Sunday, November 30, 2008

Books on Economic History, War, Resistance, and Civil Rights reviewed this week

THE ASCENT OF MONEY: A Financial History Of the World by Niall Ferguson (Penguin Press) gets the cover review by Shelby Coffey III in today's Washington Post. In this "excellent" book, writes Coffey, Ferguson

shows how promises and paper have lifted humans from subsistence farmers in Babylon to Masters of the Universe on Wall Street.

Among his core arguments is that "poverty is not the result of rapacious financiers exploiting the poor. It has much more to do with the lack of financial institutions, with the absence of banks, not their presence." Money, he contends, is essential to human progress; it is "trust inscribed" on paper or metal, and without that trust we would all be poorer.
Continue reading here.

THE GREAT INFLATION AND ITS AFTERMATH: The Past and Future of American Affluence by Robert J. Samuelson (Random House) is taken up in the New York Times by Noam Scheiber. For this writer, "the a group of intellectuals who came into fashion during World War II, then came into power with the Kennedy administration." Scheiber argues that "Samuelson is right to highlight inflation’s central role in economic history," but the author's story is "incomplete. Over the last decade, American policy makers — Alan Greenspan chief among them — came under the sway of the same old siren song: the belief that rational economic management could avert the pain of unemployment. And yet, the same pathologies Samuelson so shrewdly diagnoses in an earlier generation he almost com­pletely ignores today."

The rest is here.

Kennedy era foreign policy is explored in LESSONS IN DISASTER: McGeorge Bundy and the Path to War in Vietnam by Gordon M. Goldstein (Times Books/ Henry Holt & Company), reviewed today in the NY Times by Richard Holbrooke. In this "unusual book, Bundy emerges as the most interesting figure in the Vietnam tragedy — less for his unfortunate part in prosecuting the war than for his agonized search 30 years later to understand himself." Bundy was "one of the primary architects and defenders of the war. The columnist Joseph Kraft, a friend of Bundy’s, once described him as 'a figure of true consequence' and 'perhaps the only candidate for the statesman’s mantle to emerge in the generation that is coming to power.'"
Holbrooke finds Goldstein's account "a compelling portrait of a man once serenely confident, searching decades later for self-understanding." Continue reading here.

RÉSISTANCE: A Woman's Journal of Struggle and Defiance in Occupied France by Agnès Humbert, translated from the French by Barbara Mellor (Bloomsbury) is reviewed in the Washington Post by Tobias Grey. Grey writes,

With thrilling immediacy, Humbert's book guides us through the first stumbling steps of what became known as the Musée de l'Homme roup, a disparate cell of writers, linguists, historians and social gadflies led by a charismatic Polish ethnographer, Boris Vildé. The cell's greatest achievement, before it was broken up by the Nazis in April 1941, was to publish and deliver five editions of a four-page broadsheet newspaper called, naturally, "Résistance." The paper's main aim was to counter Nazi propaganda, notably by providing evidence that food shortages in France were being caused not by the British blockade but by wholesale looting by the Germans.

More than 60 years after it was first published, Humbert's book, one of the first memoirs of the war to enter the public domain, has finally been translated into English. It was worth the wait.
Continue here.

Children of the Revolution: The French, 1799-1914 by Robert Gildea is reviewed in The Nation by Ruth Scurr, who finds it an "erudite account of France's long nineteenth century."

Gildea's book shows the internecine struggle there had been in France throughout the nineteenth century to secure the Republic and unify the nation, an effort that would culminate in the monumental sacrifice demanded by the Great War. That so many young men were prepared to die for a vision of France that was relatively new, and essentially contested, is testimony to the deep complexities of patriotism and the nation-state. Gildea assembles a wealth of information--historical, political, cultural and economic--to elucidate the conundrum, without pretending to explain it away. It is impossible to interpret the slaughter of a million and a half people as a triumph in any setting, but Gildea shows unforgettably a national identity winning out against all odds. It's a lengthy, complex saga, but he manages to sustain enough buoyancy in his prose to allow it to be read from beginning to end with interest and pleasure.

The rest (subscription required) is here.

SWEET LAND OF LIBERTY: The Forgotten Struggle for Civil Rights in the North by Thomas J. Sugrue (Random House) is reviewed by Joseph Rosenbloom in the Boston Globe. "Sugrue sets out to debunk 'the tired clichés of recent books that fixate on the 1960s as the fundamental turning point in the history of race in modern America.," writes Rosenbloom.

His exhaustively researched account demonstrates that Northern activists achieved critical breakthroughs in the cause of African-American economic and political equality....Sugrue's scholarship is most impressive in his analysis of the social, economic, and political currents that swirled around the activists.

The rest is here.

Saturday, November 29, 2008

Braverman, 'The Tree is the Enemy Soldier': A Sociolegal Making of War Landscapes in the Occupied West Bank

Irus Braverman, University at Buffalo Law School, has a fascinating new article on an unexpected topic: 'The Tree is the Enemy Solider': A Sociolegal Making of War Landscapes in the Occupied West Bank. It appears in Law & Society Review (2008). The classic work on landscape in U.S. history is of course William Cronin, Changes in the Land: Indians, Colonists and the Ecology of New England. Here's Braverman's abstract:
War landscapes have a particular sociology; they are also formed through distinct legal technologies. By examining the genealogy of trees as totemic displacements in the occupied West Bank I demonstrate how the Israeli/Palestinian war is deflected onto the landscape and how this deflection erodes the boundary between law and war. Dealing with issues of colonization, nationalization, and the way that these implicate landscape as a "natural alibi," the article examines the intricate making of politics into nature. Further, it explores the ironic nesting of colonial processes from Ottoman, to British, to Zionist, and finally to the new Jewish settler society that seeks to unsettle the old colonial landscapes of this place. Utilizing a detailed interpretation of a range of interviews and participatory observations, the article unpacks the mutually constitutive relationship between law, technologies of seeing, and landscape, illustrating how this relationship is played out by various actors in the occupied West Bank.

British Law Publishing: Court-Martial Narratives and Jacob's Manuals

I am grateful to a reader of Legal History Blog, Robert C. Richards, Jr., for drawing my attention to two publications that have recently become available to subscribers of Project Muse. The first is Ala Alryyes, War at a Distance: Court-Martial Narratives in the Eighteenth Century, 41 Eighteenth-Century Studies 525 (2008), available here and here. Quoth the abstract:
This article argues that what I call “court-martial narratives,” published British pamphlets purporting to be eye-witness accounts of military trials, provide insights into both the ubiquity of war in the eighteenth century and its distance from the everyday life of the reading public in London. These accounts, sophisticated literary and legal narratives that might well be considered a developed eighteenth-century genre, highlight particular circumstances of courts-martial proceedings at the outposts of empire that conflict with the universalist claim of law’s application. A first-person “editor” often interprets evidence and recounts the fate of the accused officer as well as the sufferings of his family. Thus, court-martial narratives also often preserve records of female roles in war and politics.
The second is Julia Rudolph, That "Blunderbuss of Law": Giles Jacob, Abridgment, and Print Culture, 37 Studies in Eighteenth-Century Culture 197 (2008), available here and here. The author explains:
Giles Jacob has been recently described as "the most prolific author of self-help legal manuals." He is well known as the author of the enormously influential eighteenth-century New Law Dictionary -- a text that reached a sizable audience not only in Britain but also in colonial America where it was "the most widely used English law dictionary" and could be found in the libraries of many colonial lawyers, including the most prominent. The New Law Dictionary was probably Jacob's most successful work, but it was only one among the many practical legal, political, and literary works he produced in the first few decades of the eighteenth century.

