Wednesday, April 23, 2014

Rohit De Receives L&SA's Dissertation Prize

Rohit De, Department of History, Princeton University, is a co-recipient of the Law and Society Association’s Dissertation Prize, for "The Republic of Writs: Litigious Citizens, Constitutional Law, and Everyday Life in India (1947-1964)."  Here’s the citation:
Rohit De’s brilliant dissertation "The Republic of Writs: Litigious Citizens, Constitutional Law ,and Everyday Life in India (1947-1964)” is a fascinating, interdisciplinary study of the role of diverse parties in the Indian legal system and their legal consciousness in the period from colonial times to the post-colonial era.  With unusual access to Indian Supreme Court archives, De provides a captivating account of litigation surrounding such issues as commodity controls (e.g., alcohol prohibition laws in Bombay), the cow protection laws in Bitar,  and laws regulating sex work.   This study affords insights into the legal process in India by moving beyond doctrinal analysis to the investigation of how law influences the ways of life of diverse cultural communities.  This magnificent legal history deals with subaltern communities and their ability to maneuver in legal processes, and provides this incisive analysis with great clarity.  It shows that important jurisprudence was sometimes a consequence not of the work of legal elites but rather of diverse marginalized communities seeking justice through legal institutions.  For its scintillating and eloquent cultural analysis, the committee recommends that Rohit De receive the Law and Society dissertation prize.

Parrillo Receives L&SA's Hurst Award

Former Guest Blogger Nick Parrillo, Yale Law School, has received the J. Willard Hurst Award of the Law and Society Association for his book Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (Yale University Press 2013).  Here is the citation: 
Against the Profit Motive traces the transformation between the late eighteenth century and the early twentieth century in the way public officials were paid. During this period, set salaries, divorced from the profit motive, supplanted alternative forms of income dependent on the delivery of services or the achievement of output.  Through exhaustive and creative archival research, Parrillo uncovers the prevalence in antebellum America of recipients of government services paying government officers a fee (what Parrillo calls a facilitative payment) for the service; in the early period the fees were negotiated by the officer and recipient of services but later were set by statute. He also shows widespread reliance by government on payment of bounties to officials to enforce criminal and civil law and to collect taxes.  Parrillo reveals that facilitative payments fell from favor because the notion that officers should serve their customers was inconsistent with mass democratic politics and interest-group rivalry.  Governments abandoned bounties because they were excessively coercive, failed to secure mass voluntary cooperation, and undercut state legitimacy.  This is a thought-provoking, novel, and magisterial account of the theory and practice of compensation of government officials and public servants and shows how practices that were once considered legitimate and, indeed, desirable to induce careful service became discredited as corrupt.   
The book both recovers and reconstructs an unfamiliar historical world and persuasively explains the emergence of key features of modern governance. Weaving together exhaustive archival research with sophisticated theoretical engagement, the book draws our attention to something familiar -- payment of government officials – and makes the familiar seem surprising.  It shows us how to think anew about this familiar topic by reconstructing the profit motive model of payment.  It explores how our revised understanding of this specialized but important topic sheds light on some of the largest issues in political and legal history, particularly the development of institutional legitimacy in American state-building.  Parrillo easily moves back and forth from the particular to the general. With mastery over impressive swaths of secondary literature in history, political science, and law, Parrillo judiciously and effectively draws on other disciplines to bring insight to historical developments.  This is a book filled with smart observations and insights; it is sprawling in its coverage and its use of archival materials, yet it is meticulously organized and constructed so as to carry the reader through a long period of time and a wide array of government operations.

Tuesday, April 22, 2014

CFP: "Legal Scholarship We Like, and Why it Matters"

Via JOTWELL (which regularly alerts us to terrific legal history scholarship) we have the following call for proposals:
Legal Scholarship We Like, and Why it Matters 
University of Miami School of Law November 7-8, 2014 
JOTWELL, the Journal of Things We Like (Lots), is an online journal dedicated to celebrating and sharing the best scholarship relating to the law. To celebrate Jotwell’s 5th Birthday, we invite you to join us for conversations about what makes legal scholarship great and why it matters.
In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We hope this conference will serve as an answer to those challenges, both in content and by example.
We invite pithy abstracts of proposed contributions, relating to one or more of the conference themes. Each of these themes provides an occasion for the discussion (and, as appropriate, defense) of the scholarly enterprise in the modern law school–not for taking the importance of scholarship for granted, but showing, with specificity, as we hope Jotwell itself does, what good work looks like and why it matters.
I. Improving the Craft: Writing Legal Scholarship
We invite discussion relating to the writing of legal scholarship. 
1. What makes great legal scholarship? Contributions on this theme could either address the issue at a general level, or anchor their discussion by an analysis of a single exemplary work of legal scholarship. We are open to discussions of both content and craft.
2. Inevitably, not all books and articles will be "great". What makes "good" legal scholarship? How do we achieve it?
II. Improving the Reach: Communicating and Sharing
Legal publishing is changing quickly, and the way that people both produce and consume legal scholarship seems likely to continue to evolve. 
3. Who is (are) the audience(s) for legal scholarship?
4. How does legal scholarship find its audience(s)? Is there anything we as legal academics can or should do to help disseminate great and good scholarship? To what extent will the shift to online publication change how people edit, consume, and share scholarship, and how should we as authors and editors react?
III. Improving the World: Legal Scholarship and its Influence
Most broadly, we invite discussion of when and how legal scholarship matters. 
5. What makes legal scholarship influential? Note that influence is not necessarily the same as "greatness". Also, influence has many possible meanings, encompassing influence within or outside the academy.
6. Finally, we invite personal essays about influence: what scholarship, legal or otherwise, has been most influential for you as a legal scholar? What if anything can we as future authors learn from this?

Tushnet on the Roberts Court at BC

At 5:30 today Boston College’s Clough Center for the Study of Constitutional Democracy is sponsoring an author-meets-readers session on In the Balance: Law and Politics on the Roberts Court, by Mark Tushnet, Harvard Law School.  Commentators are Aziz Huq, University of Chicago Law School; Kent Greenfield, BC Law School; and Ken Kersch, Boston College.  The moderator is Katharine Young, BC Law School.  The even will take place at the Boston College Law School’s Barat House.  Space is limited.

