Wednesday, February 29, 2012

Are Those Who Ignore History Doomed to Repeat it?

...ask three legal scholars in a new SSRN paper.  But the definitive answer to that question was, of course, provided on this blog some time ago.

A Tribute to Morris L. Cohen

image credit
The latest issue of the Law Library Journal is dedicated to Morris L. Cohen (1927-2010). Here's a sample of the offerings:
"In Praise of Morris L. Cohen's Bibliography of Early American Law." Daniel A. Cohen.

"Morris L. Cohen: A Reminiscence." Morris S. Arnold.

"Morris Cohen and the Art of Book Collecting." Michael Widener.
"Birth of a Nutshell: Morris Cohen in the 1960s." Kent C. Olson.
"Blackstone and Bibliography: In Memoriam Morris Cohen." Wilfrid Prest.

"Booksellers in Court: Approaches to the Legal History of Copyright in England Before 1842." James Raven.

"Reflections: An Interview with Morris L. Cohen." Morris L. Cohen & Bonnie Collier.
The full TOC is here. Articles are available for download on the Law Library Journal website.

Hat tip: Yale Law Library - Rare Books Blog

Henry Friendly: Greatest Judge of His Era by David Dorsen

David M. Dorsen's highly anticipated biography of Judge Friendly, a preview of which we noted here, has been released by Harvard University Press. The publisher's description of the book follows, along with excerpts from reviews.  

Henry Friendly is frequently grouped with Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and Learned Hand as the best American jurists of the twentieth century. In this first, comprehensive biography of Friendly, Dorsen opens a unique window onto how a judge of this caliber thinks and decides cases, and how Friendly lived his life.
During his time on the Court of Appeals for the Second Circuit (1959–1986), Judge Friendly was revered as a conservative who exemplified the tradition of judicial restraint. But he demonstrated remarkable creativity in circumventing precedent and formulating new rules in multiple areas of the law. Henry Friendly, Greatest Judge of His Era describes the inner workings of Friendly’s chambers and his craftsmanship in writing opinions. His articles on habeas corpus, the Fourth Amendment, self-incrimination, and the reach of the state are still cited by the Supreme Court.
Dorsen draws on extensive research, employing private memoranda between the judges and interviews with all fifty-one of Friendly’s law clerks—a veritable Who’s Who that includes Chief Justice John R. Roberts, Jr., six other federal judges, and seventeen professors at Harvard, Yale, Stanford, and elsewhere. In his Foreword, Judge Richard Posner writes: “David Dorsen has produced the most illuminating, the most useful, judicial biography that I have ever read… We learn more about the American judiciary at its best than we can learn from any other… Some of what I’ve learned has already induced me to make certain changes in my judicial practice.”

“[A] meticulous biography.”—Kirkus Reviews

“Dorsen…has written a first-rate biography of a judge whose opinions had great influence on the law and legal scholarship.”—Michael Eshleman, Library Journal

A Canadian Property "Law Story"

Douglas C. Harris, UBC Faculty of Law, has posted A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver, which appears in Canadian Property Law Stories, ed. James Muir, Eric Tucker, and Bruce Ziff (Osgoode Society and Irwin Law, 2012).  Here is the abstract:   
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The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous - so as, in effect, to take a property interest from a private owner - the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court's first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property.

Tuesday, February 28, 2012

New Scholarship on Gender, Race, and the Juvenile Justice System

One of the aspects of being an academic that provides me with tremendous satisfaction is introducing the work of scholars new to the field of legal history. Two such scholars bring important new prospective to women’s legal history and are in dialogue with each other regarding the history of the juvenile justice system. The two works are also excellent examples of how we address the intersectionality of gender, race, and class.

Cheryl Nelson Butler of Southern Methodist University School of Law has recently completed her article, "Blackness as Delinquency: Child Savers, Racial Myths and the Juvenile Court." The article fills several gaps in the history of juvenile courts by examining the crucial role that the Black women’s club movement played in creating and critiquing juvenile courts from 1889 to 1930. The article makes two main arguments. First, from its inception, the juvenile courts perpetuated existing racial myths about Blackness and delinquency and enforced dominant attitudes of race and class stratification. Second, the National Association of Colored Women (NACW) responded by placing criminal and juvenile justice issues as a major component of its civil rights agenda. The NACW’s efforts to challenge myths about Black delinquency affected the development of the juvenile court system and its jurisprudence. The NACW’s particular interest in juvenile justice sheds new light on how black women activists shaped the national discourse on race and crime and formulated their own strategies for juvenile justice reform.

Tera Eva Agyepong, a PhD candidate at Northwestern University, presented work from her dissertation at the AHA meeting last month. Her work “Constructing the Black Juvenile Delinquent: African American Girls at the Illinois Training School for Girls at Geneva, 1893–1945” provides a case study of African American girls’ experiences at the Illinois Training School for Girls at Geneva between 1893 and 1945. It argues that intersecting notions of race and gender were embedded in constructions of innocence, delinquency, and rehabilitation in early juvenile justice institutions. Geneva's staff members masculinized black girls by excluding them from notions of femininity, racialized their sexuality by blaming them for the interracial sexual relationships the staff members abhorred, and segregated them from other girls in the institution. In the process, they created a race-specific construct of delinquency that excluded African American girls’ from new notions of protection and rehabilitation.

I also want to congratulate Mae C. Quinn on the publication of her article “Feminist Legal Realism” in the most recent issue of the Harvard Journal of Law and Gender.

“The Teaching of Constitutional History in the 21st Century University"

That was the name of a session that concluded what the University of Oklahoma's president, David Boren, called “one of the most important single-day programs in American history ever held in our state."  Panelists, in a discussion moderated by the radio talk show host Diane Rehm, included Akhil Reed Amar, David McCullough, Peter Onuf, Gordon Wood, and Rosemarie Zagarri.  The report in the Norman Transcript is here.

Update;  See also the report in the University of Oklahoma's student newspaper, here.

McAllister on Justice Byron White and "The Brethren"

Library of Congress
Now out in Green Bag and as an SSRN paper is "Justice Byron White and the Brethren," by Stephen R. McAllister of the University of Kansas School of Law.  Here is the abstract:    
In 1979, Bob Woodward and Scott Armstrong caused quite a stir in the legal world with the publication of The Brethren: Inside the Supreme Court. Over the years, the authors have maintained that five sitting Justices assisted them with material for the book, and the authors have identified Justices Potter Stewart, Lewis F. Powell, Jr., and Harry Blackmun as three of the five who provided assistance. Based on a conversation with Bob Woodward in May 2011, the author of this article suggests that the other two Justices who provided assistance were Byron White and William Rehnquist. The article relates the information obtained from Woodward, examines the history regarding Justice White and The Brethren, and discusses the "evidence" that Justices White and Rehnquist assisted Woodward and Armstrong while calling upon the authors to reveal more information to the public now that all of these Justices are deceased.

Monday, February 27, 2012

Simon on Binder, "Making the Best of Felony Murder"

Over at Jotwell, Jonathan Simon (UC Berkeley) spotlights "Making the Best of Felony Murder," 91 B. U. L. Rev. 403 (2011), by Guyora Binder (SUNY-Buffalo). Here's Simon's intro to the piece:
“Making the Best of Felony Murder” is the culmination of a series of articles (and one book review essay) that have addressed the felony murder rule in American states and precedes a monograph to be published by Stanford University Press later this year. . . . Binder has saved the best for last, and offered us not only a reading of the felony murder rule destined to help wake us up from a particularly telling pedagogic mystification, but a model of history and political theory as analytic tools for reconstructing doctrine.
Read on here.