Friday, November 28, 2008

Linder on Leo Frank and O.J. Simpson

For years Douglas Linder, University of Missouri-Kansas City School of Law, has maintained an extraordinary website of materials relating to famous trials. Recently he has posted narratives for the trials of Leo Frank and O.J. Simpson. Here is his abstract for Frank's trial:
The discovery of the body of a thirteen-year-old girl in the basement of an Atlanta pencil factory where she had gone to collect her pay check shocked the citizens of that crime-ravaged southern city and roused its public officials to find a suspect and secure a conviction. Unfortunately, it now seems, events and the South's anti-Semitism conspired to lead to the conviction of the wrong man, the factory's Jewish superintendent, Leo Frank. The case ultimately drew the attention of the United States Supreme Court and the Governor of Georgia, but neither the Constitution nor a Governor's commutation could spare Frank a violent death at the end of rope strung from a Georgia oak tree.
Here is his abstract for Simpson's:
Although the 1995 criminal trial of O. J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman has been called a great trash novel come to life, no one can deny the pull it had on the American public. If the early reports of the murder of the wife of the ex-football-star-turned-sports-announcer hadn't caught people's full attention, Simpson's surreal Bronco ride on the day of his arrest certainly did - ninety-five million television viewers witnessed the slow police chase live. The 133 days of televised courtroom testimony turned countless viewers into Simpson trial junkies. Even foreign leaders such as Margaret Thatcher and Boris Yeltsin eagerly gossiped about the trial. When Yeltsin stepped off his plane to meet President Clinton, the first question he asked was, Do you think O. J. did it? When, at 10 a.m. PST on October 3, Judge Ito's clerk read the jury's verdict of Not Guilty, 91% of all persons viewing television were glued to the unfolding scene in the Los Angeles courtroom.

Thursday, November 27, 2008

Happy Thanksgiving!

We have much to be thankful for this year at the Legal History Blog. My list includes you, dear reader, for keeping us going and bringing us over the 250,000 mark just in time for the Legal History Blog's second birthday, today!And now I hope you will forgive Dan and me a little time off-line. One of us is traveling and the other is cooking for seventeen. To keep you going, here is a Thanksgiving essay on how the bird came to be called a "turkey," and here is my favorite, fool-proof and delicious, recipe for pumpkin pie (substitute milk for the cream, but keep the 1/2 and 1/2). Flawless gravy can be found here (include the optional sherry). And more on Thanksgiving history is here.

Wednesday, November 26, 2008

Ocko and Gilmartin on A Comparison of the 'Rule of Law' in China and India

State, Sovereignty, and the People: A Comparison of the 'Rule of Law' in China and India is a new article by Jonathan Ocko and David Gilmartin, both of North Carolina State University Department of History. It is forthcoming as the lead article in a symposium issue on Rule of Law in Modern Indian and Chinese History, in the Journal of Asian Studies (February 2009). Accompanying the article will be comments from Randall Peerenboom, Lauren Bention, Prasenjit Duara, Paul Kahn and Vivienne Shue, and a response from the authors. Here's the abstract:
This paper uses the concept of rule of law to compare Qing China and British India. Rather than using rule of law instrumentally, the paper embeds it in the histories of state power and sovereignty in China and India. Three themes, all framed by rule of law and rule of man as oppositional, yet paradoxically intertwined, notions, organize the paper's comparisons: the role of a discourse of law in simultaneously legitimizing and constraining the political authority of the state; the role of law and legal procedures in shaping and defining society; the role of law in defining an economic and social order based on contract, property, and rights. A fourth section considers the implications of these findings for the historical trajectories of China and India in the 20th century. Taking law as an instrument of power and an imagined realm that nonetheless also transcended power and operated outside its ambit, the paper seeks to broaden the history of rule of law beyond Euro-America.

Sarkin on the Origins of Human Rights Law

Jeremy J. Sarkin, Hofstra University School of Law, has posted a recent essay with a very long title: The Historical Origins, Convergence and Interrelationship of International Human Rights Law, International Humanitarian Law, International Criminal Law and Public International Law and Their Application from at Least the Nineteenth Century. It appeared in Human Rights and International Legal Discourse (2007). Here's the abstract:
The emergence and scope of international law, whether in treaties or in customary international law, is especially relevant to those seeking reparations for atrocities committed against indigenous populations during colonization.
This article examines the origins, interrelationship, and dimensions of international law, the law of armed conflict, international human rights law, and international criminal law. It explores the time when these legal regimes came into being and when the protections accorded by them against various types of conduct became available.
It is submitted that by the turn of the twentieth century many of these laws were already available and in force. While it is commonly held that international protections against human rights violations were activated in the post-World War II era, they actually were accessible much earlier.
A specific focus of this article is the Martens Clause adopted into the Hague Conventions of 1899 and 1907. The Martens Clause it is argued constitutes one of the origins of international human rights law in the positivistic sense, and is considered applicable to the whole of international law, and has indeed shaped the development of customary international law. It will be shown that the Martens Clause is a specific and recognized provision giving protection to groups and individuals during both war and peace time.
A further focus of this article is the origins and interconnectedness of concepts such as crimes against humanity and genocide. This article looks as the origins of these notions. It argues that they are tied to the origins of international human rights law and finds they existed at least in the ninetieth century, if not before.

Smythe on the Adoption of the Uniform Sales Act

Transaction Costs, Neighborhood Effects, and the Diffusion of the Uniform Sales Act, 1906-47 is a new paper by Donald J. Smythe, California Western School of Law, which is just published in the on-line journal Review of Law & Economics. Here is the abstract:
The Uniform Sales Act[, drafted by Harvard law professor Samuel Williston, pictured at left,] was a precursor to Article 2 of the Uniform Commercial Code. Between 1906 and 1947 it was adopted in 34 states. Transaction cost theory suggests that states’ adoption decisions should have been influenced by “neighborhood effects” – the adoption decisions of their neighbors. This paper uses hazard analysis to test various hypotheses about the factors that influenced states’ adoption decisions. The results indicate that neighborhood effects were among the most important factors in the diffusion of the Act. Manufacturing interests also played an important role, especially in a small number of states that adopted the Act early. Subsequent to these early adoptions, the Act gradually diffused across most of the country, except the south. Its diffusion was driven primarily by neighborhood effects and manufacturing interests, although the legal profession and transportation systems may also have played a role. It appears that the Act ultimately failed to achieve complete uniformity largely because the neighborhood effects that drove its adoption in most of the country were not present in the south.

Image credit.

