Friday, February 27, 2015

Ho on Criminal Law in the Tang Dynasty

Norman P. Ho, Peking University School of Transnational Law, has posted Understanding Traditional Chinese Law in Practice: The Implementation of Criminal Law in the Tang Dynasty (618-907), which is forthcoming in the UCLA Pacific Basin Law Journal 32 (2015).  Here is the abstract:    
The Tang dynasty (618-907) is regarded as one of China’s most powerful and cosmopolitan dynasties – its achievements in the areas of literature, culture, economic development, and empire-building have influenced subsequent dynasties. The area of legal development is also not an exception – the Tang Code, a penal code which was promulgated in its finalized form in 653 and is the oldest imperial Chinese legal code to survive to the present-day in its entirety – is regarded as an apex in the development of traditional Chinese law. Indeed, the Tang Code served as model penal code for later Chinese dynasties, and the philosophical spirit animating some its provisions continues to influence modern Chinese criminal law today. Given the importance of the Tang Code and the Tang dynasty more generally, it is not surprising that much has been written about the Tang Code and Tang law. Most scholarship, however, has tended to focus on the history of codification and, more specifically, the Tang Code itself – for example, studying its various provisions, the philosophical bases and justifications behind its various provisions, and so forth. Less scholarship has been done to understand how the Tang Code was actually implemented and applied in society and to answer questions such as whether the application of justice (as mandated by provisions of the Tang Code) was applied consistently. Drawing on and introducing various selected historical sources (many of which have never been translated to English), this Article attempts to address these questions and to discuss the implementation of law in traditional China as viewed through enforcement of criminal law and criminal procedure (as set forth in the Tang Code) in the Tang dynasty. This Article argues that the Tang Code seems to have been applied inconsistently in criminal law cases and that there appears to have been discrepancies between what the Tang Code required and how criminal law was actually implemented and enforced in Tang society. Officials tasked with deciding criminal law cases still appear to have had substantial discretion in implementing the Tang Code. These inconsistencies and discrepancies are perhaps a testament to the diversity of approaches for governance and regulation in the Tang, which is not surprising given the geographic size and diversity of the Tang empire. Finally, given the current Chinese leadership’s proclivity for citing what it considers politico-legal models in the Chinese past, it is an especially important time to enhance and better our understanding traditional Chinese law – this Article is ultimately based on the premise that we can only arrive at a full understanding of traditional Chinese law by looking at the application of historical statutes and legal provisions in practice in actual cases, and not simply focusing on the statutes and legal provisions in a vacuum.

Barbarous Terms, Ill Explained

Edmund Burke (credit)
From Edmund Burke, who entered Middle Temple in 1749, via David Bromwich, Alan Ryan and the New York Review of Books, here is a challenge to all would-be authors of legal treatises:
The study of our jurisprudence presented to the liberal and well-educated minds, even in the best Authors, hardly any thing but barbarous terms ill explained. . . .  Young men were sent away with an incurable, and if we regard the manner of handling rather than the substance, a very well-founded disgust.

Knapp on the Judicialization of Police

Aaron T. Knapp, a doctoral candidate in Boston University’s Department of History, has posted The Judicialization of Police, which is forthcoming in Critical Analysis of Law 2 (2015).  Here is the abstract:    
This article contends that the origins of judicial review under the United States Constitution lay not in the common law, nor in “judicial duty,” natural law, popular sovereignty, or written constitutions, but rather in police powers handed down from the monarchial tradition conceived as a constituted government’s inherent prerogative of self-preservation. Nationalists at the Federal Convention in 1787 wanted to give Congress such a prerogative in the form of an unqualified preemptive negative on state legislation. They did not succeed. Yet with the adoption of an independent supremacy clause, the superintending police powers originally embodied in the congressional negative devolved on the courts and, ultimately, the Supreme Court. Questions remained whether the Court could in fact exercise such powers consistent with Article III’s jurisdictional limitations and, later, the Eleventh Amendment’s bar on state suability. With these questions in mind, the analysis devotes special attention to the first case in which the Supreme Court struck down a state law under the Supremacy Clause: Ware v. Hylton (1796). The article concludes, however, that the judicialization of police at the American founding would find its most potent historical expression in the Court’s prospective remedial powers over state enforcement officials first reserved by the Marshall Court and later confirmed in Ex Parte Young (1908).

Di Robilant on The Populists' Property Law

Anna Di Robilant, Boston University School of Law, has posted Populist Property Law.  Here is the abstract:    
This article tells the story of the National Reformers’ Association and the National Farmers’ Alliance. These 19th century American movements represented the “little guys” – workers and farmers – and used their folk legal imagination to develop new property forms that would solve their most pressing needs by improving access to key economic resources. Their stories are worth remembering for three reasons: First, they cast light on the phenomenon of popular law making, an aspect of the history of property law that legal historians have neglected. Second, they call into question the traditional narrative of the development of American property law by indicating that the transition away from feudalism and towards free alienability and efficient use was not as smooth as is typically thought. Third, these stories are particularly relevant today, as they help to make sense of aspects of contemporary property law that have developed in response to America’s rising inequality and increasing middle-class insecurity.

Thursday, February 26, 2015

Sovern's "Improbable Life"

Out from Columbia University Press is An Improbable Life: My Sixty Years at Columbia and Other Adventures, by Michael I. Sovern, president emeritus of Columbia University and the Chancellor Kent Professor of Law at Columbia Law School, with forewords by Walter F. Mondale and Lee C. Bollinger. 
Columbia University began the second half of the twentieth century in decline,bottoming out with the student riots of 1968. Yet by the close of the century, the institution had regained its stature as one of the greatest universities in the world.

According to the New York Times, "If any one person is responsible for Columbia's recovery, it is surely Michael Sovern." In this memoir, Sovern, who served as the university's president from 1980 to 1993, recounts his sixty-year involvement with the institution after growing up in the South Bronx. He addresses key issues in academia, such as affordability, affirmative action, the relative rewards of teaching and research, lifetime tenure, and the role of government funding. Sovern also reports on his many off-campus adventures, including helping the victims of the Tuskegee syphilis experiment, stepping into the chairmanship of Sotheby's, responding to a strike by New York City's firemen, a police riot and threats to shut down the city's transit system, playing a role in the theater world as president of the Shubert Foundation, and chairing the Commission on Integrity in Government.

Crane on Humphrey's Executor

Daniel A. Crane, University of Michigan Law School, has posted Debunking Humphrey's Executor.  Here is the abstract:
William E. Humphrey (LC)
The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s statutory design that ostensibly justified the Commission’s constitutional independence. It was to be non-partisan and a-political, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This article reconsiders Humphrey’s Executor from a different angle. At the end of a one hundred years natural experiment, the Commission bears almost no resemblance to the Progressive-technocratic vision articulated by the Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative. Rather, it is essentially a law enforcement agency beholden to the will of Congress. This finding has potentially important implications for agency design, constitutional doctrine and theory, and understanding of agency functioning.

Appleman on Gothic Stories and Mens Rea

Laura I. Appleman, Willamette University College of Law, has posted Gothic Stories, Mens Rea, and Nineteenth Century American Criminal Law, which is forthcoming in The Ashgate Research Companion to Law and Humanities in Nineteenth-Century America, ed.  Nan Goodman and Simon Stern (Ashgate Press 2015).  Here is the abstract:    
Edgar Allan Poe (credit)
The early-to-mid nineteenth century was a turbulent period for the cities of an expanding America. Beginning in the 1830’s, it was a time of “epic homicidal riots,” which prompted the creation of the first urban police force. The rise of the police helped reduce the rates of homicide dramatically. Concomitant with the explosion of real-life murder and the rise of the first police force was also a particular renaissance moment for gothic storytelling, focusing in large part on the wily criminal and the deductive reasoning used by these early police to track, apprehend and convict these offenders. What influence did these tremendously popular stories have on the creation of 19th-century criminal law and the public’s understanding of the 19th-century criminal?

