Friday, July 25, 2014

Mossoff on Historical and Other Justifications for IP

Adam Mossoff, George Mason University School of Law, has posted the introduction to his Intellectual Property and Property Rights (Edward Elgar, 2013).  Here is the abstract:    
This essay is the introductory chapter to Intellectual Property and Property Rights (Edward Elgar, 2013), which contains some of the leading articles published in recent years on the nature of patents, copyrights, trademarks and trade secrets as property rights. But this essay does not merely review the articles. For the first time in a single essay, it presents the three basic analytical frameworks in which intellectual property rights are defined or justified as property rights – historical, conceptual, and normative.

Drawing upon the substantive content of the articles in the volume and beyond, the essay first reviews the two descriptive framings of intellectual property rights, explaining that intellectual property rights historically have been defined and justified as property rights since the eighteenth century and that there are serious analytical reasons why intellectual property is defined conceptually in this way. The essay then explains how these two descriptive bases – the historical account and conceptual definition – provide a foundation for the two normative justifications for intellectual property as property – the utilitarian and labor-desert theories. Ultimately, the essay summarizes the substantive theoretical case for intellectual property as property, and it also briefly summarizes the critique of intellectual property from the perspective of property rights advocates.

Thursday, July 24, 2014

Zoldan on the Ex Post Facto Clauses

Evan C. Zoldan, University of Toledo College of Law, has posted The "Professional" Meaning of the Ex Post Facto Clauses.  Here is the abstract:
Since its decision in Calder v. Bull, the Supreme Court has held consistently that the Ex Post Facto Clauses apply only to retroactive criminal, as opposed to civil, laws. Nevertheless, there continues to be significant scholarly debate over the original meaning of the clauses. Relying on sources contemporaneous with the framing of the Constitution, like treatises, newspaper articles, and notes from the debates in the Philadelphia Convention, some scholars conclude that the original meaning of the Ex Post Facto Clauses includes civil as well as criminal statutes; others, relying largely on this same evidence, conclude that the original meaning reaches only criminal statutes.

The key to resolving the dispute between these two camps of scholars lies in uncovering the “professional” meaning of the Ex Post Facto Clauses, that is, the meaning of the phrase “ex post facto” as it was used by the professional community of American judges and lawyers in the course of their work in the years leading up to the framing of the Constitution. The professional meaning of the phrase ex post facto has always been, and continues to be, the focal point for discussion of the original understanding of the Ex Post Facto Clauses; nevertheless, historical evidence of the professional meaning of the phrase ex post facto has been all but unexamined.

In this article, I seek to resolve the debate over the original understanding of the Ex Post Facto Clauses by examining undeveloped evidence of the professional meaning of the phrase ex post facto. I conclude that the professional meaning of the phrase ex post facto, and original understanding of the Ex Post Facto Clauses, includes retroactive civil, as well as criminal, laws. Finally, even leaving aside these historical arguments, the story of uncovering the professional meaning of the Ex Post Facto Clauses suggests that there are prudential, doctrinal, and structural reasons for reconsidering Calder’s limitation on the scope of the clauses.

Call for Submissions: No Foundations

No Foundations ("an interdisciplinary journal of law and justice")has issued the following call for submissions:
No Foundations is an international peer-reviewed journal committed to publishing interdisciplinary legal scholarship of the highest quality at the interface between law and justice. We encourage contributions from all areas of law and beyond, with the aim of bridging the gap once opened between law and other social and human activities and experiences.
On the assumption that law is a socially embedded phenomenon that cannot be fully understood as an autonomous discipline, we aim to connect law both with its real effects on the lives of individuals and societies, and with the realm of human aspirations and ideals that give it life and meaning.
No Foundations is currently accepting general submissions and book reviews for NoFo 12 (June 2015). To facilitate the review process please send us your manuscript before March 1, 2015. Please include an abstract of no more than 200 words with your submission.
Hat tip: Legal Scholarship Blog

Wednesday, July 23, 2014

Distinguished Historians Win National Humanities Medals

President Obama recently announced the 2013 winners of the National Humanities Medal. The medals recognize those whose work has “deepened the nation’s understanding of the humanities, broadened our citizens’ engagement with the humanities, or helped preserve and expand Americans’ access to important resources in the humanities.” Three distinguished historians were among those who received the honor: David Brion Davis (Yale-Emeritus), the scholar of slavery; Darlene Clark Hine (Northwestern), the scholar of African-American and women's history; and Anne Firor Scott (Duke, emeritus), the scholar of Southern and women's history. Congratulations to these scholars on this well-deserved honor.  And thanks to each of them for producing groundbreaking scholarship that has enriched our lives.     

The Hugo Black Papers

Hugo Black, 1937 (LC)
For years, anyone who wanted to consult the papers of Supreme Court Justice Hugo Black in the Manuscript Division of the Library of Congress had to obtain the permission of one of the surviving donors, Hugo Black, Jr.  This turned out to be the opposite of a chore, because the justice’s son was so interested in scholars’ work and fun to talk to.  After his death, uncertainty about the existence of other surviving donors forced the Manuscript Division to defer accepting new requests for access to the collection, but I now have good news to report.  Jeff Flannery, the Head of Reference and Reader Services at the Manuscript Division, tells me that “restrictions to access the Hugo Black Papers have been removed by the surviving donor, with the exception of one letter which relates to family matters.”  Presumably, the Division will provide access to that letter after the lifetime of the surviving donor.  But everything else is open now.

New Release: Day, "The Southern Manifesto: Massive Resistance and the Fight to Preserve Segregation"

New from the University Press of Mississippi: The Southern Manifesto: Massive Resistance and the Fight to Preserve Segregation, by John Kyle Day (University of Arkansas at Monticello). Here's a description from the Press:
On March 13, 1956, ninety-nine members of the United States Congress promulgated the Declaration of Constitutional Principles, popularly known as the Southern Manifesto. Reprinted here, the Southern Manifesto formally stated opposition to the landmark United State Supreme Court decision Brown v. Board of Education, and the emergent civil rights movement. This statement allowed the white South to prevent Brown's immediate fullscale implementation and, for nearly two decades, set the slothful timetable and glacial pace of public school desegregation. The Southern Manifesto also provided the Southern Congressional Delegation with the means to stymie federal voting rights legislation, so that the dismantling of Jim Crow could be managed largely on white southern terms.
In the wake of the Brown decision that declared public school segregation unconstitutional, seminal events in the early stages of the civil rights movement--like the Emmett Till lynching, the Montgomery bus boycott, and the Autherine Lucy riots at the University of Alabama brought the struggle for black freedom to national attention. Orchestrated by United States Senator Richard Brevard Russell Jr. of Georgia, the southern congressional delegation in general, and the United States Senate's Southern Caucus in particular, fought vigorously and successfully to counter the initial successes of civil rights workers and maintain Jim Crow. The South's defense of white supremacy culminated with this most notorious statement of opposition to desegregation. The Southern Manifesto: Massive Resistance and the Fight to Preserve Segregation narrates this single worst episode of racial demagoguery in modern American political history and considers the statement's impact upon both the struggle for black freedom and the larger racial dynamics of postwar America.

Tuesday, July 22, 2014

Finkelman at the Dallas Bar's Legal History Group on Douglass's Constitution

[We have the following from our faithful reader Josiah Daniel, a lawyer at Vinson & Elkins who chairs the Dallas Bar Association’s Legal History Discussion Group.]