Eyer, "Lessons From Sex and Illegitimacy"

Katie R. Eyer (Rutgers School of Law - Camden) has posted "Lessons From Sex and Illegitimacy," which is forthcoming in the UC Davis Law Review. The abstract follows:
We stand at a crossroads in Equal Protection doctrine. Over the last 20 years, the Supreme Court has decided a series of cases in which it has constitutionally invalidated anti-gay discrimination. In each of these cases, the Court has declined to specify its standard of review, and has deployed an approach that is not easily classifiable within its traditional tiered standards of review. Nevertheless, as such decisions have accumulated, it has become clear that they are not simply aberrational deviations from deferential rational basis review; that they mark some form of more systematic development in the Court’s Equal Protection doctrine.

The precise nature of the development marked by the gay rights cases, however, remains far from clear. On the one hand, such cases could be understood as simply precursors to a turn to formal heightened scrutiny for sexual orientation-based classifications; as a mark of the Court’s special solicitude for challenges to discrimination targeting lesbians and gay men. But, such cases can also be understood very differently; as marking broader shifts in the Court’s Equal Protection doctrine, away from its traditional “tiered” approach, and towards a more flexible and robust vision of Equal Protection review.

This bifurcation of possibilities bears remarkable similarities to another historical moment in the Court’s Equal Protection doctrine: the dilemma that the Court faced in mid-1970s regarding how to characterize its early precedents striking down sex and illegitimacy classifications. And yet relatively little scholarship has explored these interconnections, and their potential salience for this contemporary moment in Equal Protection review. This essay seeks to recover this largely forgotten history, and to draw on it in considering the possibilities and risks that may attach to the particular juncture at which we find ourselves vis-√†-vis the Court’s Equal Protection doctrine.

What such an inquiry suggests is that the dominant modern understanding of the Court’s minimum tier (rational basis) review—as a shallow and empty form of review, devoid of meaningful scrutiny—is, to some extent, a byproduct of our loss of historical memory. Just like the contemporary gay rights cases, the early sex and illegitimacy cases were not, at the time they were decided, applications of formally heightened review. It was only later—as mid-tier scrutiny became formally institutionalized—that such cases were reimagined as “[h]eightened scrutiny under a deferential, old equal protection guise."

When viewed together with the Court’s contemporary gay rights cases (as well as other, largely forgotten applications of minimum tier review), what this history suggests is that our canonical understanding of minimum tier review is by no means the only vision of Equal Protection review possible. Rather, taking account of the full sweep of the Court’s minimum tier jurisprudence suggests that the Court often applies greater than minimal scrutiny where group or rights-based concerns exist. Retaining this historical memory—regardless of the ultimate outcome of the Court’s gay rights jurisprudence—may help ensure that all groups have access to a more robust and meaningful form of Equal Protection review.
The full article is available here, at SSRN.

Monday, April 21, 2014

Barbas on the Tort of Appropriation of Identity, 1900-50

From Privacy to Publicity: The Tort of Appropriation in the Age of Mass Consumption, by Samantha Barbas, SUNY Buffalo Law School, is out in the Buffalo Law Review 61 (2013): 1119-89.  Here is the abstract:
Around 1900, states began to recognize a tort of “commercial appropriation of identity,” a branch of the tort of invasion of privacy. Under the appropriation tort, a person whose image or identity had been used in an advertisement without consent could recover damages for dignitary and emotional harms. In the middle of the 20th century, the tort underwent a fundamental shift. Courts reoriented the tort so that it no longer exclusively protected a person’s interest in dignity or “privacy,” but rather the pecuniary interest in the commercial exploitation of one’s identity, or one’s “right of publicity.”

No one disputes that this change occurred. Why it happened has yet to be explained. In this article, I explain appropriation’s transformation from a dignity-based “right of privacy” to a profit-oriented “right of publicity” as a consequence of changing social attitudes towards advertising and mass consumption. At the turn of the 20th century, when frugality, modesty, and self-restraint were prevailing middle-class values, mass consumption and product advertising were widely associated with moral corruption and decay. Insofar as it associated a person with the "taint of commerce," appropriating someone's image and displaying it in an ad without consent subjected that person to public scorn and injured his or her dignity, reputation, and sense of self.

By the 1950s, advertising and mass consumption had been resignified in the popular imagination. In the consumer culture and celebrity culture that America had become, buying consumer goods and being publicly associated with products were no longer viewed as disreputable acts but as potentially desirable and prestigious. The commercialization of personal identity took on an aura of glamour and status. The “right of publicity” eclipsed the “right of privacy” when modern consumer culture came to see loss of profit as the real injury to be had from the unauthorized commercial use of one’s image, rather than harm to one's dignity or reputation.

New Release: Farganis and Wedeking, "Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade"

New from the University of Michigan Press: Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade (March 2014), by Dion Farganis (Elon University) and Justin Wedeking (University of Kentucky). The Press explains:
Critics claim that Supreme Court nominees have become more evasive in recent decades and that Senate confirmation hearings lack real substance. Conducting a line-by-line analysis of the confirmation hearing of every nominee since 1955—an original dataset of nearly 11,000 questions and answers from testimony before the Senate Judiciary Committee—Dion Farganis and Justin Wedeking discover that nominees are far more forthcoming than generally assumed. Applying an original scoring system to assess each nominee’s testimony based on the same criteria, they show that some of the earliest nominees were actually less willing to answer questions than their contemporary counterparts. Factors such as changes in the political culture of Congress and the 1981 introduction of televised coverage of the hearings have created the impression that nominee candor is in decline. Further, senators’ votes are driven more by party and ideology than by a nominee’s responsiveness to their questions. Moreover, changes in the confirmation process intersect with increasing levels of party polarization as well as constituents’ more informed awareness and opinions of recent Supreme Court nominees.
More information is available here.

