Monday, April 30, 2007

Symposium on Taxation in Comparative and Historical Perspective, at Northwestern This Week

The Thunder of History: Taxation in Comparative and Historical Perspective, a symposium, will be held this week, May 4-5, at Northwestern University. This interesting meeting was organized by Monica Prasad (Sociology, Northwestern), with Isaac Martin (Sociology, UC-San Diego) and Ajay K. Mehrotra (History and Law, Indiana University-Bloomington),

The title "The Thunder of History" comes from this:

"The spirit of a people, its cultural level, its social structure, the deeds its policy may prepare – all this and more is written in its fiscal history, stripped of all phrases. He who knows how to listen to its message here discerns the thunder of world history more clearly than anywhere else."
– Joseph Schumpeter, 1918

The Keynote Speaker is Charles Tilly, Departments of Sociology and Political Science, Columbia University. His topic is “Extraction and Democracy.”

Other speakers include: Fred Block, Elliot Brownlee, Andrea Campbell, Robin Einhorn, Chris Howard, Edgar Kiser, Evan Lieberman, Isaac Martin, Ajay Mehrotra, Beverly Moran, Monica Prasad, Joel Slemrod, Nancy Staudt and Joe Thorndike.

The full program is here (pdf). The schedule and list of papers is here. (There are password-protected links to papers, but the papers are only accessible to paper givers and commentators.)

Location: The Graduate School
633 Clark Street
Rebecca Crown Plaza 1-502
Evanston, IL 60208-1113

For more information, and to register, contact: Elisabeth Anderson at

Legal Historian Herb Hovenkamp elected to American Academy of Arts and Sciences

Herbert Hovenkamp is in the 2007 Class of Fellows elected to the American Academy of Arts and Sciences. Hat tip to Brian Leiter. Herb was my very generous colleague at my first job at the University of Iowa. It is always so great when honors like this come to nice people.

Herb is distinguished in two fields: legal history and antitrust. He holds the Ben and Dorothy Willie Chair at Iowa. His legal history works include Enterprise and American Law (Harvard University Press, 1991), which was awarded the Littleton-Griswold Prize by the American Historical Association.

Others who work in legal history who are members of the Academy include:

Law school-based scholars:

Currie, David P., University of Chicago
Friedman, Lawrence M., Stanford Law School
Helmholz, Richard H., University of Chicago Law School
Horwitz, Morton J., Harvard Law School
Reid, John, New York University School of Law
Scheiber, Harry N., Boalt Hall School of Law, University of California, Berkeley
Tushnet, Mark V., Harvard Law School
White, G. Edward, University of Virginia

History Department-based scholars:

Kerber, Linda Kaufman, University of Iowa
Rakove, Jack N., Stanford University

Aroney on Law and Politics in Australian Constitutional History

Nicholas Aroney, TC Beirne School of Law, University of Queensland, has posted an article, Politics, Law and the Constitution in McCawley's Case. It takes up an important 1918 Australian case. The article appeared recently in the Melbourne University Law Review. Here's the abstract:
Discussion about the relationship between law and politics in Australian constitutional law is often conducted in abstract terms. McCawley's Case presents a unique opportunity to examine the relationship between law and politics in the context of a very rich set of specific circumstances, and to do so in a manner which distinguishes between the different dimensions of 'politics' and 'law', and the complex ways in which they can interrelate. With these objectives in mind, this article undertakes three tasks. First, it seeks to place McCawley's Case within the personal, political and legal contexts in which it arose, and to show why the case provides a particularly valuable opportunity to test our understanding of the relationship between law and politics. Second, the article aims to identify and distinguish the various political elements of the case in their personal, partisan and ideological dimensions, as well as the competing conceptions of law and constitutionalism upon which the judges relied. Third, the article evaluates the role of law, politics and constitutionalism in the case, arguing that rather than being purely legal or reductively political in character, the decisions are best understood as reflecting contrasting theories concerning the ideal purposes of constitutional law and the appropriate location of constituent power.

Gross, When is the Time of Slavery? The History and Politics of Slavery in Contemporary Legal Argument

Ariela J. Gross, Univ. of Southern California, has posted a new article, When is the Time of Slavery? The History and Politics of Slavery in Contemporary Legal Argument. It is forthcoming in the California Law Review. Here's the abstract:
When is the time of slavery? Is slavery a part of our nation's experience best buried in the deep past, or are its echoes still being felt today? Has our nation's trajectory been one of continuous progress from slavery to freedom, or did change happen fitfully and incompletely? And was slavery an institution defined by race, or was race only incidental to its origins and operation? Contemporary debates about racial justice, and in particular about redress for racial injustice, turn not only on moral and practical concerns, but on the answers to these questions. The jurisprudence of affirmative action and reparations draws on competing histories of slavery and its aftermath in the United States. This essay will explore the way histories of slavery have been used in judicial opinions, legal scholarship and popular political tracts arguing over racial justice, affirmative action, and reparations for African Americans. It lays out a taxonomy of conservative and liberal histories of slavery, and suggests the implications and limitations of these historical narratives.

Sunday, April 29, 2007

5 blogs

Eric Muller at Is That Legal? was kind enough to tag the Legal History Blog as one of his "Five Blogs that Make Me Think." Having been given a Thinking Blogger Award, it is now my task to tag five blogs that I like. I am always a bit wary of anything that looks like a chain letter, but I am happy to point out a few blogs & bloggers you may or may not know that I value.

1. The Legal Theory Blog by Lawrence Solum is well-established and widely read, but I must note it because it is the principal inspiration for this blog. One of my aims was to do for legal history what LTB does for legal theory.

2. IntLawGrrls, which has great content on international affairs, and, with several co-bloggers, destroys the assumptions that women are not interested in 1. blogging, and 2. international law.

3. Out of the Jungle, a group blog, which has great posts on the world of libraries and information technology, for example developments on the Bush Presidential Library, and because legal historians simply depend on librarians.

4. Alfred Brophy, University of Alabama School of Law, at the PropertyProf Blog, a legal historian whose posts are always thoughtful and worth reading.

5. Feminist Law Professors, run by Ann Bartow at the University of South Carolina Law School, because it seems more essential than ever.

Canuel, The Shadow of Death, on the Death Penalty in Literature

The Shadow of Death: Literature, Romanticism, and the Subject of Punishment by Mark Canuel is just being released by Princeton University Press. Here's the press description:
The Shadow of Death is a timely and ambitious reassessment of English Romantic literature and the unique role it played in one of the great liberal political causes of the modern age. Mark Canuel argues that Romantic writers in Great Britain led one of the earliest assaults on the death penalty and were instrumental in bringing about penal-law reforms. He demonstrates how writers like Percy Bysshe Shelley, Lord Byron, William Wordsworth, and Jane Austen defined the fundamental contradictions that continue to inform today's debates about capital punishment.

Celebrated reformers like Sir Samuel Romilly and William Ewart campaigned against the widespread use of death to punish crimes ranging from murder to petty theft, but they were most influential for initiating a system of penalties built upon conflicting motivations and justifications. Canuel examines the ways Romantic poets and novelists magnified these tensions while treating them as uniquely aesthetic opportunities, seized upon contending rationales of punishment to express imaginative power, and revealed how the imagination fueled the new penal code's disturbing vitality. Death-penalty reform, Canuel argues, in fact emerged from a new way of thinking about punishment as a negotiation among rationales rather than a seamless whole, with leniency and severity constantly at odds. He concludes by exploring how Romantic penal reform continues to influence contemporary views about the justice--and injustice--of legal sanctions.

Mark Canuel is Associate Professor of English at the University of Illinois, Chicago. He is the author of Religion, Toleration, and British Writing, 1790-1830.


"Canuel's book is well researched and groundbreaking. Scholars of Romanticism are likely to know of scattered references to the death penalty, but few, I think, will have known before reading Canuel's provocative book of its pervasiveness as an issue of concern."