If a reader of Legal History Blog finds him/herself in Dallas this Thursday (July 24), consider this your invitation to attend a lecture at Noon presented by the Legal History Discussion Group of the Dallas Bar Association.  Paul Finkelman speaking on “Frederick Douglass’s Constitution: From Garrisonian Abolitionist to Lincoln Republican.”  The event will be in the Belo Mansion, headquarters of the Association, in the Dallas Arts District at 2101 Ross Avenue.  It is Texas-MCLE accredited and free.  (Lunch is available for a fee.)

The 10-Minute Approach to Writing. Every. Day.

Gregory Semenza's (U Conn-English) recent post about how to make time for writing caught my eye. In a Chronicle of Higher Education column entitled "The Value of 10 Minutes: Writing Time for the Timeless Academic," Semenza advises that instead of spending brief windows of time between meetings or other tasks surfing the web or otherwise distracted, use those intervals to comply with the dictate to Write. Every. Day. Those snatches of productivity add up and can make writing less daunting. What terrific advice! And it's easy to customize the idea to fit one's own schedule (e.g. the 20-minute or 30-minute method), if a different time interval strikes you as more suitable. (Whatever strategy you choose, of course you should still surf here, at the Legal History Blog, during your downtime!)

CFP: Remaking North American Sovereignty

[Via the Canadian Legal History Blog, we have the following Call for Papers:]

Remaking North American Sovereignty: Towards a Continental History of State Transformation in the Mid Nineteenth-Century

July 30-August 1, 2015 at the  Banff  Centre  in  Banff,  Alberta,  Canada.

This  conference  considers  state  making  in  mid-nineteenth  century  North  America from  a  continent-wide  perspective. Peaking  in  the  years  1865-67  with  the  end  of  the  American  Civil  War,  Canadian  Confederation,  and  the  restoration  of  the  Mexican  republic  after  the  expulsion  of  Maximilian,  a French-imposed  monarch, this  era  of  political  transformation  has  had  profound  consequences  for  the  future  of  the  continent.

Key  to  the  reformulation  of  North  American  polities  was  the  question  of  sovereignty,  or  the  power  to  rule.  Conflicts over  sovereignty went  well  beyond  the  years  1865-67  and  encompassed  not  only  the  political  and  diplomatic  aspects of  state-making but  also  the  broader social, economic,  and  cultural  histories  of  this  process.

Thus  far,  the  continental  dimensions  of North  American  sovereignty have  been  obscured  by  historical  traditions  that  confine  each  of  these  state making  conflicts  within  its  specific  national  framework.  In  light  of  the  global  turn  in  19th century historiography,  as  well  as  the  real  interconnections across  the  continent,  it  is  time  to  consider  these  political  crises  as  an  inter-related  struggle  to  redefine  the  relationship  of  North  Americans  to  new  governments.
Keynote addresses  will  be  delivered by  Professors  Steven  Hahn,  University  of Pennsylvania;  Pekka  Hämäläinen, Oxford  University;  Erika  Pani,  Colegio  de  Mexico;  and Andrew  Smith,  University  of  Liverpool.

The  conference  organizers  seek  papers  that  offer  original  work  examining  different  aspects  of  national  sovereignty  formation  in North  America during  this  period.  Work  that  examines  these  conflicts  in  a  transnational  perspective  is  especially  welcome. Paper  proposals  (between  200-500  words)  should  be  accompanied  by  a  brief  CV  and  should  be  submitted  to  Frank  Towers  (  by  August  31,  2014.  Papers from the conference  may  be  included  in  a  publication.  In  preparation,  presenters  will  be asked  to  circulate  drafts  of  their  papers  by  July  1,  2015. This  conference  is  sponsored  by  the George  and  Ann  Richards  Civil  War  Era  Center  at  Penn State  University  and  supported  by  the  Virginia  Center  for  Civil  War  Studies at  Virginia  Tech University and  the  University  of  Calgary.

Dudziak, A Legal History Survival Guide

Over at War Time, LHB founder Mary Dudziak (Emory University) has been running a series of posts titled "A Legal History Survival Guide." It is addressed to diplomatic historians, but would be useful for all scholars seeking to bring law into their work. Here's the text of the first one (cross-posted with permission):
For an essay on legal history as diplomatic history for the 3rd edition of Explaining the History of American Foreign Relations, I close with some tips about how a non-legal historian might venture into legal history. Here's my list. What am I missing?
Building legal history into your diplomatic history research may be important or essential. It can also be fraught with peril. Historians without legal training can make mistakes when unaware of the way different areas of law interconnect, or the way jurisdictional or procedural rules affect a case. But even complex areas of law can be mastered sufficiently.

Here are some guidelines to help you bring law into your project without making mistakes:
  • Audit a law school class in your subject area. Do all the reading and participate in class discussion.
  • To develop an overview of an area of law, find a well-regarded treatise.
  • Ask a legal historians to be on your dissertation committee.
  • Attend meetings of the American Society for Legal History.
  • Present your work in law settings, including at ASLH  and Law and Society Association meetings. Find opportunities for legal scholars to read your work and comment on it.
  • Attend legal history workshops and programs in your area. Some law schools have legal history workshop series. They will be delighted to have you.
  • Take advantage of legal history programs for graduate students and others hosted by ASLH and others.
  • Read the Legal History Blog, where new scholarship is discussed and opportunities are often announced.
And here's part two.

We'll keep an eye out for further "legal history survival guide" posts. In the meantime, you can follow them yourself at War Time.

Monday, July 21, 2014

Mehrotra Receives Intellectual History Book Award

Congratulations to former LHB Guest Blogger Ajay Mehrotra, Indiana University Maurer School of Law, for being named the recipient of the Society of U.S. Intellectual History’s book award for 2014 for Making the Modern American Fiscal State (Cambridge University Press, 2013). Here is the citation, from the Society’s website:
Mehrotra’s important and ambitious book chronicles the early 20th-century transformation in American tax policy and public finance. It analyzes the shift from the nineteenth-century “regime of indirect, hidden, partisan, and regressive taxes” to the “direct, transparent, professionally administered, and progressive tax system” we know today. A book on taxation may well seem a curious choice for an intellectual history prize, but we were struck by how successfully Mehrotra weaves together the intellectual, legal, administrative threads of his argument. Mehrotra takes ideas seriously. He traces legal and administrative change to a prior “conceptual revolution,” wrought primarily by a cohort of professionally trained intellectuals, including Henry Carter Adams, Richard Ely, and Edwin R.A. Seligman. And he shows how notions of economic justice, political obligation, ethical duty, and democratic reciprocity underwrote the new progressive conception of what Mehrotra aptly labels “fiscal citizenship.” He also shows what happened to those ideas as they traveled through a contested political process and were embodied in a complex administrative apparatus with paradoxical and often unintended consequences. Mehrotra’s book is thus a history of ideas in action. It makes a signal contribution to the field by demonstrating how even the most seemingly mundane features of our world have strikingly rich intellectual histories.

Ms. Peppercorn Considers: Grafton Line

And now a post from our advice columnist in residence, Ms. Peppercorn:
Ms. Peppercorn has some apologies due to a correspondent who wrote earlier this summer. Here we are past the all-star break and she is just getting around to answering a query about the best use of time over the summer when one wants to be productive. Here is the question:

Dear Ms. Peppercorn,

For the first time in many years, I find myself with three months of mostly
uninterrupted writing time, and I am desperate to use it wisely. I worry, though, that without the structure imposed by fixed deadlines I will squander this rare gift of time and fail to make significant progress on my book manuscript. My academic Twitter and Facebook friends seem to have stumbled on the answer: something they call “Grafton Line.” What do you make of this? Just a passing fad, or a tried and true strategy for making the most of a writing summer? Could it be that the solution to this old academic conundrum really that simple?
Nervous in New England

Upon receipt of this request, Ms. Peppercorn began her research, and was stunned to learn that legal historians of otherwise respectable habits have become followers of the Grafton Line. What is that, asks the gentle reader. See this interview with Tony Grafton. The result has been a twitter feed #GraftonLine. Lots of people you know are on the facebook page. (For an overview, follow the link.) The internet is not just changing the way we read, but how we write, and how we think about writing. Ms. Peppercorn immediately descended into a funk. Efficiency? Competition? When did we become such bean counters? And 3,500 words in four hours of writing, sacré bleu!