Sunday, April 20, 2014

Sunday Book Roundup

Continuing with works published this year to mark the 50th anniversary of the Civil Rights Act, The Washington Post reviews Todd S. Purdum's An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (Holt). An excerpt can also be found here on NPR. Of the book, the Post writes,
"Probably “An Idea Whose Time Has Come” will be of most use to readers who were too young to appreciate what happened in Washington in 1964 (as indeed was Purdum, who was born in 1959) or who came along well after it had receded into dim memory, which is what most American historical memory tends to do anyway." 
It's also been 50 years since Rachel Carson's death in 1964, and her life and writings are celebrated by both the New Statesman, which discusses her "sea trilogy" here, and HNN, which has a review of Robert K. Musil's Rachel Carson and Her Sisters: Extraordinary Women Who Have Shaped America's Environment (Rutgers University Press).
"Despite the central role of women in the environmental movement, surprisingly little is known about them. Furthermore, what is known is usually limited to the work of Rachel Carson, whose powerful call to action, Silent Spring (1962), is widely credited with jump-starting the modern environmental movement. But, as shown by Robert Musil’s new book, Rachel Carson and Her Sisters, Carson is merely the most visible of numerous women who have had a powerful impact upon how Americans have viewed the natural environment and sought to preserve it."
Also in biography, the Washington Independent Review of Books reviews Mark Perry's The Most Dangerous Man in America: The Making of Douglas MacArthur (Basic Books).  And Jill Lepore discusses Senator Elizabeth Warren's memoir, A Fighting Chance (Metropolitan Books) in The New Yorker.

Two books on gay rights are featured in reviews this week. History Today reviews David A.J. Richards's The Rise of Gay Rights and the Fall of the British Empire: Liberal Resistance and the Bloomsbury Group (Cambridge University Press). The second book is Jo Becker's Forcing the Spring: Inside the Fight for Marriage Equality (Penguin Press). The New Republic covers the book in a piece here, and The Washington Post reviews the book here.
"This book is not intended to be a tome on gay history, but Becker should brace for accusations of omission, particularly by longtime activists who will feel marginalized. “Forcing the Spring” is a riveting legal drama, a snapshot in time, when the gay rights movement altered course and public opinion shifted with the speed of a bullet train."
The Federal Lawyer has still more reviews online this month. Reviews of Andrew Kahrl's The Land Was Ours: African American Beaches from Jim Crow to the Sunbelt South (Harvard University Press)  and Doris Kearns Goodwin's The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism (Simon & Schuster) can be found here.

An excerpt of Chasing the American Dream: Understanding What Shapes Our Fortunes (Oxford University Press) by Mark Robert Rank, Thomas Hirschl, and Kirk Foster can be found in Salon.

Slate reviews Nikil Saval's "detailed cultural history of how the office grew to become the definitive 20th century workplace," Cubed: A Secret History of the Workplace (Doubleday).

H-Net adds several good reviews this week. There is a review of Emma Christopher's A Mericless Place: The Fate of Britain's Convicts after the American Revolution (Oxford University Press), a review of The Dunning School: Historians, Race and the Meaning of Reconstruction edited by John David Smith and J. Vincent Lowery (University Press of Kentucky), a review of Elizabeth Cobbs Hoffman's American Umpire (Harvard University Press), and a review of Anne E. Marshall's Creating a Confederate Kentucky: The Lost Cause and Civil War Memory in a Border State (University of North Carolina Press).

The Los Angeles Times reviews Alex Beam's American Crucifixion: The Murder of Joseph Smith and the Fate of the Mormon Church (Public Affairs).  

Saturday, April 19, 2014

Weekend Roundup

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

Friday, April 18, 2014

Berring on West's Digests and Legal Thought

Richard A. Danner, Duke University School of Law, has posted Influences of the Digest Classification System: What Can We Know?, which also appears in Legal Reference Services Quarterly 33 (2014).  Here is the abstract:    
Robert C. Berring has called West Publishing Company’s American Digest System “the key aspect of the new form of legal literature” that West and other publishers developed in the last quarter of the nineteenth century. Berring argued that West’s digests provided practicing lawyers not only the means for locating precedential cases, but a “paradigm for thinking about the law itself” that influenced American lawyers until the development of online legal research systems in the 1970s. This article discusses questions raised by Berring’s scholarship, and examines the late nineteenth and early twentieth century legal environment in which the West digests were created and became essential research tools for American lawyers.

The Romance of Flight and Patent Litigation

We don’t review books here at Legal History Blog, but we also don’t complain when publishers send us review copies.  This week we received Birdmen: The Wright Brothers, Glenn Curtiss, and the Battle to Control the Skies, by Lawrence Goldstone, an epic account of patent litigation enlivened by the romance of invention and flight, published by a subsidiary of Random House.  Although I only dipped into it before passing it along to our patent maven here at Georgetown Law, I’m happy to reproduce the press’s somewhat breathless copy, in case anyone out there wants to punch up their summary the next time they confront an author’s questionnaire.  Surely, there’s a happy medium between this and the usual fare for a scholarly book?  Maybe something with about a third the adjectives.
From acclaimed historian Lawrence Goldstone comes a thrilling narrative of courage, determination, and competition: the story of the intense rivalry that fueled the rise of American aviation.
The feud between this nation’s great air pioneers, the Wright brothers and Glenn Curtiss, was a collision of unyielding and profoundly American personalities. On one side, a pair of tenacious siblings who together had solved the centuries-old riddle of powered, heavier-than-air flight. On the other, an audacious motorcycle racer whose innovative aircraft became synonymous in the public mind with death-defying stunts. For more than a decade, they battled each other in court, at air shows, and in the newspapers. The outcome of this contest of wills would shape the course of aviation history—and take a fearsome toll on the men involved.

Birdmen sets the engrossing story of the Wrights’ war with Curtiss against the thrilling backdrop of the early years of manned flight, and is rich with period detail and larger-than-life personalities: Thomas Scott Baldwin, or “Cap’t Tom” as he styled himself, who invented the parachute and almost convinced the world that balloons were the future of aviation; John Moisant, the dapper daredevil who took to the skies after three failed attempts to overthrow the government of El Salvador, then quickly emerged as a celebrity flyer; and Harriet Quimby, the statuesque silent-film beauty who became the first woman to fly across the English Channel. And then there is Lincoln Beachey, perhaps the greatest aviator who ever lived, who dazzled crowds with an array of trademark twists and dives—and best embodied the romance with death that fueled so many of aviation’s earliest heroes.

A dramatic story of unimaginable bravery in the air and brutal competition on the ground, Birdmen is at once a thrill ride through flight’s wild early years and a surprising look at the personal clash that fueled America’s race to the skies.
Do you think they'll let me play "Cap't Tom" in the movie?

Ecklund's "Origins of Western Law from Athens to the Code Napoleon"

Talbot Publishing has announced the publication of The Origins of Western Law from Athens to the Code Napoleon by John E. Ecklund (1916-2000).  It was edited by his wife, Constance Cryer Ecklund.