The most emblematic example of this fascination with American criminality, of course, was the writing of Edgar Allan Poe, whose Tales of the Grotesque and Arabesque was published in 1849. Close behind it in influence, however, was the gothic fiction of Washington Irving and short stories of Nathaniel Hawthorne, whose work beguiled a developing nation. These highly popular stories, steeped in mystery, psychology and potentially horrific crimes, were influential in the shaping of 19th-century criminal law and organized police forces, which rose hand in hand with the popular understanding of crime-solving.

There were many links between 19th-century gothic/criminal fiction and the intellectual development of 19th-century American criminal law. One example is the rise of new narrative techniques in 19th-century fiction in developing character studies, including third-person narrative forms, and the concomitant development of mens rea analysis (i.e., that liability for wrongdoing should not just be based on sheer “wickedness,” but on actual intent to commit a specific crime). As literary gothic fiction explored a new, more complex understanding of why a criminal defendant might act the way he did, this matched — and undoubtedly influenced — the way the legal understanding of mens rea became more refined, shifting from a simple finding of general wrongdoing to a more sophisticated, elemental approach. This book chapter explores the similarities and cross-pollination between the two.

VanderVelde on Mrs. Dred Scott and Lumley v. Wagner

Lea S. VanderVelde, University of Iowa College of Law, has posted two items from her backlist.  The first, written with Sandhya Subramanian is Mrs. Dred Scott, which was appeared in the Yale Law Journal 106 (1997): 1033:
This article argues that Harriet Robinson Scott's significance as co-plaintiff in Dred Scott v. Sanford has been overlooked for generations in part because her status was a contradiction. Recognizing her existence, however explains the incongruities that this particular case represents if one focuses only on the factual record about her husband, and the motivations implied from that record.

Harriet was the wife of a slave. Analytically, Harriet's existence as doubly subordinated through the institution of marriage and the institution of slavery, demonstrates the paradox of married and enslaved women. Marriage was conventionally seen to be legally inconsistent with the status of slavery. A wife would be a dependent, and a slave could have no dependents. This double subordination explains why she is so little known and why the case litigated under her husband's name.

The article is compensatory legal history, both in adding into the equation a long neglected party, and in by her addition, providing rationale for the sustained lawsuit. This article sheds light on the motives behind the Scott's suit for freedom and addresses questions that have long plagued scholars such as why Dred didn't sue sooner or escape to free territory. Harriet was in all likelihood the cornerstone of the litigation.

This article offers a reassessment of the Dred Scott decision. Lea VanderVelde followed this article with a full scale biography of Harriet in the book, Mrs. Dred Scott: A Life on Slavery’s Frontier (Oxford 2009). This article is completely distinct from the book.
The second is The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, which appeared in the Yale Law Journal 101 (1992): (1992):
The English case Lumley v. Wagner is part of the canon of contract law. The case maintains that although employees cannot be specifically ordered to perform on a contract, they may be enjoined from working for a competitor.
This article demonstrates how hostile the Lumley rule was to the American ethos of free labor when it was first introduced in the United States in the mid-nineteenth century. However, the Lumley rule was ultimately accepted into American Law, and indeed into the canon, through a curious pathway. This rule became incorporated in the American common law through a series of cases all of which involved women who performed on stage. Only after application in a series of cases enjoining women performers did the rule gain a foothold in American common law. This injunction was legally acceptable in cases involving women because it was consonant with a rule applied against women in divorces, that is, they could sever the marriage but they were not permitted to remarry. This was also socially acceptable because the social position of women stage performers was seen as lacking the propriety expected of women by Victorian standards of morality.
Thus, a rule that was counter to the American ethos of free labor came into the canon, and came to be applied to men, only after it had been applied against women. By the time that American treatises reported the rule, the gendered identity of every previous application was overlooked.

LHR 33:1

Law and History Review 33:1 (February 2015) is now out on Cambridge Journals Online:

States' Rights, Welfare Rights, and the “Indian Problem”: Negotiating Citizenship and Sovereignty, 1935–1954
Karen M. Tani

Race, Upper Canadian Constitutionalism and “British Justice”
Lyndsay Campbell

Divided by Law: The Sit-ins and the Role of the Courts in the Civil Rights Movement
Christopher W. Schmidt

Thomas Jefferson and the Uses of Equity
Matthew Crow

When Your Money Is Not Your Own: Coverture and Married Women In Business in Colonial New South Wales
Catherine Bishop

Citizen Kane: The Everyday Ordeals and Self-Fashioned Citizenship of Wisconsin's “Lady Lawyer”
Joel E. Black

Book Reviews by Jessica M. Marglin, Kirt von Daacke, Mark A. Graber, Tracey Jean Boisseau, Danaya C. Wright, Douglas Howland, Tahirih V. Lee, Benedetta Faedi Duramy, Charles Upchurch, Mary Ziegler, Carolyn Jones, C. Joseph Genetin-Pilawa, Christopher W. Schmidt, Brett Gadsden, Stefan Kirmse, Jane Burbank, Margaret Power, and Samuel Moyn.

Wednesday, February 25, 2015

Finding a Publisher for Your Book

Yes, a first time author may be more concerned with finding any publisher than with being picky about the terms of publication. Even so, she will have to choose ex ante which publishers to approach. And if she is lucky enough to have more than one nibble, she will have to choose with which publisher to proceed. When I finished my dissertation and turned to the book, the publication process was a deep dark black box. Thankfully, there were many more experienced scholars who patiently listened to my many questions and doled out invaluable advice. Below is a description of my experience finding a publisher intermixed with gathered advice and some factors to keep in mind along the way.

When to seek a book contract? The first question an author faces is whether to seek an advanced contract with a book proposal and little else or to wait until she has a full manuscript to submit to the press. I felt an advanced contract was imperative for both practical and substantive reasons. Practically, when I finished my dissertation I was in my second year at my first job. I would go up for pre-tenure review in my third year. My book would be the key element of my eventual tenure file but would not be very far along by pre-tenure review. If I could manage it, securing an advanced contract in time for pre-tenure review had obvious advantages. Substantively, as I discussed in an earlier post, my dissertation was a bit of a mess. Getting early advice from outside readers on my plan for the book and benefitting from the ongoing guidance of an editor as I wrote appealed to me.

Gelpern on the Unexpected Origins of a Sovereign Debt Principle

My Georgetown Law colleague Anna Gelpern has posted Pari Passu's Golden Fossils.  Here is the abstract:
U.S. federal court rulings against Argentina since 2012 have turned the pari passu clause in sovereign bond contracts into the most promising debt collection tool against immune governments since the days of gunboat diplomacy. The large literature on pari passu (“equal step” in Latin) assumes that the clause had not been used for enforcement before the late 1990s, and that it was first construed by a Belgian court in a case against Peru in the year 2000. The Belgian decision was criticized for wrongly interpreting pari passu as a promise of ratable payment to all holders of Peru’s external debt. A decade later, U.S. courts adopted the same interpretation against Argentina, despite interventions by the United States, Brazil, France, Mexico and a slew of eminent experts. The case is now caught up in litigation around the world involving bondholders, trustees, payment and clearing systems.