A conversation with fellow legal historians after a wonderful recent conference put on by Barbara Welke at Minnesota revealed that the Grafton Line has become a vital element for several eminent scholars. They report greater productivity and vastly increased joy in their work.


And mere mortals are imposing their own Grafton lines. 500 words per day, or 750. Something even a legal historian might aspire to. And many of them are finding a new kind of supportive community through their embrace of sharing their goals on blogs and twitter feeds.

Ms. Peppercorn must admit that she still thinks Anthony Trollope (who also wrote thousands of words every morning) was a pretty wretched hack, and apparently some people still read that stuff. But she has started counting her words. (This column will come in at around 500 or so; maybe a day’s work?) The Grafton Line, it seems, is so contagious, that even those who try to resist are drawn in. If this approach really helps to spur effort devoted directly to writing, perhaps my correspondent still has time to log in a productive summer!
Do you have thoughts about Grafton Line or tips for staying productive over the summer? Feel free to post a comment below or send us a message on twitter (@legalhistory).

Do you have a question for Ms. Peppercorn? Email us anytime.

Sunday, July 20, 2014

Sunday Book Roundup

This week over at Balkinization, Mark Graber reviews Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights by Emily Zackin (Princeton University Press). He calls the book "an excellent example of the wonderful scholarship that can be produced when exceptional scholars analyze state constitutions through the prism of state constitutional actors rather than through the prism of Warren Court liberalism."

Law and Politics Book Review has two reviews to note. The first is Jill Norgren’s Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers (NYU Press), which “will be of interest to undergraduate and graduate students of American legal history, labor, and gender. Norgren’s well written and thorough volume illuminates the experiences of these determined women and shows the impact of their struggles on the legal profession and the struggles for women’s civil rights.” 

The second is Statebuilding from the Margins: Between Reconstruction and the New Deal edited by Carol Nackenoff and Julie Novkov (University of Pennsylvania Press).
“In an enjoyable, well-researched, and well-edited compilation of eclectic case studies edited by Carol Nackenoff and Julie Novkov, scholars examine how non-state actors of various civic, social, and ideological groups during the Progressive Era brought the state back in as a means of achieving desired policy ends. The accounts are notable for drawing attention to previously unexamined policy areas that provide leverage for claims that statebuilding is not always rational or linear, the distinction between public and private actors is not so cut-and-dried, and that the agency of actors is bounded by institutions and prevailing ideologies of the public good. Taken together, the chapters of this important contribution to the subfield of American Political Development exemplify the quintessential nature of the fragmented, piecemeal, inconsistent, and often jarring development of the capacity of the American state."
Abigail Perkiss talks with New Books in History about her new book, Making Good Neighbors: Civil Rights, Liberalism and Integration in Postwar Philadelphia (Cornell University Press).

And, Michael Bryant talks with New Books in Law about his new book, Eyewitness to Genocide: The Operation Reinhard Death Camp Trials, 1955-1966 (University of Tennessee Press). 

“A recent trend in Native studies is tribal-level examinations on indigenous nation-building and the expanding definitions of sovereignty, as well as examinations regarding citizenship that are inevitably generated from such endeavors. Brian Klopotek, in Recognition Odyssey: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities, brings a much-needed perspective to these conversations through his detailed analysis of the variability in the recognition process and how success or failure is predicated more on the intersections of larger historical social structures with specific circumstances than on objective qualifications. Using a multidisciplinary approach combining history, anthropology, and sociology, Klopotek has written an immensely impressive and supremely complex history of three distinct Indian communities in late twentieth-century Louisiana seeking state and federal recognition: the Tunica-Biloxi, the Jena Choctaws, and the Clifton-Choctaws.”

Saturday, July 19, 2014

Conyers Papers to the Keith Collection

[From the Columbus, Indiana, Republic.] A number of judges and lawyers honored U.S. Rep. John Conyers in a ceremony Friday, thanking the 85-year-old Detroit Democrat for donating personal papers from his nearly 50 years in Washington to Wayne State University.

The papers, which include his work on the Voting Rights Act of 1965 and the establishment of the Rev. Martin Luther King Jr.'s birthday as a national holiday, will be held by the Damon J. Keith Collection of African-American Legal History.  More.

British Legal History Conference 2015

Via @LHR_editor and ESCLH we have the following call for papers for “Law: Challenges to Authority and the Recognition of Rights," the British Legal History Conference 2015.  It will be held at the University of Reading July 8-11, 2015.]

In celebration of the 800th anniversary of Magna Carta the theme of the British Legal History Conference 2015 at the University of Reading is ‘Law: Challenges to Authority and the Recognition of Rights’.

While different forms and ideas of authority have shaped law historically, law has also been  moulded by, and influenced, challenges to authority brought to assert and seek recognition of rights. Magna Carta resulted from one such challenge, but challenges to social, economic, political and doctrinal authorities existed before Magna Carta and have continued to occur since.

The British Legal History Conference 2015 is concerned to explore how law, both public and private, has been shaped by, and shaped, challenges to authority brought to seek the recognition of rights. It welcomes papers which examine how law, legal processes and legal actors have developed in response to such challenges to authority, and indeed how an understanding of the law has itself often influenced these challenges. While the conference will explore challenges of different natures and from different epochs, proposals concerned with Magna Carta, and particularly its impact beyond England, are welcomed.

In addition to this general call for papers, the 2015 Conference will also include a special session for young and less experienced scholars. The organisers welcome proposals from postgraduate and early career researchers for this session.

Proposals for papers (maximum 300 words) should be submitted to
by 30 September 2014.

Friday, July 18, 2014

Sawyer, "English Law and American Democracy in the Revolutionary Republic: Maryland, 1776-1822"

Jeffrey K. Sawyer (University of Baltimore School of Law) has posted "English Law and American Democracy in the Revolutionary Republic: Maryland, 1776-1822." The essay appeared in Volume 108 of the Maryland Historical Magazine (Fall 2013). Here's the abstract:
Between 1776 and 1784, eleven of the original thirteen states made some provision for the continuing authority of the common law and British statutes. But there were highly significant variations in the pattern from state to state, variations that helped to differentiate each state as a unique jurisdiction. In Maryland, despite the effort of leading lawyers to settle the matter once and for all in 1776, the precise effects of Article 3 had to be worked out over several decades of political, legal, and intellectual maneuvering. As a result, Marylanders left a remarkable record of politicians, lawyers, and judges contesting for different views of the importance of legal continuity in a democratic republic. This history helps explain why Marylanders are still entitled to the benefits of the common law by the authority of Article 5 of their current constitution, and it also illuminates a defining feature of American democracy, the tension between its theory of sovereignty and the rule of law in practice.

As historians and students of the revolutionary era in Maryland well know, the constitution of 1776 as a whole was a defeat for direct democracy and any popular agenda of social leveling or economic equality that may have been in play, A few idealists, notably Colonel Rezin Hammond of Anne Arundel County, were elected to the 1776 convention but were unable to build a strong statewide political coalition. Effectively led by their wealthy and worldly leaders, notably Charles Carroll of Carrollton, Matthew Tilghman, Samuel Chase, Thomas Johnson, Charles Carroll the Barrister, and William Paca, a majority of delegates embraced independence from the British Empire but voted consistently for a style of government that was familiar and predictable. Why was this plan so conservative? In part because delegates embraced a conception of democratic legitimacy shaped not just by Revolutionary ideals and rhetoric about liberty and rights, but also by the particulars of local legal history.
Read on here.