--Celeste Langan, author of Romantic Vagrancy: Wordsworth and the Simulation of Freedom

"The Shadow of Death derives its strength and originality from pinpointing the persistent power--political and aesthetic--of punishment in British Romantic writing. In a series of energetic and ingenious readings of works written in an age pervaded by the rhetoric of penal reform, Canuel calls attention to various 'negotiations' between the logics of reform and sanctioned murder in order to show their inevitable mutuality. Another significant feature of Canuel's argument is the strong link between the exercise of the Romantic imagination and the exercise of corporal punishment. This is itself a forceful argument, and an original one, made in often unpredictable ways. The topic and major arguments of this book ought to be of interest not simply to scholars of the period, but also to those interested in the larger philosophical and political debates surrounding the death penalty."

--Mary A. Favret, author of Romantic Correspondence: Women, Politics, and the Fiction of Letters

Bergin on Schumpeter's paradoxes in McCraw, Prophet of Innovation

PROPHET OF INNOVATION: Joseph Schumpeter and Creative Destruction by Thomas K. McCraw (Belknap, Harvard University Press) was reviewed recently in the Wall Street Journal, but the more interesting review is by Harvard graduate student Angus Bergin in the New York Sun. Bergin writes, in part:

Those who write about Schumpeter rarely resist the temptation to compare his abundant charisma — both intellectual and interpersonal — to the force of a rushing wind, but it remains a challenge to write a narrative worthy of the metaphor. Mr. McCraw's prose successfully captures the heroic energy of his subject's life and thought. He does so by embracing, rather than attempting to tame or conceal, the relentlessly paradoxical quality of Schumpeter's ideas.

Like his contemporary Frank Knight at the University of Chicago, the other great center of American economic thought in the decades following World War I, Schumpeter abhorred the dogmatism of economic "schools" and the corresponding pretension that simple solutions could be found for the economic problems of the modern world. His thought, like his life, remained suspended between apparently contradictory poles.

Schumpeter championed the innovation, productivity, and material abundance engendered by capitalist economies, but remained deeply pessimistic about the instability, moral skepticism, and insatiable desires they inspired. He extolled the rough edged entrepreneur who generated new ideas and applied unyielding energy in the pursuit of their adoption, while at the same time admiring (and imitating) the aristocratic mien and noble disinterest of the disappearing European elite. Schumpeter's students recall that he would take over an hour to assemble his exquisitely tailored outfits each morning before his lectures on the benefits of capitalism's creative destruction. He admired the modern world's spectacular pace of change even as he mourned the very qualities these changes destroyed.

Perhaps John Kenneth Galbraith had this paradox in mind when he called Schumpeter "the most sophisticated conservative of this century." Schumpeter harnessed the two central concepts of modern conservatism — embracement of the dynamic change enabled by the free market economy, and suspicion of its cultural effects — in a social analysis that did not disguise or pervert its ironical nature. That he did so while transcending a range of disciplines with a mix of massive erudition and academic daring makes his achievement all the more striking, and inimitable, today.

For the rest, click here.

Saturday, April 28, 2007

Frye on the 2nd Amendment and the Peculiar Story of U.S. v. Miller

"On April 18, 1938, the Siloam Springs police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers," Brian L. Frye writes in a new paper on SSRN. "Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Firearms Act (“NFA”). Surprisingly, the district court dismissed the charges, holding the NFA violates the Second Amendment. The Supreme Court reversed in United States v. Miller, holding the Second Amendment doesn’t guarantee the right to keep and bear a sawed-off shotgun."

"Sixty years later, Miller remains the only Supreme Court opinion construing the Second Amendment. But courts struggle to decipher its holding." Frye's paper is The Peculiar Story of United States v. Miller. A recent NYU law school graduate, the author can be contacted via his SSRN page. The abstract follows:

This article provides a comprehensive history and interpretation of United States v. Miller, the only Supreme Court case construing the Second Amendment. It presents evidence Miller was a test case designed by the government to test the constitutionality of federal gun control. It shows the holding in Miller is narrower than generally assumed. It argues Miller adopts neither the individual nor the collective right theory of the Second Amendment. It suggests the Supreme Court's pragmatic, deferential approach in Miller remains appropriate.
The photo, courtesy of Brian Frye, is of Jack Miller.

LUDLOW, or labor history, in verse

LUDLOW (Red Hen) by David Mason, is reviewed by Ron Charles in this Sunday's special poetry edition of the Washington Post Book World. Charles writes, in part:

Ludlow blends fact and fiction to recreate one of the most tragic events in American labor history. Much of the story follows a noble, endearing young man named Louis Tikas, an actual person who emigrated from Crete, lured here by promises of easy women. "Money flows like water," he hears, "rivers/ of money. A President named Rockefeller/ gives you a job the moment you disembark." Alas, things don't work out quite that way. He flounders around before finally taking work as a scab in the Colorado coal mines, which have been slowed by a violent strike. The men are essentially slaves: Their wages never cover the cost of room and board; they're surrounded by barbed wire and violent, armed guards.

"In hell/ or, as he muttered to his fellow Greeks/ crouched in the dark, digging in its direction," Tikas quickly decides to strike, and when he does, he takes more than 60 others with him to the union hall. So begins his quick rise through the ranks of the local leadership. Sympathetic and alert, he's adept at keeping the peace in this explosive situation that eventually involves 1,300 people who speak 20 different languages. The logistics of managing all these laborers and their families living in tents in brutally cold weather with sporadic supplies (often held up by railway executives) would tax anyone's management skill. It's an exhilarating, dangerous career that brings him into contact with Mother Jones (marvelously recreated here) and several other real-life figures. We also meet Colorado's bungling governor, a vicious National Guard lieutenant named Karl Linderfelt, and crafty John Rockefeller, calmly boasting about his support for every man's right to work (i.e., management's right to break the union)....

Ultimately, this isn't just a story about a brave labor activist, a "footnote nearly lost/ from the pages of the history books." Instead, in these stirring lines, Mason has written something far more personal: "We piece together Tikas as we make/ our own past from what evidence we find." Here's a chapter of our lives in cadences that will resonate with anyone who gives them a chance.

For the rest, click here.

An overview of the Ludlow Massacre, with striking images, including the ones in this post, is at the Denver Public Library website.

Solum on Originalism as Transformative Politics

Lawrence B. Solum, University of Illinois, has posted Originalism as Transformative Politics. It appeared in the Tulane Law Review and will be republished in GADAMER AND THE LAW, Francis J. Mootz, ed. (Ashgate, 2007). Here's the abstract:
The debate between originalists and nonoriginalists has begun to suffer a fate similar to these earlier debates in constitutional theory and practice. This essay is one of a growing number of recent attempts to look back at the originalism debate now that both the critics and defenders of originalism have stated their positions and replied to arguments of their opponents. As originalism has been modified and defined in reaction to nonoriginalist critiques, the originalist's theory has become more and more plausible as a theory of constitutional interpretation. When I say plausible as a theory of constitutional interpretation, I mean that the most sophisticated forms of originalism provide an accurate description of the phenomenology of constitutional practice. The Constitution is interpreted in light of the purposes and concerns that animated its framing and ratification.
As a matter of the theory of interpretation, originalism captures an important aspect of constitutional practice. But the originalists have won a Pyrrhic victory. As originalism has been clarified in response to its critics, it has gradually become more and more evident that it has no force as a critique of constitutional interpretation as practiced by the Warren Court. Originalism has become indistinguishable from nonoriginalism. Quite to the contrary, I will argue that originalism can serve as the basis for what we might call transformative politics.
This essay was originally published in 1989 and is anthologized in Gadamer and the Law (edited by Francis Mootz and published by Ashgate in 2007).

Friday, April 27, 2007

travel delay

...on the road and having some technical difficulties this morning. The Legal History Blog will catch up within a couple of days. Check back over the weekend. By then, any news may be history. But after all, this is a history blog!