John E. Ecklund
The press describes Ecklund as "a lifelong student of legal history.”  He graduated from Yale Law School in 1941, after serving as case editor of the Yale Law Journal and graduating cum laude.  He joined the legal division of the Board of Economic Warfare, where Willard Hurst wrote minimum labor standards into procurement contracts for overseas materiel at the start of World War II.  He later served in a law firm and as general counsel and treasurer of Yale University.

According to the press,
The Origins of Western Law from Athens to the Code Napoleon charts the horizon of Western legal origins. Eternal Platonic truths versus the Sophists of individual preferences, medieval Realists against Nominalists, natural lawyers of the 17th and later centuries, Montesquieu and other Enlightenment thinkers fighting through principles and personhood-these and many more figures and ideas come alive in this comprehensive survey of the antecedents of our modern legal system.
In the preface, Ecklund explains:
This book can be described as non-technical history of legal science.  It centers on the recounting of a major and venerable debate--one which grew from the complex intricacies of social participation and philosophical argument in ancient Athens, became the stuff of legend in an elegant French code, and will continue beyond today into laws which must begin to reach into worlds still unknown to us. This theme is the great conflict between people who see law as tending to come from abstract principles that are necessarily right and people who see it as tending to come merely from the changing preferences of those in position to impose their will--preferences that are only preferences in a world in which nothing is necessarily right.
From this excerpt (and Laura Kalman's Legal Realism at Yale and Robert Gordon's chapter in History of Yale Law School), I imagine that the volumes represent Ecklund's lifelong dialogue with his law professors, as well as a lifetime's accumulation of learning about the law.

The TOC appears after the jump.

New Release: Nelson, "Pathways to the Supreme Court: From the Arena to the Monastery"

New from Palgrave Macmillan: Pathways to the Supreme Court: From the Arena to the Monastery (Dec. 2013), by Garrison Nelson (University of Vermont). From the Press:
As the arbiter of the Constitution, it is presumed that the US Supreme Court decrees "the law of the land" in a fair-minded and even-handed manner. Key decisions in the Court's history have challenged these assumptions, giving way to a greater discussion about how judges are chosen, and the ideological roots from which they rule. This book explores more than two centuries of Supreme Court justice selections, tracking the Court's change from a time when consensus choices were relatively evenly divided between political leaders from "the arena," and judges from "the monastery," to a recent era fraught with controversial presidential appointees to federal positions that have yielded ideologically-influenced administrations of law.
A few blurbs of note:
"This fascinating, methodologically-inventive book advances our understanding of key issues in American politics. By systematically probing how Supreme Court Justices are selected, by helping understand the types of Justices, and by tracking ideology and voting patterns, Pathways to the Supreme Court offers important insights both into the Court's actions and standing." --Ira Katznelson

There are four routes to the Supreme Court-collateral, diagonal, vertical, and external. That is Garrison Nelson's analytic framework in this work stretching across two centuries of Court history. The book is loaded with fascinating information about where the justices have come from, why, and so what. As always, Nelson is sure-footed and meticulous." --David Mayhew
More information is available here.

Thursday, April 17, 2014

Call for Nominations: Peter Oliver Prize in Canadian Legal History

Another announcement from our friends at the Canadian Legal History Blog:
The Osgoode Society for Canadian Legal History invites nominations for the Peter Oliver Prize in Canadian Legal History. The prize, named for Professor Peter Oliver, the Society's founding editor-in-chief, is awarded annually for published work (journal article, book chapter, book) in Canadian legal history written by a student. Students in any discipline at any stage of their careers are eligible. The Society takes a broad view of legal history, one that includes work in socio-legal history, legal culture, etc., as well as work on the history of legal institutions, legal personnel, and substantive law.

Faculty members are encouraged to nominate student work of which they are aware, and the Society will also be pleased to accept self-nominations. Those nominating their own work should send a copy of it to the Society. The deadline for nominations for the 2014 Prize, to be awarded for work published in 2013, is April 30, 2014.

Please send nominations to Professor Jim Phillips, Editor-in-Chief, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto ON M5H 2N6, or by email to

Call for Applications: R. Roy McMurtry Fellowship in Canadian Legal History

Via the Canadian Legal History Blog, we have the following fellowship announcement:
The R. Roy McMurtry Fellowship in Canadian Legal History was created on the occasion of the retirement as Chief Justice of Ontario of the Hon. R. Roy McMurtry. It honours the contribution to Canadian legal history of Roy McMurtry, Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years (and currently) the Society's President. The fellowship was established by Chief Justice McMurtry's friends and colleagues, and endowed by private donations and the Law Foundation of Ontario.

The fellowship is to support graduate (preferably doctoral) students or those with a recently completed doctorate, to conduct research in Canadian legal history, for one year. Scholars working on any topic in the field of Canadian legal history are eligible. Applicants should be in a graduate programme at an Ontario University or, if they have a completed doctorate, be affiliated with an Ontario University. The fellowship may be held concurrently with other awards for graduate study. Eligibility is not limited to history and law programmes; persons in cognate disciplines such as criminology or political science may apply, provided the subject of the research they will conduct as a McMurtry fellow in Canadian legal history. The selection committee may take financial need into consideration.

The fellowship will be awarded in June 2014, and will have a value of $16,000. Applications will be assessed by a committee appointed by the Osgoode Society for Canadian Legal History and consisting of Society Directors and academics. Those interested should apply by sending:
A full curriculum vitae
A statement of the research, not exceeding 1,000 words, that they would conduct as a McMurtry fellow. The statement should clearly convey the nature of the project, the research to be carried out, and the relationship, if any, between the project and previous work done by the applicant.
The names and addresses (including email addresses) of two academic referees. Please do not ask your referees to write; the Society will contact them if necessary.
For persons not currently connected with an Ontario University, an indication of how and when they intend to obtain such a connection.
Please send applications to Marilyn Macfarlane, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6, or by email to . The deadline for applications is May 15, 2014.

