Friday, February 28, 2014

Roundup of Bernard Hibbitts's Posts

Let me join Karen in thanking Bernard Hibbitts for as interesting a series of posts as any put up in the history of Legal History Blog.  Here they are in order:

Who Do We Think We Are?: Teaching the History of Lawyering

Ancient Lawyers

Lawyering Inside and Out
A Fourteenth-Century Scamblogger?

Coming to America: Lawyers, Exploration and Colonization

Teaching [American Lawyering History] While Canadian

American Lawyer Emigrants: Loyalists and Confederates

Due South: Canadian Lawyers in the United States

Martial Lawyers

Missionary Man: William Sprague and the Correspondence Law School

Lawyers: Once More, With Feeling(s)

Of Lawyers and Lifeboats

Of Lawyers and Lifeboats

Nova Scotians like myself are all too familiar with lifeboats. From our fishing villages and lighthouse stations they and their crews have long put to sea in all manner of weather to rescue the wrecked, the distressed, and the drowning. On more occasions than we'd prefer to remember, other lifeboats have come to our shores, carrying their tragic cargo of survivors from ships sunk in horrific storms or smashed to bits on coastal shoals. Lifeboat work is in many respects grim, but at the end of the day it's life-affirming. Going out or coming in, lifeboats save souls.

In its own academic way, lawyering history is also about saving souls. To me, one of the most exciting and satisfying aspects of teaching, researching and writing in this area over the last four years has been the chance I've had to encounter hundreds of fascinating and largely forgotten individuals who "lawyered", if you like, in a range of cultures over more than two thousand years. This is not to reduce history to biography or to say that other things like ideas, political events, economic trends or social circumstances don't matter. Of course they do. But history - be it lawyering history or legal history, or any other type of history - is ultimately about people, and I think we've done ourselves a disservice by looking the other way and largely ignoring or treating as incidental most of the men and women who have actually made law what it is. It's high time that we rescued lawyers like John Gower, John Rastell, Fyler Dibblee, John Breckenridge, Catharine Van Valkenburg Waite, William Sprague, George Wingate, Cyrus Ching, Phelan Beale, Roy Humphrey and others (mentioned in these posts and not) from the oblivion to which we've effectively consigned them. It's not just that we've overlooked them as individuals in some hypothetical lawyering history that's simply gone in other directions. It's much worse than that. We've overlooked them as an entire group.

But lawyering history isn't just about people in the past. It also addresses people in the present. Today's legal profession seems lost, beset by overwhelming economic, technological and social challenges. Contemporary lawyers are unsure of where they're going and even of what's going to become of them as a collectivity over the next few decades. In this context professional amnesia doesn't help. If lawyers knew who they were - if we told them - maybe they could get their bearings and face the future with greater confidence. I think many lawyers yearn for this kind of guidance and grounding. But we need not kow-tow to some puffed-up sense of professional pride. Perhaps a better understanding of their history would encourage lawyers to take greater responsibility for their current plight. Perhaps they would learn from their failures as well as their successes. Perhaps they would recognize their weaknesses as well as their strengths. Perhaps they would gain humility in being reminded of their humanity. Perhaps, ultimately, they would reject panic in favor of perspective.

New Release: Neff, "Justice Among Nations"

New from Harvard University Press: Justice Among Nations: A History of International Law (Feb. 2014), by Stephen C. Neff (University of Edinburgh). A description from the Press:
Justice among Nations tells the story of the rise of international law and how it has been formulated, debated, contested, and put into practice from ancient times to the present. Stephen Neff avoids technical jargon as he surveys doctrines from natural law to feminism, and practices from the Warring States of China to the international criminal courts of today.
Ancient China produced the first rudimentary set of doctrines. But the cornerstone of later international law was laid by the Romans, in the form of natural law—a universal law that was superior to early laws and governments. As medieval European states came into contact with non-Christian peoples, from East Asia to the New World, practical solutions had to be devised to the many legal quandaries that arose. In the wake of these experiences, international legal doctrine began to assume its modern form in the seventeenth and eighteenth centuries.
New challenges in the nineteenth century encompassed the advance of nationalism, the rise of free trade and European imperialism, the formation of international organizations, and the arbitration of disputes. Innovative doctrines included liberalism, the nationality school, and solidarism. The twentieth century witnessed the formation of the League of Nations and a World Court, but also the rise of socialist and fascist states and the advent of the Cold War. Yet the collapse of the Soviet Union brought little respite. As Neff makes clear, further threats to the rule of law today come from environmental pressures, genocide, and terrorism.
A few blurbs:
Justice among Nations is by far the best general survey of the history of international law to date. It will be mandatory reading for both students and scholars in the field.—Randall Lesaffer
Like Vattel’s 1758 Law of Nations, this sparkling and intelligent history is intended for a broad audience. Vattel reached his audience: George Washington and other Founding American Fathers are known to have possessed copies. Their vision for the new United States in the world was plainly influenced by it. Neff’s Justice among Nations refreshes Vattel for our time and our even more pressing need to understand what international law is and what it can accomplish for our common humanity.—Mary Ellen O’Connell
More information is available here.

Thursday, February 27, 2014

Lawyers: Once More, With Feeling(s)

Lawyers like to think of themselves as a super-human lot. Dedicated to their clients and their causes, they take pride in performing their duties regardless of personal circumstances and difficulties; at bar meetings, young lawyers today are literally exhorted to be "superheroes". The historiography of the legal profession (such as it is) reflects this self-perception. To this point it has largely been written as a record of organizational, structural and conceptual challenges and developments. We have been told what lawyers did and what lawyers thought, but one aspect of lawyers' experience - perhaps the most human one - is mostly missing. We have not been told what lawyers felt.