Tuesday, November 25, 2008

Devine on Irish neutrality during World War II

Karen Devine, Dublin City University, has posted a new essay, A Comparative Critique of the Practice of Irish Neutrality in the 'Unneutral' Discourse. Here's the abstract:
This article takes a comparative, empirical look at the practice of Irish neutrality during the World War II. It critiques a model of neutrality presented in a thesis on Irish neutrality called Unneutral Ireland, consisting of factors derived from an analysis of three states regarded as well-established European neutrals, Austria, Sweden and Switzerland that reflect the practice of neutrality. That model focused on the rights and duties of neutrality; the recognition of Ireland's status by belligerents and others; the disavowal of external help; and the freedom of decision and action. This present article focuses on the factors flowing from these latter obligations that are cited in an analysis of the practice of Irish neutrality, in the Unneutral thesis as proof of Ireland's 'unneutral' status, i.e. ideology; involvement in economic sanctions; partiality; the practice of Irish citizens joining the British army; and post-World War II factors such as Ireland's EEC membership. In this article, Ireland's practice of neutrality is evaluated against the practice of other European neutral states - Sweden, Switzerland, Austria and Finland (including Norway's truncated practice of neutrality) - vis-a-vis the above variables. This article also deals with the perennial myths that crop up in 'unneutral' discourses on Irish neutrality, for example, the oft-cited incidence of de Valera's alleged visit to the German legation in Ireland to sign a book of condolences on Hitler's death and the suggestions of a British government offer of a deal on Northern Ireland in exchange for Ireland dropping its neutral stance and supporting the Allies in World War II. The article concludes that the practice of Irish neutrality is equivalent to or superior to the practice of other European neutral states, thus undermining the dominant discourse that Ireland's neutrality is a myth and that Ireland is 'unneutral'.

Reviewed: Herring, From Colony to Superpower

UPDATED. Douglas Little, in an essay "Why We Need Diplomatic History," reviews George C. Herring, From Colony to Superpower: U.S. Foreign Relations Since 1776 in the Chronicle of Higher Education (subscription required). Hat tip. The book is part of the Oxford History of the United States series. Little notes that, after a decline in interest after the fall of the Berlin wall, student interest in diplomatic history is on the upswing. (There is certainly a great increase in interest in global affairs and international law in the law school world.) Still, Little notes that "popular attitudes toward international affairs remain volatile," and dismissal of foreign relations "has been echoed by some social historians, who have insisted that because the study of foreign relations is too state centered, elite oriented, and tradition bound, it and its practitioners neglect important work on race, gender, and popular culture."

While divides among historians on this point are sometimes overblown, there have certainly been times when some of us have made the point that American history cannot be meaningfully "internationalized" if foreign affairs history is not at the table.

Into this context comes Herring. Little writes:

In his splendid new book, From Colony to Superpower: U.S. Foreign Relations Since 1776, however, George C. Herring, an emeritus professor of history at the University of Kentucky, reveals that diplomatic history is alive and well. In so doing, he also warns that Americans ignore diplomatic history at their own peril and insists that only by understanding the past can they ensure that the United States will play a positive role in international affairs in the future....

Because race, technology, and exceptionalism were key ingredients in American's remarkable transition from colony to superpower, Herring has made them central features in the complex story he tells in his new book. On almost every page, he refutes the old canard that diplomatic history is "more or less what one clerk said to another." In reminding readers about the role of American Indians in the French and Indian War, the cultural clash between America and Islam spawned by Thomas Jefferson's confrontation with the Barbary Pirates, or the destruction that Confederate raiders wrought on Yankee whaling operations in the North Pacific during the Civil War, Herring never loses sight of the human dimension of foreign policy.

Continue reading here or here. (Many thanks to a reader for e-mailing me the Little review.)

A New York Times review praised Herring's "Herculean power of synthesis." Publisher's Weekly says:

This latest entry in the outstanding Oxford History of the United States is continually engrossing in its overview of American diplomacy. Herring (America's Longest War), an authority on the history of American foreign policy, emphasizes that George Washington's 1796 farewell was not a call for isolationism but simply a warning to be careful in forming alliances; America was already enmeshed in the bitter war between Britain and France. Herring details how aggressively U.S. diplomats and soldiers pressured Spain, Mexico and Britain to yield territory as the nation expanded. The passion for spreading American ideals reached its first peak after WWI with Woodrow Wilson, whose principles the author admires though many, such as national self-determination, have proved disastrous. Entering the 21st century, the U.S. was at its peak as the world's sole superpower. Herring take his narrative up through 9/11, the rise of the renewed passion, led by neoconservatives, to spread democracy and the war in Iraq, whose only winner, Herring says, is Iran. Herring's lucid prose and thought-provoking arguments give this large tome a pace that never flags.
An interview with Herring appears on his book page.

Casebeer on the Constitutional Economy of Liberty and Race

Kenneth M. Casebeer, University of Miami School of Law, has posted the paper Memory Lost: Brown v. Board and the Constitutional Economy of Liberty and Race. Here is the abstract:
This article shows how race impacts the concept of Liberty in Supreme Court Jurisprudence over four periods of US History to reinforce a dominant political economy. It shows how the Court's present political economy blinds us to the real judicial context of Brown v. Board of Ed. thereby reinforcing anti affirmative action ideas and racial segregation.

Roe on Juries, Political Economy and Legal Origin

Mark J. Roe, Harvard Law School, has posted the paper Juries and the Political Economy of Legal Origin. His abstract follows:
Legal origin has been brought forward as a key influence on modern finance, because common law institutions protect investors better than do civil law institutions, it is claimed. These institutional differences are said, in the legal origin explanation, to have been hard-wired into nations centuries ago. Daniel Klerman and Paul Mahoney challenge the legal origin description of the jury as emerging and achieving prominence in 12th- and 13th-century England while remaining unimportant in France. That contrast has been offered as a key difference between common and civil law, one dependent on the differences in relative power between the English monarch and the French one in the 13th century. But the investigation of the jury here should give pause to those promoting the overall legal origin thesis. The first reason to hesitate is that the jury is not central to protecting outside investors in common law nations. Indeed America's premier corporate court --- the Delaware Chancery court --- sits without a jury, and the usual view in legal circles is that the jury's absence (and the resulting decision-making by expert judges, not juries) is a strength of the court, not a weakness. The second reason is that Britain did not generally transfer the jury system to its colonies, because to have done so would have conflicted with its colonial goals. That is not a secondary point: political economy issues regularly trump issues like legal origin --- colonial policy was just one example of how political goals displace secondary institutions. The third reason is that analysis for the jury differences between civil and common law nations depends on political economy differences centuries ago. But if political economy differences determined institutional differences in the earlier centuries, it is plausible that political economy differences in the intervening centuries would also have affected financial outcomes. Indeed modern political economy differences that lead some nations to support capital markets and others to denigrate them could explain modern financial differences as much as, or more than, 13th century political differences.

Monday, November 24, 2008

Romero on Region, Race, Scale and a Subnational Legal History

Bound Between & Beyond the Borderlands: Region, Race, Scale and a Subnational Legal History is a recent essay by Tom Romero II, Hamline University School of Law. It appeared in a symposium issue of the Oregon Review of International Law (2007). Here's the abstract:
This essay untangles the relationship between region, race, and scale in surfacing the legal past resulting from interactions between variant cultures in the history of the American West. While the analysis is necessarily informed by geographic, jurisdictional, and even scholarly scales, the scale I'm most concerned with exists at the level of the individual and the group. In this regard, this essay is centrally rooted in surfacing the legal history of subaltern cosmopolitan legalities in a global colonial and post-colonial world. Precisely because "subaltern cosmopolitan legality operates by definition across scales," the concept highlights the variety of ways in which interdependent legal technologies of international, national, and local scope have historically worked to subordinate and thereby submerge individuals and groups from a legal process.
The analysis also assesses how the inconsistent and inefficient policing of these jurisdictional boundaries created gaps, fissures, and failures where subalterns could simultaneously exercise his or her agency. Accordingly, I utilize the term "subnational citizen" to describe more accurately the determinative role laws play in the mutually constitutive process of submersion and legal resistance. Whereas "subaltern cosmopolitan legality" encompasses legal, illegal, and extra-legal forms, the term "subnational citizen" is meant to highlight in particular distinct legal claims informed by and shaped between, as well as across, jurisdictional scales. Simply, jurisdictional scale allowed the subaltern to emerge, at discrete points, as the "subnational citizen." For this very reason, this analysis sheds light on how legal historians can closely document the protean ways that subnational citizens themselves developed their own strategies of legal resistance that in turn, helped to define, refine, and at times transform national and international law and legal norms.