More from A Symposium on Women’s Legal History: A Global Perspective

As I am now in the process of writing an introduction for the Chicago-Kent Law Review’s Symposium on Women’s Legal History (to be published later in the Spring), I wanted to highlight two more articles. (See my earlier Post of February 1).

Mary Ziegler’s (St. Louis University School of Law) article, “The Possibility of Compromise: Antiabortion Moderates after Roe v. Wade, 1973-1980,” challenges the polarization narrative of Roe v. Wade. Ziegler reconsiders whether Roe created a “clash of absolutes” and instead explores how women activists attempted to create a middle-ground. Ziegler adds to the historiography of conservative women’s groups by recapturing “pro-woman” antiabortion activist groups that, unlike the more well-known STOP ERA and the Concerned Women for America, identified with second-wave feminism or were at least willing to form alliances with feminist groups. Such women opposed abortion but also supported birth control, government sponsored child care programs, maternity leave, and anti-discrimination legislation. Ziegler argues that the present absolutism in which anti-abortion groups also oppose liberal feminism is an outgrowth of political and cultural shifts rather than a reaction to Supreme Court rulings.

Kara Swanson (Northeastern University School of Law) traces the origins of artificial insemination in her article, “Adultery by Doctor: Artificial Insemination, 1890-1945.” Swanson examines the complicated legal issues brought forth by the new medical procedure at a time when there was little legal authority on the issue and questions about the procedure’s legality and the child’s lawful parents were deeply contested. At least some medical authorities attempted to frame the procedure as a form of adultery by the doctor, essentially marginalizing mothers and making such children illegitimate. Swanson’s work uncovers the ways in which doctors used medicolegal discourse to frame the issue and the ways in which popular literature then followed suit. Yet even with the condemnation of the procedure by some doctors and the popular press, infertile couples along with their doctors continued having children in a legal netherworld.

Marriage on the Rocks at the CUNY Graduate Center

The Undoing Marriage Seminar, a Seminar in the Humanities at the CUNY Graduate Center, invites the public to the session Marriage in Crisis, to be held Friday, March 2, 11am - 1 pm.  It will take place at The Graduate Center, CUNY, 365 Fifth Ave (between 34th & 35th Streets), in a Room 3207..

The session will consist of two presentations.  The first is Introduction to "Domestic Tensions, National Anxieties," by Kristin Celello, who is assistant professor of history at Queens College, CUNY.  She is also the author of Making Marriage Work: A History of Marriage and Divorce in the Twentieth-Century United States (UNC Press, 2009).

The other is "Husbands, Wives, and Adultery in Late-Medieval Northern France," by Sara McDougall, who is an assistant professor of history at John Jay College (CUNY). Her book, Bigamy and Christian Identity in Late-Medieval Champagne will appear with University of Pennsylvania Press in March 2012. A specialist in late-medieval canon law and legal practice, she has broad research interests in the history of marriage and legal history.

For copies of the papers, please email either or  For more information call 212.817.2005 or e-mail

In Retrospect: Gordon's "Critical Legal Histories"

Just out in Law and Social Inquiry 37 (Winter 2012): 167-86 is a "Symposium on Gordon’s 'Critical Legal Histories.'”  It looks to be a well-conceived and ably executed retrospective on what was probably the most important historiographic contribution to the field of American legal history in the late-twentieth century, Robert W. Gordon's "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125.

Introduction to Symposium on “Critical Legal Histories”
Hendrik Hartog

This introduction to a symposium on Robert Gordon's classic article “Critical Legal Histories” (1984) suggests that the article should be read in the first instance as a response to the distinctive historical and jurisprudential currents of the 1980s, even as it also remains a work that continues to challenge legal historians working today, a generation later.

What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon's “Critical Legal Histories”
Christopher Tomlins

For more than twenty-five years, Robert Gordon's “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon's essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon's articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal-historical analysis of the resultant stress on the contingency and complexity of social life.

Of Mandarins, Legal Consciousness, and the Cultural Turn in US Legal History
Susanna L. Blumenthal

This article traces the impact of Robert Gordon's "Critical Legal Histories" on scholars writing at the intersection of law and history. While Gordon's central claim about the constitutive character of the law has come to serve as a working assumption in the field, the case he made for the intellectual history of doctrine as articulated by legal mandarins has proven less influential in the twenty-five years since the article was published. Instead, legal historians have focused their attention on the interaction between official and lay forms of law-making with a decided emphasis on popular legal consciousness. For precisely this reason, the time may be ripe for reconsideration of mandarin materials, not only for what they have to tell us about the dynamics of cultural change, but also as sources of insight into basic puzzles of the human condition that have tended across time to be expressed in and through legal forms.

The History in “Critical Legal Histories”
Laura F. Edwards

This commentary explores Robert Gordon's "Critical Legal Histories" from the perspective of the discipline of history. It argues that we are still stalled at the intellectual juncture that Gordon described so well twenty-five years ago because functionalism and the resulting problems that Gordon addresses in the area of sociolegal studies also pervade the discipline of history. The results reinforce the divide between sociolegal studies and other kinds of historical studies that tend to inhibit the conceptual transformation that Gordon advocates and to marginalize legal studies within the discipline of history.

“Critical Legal Histories Revisited”: A Response
Robert W. Gordon

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high-level official law to everyday local law are distinct issues. CLH is mostly moot today, since social-legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.

Sunday, February 26, 2012

Freedom, Jazz, Cities, and more: This Week in the Book Pages

In the book pages of the Wall Street Journal, you'll find lots of history this week, including reviews of:
  • On an Irish Island (Knopf), by Robert Kanigel. According to the review, the book is "a richly researched collective biography of the men and women who crossed paths on Great Blasket Island—a small, isolated community off the Dingle Peninsula on Ireland's Atlantic Coast—from around 1905 to the final evacuation of the island in 1953." Another review, from Salon, is here.

The New York Times offers a review of Eminent Outlaws: The Gay Writers Who Changed America (Twelve), by Christopher Bram. The author "uses a small cast of writers to draw a “large-scale cultural narrative” in which literature played a uniquely transformative role."

Also from the NYT: Fans of the historical fiction thriller The Dante Club (in which Oliver Wendell Holmes, Sr., plays a starring role) may be interested to know that author Matthew Pearl has published a new book, The Technologists (Random House). Be forewarned, however -- the review may deter you from picking it up ("Pearl appears to be using his 19th-century setting as a license to write extra-badly.")

The March 8 edition of the New York Review of Books is rich. "Will the Tea Get Cold?" Sam Tanenhaus asks, in his review of three books on the Tea Party (open access, here). Taking up another hot topic, Bill McKibben covers two books and a documentary on fracking (open access, here). Follow the link for much more, including books on slang, Downton Abbey, and Africa's dirty wars.

The New Republic: The Book covers, here, Fictions of the Cosmos: Science and Literature in the Seventeenth Century (University of Chicago Press), by Frédérique Aït-Touati, translated by Susan Emanuel). TNR also takes a turn reviewing Charles Murray's controversial Coming Apart (here).

Subscribers to the Chronicle of Higher Ed may read a review of Robin D.G. Kelley's latest: Africa Speaks, America Answers: Modern Jazz in Revolutionary Times (Harvard University Press), here.