Debates about the meaning of pari passu have so far drawn on bond language, contract practices and diplomatic statements, not judicial opinions. This essay reports on a once-famous lawsuit in Swiss courts, brought by Swedish holders of German government bonds in 1935 against the Bank for International Settlements as bond trustee. The Swedes claimed that the BIS violated the pari passu clause when it paid them nominal value, while payments to other bondholders were indexed to the value of gold. Three Swiss courts concluded that such payment discrimination was a breach of the pari passu clause; one even suggested that it could give rise to inter-creditor remedies. However, all three courts held against the bondholders on the grounds that the trustee’s duties in this case were limited to following Germany’s instructions. Subsequent commentators criticized the Swiss courts’ views of the trustee’s role, but did not disagree with its reading of the pari passu clause. The case has featured prominently in 20th century sovereign debt literature, but the pari passu angle appears to have been forgotten.

Judging in the DC Circuit: 1994 and 2013

[We are moving this up, because the conversation between these two Federal District Judges takes place today, Wednesday February 25, at 4:30.]

A Conversation on Judging: Then and Now will take place in the Ceremonial Courtroom of the E. Barrett Prettyman Court House, Washington, DC, on Wednesday, February 25.  It will be "a dialogue featuring Senior Judge Paul Friedman, who joined the U.S. District Court in 1994, and Judge Ketanji Brown Jackson, who joined the Court in 2013, moderated by Miguel Estrada. The judges will compare their experiences on the bench as they discuss changes in the confirmation process, the makeup of the Court, dockets, training, staffing, technology, and the impact of these and other changes on judging." Admission is free; reservations are not required.  The event is sponsored by the Historical Society of the District of Columbia Circuit.

Eskridge on Original Meaning and Marriage Equality

William N. Eskridge Jr, Yale Law School, has posted Original Meaning and Marriage Equality, which is forthcoming in the Houston Law Review 52 (2015): 101-54.  Here is the abstract:
In the 2014 Term, the Supreme Court is hearing challenges to four state exclusions of same-sex couples from their marriage law and other family law protections. Unlike the circuit judges who have evaluated these claims, the Justices find relevant the original meaning of the Fourteenth Amendment. Many opponents of Marriage Equality for lesbians, gay men, bisexuals, and transgender persons assume that original meaning is hostile to such claims. In this article, Professor Eskridge maintains that the original meaning supports the marriage equality claims. While the drafters of the Equal Protection Clause had no "expectations" that states in 1868 would have to issue marriage licenses to same-sex couples, the term they adopted ("equal protection") had an established meaning: the state cannot create a caste regime arbitrarily marking a whole class of worthy persons as outside the normal protections of the law. This original meaning has bite today that it would not have had in 1868. In the twentieth century, states created a terrifying anti-homosexual caste regime, whose deep norm was that gay persons are anti-family. In the twenty-first century, much of this caste regime has been dismantled, but new and sweeping family law exclusions such as those before the Court are recent expressions of that regime and should be skeptically examined by the Justices.

New Release: Kirchmeier on Warren McCleskey and the American Death Penalty

New from Oxford University Press: Imprisoned by the Past: Warren McCleskey and the American Death Penalty (Jan. 2015), by Jeffrey L. Kirchmeier (City University of New York School of Law). The Press explains:
Imprisoned by the Past: Warren McCleskey and the American Death Penalty connects the history of the American death penalty to the case of Warren McCleskey. By highlighting the relation between American history and an individual case, Imprisoned by the Past provides a unique understanding of the big picture of capital punishment in the context of a compelling human story.

McCleskey's criminal law case resulted in one of the most important Supreme Court cases in U.S. legal history, where the Court confronted evidence of racial discrimination in the administration of capital punishment. The case marks the last that the Supreme Court realistically might have held that capital punishment violates the Eighth Amendment of the U.S. Constitution. As such, the constitutional law case also created a turning point in the death penalty debate in the country. The book connects McCleskey's case -- as well as his life and crime -- to the issues that have haunted the American death penalty debate since the first executions by early settlers and that still affect the legal system today.

Imprisoned by the Past ties together three unique American stories in U.S history. First, the book considers the changing American death penalty across centuries where drastic changes have occurred in the last fifty years. Second, the book discusses the role that race played in that history. And third, the book tells the story of Warren McCleskey and how his life and legal case brought together the other two narratives.
A blurb of note:
"No legal decision in the last half of the 20th century characterized America's continuing failure to confront its history of racial inequality more than the McCleskey decision. Jeff Kirchmeier's welcomed and insightful book brings much needed context and perspective to this critically important issue. Compelling and thoughtful, this book is a must read for those trying to understand America's death penalty and its sordid relationship to our failure to overcome three centuries of racial injustice." -- Bryan Stevenson, Executive Director of the Equal Justice Initiative
More information is available here.

Tuesday, February 24, 2015

Tai on the Emergence of Food Systems Law

“To many modern eaters,” writes Stephanie Tai, Wisconsin Law, “the worlds of agriculture and food appear detached from each other.”  In Food Systems Law from Farm to Fork and Beyond, just up on SSRN and forthcoming in volume 45 of the Seton Hall Law Review, Professor Tai, whom I proudly claim as a student, shows how legal scholars have come to understand the Agriculture Law and Food Law as parts of a whole, “Food Systems Law,” thereby arriving at insights that might otherwise have eluded them.  Could there be a more apt illustration of the "Wisconsin Idea" of the university in the service of its state, nation, and world, not by capitulating to the kind of "narrow pragmatism" that Willard Hurst decried and that evidently inspired Governor Scott Walker’s recent attempt to reduce the university's mission from the “search for truth” and the improvement of "the human condition” to "meet[ing] the state’s workforce needs," but by doing the unexpected?

Here is the abstract:
In urging “responsible eating,” food writer Wendell Berry once wrote,“I begin with the proposition that eating is an agricultural act.” Yet the legal world has long treated food and agriculture as separate spheres. Food law in the United States has traditionally been viewed as the area of law related to the development and marketing of final food products, while agricultural law has been viewed as the area of law relevant to farmers and rangers,agri-businesses, and food processing and marketing firms. But more recently, both policymakers and scholars have been taking a more systems-oriented approach to food regulation through the re-framing of food and agricultural law into a broader food systems law. In particular, a number of legal scholars working in these areas have begun merging the fields of food law and agricultural law — as well as components of other fields of law — into something perhaps greater than the sum of its parts: a field of law that examines food systems as an interactive whole, rather than as individual components of the farm-to-fork process.

This Article is the first of a two-part project.  This part explores trends in agricultural and food law scholarship to argue that a nascent integrated approach, one that is more systems-oriented, is developing within current legal scholarship. The Article begins by providing some broader context on systems-oriented approaches to understanding food, drawing from food policy and environmental policy literature. It next briefly describes the different origins and coverage of early agricultural law and food law, situating the distinct historical and theoretical foundations of agricultural law and food law into the broader literature of legal taxonomy. It then illustrates developing trends in scholarly articles, legal casebooks, and other law school institutional coverage to suggest the convergence of these two areas into a broader, more systems-oriented approach. Finally, the Article highlights distinctive features that might arise out of a more deliberate development of systems-oriented approach in this legal field. It argues that such an approach may provide insights into other cross-cutting areas of legal scholarship that the separated areas of food law and agricultural law cannot provide. In doing so, this Article lays the groundwork for the next part of this project, which presents case studies to provide a more complete an analysis of the benefits that would arise from such an approach and uses systems theory to develop important considerations for the deliberate cultivation of food systems law as a field of law.

Law in Transition: A Conference at Tel Aviv University

We have word that  "Law in Transition," the 6th Annual Berg Conference and XXIst Annual Meeting of the Association of Young Legal Historians will be held at Tel Aviv University on March 1-2.  The conference program, here, includes three keynote addresses and over sixty papers in seventeen sessions.