Cheffins on the British Corporation

Brian R. Cheffins, Faculty of Law, University of Cambridge, has posted the abstract for his new book Corporate Ownership and Control: British Business Transformed, which is forthcoming next month from Oxford University Press. Here is the lengthy abstract's opening paragraph:
The typical British publicly traded company has widely dispersed share ownership and is run by professionally trained managers who collectively own an insufficiently large percentage of shares to dictate the outcome when shareholders vote. This separation of ownership and control has not only dictated the tenor of corporate governance debate in Britain but serves to distinguish the UK from most other countries. Existing theories fail to account adequately for arrangements in the UK. Corporate Ownership and Control: British Business Transformed accordingly seeks to explain why ownership became divorced from control in major British companies, examining how matters evolved from the 17th century through to today.

Sunday, November 23, 2008

Sunday Book round-up

A quick book round-up from the Reno airport, of all places:

Terror and Consent: The Wars for the Twenty-first Century by Philip Bobbitt is taken up in the December 4 issue of the New York Review of Books by David Cole (subscription required for access). Cole writes:
Bobbitt maintains that the defining struggle of the twenty-first century will pit "market states of consent," such as the United States and the European Union, against global terrorist organizations. He insists that we have no choice but to fight the "Wars against Terror," because the terrorists are already at war with us—over nothing less than the constitution of the future.
Terror and Consent is nothing if not ambitious. Bobbitt opens his 672-page book by boldly asserting that "almost every widely held idea we currently entertain about twenty-first century terrorism and its relationship to the Wars against Terror is wrong and must be thoroughly rethought." But many of Bobbitt's proposals are surprisingly conventional. He advocates stronger efforts to stem the proliferation of weapons of mass destruction; improvements in our ability to recover from catastrophes, whether natural or man-made; more extensive use of computer data and other forms of surveillance to identify and track terrorists; reform of international law to reflect the asymmetrical nature of modern warfare, in which insurgent groups often use illegal tactics; and respect for human rights and the rule of law. Many of those suggestions are sensible; but they are hardly unconventional, and one is left wondering what his grand vision of history adds to the conventional wisdom he claims to reject but often appears to echo. Where he is at his most unconventional—in defending coercive interrogation and "preventive war," and in reimagining world history to salvage his conception of the "Wars against Terror"—he is least persuasive.

Continue reading here.

In an essay "The Historian Who Saw Through America," also in the NYRB, James M. McPherson discusses the late George Fredrickson, focusing on his most recent works Diverse Nations: Explorations in the History of Racial and Ethnic Pluralism (Paradigm, to be published in January 2009), and Big Enough to Be Inconsistent: Abraham Lincoln Confronts Slavery and Race. McPherson writes:

For more than thirty years George Fredrickson was a leading historian of race relations and racial ideologies in the United States and other multiracial societies. By a cruel trick of fate, his unexpected death on February 25, 2008, occurred three days before the official publication date of his book on Abraham Lincoln's racial attitudes, Big Enough to Be Inconsistent, and five months before publication of Diverse Nations, a collection of fifteen previously published articles and review essays. Fredrickson's thorough research, original insights, common-sense interpretations, and lucid prose made him a historian's historian as well as a writer who reached a broad audience with several of his books. He will be sorely missed by friends, colleagues, and readers—especially readers of this journal, for which he reviewed dozens of books over the past quarter-century.

The rest is here.
And finally, for all you football fans at the end of a big weekend, WAR AS THEY KNEW IT: Woody Hayes, Bo Schembechler, and America in a Time of Unrest by Michael Rosenberg is reviewed in the New York Times. Right sport, even if the teams are wrong. Go Bears.

Cromwell Dissertation Prize

The winner of this year's Cromwell Dissertation Prize, awarded by the William Nelson Cromwell Foundation, whose namesake is pictured at left, was announced at last week's annual meeting of the American Society for Legal History. She is Diana Williams; she won the prize for her dissertation “'They Call It Marriage': The Louisiana Interracial Family and the Making of American Legitimacy," which she submitted for a Ph.D. at Harvard University in 2007. More news of the annual meeting is on the ASLH's website.

Presidential-Congressional Relations at the Institute for Constitutional Studies

The Institute for Constitutional Studies announces its Spring 2009 seminar:

Led by Professor Richard Pious of Barnard College/Columbia University, the seminar will focus on "The Constitutional Law of Presidential-Congressional Relations." The seminar will meet at the GWU Law School in Washington, D.C., on consecutive Monday evenings (6-8pm) from March 2-April 6, 2009. This is a graduate-level seminar. Although it is designed primarily for graduate students in history, political science, and related disciplines, law students, advanced undergraduates, and legal practitioners are welcome to join the seminar with the permission of the instructor. All participants will be expected to complete the assigned readings and participate in seminar discussions. Space is limited, and interested participants should contact us at A description follows:

Have presidents since Eisenhower overstepped constitutional boundaries and created an "imperial presidency"? Or did the Founders intend a "unitary executive" equipped with plenary authority in diplomatic, national security, and military affairs? This seminar examines the intent of the Framers and the development of historical precedents and constitutional law related to executive powers, control of administration, foreign policymaking, and war powers. We will explore whether federal courts have resolved the most important issues, and, if not, what effect judicial abstention has on the growth of presidential power.

More information is here. Hat tip: H-Law.

Saturday, November 22, 2008

Simeone on President Atchison

Joseph J. Simeone, Professor Emeritus, Saint Louis University School of Law, has posted The First U.S. President from Missouri, March 4, 1849. The abstract follows:
In these days of an historic presidential election, it may be fitting to recall the election of 1848 when the term of James Knox Polk expired and Zachary Taylor - "Old Rough and Ready" - was elected the President of the United States.

This short article relates the trivia story of one of Missouri Senators - David Rice Atchison, who acted as President of the United States for a very short period of time because President Taylor declined to be sworn in on a Sunday because of his religious scruples. Since Senator Atchison, as President of the Senate, was next in line for the office, Atchison served as President until Taylor took the oath of office.

This article deals with the period prior to the civil war - the era of "manifest destiny" and how Atchison served as a short-term President of the United States.

ASLH Election Results

At its recent annual meeting, the American Society for Legal History announced the results of the following elections:

Board of Directors: Martha Jones, Michael Lobban, Matthew Mirow, Rebecca Scott, and John Wertheimer

Nominating Committee: Christina Duffy Burnett

Biographies of the winners are here.

Hat tip: H-Law

Friday, November 21, 2008

Histories of Misunderstanding

If I have it right, the Second Annual UVa History Graduate Students Conference is devoted to an intriguing topic. Here is the call for papers:
The Graduate History Students Association at the University of Virginia is happy to announce the second annual History Graduate Students Conference, to be held in Charlottesville, Virginia, on April 18-19, 2009.

Misunderstandings, misinterpretations, misconceptions, and miscalculations are an inseparable part of people's lives. Yet only rarely do historians pay special attention to these phenomena in the study of the past. This conference will provide a forum for graduate students of history and related fields at all levels to discuss misunderstandings in history.