Now this is a remarkable omission at a time when the contemporary legal press (plus even mainstream media like CNN) are talking about unhappy, depressed and even suicidal lawyers. It is also unfortunate in a period when so many members of the population at large are obviously alienated from members of the legal profession, regarding them as disconnected, heartless, and even fundamentally inhuman (thus the proliferation of lawyer jokes depicting lawyers as lizards and snakes). Maybe exploring the historical reality of lawyers' feelings, and their reactions to those feelings, would help us acknowledge and better manage a critical part of our lives that we have hitherto sought to suppress. Maybe if we shared those stories with others outside our profession it would help them understand that lawyers are people too.

So where do we begin? Lawyers' emotions have inevitably left their mark on the entire sweep of lawyering history, but there are certain periods, at least in the record of American lawyering, when they come to the professional fore and leave a distinct imprint. One of these periods is (no pun intended) the Great Depression. Prior to a few years ago there was remarkably little written about the plight of many practicing lawyers during these years. Since 2008, some people seem to be taking more interest. The diary of one Depression-era lawyer, Benjamin Roth, was published in 2010. Although Roth wrote about many subjects apart from law practice in his journal, he obviously knew things were not going well in his profession, and that left him troubled: "It is very disagreeable as well as unprofitable to practice law these days. The work is of a destructive nature such as foreclosure, receivership and bankruptcies... As to fees – well, they have shrunk beyond recognition and in some cases we are offered pass books on closed banks, etc.."

Morin, "The Discovery and Assimilation of British Constitutional Law Principles in Quebec, 1764-1774," and More

Michel Morin (University of Montreal) has posted three new essays on SSRN.

"The Discovery and Assimilation of British Constitutional Law Principles in Quebec, 1764-1774" appears in Volume 36 of the Dalhousie Law Journal (2013). Here's the abstract:
This paper examines information available to Francophone persons regarding their rights as British subjects prior to the adoption of the 1774 Quebec Act, as well as the use they made of these concepts. The bilingual Quebec Gazette reported on legal developments in France, England, and the American colonies, including challenges to the traditional vision of governmental authority. It discussed the right to be taxed by elected representatives and the conflicts between the metropolis and the colonies. Debates about these issues are thought to have appeared in Quebec only after the beginning of the American Revolution, but they circulated earlier. Educated members of the Francophone elite sought more specific information about the new legal system. Many of them were eager to obtain an Assembly, if Catholics could sit in it. This was considered one of their rights as British subjects, together with the continuation of property rights guaranteed by the Capitulation of 1760 and, by extension, inheritance and matrimonial laws. In the end, requests for an assembly were shelved in order to obtain religious equality. Thus, British officials were free to declare that Canadians had no interest in such an institution, creating a lasting and misleading impression.
"Blackstone and the Birth of Quebec's Legal Culture 1765-1867" will appear in Re-Interpreting Blackstone's Commentaries A Seminal Text in National and International Contexts, edited by Wilfrid Prest (Hart Publishing, 2014 Forthcoming). The abstract:
Blackstone’s commentaries were soon translated in French and became, prior to the French Revolution, the principal reference on British constitutional and criminal law. In Quebec, his work was known as early as 1767 and was used to buttress arguments for the preservation of French civil law. He was quoted in court proceedings and in a draft petition. In 1773, François-Joseph Cugnet sent documents concerning these issues to Blackstone, who forwarded them to the British Government. This probably convinced the ministry that the francophone population had no objection to English Criminal Law and to testamentary freedom. Thus, the Quebec Act of 1774 expressly preserved these parts of English Law, while restoring the laws in force prior to the Conquest concerning “property and civil law”. French versions of the Commentaries were available in Quebec as early as 1784. After the creation of an Assembly, politicians who opposed the Government and wanted to assimilate the provincial Assembly to the British House of Commons regularly quoted Blackstone. His Commentaries, which had benefitted from an improved translation by Chompré in 1822, remained a model for the first legal authors in Quebec. He clearly was part of Quebec’s legal culture and facilitated the understanding of arcane rules of English Law, both because of the clarity of his writings and of various translations of his work made in Europe.
"Fraternité, Souveraineté Et Autonomie Des Autochtones En Nouvelle-France" (Fraternity, Sovereignty and Autonomy of Aboriginal Peoples in New France) appears in Volume 43 of Revue générale de droit (2013). The English language Abstract:
During the 17th and 18th centuries, the legal principles which formed the framework for relationships between the Algonquians peoples of the Saint-Lawrence Valley and the French were generally well understood by both parties. Founded initially on the concepts of friendship, alliance or fraternity, they assumed the existence of independent nations which had their own decisional systems and customs, as well as local or regional chiefs enjoying strong authority in practice. From 1628 to 1663, only new converts were granted the status of subject of the French king; from 1664 to 1674, only their descendents qualified. Afterward, the situation was ambiguous. However, Christian communities living close to the French cities enjoyed a wide autonomy and seldom renounced it. They were sometimes called children of the king, because they unconditionally supported him at the military level. During the second half of the 17th century, nations which had not become Christian also bestowed paternal status on the French king, but this socio-economic dependency did not call into question their independence, something the French understood very well.

Wednesday, February 26, 2014

CFP: Law and Revolution in Ireland

[Via H-Law, we have a call for "Law and Revolution in Ireland: Law and Lawyers before, during, and after the Cromwellian Interregnum."  Dr. Coleman A. Dennehy, Department of History, NUI Maynooth, writes:]

I am writing to inform you of a Call For Papers for a conference on Irish legal history in the seventeenth century. The conference will explore the theme of law and lawyers in Ireland before, during, and after the Cromwellian Interregnum.