Hat tip: Legal Theory Blog

Coombe on Breach of Marriage Promise and Defamation in Victorian Ontario

Rosemary Coombe, York University, has been posting her backlist on SSRN.  Two articles of special interest to legal historians.  The first is  'The Most Disgusting, Disgraceful and Inequitous Proceeding in Our Law': The Action for Breach of Promise of Marriage in Nineteenth Century Ontario, University of Toronto Law Journal 38 (1988): 64-108: 
This study examines judicial management of the action for breach of promise of marriage in nineteenth-century Ontario through an analysis of reported cases, trial records, and newspaper accounts. This seldom researched area of legal history sheds light on the interplay between cultural ideology and legal developments. Breach of promise of marriage cases elicited much societal attention and often consternation because they challenged widely held attitudes on women’s participation in the legal system. This study also illustrates how judges at the time exhibited a strong commitment to judicial autonomy in the face of contentious juridical gender issues, as these cases often threatened Victorian visions of social order.
A second is Contesting the Self: Negotiating Subjectivities in Nineteenth-Century Ontario Defamation Trials, Studies in Law, Politics and Society 11 (1991): 3-40:
Understanding the hegemonic quality of legal discourse requires us to view hegemony as unfolding in multiple sights of discursive practice. Thus, we must begin to analyze not only hegemonic legal discourse but hegemony in social sights of legal practice in order to see that legal practice is essential in processes of domination and social ordering. In this article, I explore the processes of political subjection and resistance as they manifest in witness testimony and judicial decisions from late nineteenth century defamation trials in Ontario. I argue that slander and libel suits were integral in constructing particular legitimate knowledges about class and gender as categories of social identity.

Thursday, July 17, 2014

Leubsdorf on the Preponderance of the Evidence Standard

John Leubsdorf, Rutgers-Newark Law School, has posted Preponderance of the Evidence: Some History.  Here is the abstract:
Although much has been written on the history of the requirement of proof of crimes beyond a reasonable doubt, this is the first study to probe the history of its civil counterpart, proof by a preponderance of the evidence. It turns out that the criminal standard did not diverge from a preexisting civil standard, but vice versa. Only in the late eighteenth century, after lawyers and judges began speaking of proof beyond a reasonable doubt, did references to the preponderance standard begin to appear. Moreover, United States judges did not start to instruct juries about the preponderance standard until the mid-nineteenth century, and English judges not until after that. The article explores these developments and their causes with the help of published trial transcripts and newspaper reports that have only recently become accessible. The history thus revealed casts a new light on two subjects that have aroused much scholarly attention during the last few years: the fact that European civil law systems do not proclaim differing standards for civil and criminal proceedings; and the questionable policy foundations on which the preponderance standard rests.

New Release: Blair on Treason and Loyalty in the Civil War Era

New from the University of North Carolina Press: With Malice Toward Some: Treason and Loyalty in the Civil War Era, by William A. Blair (Pennsylvania State University). A description from the Press:
Few issues created greater consensus among Civil War-era northerners than the belief that the secessionists had committed treason. But as William A. Blair shows in this engaging history, the way politicians, soldiers, and civilians dealt with disloyalty varied widely. Citizens often moved more swiftly than federal agents in punishing traitors in their midst, forcing the government to rethink legal practices and definitions. In reconciling the northern contempt for treachery with a demonstrable record of judicial leniency toward the South, Blair illuminates the other ways that northerners punished perceived traitors, including confiscating slaves, arresting newspaper editors for expressions of free speech, and limiting voting. Ultimately, punishment for treason extended well beyond wartime and into the framework of Reconstruction policies, including the construction of the Fourteenth Amendment.
Establishing how treason was defined not just by the Lincoln administration, Congress, and the courts but also by the general public, Blair reveals the surprising implications for North and South alike.
A few blurbs:
"William Blair’s With Malice toward Some represents a remarkably fresh contribution toward historians' understanding of treason and loyalty during the Civil War era. Highly original and deeply researched in heretofore neglected sources, Blair offers a elegantly written reinterpretation that operates at many levels, with many different actors, and with profound implications for the American constitutional system during wartime. A must read for nineteenth-century American historians." --William A. Link
"This book makes a very important contribution to the scholarship on treason and disloyalty during the American Civil War and Reconstruction; it has wonderful new research while drawing on the latest literature; and it is a very good read." --Michael Vorenberg
More information is available here.

The Roosevelt Court and the Landis Report from Quid Pro Books

New from our friends at Qud Pro Books is a reissue of another “Classic in Law and Society,” The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947, by C. Herman Pritchett:
This is a brilliant analysis of Supreme Court decisions during a crucial decade in the Supreme Court's history, by a political scientist "interested in the social and psychological origins of judicial attitudes and the influence of individual predilections on the development of law." A much-cited classic of the Court and judicial decision-making from the point of view of social science and history -- not just doctrine -- this work is at last available in a new reprint edition. It is the book that jump-started the modern study of judicial behavior.
"One of the most informative, judicious, and illuminating of all the books on our judicial history." —Henry Steele Commager

 "His analysis is continuously interesting to the general student of the Court.... Excellent analysis of the subject matter of Court opinions.... No one has done a better job of catching the true meaning of the Supreme Court's role as an instrumentality of government, or of putting that meaning into striking yet comprehensible language.... No better brief summary of the constitutional law of [this] decade can be found anywhere. Finally, the book Is studded with wise insights into the nature of judicial review and the business of the Supreme Court."
 —American Historical Review

"Provocative, well-written, and adventurous."
 —New York Times
"Written in an easy style, free of dogma, and interspersed with a sense of humor, it will solve for many the enigma of seven justices appointed by the same President and presumably endowed with a kindred social outlook attaining unprecedented heights of disagreement."
 —Christian Science Monitor
Part of the Classics of Law & Society Series from Quid Pro Books, this is an authorized and unabridged republication of the original work. Presented in a modern format, it nonetheless retains and embeds the original pagination for continuity of referencing and syllabus and for the convenience of the reader. A new digital edition is also available from Quid Pro.
And, speaking of classics, Quid Pro Books also has an edition of “The Landis Report," more formally known as Report on Regulatory Agencies to the President Elect (on which see Donald Ritchie's article and Joanna Grisinger's Unwieldy American State).  The press explains:
James Landis (LC)
James Landis’ hard-to-find but much-cited Report to Sen. John Kennedy’s committee on administrative regulation and commissions is now readily and affordably available as an ebook or new paperback. Sold out or “unavailable” with major booksellers despite its frequent use in academic literature, the Report finds its new home in the Legal Legends Series.

In 1960, James M. Landis drafted the Report on Regulatory Agencies to the President-Elect and submitted it to President-elect (Sen.) John F. Kennedy, reexamining the federal regulatory commissions and administrative agencies’ structures and powers. He recommended such reforms as strengthening the commissions’ chairpersons and streamlining the agencies’ procedures. The Kennedy Administration subsequently adopted many of the recommendations.

This historic and insightful monograph is now available as a quality ebook, featuring active Contents and accurate reproduction of the original report. It also has a new paperback reprint edition.

James McCauley Landis (1899–1964) was a lawyer, law professor, government official, and legal advisor. More specifically, he was a professor of law and Dean at Harvard Law School and served in various government positions as part of the New Deal, as well as in the Truman Administration. He also served as Special Counsel to President John F. Kennedy.