New Release: Crawford, "The Fight for Status and Privilege in Late Medieval and Early Modern Castile, 1465–1598"

New from Penn State University Press: The Fight for Status and Privilege in Late Medieval and Early Modern Castile, 1465–1598, by Michael J. Crawford (McNeese State University). A description from the Press:
In The Fight for Status and Privilege in Late Medieval and Early Modern Castile, 1465–1598, Michael Crawford investigates conflicts about and resistance to the status of hidalgo, conventionally understood as the lowest, most heavily populated rank in the Castilian nobility. It is generally accepted that legal privileges were based on status and class in this premodern society. Crawford presents and explains the contentious realities and limitations of such legal privileges, particularly the conventional claim of hidalgo exemption from taxation. He focuses on efforts to claim these privileges as well as opposing efforts to limit and manage them. Although historians of Spain acknowledge such conflicts, especially lawsuits associated with this status, none have focused a study on this extraordinarily widespread phenomenon. This book analyzes the inevitable contradictions inherent in negotiation for and the implementation of privilege, scrutinizing the many jurisdictions that intervened in these struggles and debates, including the crown, judiciary, city council, and financial authorities. Ultimately, this analysis imparts important insights about the nature of sixteenth-century Castilian society with wide-ranging implications about the relationship between social status and legal privileges in the early modern period as a whole.
And more, from reviewer Scott K. Taylor ():
What did it mean to be an hidalgo? This was a important status in late medieval and early modern Spain, one that all historians know was crucial—but none have really known much about it until now. Michael Crawford argues that hidalgu√≠a had little to do with the two main justifications that contemporary Spaniards gave for the privilege: that it either derived from a racial understanding of inherited nobility or was a reward for service to the king. Instead, noble status was fluid, contingent on circumstance, political networking, and the ability to carry out lengthy lawsuits successfully. Using hitherto unexploited sources, Crawford’s subtle analysis displays the rich complexity of local government in early modern Spain, pulling attention away from the so-called absolutism of the central government and showing how much more important the officials, regulations, and courts of local municipalities were in the real lives of Spaniards.
Additional information is available here.

Wednesday, April 16, 2014

Pfander and Birk on the Adverse Party Requirement

James E. Pfander and Daniel D. Birk, Northwestern University School of Law, have posted Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, which is forthcoming in the Yale Law Journal.  Here is the abstract:    
The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system.

In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments.

Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.

Thomas on the Fall of the Jury

Suja A. Thomas, University of Illinois College of Law, has posted Blackstone's Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States, which also appears in the William & Mary Law Review 55 (2014).  Here is the abstract:    

Jury Box, Metzenbaum Courthouse, Cleveland (Highsmith/LC)
When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently—as an integral part of government in both England and the colonies. This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government—to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.

Colgan, "Reviving the Excessive Fines Clause"

Beth A. Colgan (Stanford Law School) has posted "Reviving the Excessive Fines Clause," which appears in Volume 102, no. 2 of the California Law Review (2014). Here's the abstract:
Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.

This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations. The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine" as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.
The full article is available here.

Hat tip: Legal Theory Blog

Tuesday, April 15, 2014

A Final Post on Tax Day

"The New Man on the Job" (LC)
Former Guest Blogger Ajay Mehrotra's op-ed: The Lost Promise of Progressive Taxes.

Kellogg on Holmes on the Syllogism

This one looks fascinating, especially for fans of The Metaphysical ClubFrederic R. Kellogg, George Washington University, has posted The Social Dimension of Legal Induction: The Problem of Legal Similarity and the Process of Entrenchment.  Here is the abstract:   
(Credit: Library of Congress)
After attending lectures on the logic of induction by C.S. Peirce in 1866 and reading J.S. Mill’s A System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of "reasoning from particulars to particulars." In an 1870 paper he adds an element of the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification.

Holmes’s rejection of the syllogism in The Common Law is well known, but not his attendance at Peirce’s 1866 Lowell Lectures, where Peirce addressed the improper use of the syllogism with respect to "occasions," as opposed to objects with extension. Peirce also criticized Mill’s assumption of a natural similarity among particulars, requiring no human selectivity. This paper suggests that Holmes applied these insights to law, analyzing how legal similarity is negotiated and eventually entrenched in the common law.

Krakoff, "Constitutional Concern, Membership, and Race"

Sarah Krakoff (University of Colorado Law School) has posted "Constitutional Concern, Membership, and Race," which is forthcoming in the Florida International Law Review (2014). Here's the abstract:
American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which is part of a larger project on tribes, sovereignty, and race, will discuss the history of Florida’s tribes, their road from pre-contact independent peoples to federally recognized tribes, and their contemporary membership criteria in order to shed light on the inextricably political nature of race, membership and sovereignty in the American Indian context.
The full article is available here.

Hat tip: Turtle Talk

Docket Books at the Supreme Court: A Definitive List and Access Rules

Courtesy: Office of the Curator, US Supreme Court
When U.S. Supreme Justice James McReynolds pushed his docket book across his desk to John Knox, the legal secretary felt “almost as if Moses had unexpectedly handed me the Ten Commandments.”  Knox’s awe was understandable: the book was a large, red volume, locked with a clasp, in which McReynolds, like his brethren, recorded votes, and sometimes more, during the conferences in which they considered the week's cases.  Knox recalled McReynolds saying rather sharply, ‘That book will not be preserved after this term of the Court!  Next June I shall take it downstairs myself and stand before the big furnace in this building and watch it burn up.  A book like this must be destroyed at the end of each term!”

McReynolds may well have destroyed his docket book for the 1936 Term, but, thanks to a list released yesterday by the Office of the Curator of the Supreme Court of the United States (right; click to enlarge), we now know that his docket book for 1934 survives, as do those of many other justices.

As I said in an earlier post, the existence of the docket books is hardly a secret.  Dean Robert C. Post used Pierce Butler’s, Owen Roberts’s, and Harlan Fiske Stone’s in The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, Minnesota Law Review 85 (2001): 1267-1390.  I mentioned my use of Butler’s and Roberts’s docket books in a post on Crowell v. Benson (1932).  Recently, Edward A. Purcell, Jr., drew upon Louis Brandeis’s and others’ in Understanding Curtiss-Wright, Law and History Review 31 (2013); 699 n. 99.  But until yesterday, I believe, no one outside the Curator’s office has had a complete list of the surviving docket books.

I consider myself only an accidental constitutional historian.  In Tocqueville’s Nightmare (publication date: May 21), I needed some informant to explain how American judges reconciled the administrative state and the rule of law.  No one served my purpose better than did Charles Evans Hughes.  Once I chose Hughes, a sally into "1937 and all that" was inevitable. 

