Tuesday, September 23, 2014

Iriye to Lecture on International Affairs and Transnational Relations

The Washington History Seminar of the National History Center and the Woodrow Wilson School of International Studies announce the next in a series of lectures, International Affairs and Transnational Relations, by Akira Iriye, Harvard University.  It will take place on Monday, September 29, 2014, from 4:00pm - 5:30pm, at the Woodrow Wilson Center, 6th Floor Moynihan Boardroom.  To attend, register here.
Acclaimed Harvard historian Akira Iriye will reflect on the study of history today, examining recent historiographic trends and phenomena like "motion," "interconnectedness," and "hybridity" in an effort to move away from a Euro-centric approach. Iriye will explore the fascination with non-national entities and transnational relations, rather than with more conventional international affairs understood in the geopolitical framework (world hegemony, regional order, balance of power, etc.). The increased importance of transnational relations places non-state actors and non-geopolitical themes, such as economic globalization, cultural exchanges, environmental issues, and human rights, at the forefront of the contemporary study of history. Iriye will argue this has created a more hybrid world, moving away from a geopolitically defined world order and toward a mixture of geopolitics and non-geopolitical phenomena.

Cushman's "Doctrinal Synergies and Liberal Dilemmas"

If you'd like to see where Barry Cushman’s Rethinking the New Deal Court began, you now can, as he has posted Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract as it appeared in the Supreme Court Review 1992 (1993): 235-93.  Here is the abstract:
The three decades spanning the years 1908 to 1937 saw a remarkable transformation of the Supreme Court's jurisprudence concerning the rights of workers to organize. In 1908, the Court held that a federal law prohibiting employers from discharging an employee because of his membership in a labor union violated the liberty of contract secured to the employer by the Fifth Amendment. In 1915, the Court similarly declared a state statute prohibiting the use of "yellow-dog" contracts unconstitutional. In 1937, by contrast, the Court upheld provisions of the Wagner Act prohibiting both discharges for union membership and the use of yellow-dog contracts. Thus, the doctrine of "liberty of contract" no longer operated as a bar to legislation protecting the rights of workers to organize for purposes of collective bargaining.

The tale of the yellow-dog contract is naturally of interest because of its centrality to the development of American labor law and the decline of substantive due process. Beyond this, however, the story can be seen as a critical chapter in the development of American liberal legalism. The yellow-dog contract provoked something of a crisis in liberal discourse, because it brought into conflict two time-honored liberal values: liberty of contract and freedom of association. Recent scholarship has shown how "liberty of contract" was forged from such diverse liberal resources as Adam Smith's liberal political economy, Jacksonian liberalism, and the Northern "free labor" ideology that animated the abolitionist movement. Freedom of association enjoyed no less venerable liberal pedigree. Its protection against government infringement enshrined in the First Amendment, the freedom to affiliate with the lawful organizations of one's choice had been a widely embraced feature of American culture since well before the Civil War. Indeed, the passion of the American people for voluntary associations had attracted the fascination of Alexis de Tocqueville during his journey to the United States in the 1830s.

The yellow-dog contract exposed a tension between these two values of American liberalism. Opponents of the yellow-dog contract contended that the employer was using his constitutionally protected liberty of contract as a means to inhibit his employee's freedom to associate with his fellow workingmen. In characteristically liberal terms, the answer to this charge would turn on whether the employee was seen as having surrendered his freedom of association voluntarily, or as a product of coercion. The answer to this question would in turn depend upon assumptions about the structure of the labor market, and these assumptions would change over time. Beneath this discourse, I believe, lay concerns about whether labor unions were properly analogized to the other sorts of voluntary associations celebrated by American liberalism. As those concerns became increasingly allayed over time, labor's advocates could more successfully appropriate the liberal rhetoric of associational freedom.

Yet the story of the demise of the yellow dog contract cannot be adequately understood by looking at cultural context alone. In order to understand the voting patterns of the various Justices and the views they expressed in their opinions, one must pay close attention to the development of doctrine. A study of the doctrine pertaining to the yellow-dog contract reveals to us the difficulties with the notion that substantive due process and constitutional federalism were merely convenient weapons in the arsenal of a reactionary Court devoted to the maintenance of financial and industrial elites. Instead, we may see the weblike, interconnected structure of "laissez-faire constitutionalism." The doctrinal manifestations of Commerce Clause and due process jurisprudence were not simply free-floating rules that could be changed or abandoned without consequences extending beyond the particular doctrine involved. These areas of doctrine were developmentally intra- and interdependent. Modifications of one substantive due process doctrine entailed changes in another; developments in due process and Commerce Clause doctrine produced mutual, synergistic ramifications. In short, doctrinal commitments made by Justices in one area of doctrine entailed corresponding commitments in other doctrinal domains. In order to follow the trail of the yellow dog contract, we must trace these ripple effects across structurally related areas of doctrine.

Exhibit: Student Life at Harvard Law

Via H-Law, we have word of a new exhibit at the Harvard Law School Library, Life Beyond the Law: Exploring Student Life Outside the Harvard Law School Classroom.
Over the years, students have found respite from their studies in activities both solitary and social, on campus and off. Life Beyond the Law: Exploring Student Life Outside the Harvard Law School Classroom examines the experiences of Harvard Law School students from the mid-1840s to the present. It focuses on life outside the classroom along the themes of off-campus activities, leisure and the arts, and athletics. Largely told in their own words, this exhibit gives a glimpse into the lives of individual students whose experiences are captured in letters to friends and family, personal diaries, student publications, and photographs.

Curated by Jane Kelly and Lesley Schoenfeld, "Life Beyond the Law" will be on view in the Caspersen Room, Langdell Hall fourth floor, 9:00 AM to 5:00 PM through December 12, 2014.

Triangle Legal History Seminar

Here is the schedule for 2014-2015 for the Triangle Legal History Seminar.  All meetings from 4-6 at the National Humanities Center, unless otherwise noted.