Wednesday, July 16, 2014

Legal History at SHEAR

The annual meeting of the Society for Historians of the Early American Republic (SHEAR) convenes this week (July 17-20) in Philadelphia. Here's a sampling of the legal history offerings (the full program is available here):

PRESIDING: Christopher Grasso, College of William and Mary

The African Supplement: Corporate Law, Race, and Religion in Early National Philadelphia
Sarah Barringer Gordon, University of Pennsylvania

The Founders Speak: Spiritualist Visitations from the Revolutionary Generation in the Mid-Nineteenth Century
Ryan K. Smith, Virginia Commonwealth University

The Myth of American Religious Coercion: The New Nation’s Un-official Religious Establishment and Its Paradoxes
Chris Beneke, Bentley University
COMMENTS: Mary Kupiec Cayton, Miami University; Christopher Grasso

PRESIDING: Douglas Bradburn, Binghamton University

The Loyalist Problem in New York and Pennsylvania
Brett Palfreyman, Binghamton University

The Argument against Confiscation in South Carolina and New York
Tom Cutterham, New College, Oxford University

Native Citizenship, Sovereignty, and the Law of Nations in the New Republic
Greg Ablavsky, University of Pennsylvania Law School
“Creating an Order of Citizens”: Black Northerners and Civic Status in the Early Republican North
Sarah Levine-Gronningsater, University of Chicago
COMMENT: Holly Brewer, University of Maryland

PRESIDING: Brian Rouleau, Texas A&M University

Contracted Weaponry: The Law of Nations and the U.S.-Latin American Arms Trade, 1793-1818
Andrew Fagal, Binghamton University
Edward Pompeian, College of William and Mary

“An universal alteration in the commercial relations of the universe”: U.S. Political Economy and South America, ca. 1815-1825
Martin Öhman, University of Virginia

“Anywhere where we have diplomatic powers we can affect regulation”: Managing New Markets in an Age of Latin American Revolutions, 1810-1830
Lindsay Schakenbach, Brown University
COMMENTS: Andrew Shankman, Rutgers University at Camden; Brian Rouleau

PRESIDING: Kirsten E. Wood, Florida International University
“Great Value in the Personal Property Here”: Elite Women’s Ownership in Early National New York City
Alisa Wade Harrison, The Graduate Center, City University of New York

“The consideration due to him as the head of his family”: Hostility to Women’s Separate Estates in the Early National South
Lindsay Keiter, College of William and Mary

Widows and Waste: Disputing Dower Rights in Early National New Jersey
Eleanor McConnell, Frostburg State University

COMMENTS: Stephen A. Mihm, University of Georgia; Kirsten E. Wood

One more, from the session titled PECHA-KUCHA (to inspire a lively atmosphere, bringing a drink from the bar is encouraged)
Unrolling the Past: Massachusetts Anti-Slavery Petitions
Nicole Topich, Harvard University

 Did we miss anything? Leave a comment of send us an email and we'll update the post.

Brown-Nagin's Fulton Lecture for 2014

A recording of "The Honor and Burden of Being First: Judge Constance Baker Motley,” Tomiko Brown-Nagin’s Fulton Lecture, delivered at the University of Chicago on May 8, 2014, is available here.  (Tomiko Brown-Nagin is Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, Professor of History at Harvard Graduate School of Arts & Sciences, and Co-Director, Program in Law and History at Harvard University–as well as an LHB Blogger.
Professor Brown-Nagin's talk examines the legacy of The Honorable Constance Baker Motley—and break new ground in the study of civil rights, women's rights, and the legal profession. A protégée of Thurgood Marshall, Motley litigated in southern courtrooms during the 1940s and 1950s, when women lawyers scarcely appeared before the bar. She captivated onlookers who had rarely seen a woman or a black lawyer, much less the extraordinary combination—a black woman lawyer. In 1966 Motley then became the first African-American woman appointed to the federal judiciary. After a long confirmation battle, she ascended to the United States District Court in New York. In her new post, Motley sometimes ruled as segregationists had feared and as liberals had hoped. Typically, Motley deferred to constraints of the judicial role. Therefore, Professor Brown-Nagin concludes, Motley's judicial career demonstrates that—more often than not and regardless of who presides—courts preserve hierarchy.

ANZLH E-Journal 2013

I don't believe we've noticed the publication of the 2013 volume of the Australia & New Zealand Law & History E-Journal, available, as its title suggests, online.  Here is the TOC:

Editor's Introduction   

Searching for the Hidden Convict in Virginia’s Servant Laws
Jennifer Jeppesen, History, University of Melbourne

The Corruption of Benjamin Boothby
Peter Moore, Law, University of Technology Sydney

Francis Lieber and the South Carolina College Library: An Examination of a Scholar’s Academic Library Use
Patrick F. Roughen, Jr, North Carolina Central University

‘Their Proper Historical Place’: The Adjudication of History at the 1978–79 Commission of Inquiry into Chiropractic in New Zealand
Willem van Gent, History, University of Auckland

A map, a poem and two copyright statutes
Isabella Alexander, Law, University of Technology Sydney

The Vanished Source: Gossip and Absence in the Cape of Good Hope ‘Placard Scandal’ of 1824.
Kirsten McKenzie, History, University of Sydney

The Usual Sources: Historical Surprises in Letters and Wills
Prue Vines, Law, University of New South Wales

‘As this painting suggests’: The Power and Perspective of the Visual in Law and History
Diane Kirkby, History, La Trobe University

Reading the Old Bailey Proceedings
Arlie Loughnan, ARC Postdoctoral Research Fellow, Faculty of Law, University of Sydney

Stolen Generations’ Online Testimonies as Sources of Social Justice: Towards an Ethics of Encounter
Honni van Rijswijk, Law, University of Technology, Sydney

Hickford, Mark. Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire. (Oxford University Press, Oxford, 2011. 522 pp. ISBN 9780199568659).
David V Williams, University of Auckland

Kirkby, Diane (ed). Past Law, Present Histories. (ANU E Press, Canberra, 2012. 230 pp. ISBN 97819222144027).
Grant Morris, Victoria University of Wellington

Tuesday, July 15, 2014

Law and History Review: A Continental Issue

A tweet from @LHR_editor tells us the next issue of Law and History Review is available now as a series of “First View Articles on Cambridge’s website:

Access to Justice: Legal Aid to the Poor at Civil Law Courts in the Eighteenth-Century Low Countries
Griet Vermeesch

The Transformation of Adultery in France at the End of the Middle Ages
Sara McDougall

Public Opinion and the French Capital Punishment Debate of 1908
James M. Donovan

Disciplining the Market: Debt Imprisonment, Public Credit, and the Construction of Commercial Personhood in Revolutionary France
Erika Vause

New Release: Smith, "On Democracy's Doorstep"

New from Hill & Wang: On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought "One Person, One Vote" to the United States, by J. Douglas Smith (Director of Humanities, Colburn Music Conservatory). A description from the Press:
As chief justice of the U.S. Supreme Court, Earl Warren is most often remembered for landmark rulings in favor of desegregation and the rights of the accused. But Warren himself identified a lesser known group of cases—Baker v. Carr, Reynolds v. Sims, and their companions—as his most important work. J. Douglas Smith’s On Democracy’s Doorstep masterfully recounts the tumultuous and often overlooked events that established the principle of “one person, one vote” in the United States.