Last, be sure to check out historian Michael B. Katz's Rorotoko interview on his new book Why Don't American Cities Burn? (University of Pennsylvania Press). In a nutshell, the book "is about the collision between urban transformation and rightward moving social politics."

Saturday, February 25, 2012

Now Available: Harlan's Lectures on Constitutional Law

Library of Congress
Linda Przybyszewski’s use of the transcription of the lectures on constitutional law that the first John Marshall Harlan delivered in 1897-98 at Columbian University was among the most interesting things in her biography,  The Republic according to John Marshall Harlan.  The originals remains at the Library of Congress, but now Bryan L. Frye of Hofstra Law has posted an edition of them here.

Teachout on Corruption and 19th-Century Contract Law

Zephyr Teachout, Fordham University School of Law, The Unenforceable Corrupt Contract: Corruption and 19th Century Contract Law, which appeared in the NYU Review of Law and Social Change 35 (2011).  here’s is an extract from the article:
Public corruption is hardly a new phenomenon, and policymakers have long struggled to find an effective mechanism to deter or punish corruption. While we have recently tried to deal with public corruption through legislation aimed at reducing its incidence, nineteenth-century policymakers adopted a very different tactic. In the nineteenth century, courts used contract law to discourage public corruption by refusing to enforce contracts that they deemed corrupt. Just as they would refuse to enforce contracts for prostitution, they would refuse to enforce contracts between public servants and private entities that undermined the integrity of representative government. In the most striking instance of this practice, the U.S. Supreme Court refused to enforce a contract to lobby Congress, holding that it was a clearly corrupt practice and against the public policy of the United States.

Friday, February 24, 2012

On the LHB Facebook Page: English Legal History

This past week on the Facebook page we highlighted legal education with links to reading including Karen Tani on Using History to Teach Law, Tomiko Brown-Nagin on Linda Kerber’s Challenge to ConLaw Profs, and Dan Ernst on Law School Histories: Beyond the Langdellian Synthesis.

Coming up next week, links to suggested reading and sources on English legal history.  We're starting things off with some suggested sources including the York Church Court Records Online

A New Cultural History of Law: Historical Perspectives on Weimar Legal Culture

About a month ago, I received an invitation to participate in a small workshop on Weimar Legal Culture sponsored by the Max Kade Center for European and German Studies at Vanderbilt University. I immediately contacted the organizer, Henning Grunwald, and informed him that I must have been mistakenly invited as I work on U.S. legal history. He kindly informed me that there was no mistake as they wanted somebody to attend with an outside prospective. All twelve participants presented excellent work which in one way or another made me reflect upon my own work and the larger field of U.S. Legal History. Below I just highlight the work of two participants, but the workshop in general brought up crucial questions such as the role of the trials in mass legal culture, the relationship between law, politics, and ideology, how the mass media reflected and constructed ideas of justice, and the relationship between high and low legal culture.

Henning Grunwald discussed his forthcoming book, Courtroom to Revolutionary Stage: Performance and Ideology in Weimar Political Trials (Oxford, 2012), which explores the effects of the political trials that proliferated in the Weimar Republic. Grunwald’s presentation focused on the legal strategy of Red Aid lawyers who were part of the Communist Party and provided free representation.  In political trials, they largely eschewed legal reasoning in favor of sensational rhetoric and courtroom theatrics that sought to undermine the legal system and the state. These efforts, Grunwald argues, and not jurisprudence, defined the outcome of these important political trials. Grunwald places the courtroom as the “privileged site of ideological combat,” in which the message that political justice could not come without the destruction of the Republic contributed to the rise of National Socialism. At the same time, these lawyers often put the goals of the party ahead of their client’s, looking for guilty verdicts and the creation of political martyrs.

Ann Goldberg examines the Kaiserreich’s legal culture of honor in her work published in Honor, Politics, and the Law in Imperial Germany (Cambridge, 2010). Criminal defamation suits proliferated in early twentieth century Germany because the notion of protecting one’s honor was deeply embedded within the culture. Tens of thousands of such suits were brought each year bringing ordinary people of all classes into contact with the court system. Goldberg argues that these suits, in which a legal action could be brought for a mere insult, flourished not despite the liberalization of German law, but in part, because of it. They were both a reflection of pre-modern culture and of modernity which shaped new ideas about both citizenship and the state.

Kroncke on Goodnow and Pound's Chinese Misadventures

We somehow missed the posting of two installments of the research project of Jedidiah Kroncke, a Senior Research Scholar at the Harvard Law School, when they first went up on SSRN.  They are fascinating accounts–I think of them as cautionary tales–of American scholars' attempts to “export American legal models” to China in the twentieth century.  The first is An Early Tragedy of Comparative Constitutionalism: Frank Goodnow & the Chinese Republic:
This article recovers a lost episode in the neglected early history of American comparative constitutionalism. In 1913, pioneering comparative lawyer Frank Goodnow was sent to China to assist the new Chinese Republic in the writing of its first constitution. Goodnow's mission reflected the growing interest of America in China's legal development in this era, and his constitution-writing project won broad support from the American legal profession. Goodnow's tenure ultimately generated great controversy when he advised China to adopt constitutional monarchy rather than continue on as a republic. This article describes this controversy and how American international engagement was increasingly shaped in the early 20th century by the attempted export of American legal models as a presumptively altruistic mechanism of modernization. Goodnow's allegiance to comparative legal science agitated against this more parochial view of legal internationalism, and in the end he was excommunicated from American foreign policy affairs.

More broadly, this article shows how the early history of American comparative constitutionalism had its roots in the early 20th century American discourse on colonial administration. Goodnow and other American lawyers of the era turned to indirect engagements with foreign legal reform only after the popular rejection of colonialism that had been already constitutionally sanctioned by the now infamous Insular Cases. This article further argues that these colonial roots and Goodnow's feckless misadventure in China hold key lessons for today's comparative constitutionalists. It provides a vivid example of how the technocratic illusion of engaging in depoliticized legal reform abroad is self-defeating and untenable. Further, it warns against the inherent tensions between a methodologically coherent comparative law and the desire to export American constitutional models abroad, and how such tensions can undercut clear-sighted American understanding of foreign legal developments.
The second is Roscoe Pound in China: A Lost Precedent for the Liabilities of American Legal Exceptionalism:
Roscoe Pound retired from Harvard Law School in the late 1940's as one of America's most prominent legal figures. Mostly forgotten today is that Pound left Harvard with great fanfare to take up an appointment as legal adviser to China's Guomindang Party (GMD). Pound went to China at the height of America's also oft forgotten early 20th-century preoccupation with the Chinese Republic's potential legal and political Americanization. As adviser, Pound created a grand reform agenda for Chinese law and became an active stateside propagandist for the GMD. Pound's desire to transform the Chinese legal system along American lines was representative of new presumptions about how American law could act as a stimulus for the legal development of foreign legal systems. These presumptions set American law outside and above international legal discourse, establishing a key modern component of what is today often called American legal exceptionalism.

Pound failed to achieve any success in influencing Chinese legal reforms before the victory of Chinese Communist Party in 1949. More broadly, Pound's "export" work in China undermined and degraded his early commitment to comparative law. Further, his representation of Chinese legal reform as following American patterns pro-actively warped domestic perceptions of Chinese legal developments. After 1949, Pound, like the American legal community more broadly, was unable to reflect critically on his failure. Instead, he used his time in China to fuel a polemical and influential anti-Communism that cast positive evaluations of the export of American law as a test of national loyalty. Pound's experience in China serves as a key modern precedent for the liabilities inherent in the export-driven view of American law abroad that still shapes Sino-America legal relations and the normalization of modern American legal exceptionalism.