September 12: John Wertheimer, Professor of History, Davidson College
“Before Femicide: Domestic Abuse and the Law in Mid-Twentieth-Century Guatemala”

 October 10: Kunal Parker, Professor of Law, University of Miami
"How Law Should Avoid Mistakes: Alexander Bickel's Jurisprudence of Mood."

November 14: Julie Mell, Assistant Professor of History, North Carolina State University
“The Legal Construction of the Jewish Usurer in Medieval Europe”

December 5: Richard Paschal, George Mason University Law School
“Jim Crow Laws in North Carolina” (presented at UNC-Law)

January 16: Taisu Zhang, Assistant Professor of Law, Duke University
“The Limited Reach of Limited Liability in Qing and Republican China”

February 13: Timur Kuran, Professor of Economics and Political Science, Duke University
“The Financial Power of the Politically Powerless: Credit Markets and the Rule of Law in Ottoman Istanbul”

February 27: Holly Brewer, Professor of History, University of Maryland
“Slavery and Sedition” (TLHS cosponsoring this meeting of the Triangle Early American History Seminar)

March 20: Amanda Hughett, Doctoral Candidate, Duke University Department of History
“Silencing the Cell Block: Prison Litigation, Federal Courts, and the Creation of North Carolina's Inmate Grievance Commission”

April 10: Emily Margolis, Doctoral Candidate, Duke University Department of History
“’Demon in the Shape of a Woman’: The Project of Disciplining Property-holding Married Women in the Antebellum American South”

Monday, September 22, 2014

Scott Discusses "Reining in the State" at the National Archives

At the National Archives in Room G-25, Research Center (Penn. Ave. Entrance), on Thursday, September 25, at noon, the National Archives will host Katherine Scott, Assistant Historian in the Senate Historical Office, as she discusses her book, Reining in the State: Civil Society and Congress in the Vietnam and Watergate Era (2013). An H-Net review is here.

Exhibit: The Sam Sheppard Case at BAY Arts

This is your last week to see A Strange Holiday: An Aesthetic Examination of the Sam Sheppard Case at BAY Arts, in Bay Village, Ohio.
In the early morning hours of July 4, 1954, Marilyn Sheppard was brutally murdered in her Bay Village home.  Twenty six days later, her husband, Dr. Sam Sheppard was arrested on the porch of his parents house and charged with her murder.  The house where Sam Sheppard was arrested is now part of the BAYarts campus, known as the Fuller House.  It is also home to the Sullivan Gallery which will host this exhibition.  Sam Sheppard denied any involvement in his wife's murder, describing his own struggle with a bushy-haired assailant.  The sensationalized trial became international news, with ramifications that still reverberate in the media, pop culture and the U.S. Supreme Court.
Update: More.

Mayeux on Ineffective Assistance of Counsel before Powell

Sara Mayeux, a Sharswood Fellow at the University of Pennsylvania Law School, has posted Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel, which appears in the Iowa Law Review 99 (2014): 2161-84.  Here is the abstract:    
The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer. In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.

Brown at 60 (at IU Bloomington)

Indiana University-Bloomington Maurer School of Law announces Brown at 60 a series of “lectures, workshops, and film screenings commemorating the 60th anniversary of the Supreme Court's landmark decision.”

Thurs., Sept. 25, Noon
Moot Court Room    
Jerome Hall Lecture: "Parents Involved and the Struggle for Historical Memory"
Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School.  More on Professor Tushnet's lecture is here.

Weds., Oct. 15, Noon
Moot Court Room    
Harris Lecture: "The Broken Promise of Brown"
Julian Bond, Chairman Emeritus, NAACP; Professor Emeritus, University of Virginia

Thurs., Oct 16, 7 p.m.
IU Cinema    
Screening of portions of Eyes on the Prize
Introduced by Julian Bond

Thurs., Oct. 30, 4 p.m.
Room t/b/a    
The Last War: The End of Racial Equality in Three Moves
Guy-Uriel Charles, Charles S. Rhyne Professor of Law, Duke University School of Law

Law and Society Workshop
Thurs., Nov. 13, 4 p.m.    
The Unspoken Harms of Racial Segregation and Discrimination: What Brown Failed to Say
Angela Onwuachi-Willig, Charles M. and Marion J. Kierscht Professor of Law, University of Iowa College of Law

Law and Society Workshop
Weds., Dec. 3, Noon
Moot Court Room    
School Desegregation in the Heart of Dixie: Mississippi Then and Now
John Dittmer, Emeritus Professor of History, DePauw University

Mon., Dec. 8, 7 p.m.
IU Cinema    
Screening of American Promise
Introduced by Indiana University faculty

Sunday, September 21, 2014

Sunday Book Roundup

This week The Daily Beast marks the 40th anniversary of The Power Broker: Robert Moses and the Fall of New York (Vintage) by Robert Caro by discussing the book, its history, and its author. In case you're wondering...
"In his Manhattan office on 57th Street, Caro’s desk is largely uncluttered—a lamp, some legal pads, his Smith Corona 210 electric typewriter. “This is a 210, but the 220 is basically the same,” Caro said, “so I use the Smith Corona 210 or 220. They stopped making these like 25 years ago, so if a part breaks you have to cannibalize.” There is no computer in his office; he barely ever uses one and doesn’t have an email address."
New Books in American Studies interviews Richard Starr about his new book, Equal as Citizens: The Tumultuous and Troubled History of a Great Canadian Idea (Formac).

In Salon there is a review of Donald B. Kraybill's Renegade Amish: Beard Cutting, Hate Crimes and the Trial of the Bergholz Barbers (John Hopkins University Press).
"The beard-cutting attacks on the Amish elders were later portrayed by the defendants and their counsel as along the same line: “compassionate” interventions meant to force the victims to repent their sins — sins that largely consisted of not agreeing with Mullet. Neither the jury nor the judge bought that argument. The trial, which involved 16 defendants, nine victims, five separate attacks and a total of 90 different charges, presented many puzzles. Does forcibly cutting someone’s beard, however much it might mean to them spiritually, constitute “disfigurement”? It would have to if the attacks were going to qualify under the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009."
H-Net posted a review of another book at the intersection of religion and law, Christine Talbot's A Foreign Kingdom: Mormons and Polygamy in American Political Culture, 1852-1890 (University of Illinois Press).