Before the Warren Court acted, American democracy was in poor order. As citizens migrated to urban areas, legislative boundaries remained the same, giving rural lawmakers from sparsely populated districts disproportionate political power—a power they often used on behalf of influential business interests. Smith shows how activists ranging from city boosters in Tennessee to the League of Women Voters worked to end malapportionment, incurring the wrath of chambers of commerce and southern segregationists as they did so. Despite a conspiracy of legislative inaction and a 1946 Supreme Court decision that instructed the judiciary not to enter the “political thicket,” advocates did not lose hope. As Smith shows, they skillfully used the Fourteenth Amendment’s Equal Protection Clause to argue for radical judicial intervention. Smith vividly depicts the unfolding drama as Attorney General Robert F. Kennedy pressed for change, Solicitor General Archibald Cox cautiously held back, young clerks pushed the justices toward ever-bolder reform, and the powerful Senate Minority Leader Everett Dirksen obsessively sought to reverse the judicial revolution that had upended state governments from California to Virginia.

Today, following the Court’s recent controversial decisions on voting rights and campaign finance, the battles described in On Democracy’s Doorstep have increasing relevance. With erudition and verve, Smith illuminates this neglected episode of American political history and confronts its profound consequences.
A few blurbs:
“Today, the principle of ‘one person, one vote’ is fundamental to democracy—but it wasn’t always so. On Democracy’s Doorstep tells how the Supreme Court decided to enter the political thicket and create the modern law of democracy, and how a proposed constitutional amendment almost reversed the Court. In today’s era of partisan gerrymandering and the overturning of the Voting Rights Act, this book could not be more timely and relevant.” —Noah Feldman
“On Democracy’s Doorstep is the compelling story of how a president and a Supreme Court rescued American democracy a half century ago—a vitally important book for our democracy’s new age of crisis.” —John Fabian Witt
More information is available here.

Monday, July 14, 2014

Rickes on Jurisprudence at Davidson College before the Civil War

Heidi J. Rickes, whom I gather is a student at the University of North Carolina at Chapel Hill, has posted Jurisprudence at Davidson College Before the Civil War.  Here is the abstract:
“Jurisprudence at Davidson College Before the Civil War” is an intensive exploration of the ideas about jurisprudence that were in circulation at Davidson College from its founding in 1838 until the Civil War. This article analyzes addresses to the two literary societies, addresses to alumni, and graduation speeches by alumni, attorneys, judges, politicians, and ministers in order to reconstruct antebellum law and political theory at Davidson College. This article employs the important methodology of examining college oratory in order to understand the cultural context of legal and political ideas across North Carolina. This article also finds that these ideas were predominantly those of the Whig Party; there was a focus on education, duty, morality, and internal improvements, as well as use of the legal system to create a well-ordered community. Together the speakers at Davidson College sought a prosperous Union and thus rejected ideas of nullification and secession. Whereas many other southern Whig colleges were often proponents of slavery and of secession, Davidson College reflected the more moderate legal and political philosophy of the North Carolina Whigs. In turn, an understanding of the ideas in circulation at a prestigious academic institution such as Davidson College allows for more complete analysis of contemporaneous decisions of the North Carolina Supreme Court. Such cultural context provides a fresh lens through which this article examines antebellum legal decisions in North Carolina involving property rights, slavery, and morality.

Military History: A Call for Papers

[Thank you, LHB Founder Mary Dudziak, for drawing our attention to the call for papers for 82nd Annual Meeting of the Society for Military History, “Conflict and Commemoration: The Influence of War on Society,” April 9-12, 2015, Montgomery, Alabama.]

The Society for Military History is pleased to call for papers for its 82nd Annual Meeting, hosted by the Air University Foundation and the Montgomery Convention and Visitors Bureau.

The year 2015 marks the 200th anniversary of the conclusion of the Napoleonic Wars, the sesquicentennial commemoration of the end of the Civil War, 70th anniversary of the end of WWII, 65th anniversary of the start of the Korean War, and the 25th anniversary of Operation Desert Shield. The Society for Military History invites papers that examine these and other pivotal conflicts in terms of how they were conducted and how they have been remembered and assessed over time by individuals, institutions, and societies. The program committee will consider paper and panel proposals on all aspects of military history, while especially encouraging submissions that reflect on this important theme.

Panel proposals must include a panel title (along with the full names and institutional affiliations of each participant and the full title of each paper), a one-page abstract summarizing the theme of the panel, one-page abstracts for each paper proposed, and one-page curricula vitae for each panelist (including the chair and commentator, with email addresses provided for all participants), as well as panelist contact information. Submissions of pre-organized panels are strongly encouraged and will be given preference in the selection process. Individual paper proposals are also welcome and must include a one-page abstract of the paper, one-page vita, and contact information, including email. If accepted, individual papers will be assigned by the program committee to an appropriate panel with a chair and commentator. All proposals should be submitted as Microsoft Word documents so that pertinent contents can be cut and pasted into the conference program.

Participants may present one paper, serve on a roundtable, chair a panel, or provide panel comments. They may not fill more than one of these roles during the conference, nor should they propose to do so to the Program Committee. Members who act as panel chairs only for a session may deliver a paper, serve on a roundtable, or offer comments in a different session. Members who serve as chair and commentator of a session may not present in another session. THESE RULES WILL BE STRICTLY ENFORCED.

All proposals must be submitted electronically to the program committee by October 1, 2014. The address is: All presenters, chairs, and commentators must be members of the Society for Military History by December 31, 2014.

The meeting will be held at the Renaissance Montgomery Hotel & Spa in Montgomery, Alabama. It is located right next to the Montgomery Convention Center and is within easy distance of Old Alabama Town, the State Capitol, the First White House of the Confederacy, and the Martin Luther King-Dexter Avenue Church among many other historic sites relevant to the military and civil rights history of the United States. Participants can reach the meeting site via cab from the Montgomery Regional Airport.

Sunday, July 13, 2014

Sunday Book Roundup

n+1 has an online review by Maggie Gram that asks “Did the Civil Rights Act change the Constitution?” Three books are examined in the piece, including We the People, Vol. 3: The Civil Rights Revolution by Bruce Ackerman (Belknap), An Idea Whose Time Has Come by Todd S. Pardum (Holt), and The Bill of the Century by Clay Risen (Bloomsbury).
“[T[hat Ackerman’s book so clearly betrays its own longing for the Civil Rights Act to be locked in forever—and that it does so in the spotlight, and at that untouchable law school, and at the height of Ackerman’s own untouchable career—makes that book a profound political act, no matter how idiosyncratic its alchemical thesis may be. American citizens are weirdly and dangerously complacent about our civil rights laws; so is the American legal academy. We think that laws like the Civil Rights Act could never disappear, precisely because they did change America so utterly. But they could, and Shelby County shows us that they may. At this moment, then, we need accounts of the Civil Rights Act as something more than the historical artifact that Risen and Putnam can give us. We need accounts that cast it as, if not part of our Constitution, then part of what Jack Balkin has called our “constitutional redemption,” our ongoing collective pursuit of a more perfect union. Bruce Ackerman, in fashioning a philosophy that would make it so, has not, himself, made it so. But he ought to move us to want to make it so ourselves.”
New Books in Law talks with Ian Haney Lopez about his new book, Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism & Wrecked the Middle Class (Oxford University Press).

New Books in History interviews Lisa Gitelman about her new work, Paper Knowledge: Toward a Media History of Documents (Duke University Press). Given that I’m currently working in the archives on a research trip, the interview’s tag line, "One doesn’t so much read a death certificate, it would seem, as perform calisthenics on one…” caught my attention. From the interview abstract: 
"Though all of these cases are carefully rooted within a US context, the insights gleaned from them potentially apply to a much wider and trans-local conversation about the documentary media of writers and readers. It is a history of documenting as an epistemic practice and documents as instruments, and that history is consistently and productively entangled with concerns about reproduction, access, labor, and the emergence of a bureaucratic self.”
The London Review of Books has a piece, “On Cruelty” by Judith Bulter reviewing The Death Penalty: Vol. I by Jacques Derrida and translated by Peggy Kamuf (University of Chicago Press). 