Herbert Hoover vs. The Great Depression at the MIller Center

HH, 1929 (LC)
On Tuesday, March 3, from 3:30 to 5:00 p.m., the Historical Presidency series of the Miller Center for Public Affairs at the University of Virginia will host Herbert Hoover Versus the Great Depression with historian George H. Nash, an independent historian, lecturer, and authority on the life of Herbert Hoover.  This event is open to the public. It will be webcast live and archived here

New Release: Neuborne on Reading the First Amendment

Just out from the New Press: Madison’s Music: On Reading the First Amendment, by Burt Neuborne (NYU Law School). A description from the Press:
What if most of what we think we know about the First Amendment is just wrong? For years, the Supreme Court has treated the First Amendment like a laundry list of isolated words, stopping every once in a while to pull a couple of words out of the full text and claiming to be able to use the artificially isolated words as an infallible guide to what the First Amendment really means. Burt Neuborne, who has been one of the nation’s foremost constitutional lawyers for the past fifty years, argues that the Supreme Court has gotten it all wrong. If, he argues, judges would only look at the First Amendment’s full text—all forty-five words—they would discover Madison’s music, a First Amendment that is democracy’s best friend.
Neuborne, who was the national legal director of the ACLU during the Reagan presidency and has argued many cases before the Supreme Court, explains that the remarkably disciplined order and structure of the ideas in Madison’s forty-five-word First Amendment—beginning with freedom of conscience in the religion clauses; moving on to freedoms of speech, press, and assembly in that order; and ending with freedom to petition for redress of grievances—tells the story of democracy in action. Madison’s music, he argues, is the chronicle of a democratic idea conceived in the free conscience of a free citizen, articulated by a free speaker, disseminated widely by a free press, turned into a political movement by freely assembled people, and enacted into law through the petition clause. No other rights-bearing document, beginning with the Magna Carta in 1215, comes close to such a careful narrative of democracy in action. Neuborne argues that the Supreme Court’s misuse of what he calls “an imperial Free Speech Clause” to blot out Madison’s democratic music has led to an arbitrary First Amendment that turns democracy over to hugely wealthy individuals and corporations, encourages cynical officials to disenfranchise the weak, and allows politicians to manipulate the system to stay in power. Recovering the ability to hear Madison’s music, he argues, is the first step to reclaiming our democracy for everyone—not just the rich.
A few blurbs:
“A brilliant book that offers an original and insightful way of understanding the First Amendment and all of the Bill of Rights. Professor Neuborne grounds his analysis in a wonderful telling of history and uses it to offer new ways to deal with some of the most important contemporary issues facing American democracy, such as campaign finance and partisan gerrymandering. This beautifully written book is a must read.” — Erwin Chemerinsky
“Simply wonderful . . . fully reflective of Burt Neuborne’s learning, insight, and wit.” — Norman Dorsen
More information is available here.

Monday, February 23, 2015

Using Articles to Advance but not Preempt the Book

If you are a legal historian in a law school, writing articles as well as a book is likely a tenure requirement. Even if you don’t face institutional pressures to publish articles, you should consider doing so because they can help your book. But in either case, you need to be careful not to preempt your book in the process. This can happen if your articles leave a publisher concerned that everything important in the book has already been said. By the time my book appeared, I had published two articles, one book chapter, and two symposium pieces related to the book. They fell into three types, the benefits and potential pitfalls of which I discuss below.

(NB: this is a long post—perhaps as a result of failing to do this—so I’ve bolded the article types for anyone who wants to skim for them and skip the detailed article descriptions.)

The first type of article I’ll call “substrata.” These articles lay important ground for the book that for whatever reason (space, audience, etc.) doesn’t belong in the book itself. Two of my pieces played this role.

Rothman's "Beyond Freedom's Reach"

Adam Rothman, Associate Professor of History, Georgetown University, has just published Beyond Freedom's Reach: A Kidnapping in the Twilight of Slavery, with the Harvard University Press:
Born into slavery in rural Louisiana, Rose Herera was bought and sold several times before being purchased by the De Hart family of New Orleans. Still a slave, she married and had children, who also became the property of the De Harts. But after Union forces captured New Orleans in 1862 during the American Civil War, Herera’s owners fled to Havana, taking three of her small children with them. Beyond Freedom’s Reach is the true story of one woman’s quest to rescue her children from bondage.

In a gripping, meticulously researched account, Adam Rothman lays bare the mayhem of emancipation during and after the Civil War. Just how far the rights of freed slaves extended was unclear to black and white people alike, and so when Mary De Hart returned to New Orleans in 1865 to visit friends, she was surprised to find herself taken into custody as a kidnapper. The case of Rose Herera’s abducted children made its way through New Orleans’ courts, igniting a custody battle that revealed the prospects and limits of justice during Reconstruction.

Rose Herera’s perseverance brought her children’s plight to the attention of members of the U.S. Senate and State Department, who turned a domestic conflict into an international scandal. Beyond Freedom’s Reach is an unforgettable human drama and a poignant reflection on the tangled politics of slavery and the hazards faced by so many Americans on the hard road to freedom.
Here are two endorsements:

“Amidst slavery’s unraveling in New Orleans, Rose Herera fought to prevent her owner from taking her children to Havana, ‘beyond freedom’s reach.’ Rothman’s recovery of Herera’s remarkable story, her incarceration and journey through the legal system to rescue her children, marks an important contribution to the history of emancipation and the contingency of wartime freedom.”—Thavolia Glymph, author of Out of the House of Bondage: The Transformation of the Plantation Household

“The extraordinary odyssey of Rose Herera to recover her kidnapped children from slavery illuminates the impact of the Civil War on the enslavers and the enslaved and reminds us of the precariousness of freedom during the Reconstruction era. An impressive and compelling history.”—Randy J. Sparks, author of Where the Negroes Are Masters: An African Port in the Era of the Slave Trade

Zietlow on the 14th Amendment's Citizenship Clause

Rebecca E. Zietlow, University of Toledo College of Law, has posted The Other Citizenship Clause, which is to appear in “The Greatest and Grandest Act”: The Civil Rights Act of 1866 from Reconstruction to Today, ed. Christian Samito (Southern Illinois University Press).  Here is the abstract:    
The first sentence of the Fourteenth Amendment declares that “all persons born or naturalized within the United States . . . are citizens of the United States.” This clause defined the criteria for United States citizenship and established birthright citizenship as a principle of constitutional law. Yet two years before the Fourteenth Amendment became law, the Reconstruction Congress had already declared “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed . . . to be citizens of the United States.” This other Citizenship Clause is the preamble to the 1866 Civil Rights Act. This statutory clause directly contravenes the United States Supreme Court’s ruling in Dred Scott v. Sanford that freed slaves could not be citizens. Yet the 1866 Act was based on Congress’ power to enforce the Thirteenth Amendment, and before the Fourteenth Amendment’s Citizenship Clause was ratified. How could the members of the Reconstruction Congress have believed that they had the power to enact the other Citizenship Clause? The answer to this question has implications for the original meaning of the Thirteenth Amendment and its enforcement clause. Scholars have generally linked citizenship rights to the Fourteenth Amendment, and not the Thirteenth. However, the other Citizenship Clause is evidence that either the Thirteenth Amendment established freed slaves as United States citizens, or the Amendment’s enforcement clause empowered Congress to overturn the Supreme Court’s interpretation of the Constitution in Dred Scott on its own.