Possible topics might include (but are not limited to) the following:

Miscommunications in Battle and in the Political Arena Gendered Misperceptions Cross-Cultural Misinterpretations (first contact between settlers and indigenous people, etc.) "Distorted" Memories Technological Appropriations Media Mistakes Unforeseen Consequences

The papers should address the problem of distinguishing between unintended misunderstandings and intentional manipulation and misrepresentation.

Keynote address by Prof. Allan Megill, University of Virginia

You are invited to submit paper proposals based on seminar papers, master's theses, or dissertation projects. Proposals should be no more than one page and include the scholar's name, e-mail address, the paper's title, and a short description of the proposed topic.

Paper proposals must be submitted by December 5, 2008.

If selected, participants will be asked to submit a final version of their paper (no more than 20 minutes) two weeks prior to the conference.

Submit abstracts and questions by email to Mike Caires (

Cromwell Fellowships Announced

At the annual meeting of the American Society for Legal History the awarding of several fellowships by the William Nelson Cromwell Foundation was announced. [The foundation's namesake, a great Wall Street lawyer, is pictured at right.] As a recent posting on H-Law explains, the fellowships are
intended to support research and writing in American legal history. The number of awards to be made, and their value, is at the discretion of the Foundation. In the past three years, three to five awards have been made annually by the trustees of the Foundation, in amounts up to $5,000. Preference is given to scholars at the early stages of their careers. The Society's Committee for Research Fellowships and Awards reviews the applications and makes recommendations to the Foundation.

At its Saturday luncheon, the society announced the 2008 Cromwell Fellowships:

Sophia Lee, who holds a law degree from Yale and is a Ph.D. candidate there as well, is writing about the continuing interactions of labor politics and civil rights law. Her work challenges recent writing that emphasizes the separation of civil rights and labor law by the time of Brown.

Leah Weinryb Grosghal, is at work on a Ph.D. at Emory University. She is engaged in a reexamination of the Jehovah's Witnesses cases of the 1930s and 1940s. She is in the process of conducting interviews with many "survivors" of the litigation.

Laura Weinrib holds a law degree from Harvard and is a Ph.D. candidate at Princeton. She is completing a dissertation on the emergence of modern understandings of civil liberties in the interwar years. Her Cromwell award will allow her to explore the conflicts between "Boss" Hague of Jersey City [pictured at left] and the CIO.
Image credit. Hat tip: H-Law

Thursday, November 20, 2008

Gordon-Reed Wins National Book Award

Legal History Blog congratulates Annette Gordon-Reed, New York Law School and the federated history department of Rutgers University, Newark/NJIT, for winning the National Book Award in Non-Fiction for The Hemingses of Monticello: An American Family (W.W. Norton & Company). We're pleased to note that Professor Gordon-Reed is a long-time member of the American Society for Legal History and currently sits on its Board of Directors! LHB has previously linked to reviews here and here and here.

McKee on "The Problem of Jobs"

The Miller Center for Public Affairs devotes this Friday's Colloquium to Guian McKee's new book, The Problem of Jobs: Liberalism, Race and Deindustrialization in Philadelphia. I append the University of Chicago Press's description of the book below; the first chapter is available here.
Contesting claims that postwar American liberalism retreated from fights against unemployment and economic inequality, The Problem of Jobs reveals that such efforts did not collapse after the New Deal but instead began to flourish at the local, rather than the national, level.

With a focus on Philadelphia, this volume illuminates the central role of these local political and policy struggles in shaping the fortunes of city and citizen alike. In the process, it tells the remarkable story of how Philadelphia’s policymakers and community activists energetically worked to challenge deindustrialization through an innovative series of job retention initiatives, training programs, inner-city business development projects, and early affirmative action programs. Without ignoring the failure of Philadelphians to combat institutionalized racism, Guian McKee's account of their surprising success draws a portrait of American liberalism that evinces a potency not usually associated with the postwar era. Ultimately interpreting economic decline as an arena for intervention rather than a historical inevitability, The Problem of Jobs serves as a timely reminder of policy’s potential to combat injustice.

Call for Papers: Problems and Methods in Writing Recent American History

Claire Potter, Wesleyan, and Renee Romano, Oberlin, are planning an exciting new collection of essays, to launch a new book series on recent American history. And you're invited to join them! Since I am writing an essay for a collection entitled "W. as History," I could use this collection right now. Here's the Call for Papers:
Problems and Methods in Writing Recent American History.”
We invite submissions of articles for an anthology on the methodological, political, and ethical challenges related to studying the history of recent events in the United States. The collection, which will be published by the University of Georgia Press and will launch a new book series featuring titles that explore American history since the 1970s, will reflect on the specific methodological challenges of doing late twentieth century history.
Besides facing frequent suspicion that their research is not historical enough, scholars who undertake contemporary history are challenged to work outside an established secondary literature. They often encounter methodological problems that are foreign to scholars of a more distant past, such as negotiating with living subjects or trying to wade through the evolving sources available on the Internet. Topics that articles might explore include: when an event becomes “historical” enough to be a subject of research by historians; the role of oral history in research on recent events; the ethics of writing about living subjects, their friends, and family; the challenges of doing research on participants in social movements who are themselves now prominent scholars; the difficulties of finding archival sources, acquiring permission to use restricted archives, and being responsible to those who possess personal collections; how modern technology changes historical research, from tracking down emails or cell phone records, to using blogs and social networking sites as sources; dealing with the lack of perspective that the passage of time traditionally affords; and addressing how historians can or should borrow from other fields such as sociology, anthropology or political science when studying recent events.
Essays should be no more than 25 manuscript pages and should be written to appeal to a general scholarly audience. Send abstracts to both editors by March 1, 2009; completed manuscripts will be due by September 1, 2009: Renee Romano, Department of History, 10 North Professor Street, Oberlin College, Oberlin, OH 44074, and Claire Potter, Center for the Americas, Wesleyan University, Middletown, CT 06457. For more information, please email or

More details are here.

Dissertation Fellowships at the Miller Center

The Miller Center of Public Affairs at the University of Virginia announces its fellowship program for individuals completing their dissertations on American politics, foreign policy and world politics, or the impact of global affairs on the United States. The program provides up to eight $20,000 grants to support one year of research and writing.

Along with the fellowship grant, the Miller Center assists the fellow in choosing a senior scholar from their field to serve as a “dream mentor." This mentor will suggest relevant literature to frame the project, read the fellow's work, and give general advice on research. The Miller Center of Public Affairs at the University of Virginia also invites applications for the Wilson Carey McWilliams Fellowship. The McWilliams Fellowship supports a graduate student in political science or history whose dissertation combines the special blend of Political Theory and American Politics.

Apply online here by February 1, 2009. (All supporting materials must be received by this deadline.) Please send inquiries to

[A post that grew out of my service as a "dream mentor" to to the Miller Center Fellow Jefferson Decker is here.]

ASLH Announces Preyer Award Winners

The Kathryn T. Preyer Memorial Committee of the American Society for Legal History announces its selections for 2008:
Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer's friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting.