The 1641 rebellion, subsequent wars, and the political change that followed were to have a profound and lasting impact on the island for generations.  Recent historiographical trends have seen great strides made in our understanding of the military, political, and religious aspects of this upheaval, but despite some notable work already undertaken, the role of lawyers and the law in this general crisis still warrants further attention.

How consistent with the law and the constitution of Ireland was government policy and its main actors in the decade before the rising? What role did the legal community play in the wars and political dynamics of the period?  How did the law adapt to the new political realities in Ireland after 1649, and how was it used to effect a restoration of peace and stability after 1660?  To what extent do these changes reflect the situation in Scotland and England at the time?

These questions and others will be considered in a conference to be convened in late November 2014.  This conference is being held in the House of Lords, Bank of Ireland, College Green, Dublin in conjunction with the Irish Legal History Society Winter Discourse on 28 November, which will also address the topic.

For those wishing to present at the conference, a short description of your paper, academic affiliation (if any), along with relevant contact information, should be sent to the convenor of the conference no later than May 2014.

All correspondence should be addressed to: Dr. Coleman A. Dennehy, Department of History, NUI Maynooth 

Missionary Man: William Sprague and the Correspondence Law School

Modern legal education, we are told, is in crisis. Tuition costs and debt loads are rising to unbearable levels. Remunerative law firm jobs are scarce for law school graduates. University administrators and corporate "thought leaders" are extolling the virtues of radical "disruptions" like MOOCs (Massive Open Online Courses) that would leverage the latest internet technology to facilitate large-scale instruction at unprecedentedly low cost. Many observers agree that we cannot continue to educate young lawyers as we have for the last 125 years or so, ever since the national triumph of Harvard's case method.

Late nineteenth century legal education faced similar challenges. For a variety of reasons I won't go into here, apprenticeship was dying as a workable method of professional preparation. Law schools were multiplying and restructuring to take up the slack, but they were financially and physically inaccessible for many. The times seemed to call for a relatively open, flexible and inexpensive method of mass legal instruction that would capitalize on Americans' legendary personal initiative and (in the great age of the railroads) perhaps even their country's surging technological prowess.

Enter William C. Sprague, a young and savvy Ohio-born lawyer with a very big idea. Before attending the Cincinnati Law School, Sprague, the son of a Congressman, had graduated from Baptist-run Denison University. At Denison one of his professors was a very young and cherubic William Rainey Harper. Fired by both academic ambition and personal missionary zeal, Harper was already experimenting with teaching Hebrew to non-resident students by mail. The surprisingly successful effort impressed Sprague, who kept in touch with Harper after they both left Denison. Sprague headed to Cincinnati and then west to practice with an older lawyer before moving back east to Detroit, Michigan, where he set up his own practice with a small legal publishing enterprise on the side. Harper meanwhile went to Yale, became a leader of the Chautauqua movement, and then of course ended up being selected by John D. Rockefeller to become the first president of the new University of Chicago in 1891 (included in Harper's original plans for Chicago was, by the way, a significant "university extension" arm that would teach by correspondence).

Sprague was doing well, but he thought he could do better. He was aware of the limitations of contemporary law office training for lawyers; having already helped a student in another state pass his bar exam, he thought his method could be generalized. In 1889, remembering Harper's example, he hit upon the notion of organizing a stand-alone correspondence-based law school that would teach law by mail. It would be, as he saw it, the first commercial correspondence school in the world. From his Midwest base in Detroit, high-speed rail links would carry his texts and lessons out, and bring student papers back. He could launch his program as a spin-off of his publishing house; after all, he was already producing legal texts, and the formulation of supplementary materials could not be that hard. If correspondence instruction could work for a subject as obtuse as Hebrew, why not for Contracts? Sprague was arguably inspired not just by the prospect of monetary gain but also by his own brand of missionary dedication. He was a favorite Detroit Sunday School instructor in an age of great Sunday School instructors, and he seems to have seen law as something of a civilizing and perhaps even unifying social gospel in the latter years of the Gilded Age. I think it was no coincidence that when the "Sprague Correspondence School of Law" launched in 1890, its defining symbol, used in virtually all its advertising through its first decade of existence, was a cherub at the shoulder of a man learning the law.

CFP: A History of Penal Regimes in Global Perspective, 1800-2014

The Weatherhead Center for International Affairs at Harvard University has issued the following Call for Papers
Harvard University
March 5-7th, 2015

The rise of the prison has been an important historical development of the modern era. Over the past two hundred years, the growth of prisons has ticked upward. Confinement has come to dominate national penal regimes, increasingly replacing bodily harm as a primary form of punishment. Prisons now span the globe. While rates of incarceration have varied widely over the past two centuries across nations and over time, the last third of the twentieth-century witnessed an upward trend from the United States to Brazil and China. In the United States, prisons have become a pressing social problem with the highest number of its citizens behind bars of any country in the world.

On the occasion of the 40th anniversary of Michele Foucault’s Discipline and Punish: The Birth of the Prison (1975) the influential book that first opened a new line of inquiry into the study of the prison, the Weatherhead Initiative on Global History is planning a conference to spark a global conversation among researchers in the social sciences and humanities at work on the history of distinctive penal regimes. We are interested in exploring the diversity of regimes of punishment, and especially the prison as an institution within them, the paths along which they changed, and—most especially—the connections between these changes in different parts of the world. The conference is open to papers that address a variety of themes from the philosophical underpinnings of systems of punishment, the character and function of regimes of incarceration and penality in colonial, liberal, neo-liberal and authoritarian state systems, and the distinctive cultures of confinement that have emerged within these varied systems. We hope to balance broadly comparative papers and revealing case studies. We are seeking proposals from scholars at all stages of their academic career, including graduate students. We are particularly interested in forging a global discussion of these topics, and therefore especially welcome contributions from outside North America and Europe.