Books & Ideas has a new review (written in English) of Antoine Coppolani's biography (written in French) of Richard Nixon (Fayard).

The LA Review of Books takes a look at the value of the humanities in a multi-book review including Hillary Jewett and Peter Brooks's The Humanities in Public Life (Fordham University Press).

In The Washington Post, Robert Darnton's Censors at Work: How States Shaped Literature (Norton) is reviewed.
"In this provocative study of censorship as it was practiced in three different places at three different times, the distinguished scholar Robert Darnton argues that it can be a considerably subtler and more nuanced undertaking than it is generally assumed to be. He has not written a defense of censorship — far from it — but he emphasizes that when the state sets itself up as arbiter of what goes into books and what does not, the results are not always predictable, but are sometimes surprising and even — occasionally — beneficial to authors and their publishers."
Erwin Chermerinsky's latest book, The Case Against the Supreme Court (Viking), is reviewed in the LA Times this week.
"Beyond the proposed reforms, Chemerinsky says he yearns for more honest and candid talk about the court. He smacks Chief Justice Roberts and Justice Sonia Sotomayor for telling the Senate they would simply follow the law, or "call the balls and strikes," as Roberts put it.
"It is time to get past the fa├žade of the marble columns and the mystique of justices who appear in robes from beyond heavy curtains," he writes. The justices do not "find" the law hidden deep in the text, he says. Rather, they decide the law and do so based on their own values and understandings. "If we see the Court in this way, we can begin to hold it accountable for its own decisions," he concludes."
Last, but not least, The Federal Lawyer's latest issue is out with several new reviews--all available here. Books reviewed include Patrick Weil's The Sovereign Citizen: Denaturalization and the Origins of the American Republic (University of Pennsylvania Press) and In This Timeless Time: Living and Dying on Death Row in America (University of North Carolina Press) by Bruce Jackson and Diane Christian.

Saturday, September 20, 2014

Weekend Roundup

  • New from Quid Pro Books is a republication of Marc Galanter’s Why the Haves Come Out Ahead: The Classic Essay and New Observations, on the occasion of the fortieth anniversary of Galanter's “canonical, much-cited article.”  The book includes almost 90 pages of new commentary and applications by Galanter, Robert W. Gordon (Stanford), and Shauhin Talesh (UC Irvine).
  • We learned today that Patti Minter, longtime chair of the ASLH's Membership Committee, has fought the good fight long enough and will not be seeking another term as faculty member on the Board of Regents of Western Kentucky University.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Lowe Asks, What if Great Britain Had Let the American Colonies Leave with Just a Vote?

[Here's a guest post from Jessica K. Lowe, University of Virginia School of Law, "What if Great Britain Had Let the American Colonies Leave with Just a Vote?"]

Yesterday’s vote in Scotland has me thinking about counterfactuals:  what if, in 1776, the thirteen mainland American colonies had been able to sever their ties with Great Britain by a vote, instead of war?  Yes, I realize that is an unlikely hypothetical, but humor me for a moment: how might a bloodless revolution at the ballot box have changed the course of American history?  

The vote, of course, would have come from only a small portion of the real population, since the political franchise was typically limited to white male property owners.  And it would have probably had to come from the thirteen state assemblies – unless, of course, the government in London had decided to recognize the Continental Congress and let them vote on the question, and simply accepted their Declaration of Independence as the final word.      

Nonetheless, what if the question had ended there – and, with the issuing of the Declaration, King George had waved goodbye to his colonies and the many royal governors had peacefully embarked on the long voyage home?  Here are a few thoughts.

First: social mobility and democratization.  While the Continental Army drew from the ranks of the colonial elite for its officers – not just George Washington, but also many others – it in a sense replicated previously existing social status.  But, at the same time, the Army also opened up avenues for advancement for highly able men of less exalted backgrounds – General Daniel Morgan, hero of the Battle of Cowpens, is an example.  A backwoods wagon driver from western Virginia, by the end of the war Morgan, known for his “sharpshooter” troops from Virginia’s frontier, was a Brigadier General.  Officers from various parts of the country also formed bonds with each other, bonds which they worked to maintain after the war by organizations like the Society of the Cincinnati.  And historians like Gordon Wood and Allan Kulikoff have argued that over the course of the war America moved towards a more democratic, egalitarian society, through political ideas and through violence.  Plus, the war itself expelled a number of Loyalists.  With no war, then, there would have been none of the associated upheaval or forging of cross-country connections.  So no war might have meant an (even less) democratic America – a condition that would have perhaps had long term consequences for the character of the nation.

Second:  debt.  On the other hand, war brought debt – lots of it.  State governments and the Continental Congress issued various types of paper (certificates, bonds, etc.) to pay soldiers, pay for supplies, and more.  After the war, desperate holders of this paper sold it for a fraction of its value to speculators, who then, ultimately, began to receive payments once the various governments began to buckle under pressure to pay their debts.  As historian Woody Holton has argued, the pressure to pay those debts and the taxes associated with it led to an economic climate that was very hard on the (resentful) farmers and artisans.  This led, in large part, to some of the tumult of the 1780s, when state legislatures sought to relieve their burdened populace through measures like paper money; there was then a backlash against the legislatures, which is linked to the move to establish a stronger federal government.  Without war, there would be no debt; without debt, would there be a Constitution?  Would there have been other demand for a strong central government? Or would the weak central government of the Articles of Confederation have limped on?

Third:  a bigger country.  Would other colonies have joined up, if freedom meant a vote instead of a bloody battle?  Bermuda at least made noises about supporting the rebellious colonies, so there might have been at least one more.  And who doesn’t want an extra island? 