H-Net adds a review on “New Directions in GAPE Indian Policy Studies” that examines four books: Cathleen Cahill’s Federal Fathers and Mothers: A Social History of the United States Indian Service, 1869-1933 (UNC Press); C. Joseph Genetin-Pilawa’s Crooked Paths to Allotment: The Fight over Federal Policy after the Civil War (UNC Press); Rose Stremlau’s Sustaining the Cherokee Family: Kinship and the Allotment of an Indigenous Nation (UNC Press); and Nicole Tonkovich’s The Allotment Plot: Alice C. Fletcher, E. Jane Gay, and Nez Perce Survivance (University of Nebraska Press). Cahill’s Federal Fathers and Mothers was on my reading list for exams, and I’d recommend it to anyone thinking and writing about mid- and local-level bureaucrats. From the review: 
“Each of these books demonstrates that both Indian Affairs and Native peoples, often sidelined in GAPE [Guilded Age and Progressive Era] scholarship, are important for a complete understanding of the era. The stories of Indigenous peoples reflect numerous themes explored in broader studies of the period: the treatment of racial minorities, shifting gender roles, the formation of the national state, and colonialism. Within the more narrow range of policy history, these four monographs reveal Indian policy as more complex and nuanced than the traditional historiography has indicated, especially in how it was carried out “on the ground” by workers in the Indian Service. They emphasize the policy’s particular human costs and explore the ways in which these policies were gendered. Native strategies of adaptation and survival analyzed in these works appear as creative and multifaceted, highlighting the reasons for the policy’s ultimate failure. Despite the concerted efforts of a massive federal bureaucracy, American Indian nations remain within the United States."

Saturday, July 12, 2014

Weekend Roundup

  •  NYC's Former Pro-Slavery Stance Examined in Governors Island Exhibit, a post by Emily Frost on the website DNAinfor New York, reports that “an exhibit on NYC's history during the Civil War that examines the city's ambivalent history on the institution of slavery — including a former city mayor's unwavering support for it — is headed to Governors Island this summer.”
  • "The Declaration's influence wasn't limited to the American colonies of the late 18th century," writes David Armitage in the Wall Street Journal.  "No American document has had a greater impact on the wider world. As the first successful declaration of independence in history, it helped to inspire countless movements for independence, self-determination and revolution after 1776 and to this very day. As the 19th-century Hungarian nationalist, Lajos Kossuth, put it, the U.S. Declaration of Independence was nothing less than "the noblest, happiest page in mankind's history."  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, July 11, 2014

Call for Papers: Doctoral Scholarship Conference-Law and Responsibility

[We have the following call for papers.]

November 14-15, 2014
Deadline for Abstract Submission: August 1, 2014

Yale Law School is proud to host the 4th Doctoral Scholarship Conference, which will be held on November 14-15, 2014. The conference aims to provide doctoral students and recent graduates with a forum to present, share and discuss their work beyond conventional academic boundaries. It seeks to promote quality research and to facilitate discussion across diverse subject areas and methodological approaches, with a view towards fostering a community of aspiring legal scholars.

Law is a central social tool for establishing responsibility and for holding agents accountable for their actions and omissions. These functions of the law raise fundamental questions: What is it that the law does when it calls agents to account? What justifies its authority to do so? What values underlie the law’s call of those under its jurisdiction to responsibility? What are the limits of holding persons legally responsible? What modes of responsibility can and should the law impose? In what ways do these functions interact with the other social functions of the law? In what ways can and should legal institutions themselves be held responsible?

These questions materialize in idiosyncratic ways across the various areas of law, with different issues taking center stage in each area. At the same time, these questions illuminate aspects of law that should be considered across arbitrarily constructed disciplinary boundaries. Legal responsibility manifests itself in different ways in the realms of private and public law as well as in the domestic and international spheres. In a complex, global society, states, corporations and individuals must thus make sense of their multiple and shifting responsibilities in areas as diverse as the economic, the criminal, the environmental, the contractual and the international. In all these areas, and in many others, law engages with various modes of responsibility, including the personal, the social and the civic, each of which is situated within different legal relationships. This conference aims to examine the many and varied modes of responsibility with which the law interacts, as well as broader themes that emerge from taking a bird’s-eye view of the legal system as a whole. 

The conference is open to current doctoral candidates, in law or law-related disciplines, and those who graduated during the previous academic year (2013-2014). We welcome submissions engaging any area of law. Papers will be selected based on quality and their capacity to provoke fruitful debate with other submissions. Selection will be informed – but not strictly bound – by fidelity to the theme.

Abstracts of 300-500 words (with your institutional affiliations) should be submitted to by August 1st, 2014. Selected applicants will be informed of acceptance in late August, and presenters will be asked to submit their papers of up to 10,000 words in length by October 10, 2014. 

More information available here and here.

Lindseth on Europe's "Administrative" Legitimacy

Peter L. Lindseth, University of Connecticut School of Law, has posted Equilibrium, Demoi-cracy, and Delegation in the Crisis of European Integration, which appears in the German Law Journal 15 (2014): 529-567.  Here is the abstract:
As my work has argued previously, European integration enjoys an “administrative, not constitutional” legitimacy. This view is in obvious tension with the deeply-rooted conceptual framework — what we might call the “constitutional, not international” perspective — that has dominated the public-law scholarship of European integration over many decades. Although the alternative presented in my work breaks from that traditional perspective, we should not view it as an all-or-nothing rejection of everything that has come before it. The administrative alternative can be seen, rather, as providing legal-historical micro-foundations for certain theories that also emerged out of the traditional perspective even as they too are in tension with it. I am referring in particular to Joseph Weiler’s classic notion of European “equilibrium” — now updated as “constitutional tolerance” — as well as Kalypso Nicolaïdis’s more recently developed theory of European “demoi-cracy” on which this article focuses in particular. The central idea behind the “administrative, not constitutional” interpretation — the historical-constructivist principal-agent framework rooted in delegation, as well as the balance demanded between supranational regulatory power and national democratic and constitutional legitimacy — directly complements both theories. The administrative alternative suggests how the relationship between national principals and supranational agents is one of “mediated legitimacy” rather than direct control. It has its origins in the evolution of administrative governance in relation to representative government over the course of the twentieth century (indeed before). By drawing on the normative lessons of that history — notably the need for some form of national oversight as well as enforcement of outer constraints on supranational delegation in order to preserve national democratic and constitutional legitimacy in a recognizable sense — this article serves an additional purpose. It suggests how theories of European equilibrium and demoi-cracy might be translated into concrete legal proposals for a more sustainable form of integration over time — a pressing challenge in the context of the continuing crisis of European integration.

Thursday, July 10, 2014

Bloch and Lamoreaux Weigh In on Hobby Lobby

From Ruth H. Bloch and Naomi R. Lamoreaux, Property v. Liberty: The Supreme Court's Radical Break with Its Historical Treatment of Corporatrions, Perspectives on History (July 2014): "We . . . trace the history of the Supreme Court's jurisprudence on corporate rights and show that [Justice] Alito's opinion breaks with a long line of decisions beginning in the 1880s that treated for-profit corporations as 'persons' under the Constitution only for the purpose of protecting the property rights-not the liberties-of individual members."  More.

Research Nineteenth-Century Belgian Bankrupts and Their Creditors!