The Weatherhead Initiative on Global History is a recently created center that responds to the growing interest at Harvard in the encompassing study of global history. The Initiative is committed to the systematic scrutiny of developments that have unfolded across national, regional, and continental boundaries as well as to analysis of the interconnections—cultural, economic, ecological and demographic—among world societies. For further information about WIGH and the conference, please consult our website at

Proposals should include an abstract of no more than 500 words and a brief curriculum vita. Please email your submissions to Jessica Barnard ( by May 15, 2014 with the heading “Penal Regimes Conference.” Travel expenses (economy) as well as accommodation will be covered.
 Hat tip: @adamsigoodman

Tuesday, February 25, 2014

DC Circuit Historical Society Event Postponed

On Saturday we noted that the Historical Society of the History of the District of Columbia Circuit was sponsoring an event to commemorate the 50th Anniversary of the Civil Rights Act of 1964 on Wednesday, February 26.  It has now been rescheduled to Wednesday, March 5.

The Cromwell Articles Prize

[Via H-Law we have the following announcement.]

The William Nelson Cromwell Foundation offers an annual prize of $2,500 for the best article in American legal history published by an early career scholar.  Articles published in 2013 in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the ASLH's Erwin C. Surrency Prize and will not be considered for the Cromwell Article Prize.

The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History.  This subcommittee invites nominations for the article prize.  Authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed.  Please send a brief letter of nomination, along with an electronic or hard copy of the article, by May 31, 2014, to the subcommittee chair, Alfred Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC  27599-3380 or via email,  Other members of the articles subcomittee of the Cromwell Prizes Advisory Committee are Daniel W. Hamilton of the University of Nevada, Las Vegas, Michelle McKinley of the University of Oregon, and Kristin A. Olbertson of Alma College.

Lefstin on the History of "Inventive Application"

Jeffrey A. Lefstin, University of California Hastings College of the Law, has posted Inventive Application: A History.  Here is the abstract:
As the Supreme Court prepares to take up yet another case on the doctrine of patent-eligible subject matter, the Court will again be called on to draw the line between unpatentable fundamental principles and patentable inventions. The most significant question facing the Court is not whether software is patentable, but whether that foundational boundary requires an “inventive application,” as suggested by the Court in Mayo v. Prometheus. Both Prometheus and its intellectual forebear, Parker v. Flook, drew this notion in part from Neilson v. Harford, the famous “hot blast” case decided by the Court of Exchequer in 1841.

But an examination of Neilson reveals a different story than the one told by the Supreme Court. Neilson was indeed the starting point from which 19th-century courts, both English and American, drew the boundary between discovery and invention. But the patent in Neilson was not sustained because it represented an inventive application of the patentee’s discovery. It was in fact sustained because the patentee’s application was entirely conventional and routine. Nineteenth century English courts and commentators understood Neilson and its companion cases to teach that while discoveries in the abstract were not patentable, a practical application of a new discovery was patentable regardless of the novelty or inventiveness of the application.

The same understanding prevailed in the United States. Neilson remained the starting point for discussions of patent-eligible subject matter, patent scope, and the patentability of processes, but 19th century case law did not demand inventive application. The 19th century treatise-writers addressed the question directly, and reached the same conclusion as their English counterparts: practical application of a discovery sufficed. And until 1948, the weight of American authority agreed.

It was then that Justice Douglas, in Funk Brothers v. Kalo Inoculant, first drew boundary between discovery and invention at inventive application. Largely forgotten today, the lower courts’ implementation of Funk is a cautionary tale of the patents that could be invalidated if the Court maintains inventive application as a test of patent eligibility.

Political Polarization: The View from the Miller Center

The Miller Center for Public Affairs at the University of Virginia is about to commence a very interesting colloquium series, Parties, Partisanship, and Polarization:
There is a growing sense today that the American political system is inadequate at addressing the major foreign and domestic challenges facing the nation. Growing partisan polarization, abetted by the rise of highly ideological interest groups and a divided mass media, is routinely cited as a primary cause of the nation's ills.

Yet, despite considerable interest in the causes and consequences of partisan polarization, we know very little about how these developments relate to previous episodes of partisan rancor in American history; how they resonate beyond the Washington Beltway; and how they are likely to affect important constituencies, such as Hispanic voters, who are likely to have a profound influence on future party alignments.

This themed colloquium series, organized by the Miller Center's Sidney Milkis, will probe these questions and shed important light on the difficult yet indispensible connection between partisanship and American democracy.

Latino Conservatives: Right Wing Aesthetics and Representative Claims
Friday, February 28           12:30-2:00 p.m.
Cristina Beltrán, associate professor of social and cultural analysis at New York University and author of The Trouble with Unity: Latino Politics and the Creation of Identity.

The Breakdown of Representation in American Politics: A Synopsis
Thursday, March 20          12:30-2:00 p.m.
Morris Fiorina, Wendt Family Professor of Political Science at Stanford University and a senior fellow at the Hoover Institution.

Polarization in Historical Perspective
Friday, April 25            12:30-2:00 p.m.
Bill Kristol, founder and editor of the Weekly Review, and William A. Galston, senior fellow at the Brookings Institution.

These events will take place in the Miller Center's John W. and Rosemary P. Galbraith Forum Room. All colloquia will be webcast live and archived here

Phillips Awarded Mundell Medal

Congratulations to Jim Phillips, University of Toronto, for his receipt of the David Walter Mundell Medal, awarded under the auspices of Ontario’s Ministry of the Attorney General, to “those who have made a distinguished contribution to law and letters. Each year, the award recognizes a legal writer whose literary craftsmanship and clarity of expression work together to make ideas come alive.”