Fourth: slavery.  This is hard.  As historians have shown, during the Revolutionary War some American slaves sought to win their freedom by escaping to the British.  How this worked – and the British response – is complicated, but war opened up a door to seek freedom, one that was quickly shut afterwards.  Some historians have also talked about the influence of revolutionary rhetoric on struggles for black liberation in the U.S. and Caribbean.  At the same time, the post-war period saw what we historians call the first emancipation – the move to emancipation in the new nation, mostly in more northern states, although some noises were made in the border states (to use an anachronistic term) as well.  My hunch is that, without the war, slavery would have remained even more entrenched, although that would depend on how one sees the causes of emancipation (political, or more economic), which is something else scholars have argued about.
As with any counterfactual, of course, this paints with a broad brush and doesn’t begin to scratch the surface.  But it does seem to me that, even apart from independence itself, the Revolutionary War was good for America.  What do you think?

Friday, September 19, 2014

Constitutional History: Comparative Perspectives

[We have an announcement for the conference “Constitutional History: Comparative Perspectives,” to be held in Bologna, Italy on October 6-7, 2014.  It is sponsored by the University of Illinois College of Law Program in Constitutional Theory, History & Law; University of Bologna School of Law; Center for Constitutional Studies and Democratic Development; Accademia delle Scienze dell’Istituto di Bologna.]

Accompanying the spread of constitutional government around the world has been a profound interest in the comparative aspects of constitutional law. Scholars have catalogued the differing features of national constitutions and examined how different constitutional systems resolve common legal issues. So, too, judges faced with legal questions have sought guidance in the decisions of constitutional courts of other nations. While comparative constitutional law is therefore a well-established field, less attention has been paid so far to the comparative dimensions of constitutional history. This international conference aims to address that shortcoming by energizing the study and analysis of constitutional history from comparative perspectives. The conference has several interrelated goals. It will provide a forum for presentation and discussion of current research on issues of constitutional history that crosses national boundaries. Relevant topics in this regard include such things as the origins of constitutional governments in different nations, changes in constitutional structures over time, comparative studies of the shifting roles of constitutional actors, the development of individual rights in different systems, and the legitimacy and longevity of constitutions in various nations. The conference will also bring together scholars who, at present, are working on constitutional histories of single jurisdictions—with the expectation that conversations among these scholars will allow for sharing of methodologies and point also to fresh areas of research that may transcend national boundaries. In addition, the conference has relevance to the task of judging. In some nations, notably the United States, constitutional history plays an important and sometimes decisive role in the resolution by courts of questions of constitutional law. The conference will take up the place of constitutional history in constitutional adjudication. By comparing the practices of courts around the world, the conference will trace the movement (or not) of constitutional history from the academy to the courthouse and examine the risks and benefits of modern practices.

Schedule after the jump.

A Conference on "the Antislavery Origins of the Civil War"

[We have an announcement for The Antislavery Bulwark: The Antislavery Origins of the Civil War, a conference to be held Friday and Saturday, October 17-18, at the Graduate Center, City University of New York, 365 Fifth Ave., NY 10016.  We are told that the conference is free, albeit first come, first served.]

Bringing together the best new scholarship in the field, “The Antislavery Bulwark: The Antislavery Origins of the Civil War” points toward an important new way of thinking about the origins of the Civil War. The conference considers how the activities of antislavery Americans ultimately contributed to Southern secession and war. It places less emphasis on the radical abolitionist “vanguard” than on the broader antislavery movement, especially antislavery politics, stressing the common objects and premises of an often divided crusade. The larger intellectual goal is to reaffirm the strength and significance of antislavery politics in the early national and antebellum eras. Topics include the origins and significance of the Somerset case, the legal and political ramifications of the “first emancipation,” and antislavery politics in the new nation from the Missouri Crisis to the fugitive slave crisis of the 1850s and the election of 1860. Keynote address by David Blight.

Friday, October 17

1pm - 4 pm:  Seminar at the New-York Historical Society (170 Central Park West)

6:30 pm - 7:30 pm: Conference Introduction and Keynote Address

Elebash Recital Hall, CUNY Graduate Center
Chase Robinson, President, CUNY Graduate Center (Introduction)
David Blight (Keynote Address)

8 pm: Formal Dinner

Saturday, October 18
Panels: Proshanky Auditorium, CUNY Graduate Center

9 am – 9:15 am:  Introduction

9:15 am – 10:30 am: Late British Empire/Revolutionary Era/ Early National

John Blanton on the imperial antecedents of Somerset
Sarah Levine-Gronningsater on the first emancipation
David Gary on the Missouri Crisis
Chris Brown, Chair

10:45 am – 12 pm: Abolitionism and Antislavery Politics in the Antebellum Era

Corey Brooks on the Slave Power
Caleb McDaniel on Garrison and public opinion
Joseph Murphy on the origins of the antislavery platform
Amy Dru Stanley, Chair

1:30 pm – 2:45 pm: Political Crisis of the 1850s

Matthew Pinsker on the politics of fugitive slaves
Manisha Sinha on antislavery politics in the 1850s
James Oakes on state abolition during the Civil War
Sean Wilentz, Chair

3 pm – 4:30 pm: Panel Discussion:  Implications

Eric Foner, James McPherson, James Brewer Stewart
Catherine Clinton, Moderator

Lifset's "Power on the Hudson"

Earlier this year, my Georgetown Law colleague William W. Buzbee published Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City (Cornell University Press).  Now another great episode in the legal history of environmentalism in New York State has its book-length history with the publication of Power on the Hudson: Storm King Mountain and the Emergence of Modern American Environmentalism (University of Pittsburgh Press. 2014), by Robert D. Lifset, University of Oklahoma.
The beauty of the Hudson River Valley was a legendary subject for artists during the nineteenth century. They portrayed its bucolic settings and humans in harmony with nature as the physical manifestation of God’s work on earth. More than a hundred years later, those sentiments would be tested as never before. In the fall of 1962, Consolidated Edison of New York, the nation’s largest utility company, announced plans for the construction of a pumped-storage hydroelectric power plant at Storm King Mountain on the Hudson River, forty miles north of New York City. Over the next eighteen years, their struggle against environmentalists would culminate in the abandonment of the project.