Butler's docket books helped me not only with Crowell but also with Morgan v. United States (1938).  In an entry for the latter decision, Butler records Hughes's remark that although what constitutes a "full hearing" in an administrative procedure was "relative," the hearing in that case was inadequate.  Hearsay though it is, Butler's report is invaluable, because Hughes destroyed his own docket books, and the chief justice's court papers are quite thin.

Not until after my second visit to the Curator's Office to work with the Butler and Roberts docket books did I realize that others existed that might help with the Supreme Court's 1935 Term, during which Brandeis reported that Hughes was "deeply unhappy" and had lost "control over the court."  Charles E. Wyzanski, Jr., in a letter to his mother dated October 18, 1936, surviving in box 22 of his papers at the Massachusetts Historical Society, passed along gossip from Stone's clerk, Thomas Harris, that in conference Hughes had voted with Brandeis, Cardozo and Stone in Jones v. SEC, 298 U.S. 1 (1936), Great Northern Ry. Co. v. Weeks, 297 U.S. 135 (1936), and Elgin, Joliet R. v. U.S, 298 U.S. 492 (1936), but that he had changed his vote when he found he was in the minority, lest a series of 5-4 decisions undermine the Court's authority. I had a request pending with the Curator's Office to verify Harris's report in one of the surviving docket books for the term, but it was not granted before Tocqueville's Nightmare went to press.

In addition to the list of docket books, the Office of the Curator also released the following "Instructions to Researchers: Access to the Docket Book Collection":
The Office of the Curator at the Supreme Court of the United States maintains a collection of nearly 120 historic docket books used by former Justices. Due to the sensitive and fragile nature of these books, access is restricted. The Court will make these books available to researchers under the following procedures but reserves the right to decline access.

(1) Access to docket books is available to post-graduate scholars, professors, and historians as approved on a case-by-case basis.

(2) Researchers must submit a written request to the Office of the Curator providing:
a. Name.
b. Affiliated Institution.
c. Contact information, including phone number, email, and mailing address.
d. A short description of the project with timeframe.
e. A justification for why access to the docket books is required.
f. A limit of up to 20 specific case citations per request.

Please note: Requests to review an entire docket book will be denied unless there is a compelling reason that necessitates such access. In such a case, the Office of the Curator will offer a reasonable opportunity to view the book in person.

(3) Upon receipt of the above, requests will be reviewed by the Curator’s staff and submitted for approval.

(4) Upon approval, printed copies of the requested entries will provided at no cost. These copies are for research purposes only and may not be reproduced for publication.

(5) Requests will be handled in the order they are received and may take up to 6-8 weeks to review and process.

(6) Additional requests may be submitted, but each request will be handled as a new one and processed in the order it was received.

(7) The preferred citation for the docket books is: Case Name, Docket Book of Justice [name], [Term and Year], Office of the Curator, Supreme Court of the United States.

Please submit requests online here or send request to:
Office of the Curator
Attn: Docket Book Requests
Supreme Court of the United States
Washington, DC 20543
Brandeis's Docket Book, 1935 Term
The new policy is an improvement on prior practice, and I know that the staff of the Office of the Curator has worked hard to clarify and standardize what has been an opaque and ad hoc process.  Still, few scholars and teachers will be satisfied with this access, especially because we and our students have grown accustomed to using equally sensitive and fragile documents at the Library of Congress and other repositories.  For example, after my second visit to work with the Butler and Roberts docket books, I walked a block south to the Madison Building of the Library of Congress and, without any prior notice or approval, examined William O. Douglas's docket book for the 1938 Term, deposited there with the rest of his papers.  Rather than being limited to twenty entries at a time, I could turn the pages of the book at will.  This semester one of my students consulted another of Douglas's docket books for her seminar paper. Even if, under the access rules of the Curator's Office, she qualified as "a postgraduate scholar," I doubt she could have formulated a request, received clearance, and been scheduled for a visit before her paper was due.

The limits on access seem all the more incongruous when one realizes that scholars working on later periods can more easily view the Court’s deliberations, thanks to the court papers of justices deposited at the Library of Congress and other repositories.  See, for example, my former Georgetown colleague Richard Lazarus’s National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains, Georgetown Law Journal 100 (2012): 1507-86.

I hope the new rules governing access to the docket books will not be the last word on the subject.  I know nothing about how they were formulated, but I imagine they could be greatly improved by a referral to a committee of interested parties, including representatives of the Curator's Office and of the Supreme Court, archivists, historians, legal scholars, political scientists, and journalists.

Update:  Jan Palmer and Saul Brenner, “Working with Supreme Court Docket Books,” Law Library Journal 81 (1989): 41-46, a thoughtful essay on the scholarly value of docket books, does not mention any of those now identified by the Curator’s Office.  The authors may have obliqued referred to them when they described the ones they discussed as the only “presently available” docket books, “as far as we know.”  And see the SSRN paper by Paul Axel-Lute, Justice Bradley's Docket Books and Law Books at Rutgers-Newark.

Monday, April 14, 2014

Carle Receives Liberty Legacy Foundation Award for "Defining the Struggle"

[We have the following press release from the Organization of American Historians about former LHB Guest Blogger Susan Carle!]

Atlanta, GA-April 12, 2014. At the 2014 OAH Annual Meeting, OAH President Alan M. Kraut and OAH President-Elect Patricia Limerick presented Susan D. Carle, American University, with the 2014 Liberty Legacy Foundation Award for the best book by a historian on the civil rights struggle from the beginnings of the nation to the present. 

In Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press), Carle has written a paradigm-shifting study of the struggle for civil rights in the United States by moving the lens to focus on organizations that flourished during the period 1880-1915, before the heyday of the NAACP and the National Urban League. This deeply-researched book recovers the history of lesser-known, forerunner organizations that, she persuasively argues, laid the intellectual and organizational groundwork for these better-known organizational giants of the civil rights movement. The forerunner organizations introduced in Carle's account include the National Afro American League, the National Afro American Council, the National Association of Colored Women, and the Niagara Movement. These groups engaged in myriad struggles to improve the quality of life for black Americans long before the formation of the NAACP and the Urban League. Many of the early efforts focused on the economic needs of population-a variety of activism that later organizations often have been accused of overlooking. These early organizations also engaged in legal reform efforts-activities lost to historical memory after the NAACP won its famous battle to dismantle Jim Crow. By recounting the range of activities that these forerunner organizations undertook, Carle shows that lesser-known organizations provided a foundation that directly informed which battles later civil rights leaders would take on and which arguments and legal tactics they would draw upon to win them.