Cynthia Nicoletti, University of Virginia, "The American Civil War as a Trial by Battle," and Joshua Stein, UCLA, "A Right to Violence: The Meaning of 'Public' in Nineteenth-Century American Law Treatises and the Jurisprudence of Violence."
Hat tip: H-Law

Wednesday, November 19, 2008

Legal History at the AHA

There is so much legal history at the upcoming meeting of the American Historical Association that I can't list all the panels. If you enter "legal" and "law" on this search page, 119 papers come up. "Rights" turns up another 117 papers. A sampling is below.
This year's meeting is in New York City, January 2-5, 2009. The theme this year is Globalizing Historiography. Details are here.
Creating the “Human Rights Revolution” of the 1970s
Monday, January 5, 2009: 11:00 AM-1:00 PM
Beekman Parlor (Hilton New York)
  • Chair: Melani McAlister, George Washington University
  • Commentator: Mark Philip Bradley, University of Chicago
  • Why Torture Became Unacceptable: Algeria, Greece, and Brazil Compared, Barbara J. Keys, University of Melbourne
  • From Latin America to Washington: Advocates, Diplomats, and the Struggle for an American Human Rights Policy, Vanessa Walker, University of Wisconsin-Madison
  • Freedom House and the Meaning of Human Rights, 1970–89, Carl Bon Tempo, University at Albany (State University of New York)
Russia and the USSR on the Map of International Law: From the Hague Conventions, 1899–1907, to the Nuremberg Trial, 1945–46
Sunday, January 4, 2009: 11:30 AM-1:30 PM
Central Park East (Sheraton New York)
  • Chair: Richard Wortman, Columbia University
    Commentator: William E. Butler, Dickinson School of Law at Pennsylvania State University
  • Crimes against Humanity: The Russian Empire's Role in Formulating the Allies' May 24, 1915, Note on the Armenian Genocide, Peter I. Holquist, University of Pennsylvania
  • The Soviets at Nuremberg: Soviet Legal Experts and the Framing of Postwar International Law, Francine Hirsch, University of Wisconsin-Madison
  • Western Perceptions of Russian and Soviet Designs of International Law at the Hague Conferences and the Nuremberg Trial, Martin E. Aust, Christian-Albrechts-Universität zu Kiel
Writing the History of International Humanitarianism
Monday, January 5, 2009: 8:30 AM-10:30 AM
Lenox Ballroom (Sheraton New York)
  • Chair: Andrew Zimmerman, George Washington University
  • Humanitarianism and Its Legal Limits: Gendered Activism in Wartime, 1864–1914, Jean H. Quataert, Binghamton University (State University of New York)
  • Reproductive Freedom: The Genealogy of a Human Right, Ann T. Allen, University of Louisville
  • Women's Rights and the Hazards of Intervention in the Middle East, Elizabeth F. Thompson, University of Virginia
  • Women, Children, and Citizenship in UNICEF's Global Anti-Syphilis Campaign, 1946–79, Jennifer Morris, College of Mount St. Joseph
  • Amnesty International and the Cultural Politics of Suffering, Mark Philip Bradley, University of Chicago
Race, Caste, and Nation in India and the United States since World War II
Friday, January 2, 2009: 3:30 PM-5:30 PM
Lenox Ballroom (Sheraton New York)
  • Chair: Gyanendra Pandey, Emory University
  • Allies of a Kind: India and the NAACP’s Alliance to End Racial Oppression in South Africa, 1946–51, Carol Anderson, University of Missouri
  • Political Rights and Durable Inequality: Caste in India and Race in the United States, Narendra Subramanian, McGill University
  • The Prism and the Funnel: Reflections of Race and Caste in the United States and India after 1947, Nico Slate, Harvard University
New Directions in Chicana/o Movement Era Historical Scholarship and the Implications for Understanding Civil Rights in America
Friday, January 2, 2009: 1:00 PM-3:00 PM
Gramercy Suite B (Hilton New York)
  • Chair: Ben Vinson, Johns Hopkins University
  • Commentator: Ramón A. Gutierréz, University of Chicago
  • “Our Mexicans”: The Reaction of Arizona’s Entrepreneurial Elite to the Rise of Chicano/Mexican American Activism, Micaela A. Larkin, University of Notre Dame
  • "Equal Medical Care for All": Chicana and Chicano Health Activism in Late 1960s Los Angeles, Virginia Espino, University of California at Los Angeles
  • Closing the Breach: The Campaign for Education Equality in the Post-Chicano Movement Era, Maritza De La Trinidad, University of Arizona
  • The Brown Berets of Aztlan and Chicano Power in the Long Civil Rights Era, Milo M. Alvarez, University of California at Los Angeles
Minority Debates in Twentieth-Century Europe, East and West
Saturday, January 3, 2009: 9:30 AM-11:30 AM
Sutton Center (Hilton New York)
  • Chair: Istvan Deak, Columbia University
  • Commentator: Carole K. Fink, Ohio State University
  • Minority Controversies across the Bulgarian-Greek Border: Population Exchange, Minority Rights, and Definitions of Minorities in the Interwar Balkans, Theodora Dragostinova, Ohio State University
  • On the Viability of Mixed States: Nazi Germany’s Allies Debate Minorities and Statehood, Holly Case, Cornell University
  • Why the French Don’t Recognize Minorities: Universalism, Minorities, and Race in France, Laird Boswell, University of Wisconsin-Madison

Tani on ASLH panel on Pauli Murray's Human Rights Revolution

Guest Post by Karen Tani

A highlight of the recent conference of the American Society for Legal History was the panel on “Pauli Murray’s Human Rights Revolution,” which paired papers on the underappreciated activist and scholar, Pauli Murray.

Davison Douglas, College of William & Mary, is working on a full biography of Murray. He presented a paper about Murray’s eighteen months in Ghana in 1960 and 1961, titled “Pauli Murray’s Conception of Human Rights.” According to Douglas, Murray went to Ghana for a variety of reasons, including to get away from the discouragements of the U.S. freedom struggle, to explore her African roots, and to be a part of African independence movements. She also went, however, as a “cold warrior”: in her role as a professor of constitutional law she was an ambassador for American constitutional ideals. Douglas thus agreed with Kevin Gaines that Murray was an American apologist. But Douglas disagreed with Gaines on the significance of Murray’s time in Ghana. In Douglas’s view, Murray’s experiences there did not lead her to reject pan-Africanism and embrace American ideals; Murray never identified strongly with African culture (although she did identify with Africans’ experience of oppression) and had, since a devastating brush with “McCarthyism” in the early 1950s, emphasized her own “Americanness.” She had also long championed American values, such as freedom of speech and due process. In sum, Douglas argued, Murray’s time in Ghana was a continuation of her political trajectory and one more example of her “nationless, raceless, and sexless” human rights vision.

Serena Mayeri, University of Pennsylvania Law School, was unexpectedly “fogged in” in Philadelphia, but the paper she submitted emphasized another manifestation of that vision. In “Pauli Murray and the Reinvention of American Legal Feminism,” Mayeri described the way Murray revitalized the “dormant” analogy between sex and race, pioneered a “pragmatic” brand of legal feminism, theorized the concept of “intersectionality” (as it would later be called), and laid the groundwork for cooperation between divided groups of reformers. The paper focused most on Murray’s efforts to get the women’s movement and the civil rights movement to coalesce around the same constitutional litigation strategy (one focused on the Fourteenth Amendment) and to analogize sex discrimination to racial discrimination. This strategy, Murray believed, could unite the protectionist and equalitarian factions within the women’s movement, encourage women’s inclusion in the “masculinist” civil rights movement, and channel energies toward a branch of government that seemed receptive. For similar reasons, Murray promoted enforcement of Title VII of the Civil Rights Act of 1964 and urged the passage of a human rights amendment. In the Court, at least, Murray’s agenda was successful. But by the mid-1970s it was clear that the race/sex analogy was proving less and less useful, both as a coalition-building tool and a jurisprudential device. Mayeri closed the paper with the image of Murray at age sixty-three: in keeping with her complex identity and diverse interests, she had become an Episcopal priest, but she continued to advocate interracial feminist alliances and to draw connections between seemingly disparate struggles for justice.