Thursday, April 26, 2007

Hirsch on the American History of Inheritance Law

Adam J. Hirsch, Florida State, has posted a new essay, American History of Inheritance Law, forthcoming in the Encyclopedia of Legal History. Here's the abstract:
This essay, written for the Encyclopedia of Legal History, summarizes and examines the history of inheritance law in the United States, from colonial times to the present day. The essay suggests that while British statutory and common law was the main source of American inheritance law - as one would expect in British colonies, inhabited by English settlers - American lawmakers began to go their own way in some respects from the very beginning, deviating from British rules of probate jurisdiction, intestacy, and will formalization and substituting rules that better suited colonial conditions. The American Revolution freed Americans to deviate as widely as they wished from British law. Still, following a burst of inheritance legislation inspired by republican values, such as the abolition of entails, the law in this area changed only gradually and in relatively small ways over the course of United States history. Although increased protection from disinheritance for a surviving spouse represents one abiding theme, American inheritance law has always been, and remains, marked by a robust freedom of testation that distinguishes our law from that of modern Britain and other countries in the western world.

Harris on Transplantation of Legal Discourse on Corporate Personality from Germany to Britain and the U.S.

Ron Harris, Tel Aviv University, has posted a new article forthcoming in the Washington and Lee Law Review, The Transplantation of the Legal Discourse on Corporate Personality Theories: From German Codification to British Political Pluralism and American Big Business. Here's the abstract:
The debate on the nature of the legal personality of groups emerged in Germany in the last third of the 19th century and intensified with the controversies over the drafting of the German Civil Code. This discourse was well-rooted in German jurisprudential traditions, German historical narratives and the German political context. Yet, somewhat unexpectedly, it was imported into the Anglo-American world in about 1900. The discourse focused on three theories of corporate legal personality that were played against each other: the state grant theory according to which corporate entities were created by public law, the contractual theory according to which corporate entities were created in the sphere of private law and the real entity theory according to which corporate entities were constructed socially outside the realm of law and were only recognized by the law. This was arguably the most intense Anglo-American legal discourse of the first quarter of the twentieth century. Around the mid-1920s it abruptly subsided, leaving only traces for historians to follow. Several factors make this discourse particularly interesting: its transnational dimension, its intensity over a short and well-defined period of time, the fact that this was a mid-level theory discourse, that it had a significant historical component and lastly that the discourse and its theories were transplanted in debates in various contexts.
My focus is on the history of the discourse. I follow its course of expansion from one site to the other and map its borders. I will identify the contours and functions of the discourse in Britain and the US in four contexts: political theory, trade unions, city governance and business organization. Special emphasis is given to explaining the timing of its emergence in different venues, its transplantation into new contexts, its shifts from theory to doctrine, from academic to practical discourse, from past narratives to present concerns. A central theme of this paper is that there was indeed an initial under-determinacy in each of the three basic theories of personality, as John Dewey's critique argued, one that sometimes enabled utilization of the same theory for conflicting purposes or of different theories for the same purpose. However, each personality theory could be used only in some venues, some periods and some contexts. Each became embedded in certain meanings when it functioned in concrete historical and spatial discourse settings. Each lacked in the first place, or lost along the way, much of the manipulability that Dewey attributed to it.

Wednesday, April 25, 2007

Walker reviews Kutulas, The American Civil Liberties Union and the Making of Modern Liberalism

Judy Kutulas, The American Civil Liberties Union and the Making of Modern Liberalism, 1930-1960 (University of North Carolina, 2006) is reviewed on H-Law by Samuel Walker, Department of Criminal Justice, University of Nebraska at Omaha. Walker is author of a history of the ACLU, In Defense of American Liberties (1990). He writes, in part:
The relationship between civil liberties and modern liberalism is an important topic in American legal and political history. The growth of constitutional law protecting individual rights reached the point that, by the late 1970s, the United States was dominated by what some commentators call a "rights culture." Protest against that culture--over separation of church and state, pornography,abortion rights, and lesbian and gay rights--has been the mainspring of apolitically powerful conservative religious movement. Criticisms of the rights culture have also come from legal and political scholars, such as Harvard Law Professor Mary Ann Glendon, who, while committed to civil liberties values of free speech and equal protection, are concerned about the broader social impact of the relentless pursuit of individual rights. At the same time, there is little question that liberalism dominated American politics for a half century,from the election of Franklin Roosevelt in 1932 until the late 1970s, with the election of Ronald Reagan in 1980 marking the end of that era.
In this context, the relationship between civil liberties and modern liberalism merits serious examination....
In a history of the ACLU between the 1930 and 1960, Judy Kutulas makes the provocative argument that the ACLU was seduced by the lure of respectability, and as a result made significant compromises in its fight for civil liberties. By 1960, she argues, the ACLU had abandoned its earlier radicalism and become "chic," a comfortable part of the liberal mainstream. Kutulas writes that ACLU leaders "steered their Civil Liberties Union into the liberal mainstream" (p. 41).
Kutulas's book is the first scholarly treatment of a critique of the ACLU that first appeared in the 1940s and accuses the ACLU of trimming its sails during the Cold War. The signal event was a 1940 resolution barring members of totalitarian groups from leadership positions in the ACLU, which resulted in the expulsion of Elizabeth Gurley Flynn, a Communist Party member, from the ACLU Board. Further compromises flowed from this initial compromise of principle, according to this argument.
Given the importance of the subject, it is sad to report that Kutulas's book is extremely unpersuasive. Most important, she fails to develop a substantive analysis of modern liberalism and the place of civil liberties within it. Consequently, we never know exactly to what the ACLU was allegedly striving to conform. When she refers to "liberalism," does she mean the Democratic Party or a certain intellectual school of thought? She does not say. With reference to civil liberties, she ignores some of the most important issues of the period she covers. Finally, there are some serious factual errors regarding the history of the ACLU.

For the rest, click here.
Please note: Anyone who disagrees with a negative review is encouraged to post a comment. Any author who would like to reply in a regular blog post should contact me.

Perry: Law Reviews, like Dinosaurs, Unfit for Modern Life

"The traditional student-edited general interest paper-based law review, one of the pillars of American legal scholarship and education, is unfit for life in the modern academic world," writes Ronen Perry, Univ. of Haifa, in a new paper on SSRN. "Yet it still exists, much like the dinosaurs in Michael Crichton’s Jurassic Park. In my view, it must evolve or be extinct."

Perry's paper, titled "De Jure [sic] Park ," will appear in the inaugural issue of CONNtemplations, an on-line companion to the Connecticut Law Review. "The roots of the American law review may be traced to the nineteenth century," Perry writes in his introduction. "The University of Pennsylvania Law Review, established in 1852 as the American Law Register, is probably the oldest continuously published legal periodical in America. However, it began as a practitioners’ journal and became affiliated with an academic institution only in 1896. The gradual proliferation of academic law journals started in 1887, with the establishment of the Harvard Law Review, the first student-edited legal periodical to last more than a few years. At present, there are nearly two hundred ABA-approved law schools in the United States."

The essay goes on to critique "the main structural deficiencies of student-edited general interest paper-based law reviews, namely that they are student-edited, general interest and paper-based." In addition to arguing for more peer-review/faculty involvement, he also argues for the benefits of specialization over general interest reviews. And more.