Lawrence on 19th-Century Child Enslavement

Benjamin N. Lawrance, Rochester Institute of Technology, has posted 'Your Poor Boy No Father No Mother': 'Orphans,' Alienation, and the Perils of Atlantic Child Slave Biography, which appeared in Biography: An Interdisciplinary Quarterly 36 (Fall 2013): 672-703.  Here is the abstract:    
Using the life of the nineteenth-century Sierra Leonean child slave and interpreter at the trials of La Amistad James Kaweli Covey as a primary vehicle, this article explores the social and political context embedded in Atlantic child slave biography, such as claims about family, parentage, and orphanhood, in narratives of child enslavement. I examine Covey’s claims of orphanhood and the fictive kinship relations Covey marshaled during his Atlantic passages as examples of the struggle against alienation to "remake" his political and social being. Whereas we shall likely never know the fate of Covey’s biological kin, our interest should not end there. More so than adult slaves, children deployed kinship language and idioms as part of the larger struggle to forge and preserve relationships with benefactors. Although kinship claims are an experience common across slave populations, a focus on child claims draws attention to the extreme vulnerability of child slaves and their more pressing need for patron/client relationships.

Notwithstanding the fact that Covey’s passage through multiple instances of enslavement and freedom appears quite exceptional, data from the Amistad captives suggest that his familial context and path to enslavement were both relatively ordinary for a male West African child, c. 1820-40. Drawing on contemporaneous sources, I move beyond the metaphorical and fictional kinship framework within which Covey’s narrative resides, to speculate about the real biological and familial context of Covey via data he himself assisted in collecting. Covey’s statements and strategies point to a child’s view of the African family, and one that is sensitive to some of the perils of Atlantic child slave biography, such as the frequent inconsistencies and contradictions in child memories of trauma. Set against the generalized cultural context, Covey’s multiple narratives and claims suggest a deliberate struggle to resuscitate family as part of a struggle against alienation via fictional kinship.

Martial Lawyers

Contemporary American lawyers have an awkward relationship with war and physical violence. While some metaphorically consider (and even advertise) themselves as "fighters" for their clients, many prefer to depict themselves publicly as peacemakers, proponents of the rule of law over force. Few civilian lawyers these days have had any contact with the military or combat; there are, of course, numerous lawyers in the armed forces, but their role is limited to providing legal advice to battlefield commanders and framing legal policy within the military. Except in absolute extremis, it's not contemplated that they would ever take up arms themselves.

While we might take some comfort in this modern semi-pacifistic reality, the historical fact remains that since the days of colonization, lawyers in American society have been primary wagers of war. In his classic Yale Law Journal essay "Violence and the Word" published almost thirty years ago, Robert Cover wrote that "legal interpretation takes place in a field of pain and death". He was referring primarily to sentencing and punishment, but it turns out that, to paraphrase Shakespeare in The Tempest, he spoke "truer than he purposed". Considered as a professional group apart from career soldiers, lawyers over the last four hundred years of American history have been singularly prominent as military officers, militia leaders, revolutionaries, filibusterers (in the original sense of the term as private violent land-grabbers), paramilitary intelligence agents and civilian war managers (commanders-in-chief and cabinet officials responsible for the military). This is not just another way of saying that lawyers in American history have done much more than simply practice law. Rather it is to suggest that both lawyering and war-waging have been fundamental and mutually reinforcing aspects of the American experience. In no other common law jurisdiction - perhaps in no other jurisdiction, period - has the linkage between lawyering and war-waging been so massive and so clear. Yet we have missed it.

New Release: Holloway, "Legal Fictions: Constituting Race, Composing Literature"

New from Duke University Press: Legal Fictions: Constituting Race, Composing Literature (2014), by Karla FC Holloway (Duke University). A description from the Press:
In Legal Fictions, Karla FC Holloway both argues that U.S. racial identity is the creation of U.S. law and demonstrates how black authors of literary fiction have engaged with the law's constructions of race since the era of slavery. Exploring the resonance between U.S. literature and U.S. jurisprudence, Holloway reveals Toni Morrison's Beloved and Charles Johnson's Middle Passage as stories about personhood and property, David Bradley's The Chaneysville Incident and Ralph Ellison's Invisible Man as structured by evidence law, and Nella Larsen's Passing as intimately related to contract law. Holloway engages the intentional, contradictory, and capricious constructions of race embedded in the law with the same energy that she brings to her masterful interpretations of fiction by U.S. writers. Her readings shed new light on the many ways that black U.S. authors have reframed fundamental questions about racial identity, personhood, and the law from the nineteenth into the twenty-first centuries. Legal Fictions is a bold declaration that the black body is thoroughly bound by law and an unflinching look at the implications of that claim.
A few blurbs:
"In this wonderful book, Karla FC Holloway illuminates legal texts with techniques and insights derived from literary criticism and offers new interpretations of fictional works by bringing to bear upon them knowledge derived from a deep immersion in legal studies. This is, in short, a remarkable example of productive interdisciplinarity from which all sorts of readers will learn a great deal."—Randall Kennedy
"Legal Fictions represents a culmination (if not the culmination) of Karla FC Holloway's rich corpus of criticism and theory. As a consideration of law and literature in the construction of race and legal fictions, it is an original intervention sure to inform understandings of, and scholarship about, both. This book is Holloway at her best: intelligent and thoughtful, fully in command of the critical vocabularies that she introduces, and thoroughly knowledgeable about the fields that she traverses."—Farah Jasmine Griffin
 More information, including the TOC, is available here.