Cynthia Grant Bowman, Cornell University, and Rosalind Rosenberg, Barnard College, offered insightful comments on both papers. Bowman suggested that Murray miscalculated: instead of creating better laws, her strategy established “confusing and inconsistent precedents” that were not always favorable to women’s welfare and didn’t “work” in cases of less overt discrimination. Bowman urged Mayeri to explore the implications of Murray’s self-described “functional” approach to equal protection litigation. Rosenberg also discussed the unfortunate consequences of Murray’s strategy, but suggested that perhaps Murray never intended to leave reform entirely up to the courts; perhaps she was “buying time” for more progressive legislation and simply failed to anticipate Congress’ conservative turn in 1966. Rosalind also asked Mayeri for more information on Murray’s changing stance toward the ERA and on Murray’s commitment to economic rights. Regarding Douglas’s paper, Bowman wondered why Murray’s time in Ghana was not radicalizing, as it was for many other expatriates, and urged more attention to what Murray’s life was like there. Rosenberg concurred and added that she wondered how gender played a role in Murray’s experience.

Jed Shugerman, Harvard Law School, generously chaired the panel in place of Tomiko Brown-Nagin, who was unable to attend. He also read Mayeri’s paper and initiated an interesting discussion of the import of class and sexual orientation to the panelists’ stories.
Another superb ASLH panel post from Karen Tani is here.

Konar-Steenberg on Hood & Sons v. Dumond

Mehmet K. Konar-Steenberg, William Mitchell College of Law, has posted One Nation or One Market? Liberals, Conservatives, and the Misunderstanding of H.P. Hood & Sons v. Dumond, which is forthcoming in volume 10 (2009) of the University of Pennsylvania Journal of Constitutional Law. Here is the abstract:
Forty years ago, in a dormant Commerce Clause dispute over dairy regulation, Justice Robert Jackson wrote what many regard as the strongest post-Lochner ode to laissez faire economics in the Court's modern jurisprudence. Yet this standard reading of the majority opinion in H.P. Hood & Sons v. DuMond presents certain puzzles: Why would an icon of Roosevelt's New Deal write an anti-regulation manifesto, as some of his New Deal contemporaries on the Court alleged? And why would recent conservative justices echo these liberals' attacks on this supposed laissez faire streak in dormant Commerce Clause anti-discrimination doctrine? Inspired by these puzzles and recent developments under the Roberts court, and relying on historical materials including Jackson's own papers, Professor Konar-Steenberg argues that Hood has been misunderstood and misinterpreted for four decades. Jackson's liberal contemporaries misunderstood Hood to revive Lochner-era economic substantive due process under a new constitutional guise. More recently, conservative jurists have misinterpreted Hood as a laissez faire precedent in order to discredit the opinion because it hinders their project of revitalized state power.
Image credit.

Surrency Prize to Pihlajamaki on Torture in Sweden

Surrency Prize Committee of the American Society for Legal History has announced its selection for 2008. Here is the announcement:
The Surrency Prize, named in honor of Erwin Surrency, a founding member of the Society and for many years the editor of its publication the American Journal of Legal History, is awarded annually, on the recommendation of the Surrency Prize Committee, to the person or persons who wrote the best article published in the Society's journal, the Law and History Review, in the previous year.

This year's Surrency Prize is awarded to Hekki Pihlajamaki for his essay, "The Painful Question: The Fate of Judicial Torture in Early Modern Sweden," a piece that appeared in the third number of Volume 25 of Law and History Review. This year's Surrency Prize Committee quickly came to consensus around Pihlajamaki's elegant and original article for three reasons. First, it connects debates over torture to developments in criminal procedure and politics. Second, it situates torture among other forms of coercive pressure in the pretrial process and among other forms of punishment. Third, above all, it compares the Swedish case to England and Continental Europe broadly and ambitiously. While the article tells us much about Sweden, it also uses Sweden as a comparison case to reflect on Continental and English historiography on the compelling issue of judicial torture. Sixteenth-century Swedish courts carefully distinguished judicial torture, which meant torture explicitly ordered and supervised by the courts, from hard prison, which consisted of "handcuffing and hanging the suspect up on the wall to make him or her confess." Judicial torture was administered by upper-lever courts staffed by professionals, as opposed to the lower lay courts; it was a judicial "fact" finding method to extract "the truth." For this and other reasons, Pihlajamaki argues, judicial torture was never legal in Sweden. Yet some forms of physical coercion were clearly employed against persons suspected of certain crimes or, more likely, of belonging to the political opposition, but this sort of persuasion took place mostly at the highest levels of monarchical authority. The prohibition of torture towards the end of the seventeenth century, Pihlajamaki notes, required both the creation of "other methods of ensuring criminal responsibility" and the emergence of a state strong enough to regulate and prohibit the practice. As he deftly summarizes, "It makes a difference whether torture was large-scale, systematic, and based on legal literature and a common notion of legality, as it was in Germany, France, and the other major ius commune regions of Europe, or whether torture was illegal, unsystematic, and exceptional, as was the case of Sweden and England" It is no less a part of this author's accomplishment that he reminds us that torture is a "changing, historical category."
Hat tip: H-Law

Tuesday, November 18, 2008

Siegel on the Great Longitude Controversy and Administrative Law

The Institute for Constitutional Studies at the George Washington University Law School announces the presentation of a work in progress, "The Great Longitude Controversy: Administrative Law and Intellectual Property in the Eighteenth Century," by Jonathan Siegel, George Washington University Law School, on Friday, November 21. Lunch will be served at 11:45 and the lecture will begin at 12:15. The event will take place in the Faculty Conference Center at the GWU Law School.

To attend, RSVP by Wednesday, November 19th at Here is the abstract:
The eighteenth-century quest to “find the longitude” is an epic tale that blends science with law. The problem of determining longitude while at sea was so important that the British Parliament offered a large cash prize for a solution and created an administrative agency, the Board of Longitude, to determine the winner. The generally popular view is that the Board of Longitude cheated John Harrison [pictured at left], an inventor, out of the great longitude prize.

This article examines the longitude story as a matter of administrative law and intellectual property. The article imagines the dispute between Harrison and the Board of Longitude translated into a modern setting and asks what would happen if Harrison sought judicial review of the Board’s refusal to award him the longitude prize. The article suggests that the popular account of the dispute is unfair to the Board. The Board gave a reasonable interpretation to the statute creating the longitude prize and was not improperly biased against Harrison’s method of solving the longitude problem. The article concludes with some lessons the longitude story offers for modern intellectual property and administrative law.
Image credit.

Rehnquist Papers up to 1974 now open to researchers (and tips for research at the Hoover Archives)

The Hoover Institution Library and Archives has released parts of the Papers of Supreme Court Justice William H. Rehnquist. Now open at the archives are Rehnquist's papers from 1947 to 1971 and Supreme Court papers from the 1972 to 1974 terms. Prominent cases during those terms include Roe v. Wade (1973), protecting abortion rights; Branzburg v. Hayes, (1972), invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury; and Furman v. Georgia, 408 U.S. 238 (1972), a death penalty case that led to a moratorium on the use of the death penalty. The pre-Court papers include Rehnquist's Stanford Law School notebooks from 1951-1952 and a journal with entries dating from 1947-1948 and 1965.