Tuesday, April 24, 2007

Hoffer Reviews Zietlow, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights

Rebecca E. Zietlow, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights (New York University Press, 2006) is reviewed on H-Law by Peter Charles Hoffer, Department of History, University of Georgia. Hoffer writes, in part:
The title of Rebecca E. Zietlow's sweeping and intelligent book is a little misleading. This is not a book about Congress's workings or about individual rights, but about Congress's ability, in its best moments, to protect "the rights of belonging," collective rights of groups to play an equal role in American life. What is more, the title never mentions the doppelganger in the text, the High Court, a subject occupying about half the pages. For Zietlow's argument is that the Congress, a representative democratically elected body (facts assumed rather than proved, for until well into the twentieth century-- in large measure because of the rulings of the High Court, not the Congress--Congress did not represent people of color, women, Native Americans, immigrants, the young, and too often the poor) is a far more trustworthy protector of the rights of belonging than the High Court....
While much that Zietlow writes is intended to fit into the on-going dialogue among legal writers and political scientists about rights and institutions (indeed, entire chapters are literature reviews and commentary), the organization of the book and its first five chapters are historical. That history begins with James Madison's attempt to give to Congress a negative over state legislation, and ends with Congress's Religious Freedom Restoration Act (1993) attempt to override the High Court's rejection of the free exercise claim in _Smith v. Oregon_ (1990), a law that the Court controverted in _City of Boerne v. Flores_ (1997). The evidence in these chapters is, by her own admission, selective, but the case for selectivity follows from her choice of "rights of belonging" over rights of individual liberty. Belonging meant inclusion and equality, and these issues are particularly sensitive to majority rule. Individual rights, often revolving around private property taken for public use (think taxes, for example), pits the Court, the defender of the privileged few,against the many. No better example can be found than the Fuller's Court's aversion to any social engineering, including federal income taxes.
Thus Zietlow finds herself agreeing with Mary Ann Glendon that the Court's emphasis on liberal rights is too focused on the individual and too adversarial, and should pay more attention to community and majority values. The emphasis on individual rights, perhaps inevitable when Courts consider cases brought by individuals, "inhibits dialogue over the fundamental values that underlie rights of belonging" (p. 163).

For the rest, click here.

Hopt on Comparative Company Law in the 20th Century

Klaus J. Hopt, Max Planck Institute for Private Law and the European Corporate Governance Institute (ECGI) has just posted an essay, Comparative Company Law, published recently in The Oxford Handbook of Comparative Law. Here's the abstract:
The developments of company law in countries belonging to five legal families illustrate the principle-agent conflicts that company law faces and the range of solutions it offers to cope with them. Comparative company law is about learning from each other's experience in a competitive way, and solving together the cross-border problems arising for and from companies that are facing global competition. Comparative company law today is conceived and created equally by legislators, lawyers, academics, and courts. Examples include the influence of German, French, and U.S. law on company law codifications in Japan and other countries, the legal practice in regard to cross-border transactions, the worldwide growing presence of academic comparative research, and last but not least the decision-making of the European Court of Justice.
The driving forces of comparative company law can be traced back to the spread of the 1930s' U.S. securities regulation into European Union member states, Eastern European states, and also China; the harmonization efforts of the European Community since the late 1950s; and most recently, the international rise of the corporate governance and code movements in the 1990s that had some famous origins in the United Kingdom. This leads to modern challenges such as the pros and cons of self-regulation in company law and beyond.
From a broader perspective, there is a need for the adjustment of company and capital market law in all the legal families considered. In this respect, comparative company law is a highly promising source for exploring the key issues, including convergence and divergence in company and capital market law, harmonization versus regulatory competition, and the means and institutions that provide for operative enforcement. Comparative research, together with economic and empirical analysis, will thus contribute to an understanding of the real functioning of company law - a core task for the future of the European internal market, but also beyond in a globalized world.

65 years ago, in Germany

April 24, 1942, Eric Muller's great uncle Leo, and the other Jews of Bad Kissingen, Germany, were "evacuated" to Poland. Eric continues the story of his uncle, with new details from the archives, at Is That Legal?

Parisi on the Intellectual History of the Coase Theorem

Francesco Parisi, University of Minnesota, has posted a short essay, Coase Theorem, forthcoming in the NEW PALGRAVE DICTIONARY OF ECONOMICS, 2nd ed., L. Blume and S. Durlaufe, eds. Here's the abstract:
The Coase Theorem holds that, regardless of the initial allocation of property rights and choice of remedial protection, the market will determine ultimate allocations of legal entitlements, based on their relative value to different parties. Coase's assertion has occasioned intense debate. This article provides an intellectual history of Coase's fundamental theorem and surveys the legal and economic literature that has developed around it. It appraises the most notable attacks to the Coase Theorem, and examines its methodological implications and normative and practical significance in legal and policy settings.

Monday, April 23, 2007

Cooley reviews Sracic, San Antonio v. Rodriguez and the Pursuit of Equal Education

SAN ANTONIO V. RODRIGUEZ AND THE PURSUIT OF EQUAL EDUCATION: The Debate Over Discrimination and School Funding by Paul A. Sracic (University Press of Kansas) has been reviewed by Aaron Cooley, School of Education, University of North Carolina at Chapel Hill in the Law and Politics Book Review. Cooley begins:
The task set forth in Paul Sracic’s SAN ANTONIO V. RODRIGUEZ AND THE PURSUIT OF EQUAL EDUCATION: THE DEBATE OVER DISCRIMINATION AND SCHOOL FUNDING is a difficult one. This volume is one of a series of texts that seeks to introduce a significant case in the history of American jurisprudence and flesh out its cultural and political impact, as well as its constitutional legacy. It can be quite challenging to provide an accurate summation of the technical details of complex litigation while, at the same time, explaining the case in accessible terms for non-specialists.
Sracic manages to balance these goals in a masterful manner. In the preface, he relays that he uses RODRIGUEZ as an example in the courses he teaches. The text at hand reflects his immense knowledge about the events leading up to the litigation, the personalities and backgrounds of the major actors, the political effects on the nation’s educational system, and the legal consequences gained from years of its use in his classrooms. The volume proceeds chronologically from the rationale for why the case came into being to the effects of the case on present school equity litigation. Several sections merit particular consideration and analysis. Each of these sections will be examined in turn.

[For example,] Sracic fills in the background on Justice Powell as it relates to educational rights and equity cases. This section is very informative for illustrating possible factors that might have shaped Powell’s views on the RODRIGUEZ case. Of paramount importance in this area was Powell’s own work in the governance of schools. Sracic relays Powell’s position on education, which foreshadows the outcome of the case: “Powell’s experience on the Richmond School Board led him to develop great affection for the idea of local control over the schools. . . . He did not believe that unequal funding led directly to unequal education. The link between funding and quality had never, to Powell’s way of thinking, been definitively made” (pp.66-67). This notion of local control is something that plays a large role in sorting out the elements of the RODRIGUEZ case.

For the rest, click here.

O'Halpin on British Intelligence and Counter-Terrorism in Ireland, 1965-1972

Eunan O'Halpin, University of Dublin, has posted a new paper, The British Joint Intelligence Committee and Ireland, 1965-1972. It is of interest in the broader, comparative study of the history of intelligence and counter-terrorism. The abstract is short, so I am including as well an excerpt from the beginning of the paper. Here's the abstract:
This paper discusses the performance of the British Joint Intelligence Committee (JIC) in anticipating and assessing the dangers posed to British interests by instability in Ireland between 1965 and 1972, and in setting the parameters within which intelligence operations to counter terrorism were mounted. It concentrates on the performance of the central intelligence assessment machinery of British government, not on the politics of Anglo-Irish relations. It explores the performance of the JIC, at least as revealed by the redacted material available in the public archives, in terms of intelligence organization and intelligence failure.

Here's the excerpt:
Most academic writing on the Troubles remains highly Ulstercentric, if not downright provincial: there has been surprisingly little detailed exploration of the work of the Whitehall machinery of government and the impact which this had on political and security policy and operations. This largely contrasts with broadly comparable crises in the 1950s and 1960s in countries such as Kenya, Malaya, Rhodesia and Aden, where scholarly study has mainly focused on British official records disclosing London’s deliberations, responses and plans. While a great deal has been written about intelligence and counter terrorism in Northern Ireland, London’s and specifically the JIC’s role seldom gets any serious consideration. This leaves a gap in understanding of the evolution of British policy on Northern Ireland. Furthermore, it obscures the point that Northern Ireland merits inclusion in the litany of British intelligence failures which have obsessed Whitehall and entertained the wider British public over the decades....
It would be difficult to overstress the centrality of intelligence assessment in the British policy system in the decades since the Second World War.