The 1866 Civil Rights Act was based in Congress’ new power to enforce the Thirteenth Amendment pursuant to its enforcement clause, Section Two. Thus, the 1866 Civil Rights Act provides a glimpse of those fundamental rights which the members of the Reconstruction Congress believed to be inherent in freedom, and furthers our understanding of the original meaning of the Thirteenth Amendment and its enforcement clause. The Act’s citizenship clause is evidence that many members of the Reconstruction Congress believed that free Blacks were United States citizens with fundamental rights. In their view, the Thirteenth Amendment not only ended slavery, but recognized the citizenship rights of freed slaves. For those members of Congress who did not equate freedom with citizenship, the other Citizenship Clause reflects the scope of their power to enforce the Thirteenth Amendment with “appropriate” legislation. Did they believe that the Amendment empowered them to overturn Dred Scott with a statute? If so, they thought that their enforcement power was broad indeed.

Saturday, February 21, 2015

A Weekend Break

Your Legal History Bloggers are out and about this weekend.  See you Monday.

Friday, February 20, 2015

Bernstein and Somin on the Mainstreaming of Libertarian Constitutionalism

David Bernstein and Ilya Somin, George Mason University School of Law, have posted The Mainstreaming of Libertarian Constitutionalism, which appeared in Law and Contemporary Problems 77 (2014): 43-70, as part of the symposium on “Law and Neoliberalism.”   Here is the abstract:    
Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.

Disciplining Detail

My prior posts have been about using a book’s macro- and micro-level structure to solve writing problems and advance your argument. This post is about strategies to avoid unnecessary detail.

I err in the direction of too much detail when I write. Partly, this is because it’s so tempting to share all the great stuff I find in the archives. Partly, it’s because I often need to write through my material in order to figure out what was really going on and what I want to say about it. Whatever the reason, and however valid excess detail is as a stop on the road toward a finished chapter, article, or book, it should not be your destination.

Most importantly, excess detail is unfair to your reader. I still remember my amazing dissertation advisor, Glenda Gilmore, giving some advice that I have often repeated. Unlike papers you write as a student, no one has to read what you write as a historian. Instead, you have to win your readers by drawing them in and keeping them there. It is a huge imposition on your busy readers’ time to ask them to read a chapter or article, let alone a whole book. Unnecessary detail can drive your reader away rather than draw her in because it inevitably muddles your points and confuses (not to mention bores) your reader. Loading your book with unnecessary detail also fails to respect your reader’s time, making her do the editorial work you didn’t.

Trimming excess detail may also be necessary to meet the sometimes stringent word limits set by publishers. Publishing books is expensive and page real estate is at a premium. While there is often some wiggle room in the word-limit given in an advanced contract, you’re more likely to be allowed to use that wiggle room if you’ve run over for good substantive reason and not because you’ve been unable to part with your own words. And even then, there are limits. Publishers may give an author back a manuscript and demand major cuts, as much as a third of the manuscript or more.

Luckily, cutting excess detail is good for the book, not only its reader and publisher. Trimming detail helps you clarify and sharpen your argument; after all, how else do you know what detail is necessary versus dispensable? But how to do it?

My strategy was to set optimistic page limits for each chapter. As I described in an earlier post, my book had four chronologically progressive parts, each with 3-4 chapters (you can see the TOC here). You do the math and you’ll see that’s a LOT of chapters. I worked back from where I needed to end based on my contract: 125,000 words or about 375 manuscript pages (already long for a book). I figured that gave me about 28 pages per chapter at most, with a short introduction and epilogue.

Then I forced myself to meet my goal. This was not easy—most chapters I drafted came in at about 35 pages and had to lose at least one-fifth of their length. But whittling the chapters down forced me to clarify each chapter’s arguments and then prioritize the material that advanced them. In other words, it made the book tighter, not only shorter.

My strategy may seem absurdly, even counter-productively, arbitrary. This is where being a good boss to yourself comes in. Because you will need to renegotiate the terms of the agreement as you go. But in doing so, you need to make reasonable accommodations without being a pushover. If you look at my book, you will see that my chapters are not a uniform length. Some ended up a bit over my 28-page mark, others came in a bit below. If I was going to go over my limit, however, I made sure I could make a good case to myself why that was justified. If a chapter came in under the mark, I still tried to reduce it by about 20% on the assumption that if there was that much that could go in the longer chapters, there was probably that much chaff in the shorter ones too.

You’ll have to decide for yourself if the book gives the reader the right amount of detail. But I assure you it has a lot less detail than it would have had without my detail diet. And just remember, if something is extremely painful to cut, maybe you can spin it off into a separate article…

What strategies have you used to discipline detail—or wordiness, which my strategy also helped with?

Ernst on Government Lawyers at AAA ad NRA

I've posted a conference paper, Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies.  Thanks to Mark Fenster and John Henry Schlegel for organizing the conference and to them and the other participants for their comments.  I view the paper as a revision of the position I took here.  Here is the abstract:
Jerome N. Frank
From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this working paper, prepared for "Opportunities for Law's Intellectual History," a conference sponsored by Baldy Center for Law and Social Policy at the State University of New York at Buffalo, October 10-11, 2014, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt's presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize the lawyers' agency as political actors. In particular, the New Deal lawyers' projection of their own preferences upon general statutory delegations of legislative power, which they then interpreted authoritatively, could make them less the faithful agents of their master’s voice than ventriloquists in pursuit of their own political agenda.

Severn's "Prairie Justice"

We have news of the publication Prairie Justice: A History of Illinois Courts under French, English, and American Law, by Roger L. Severns, edited by John A. Lupton (Southern Illinois University Press):

A concise legal history of Illinois through the end of the nineteenth century, Prairie Justice covers the region’s progression from French to British to early American legal systems, which culminated in a unique body of Illinois law that has influenced other jurisdictions. Written by Roger L. Severns in the 1950s and published in serial form in the 1960s, Prairie Justice is available now for the first time as a book, thanks to the work of editor John A. Lupton, an Illinois and legal historian who also contributed an introduction.

Illinois’ legal development demonstrates the tension between two completely different European legal systems, between river communities and prairie towns, and between rural and urban interests. Severns uses several rulings–including a reconstitution of the Supreme Court in 1824, slavery-related cases, and the impeachment of a Supreme Court justice—to examine political movements in Illinois and their impact on the local judiciary. Through legal decisions, the Illinois judiciary became an independent, co-equal branch of state government. By the mid-nineteenth century, Illinois had established itself as a leading judicial authority, influencing not only the growing western frontier but also the industrialized and farming regions of the country. With a close eye for detail, Severns reviews the status of the legal profession during the 1850s by looking at new members of the Court, the nostalgia of circuit riding, and how a young lawyer named Abraham Lincoln rose to prominence.
Severns (1906-61) earned degrees from Beloit College and Chicago Kent College of Law.  He received his Juris Doctor from the University of Chicago Law School in 1938, when the JD was still a graduate law degree.  He worked at Isham, Lincoln, and Beale before leaving that firm to form Parkhill, Severns, and Stansell.  Mr. Lupton, the executive director of the Illinois Supreme Court Historic Preservation Commission, tells me that in the 1950s, the Illinois State Bar Association commissioned the work, which appeared in the Chicago Daily Law Bulletin.  After taking up his duties at the Commission, Mr. Lupton learned of the manuscript, "polished it up, [and] updated some footnotes."   He believes that the book's biggest contribution is "the development, then lack of development, of French law in Illinois.  The author tracked down some really good primary French-period sources and told a good story with them."

Here's an endorsement from Stewart Winger, associate professor, Illinois State University:
Prairie Justice will provide leads for students investigating a whole range of topics related to Illinois history and U.S. legal history. Though written in the 1950s, editor John Lupton has provided notes to the rich literature of legal history that has emerged in the intervening decades. Numerous now-forgotten but nevertheless important cases are glossed here and the mini-biographies are a good place to start in looking for the background of specific Illinois justices.
Joseph A. Ranney, attorney and Marquette Law School adjunct professor, writes:
Illinois and most of the Midwest lived under French law and justice for more than a century, and traces of the French system linger in our law today. Prairie Justice tells that story well, mixing colorful stories with sound scholarship. This book is a useful resource and a good read for anyone interested in early Illinois law and culture.