Rehnquist's personal correspondence will be released by January 5, 2009. The library reports that "additional materials including speeches, writings, book drafts, and other documents will be opened in the spring of 2009." Remaining Supreme Court files "shall remain closed during the lifetime of any member of the Supreme Court who served with William H. Rehnquist."

The 37-page finding aid is available on-line. The announcement is here. A New York Times article describes the collection, finding the case materials to "contain mostly un-illuminating draft opinions and perfunctory communications between the justices," with occasional files, including Laird v. Tatum, containing more interesting material. This is consistent with other collections, such as Thurgood Marshall's papers. According to the New York Times, the Roe v. Wade file contains "newspaper and magazine clippings, some of them critical, as well as disturbing color photographs of aborted fetuses."

NOTE TO RESEARCHERS: I have done research at the Hoover Institution archives. The archives staff is very professional and helpful, and you are likely to find a level of professionalism that parallels the Library of Congress manuscript reading room and the presidential libraries. Most of the Hoover Institution's rules for researchers are the ones you encounter in most archives. The one significant difference, which will pose difficulties for many researchers, is the unusually stringent limits on the number of copies you can make: 100 photocopies in a year. Special permission is required for the use of scanners or cameras, and only a maximum of ten images may be taken. It is possible to get permission to make more copies -- but not a lot more. Researchers with limited time to spend at the library, and used to short trips during which relevant documents are copied, are going to have trouble.

There is a reason for this limitation. I was told that the library has had difficulties with a researcher publishing archival materials without permission. Legitimate concerns about protecting unpublished manuscripts in other collections are, unfortunately, applied to routine archival sources that can be photocopied at other archives.

The limitation on photocopying is particularly problematic for writers of law review articles, since law reviews usually require that you supply them with copies of archival documents cited. And any researcher with limited time to spend at the library is going to have trouble. This means that once more papers are released, the most extensive research in these papers is likely to be done by Stanford-area researchers, and by researchers with the budget and lack of family, teaching, and other responsibilities to enable them to spend long stretches in Palo Alto transcribing archival materials by hand.

This collection is likely to be widely used. Let's hope the Hoover Institution will reconsider such a stringent across-the-board photocopying policy. Absent that, full use of the records will be stymied, and the library's small reading room will be cramped with researchers who happen to have the time to type up copies of documents.

Karen Tani reports on ASLH panel "Administrative Law and the Reconstruction of States in the US, Europe and Japan"

This is a guest post from Karen Tani, Sharswood Fellow in Law and History at the University of Pennsylvania.

This past Friday at the annual conference of the American Society for Legal History, I had the good fortune of attending a panel on “Administrative Law and the Reconstruction of States in the U.S., Europe, and Japan.” The panelists discussed the intellectual foundations of U.S. administrative law, post-WWII legal reconstruction projects, and the import of the New Deal, all within a transnational framework.

Legal History Blogger Dan Ernst presented “Freund, Frankfurter and an American Rechsstaat, 1894-1932: A Transatlantic Shipwreck,” a paper on the two scholars who dominated the field of administrative law in the first decades of the twentieth century: Ernst Freund and Felix Frankfurter. As Ernst lucidly explained, Freund and Frankfurter agreed on several fundamental points (e.g., Albert Venn Dicey’s misplaced views on administrative law), but disagreed sharply about administrative discretion. Freund, embracing the German concept of Rechsstaat, envisioned an administrative system governed by statutes so detailed as to be practically self-implementing, accompanied by a judiciary empowered to review any exercise of administrative discretion. He believed such a system would prevent administrative officials (who he assumed to be beneficiaries of patronage politics) from doing any harm to private rights. By contrast, Frankfurter imagined an administrative state staffed by experts – experts who could be trusted to make necessary adjustments as they applied legislative policy choices to existing realities. Ernst then described how Freund gradually slipped into Frankfurter’s shadow, inspiring no disciples, influencing few laws, and generally fading from view. Ernst, however, urged us to “give Freund his own place in the intellectual history of administrative law.” When we do, Ernst argued, we will see not only “patriots” and “cosmopolitans” (to borrow John Witt’s categories, but a third intellectual tradition: one that tried to make the Rechsstaat part of the American reform tradition.

The next panelist, Rande Kostal, University of Western Ontario, presented “Laying Down the Law: New Deal Lawyers and the Legal Reconstruction of Postwar Germany and Japan.” Kostal confined his talk to reconstruction efforts in Germany, and specifically to the efforts of former Solicitor General Charles Fahey to reconfigure the German legal system along liberal democratic lines. Fahey, a consummate careerist and perhaps the “quintessential New Deal apparatchik,” responded to his task with “earnestness” and “zeal,” Kostal observed, but faced many difficulties. Not only did he lack knowledge of German language, politics, and culture, he arrived in Germany in 1945 without any plan of attack. Furthermore, he was committed to implementing a “new legal deal” without imposing law on the Germans; rather, he hoped to show the Germans why they, of their own accord, should adopt democratic legal principles. The “reconstructed” legal regime that resulted fell short of American aspirations, in Kostal’s view. It was staffed with former Nazi supporters, and it did little to remedy Germans’ “collective denial” about the evils of Nazism.

Pulling together themes from the previous papers, Peter Lindseth, University of Connecticut, presented “Transatlantic Functionalism: New Deal Models and Administrative Governance in Postwar Western Europe.” Lindseth opened his talk with several observations about the “post-war constitutional settlement” that followed depression and total war. This settlement, which frames Lindseth’s larger project, consisted of (1) explicit legitimization of delegated power, counterbalanced by protections to legislatures in the form of delegation constraints, (2) recognition of the leadership of the national chief executive, and (3) expansion of legal control by courts and administrative tribunals. Lindseth then narrowed his discussion to the second element and its relationship to the work of political theorist David Mitrany and activist Jean Monnet. Both men, according to Lindseth, perceived the New Deal as a useful model for dealing with crisis; they saw in it a relatively autonomous, technocratic system of governance that operated according to functional demands as opposed to traditional legal patterns and categories. In Lindseth’s view, however, Mitrany and Monnet misunderstood the New Deal. He pointed out that FDR was careful to maintain executive control over administrative governance.

Elizabeth Borgwardt, Washington University in St. Louis, provided an excellent comment on the three papers. Regarding Ernst’s work, she noted the importance of recognizing fads and fashions in the law. What doesn’t “stick” may be as illuminating to historians as what does. She also observed that Freund’s views resonated in some ways with Friedrich Hayek’s subsequent critique of socialism and collectivism. As to Kostal’s paper, she highlighted the interesting comparison it promised between Germany and Japan and wondered why the postwar reconstruction of Japan has been seen as more successful, despite the existence of even greater cross-cultural barriers than Kostal found in Germany. Borgwardt stressed “iterative” transnational dialogue in her comment on Lindseth’s work, characterizing his story as in some ways an extension of Daniel Rodger’s Atlantic Crossings. She also wondered how the New Deal technocrats differed from their progressive era counterparts and suggested that the complexity of their plans (unintelligible to many politicians) may have contributed to their appeal to Lindseth’s functionalists.

Bob Gordon, Yale Law School, chaired the panel.