Thursday, February 23, 2012

CFP: The Fictions of Finance

The Fictions of Finance (Radical History Review, Number 118)

Call for Proposals, due March 15, 2012

Across the humanities and social sciences, a new conversation has begun about the enigmas of capital, and of finance capital, in particular. This special issue of the Radical History Review on “The Fictions of Finance” aims to intervene in that conversation and to help to shape it. From geography, history, and literary studies to anthropology, sociology, and labor studies, there has been an efflorescence of work on finance and commercial capital, flourishing amid the current capital crisis and chronic “recession.” As a historical primer on the planetary intersections of the rhetorical and the operational dimensions of “The Fictions of Finance,” this issue is designed to knit together the disparate strands of these renewed conversations. In naming that theme, we mean to recover the old notion that finance capital is itself a kind of fabrication, an illusion—the realm of Marx’s “fictitious capital.” History provides a long record of cultural figurations of this fictionality, of the fraudulent productivity and magical profit of credit and speculation—from the “wind wheat” of Illinois to the “devil” of Colombia. But new modes of thought have continually helped to marginalize those responses and to naturalize the mechanisms of finance capital. In other words, to paraphrase cultural historian Ann Fabian, economic innovation and epistemological innovation have gone hand in hand.

With “The Fictions of Finance,” then, we mean to decipher a vast array of moral panics, conceptual revolutions, legal constructions, and discursive forms implicated and imbricated within the world histories of capital. This theme may point in many directions: genealogies of economic thought; the performativity of economic theory; finance capital’s institutional architectures, such as corporations and state bureaucracies; territorial sovereignties, geographical imaginaries or spatial materialities secured by finance capital; techniques of racial capitalism; and modes of imperialism and accumulation. We want this theme to mark out the space for an interdisciplinary conversation, rather than a strictly historical one, about the political economy of finance capitalism. We seek a cultural history, writ large, writ global, of the forms, concepts, subjects, and networks that finance capital elaborates. In other words, we’d like to emphasize critiques of capitalism and to foreground its logic, and, practically speaking, to emphasize provocative juxtapositions of topics.

Some possible topics this issue might explore include, but are not limited to, the following:
  • Slave insurance, slave mortgages, and the corporealization of finance capital
  •  Speculation and risk as imperatives of capitalist citizenship
  • "Time is money,” and other tropes of the transactionalism of everyday life
  • Microfinance, credit-baiting, and primitive accumulation in the Global South
  • Pin money and the domestication of finance
  • FIRE economies and the rise of global cities
  • “Ball pork”: the circulation of finance capital through built and natural environments
  • Territorial and national sovereignties imagined by finance capital
  • Shysters, Welfare Queens and other discourses of parasitism
  • Radical critiques of finance capital, among theorists and activists around the world
  • The grammar of finance, e.g., the categories of credit and debt (whether personal or national)
  • The instruments of finance, e.g., double-entry bookkeeping and collateralized debt obligations
  • Money as a narrative strategy, from the realist novel to conceptual art  
  • The personification of the market that speaks, sleeps, and stumbles 
  • Global cycles of finance capital and the temporality of history 
  • Finance capital and the scapes of modernity: HSBC as “The World’s Local Bank”
  • The boundary between clean and dirty money
  • The emergence of the concept of finance capital
  • Homo Economicus: the productions of affect, desire, and subjectivity
  • The legal “personhood” of business corporations
The RHR seeks scholarly, monographic research articles, but we also encourage such non-traditional contributions as photo essays, film and book review essays, interviews, brief interventions, “conversations” between scholars and/or activists, and teaching notes and annotated course syllabi for our Teaching Radical History section.

Procedures for submission of articles: At this time we are requesting abstracts that are no longer than 400 words; these are due by March 15, 2012 and should be submitted electronically as an attachment to with “Issue 118 submission” in the subject line. By April 15, 2012, authors will be notified whether they should submit a full version of their article to undergo the peer review process. The due date for completed drafts of articles is October 1, 2012. An invitation to submit a full article does not guarantee publication.

Please send any images as low-resolution digital files embedded in a Word document along with the text. If chosen for publication, you will need to send high-resolution image files (jpg or tif files at a minimum of 300 dpi), and secure written permission to reprint all images. Those articles selected for publication after the peer review process will be included in issue 118 of Radical History Review, scheduled to appear in Winter 2014.

For preliminary e-mail inquiries, please include “Issue 118” in the subject line.

Abstract Deadline: March 15, 2012

Radical History Review

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New York University

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New York, NY 10012

Visit the website.

Billings's "Magistrates and Pioneers"

Warren M. Billings, Distinguished Professor of History, Emeritus, at the University of New Orleans, published last year Magistrates and Pioneers: Essays in the History of American Law, with Lawbook Exchange.  The book collects eighteen essays, five of them new.
They address the main areas of [Professor Billings’s] research, nineteenth century Louisiana and seventeenth century Virginia. From Opechancanough, a seventeenth-century Indian chief to Sir William Berkeley, colonial governor of Virginia, to Edward Livingston, coauthor of Louisiana's first civil code, to the legendary Louisiana Governor and U.S. Senator Huey Long, Billings brings to life the forces behind the legal development of these two historically distinctive states. Many of these are classic essays, all are essential to students of American legal history.
Here are the blurbs:

Kevin R. Hardwick James Madison University:

"Few scholars match Warren Billings for the depth and integrity of their research, or the elegance of their prose. These essays, the fruits of four decades of immersion in technically difficult archives and spanning four centuries of Virginia and Louisiana history, gracefully connect often arcane legal processes to the larger cultures in which they were situated. Even scholars well conversant with his work will benefit from having this selection of Billings' essays gathered in a single place. The lead essay, a charming and deeply humane scholarly autobiography, adds a grace-note to a volume rich in erudition and learning. Scholars of southern history especially will find much to savor in this superb collection."

Ellen Holmes Pearson University of North Carolina Asheville:

"Warren M. Billings, one of the leading scholars of early American legal culture, has produced a rich collection of essays drawn from his writings of the past four decades. These elegantly written works reveal the depth and breadth of Billings' expertise in seventeenth-century Virginia legal history, The New Louisiana Legal History, and the history of the law book. This learned collection merits a place in every American legal scholar's library."

From the Foreword by Mark F. Fernandez Loyola University New Orleans:

 "For four decades Warren Billings has been one of the most productive and prolific scholars of early American history. His books, all unanimously well received, and his "vintage" articles have stamped out impressive imprints in several different areas of American history. His work on the colonial Chesapeake ranks as nothing short of seminal. Leading his graduate students at the University of New Orleans and a handful of other interested scholars, Billings almost single-handedly laid the foundation for the vital field that he helped to christen the New Louisiana Legal History. Recently, he's been able to fuse these interests into deeper, thoughtful, and expansive synthetic essays on aspects of American history from 1607 to the present. This impressive array of interests is evident in the essays in this volume."