Thursday, February 19, 2015

New Release: Hertzke, ed., "Religious Freedom in America"

New from the University of Oklahoma Press: Religious Freedom in America: Constitutional Roots and Contemporary Challenges (Jan. 2015), edited by Allen D. Hertzke (University of Oklahoma). A description from the Press:
All Americans, liberal or conservative, religious or not, can agree that religious freedom, anchored in conscience rights, is foundational to the U.S. democratic experiment. But what freedom of conscience means, what its scope and limits are, according to the Constitution—these are matters for heated debate. At a moment when such questions loom ever larger in the nation’s contentious politics and fraught policy-making process, this timely book offers invaluable historical, empirical, philosophical, and analytical insight into the American constitutional heritage of religious liberty.

As the contributors to this interdisciplinary volume attest, understanding religious freedom demands taking multiple perspectives. The historians guide us through the legacy of religious freedom, from the nation’s founding and the rise of public education, through the waves of immigration that added successive layers of diversity to American society. The social scientists discuss the swift, striking effects of judicial decision making and the battles over free exercise in a complex, bureaucratic society. Advocates remind us of the tensions abiding in schools and other familiar institutions, and of the major role minorities play in shaping free exercise under our constitutional regime. And the jurists emphasize that this is a messy area of constitutional law. Their work brings out the conflicts inherent in interpreting the First Amendment—tensions between free exercise and disestablishment, between the legislative and judicial branches of government, and along the complex and ever-shifting boundaries of religion, state, and society.

What emerges most clearly from these essays is how central religious liberty is to America’s civic fabric—and how, under increasing pressure from both religious and secular forces, this First Amendment freedom demands our full attention and understanding.
A few blurbs:
“With religious freedom under assault from various directions, this fine collection of essays could not be timelier.  Bringing historical, juridical, and social science perspectives to bear on contemporary challenges, the authors and editors point the way to a society in which diverse religions may not only peacefully coexist but flourish, and where no one is forced to choose between religious obligations and civic duties.”—Mary Ann Glendon, Harvard University

“As religious freedom becomes an increasingly contentious area of public law and policy, this volume offers an outstanding collection of essays on religious freedom and related church-state issues. Each carefully crafted essay stakes out a position—while giving due consideration to multiple and competing views. Scholars, students, judges, journalists, and anyone with a serious interest in the topic should put this volume at the top of their reading list.”— John J. DiIulio, Jr., University of Pennsylvania
More information, including the TOC, is available here.

Wednesday, February 18, 2015

Globalization & the Law in Historical Perspective

[This is an updated version of a previously posted announcement.  Note especially that the deadline is now March 9.]

“Globalization & the Law in Historical Perspective," June 4-5, 2015, Maurer School of Law, Indiana University-Bloomington

In recent years, there has been an explosion of new scholarship on the legal history of globalization.  This rapidly growing body of literature has encompassed diverse topics, including international social movements, the transnational flow of capital, human rights, diplomacy, and border control.  However, as historians have demonstrated, globalization is not a new phenomenon.  We invite junior scholars to submit proposals that offer fresh understandings on the historical relationships between law, legal institutions, and globalization.  Our intention is to host a conference with a wide range of papers chronologically, geographically, and across disciplines.  The conference, part of a series begun in 2007, will be held at the Indiana University Maurer School of Law in Bloomington, Indiana from June 4-5, 2015.

The central aim of the conference is to provide junior scholars with a forum to showcase their previously unpublished work and to connect with senior scholars in the field.  The “Globalization & the Law in Historical Perspective” conference is sponsored by the Indiana University Maurer School of Law, Indiana University Department of History, University of Illinois College of Law, University of Michigan Law School, University of Minnesota Law School, University of Pennsylvania Law School, and American Society for Legal History.

Interested participants should submit a 300-word abstract and their cv to Bridget Gross (bregross@indiana.edu).  Please place “Legal History Conference” in the subject line of your e-mail submission.  The deadline for all proposals is Monday, March 9, 2015.  Applicants will be notified by email no later than Monday, March 30th.

Accepted participants will be required to submit their final papers by May 10, 2015.  Papers should not exceed 10,000 words, will be pre-circulated on a password protected website, and read by all conference participants.  Conference organizers will provide modest support for presenters’ travel to Bloomington, Indiana and lodging during the conference.

New Release: McGinty, "Lincoln's Greatest Case"

In the category of popular history, we have word of a new release from Norton/Liveright: Lincoln's Greatest Case: The River, the Bridge, and the Making of America (Feb. 2015), by Brian McGinty. Here's a description from the Press:
In the early hours of May 6, 1856, the steamboat Effie Afton barreled into a pillar of the Rock Island Bridge—the first railroad bridge ever to span the Mississippi River. Soon after, the newly constructed vessel, crowded with passengers and livestock, erupted into flames and sank in the river below, taking much of the bridge with it.
As lawyer and Lincoln scholar Brian McGinty dramatically reveals in Lincoln's Greatest Case, no one was killed, but the question of who was at fault cried out for an answer. Backed by powerful steamboat interests in St. Louis, the owners of the Effie Afton quickly pressed suit, hoping that a victory would not only prevent the construction of any future bridges from crossing the Mississippi but also thwart the burgeoning spread of railroads from Chicago. The fate of the long-dreamed-of transcontinental railroad lurked ominously in the background, for if rails could not cross the Mississippi by bridge, how could they span the continent all the way to the Pacific?
The official title of the case was Hurd et al. v. The Railroad Bridge Company, but it could have been St. Louis v. Chicago, for the transportation future of the whole nation was at stake. Indeed, was it to be dominated by steamboats or by railroads? Conducted at almost the same time as the notorious Dred Scott case, this new trial riveted the nation’s attention. Meanwhile, Abraham Lincoln, already well known as one of the best trial lawyers in Illinois, was summoned to Chicago to join a handful of crack legal practitioners in the defense of the bridge. While there, he succesfully helped unite the disparate regions of the country with a truly transcontinental rail system and, in the process, added to the stellar reputation that vaulted him into the White House less than four years later.
Re-creating the Effie Afton case from its unlikely inception to its controversial finale, McGinty brilliantly animates this legal cauldron of the late 1850s, which turned out to be the most consequential trial in Lincoln's nearly quarter century as a lawyer. Along the way, the tall prairie lawyer's consummate legal skills and instincts are also brought to vivid life, as is the history of steamboat traffic on the Mississippi, the progress of railroads west of the Appalachians, and the epochal clashes of railroads and steamboats at the river’s edge.
Lincoln's Greatest Case is legal history on a grand scale and an essential first act to a pivotal Lincoln drama we did not know was there.

Tuesday, February 17, 2015

Thomas's "Founders and the Idea of a National University"

We’ve just noticed the publication last year of The Founders and the Idea of a National University: Constituting the American Mind, by George Thomas, Department of Government, Claremont McKenna College, with Cambridge University Press:
This book examines the ideas of the founders with regard to establishing a national university and what those ideas say about their understanding of America. It offers the first study on the idea of a national university and how the founders understood it as an important feature in an educational system that would sustain the American experiment in democracy. Their ideas about education suggest that shaping the American mind is essential to the success of the Constitution and that this is something that future generations would need to continue to do.

Introduction
1. The national-university vision and American constitutionalism
2. The national university and constitutional limits
3. The national university and state institutions
4. Constituting the university
5. Education, the national university, and constituting national identity
6. The civic dimensions of American constitutionalism
Conclusion: the Constitution and the American mind.
Professor Thomas's recent post on CUP's blog, "An Education in Politics," is here.
Endorsements after the jump.