Bilder: Why We Have Judicial Review

Mary Sarah Bilder, Boston College, has posted "Why We Have Judicial Review," on SSRN and in the Yale Law Journal Pocket Part. Here's the abstract:
This paper accompanies Mary Sarah Bilder, The Corporate Origins of Judicial Review , 116 Yale L.J. 502 (2006), in which the author argues that the origins of judicial review lie not in the expansion of judicial power but rather in the prior practice of commitment to limited legislative authority.

Bancroft Prizes for 2007 announced by Columbia University

The authors of two acclaimed books, a biography chronicling the life of William James and an ecological history of the American South, have won the Bancroft Prize for 2007: Robert D. Richardson for William James: In the Maelstrom of American Modernism (Houghton Mifflin) and Jack Temple Kirby for Mockingbird Song: Ecological Landscapes of the South (University of North Carolina). The Bancroft is awarded annually by the Trustees of Columbia University to the authors of books of exceptional merit in the fields of American history, biography and diplomacy.

A Columbia Ph.D. thesis has won the Bancroft Dissertation Award: Top-Down Revolution: Businessmen, Intellectuals and Politicians Against the New Deal by Kim Phillips-Fein (GSAS’05). Columbia’s Graduate School of Arts and Sciences sponsors the dissertation award, ...given to a Columbia student annually for outstanding dissertations in American history (or biography), diplomacy or international affairs.

According to the Bancroft jury, William James is simultaneously an intellectual biography, and a biography tout court, of the James family, including William James’s father, Henry James, Sr., and his brother Henry.” The book “is a virtual intellectual genealogy of American liberalism and, indeed, of American intellectual life in general, through and beyond the twentieth century...the story Richardson tells is engaging, his research deep, his writing graceful and appealing.”

Bancroft jurors noted that Mockingbird Song “is an ecological history of the American South, told through a series of chapters about different types of landscapes and the way human beings have lived and worked in them.... Kirby reflects profoundly on the relationships of Americans–and of humankind–to the natural original in the growing field of environmental history, elegantly conceived and beautifully written.”

Kim Phillips-Fein currently teaches at the New York University Gallatin School, specializing in business history. Eric Foner, Columbia’s DeWitt Clinton Professor of History and Phillips-Fein’s Ph.D. sponsor, said “Kim’s dissertation offers a strikingly original account of key elements of modern American history. She challenges the prevailing view of the 1950s as a time of ‘liberal consensus’ by showing the intense business mobilization against the legacy of the New Deal. She directs attention away from the cultural issues to which the rise of conservatism is generally attributed and places economic ideas and interests at the center of the rise of Reaganism. When it appears as a book, it will not only establish her as one of the most promising historians of her generation, but will undoubtedly become essential reading for anyone interest in American political history.”

The full announcement is here. Hat tip.

Sunday, April 22, 2007

2007 Entry-Level Law School Hiring in Legal History (first take)

The full results from the 2007 hiring season are not yet in, but here's how it looks as of this writing. There are (at least) nine new entry-level hires in legal history in U.S. law schools. Of the nine, six have Ph.Ds in History, one has an M.A. in History, and one has an M.A. in another field.

At least four participated in one or more fellowship programs (Berger Fellow at Harvard, Hurst Fellow at Wisconsin, Golieb Fellow at NYU, Law and Public Affairs Fellow at Princeton).

Yale is sometimes thought of as having a lock on JD/Ph.Ds in history. But these candidates represent a range of institutions, suggesting that there is no single pathway into the field. So far, this is the breakdown:

JD schools:
Harvard 2
Yale 2
Arizona 1
Chicago-Kent 1
Denver 1
Michigan 1
Virginia 1

Ph.D. Schools:
Chicago 1
Harvard 1
Univ. of Illinois 1
Univ. of Pennsylvania 1
Princeton 1

A note about this data: My information about placement, degrees, etc., comes from Larry Solum's invaluable Entry Level Hiring Report at the Legal Theory Blog. My information about who this year's legal history candidates are comes from various sources. It may be incomplete. It is harder to identify non-Ph.D. legal historians. When I was unsure about a particular scholar, I looked for evidence of scholarly and teaching interests in legal history in on-line bios. Please let me know about corrections and anyone I may have missed (or incorrectly included), either by posting a comment, or e-mailing me. I will post updates when I have new information.

This year's entry-level hires so far are are below:

Columbia Law School:
Christina Duffy Burnett, JD, Yale, 1998. PhD Candidate, History, Princeton. Program on Law and Public Affairs, Research Scholar, Princeton.


Allison Brownell Tirres. JD, Harvard, 2004. PhD, History, Harvard, 2007.

Loyola University Chicago:

Alexander Tsesis, JD Chicago Kent Colege of Law; MA Philosophy, University of Illinois-Chicago. Currently visiting assistant professor, Marquette University Law School.
New York Law School:
Rebecca Roiphe. JD, Harvard, 2000. PhD, American History, Chicago. 2002. Golieb Fellow, NYU. VAP, Fordham.
Tulane Law School:
Elizabeth Townsend Gard. JD, University of Arizona, 2002. PhD, History, UCLA, 1998. Visiting Professor, VAP, Seattle University Law School.
University of Toledo:

Gwen Jordan, JD, Denver (1986), Ph.D. (history), Illinois-Chicago (2004), Hurst Legal History Fellow, Wisconsin.

Valparaiso University School of Law:
Zachary Calo. JD, University of Virginia, 2005. PhD, American History,
University of Pennsylvania, 2006.
Daniel Sharfstein; JD Yale 2000; Samuel Golieb Fellow in Legal History, NYU, 2006-07; Raoul Berger-Mark DeWolfe Howe Visiting Fellow in Legal History, Harvard, 2005-06.

Widener University (Harrisburg Campus):

Katherine Jones. JD, University of Michigan, 1985. LLM, London School of Economics, 1986. MA, History, University of Virginia. Visiting Assistant Professor, VAP, Syracuse University School of Law.

Lyons reviews Alder on the History of Lie Detectors

The Lie Detectors: The History of an American Obsession by Ken Alder is reviewed by Stephen J. Lyons, University of Illinois at Urbana-Champaign, in today's Chicago Tribune. Lyons writes, in part:
In "The Lie Detectors," his well-researched history of American lie detection in the 20th Century, Ken Alder writes that although our quest [for truth] puts too much trust in suspect science (the polygraph) and often devolves toward the paranoid (Joseph McCarthy testing for gays and commies), it is also a sign of a nation that is simply trying "to fashion a just society."
Alder, Northwestern university professor and author of "The Measure of All Things," writes that this great project of democracy "drew its legitimization from two noble half-truths about our public life: that democracy depends on transparency in public life, and that justice depends on equal treatment for all."
Setting aside Abu Ghraib's horrors and Chicago's own notorious third-degree tactics, these are indeed noble pursuits. Yet Alder quite convincingly shows that the early purveyors of the main instrument of sorting fact from fiction -- the cumbersome and unreliable lie detector -- did not always have democracy's best interests at heart. And that would be asking a lot. The lie detector has always been more sizzle than substance, more scare tactic than foolproof. One study found the machine's accuracy to be only 53 percent -- about the same rate as assessing culpability by old-fashioned, non-mechanized guesswork. Despite its lack of legal and scientific standing, the use of the lie detector in this country persists.