Columbia Center for Oral History Summer Institute: Human Rights

Readers who rely on oral histories for their research or hope to take them in the future may be interested to learn that the Columbia Center for Oral History has announced its 2012 Summer Institute, titled “What is Remembered: Life Story Approaches in Human Rights Contexts.” The dates are June 4-15, 2012 at Columbia University in New York City.

image credit
Here's more:
Sessions will explore the methodological and theoretical implications of doing life story research with individuals who have suffered human rights abuses and other forms of discrimination. The institute will focus on the role of oral history in documenting such histories, but also interpreting the strategies of resistance and survival of creative individuals and communities that have lived through difficult times. 
General themes of the institute will include: the challenges of doing fieldwork in post-conflict societies, including remembrance of personal violence; the uses of oral sources in expressing emotion and facilitating constructive actions; and the uses of informal and official forms of life histories in addressing the tensions between individual and collective remembering. The Institute will also include practical workshops in digital storytelling, interviewing and editing.
For more information and to apply, follow the link.

Grossberg today at Penn Legal History Consortium

Today!  The Pennsylvania Legal History Consortium is hosting Michael Grossberg, Indiana University.  His topic is “The Politics of Childhood: Law and Child Protection in Modern America.”

Later this semester, Pnina Lahav, Boston University,  “A War to Make More Wars: The 1956 Preemptive War against Egypt Launched by Britain, France and Israel,” April 19, 2012.

Last fall, the Consortium hosted Sam Erman, Harvard University, “Puerto Rican Reconstruction: Race, Self-Government, and Rhetoric, 1898-1917,” Nov. 30, 2011.

Wednesday, February 22, 2012

The Life and Times of Dred Scott

[Over the years we’ve noted the Indiana bench and bar’s unusual attention to legal history.  Here’s another example.]

The Indiana Supreme Court will host a free Commission for Continuing Legal Education (CLE) event, celebrating Black History: The Life and Times of Dred Scott on Tuesday, February 28, 2012 from 3:30 P.M. - 5:00 P.M. in the Gathertorium on the campus of Martin University in Indianapolis.

Utah Attorney General Mark L. Shurtleff, the author of "Am I Not a Man?-The Dred Scott Story", will speak about the book, a historical novel which tells the remarkable story of Dred Scott, events leading up to the Supreme Court Ruling decided March 6,1857, the election of President Abraham Lincoln, and ultimately, the abolition of slavery. The book was first released to commemorate February's "Black History Month" designation.

Attorney General Shurtleff will discuss the Constitutional analysis and legal underpinnings of this landmark ruling and the implication of Chief Justice Roger B. Taney's 7-2 decision in which every Justice, beside Taney, wrote a separate concurrence or dissent. This decision greatly impacted the national political landscape and helped Abe Lincoln win his Presidential race. General Shurtleff will also provide perspective on the legal reasoning regarding the Fourteenth Amendment in the context of  the Dred Scott ruling: and the current legal arguments in the context of comprehensive immigration reform as to whether the Fourteenth Amendment should be altered.

Lynn M. Jackson, great-great granddaughter of Dred and Harriett Scott, will offer her personal perspective on her family and the ruling. She is President and Founder of the Dred Scott Heritage Foundation in St. Louis, Missouri.

Indiana Attorney General Greg Zoeller will introduce the speakers and moderate the discussion portion of the program. Dr. Charlotte Westerhaus-Renfrow, Acting President of Martin University, will provide welcome remarks.

Hat tip/more.

Judge's Bartle's History of His Court

The Honorable Harvey Bartle III, a judge of the United States District Court for the Eastern District of Pennsylvania who served as its Chief Judge from 2006 to 2011, has published Mortals with Tremendous Responsibilities: A History of the United States District Court for the Eastern District of Pennsylvania with Saint Joseph’s University Press in 2011.  Here is the press’s description:
This book recounts for the first time the compelling story of the United States District Court for the Eastern District of Pennsylvania which traces its history back to 1789 and the Judiciary Act signed by President George Washington. The Court's first judge was Francis Hopkinson, a signer of the Declaration of Independence. Highlighted in the book are the Court's judges, its important cases, and the growth and changes in its jurisdiction, workload, and administration over more than 220 years. This history serves as a reminder of the consequential role that this and the other federal trial courts play in our constitutional system of government even though as Alexander Hamilton noted in No. 78 of The Federalist, "the federal courts possess neither the power of the purse nor the power of the sword."

Alexis de Tocqueville wrote in Democracy in America after his visit to the United States in the 1830's, "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." Time and time again, matters which began as political questions in America have ended up before this and other federal trial courts. This book describes some of these matters. Over the years, the judges in the Eastern District of Pennsylvania have had to grapple with a myriad of issues including sedition, treason and espionage, slavery, military enlistment, seizure of ships during wartime, draft evasion, prohibition, monopolies, free speech, religious freedom, and separation of church and state. More recently, they have faced cases involving civil rights, racial and gender employment discrimination, political corruption, organized crime, prison conditions, and abortion, among others. One of the Court's judges years ago aptly described a judge as a mortal with tremendous responsibilities. This telling observation has been adopted as the book's title.

The Court, which was one of the original thirteen federal district courts, had only one authorized judgeship until 1904. The number of judges and the Court's workload have greatly expanded since that time until it is now one of the largest and busiest of the ninety-four federal trial courts in the United States. For more than a century and a half, all of its judges, who have lifetime appointments, were white males. Today, the Court is comprised of a diverse group of men and women who more nearly reflect the population of America.
The Federal Judicial Center lists recently published court histories hereEdward A. Purcell, Jr., New York Law School, published an excellent review essay on an earlier generation of these studies as "Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts," Law & Social Inquiry 24 (1999): 679-750.

Tuesday, February 21, 2012

Jed Shugerman's The People's Courts: Pursuing Judicial Independence in America

The People's Courts: Pursuing Judicial Independence in America by Jed Shugerman (Harvard Law) has been published by Harvard University Press.  The publisher's description and blurbs follow.
In the United States, almost 90 percent of state judges have to run in popular elections to remain on the bench. In the past decade, this peculiarly American institution has produced vicious multi-million-dollar political election campaigns and high-profile allegations of judicial bias and misconduct. The People’s Courts traces the history of judicial elections and Americans’ quest for an independent judiciary—one that would ensure fairness for all before the law—from the colonial era to the present.

In the aftermath of economic disaster, nineteenth-century reformers embraced popular elections as a way to make politically appointed judges less susceptible to partisan patronage and more independent of the legislative and executive branches of government. This effort to reinforce the separation of powers and limit government succeeded in many ways, but it created new threats to judicial independence and provoked further calls for reform. Merit selection emerged as the most promising means of reducing partisan and financial influence from judicial selection. It too, however, proved vulnerable to pressure from party politics and special interest groups. Yet, as Jed Shugerman concludes, it still has more potential for protecting judicial independence than either political appointment or popular election.

The People’s Courts shows how Americans have been deeply committed to judicial independence, but that commitment has also been manipulated by special interests. By understanding our history of judicial selection, we can better protect and preserve the independence of judges from political and partisan influence.