Three by Bryen on Law in the Roman Empire

Ari Z Bryen, West Virginia University, has posted three articles from his backlist.  The first, coauthored with Andrzej Wypustek, University of Wroclaw, is Gemellus' Evil Eyes (P.Mich. Vi 423-424), which appeared in Greek, Roman, and Byzantine Studies 49 (2009): 535-555:
In A.D. 197 a Roman and Antinoite citizen named Gemellus Horion, a landholder in Karanis, filed a series of petitions in which he describes a strange sequence of events: his neighbors Iulius and Sotas, he claims, had come onto his land and attempted to repossess it, since, he says, “they looked down on me because of my weak vision.” In response to this behavior Gemellus sent a petition to the prefect, Quintus Aemilius Saturninus, who authorized Gemellus to approach the epistrategos (P.Mich. VI 422). In the intervening time, perhaps a few weeks, Sotas died, and Iulius, along with his wife and a man named Zenas, came onto his land carrying a brephos--a fetus--so that they could “encircle (his tenant farmer) with phthonos (malicious envy).” After frightening Gemellus’ tenant farmer they stole the crops that he had been harvesting. When Gemellus and two village officials approached Iulius about the incident, Iulius threw the brephos at Gemellus in the presence of the officials, since, according to Gemellus, they also wanted to encircle him with phthonos. Iulius retrieved the brephos and took the remainder of the crops. Concerning this second incident Gemellus sent a petition to the strategos, Hierax, asking him to make an official record of the incident so that he could report it at his upcoming hearing with the epistrategos. This request dates to May 197, and is preserved in two copies, P.Mich. 423 and 424. All three of these papyri are private copies, and were found in a group of documents from a house and courtyard in Karanis. In content these two documents are unlike other petitions, which largely record less puzzling and more quotidian offenses, primarily theft and assault. Most scholars have shared the conclusion of the initial editors, that these papyri reflect an instance of a public assault by magic. If this is the case, then these papyri document a type of conflict that is otherwise unparalleled in the papyrological record, despite the Roman legal system’s willingness to entertain such charges.
The second is Visibility and Violence in Petitions from Roman Egypt, originally published in
Greek, Roman, and Byzantine Studies 48 (2008): 181-200:
The study of violence and violent behavior is of special sociological import. At moments of conflict, as anthropologist Anton Blok has noted, core values are disputed and interpreted; status and position, which on a daily basis are often tacitly assumed and unarticulated, can be highlighted and reified into positive rights and duties--such as the ability to be free from insult, the duty of others to respect one’s personal territory, or the right to bring offenders to justice and have them punished. When disputes turn violent the stakes are raised: personal integrity can be threatened, challenged, or violated, and one’s position within a community can be endangered. From Roman Egypt--defined for the purpose of this paper as the period from Augustus to Justinian--we have numerous accounts of violent behavior, especially in the form of petitions for redress by legal authorities.
The third is Judging Empire: Courts and Culture in Rome's Eastern Provinces, which originally appeared in Law and History Review 30 (August 2012): 771-811:
This paper contributes to the recent debate on the interrelationship between law and imperialism by presenting a new model for understanding courtroom interactions. Specifically, I argue that courtroom interactions should be understood as ritualized spaces in which the realities of day-to-day power-relations in empires are temporarily suspended and potentially renegotiated. The adoption of legal vocabularies by provincial populations is neither assimilation nor resistance, but rather an attempt to engage in a dialogue with imperial powers on terms that favor the provincials themselves. Drawing on papyri, monumental inscriptions, and literary texts, I argue that in Rome’s eastern provinces the government had no monopoly over legal texts or knowledge, a condition which provincials exploited through a process of selectively invoking and monumentalizing select legal texts, and forgetting others. Through a case study of how provincial populations generate and adopt ideas of the rule of law and how they deploy these concepts to influence and control Roman governors, this paper concludes that an approach to law as a ritual practice opens up new avenues for understanding the power dynamics of empires.

Monday, February 16, 2015

Kornhauser's "Debating the American State"

Anne M. Kornhauser, History Department, City College of New York, has just published Debating the American State: Liberal Anxieties and the New Leviathan, 1930-1970, with the University of Pennsylvania Press. 
The New Deal left a host of political, institutional, and economic legacies. Among them was the restructuring of the government into an administrative state with a powerful executive leader and a large class of unelected officials. This "leviathan" state was championed by the political left, and its continued growth and dominance in American politics is seen as a product of liberal thought—to the extent that "Big Government" is now nearly synonymous with liberalism. Yet there were tensions among liberal statists even as the leviathan first arose. Born in crisis and raised by technocrats, the bureaucratic state always rested on shaky foundations, and the liberals who built and supported it disagreed about whether and how to temper the excesses of the state while retaining its basic structure and function.

Debating the American State traces the encounter between liberal thought and the rise of the administrative state and the resulting legitimacy issues that arose for democracy, the rule of law, and individual autonomy. Anne Kornhauser examines a broad and unusual cast of characters, including American social scientists and legal academics, the philosopher John Rawls, and German refugee intellectuals who had witnessed the destruction of democracy in the face of a totalitarian administrative state. In particular, she uncovers the sympathetic but concerned voices commonly drowned out in the increasingly partisan political discourse—of critics who struggled to reconcile the positive aspects of the administrative state with the negative pressure such a contrivance brought on other liberal values such as individual autonomy, popular sovereignty, and social justice. By showing that the leviathan state was never given a principled and scrupulous justification by its proponents, Debating the American State reveals why the liberal state today remains haunted by programmatic dysfunctions and relentless political attacks.
Here are the endorsements:

"Richly detailed and sharply argued, this beautifully-realized intellectual history offers a fresh perspective on how key liberal thinkers, not least John Rawls, grappled with the American state the New Deal made. Anyone concerned to understand the immanent tensions characteristic of the inescapable collision between constitutional democracy and concentrated power should ponder this deep and original assessment, and should consider the compelling lessons and legacies it conveys."—Ira Katznelson, author of Fear Itself: The New Deal and the Origins of Our Time

"An extremely well-researched and brilliantly analyzed study of the burgeoning growth and the missing legitimacy of the administrative state and its relationship to the ideal of the rule of law. Debating the American State is a stellar example of deep and rigorous transdisciplinarity."—Elizabeth Borgwardt, author of A New Deal for the World: America's Vision for Human Rights

"Anne Kornhauser thinks with a flair of originality about important subjects and has a knack for explaining complicated political ideas in lucid, accessible language. Tracing in a highly original way how recent debates over liberalism originated during the New Deal and how they evolved since, her book is a major contribution to modern political and intellectual history and sheds light on the turbulent debates over democracy, the rule of law, and the power of the state with which we live."—Eric Foner, Columbia University

Table of contents after the jump.

Economist Review of Desan's Making Money

The Economist has published a review of Chris Desan's recently-released book, Making Money: Coin, Currency and the Coming of Capitalism (Oxford, 2014). Find the review here.  Readers also may be interested in Professor Desan's Harvard Law School Library talk on her book.

Steilen on Bills of Attainder

Matthew J. Steilen, State University of New York at Buffalo Law School, has posted Bills of Attainder.  Here is the abstract:
credit
Does the maintenance of blacklists and kill lists violate the Bill of Attainder Clause of Article I, section 9? The government maintains such lists as part of the war on terror. The traditional view is that bills of attainder are legislative acts that punish an individual without judicial process. The Bill of Attainder Clause prohibits the legislature from passing such acts, but since the executive does not pass acts, the clause does not apply to the executive, or to its maintenance of blacklists.