Robert D. Lifset offers an original case history of this monumental event in environmental history, when a small group of concerned local residents initiated a landmark case of ecology versus energy production. He follows the progress of this struggle, as Con Ed won approvals and permits early on, but later lost ground to environmentalists who were able to raise questions about the potential damage to the habitat of Hudson River striped bass.

Lifset uses the struggle over Storm King to examine how environmentalism changed during the 1960s and 1970s. He also views the financial challenges and increasingly frequent blackouts faced by Con Ed, along with the pressure to produce ever-larger quantities of energy.

As Lifset demonstrates, the environmental cause was greatly empowered by the fact that through this struggle, for the first time, environmentalists were able to gain access to the federal courts. The environmental cause was also greatly advanced by adopting scientific evidence of ecological change, combined with mounting public awareness of the environmental consequences of energy production and consumption. These became major factors supporting the case against Con Ed, spawning a range of new local, regional, and national environmental organizations and bequeathing to the Hudson River Valley a vigilant and intense environmental awareness. A new balance of power emerged, and energy companies would now be held to higher standards that protected the environment.

Thursday, September 18, 2014

Bessler on the Death Penalty in Decline

John D. Bessler, University of Baltimore School of Law, has posted Foreword: The Death Penalty in Decline: From Colonial America to the Present, from the Criminal Law Bulletin 50 (2014): 245-62.  Here is the abstract:
This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

Criminal Law and Emotions in European Legal Cultures

[Via H-Law, we have this call for papers for “Criminal Law and Emotions in European Legal Cultures: From 16th Century to the Present,” a conference to be held at the Max Planck Institute for Human Development, Center for the History of Emotions in Berlin in May 2015.  It will include keynotes by Elizabeth Lunbeck (Vanderbilt University) and David Sabean (UCLA) and a roundtable discussion by Dagmar Ellerbrock (MPIB/TU Dresden) and Terry Maroney (Vanderbilt University).]

Legal institutions and jurists have often perceived themselves and promoted an image of their role and activity as essentially 'rational'. Yet, emotions have always been integral to the law, particularly in the case of criminal law. Emotions were and are taken explicitly or implicitly into consideration in legal debates, in law-making, in the codified norms and in their application, especially in relation to paramount categories such as free will, individual responsibility and culpability, or the aggravating and mitigating circumstances of a crime. Emotions could directly or indirectly play a role in defining what conduct was legally relevant, worthy of legal protection or in need of legal proscription; in why and how it was necessary to punish, and what feelings punishment was meant to evoke.

Legal scholars in the past did not shun the complex relationship between law and emotions. Yet it is in the last two decades that specialists from different disciplines, from law theory to psychology, from philosophy to history, have shown an increasing and lively interest in unravelling the role played by passions, feelings and sentiments in criminal law. Special attention has been focused on three key areas: norms, practices and people.

This two-day conference seeks to historicize the relationship between law and emotions, focusing on the period from the sixteenth century to the present. It aims to ask how legal definitions, categorizations and judgments were influenced by, and themselves influenced, moral and social codes; religious and ideological norms; scientific and medical expertise; and perceptions of the body, gender, age, social status. By examining the period between the sixteenth century and the present day, this conference also seeks to challenge and problematize the demarcation between the early modern and the modern period, looking at patterns and continuities, as well as points of fissure and change, in the relationship between law and emotions. In particular, it seeks to question the extent to which ideas about law and emotions fundamentally shifted around the eighteenth century-the traditional marker of the 'modern' period.

This conference will explore how legal professionals, as judges, prosecutors, defense attorneys and other legal officials, handled different forms of knowledge about emotions in the practice of law, in accordance with, or in opposition to, general social and cultural attitudes and public opinion. It will further investigate the presence and absence-and their meanings-of emotions in the courtroom, as a fundamental aspect of criminal law practices. It will take into consideration not only the emotions which were shown, expected and provoked but also the ones which were repressed, controlled or proscribed by different legal actors and the public. Finally it will also include analysis of how legal understandings of emotions were portrayed in the media and in the wider society.

We invite submissions from scholars of different historical disciplines, working on early modern and modern periods and particularly encourage proposals from scholars working on Northern, Central and Eastern European countries, and the non-Western world.  The conference will be held in English.

Accommodation and travel expenses for those presenting will be covered by the Max Planck Institute for Human Development. If you are interested in participating in this conference, please send us a proposal of no more than 300 words and a short CV by 1 October 2014 to cfp-emotions@mpib-berlin.mpg.de. Papers should be no longer than 20 minutes, in order to allow time for questions and discussion.

Dr. Laura Kounine, Center for the History of Emotions, Max Planck Institute for Human Development in Berlin

Dr. Gian Marco Vidor, Center for the History of Emotions, Max Planck Institute for Human Development in Berlin

Law in Transition: Association of Young Legal Historians Annual Forum

The XXIst Annual Forum of Young Legal Historians, and 6th Berg Institute International Conference, with the theme Law in Transition, will take place at Tel Aviv University March 1-3, 2015.

The upcoming XXIst Annual Forum of the Association of Young Legal Historians aims at a comprehensive discussion of law in transition. A wide variety of transitions of historical significance can be explored: political, economic, social, cultural, and more. “Law”—legal symbols, discourses, players, institutions, theories, and texts—has played a significant role in historical transitions, and legal historians have been crucial in exploring its multiple and contradictory effects. The stakes are not just historical, but current: these studies encourage transitions in the way law itself is conceived, theorised, and researched.

We invite young legal historians to present papers dealing with any aspect of law in transition. (Proposals on other topics will also be considered.) Papers can explore specific events or periods in a particular region or state, or provide a comparative analysis of different periods or multiple locations. Papers can focus on local questions or deal with transnational legal justice. We welcome papers combining legal transitions with political, economic, social, and cultural ones. Methodological reflections are also welcome:  Have legal transitions been “top-down” or “bottom-up”? What have been the legal sources of transition? What are the relationships between legal and non-legal histories of transition? What conceptions of law, its forms of operation, its effects, and its significance inform the analysis of transition?