Through a deft, accessibly-written reconceptualization of the organizational foundations of the civil rights movement, Susan Carle makes an invaluable contribution to the historiography of the long civil rights movement in Defining the Struggle. Carle beautifully recovers the history of the nineteenth-century visionaries who powerfully shaped struggles for racial reform decades later. Thanks to Professor Carle, we now know that leaders of the Second Reconstruction owe these visionaries a great intellectual debt.

Lain on Reconstructing Engler

Corinna Lain, University of Richmond School of Law, has posted God, Civic Virtue, and the American Way: Reconstructing Engel, which is forthcoming in the Stanford Law Review 67 (2015).  Here is the abstract:    
If ever a decision embodied the heroic, countermajoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer — Engel v. Vitale. Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the Supreme Court than perhaps any other decision in its history. Indeed, Engel’s countermajoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case. It does not. Using the lens of legal history, this Article reconstructs the story of Engel, then explores the implications of this reconstructed narrative. Engel is not the countermajoritarian case it seems, but recognizing what it is not allows us to see Engel for what it is: a remarkably thick account of Supreme Court decision-making that enriches a number of conversations in constitutional law. Engel adds a new strand to a burgeoning body of scholarship on the power of culture in general, and social movements in particular, to generate constitutional change. It presents a rare glimpse of the Justices explicitly engaging in the dialogic function of judicial review. And it exposes qualitative differences in the way popular constitutionalism might play out in practice, with implications for the theory itself. In the end, Engel is still a case that offers valuable insights about Supreme Court decision-making and the role of judicial review. They just aren’t the insights that conventional wisdom would have us think.

Spitzer on the Washington State Supreme Court in the Progressive Era

Hugh D. Spitzer, University of Washington School of Law, has posted Pivoting to Progressivism: Justice Stephen J. Chadwick, the Washington Supreme Court, and Change in Early 20th-Century Judicial Reasoning and Rhetoric, Pacific Northwest Quarterly, Vol. 104 (Summer 2013):107-21 (published in 2014).   Here is the abstract:    
Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided by focusing on a single member of the Washington Supreme Court, Stephen J. Chadwick, who sat on that court between 1908 through 1919. Chadwick was in many respects typical of his Washington Supreme Court colleagues: educated, publicly-involved and politically ambitious. But Chadwick played the leading role in conceptualizing and communicating the Washington Supreme Court’s new approach to progressive legislation. Chadwick’s legal opinions are striking for their cogent reasoning and clarity. They are also striking for their honesty about the forces that were causing him, as a judge, to look at things in a fresh way. There were three key reasons for the turnaround in his court’s philosophy: First, the judges were sophisticated, pragmatic and politically-experienced leaders whose feet were “on the ground” in their communities. Second, as educated and economically comfortable elites, their personal views changed along with those of other middle class Washingtonians — i.e., those who formed the backbone of the progressive movement. Finally, the altered philosophy about the role of the courts, i.e., the shift from the practice of ruling many regulatory and worker protection statutes unconstitutional to a more hands-off deferential approach to policy decisions by elected lawmakers, was directly influenced by Oliver Wendell Holmes, Jr. Justice Chadwick was clearly influenced by Holmes, and on the Washington court he anticipated the “legal realist” approach to legal theory and judicial decision-making that gained dominance nationally in the following decades.
When the comparison is the U.S. Supreme Court, Professor Spitzer is surely right that “[r]elatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century.”  But see Carol L. Chomsky, “Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880-1925,” Law and History Review 11 (1993): 383-440.

Lash's "Fourteenth Amendment and the Privileges and Immunities of American Citizenship"

Just out from the Cambridge University Press is The Fourteenth Amendment and the Privileges and Immunities of American Citizenship by Kurt T. Lash, University of Illinois College of Law:
This book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. This exhaustively researched book follows the evolution in public understanding of "the privileges and immunities of citizens of the United States," from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.
Here's the TOC:

1. The Fourteenth Amendment: an introduction
2. On antebellum privileges and immunities
3. Framing the Privileges or Immunities Clause
4. The public debate
5. Post-adoption commentary on the Privileges or Immunities Clause
6. Text and theory

Here are some blurbs:
"There has been a great deal of commentary on the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, but that meaning has remained uncertain and contested. Kurt Lash's approach to the question has been to do something not previously attempted by historians or legal scholars: read all the available literature by antebellum and Reconstruction-era contemporaries on the subject. As a result he has gone far toward producing a definitive account of the Clause's history, and shown how contemporaries understood the "rights" contained in that Clause as sharply distinct from those contained in the Privileges and Immunities Clause of Article IV of the Constitution. Building on that distinction, Lash has fashioned a compelling argument as to how the original meaning of the Privileges or Immunities Clause should be understood."
G. Edward White, David and Mary Harrison Distinguished Professor and University Professor, University of Virginia School of Law

Sunday, April 13, 2014

Sunday Book Roundup

Chris Bryant's Parliament: the Biography, Vol. 1 (Doublday) is reviewed in the New Statesman. "Bryant’s volume runs from this period to the establishment of the Imperial Parliament following the union between Great Britain and Ireland in 1801. It is admirably comprehensive (the author wisely resisted the temptation to add to the glut of “short guides”) and written in the kind of lucid, elegant prose now rarely associated with our elected representatives." 

Dissent Magazine has a review of Thomas Piketty's Capital in the Twenty-First Century translated by Arthur Goldhammer (Belknap Press).

The Federal Lawyer has published its April book reviews. One can find a review of Richard Striner's Lincoln and Race (Southern Illinois University Press) and Brian  R. Dirck's Abraham Lincoln and White America (University Press of Kansas), as well as reviews for Fraternity by Diane Brady (Spiegel & Grau), Roger Williams and the Creation of the American Soul: Church, State, and the Birth of Liberty by John Barry (Viking), and Lobbyists at Work by Beth Leech (Apress). All reviews can be found here.