Monday, February 24, 2014

Madden on Historical Efficiency Themes in Tort Law

M. Stuart Madden, formerly of Pace University School of Law, has published Efficiency Themes in Tort Law From Antiquity in Adelaide Law Review 34 (2013): 231.  Here is the abstract:
As human societies developed, a bedrock necessity was the identification of expectations and norms that protected individuals and families from wrongful injury, property damage, and takings. Written law, dating to the Babylonian codes and early Hebrew law emphasized congruent themes. . Such law protected groups and individuals from physical or financial insult, depredation of the just deserts of labor, interference with the means of individual livelihood, and distortion of the fair distribution of wealth.

Hellenic philosophers assessed the goals of society as being the protection of persons and property from wrongful harm, protection of the individual’s means of survival, discouragement of self-aggrandizement, and the elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions of forced takings and unjust enrichment, and went so far as to include rules for ex ante contract-based resolution of potential disagreement. Unwritten customary law within the Western world and beyond perpetuated these tenets, based at once in morality and aversion to wasteful behavior.

In addition to the corrective justice-morality underpinnings of the law governing civil wrongs, or torts, the common law has nurtured rules implicating economic and efficiency themes. Efficiency themes enjoy a conspicuous place in modern tort analysis: from the risk-utility analysis and implicit social cost evaluations of numerous common law courts in accident cases, to the translation of the negligence formula of Judge Learned Hand into a basic efficiency model, to the increasing number of judicial opinions that rely explicitly upon economic analysis.

Law Books: History & Connoisseurship

[Via H-Law, we have the following announcement from Mike Widener, Rare Book Librarian & Lecturer in Legal Research at the Lillian Goldman Law Library, Yale Law School.]

Registration is open for my Rare Book School course, "Law Books: History & Connoisseurship," taking place July 28 - August 1, 2014 at the Yale Law School Library in New Haven, Connecticut. The course is one of three that the University of Virginia's Rare Book School will offer that week on the Yale University campus.

For the 2014 classes, Rare Book School is using its new online application site, myRBS. Through myRBS, you will be able to apply for a course, gain access to and edit your contact information, view your course history and Friend status, and more. More details can be found on the RBS Application & Admissions page.

The description, preliminary reading list, and student evaluations for Course C-85, "Law Books: History & Connoisseurship," can be found here.  Enrollment in the course is limited to 12 students.

I am happy to answer questions about the course itself.  Questions about the registration process should be directed to Rare Book School staff.

Prakash on William J. Marbury

The Appointment and Removal of William J. Marbury and When an Office Vests, by Saikrishna Bangalore Prakash, University of Virginia School of Law, is out in Notre Dame Law Review 89 (2014): 199-251  Here is the abstract:
Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s delivery argument was a post-hoc rationalization, having nothing to do with his actions in March of 1801. John Adams’s midnight appointments incensed Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities. To Jefferson, the failure to deliver commissions to some of those appointees mattered not a whit. What seems to have been far more significant is his sense that the justices of the peace served at his pleasure. Acting on this belief, he simultaneously removed them all and recess appointed most of them, save for more than a dozen, including William J. Marbury. This Article also addresses whether William J. Marbury and the other midnight appointees who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of considering these theories, the Article discloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed the second theory, namely that appointments vest before the act of commissioning. Moreover, well before Marbury v. Madison, the Adams Administration likewise concluded that appointments could vest prior to any commission being issued or delivered. Despite this convergence, the Article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he appoints. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the grantee may decide the means of exercising it.

Due South: Canadian Lawyers in the United States

Some readers of the Legal History Blog may remember Due South, a Canadian crime series from the mid-1990s that ran for several years on CBS. It was about a Canadian Mountie who ended up working in Chicago, and it highlighted the conundrums of a pointedly stereotypical Canadian trying to get along in American society. It aired at a time when a new generation of Canadians, including lawyers and legal academics like myself, were trying their hand at living south of the border in a post-free trade/NAFTA legal environment that made the pursuit of cross-border professional careers easier than it had been for decades. Inevitably, the new "Canadian Americans" looked around for compatriots. Being historically-minded, I eventually decided to look back to see whether other Canadian lawyers had come to the US previously.

Frankly I wasn't expecting to find many, but then I found a few, and then a few more, and then more, and more! They were from the twentieth century, the nineteenth, and even the eighteenth. They came from all regions and provinces of Canada, and they surprisingly ended up in virtually all parts of the US (not just in border states). There were men and women. There were some with pre-existing family connections to the US, and some with none. There were political refugees and ambitious careerists. There were Canadian-born individuals who were brought across the border at a young age and grew up to be lawyers, and there were trained and experienced Canadian lawyers who for various reasons pulled up stakes and moved south. There were practitioners and academics. There were those who ostensibly cut ties with Canada when they left, and then there were others who either kept up their connection or eventually went home. But all of them inevitably brought with them Canadian experiences and Canadian attitudes. After several years of investigation, I and my research assistant Megan McKee (now a graduate student in history at McGill) have put together a spreadsheet that tracks some 800 Canadian legal expatriates of one sort or another from the late 1700s through the end of World War II. Our work is ongoing.