For the rest, click here:

Saturday, April 21, 2007

Yoshino reviews Merida & Fletcher, Supreme Discomfort: The Divided Soul of Clarence Thomas

Kenji Yoshino, Yale, reviews SUPREME DISCOMFORT: The Divided Soul of Clarence Thomas (Doubleday) by Kevin Merida and Michael A. Fletcher in this Sunday's Washington Post. Yoshino writes, in part:
Justice Clarence Thomas is the Supreme Court's most reclusive member, which is saying something. Deeply distrustful of the media, the justice also almost never speaks from the bench. As a powerful official who remains opaque to the public, he is a prime candidate for a careful, fair-minded biography. In delivering it, Kevin Merida and Michael A. Fletcher have done some quiet justice of their own.
Supreme Discomfort shows that two competing, racially charged narratives govern how Thomas -- like many black conservatives -- is perceived and treated. The first storyline is that of the Uncle Tom: the race-traitor who sides with whites for personal advantage....If liberals often cast Thomas as a quisling, conservatives tend to cast him as someone who has achieved the American Dream by pulling himself up by his bootstraps....
Lost between these two competing stories is the tale of an individual, and that is the one brought to life by Merida and Fletcher, journalists at The Washington Post. Their biography deftly puts paid to both conventional narratives; after all, we do not expect Uncle Toms to have engaged in radical black student activism, nor do we expect Horatio Alger heroes to believe America is irredeemably racist. But that is too faint praise for Supreme Discomfort. By the end of the book, we see the injustice that stock narratives have done to a person who can charm those predisposed against him and win the lifetime loyalty of those whose minds are less made up. We're introduced to the many Thomases we have never seen: the RV-driving Thomas, the Ayn Rand-loving Thomas, the Catholic Thomas and others.
The book's main flaw is its failure to give us more of one particular Thomas: Justice Thomas. For a biography of a jurist, Supreme Discomfort is surprisingly short on Thomas's legal decisions and philosophy.

For the rest, click here.
David Garrow has a different take on the book in today's Los Angeles Times.

Mollie Orshansky and the Meaning of Poverty

Mollie Orshansky, a woman whose research defined what "poverty" was during the 1960s "War on Poverty" and after is being remembered this week. She died in December at the age of 91. According to the New York Times:

In 1963 and 1964, Miss Orshansky conducted the research that would become the basis of the poverty thresholds. She used the economy food plan — the cheapest of four “nutritionally adequate” food plans developed by the Department of Agriculture — and multiplied the dollar costs by roughly three to come up with a minimum cost-of-living estimate. (A household food consumption survey by the Agriculture Department had shown that, in 1955, families of three or more people spent about one-third of their after-tax cash income on food.)

Miss Orshansky devised more than 120 poverty thresholds, adjusting her calculations for family size and composition and rural-urban differences. She published her research in a seminal 1965 article in The Social Security Bulletin.

President Lyndon B. Johnson had declared a War on Poverty, but there was no official definition of the problem at the time. In May 1965, the Office of Economic Opportunity, the federal agency charged with carrying out the antipoverty effort, adopted the “Orshansky index” as the yardstick to measure poverty.

It was a use that Miss Orshansky herself had never intended. “Orshansky developed the index as a research tool, not an instrument of policy of a criterion for determining eligibility for anti-poverty programs,” the historian Michael B. Katz wrote in “The Undeserving Poor,” a 1989 history of antipoverty efforts....
Miss Orshansky, whose parents had known poverty in Ukraine, worked for the Social Security Administration from 1958 until she retired in 1982. She was “one of a respected but mostly invisible cadre of women research professionals based at S.S.A. and other government agencies during the postwar years,” the historian Alice O’Connor wrote in “Poverty Knowledge,” a 2001 history of poverty research.

A feature on Defining Poverty, featuring Alice O'Connor and a discussion of Orshansky's work, was on NPR's Talk of the Nation in 2003, and can be heard on-line here.

Lerner, Dry Manhattan: Prohibition in NYC on Book TV

Dry Manhattan: Prohibition in New York City by Michael Lerner

featured today, Saturday, April 21 at 8:15 pm and Sunday, April 22 at 12:00 pm (times eastern) on C-Span Book TV

Description: The 18th Amendment to the U.S. Constitution ushered in the era of Prohibition in 1919. The ban on alcohol was deemed by President Herbert Hoover as a "noble experiment" and was intended to lead to a more moral and healthy society. Michael Lerner contends that this was not the case and focuses on New York City during the years of Prohibition to expose the inherent failures of the law.

Author Bio: Michael Lerner is Associate Dean of Studies at Bard High School Early College.View Schedule

Friday, April 20, 2007

Constitution Writing as a Summer Story: Reviewed: Stewart, Summer of 1787

THE SUMMER OF 1787: The Men Who Invented the Constitution by David O. Stewart gets a tepid review in today's New York Times from Michiko Kakutani, who throws in a plug for Akhil Amar. Kakutani writes, in part:
The story of how the Constitution was written, of course, has been told many times before: most notably in Catherine Drinker Bowen’s classic work “Miracle at Philadelphia,” as well as in books like Richard B. Morris’s “Witnesses at the Creation,” Clinton Rossiter’s “1787: the Grand Convention,” and “Decision in Philadelphia” by Christopher Collier and James Lincoln Collier.
The latest book about the framers, “The Summer of 1787,” does not shed a lot of new light on that momentous process. David O. Stewart, a lawyer specializing in constitutional law cases, has written a narrative that is far more descriptive than analytic. One of the few opinions he offers is that the delegates’ work on defining the office of the president was hasty and rushed and does “not compare well to their detailed outline for Congress.”

And given the many constitutional issues being debated today (concerning the war powers of Congress and the president, and the Bush administration’s efforts to amp up the prerogatives of the executive branch) the reader often wishes that the author had used his expertise to illuminate the origin and significance of key passages in the Constitution, the way, say, that Yale law professor Akhil Reed Amar did in his 2005 book “America’s Constitution: A Biography.”

Still, Mr. Stewart has done a nimble job of retelling a familiar story, showing how the Constitution evolved during those hot summer months in Philadelphia.

To read the rest, click here.

Reviewed: Sandage, Born Losers: A History of Failure in America

How's this for a book topic? Scott A. Sandage, Born Losers: A History of Failure in America (Harvard University Press) is reviewed by Ronald J. Zboray and Mary Saracino Zboray, both of the Department of Communication, University of Pittsburgh on H-SHEAR.

Has anyone written about losers in legal history? Who, for example, would be the Willy Loman of American law?

Zboray and Zboray begin:
In the epilogue of Born Losers: A History of Failure in America, Scott A. Sandage quotes a pivotal line from Arthur Miller's play, Death of a Salesman, that haunts his entire book: "Attention, attention must be finally paid to such a person" (p. 263). The person is, of course, Willy Loman, the quintessential loser of American dreams. Sandage, an associate professor of history at Carnegie Mellon University, reminds us that Loman represents but a long line of economic "failures" in American history who, for the most part, have been ignored or studied outside of the ever-changing, historical-cultural definitions of success. Thus Sandage pays heed to Linda Loman's injunction to remember and, above all, respect the real-life Willy Lomans on every page of Born Losers.

In this regard, Sandage's first book, winner of the Thomas J. Wilson Prize, succeeds admirably. We are introduced, chapter after chapter, to mainly white businessmen and sometimes their wives, who, from the panics of 1819 to 1893, fell into monetary trouble. Many of these people--mostly nobodies today--left diaries, commonplace books, account books, or sets of correspondence from which Sandage draws his most memorable material. We hear the anguish of Philadelphian Joseph Horner, a hardware dealer, who, after investing in a steamboat, was unable to pay debts during the first panic: "What is to become of us ... I know not" (p. 29). We experience the torment of New Hampshire's John Flagg, who in 1825 wrote he had "gushed into tears many a time," for fear of not securing a stable business (p. 70). Quotes from so-called begging letters of the Gilded Age supplicating wealthy men show just how desperate some "losers" were. The wife of one such man even asked him to write to John D. Rockefeller of her (literal) nightmare in which she "climbed a great hill, 'weak and worn and with clothing torn off,'" in the hopes he would give her husband a place at Standard Oil (p. 226). What Sandage is able to wrest from the numerous collections of personal papers he read at various archives is often astonishing. The liberal deployment of quotations that chew up pages--no easy task when working within editorial constraints about word length, as we well know--is commendable. Sandage, an effective writer himself, allows his long-forgotten informants to have their own say.