NPR has a story on All Things Considered covering a couple of books relevant to the upcoming Civil Rights Act anniversary: Seth Cagin and Phillip Dray's We Are Not Afraid: The Story of Goodman, Schwerner, and Chaney, and the Civil Rights Campaign for Mississippi (Nation) and Frances Stonor Saunders's The Cultural Cold War: The CIA and the World of Arts and Letters (New Press).
"In 1950 the CIA created the Congress for Cultural Freedom, whose mission was to use the arts to "nudge the intelligentsia of Western Europe away from its lingering fascination with Marxism and Communism towards a view more accommodating of 'the American way.' " ... 
The Congress for Cultural Freedom also used various foundations to act as fronts in funding exhibitions, international conferences, public performances and grants for artists. The roll call of beneficiaries — unwitting, to various degrees — included Mary McCarthy, Leonard Bernstein and Arthur Schlesinger. Over the years, Saunders writes, this surreptitious support system pervaded the production of a good deal of high culture, so that "[w]hether they liked it or not, whether they knew it or not, scores of Western intellectuals were now roped to the CIA by an 'umbilical cord of gold.' "
Make sure to take a look at several reviews on H-Net. The collected volume Beyond the Border: Tensions across the Forty-Ninth Parallel in the Great Plains and Prairies (McGill-Queen's University Press) edited by Kyle Conway and Timothy Pasch is reviewed, as is Edward Garvey Miller's Misalliance: Ngo Dinh Diem, the United States, and the Fate of South Vietnam (Harvard University Press) here. H-Net also adds a review of Dave St. Aubyn Gosse's Abolition and Plantation Management in Jamaica: 1807-1838 (University of West Indies Press).

In The Wall Street Journal Bill White's America's Fiscal Constitution: Its Triumph and Collapse is reviewed.

The Washington Post reviews Matt Taibbi's The Divide: American Injustice in the Age of the Wealth Gap (Random House). Other perspectives on the book can be found here in The New York Times, here in an interview with the author on NPR, and here in the Los Angeles Times.

Lastly, The Nation has a review of What Soliders Do: Sex and the American GI in World War II France by Mary Louise Roberts (University of Chicago Press).
"Roberts draws upon extensive sources, including diaries, police reports and court-martial transcripts, to examine the presence of American forces in France from 1944 to 1946. She contends that the sexual conduct of US servicemen in war should be moved from a historical footnote to “the center of the story.” Loaded with symbolism, sexual behavior in this context plays an important role in shaping the political and diplomatic negotiations of power between countries."

Saturday, April 12, 2014

Weekend Roundup

  • The University of Pennsylvania has announced that legal historian Wendell E. Pritchett (currently the Chancellor of Rutgers University-Camden) will serve as interim dean of the Law School for academic year 2014-15. 
  • From the Canadian Legal History Blog: a reminder of all the legal history offerings included in the Berkshire Conference on Women's History, scheduled to take place this year in Toronto.
  • Something new under the sun, at least until it melts: "Tucked into a back corner of Victoria School of the Arts, a group of Grade 11 students are busy solidifying, in wax, the Court of Appeal of Alberta’s major legal decisions and history."  More
  • Among the recipients of this year’s ACLS Fellowships is Brenna W. Greer, Assistant Professor of History, Wellesley College, for "Image Rights: Black Representation Politics and Civil Rights Work in the Postwar United States."  Hat tip: AHA Today.
  • Over at Balkinization, Georgetown Law's John Mikhail launches a series of posts on the origins of the necessary and proper clause, drawing upon work for his new articleIn this post, Mikhail uses a 2010 article by Geoffrey Miller as a point of departure for a summary of research showing "that [James] Wilson and his circle of bankers, merchants, and corporate lawyers—Robert Morris, Thomas Willing, Thomas Fitzsimmons, Alexander Hamilton, and others—frequently used the phrase ‘necessary and proper’ or similar language in their articles of association and business correspondence.’”
  • And over at Library of Congress Blog, Wendi A. Maloney, a writer-editor in the United States Copyright Office, has a post on using a copyright records to correct a misattribution of a noted 20th-century song.
  • Complicit, a “docu-drama” focusing "on the story of the SS. St. Louis refugee ship, while exploring the impact of the WWII Jewish refugee crisis on the Roosevelt legacy through a mythical courtroom drama,” has its Washington premiere at the Georgetown University Law Center on Thursday, April 17th, 2014: 5:30 p.m.  The creator is Robert Krakow, a GULC alumnus.  After the screening, he and Andrew Schoenholtz, the director of Georgetown’s Human Rights Institute, will discuss the film and “the development of international refugee policy since the 1930s.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 11, 2014

The Civil War and the Supreme Court

I want to highlight two upcoming events in the 2014 Leon Silverman Lecture Series of the Supreme Court Historical Society.  First, on May 1, Lea VanderVelde, Iowa Law, will speak on “Dred Scott and the Origins of the Civil War.”  On May 8, James McPherson and G. Edward White address the topic “Justice Oliver Wendell Holmes and the Civil War: How it Shaped Him.”  Brad Snyder, Wisconsin Law, will moderate on May 8.

Klerman on the Economic Analysis of Legal History

Daniel M. Klerman, University of Southern California Law School, has posted Economic Analysis of Legal History, which is forthcoming in Methodologies of Law & Economics, ed. Tom Ulen.  Here is the abstract:    
This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.

Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.

Law as an independent variable. Studies of this kind look at the effect of law and legal change on human behavior. Examples include analyses of the Glorious Revolution, legal origin, and nineteenth-century women’s rights legislation.

Bidirectional histories. Studies in the first two genres analyze law as either cause or effect. In contrast, bidirectional histories view law and society as interacting in dynamic ways over time. Laws change society, but change in society in turn leads to pressure to change the law, which starts the cycle over again. So, for example, the medieval communal responsibility system fostered international trade by holding traders from the same city or region collectively responsible. Nevertheless, the increase in commerce fostered by the system undermined the effectiveness of collective responsibility and put pressure on cities and nations to develop alternative enforcement institutions.

Private ordering. A significant body of historical work investigates the ability of groups to develop norms and practices partly or wholly independently of the state. Such norms include rules relating whaling, the governance of pirate ships, and, more controversially, medieval commercial law (the “law merchant”).

Litigation and Contracts. Law and economics has developed an impressive body of theories relating to litigation and the structure of contracts. These theories often shed light on legal behavior in former times, including contracts between slave ship owners and captains, and the suit and settlement decisions of medieval private prosecutors.