The conference's discussion formats will vary to include panels of 3-4 independent papers, roundtables, panels dedicated to a specific book (including author-meets-readers if authors can attend), and panels dedicated to a canonical article. The organising committee encourages the submission of proposals for all of these formats, and will also welcome new and exploratory formats.

Presentations may be given in any major language, but English-language presentations are likely to receive the widest audience.

The deadline for proposals is 1 November 2014; please email Forum2015@aylh.org. Decisions will be made quickly.

Proposals for individual papers should include an abstract of up to 350 words and a short c.v.

Proposals for full panels should include, in addition to individual paper proposals, an abstract introducing the theme of the panel.

Proposals for roundtables should include an introduction of theme, abstracts of presenters’ intended comments (up to 100 words for each presenter), and a short c.v. for each participant.

Proposals for panels discussing a single book or article should include a full citation of the book or article, an explanation of its significance, abstracts of the papers, and a short c.v. for each participant.

The conference fee will be ILS 450 (approximately 95 Euro). The program will include social events and tours.

Discounted conference fees and accommodation at a nominal charge will be available for participants with no institutional funding. Applicants requesting such support should explain their request in a document accompanying their submission.

The Call for Papers can be found here. Further information about the Association of Young Legal Historians and past Annual Forums can be found [here].  Please direct any questions about the conference to Forum2015@aylh.org.

The conference is sponsored by the David Berg Foundation Institute for Law and History, Buchmann Faculty of Law, Tel Aviv University, with the support of the TAU Office of the Vice President, Cegla Center for Interdisciplinary Research, Entin Faculty of Humanities, and Yavetz Graduate School of Historical Studies.

We look forward to welcoming you to Tel Aviv.

The Organising Committee: Omer Aloni, Yael Braudo-Bahat, Doreen Lustig, Dina Moyal, Anat Rosenberg, David Schorr.

Volk's "Moral Minorities"

Although Emily has already noted the publication of an excerpt on Slate, we ought to have fully noticed the publication by Kyle G. Volk, University of Montana, of Moral Minorities and the Making of American Democracy (Oxford, 2014).  Here is a summary:
Should the majority always rule? If not, how should the rights of minorities be protected? In Moral Minorities and the Making of American Democracy, historian Kyle G. Volk unearths the origins of modern ideas and practices of minority-rights politics. Focusing on controversies spurred by the explosion of grassroots moral reform in the early nineteenth century, he shows how a motley but powerful array of self-understood minorities reshaped American democracy as they battled laws regulating Sabbath observance, alcohol, and interracial contact. Proponents justified these measures with the "democratic" axiom of majority rule. In response, immigrants, black northerners, abolitionists, liquor dealers, Catholics, Jews, Seventh-day Baptists, and others articulated a different vision of democracy requiring the protection of minority rights. These moral minorities prompted a generation of Americans to reassess whether "majority rule" was truly the essence of democracy, and they ensured that majority tyranny would no longer be just the fear of elites and slaveholders. Beginning in the mid-nineteenth-century, minority rights became the concern of a wide range of Americans attempting to live in an increasingly diverse nation.
Volk reveals that driving this vast ideological reckoning was the emergence of America's tradition of popular minority-rights politics. To challenge hostile laws and policies, moral minorities worked outside of political parties and at the grassroots. They mobilized elite and ordinary people to form networks of dissent and some of America's first associations dedicated to the protection of minority rights. They lobbied officials and used constitutions and the common law to initiate "test cases" before local and appellate courts. Indeed, the moral minorities of the mid-nineteenth century pioneered fundamental methods of political participation and legal advocacy that subsequent generations of civil-rights and civil-liberties activists would adopt and that are widely used today.
Here’s the TOC:
1. Making America's First Moral Majority
2. Sunday Laws and the Problem of the Christian Republic
3. The License Question and the Perils of "Pure Democracy"
4. Mixed Marriages, Motley Schools, and the Struggle for Racial Equality
5. "Jim Crow Conveyances" and the Politics of Integrating the Public
6. America's First Wet Crusade and the Sunday Question Redux
Epilogue: Making Democracy Safe for Minorities

Wednesday, September 17, 2014

Call for Applications: Assistant Professor of Public Law, California Polytechnic State University - San Luis Obispo

Via H-Law, we have the following job announcement:
POLITICAL SCIENCE - The Department of Political Science in the College of Liberal Arts at California Polytechnic State University, San Luis Obispo, California invites applications for a full-time, academic year, tenure-track position as Assistant Professor with a specialization in Public Law, to begin September 14, 2015. The successful candidate will have research expertise and the ability to teach courses in law and society, including such courses as Mock Trial, Judicial Politics, Constitutional Law, and others on the American legal system. The typical teaching assignment is 12 units per quarter.
Cal Poly is committed to the teacher-scholar model in which faculty are expected to be excellent teachers, produce quality scholarship, and provide service to the institution. Preference will be given to applicants with an ability to engage in creative teaching methods, potential for a strong contribution to research, and superb communication skills. The successful candidate must have the ability to work effectively with students, staff and faculty from diverse ethnic, cultural, and socioeconomic backgrounds. Faculty should build collaborative relationships across the University and with colleagues at other universities. Ph.D. in Political Science is required at time of appointment. Evidence of strong teaching skills is required. Salary is commensurate with qualifications and experience.
For more information, follow the link.

Szto on Real Estate Agents as Agents of Social Change

Mary Szto, Hamline University School of Law, has posted Real Estate Agents as Agents of Social Change: Redlining, Reverse Redlining, and Greenlining, which appeared in the Seattle Journal for Social Justice 1 11 (2013): 1.  Here is the abstract:
This article examines the role of US real estate agents in redlining, reverse redlining, and greenlining practices. Redlining was the practice of the Federal government, private banks, and other institutions to deny credit to neighborhoods based on race. Reverse redlining is marketing inferior credit and other products to those same neighborhoods. Greenlining is incenting investment in previously redlined neighborhoods. This article argues that although many real estate agents used practices that unjustly excluded access to neighborhoods, all can be faithful agents of inclusion to global, flourishing communities. That is, while real estate agents took leading roles in redlining and reverse redlining in the past, they can now lead in greenlining efforts. Moreover, those who want to effect greater access to global flourishing communities should consider becoming real estate agents.