New Release: Arias & Marrero-Fente, eds., "Coloniality, Religion, and the Law in the Early Iberian World"

New from Vanderbilt University Press: Coloniality, Religion, and the Law in the Early Iberian World (March 2014), edited by Santa Arias (University of Kansas) and Raul Marrero-Fente (University of Minnesota). The Press explains:
From postcolonial, interdisciplinary, and transnational perspectives, this collection of original essays looks at the experience of Spain's empire in the Atlantic and the Pacific and its cultural production.
Here's the TOC:
Negotiation Between Religion and the Law
Santa Arias and Raul Marrero-Fente
Jose de Acosta: Colonial Regimes for a Globalized Christian World
Ivonne del Valle
Conquistador Counterpoint: Intimate Enmity in the Writings of Bernardo de Vargas Machuca
Kris Lane
Voices of the Altepetl: Nahua Epistemologies and Resistance in the Anales de Juan Bautista
Ezekiel Stear
Performances of Indigenous Authority in Postconquest Tlaxcalan Annals: Don Juan Buenaventura Zapata y Mendoza's Historia cronologica de la noble ciudad de Tlaxcala
Kelly S. McDonough
Translating the "Doctrine of Discovery": Spain, England, and Native American Religions
Ralph Bauer
Narrating Conversion: Idolatry, the Sacred, and the Ambivalences of Christian Evangelization in Colonial Peru
Laura Leon Llerena
Old Enemies, New Contexts: Early Modern Spanish (Re)-Writing of Islam in the Philippines
Ana M. Rodríguez-Rodríguez
Art That Pushes and Pulls: Visualizing Religion and Law in the Early Colonial Provinces of Toluca
Delia A. Cosentino
The Rhetoric of War and Justice in the Conquest of the Americas: Ethnography, Law, and Humanism in Juan Gines de Sepulveda and Bartolome de Las Casas
David M. Solodkow
Human Sacrifice, Conquest, and the Law: Cultural Interpretation and Colonial Sovereignty in New Spain
Cristian Roa
Legal Pluralism and the "India Pura" in New Spain: The School of Guadalupe and the Convent of the Company of Mary
Monica Diaz
Our Lady of Anarchy: Iconography as Law on the Frontiers of the Spanish Empire
John D. (Jody) Blanco
Epilogue: Teleiopoesis at the Crossroads of the Colonial/Postcolonial Divide
Jose Rabasa

Sunday, February 23, 2014

ASLH 2014: The Deadline Approaches

[Because the deadline of March 1 is approaching, we are posting this updated version of the Call for Papers for the 2014 Annual Meeting of the ASLH.]

American Society for Legal History Annual Meeting 2014: Call for Proposals

The 2014 meeting of the American Society for Legal History (ASLH) will take place in Denver, Colorado, November 6-8, 2014. The ASLH invites proposals on any facet or period of legal history, anywhere in the world. We also encourage thematic proposals that range across traditional chronological or geographical fields. The Program Committee will give preference to presenters who did not present at last year's meeting.

Travel grants will be available for presenters in need. These resources will nevertheless be limited, and special priority will be given to presenters traveling from abroad, graduate students, post-docs, and independent scholars.

The Program Committee welcomes proposals for both full panels and individual papers, though please note that individual papers are less likely to be accepted. Regarding panels, the Program Committee encourages the submission of a variety of proposals, including: traditional 3-paper panels (with a separate chair-commentator); incomplete panels lacking either one paper or a chair-commentator (whether 2-paper panels with a chair-commentator, or 3-paper panels without a chair-commentator), which the Committee will try to complete; author-meets-reader panels; and roundtable discussions.

Submission details can be found here. The deadline for submitting proposals is March 1, 2014. Proposals should be sent as email attachments to  Substantive questions should be directed to Joanna Grisinger ( or Mitra Sharafi (

Student Research Colloquium (to be held Nov. 5-6)

In 2014, the ASLH will host its inaugural Student Research Colloquium (SRC) in conjunction with its annual meeting.  The SRC will offer a small group of graduate and law students an opportunity to work intensively on their in-progress dissertations and law review articles with distinguished ASLH-affiliated scholars.  For details and for application information, please contact John Wertheimer (    

Preconference on Emerging Fields (to be held Thursday, Nov. 6)

A preconference on Medieval Legal Worlds will be held before the conference. For more information, contact Michael Grossberg (

Sunday Book Roundup

This week The Federal Lawyer adds a couple of interesting reviews, all found here. The first is a review of Clarence Darrow: Attorney for the Damned by John A. Farrell (Doubleday).
"In Clarence Darrow: Attorney for the Damned, John A. Farrell paints a brilliant portrait of the famous lawyer’s life. Going beyond the popular image of Darrow shaped by Spencer Tracy’s 1960 portrayal of a rumpled, free-thinking trial lawyer in “Inherit the Wind”—a fictionalized account of Darrow’s defense of John T. Scopes for teaching evolution—Farrell reveals a highly intelligent, compassionate, yet deeply flawed and difficult man. A preeminent litigator and a fervent defender of the underdog, Darrow was also not above stooping to unscrupulous means to win cases. He was, according to Farrell, willing to “employ any trick to save a client,” and he was twice tried for bribing jurors. Darrow’s personal life was no less complicated. Although long married to his second wife, Darrow was “a notorious rake,” according to Farrell—“a professed sensualist who took much pleasure from the chase, seduction, and act of love.”"
Also in The Federal Lawyer is a review of two First Amendment books, Floyd Abrams's Friend of the Court: On the Front Lines with the First Amendment (Yale University Press) and Ronald K. L. Collins's Nuanced Absolutism: Floyd Abrams and the First Amendment (Carolina Academic Press). The review focuses "largely on the controversial decision issued by the Supreme Court in Citizens United v. Federal Election Commission (2010), which ruled that corporations have a First Amendment right to spend unlimited amounts in political campaigns. Abrams devotes considerable space to defending this decision."

There's lots on H-Net this week including a review of Saleem Badat's The Forgotten People: Political Banishment Under Apartheid (Brill Academic Publishers) about the "extra-judicial administrative process with no recourse to courts." There's also a review of Justin Buckley Dyer's Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press).
"Challenging contemporary scholarship, he argues that natural law and antislavery constitutionalism are not incompatible. His thesis builds on two key principles: 1) many Americans believed that slavery violated natural law, especially its immoral imposition of one man’s arbitrary authority over another, and 2) they believed the Constitution should be interpreted as consistent with the Declaration of Independence’s commitment to those natural-law principles of equality and liberty. Dyer examines the private and public rhetoric of judges, lawyers, statesmen, and orators who challenged slavery on constitutional grounds, revealing a tradition that championed the moral right to equality against the reality that fact, custom, and law protected slavery."