The aim of this Article is to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of attainder are best understood as a summary form of legal process, rather than a legislative act. This argument is based on a detailed historical reconstruction of English and early American practices, beginning with a study of the medieval parliament rolls, year books, and other late medieval English texts, and early modern parliamentary diaries and journals covering the attainders of Elizabeth Barton under Henry VIII and Thomas Wentworth, earl of Strafford, under Charles I. The Article then turns to America, where it illustrates the influence of English practices in revolutionary New York and Virginia, drawing primarily on legislative records, correspondence, memoirs, and early histories. The Article then leverages this historical research to argue in favor of interpreting the Bill of Attainder Clause to bar summary forms of legal process in executive agencies, such as the maintenance of blacklists and kill lists.

Sunday, February 15, 2015

How to Revisit Events in Your Book without Being (too) Repetitive

In my last post, I wrote about using a modular structure in my book. Among other things, this lets readers dip in and follow discrete threads (for instance, the civil rights movement’s push for a workplace Constitution or federal agencies and the workplace Constitution).

So far so good, except that the past isn’t modular; instead, the book’s various stories interwove and shared important context. By unbundling them into discrete chapters, I risked foregoing needed context or content in a particular chapter or repeating the same events over and over across multiple chapters. I needed to somehow make the chapters self-contained while acknowledging relevant interconnections among them but still avoiding too much repetition across them. As stating the balancing act makes clear, this was a tricky problem.

I encountered three variants of the problem and designed a different solution for each. In the most common and easily resolved version, some concept or case popped up in a number of chapters, but only needed to be explained in-depth at first mention.  For instance, Steele v. Louisville & Nashville Railroad Co., a 1944 Supreme Court decision, crops up in almost every chapter in my book but it is unknown to many lawyers, let alone non-legal historians or any of the more general readers I might hope to attract. Luckily, it was also the dénouement of my first chapter. Having explained the case in depth in chapter one, I simply referred to it thereafter, usually with a descriptive phrase as a reminder (e.g., “the railroad discrimination case”) and perhaps a cross-reference to chapter one in the notes.

But even this easy example came with some more challenging wrinkles. First, explaining concepts and cases at first mention gave chapter one an incredibly heavy load to bear. Just when I was trying to gather some narrative steam to suck my reader in, instead I had to pause and explain another complicated, abstract, or dry concept such as “industrial democracy,” the state-action doctrine, or how the federal labor laws worked. To address this, I cut anything that did not absolutely have to be introduced to understand chapter one, saving anything I could for later. And even where some introduction was necessary, I tried to limit it to the bare minimum. Even so, I also had to reconcile myself to the fact that, with all the ground I had to lay for the book, its narrative steam might not fully gather until chapter two or three.

In another version of the problem an event or concept was very relevant to one chapter, but not to the first one in which it arose. Here, I followed my editor Sally Gordon’s sage advice to give your reader what she needs when she needs it. Resisting the temptation, for instance, to say everything about Barry Goldwater and the right-to-work movement when he first cropped up in chapter five, I let him be a minor character in the first few chapters in which he appeared. I devoted extended discussion to his views only in chapter eight, when I really needed him to explain how right-to-work advocates squared opposing Title VII of the 1964 Civil Rights Act with their efforts to amend the federal labor laws to prohibit racial discrimination by unions. My discussion of Goldwater crystallized conservatives’ turn to antidiscrimination as a useful anti-union issue, a trend that threaded throughout the book but gained salience in its later parts. Thereafter, Goldwater receded into the background again. I thought of this a bit like a zoom function on a camera—most chapters were zoomed out from Goldwater. In chapter eight, I zoomed in, switching him from background to foreground. For those following Goldwater’s appearances, hopefully the approach also built a little mystery: by chapter eight readers might be feeling sufficiently puzzled by his racial politics to be primed for the explanation.

Finally, sometimes an event was equally relevant in multiple chapters but for different reasons. For instance, Southern Democrats and Republicans held hostile hearings about the National Labor Relations Board and tried to repeal or amend its authorizing statute in the late 1930s and early 40s. This fact was relevant to my second and third chapter. I gave these events equal space in both chapters, but focused on how this congressional hostility made the Board cautious in chapter two and used the hearings to develop conservatives’ anti-union rhetoric in chapter three. As a result of this fix, when you read across the chapters you see familiar events from new perspectives.

There is only so much you can do to resolve these “what to put where” problems ex ante. Instead, I found myself shifting content around as I wrote and had to fine-tune my choices once the manuscript was complete. But the effort was worth it. In addition to avoiding too much repetition, it focused my attention on the microstructure of the book. Having pulled the book apart into modular segments, working out these problems helped me figure out how to knit them back together again.

What strategies have you developed for avoiding repetition when writing about interlocking stories or simultaneous events?

Sunday Book Roundup

Check out these reviews and author interviews this weekend:

The Los Angeles Review of Books has a review of Mitchel P. Roth's An Eye for an Eye: A Global History of Crime and Punishment (Reaktion Books).
"ON MY FIRST READING of An Eye for an Eye, Mitchel P. Roth’s new book, I recall closing it and asking myself a series of questions: “What have I learned?,” “How do I feel about what I had read?,” “Was it worth my time and effort?” This book is not a quick read, not a book where you can quickly turn to the next page. Often you have to, and want to, ponder what you’ve just read. But if you are interested in the subject matter, or if you are a judge, lawyer, elected official, or a “student” of jurisprudence, reading this book will be worth your time and effort."
The March issue of The Federal Lawyer has a review of Lackland H. Bloom, Jr.'s Do Great Cases Make Bad Law? (Oxford University Press) and a review of Guenter B. Risse's Plague, Fear, and Politics in San Francisco's Chinatown (Johns Hopkins University Press).

From the New Books series, there is an interview with Gavin Wright about his book, Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (Harvard University Press).

There's also an interview with David Krugler about his recently published book, 1919, The Year of Racial Violence: How African Americans Fought Back (Cambridge University Press).

And lastly, there is an interview with Lisa Tetrault in which she discusses The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (University of North Carolina Press).
"Typically, the beginning of the women’s rights movement in the United States is dated to 1848, at the meeting in Seneca Falls, NY. This origins story, however, did not become commonplace until much later, a story not told during the antebellum period, but a story created in response to Reconstruction-era politics with broad-reaching implications for the direction of the movement. The myth also was effective for women’s rights leaders to deal with division within the movement and an attempt to unify a very diverse understanding of women’s rights. The Myth of Seneca Falls, poses a corrective to the narrative of Seneca Falls as the origin of women’s rights. Tetrault’s work brings attention to conflicts in a narrative that often jumps from 1848 to the final triumph—a woman’s right to vote—in 1920. Our author examines the creation of the myth, the lessons it provided, and the ways in which it transformed the women’s movement. Myths, she argues, are not false; rather they serve as shorthand for larger stories. They also neatly obscure conflict and contingency. While scholars have written alternative histories, Tetrault sees Seneca Falls as having undue influence and seeks to decenter the narrative by illuminating its contested nature."

Saturday, February 14, 2015

Weekend Roundup

  • The National History Center of the American Historical Association is launching an initiative entitled Historians on the Hill.  It aims to identify Congressional staffers who hold history degrees.  The Center asks history degree-holders currently working on Capitol Hill to complete this survey.
  • If you're interested in originalism, follow the link to the judicial politics blog Balls and Strikes, where Calvin TerBeek has used Kuhn's The Structure of Scientific Revolutions to reflect on the health of the originalist project (spoiler alert: he says it's doomed).
  •  Via the New York Times: A new report by the the Equal Justice Initiative will change how we understand the history of lynchings in the U.S. (Hat tip: Torts Today)
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.