Lipartito on the "Antimonopoly Tradition"

In the most recent Weekend Roundup, we briefly noticed The Antimonopoly Tradition by Kenneth Lipartito, Florida International University, which is downloadable from the University of St. Thomas Law Review 10 (2014): 991-1012.  The essay is a very nice synthesis of the literature of antitrust history, supplemented with some original research and focused on the language of antimonopolism, from Andrew Jackson to the recent past.  To elaborate: Lipartito nicely summarizes the antimonopolism of the nineteenth century, which attacked combinations of economic and political power that disrupted the normal workings of democracy and economic life in America.  He does not claim that the antimonopolists’ program was “correct or desirable,” but “it nonetheless offered a systematic critique that is now missing, on the dangers of corporate size, the corrupting influence of great wealth in politics, and the fundamentally antidemocratic consequences of a vastly unequal distribution of income.” 

Even if antimonopoly language “did not move the economy back to a smaller scale nineteenth century model,” its “distrust of technocracy, bureaucracy, and concentrated capital” “contributed significantly to a more egalitarian and open political economy” by causing corporations to “embrace notions of social welfare and social responsibility.”  This was true despite the New Deal’s turn to a more consumerist justification of antitrust under Thurman W. Arnold, Assistant Attorney General for the Antitrust Division of the US Department of Justice.  Arnold “established a strong, resourceful, and capable antitrust expertise in the federal government”; his vigorous antitrust and later efforts in the the 1950s and 1960s kept Big Business public minded.  Only “with the triumph of a narrower consumer welfare view of antitrust in the 1980s” did “the older antimonopoly concerns about power and responsibility” decline.  The result has been an erosion of “the corporate commitment to social responsibility” and an increase in “the concentration of wealth and power in the private sector, much as nineteenth century antimonopolists had feared.”

Tuesday, September 16, 2014

Michael Weiner Scholarship for Labor Studies

[Not strictly speaking a legal history fellowship, but we're posting this announcement from the Major League Baseball Players Association anyway.]

It is my honor to inform you about a scholarship program created by all Major League baseball players, through the Major League Baseball Players Trust, to honor the life of former MLBPA Executive Director, Michael Weiner. 

The “Michael Weiner Scholarship for Labor Studies,” seeks to recognize and support the efforts of graduate and/or law students dedicated to improving the lives of workers, by awarding up to five $10,000 scholarships annually.

Michael spent 25 years, nearly his entire professional career, with the MLBPA working in support of the Players – past, present and future.  Despite being diagnosed with an inoperable brain tumor in August of 2012, Michael waged an inspiring battle against his disease as he continued to work on behalf of the Players right up to the time of his passing last November, at the age of 51.

I imagine there are several students enrolled in your program who share Michael’s passion for protecting workers’ rights, and, with that in mind, I encourage you to let your students know about this great opportunity.

To be eligible for an award, individuals must be graduate or law students enrolled in an accredited educational institution in the United States or Canada and must have a demonstrated interest in, and wish to make a career out of, working in the labor movement and on behalf of workers’ rights. To receive an award, eligible candidates must meet a combination of criteria identified below:
• A strong academic record
• Demonstrated commitment to the labor movement
• A strong recommendation from an academic or a labor/workers’ rights practitioner
• Strong written and oral communication skills
Preference will be given to those who can demonstrate financial need through the Free Application for Federal Student Aid (FAFSA) scores or otherwise.

Scholarship applications are being accepted through Monday, November 10, 2014. Each student selected as a Michael Weiner Scholarship for Labor Studies recipient will receive a $10,000 scholarship. Up to five awards will be presented annually, and the first winners will be notified in January 2015.

For more information, please visit here. Should you have any questions or require additional information, please feel free to call the Players Trust at (212) 826-0809.  Thank you for your consideration and support.

de la Rasilla del Moral on International Law before Wilson

Ignacio de la Rasilla del Moral, Brunel Law School, has posted The Ambivalent Shadow of the Pre-Wilsonian Rise of International Law, which is to appear in a special issue of the Erasmus Law Review 7 (2014), entitled“The Great War and Law: The Lasting Effects of World War I on the Development of Law.”  Here is the abstract:    
The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a “moralistic legalistic approach to international relations” remains little studied. A survey of the rise of international legal literature in the U.S. from the mid-19th century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the prewar rise of international law in the U.S. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed .by the realist founders of the field of “international relations” to the “moralistic legalistic approach to international relations.”

Sixty Years After Bolling v. Sharpe: Public Education and the D.C. Federal Courts

[We have the following announcement from the Historical Society of the District of Columbia Circuit.]
The special relationship between the Courts of the D.C. Circuit and the D.C. public schools was the subject of the Society's most recent program, "Sixty Years After Bolling v. Sharpe." The program can be viewed in its entirety on the Society's website. Listen as James Forman of Yale Law School moderates a discussion among Judge David S. Tatel; Kaya Henderson, Chancellor of the D.C. Public Schools; Rod Boggs, Washington Lawyers' Committee for Civil Rights and Urban Affairs; and Brian W. Jones, General Counsel of Strayer University on the significance of Bolling v. Sharpe and Brown v. Board of Education as well as key public education issues and challenges presented by the twin goals of achieving integration and improving education in public schools. Listen also to Eloise Pasachoff of Georgetown University Law Center as she highlights the history of the Courts' engagement with the D.C. schools, and read the full text of her remarks. The program can be viewed here.