This is an important book on a vastly important topic--the indispensable source for anyone interested in how the United States arrived at the 'peculiar institution' of judicial elections.
--John Fabian Witt, Yale Law School

The People's Courts is the first comprehensive history of judicial elections, an exciting work that sharply challenges how we usually think about courts, constitutionalism, and democracy. For a long time to come this is going to be the definitive book on elected judiciaries.
--Robert W. Gordon, Stanford Law School

A powerfully framed and comprehensive exploration of how judges and politicians (often politician-judges) responded to the apparent tensions between popular democracy and judicial independence. The People's Courts will be essential reading for everyone interested in the political history of the judiciary.
--Hendrik Hartog, Princeton University

Gordon on the Trial of Peter Von Hagenbach:

Gregory Gordon, University of North Dakota School of Law, has posted The Trial of Peter Von Hagenbach: Reconciling History, Historiography and International Criminal Law.  Here is the abstract:    
It is an article of faith among transnational penal experts that Sir Peter von Hagenbach's 1474 prosecution in Breisach for atrocities committed serving the Duke of Burgundy constitutes the first international war crimes trial in history. Hagenbach was tried before an ad hoc tribunal of twenty-eight judges from various regional city-states for misdeeds, including murder and rape, he allegedly perpetrated as governor of the Duke's Alsatian territories from 1469 to 1474. Though it remains obscure in the popular imagination, most legal scholars perceive the trial as a landmark event. Some value it for formulating an embryonic version of crimes against humanity. Others praise it for ostensibly charging rape as a war crime. And all are in agreement that it is the first recorded case in history to reject the defense of superior orders. Such a perspective has arguably helped invest the Nuremberg trials with greater historical legitimacy and lent subtle sanction to the development of international criminal law in the post-Cold War world. But the legal literature typically deals with the trial in very cursory fashion and its stature as pre-Nuremberg precedent may hinge on faulty assumptions. As the 1990s explosion of ad hoc tribunal activity is nearing its end and the legal academy is taking stock of its accomplishments and failures, it is perhaps time to look more closely at the Hagenbach trial. This piece does that by digging below the surface and revisiting some of the historical and legal premises underlying the trial's perception by legal academics.

McGerr at YLS on "A Lancastrian Mirror for Princes"

The Lillian Goldman Law Library of the Yale Law School iss sponsoring a discussion with Rosemarie McGerr, Professor of Comparative Literature and Director of the Medieval Studies Institute at Indiana University, of her new book, A Lancastrian Mirror for Princes: The Yale Law School New Statutes of England.  It will take place in Room 122, Yale Law School, on Friday, February 24, from 12 to 1.  For more information, contact Michael Widener: mike.widener at

Here is Indiana University Press's description of Professor McGerr’s book
This seminal study addresses one of the most beautifully decorated 15th-century copies of the New Statutes of England, uncovering how the manuscript's unique interweaving of legal, religious, and literary discourses frames the reader's perception of the work. Taking internal and external evidence into account, Rosemarie McGerr suggests that the manuscript was made for Prince Edward of Lancaster, transforming a legal reference work into a book of instruction in kingship, as well as a means of celebrating the Lancastrians' rightful claim to the English throne during the Wars of the Roses. A Lancastrian Mirror for Princes also explores the role played by the manuscript as a commentary on royal justice and grace for its later owners and offers modern readers a fascinating example of the long-lasting influence of medieval manuscripts on subsequent readers.

Monday, February 20, 2012

O'Connor and Bilder on a Digital Catalogue of Appeals to Privy Council from the American Colonies

Sharon Hamby O'Connor and Mary Sarah Bilder, Boston College Law School, have posted, Appeals to the Privy Council Before American Independence: An Annotated Digital Catalogue, which is forthcoming in Law Library Journal 104 (2012).  Here is the abstract:
Between the later seventeenth century and American independence, appeals from colonial high courts were taken to the Privy Council in England. These appeals are the precursors of today's appeals to the U.S. Supreme Court. Their legal and policy issues can be reconstructed from the outcome of the appeals, the briefs of crown law officers, related Privy Council documents, and handwritten notations on these materials. This article describes Appeals to the Privy Council Before American Independence, an annotated digital catalogue of appeals from the thirteen colonies with links and digital images providing access to this material, now compiled from a variety of repositories.

Incorporating the Humanities into the Core Law School Curriculum

The California Law Review's online companion, The Circuit, is currently featuring a mini-symposium on incorporating the humanities into the core law school curriculum.

Ariela Gross (University of Southern California) contributed a piece titled "Teaching Humanities Softly: Bringing a Critical Approach to the First-Year Contracts Class Through Trial and Error." 

Rose Cuison Villazor (Hofstra University) writes about "Teaching Property Law and What It Means to Be Human."

Other contributors include Melissa Murray (University of California, Berkeley), Carol Sanger (Columbia University), Natasha Martin (Seattle University), Zahr Said (University of Washington), Bret Asbury (Drexel University), Lenora Ledwon (St. Thomas University), and David Sklansky (University of California, Berkeley).  The symposium resulted from this year's meeting of the AALS Section on Law and the Humanities.

Spillenger on Choice of Law Jurisprudence, 1865-1940

Clyde S. Spillenger, UCLA Law, has posted Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940.  Here is the abstract:
This paper examines the developments leading to the establishment by the U.S. Supreme Court in the 1930s of constitutional limitations on choice-of-law rulings by state courts. Prior to the Civil War, the jurisprudence of conflict of laws did not even acknowledge, much less adopt, the possibility that such constitutional limitations existed. Since the rules of decision applicable in antebellum private-law litigation were largely drawn from common law and other non-municipal sources of law, there was little basis for invoking the Full Faith and Credit Clause as a limitation on state courts' application of lex loci principles. The key development in altering this conception was the enactment, beginning in the 1850s, of state statutes altering or creating rules of decision for certain kinds of civil litigation. These statutes, of which the wrongful death acts and the later employers liability laws were the most important, were largely directed to the problem of risk of catastrophic injury and loss in an increasingly industrial society. State courts confronting the multi-jurisdictional problems raised by these statutes concluded that they could not be applied "extraterritorially," i.e. to injuries incurred outside the forum. This assertion, which was based not on the Constitution but on more general principles concerning the sovereignty of states, was conceived as a limitation on legislative or "political" jurisdiction rather than a doctrine belonging to "conflict of laws" as such. The Supreme Court showed little interest in the issue of extraterritoriality until some states, notably Missouri, began to enact state regulations protecting local policyholders from forfeiture provisions in the life insurance policies issued by the major insurers in the Northeast. The Court in 1914 and 1918 struck down as unconstitutional the application by Missouri courts of these local protective statutes to insurance agreements deemed to have been "made" outside of Missouri. Thus a proscription of extraterritoriality, married to the then-prevailing doctrine of liberty of contract, briefly entered the law of the Constitution. These principles concerning extraterritoriality, based as they were on the formalist notion that only one state has regulatory authority over a given event or transaction, were undermined by the widespread enactment of workers' compensation laws. In the three 1930s cases considering the legitimate scope of such compensation statutes, Justice Stone (building on earlier opinions authored by Justice Brandeis) decisively affirmed the authority of a state to apply its workers' compensation statute to injuries suffered outside the state. At a stroke, these decisions interred the idea that only one state has regulatory authority over a given event or transaction; eliminated the relevance of extraterritoriality as a touchstone for constitutional analysis of state authority with respect to multi-jurisdictional transactions; and provided crucial support for an emerging model of conflict of laws in which state interests - most notably, a concern for state domiciliaries - supplanted territoriality per se as the principal consideration.

Sunday, February 19, 2012

"A Profusion of Lives": This Week in the Book Pages

In the book pages of the New York Times, you'll find a review of The World America Made (Alfred A. Knopf), by neoconservative historian Robert Kagan. Although the book suffers from "fuzzy generalizations, debatable assertions and self-important declarations of the obvious," writes reviewer Michiko Kakutani, it "does make a strong case for the notion that 'the most important features of today’s world — the great spread of democracy, the prosperity, the prolonged great-power peace — have depended directly and indirectly on power and influence exercised by the United States.'"

