University of Wellington, has posted “To Work Out Their Own Salvation”: Māori Constitutionalism and the Quest for Welfare, which appeared in the Victoria University Wellington Law Review 46 (2015):1-30:
New Zealand recently celebrated 75 years of the implementation of the welfare state in 1938. While debate continues about the nature and effectiveness of state welfare provision, welfare is arguably a matter of constitutional concern in New Zealand. Further examination of New Zealand legal history also shows that the welfare of Māori is indeed a matter of deep constitutional concern to Māori, who have consistently sought legislative and extra-legislative ways to have public power used for broad Māori welfare concerns. It is possible to identify a kind of Māori welfare constitutionalism at work, that is arguably in tension with the thinking and practice that produced the welfare state.

Ms. Peppercorn Considers: Various Issues for the First Time Presenter

October is nearly upon us and we are all gearing up for ASLH! One of the best things about this meeting, and about the Society more generally, is it's openness to graduate students and junior scholars. In this installment of our occasional advice column, "Ms. Peppercorn Considers," our wise colleague takes up various issues for the first time presenter. 
Dear Ms. Peppercorn:

I am a first time presenter at the 2015 ASLH annual meeting, and I have a few questions about how to prepare.  After all, we’re just weeks away from the big day!  In my one previous presentation at an in-house graduate conference at my university, I started with a little introduction of myself and my topic.  Is that too frivolous for ASLH?  Furthermore, how long should I plan to speak? Should I make a powerpoint?  And most important, what should I wear?


New Kid on the Block

Ms. Peppercorn's reply:
Dear NKotB:

Ms Peppercorn loves to SEE new scholars in the field making a presentation at ASLH.  It is a substantive and productive conference, and comments and questions deliver sharp-eyed critiques without the shellacking that Ms P has been distressed to see in some venues.

That said, frivolity is frowned upon, not just by your dedicated advice columnist, but by ASLH conference goers generally.  Thus Ms P recommends only the very shortest of introductions, perhaps to say that the paper you are presenting is part of your larger dissertation project.  But do NOT delay in getting to substance.  The selection process for papers and panels is competitive (unlike some other conferences which shall remain nameless) and the people who come to your panel want to here your argument and the evidence that supports it.   No dilly dallying!

One simply cannot compete with David Rabban.

In terms of a powerpoint, note that the Society has already answered this question for you: AV equipment will not be available at the 2015 conference.

Powerpoint slides, we want to add, are all too often just text that you will be saying anyway, which makes the presenter look like a business school or poli sci denizen.  Ms P counsels in the strongest terms against presentations of that ilk, even if they were allowed.

Finally, the matter of dress is one that legal historians generally do not spend much time on.  We tend to the more practical and less ostentatious side of things.  Jane Dailey and David Rabban set a high standard, to be sure, but the rest of us muddle along.  Ripped jeans might raise some eyebrows, as would shorts.  Bling of all kinds, too.

Ms P wishes NKotB the very best for this inaugural presentation among the good legal historians.  She also invites others in the field to add their mite to the discussion.
If would like to add your own words of wisdom, please do so in the comments. For other sage advice related to this topic, see Ms. Peppercorn's previous column on "How To Survive the Conference."