H-Law has posted a job listing on the research staff of a project at the Vrije Universiteit Brussel.  Quite apart from its value as a job announcement, the notice is interesting for the research it describes:
The candidate will conduct research within the framework of the FWO-funded research project “Bringing creditors to the negotiating table. Reconsidering the law on indebtedness and economic failure in early nineteenth-century Belgium (1808-1850)”. The project purports to analyse the negotiation strategies between failed/insolvent traders and their creditors, on the basis of archives of the commercial courts . .  .  .

Dawson on "Public Danger" in the Grand Jury Clause

James Dawson, a Lecturer in Law at the Yale Law School, has posted Public Danger.  Here is the abstract:    
This paper provides the first account of the term “public danger,” which appears in the Grand Jury Clause of the Fifth Amendment. I argue that, in light of historical records from the seventeenth and eighteenth centuries, the proper reading of “public danger” is a broad one. On this theory, public danger includes not just impending enemy invasions, but also a host of less serious threats (such as financial panics, jail breaks, floods, fires, natural disasters, and plagues). This broad reading is further supported by constitutional history. In 1789, the first Congress rejected an amendment that would have replaced the phrase “public danger” in the proposed text of the Fifth Amendment with the narrower term “public invasion.” Several other tools of interpretation — such as an intratextual analysis of the text of the Constitution and a survey of other legal doctrines that use a “public danger” standard — also counsel in favor of an expansive reading. The paper then unpacks the practical implications of this reading. First, the fact that the Constitution expressly contemplates “public danger” as a gray area between war and peace informs the ongoing scholarly debate about whether the global war on terror is an endless war, a “wartime,” or something else entirely. “Public danger” provides a method of thinking about terrorism that is already built into the Constitution, and therefore calls into question the elaborate but nonconstitutional theories that some scholars have proposed to help order our thinking about terrorism. My second argument is that, since the Founders recognized the concept of “public danger” but yet declined to extend enhanced authority to the President during these periods, the Grand Jury Clause may operate as an implicit limitation on executive power in the post-9/11 era. Third, I suggest that a broad reading of public danger would allow Congress to massively expand the jurisdiction of courts martial merely by altering the definition of the phrase “actual service” in the Fifth Amendment.

Wednesday, July 9, 2014

New Release: Constable, "Our Word Is Our Bond: How Legal Speech Acts"

New from Stanford University Press: Our Word Is Our Bond: How Legal Speech Acts (2014), by Marianne Constable (University of California, Berkeley). Here's a description from the Press:
Words can be misspoken, misheard, misunderstood, or misappropriated; they can be inappropriate, inaccurate, dangerous, or wrong. When speech goes wrong, law often steps in as itself a speech act or series of speech acts. Our Word Is Our Bond offers a nuanced approach to language and its interaction and relations with modern law. Marianne Constable argues that, as language, modern law makes claims and hears claims of justice and injustice, which can admittedly go wrong. Constable proposes an alternative to understanding law as a system of rules, or as fundamentally a policy-making and problem-solving tool. Constable introduces and develops insights from Austin, Cavell, Reinach, Nietzsche, Derrida and Heidegger to show how claims of law are performative and passionate utterances or social acts that appeal implicitly to justice. 
Our Word Is Our Bond explains that neither law nor justice are what lawyers and judges say, nor what officials and scholars claim they are. However inadequate our law and language may be to the world, Constable argues that we know our world and name our ways of living and being in it through law and language. Justice today, however impossible to define and difficult to determine, depends on relations we have with one another through language and on the ways in which legal speech—the claims and responses that we make to one another in the name of the law—acts.
Reviewers say:
"Our Word is Our Bond transforms how we think about law, about language, and above all about the inextricable interdependencies that enmesh them. Marianne Constable explores the sovereignty of language in and over law with insight, eloquence, erudition, subtlety and imagination."—Martin Krygier, University of New South Wales, Australia

"Combining theory and case law, linguistics and jurisprudence, Our Word is Our Bond provides a uniquely sophisticated and dramatically accessible guide to the rhetoric of justice and the politics of judgment. Barack Obama's flubbed oath of office, Palsgraf v Long Island Railroad, the California Criminal Code are but a few of the diverse array of substantive examples that Constable subjects to coruscating critical disposition."—Peter Goodrich, Benjamin N. Cardozo Law School, Yeshiva University
The TOC and Introduction are available here.

Tuesday, July 8, 2014

Program from Conference on "The Law and the Child in Historical Perspective"

Earlier this year we noted a conference on "The Law and the Child in Historical Perspective," co-sponsored by the University of Minnesota Law School and History Department, the Childhood and Youth Studies Across the Disciplines IAS Research Collaborative at the University of Minnesota, the Indiana University School of Law, the University of Pennsylvania Law School and History Department, the University of Illinois College of Law, the University of Michigan Law School, and the University of Chicago Department of History. The conference took place in early June and included an exciting set of papers and comments. Here's the full schedule:

Sunday, June 1 

Panel 1: Age, Consent & Rights to Oneself

-Will Smiley “Three Fatwas and a Treaty: A Historical Perspective on Childhood, Apostacy, and Islamic Law”
-Kristin McCabe Lashua “Charitable Kidnappers? Children, Consent, and the Early English Empire”
-Serena Mayeri “’Hapless’ and ‘Innocent’ Children: Child-Centered Arguments in the Law of the Non-Marital Family”

Commentator: Susanna Blumenthal

Keynote Address
Michael Grossberg “Why Kids Matter: Age as a Useful Category of Analysis in Legal History”

Monday, June 2

Panel 2: The Problem of Unattached Children

-Juandrea Bates “I Am Only a Boy in These Courts: Immigration, Minority and Civil Law in Turn of the Century Buenos Aires”
-Shani Roper “Childhood, Delinquency and Social Control: Explorations of Legislation Tracking Juvenile Delinquency in Colonial Jamaica, 1881-1904”
-Sharon Park “The Legal Categorization of Child Refugees as Dependents & Recipients of U.S. Aid, 1945-1953”

Commentator: Michael Grossberg

Panel 3:
Parental & Children’s Rights & the Consolidation of State Power

-Heather Hawkins “Getting Them Back: Child Welfare, Parental Rights, and Administrative Power in 19th Century Minnesota”
-Julia Bowes “The Limits of Liberalism: Compulsory Schooling, Mandatory Vaccination and the End of Laissez-Faire Parenting, 1870-1920”
-Kathryn Schumaker “Discipline and Due Process: The Civil Rights Struggle and the Expansion of Students’ Rights”

Commentator: Nick Syrett

Panel 4: Children, Families, & Colonialism

-Yen-Chi Liu “Colonial Childhoods: Children and the Law under Japanese Colonial Rule in Taiwan (1895-1945)”
-Tadashi Ishikawa “How Can Adopted Daughters Be Treated in and between Households? Parental Authority, Incomplete Transfers, and Japanese Courts in Colonial Taiwan, 1919-1936”
-Nurfadzilah Yahaya “Question of Guardianship in Colonial Southeast Asia: Arab Children under British and Dutch Rule”

Commentator: MJ Maynes & Barbara Young Welke

Panel 5: Class, Sexuality, Race and Social Order

-Cynthia Greenlee “Due to Her Tender Age: African-Americans, Child Rape and South Carolina Courts, 1885-1905”
-Sara Mayeux “Car Trouble: Adolescence, Automobility, and the Law, 1890-1930”
-Marcia Chatelain “’Questions We Cannot Answer’: The Brown v. Board Decision and Girl Scouts of the United States”

Commentator: Martha Jones

Closing Comments: Sarah Barringer Gordon