Also reviewed: Honor in the Dust: Theodore Roosevelt, War in the Philippines, and the Rise and Fall of America’s Imperial Dream (New American Library), by Gregg Jones (here), and The Obamas (Little, Brown & Company), by Jodi Kantor (here).

Writing for the New Republic: The Book, Todd Gitlin reviews Troublemaker: A Memoir from the Front Lines of the Sixties (Doubleday Books), by Bill Zimmerman. "At a time when journalists persist in judging the Occupy movement by its easily visible signs and accomplishments of the past hundred days," Gitlin writes, "Troublemaker is a useful reminder of how much of a social movement takes place in a profusion of lives, under the surface, among the infamous."

Also in TNR:
  • Political scientist Marie Gottschalk reviews Drugs and Drug Policy: What Everyone Needs to Know (Oxford University Press), by Mark A.R. Kleiman, Jonathan P. Caulkins, and Angela Hawken (here). The authors "eviscerate many of the arguments behind the policies that have been the leading weapons in the war on drugs," but "also cast a skeptical eye on some shibboleths of the burgeoning drug reform movement."
Meanwhile, in the City Room section, the NYT spotlights the research of Carla L. Peterson, author of Black Gotham: A Family History of African Americans in Nineteenth-Century New York City (Yale University Press).

Subscribers to the Chronicle of Higher Ed may learn about a Roman emperor who, after death, "suffered damnatio memoriae, an erasure from inscriptions and papyri," but now has been restored to history. Nina C. Ayoub reviews The Crimes of Elagabalus: The Life and Legacy of Rome's Decadent Boy Emperor (Harvard University Press), by Martijn Icks (here)

The Wall Street Journal takes up Eisenhower in War and Peace (Random House), by Jean Edward Smith (here). The "highly readable one-volume biography . . . is clearly designed to enhance Ike's claim to greatness."

Also reviewed: two new books on Clover Adams (Mrs. Henry Adams) (here).

In the book pages of the Los Angeles Times, you'll find coverage of Carl Van Vechten & the Harlem Renaissance: A Portrait in Black & White (Yale University Press), by Emily Bernard. Here's a taste of the review, by Lynell George:
The line separating passion and obsession is porous. One step over that boundary, the territory becomes fraught — rutted with suspicion, quiet judgment if not outright accusation. This was the territory Carl Van Vechten — critic, novelist, photographer and, most famously, patron of the Harlem Renaissance — traversed with a singular vigor and preoccupation that bordered on fetishism.
The LA Times also offers another take, here, on Charles Murray's Coming Apart (mentioned in last week's round-up, here).

The Nation reviews two new books on Galileo.

Last but not least, a new issue of the London Review of Books is out. It covers new books on empire, autism, reciprocity, and more.

Saturday, February 18, 2012

Weekend Round-Up

  • We've previously noted the publication by Ross E. Davies, Craig D. Rust and Adam Aft of a set of baseball-type cards featuring Supreme Court Justices and giving their "stats."  They are back, here, with cards on the Justices Scalia, Fortas, and Goldberg.  Mr.Aft tells me that the new home for these cards is the Journal of Legal Metrics (of which he is a co-Editor-in-Chief.  The first issue of the JLM also contains the Original Jurisdiction Standings by David Hatton and Professor Jay Wexler, which provides the wins and losses of the states that have litigated original jurisdiction cases at the Supreme Court. 
  • Around the colloquiaAbigail Chandler, Massachusetts-Lowell History, presented “I Charged Her to Speak the Truth: The Legal Role of the Colonial Midwife” to the Boston College Legal History Roundtable.  Hat tip: Legal Scholarship Bog
  • Readers within hailing distance of the New-York Historical Society and can spare the price of admission might consider two events: "The Invisible Line: Three American Families and the Secret Journey from Black to White," with Daniel Sharfstein, moderated by Brent Staples, on April 12, and “The Civil War and the American Constitution,” with Mark E. Neely, Jr., moderated by Harold Holzer, on April 24.  More.
The Weekend Round-Up is a weekly feature compiled by all the Legal History bloggers.

Friday, February 17, 2012

Hurry, While Supplies Last

Now through March 15, Cambridge Journals is providing free access to a collection of editor-selected articles from the Journal of Policy History, including:

From "Economic Want" to "Family Pathology": Foster Family Care, the New Deal, and the Emergence of a Public Child Welfare System, Catherine E. Rymph (24.01)

Reform's Mating Dance: Presidents, Social Movements, and Racial Realignments, Sidney M. Milkis and Daniel Tichenor (23.04)

The Making of a Tax Break: The Oil Depletion Allowance, Scientific Taxation, and Natural Resources Policy in the Early Twentieth Century, Peter A. Shulman (23.03)

(I can particularly commend Shulman on the oil depletion allowance.)

Madness or Badness: Duran and the Evolution of the Insanity Defense in the D.C. Circuit

Francisco Duran, who occasionally claimed to be God, said he fired 29 shots through the White House fence to remove a pernicious "mist" that hung over the White House.  The prosecutor said he was a disturbed fame-seeker, angry at the government, who could have been faking a mental disorder.   That case - and Duran's 1995 conviction - provide the framework  for a program on the evolution of the federal insanity defense which the Historical Society will present on Wednesday, April 11, 4:30-6 p.m., in the Ceremonial  Courtroom  of the E. Barrett Prettyman U.S. Courthouse.

Stephen J. Morse, Professor of Psychology and Law in Psychiatry at the University of Pennsylvania , is scheduled to describe the case and the procession of rules governing the defense, followed by a compressed rendition of the closing arguments by the lawyers who made them, then Assistant U.S. Attorney Eric Dubelier, now a partner at Reed Smith, and Federal Public Defender for the D.C. Circuit, A.J. Kramer.   Dr. Patrick Canavan, Chief Executive Officer at St. Elizabeths, will join these participants on a panel which will assess the success or futility of changes Congress imposed after the John Hinckley case.  A reception will follow the program.  Everyone is welcome.

On the LHB Facebook Page: Legal Education

This past week on the Facebook page we highlighted civil rights with links to reading including Tomiko Brown-Nagin on SNCC's condemnation of the War in Vietnam, Julian Bond's ouster from the Georgia legislature, and some questions about the world today from February 2011, and links to sources including the JP Coleman Papers at the University of Mississippi.

Coming up next week, links to suggested reading and sources on legal education.  To start things off:  Karen Tani from May 2010 on using history to teach law

Raven on Copyright in England before 1842

James Raven, Professor of Modern History, University of Essex, has published Booksellers in Court: Approaches to the Legal History of Copyright in England Before 1842, in the Law Library Journal 104 (2012): 115-34.  Here is the abstract:
Historical consideration of the development of publication copyright and other legal intervention in the English book trade extends beyond the wording of legislation, proclamations, and civil and common case law to their effectiveness and enforcement. This article argues that study of a broader history of legal controls and permissions affecting printing and publication in England before the Copyright Act of 1842 highlights the circumventions, misapplications, and misconceptions that sometimes masked underlying continuities and enabled commercial interests and political initiatives to develop despite the word of law.

Thursday, February 16, 2012

Two Lectures at the Rare Book School at UVA

The Rare Book School at the University of Virginia announces the Clay Lectures for 2012, which will be delivered on March 1 and 7. Each Clay Fellow will lead a seminar the day after his or her lecture.