Gallanis on the Judical Notes of Sir Dudley Ryder

We heard that the librarians at Iowa Law have launched a series of short videos highlighting the scholarship and research of the faculty.  In the first, Thomas Gallanis
Thomas Gallanis (credit)
speaks briefly about his forthcoming book for the Selden Society: an edition of the judicial notes of Sir Dudley Ryder. Ryder served as Chief Justice of the Court of King’s Bench in England from 1754 to 1756. The notes and diaries Ryder kept during his tenure as Chief Justice have never been published, but they provide an invaluable window on the history of English law and legal institutions in the middle of the eighteenth century. The sources are valuable for many reasons, including that Ryder knew shorthand. His notes and diaries capture a wealth of detail that no other surviving set of judges’ notes has been able to match. In this short video, Professor Gallanis discusses “The History of the Common Law: What Can We Learn from the Ryder Sources?"

An Oral History of Stephen J. Pollak

Stephen J. Pollak (credit)
One of the best things about being on the Board of Directors of the Historical Society of the District of Columbia Circuit has been the opportunity to work with its president, Stephen J. Pollak.  Mr. Pollak has had a long and important career, including service in many governmental positions, but historians are most likely to have encountered him because of his service in the Civil Rights Division of the US Department of Justice, where he was John Doar’s first assistant (1965-67) and then Assistant Attorney General in his own right (1967-69).  The Lyndon Baines Johnson Presidential Library holds a lengthy oral history Mr. Pollak gave at the end of LBJ’s presidency.  Now the Historical Society of the DC Circuit has posted another as the latest in an extensive series.

Among the oral history’s appendices is Mr. Pollak’s recollection, dictated shortly after the event, of a trip to LBJ’s ranch in September 1967, during which he and other legal nominees met with the president.  Johnson was especially appreciative of Mr. Pollak’s success in steering the Reorganization Plan for the District of Columbia through Congress.  Johnson confessed to feeling sheepish about how the Reorganization Plan had “bypassed the District Committees,” but he then remarked “in a humorous vein that he had campaigned for Congress on the court-packing plan and then when he got to Congress, it had already been defeated.  He drew from this the parallel that it was not wrong to proceed by the Reorganization Plan if this was the only way to get the job done.”

Monday, September 15, 2014

How to Get a Fellowship: Advice?

It's fellowship application season -- for aspiring history professors, aspiring law professors, and established scholars. The Legal Scholarship Blog recently posted a link to Mary Dudziak's 2007 LHB post on "How to Get a Fellowship: Tips for Law Faculty," which reminded us that we ought to update the post. Readers: what additional advice do you have to offer? What advice would you offer graduate students applying for post-doctoral fellowships or J.D. graduates interested in a fellowship like the Climenko or Sharswood?

If you have lots of ideas, or a good collection of links from around the web, send us an email and we can talk about scheduling a guest post. We'll also compile the comments into a follow-up post.

Conference: "The Highest Tribute: The Michigan Journal of Race & Law at Twenty"

Later this week, the Michigan Law Program in Race, Law & History will host a conference in honor of the Michigan Journal of Race & Law. Here's the program for "The Highest Tribute: The Michigan Journal of Race & Law at Twenty":
Friday, Sept. 19, 2014

All sessions to take place in 1225 South Hall

Breakfast and Registration
8:30-9:00 A.M.

Panel I: Beginnings
9:00-10:15 A.M.

Moderator: Matthew Fletcher, '97, Professor of Law and Director if the Indigenous Law & Policy Center, Michigan State University College of Law
Todd Aagaard, '97, Associate Professor of Law, Villanova University School of Law
Emily M.S. Houh, '96, Gustavus Henry Wald Professor of the Law of Contracts, University of Cincinnati College of Law
Travis Richardson, '96, Richardson & Mackoff
Hardy Vieux, '97, Martin & Gitner PLLC

Panel II: Changes
10:30-11:45 A.M.

Moderator: Matthew Tannenbaum, Associate Editor, Race and Curriculum Committee
Regulating Brands: Disparaging Trademarks
Jasmine Abdel-Khalik, '00, Associate Professor of Law, University of Missouri Kansas City School of Law

The Declining Utility of "Hate Crime"
Jeannine Bell, '99, Professor of Law, Indiana University Maurer School of Law

The Shadows of the Roberts' Court Selective Racial Memory: Reclaiming History for a Multiracial Metropolitan America
Tom I. Romero, II, '04, Assistant Provost of IE Research and Curricular Initiatives and Associate Professor of Law, University of Denver Sturm College of Law

Lunch Break
12:00-1:15 P.M.

Panel III: Futures
1:30-2:45 P.M.

Moderator: Britney Littles, Associate Editor, Race and Curriculum Committee
Mainstreaming Equality in Federal Budgeting: Addressing Education Inequalities with Regard to the States
Elizabeth K. Hinson, '11, King & Spalding

Functionally Suspect: Reconceptualizing "Race" as a Suspect Classification
Lauren Sudeall Lucas, Assistant Professor of Law, Georgia State University College of Law

Blackness as Character Evidence: The Strategic Use of Racial Stereotypes in Establishing an Individual's Propensity for Violence
Mikah K. Thompson, Adjunct Professor of Law, University of Missouri Kansas City School of Law; Osman & Smay, LLP

Panel IV: Legal Academia
3:00-4:15 P.M. 

Moderator: Emily M.S. Houh
Empirically Investigating Law Professors and Leaders of the Future
Meera E. Deo, '00, Associate Professor of Law, Thomas Jefferson School of Law

Law Reviews and the New Counterrepublics
Luis E. Fuentes-Rohwer, '97, Associate Professor of Law, Indiana University Maurer School of Law
Guy-Uriel Charles, '96, Charles S. Rhyne Professor of Law, Duke University School of Law

Justice and Law Journals
Adam Wolf, '01, Wolf Law
Gabriel "Jack" Chin, '88, Professor of Law and Martin Luther King, Jr. Research Scholar, University of California Davis School of Law;  

Keynote Address
4:30-6:00 P.M.

Historical Myopia, Excessive Individualism and Remedies for Race Discrimination: The Work that Must be Done
Mary Frances Berry, '70, Ph.D. '66, Geraldine R. Segal Professor of American Social Thought and Professor of History, University of Pennsylvania​​​