Although desperation and regret bind together losers from all eras, concepts of what it meant to fail evolved over time.
To continue reading, click here. For the Born Losers book website, click here.

Dorland reviews Ogletree & Sarat, From Lynch Mobs to the Killing State

FROM LYNCH MOBS TO THE KILLING STATE: Race and the Death Penalty in America by Charles J. Ogletree, Jr. and Austin Sarat (eds) (New York University Press) is reviewed by Mitzi Dorland, Institute for Law and Society, New York University on the Law and Politics Book Review. Dorland begins:
FROM LYNCH MOBS TO THE KILLING STATE, edited by Charles J. Ogletree, Jr. and Austin Sarat, assembles an impressive collection of essays from a diverse cast of authors for the task of explaining how and why the connection between race and the death penalty has been so strong throughout American history. By first grounding the connection in America’s history of racially motivated lynchings of suspected black criminals, and then illustrating the ways in which race has since continued to play a role in the administration of the “official” death penalty, this interdisciplinary collection provides much more depth to the connection between race and capital punishment than is often seen in other works. And, while the book focuses on the role of race, the essays also touch upon a wider range of important issues surrounding contemporary administration of the death penalty.
In their Introduction, Ogletree and Sarat contend that we are “now in a period of national reconsideration” of capital punishment. Surely, in recent years, and even since the book was published, prominent death row exonerations and, most recently, questions surrounding the humaneness of lethal injection, have coincided with significant reductions in the use of the death penalty. As the authors note, there have been dramatic declines in both the number of death sentences imposed each year and the number of offenders who are executed. Additionally, recent Supreme Court decisions have narrowed the scope of the death penalty, banning its application to the mentally retarded (ATKINS v. VIRGINIA 2002) and juveniles (ROPER v. SIMMONS 2005).
In contrast to the book’s focus, however, the issue of racial discrimination has seemingly been pushed from the forefront in recent years within the abolitionist movement itself, particularly by allegations of actual innocence, and, most recently, the surge of litigation alleging the cruelty of current lethal injection procedures. In his independent contribution (Chapter 8), Sarat chronicles and analyzes this shift toward highlighting actual innocence over racial disparities. Stuart Banner, however, suggests that race continues to play a prominent role in the “tactical decisions of death penalty opponents.” He notes, in part, that the website of the Death Penalty Information Center, “the most sophisticated and thorough of the abolitionist organizations,” had listed “Race” as the “very first of the ‘Issues’ surfers might wish to explore, ahead of competitors like ‘Innocence,’ ‘Costs,’ and ‘Deterrence’.” But “Race” has lost this distinction since Banner visited the site in 2002—the “Issues” have now [*313] been alphabetized, with “Arbitrariness” listed first. Of course, this change may have little or no significance, but the new listing of “Race” as just one among a whole litany of issues may better signify its current treatment within the abolitionist movement and the contemporary debate over capital punishment.
Still, statistical studies demonstrating racial disparities in the administration of the death penalty abound.

For the rest, click here.

Aguilera and Jeong on the Evolution of Enterprise Unionism in Japan

The Evolution of Enterprise Unionism in Japan: A Socio-Political Perspective has just been posted by Ruth V. Aguilera and Dae Yong Jeong, both of the University of Illinois at Urbana-Champaign. Here's the abstract:
This paper proposes an alternative framework to understand enterprise unionism by emphasizing political dynamics and the role of the state in labor relations. Our framework delineates the strategic behavior patterns of the tripartite IR actors, and maintains that the initial period of the collective bargaining era constituted a critical juncture (state labor policy) that occurred in distinctive ways in different countries and that these differences played a central role in shaping the different union structures in the following decades. Our historical analysis shows that unlike its counterparts in Western countries, the Japanese state was able to eradicate the horizontal union movement at the onset of the collective bargaining era because of its late developer advantages and Cold War politics resulting in enterprise unionism in Japan.

Thursday, April 19, 2007

Ridge on Legal Regulation of Religious Giving in 19th Century England

Pauline Ridge, Australian National University, has posted an essay forthcoming in Law and Justice, Legal Regulation of Religious Giving. Here's the abstract:
The article considers the legal regulation of religious giving in nineteenth century England. Three leading cases, decided between 1871 and 1887, are discussed. Each case involves a woman of Roman Catholic, or Roman Catholic-like persuasion, making a substantial testamentary or inter vivos gift to the religious body with which she is associated. It is argued that whether the gift was construed as an outright gift or a trust for purposes was crucial to its enforceability. Two key themes are considered: autonomy concerns in relation to religious giving (including reasons why these concerns were more pressing with respect to inter vivos gifts) and the different levels of legal recognition of religious giving. The law during this period took an active role both in managing the relationship of religious groups with the state and in controlling the activities of religious groups; conversely, suppressed religious groups managed to operate around, and outside, the law.

For Justice Ginsburg, It's Personal

Justice Ruth Bader Ginsburg called the majority ruling "alarming" in yesterday's case upholding a federal statute that makes the "partial-birth" abortion procedure illegal, Gonzales v. Carnhart. She took the unusual step of delivering an oral summary of her dissent, which Linda Greenhouse writes, "she read from the bench at a slow pace that caused every syllable to resonate."

Justice Ginsburg objected vehemently that “this way of thinking reflects ancient notions of women’s place in the family and under the Constitution — ideas that have long since been discredited.”

She cited century-old Supreme Court cases that upheld a paternalistic view of women’s place in society and contrasted those with more recent cases, including one she successfully argued to the court in 1977 and one in which she wrote the majority opinion in 1996, that rejected “archaic and overbroad generalizations” and assumptions about women’s inherent dependency.
Marty Lederman had it right when he said that she found the majority opinion "an attack on her entire life’s work.”

Justice Ginsburg, of course, was one of the lawyers in the ACLU Women's Rights Project who brought the cases establishing women's basic constitutional rights, not so long ago. That she believes much work remains to be done is apparent in her revealing recent introduction to Jill Norgren's biography of Belva Lockwood.

Justice Ginsburg's full dissent, and the majority opinion, are here (pdf). The full text of her remarks in court yesterday are at Legal Times. More resources are here.

Bloom on the Court vs. Congress and the Shaping of Judicial Power

Frederic Bloom, Saint Louis University, has posted an article that appeared in the Washington University Law Quarterly, Unconstitutional Courses. Here's the abstract:
By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in “runaway” federal judges. And nearly every time Congress makes a “jurisdiction-stripping” threat, it comes to nothing.
But if Congress's threats possess little fire, we have still been distracted by their smoke. This article argues that Congress's noisy calls have obscured another potent threat to the “judicial Power”: the Supreme Court itself. On occasion, this article asserts, the Court reshapes and abuses the “judicial Power” – not through bold pronouncements or obvious doctrinal revisions, but through something more inconspicuous, more discreet: the prescription of unconstitutional decisionmaking procedures. These decisionmaking procedures – what this article calls “unconstitutional courses” – have attracted little sustained attention; their unexpected source and their subtle form make these “courses” too easy to ignore. Yet where Congress has so often failed, the Court has quietly succeeded. By charting “unconstitutional courses,” the Court has refashioned the “judicial Power” in an untenable way.
To show how, this article examines what “unconstitutional courses” are, when the Court has charted them, and why these “courses” merit consideration. As a part of this analysis, this article identifies two “unconstitutional courses,” one historic and one contemporary. The first “course” grows out of Swift v. Tyson, a well-known (if long-derided) discussion of federal common law; the second emerges in Williams v. Taylor, a significant chapter in the story of contemporary habeas law. Both Swift and Williams illustrate the importance of how courts make decisions – what law they consider, what facts they ignore, what analytical steps they take. Both Swift and Williams demonstrate the impact a court's decisionmaking “course” may (and does) have in resolving individual disputes and in shaping the “judicial Power.” And both Swift and Williams exhibit the need to examine the Court's less obvious threats to individual rights – and to itself.