The first lecture is “Copyright at Common Law before 1710 and Its Modern Implications,” to be delivered by H. Tomás Gómez-Arostegui, Associate Professor of Law, Lewis & Clark Law Schoolon Thursday, 1 March from 5:30-6:30 p.m, at the Auditorium of the Mary and David Harrison Institute for American History, Literature, and Culture at the Albert and Shirley Small Special Collections Library.

The second lecture is “Standing in the Shadow [of the Text]: The Value of Studying Historical Bindings,” to be delivered by Julia Miller, Book Conservator in Private Practice and Independent Scholar, on Wednesday, 7 March from 3:30-4:30 p.m. in the Byrd/Morris Seminar Rooms at the Mary and David Harrison Institute for American History, Literature, and Culture at the Albert and Shirley Small Special Collections Library

A reception follows each lecture at the Rare Book School, 116 Alderman Library.  For more information contact Amanda Nelsen at

Legal Historians in the New York Times

Hendrik Hartog discusses his new book, Someday All This Will Be Yours, in Fred Bernstein's "New Old Age" blog.  Mary Dudziak's op-ed piece, which draws upon her argument in War Time, is here.

Law and History Workshop, Tel Aviv University

The Yigal Arnon Law & History Workshop of the Buchmann Faculty of Law at Tel Aviv University has announced its Spring 2012 schedule. It meets Thursdays 15.00 - 16.30, in the Minkoff Building, Room 17. The Workshop's moderators are Professor Leora Bilsky, Professor Ron Harris, and Dr. David Schorr.

March 22 Yael Braudo, Tel Aviv University Faculty of Law
Striving for women's autonomy within the family: The involvement of Israeli women’s organizations in the legislation of the Spouses (Property Relations) Law

March 29 Ariela Gross, University of Southern California Law School
From the streets to the courts: Doing grass-roots legal history of conservatism and race

April 19 Henry Rousso, Institut d’Histoire du Temps Présent, CNRS
Competitive narratives: The Papon trial

May 3 Seán Donlan, University of Limerick School of Law
Hybridity and diffusion in Spanish West Florida, c. 1803-1810

May 10 Ely Aharonson, Haifa University Faculty of Law
"Law to him is only a compact between his rulers": The criminalization of violence against slaves in the colonial and antebellum periods

May 17 Barbara Welke, University of Minnesota Department of History
The Cowboy Suit Tragedy: Owning hazard in the modern American consumer marketplace

May 31 Laura Jockusch, Institute of Contemporary Jewry, Hebrew University
The Jewish People’s advocate? The World Jewish Congress and retributive justice in postwar Germany

June 7 Jessica Marglin, Princeton University Department of Near Eastern Studies
In the courts of the nations: Jews and legal pluralism in nineteenth-century Morocco

June 14 Yael Berda, Princeton University Department of Sociology
Categorizing populations – forms, spaces, and emergencies: the mundane administrative legacies of colonial rule in India and Israel  

The Bracero History Archive

The current proposals for a guest worker program are not the first time lawmakers have tried to utilize foreign labor.  Indeed, from 1942 to 1964, millions of Mexican migrant workers came to the United States through the Bracero Program.  Initially spurred by the rise in demand at the outset of the World War II, the Bracero Program facilitated tremendous growth in American agriculture and to a smaller extent, the railroad industry.  The Bracero History Archive has assembled over 3,000 items, which breathe life into an often-forgotten part of American history.  The jewel of the archive is the collection of oral histories, which illuminate the everyday struggles of life as a bracero.  Contributors, often family members of the braceros, post to the archive with stories and commentaries about their family and how the Bracero program impacted their lives.  For example, the son of a migrant worker recounts how on especially cold days, he would awake to a loud horn and the bustle of vehicles as the workers hurriedly tried to warm the lemon groves to keep the lemons from freezing.  The collection reveals that the program was heavily documented (e.g. identification cards, registration forms, etc.), which offers a picture of historical legal immigration that is often obscured in contemporary political discourse.  The archive also contains a myriad of photographs of braceros and their families, imbuing a human element to the history of immigration in the U.S.

Wednesday, February 15, 2012

UVA's Elwood Oral History Project on Civil Rights Lawyers

We note a recently posted press release from the University of Virginia on an important oral history project relating to civil rights lawyers.  It commences:
In March 1985, civil rights leader and former Howard University president James M. Nabrit did an extended interview for an oral history project led by then-University of Virginia English professor William Elwood.

Cigar in hand, Nabrit - a former NAACP lawyer who worked with Thurgood Marshall and others to fight segregation - recalled the series of legal challenges both before and after the landmark Brown v. Board of Education decision in 1954.

William Elwood
"We tried cases all over the country. Everywhere: north and south and east and west," he said. "And we won some and we lost some. But the people - our people - never deserted us."

That 114-minute discussion, originally shot on U-matic videotape, is one of 86 interviews with prominent civil rights lawyers and others that are now restored and streaming online, thanks to the recent completion of a nearly decade-long project by the U.Va. Library.

The William Elwood Civil Rights Lawyers Project tells the legal history of the civil rights struggle. The online interviews, which filled 273 tapes left to the library, are available through the library's Virgo service. "It's primary source material that students, scholars and even documentarians can use," said Leigh Rockey, a preservation reformatting specialist in the library. "These are firsthand accounts of this important history."

Cushman on the Hughes-Roberts Visit

Barry Cushman has posted The Hughes-Roberts Visit, which is forthcoming in the Green Bag 15 (2012). It questions what has remained, despite the problematic nature of the source, one of the strongest pieces of evidence that Hughes was intent on moving the Court leftward (that is, back toward the political center) in the 1936 Term.
In the 1936 case of Morehead v. New York ex rel. Tipaldo, Justice Owen Roberts voted to invalidate New York's minimum wage law for women. The following spring, Roberts joined the majority in upholding Washington State's minimum wage statute. How best to account for this "switch" is a central preoccupation of New Deal constitutional history. In recent years, a number of scholars have called attention to a visit that Chief Justice Charles Evans Hughes and his wife made to Roberts' Pennsylvania farm in the summer of 1936, in the wake of the public firestorm following the announcement of the Tipaldo decision. As Mrs. Roberts reported to her good friend, Secretary of Labor Frances Perkins, Hughes and Roberts were engaged in nearly constant conversation throughout the afternoon, the evening, and the following morning of the 24-hour visit. We do not know what the subjects of those conversations were. Nevertheless, some have suggested that Hughes may have been trying to persuade his junior colleague of two things: first, that the recent spate of decisions invalidating various economic programs had made the Court as an institution unpopular and vulnerable to attack; and second, of the consequent need for Roberts to support economic and social welfare legislation that would be challenged before the Court in the coming term. On this view, it may well have been the Chief Justice's persuasive efforts that brought about Roberts' change of position in 1937.

This story has considerable intuitive, human appeal, but it appears to suffer from a serious flaw. For the transcript of the Columbia Oral History Project interview with Secretary Perkins, which is the lone primary source upon which this account purports to rely, seems clearly to place the visit and the conversations in question not in the summer of 1936, but instead during the summer of 1935. If that placement is correct, then Hughes visited Roberts before Roberts cast his vote in Tipaldo; before both Hughes and Roberts voted to invalidate the Agricultural Adjustment Act of 1933 in United States v. Butler (1936); and before both Hughes and Roberts voted to invalidate provisions of the Bituminous Coal Conservation Act of 1935 in Carter v. Carter Coal (1936). Thus, were one tempted to draw inferences about the content of the discussions that Hughes and Roberts had during the visit, those inferences would be quite different from those suggested by scholars placing the visit in 1936.