Wednesday, April 18, 2007

Supreme Court abortion case in the blawgosphere

There is much on the law blogosphere today on the Supreme Court's ruling in the "partial birth" abortion case, Gonzales v. Carnhart(pdf).

Of particular interest to legal historians may be Marty Lederman's post on the case as a reflection of the impact of Justice Sandra Day O'Connor's retirement.

Also of interest: Jack Balkin himself, at Balkinization.

SCOTUS Blog has news, analysis, more analysis, and even a blog round-up on the case.

New York Times coverage is here.

There is some loose talk out there on historical analogies/Bradwell v. Illinois, etc., but I think we'll wait for the historians to weigh in on that.

Entry-level Legal History Hiring?

I'd like to do a post on this year's entry-level hiring in Legal History. I'm concerned that if I pull together a list without readers' input, it may be too under- (and possibly over?) inclusive. So I would appreciate news about hiring in legal history -- in law schools, history departments and other relevant tenure-track academic positions.

In keeping with the format on the Legal Theory Blog's entry-level hiring report, please provide this info (if the candidate is already listed on the Legal Theory Blog, just let me know that they're a legal historian & no need to repeat the rest):

Please provide as much of the following information as you can in the following format:
Hiring Institution: Name of hire. First law degree, first law degree institution, first law degree year. Highest other graduate degree, highest other degree field, highest other degree institution, highest other graduate degree year. Post-doc position title, post-doc program type, post-doc program institution.

So here is a sample entry:
New York Law School: Jane Roe. JD, Yale, 2004. PhD, History, Harvard, 2001. Bigelow Fellow, Teaching Fellowship, Chicago.
Some further explanations:
Report only entry level hiring for tenure track positions.
(Lateral hiring is also of interest, but only name, old school & new school are needed.)

You can either post info as a comment below, or e-mail me. Self-reporting is appreciated!

Many thanks.

Lukas Book Prizes in Nonfiction and History announced

I just learned of these prizes, which were announced at the end of March. Note especially the unusual "work-in-progress" prize, which provides significant support for completing a book project. Here's the announcement from Columbia University:
The recipients of the 2007 J. Anthony Lukas Prize Project Awards include a stunning account of the events leading up to the destruction of the World Trade Center by Lawrence Wright; a moving chronicle of the search for a homecoming by Americans of African descent, by James T. Campbell; and a harrowing exploration of Hoop Spur, Arkansas in 1919, when white mobs and federal troops converged to suppress a nascent sharecroppers union, by Robert Whitaker.
The prizes, established in 1998 and co-administered by the Neiman Foundation at Harvard University, recognize excellence in nonfiction writing, works that exemplify the literary grace, commitment to serious research and social concern that characterized the distinguished work of the awards’ Pulitzer Prize-winning namesake J. Anthony Lukas, who died in 1997.

This year's awards go to:

Lawrence Wright for The Looming Tower: Al Quaeda and the Road to 9/11 (Alfred A. Knopf)

The judges named three finalists: Taylor Branch for At Canaan’s Edge: America in the King Years, 1965-1968 (Simon and Schuster); Michael Isikoff and David Corn for Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War (Crown); and Melissa Faye Greene for There is No Me Without You: One Woman’s Odyssey to Rescue Africa’s Children (Bloomsbury USA).

James T. Campbell for Middle Passages: African American Journeys to Africa, 1787-2005 (The Penguin Press)

Two finalists were named: Marci Shore for Caviar and Ashes (Yale University Press); and Peniel E. Joseph for Waiting ‘Til the Midnight Hour (Henry Holt and Company).

Robert Whitaker for Twelve Condemned to Die: Scipio Africanus Jones and The Struggle for Justice That Remade a Nation (to be published by Crown).

One finalist for the J. Anthony Lukas Work-in-Progress Award was also named: Michael Punke for Last Stand: George Bird Grinnell, the Battle to Save the Buffalo, and the Birth of the New West (to be published by Smithsonian Books).

For the full announcement, click here.

Darmer on Rehnquist vs Scalia on the 6th Amendment

M. Katherine B. Darmer, Chapman, has posted a new paper, Scalian Skepticism and the Sixth Amendment in the Twilight of the Rehnquist Court. Here's the abstract:
While the late Chief Justice William Rehnquist left behind a rich criminal procedure legacy marked by pro-government successes in the Fourth and Fifth Amendment contexts, this paper argues that Rehnquist's vision failed with respect to the Sixth Amendment. In both the Federal Sentencing Guidelines and Confrontation Clause contexts, Justice Scalia marked out very different positions than Rehnquist on both the scope of the right to trial by jury and the right of cross-examination. Ultimately, Scalia's views prevailed, and part of the legacy of the Rehnquist Court is now the invalidation of the U.S. Sentencing Guidelines and a testimonial approach to the Confrontation Clause. Ultimately, Scalia's skepticism of the judiciary stood in marked contrast to Rehnquist's more pragmatic approach to the Sixth Amendment and resulted in pro-defendant rulings based on a more purist view of the constitutional rights of criminal defendants.

Oliver on Miranda-Like Rules in the 19th Century

Wes Oliver, Widener, has posted an article that just appeared in the Tulane Law Review, Magistrates' Examinations, Police Interrogations, and Miranda-Like Rules in the Nineteenth Century. Here's the abstract:
The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century. The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper inducement if the suspect had been given the now-famous warnings. The warnings remained in place until the newly elected New York judiciary began to retreat from the strict version of the confessions rule that prompted interrogators to give those warnings. The threat of losing statements to the confessions rule was greater than the threat that suspects would exercise the rights of which police advised them - at least until the judiciary substantially weakened the confessions rule.

Claeys on the History of Epstein (and Takings)

Eric Claeys, Saint Louis University, has posted a new article that appeared recently in the William & Mary Bill of Rights Journal, Takings: An Appreciative Retrospective. Here's the abstract:
This Essay contributed to a conference held at William and Mary Law School at which Richard Epstein was awarded the 2005 Brigham-Kanner Property Rights Prize. The Essay surveys the legacy of Epstein's 1985 book Takings: Private Property and the Power of Eminent Domain.
Doctrinally, Takings was provocative because it provided a persuasive roadmap by which originalist judges might revive natural-law-based property and contract rights often associated with Lochner v. New York. However, this possibility was always somewhat overdrawn. On one hand, most judges and academics are not originalists but functionalists, and they reject Epstein's classical-liberal property theory on substantive grounds. On the other, serious originalists question the textual foundations for Epstein's project, because they doubt that the Takings Clause applies to the states by substantive due process incorporation. This section closes by considering briefly whether Takings' doctrinal claims might be grounded in the original meaning of the Fourteenth Amendment Privileges or Immunities Clause.
Takings has done far more to affect legal property theory. When Takings was written, the U.S. Supreme Court and academic opinion leaders subscribed uniformly to bundle of rights property theory, which had been developed by Legal Realists in the 1920s to facilitate relatively interventionist theories of government. Takings' most important legacy was to make accessible and respectable again, in contemporary legal academic jargon, the unitary theory of property applied by American natural-law jurists and replaced by the Realist bundle of rights. This section criticizes Epstein for using welfarist utilitarianism to replace the natural-law foundations on which Lochner cases and jurists relied to justify the unitary theory of property. But the Essay concludes by praising Epstein for helping contemporary legal academics appreciate the demands that a classical-liberal understanding of freedom places on property.