Saturday, February 22, 2014

Weekend Roundup

  • Kenneth Mack, Harvard Law School, was on the Charlie Rose Show on President's Day to discuss the history of the presidency.  View him here.  
  • Opportunities to observe the 50th Anniversary of the passage of the Civil Rights Act of 1964 in the Washington, DC, area (more or less) abound on Wednesday, February 26.  In the morning, the Miller Center for Public Affairs at the University of Virginia hosts Bob Moses, who will speak on the topic Fifty Years After Freedom Summer and the Civil Rights Act of 1964, from 11:00 a.m.-12:30 p.m. at the Center.  Then hop in your car and drive north for a program sponsored by the Historical Society of the DC Circuit that starts at 4:30.  Attorney General Eric Holder will be the principal speaker, with reflections by Deputy U.S. Marshal (ret.) Richard Kirkland Bowden.  The program will take place in the Ceremonial Courtroom of the E. Barrett Prettyman US Courthouse.
  • Alfred Brophy’s review of Brian Z. Tamanaha’s Beyond the Formalist-Realist Divide: The Role of Politics in Judging, in 92 Tex. L. Rev. 383-411, is here.
  • "The founding fathers and climate change"? The Environment, Law and History blog (run by David Schorr) highlights new work by Raphael Calel
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 21, 2014

Cockfield and Mayles's Long View of Taxation and Anglo-American Politics

Credit: Carol Highsmith/LC
Arthur J. Cockfield, Queen's University Faculty of Law, and Jonah Mayles have posted The Influence of Historical Tax Law Developments on Anglo-American Law and Politics, which appears in the Columbia Tax Law Journal 5 (2013): 40.  Here is the abstract:    
This article highlights the influence of historical Anglo-American tax law developments on the formation of new political institutions and laws. In critical periods of English and U.S. history, individuals rebelled against arbitrary royal taxes. In turn, they demanded new tax laws that became embedded in documents from the Magna Carta to the English Bill of Rights to the Declaration of Independence that promoted democratic constraints on the use of state power to assess and collect taxes. Over time, the idea that individuals are entitled to equal treatment under the law, and possess inalienable human rights, emerged in part as a result of these tax law developments. The discussion in this article supports the view that pragmatic concerns over property and taxation drove important English and American political and legal reforms.

Knapp on the Legal Counterrevolution of 1787

Aaron T. Knapp, a JD who is ABD in Boston University’s Department of History, has posted The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787.  It is forthcoming in the UC Davis Law Review 47 (2014).  Here is the abstract:    
This article asks whether a historically distinct constitutional “counterrevolution” took place in 1787-88. It concludes one did, but contends that neither economic interests, nor political ideology, nor general cultural trends in the decade after Independence, fundamentally impelled this counterrevolution’s leading figures. Rather, a counterrevolutionary jurisprudence did. At the heart of this jurisprudence lay a new constellation of attitudes about the relationship between law and coercion that, notwithstanding the enormous outpouring of scholarly commentary on the framing and ratification of the Constitution in the last century, has gone unappreciated by legal scholars and constitutional historians alike. The attitudinal transformation vis-à-vis coercion among reformers proceeded in two nested intellectual shifts -- the first discursive, the second positional -- which together form the basis for what I shall call the legal counterrevolution of 1787. The article’s historical analysis of the American constitutional founding through the prism of what leading Federalists styled “the coercion of law” exposes overlooked original understandings of the Supremacy Clause, the scope of Article III jurisdiction, and judicial review under the Constitution.

Price on the Origins of the Immigration-Public Health Divide

Polly J. Price, Emory University School of Law, has posted Can U.S. Immigration Law Be Reconciled with the Protection of Public Health?  Here is the abstract:    
Current immigration law actively undermines public health in the United States in a number of ways. Historically, federal authority to exclude immigrants on health grounds alleviated costs otherwise borne by state and local governments. Today, however, immigrant health exclusions are only minimally effective to prevent the spread of communicable disease originating outside U.S. borders. The federal and state governments confront a stark division of authority with respect to non-citizens: The federal government decides which non-citizens to admit into the country and the terms under which they may stay, while states are charged with the cost of care for foreign nationals who present a public health threat. Because the U.S. Public Health Service today has no authority or funding to accept responsibility for the health of immigrants, the cost of public health control measures falls on state and local governments, with uneven effectiveness and greatly disproportionate impact in some communities. For historical reasons, we are prone to view immigration and public health as separate interests, but they are in fact convergent. All levels of government should rethink immigration law in light of public health realities, without further delay. This article concludes with a discussion of a specific public health threat – drug-resistant tuberculosis – to provide a compelling context for the problems I identify.

From Emma Goldman to Edward Snowden

NYU’s Center for International Research in the Humanities and Social Sciences is hosting From Emma Goldman to Edward Snowden: The Denaturalization of Radicals and the Reshaping of American Citizenship, a session on Patrick Weil’s recent book.  It will take place on Wednesday March 5, from 5:30-7:00 PM in NYU’s Jurow Lecture Hall, Silver Center, 100 Washington Square East.  Michel Rosenfeld, Cardozo Law, will comment.  According to the announcement:
Patrick Weil will be discussing the denaturalization of American citizens based on political grounds, beginning with the infamous 1909 case of Emma Goldman. Goldman was soon joined by Socialists, Communists, and Nazis, but also by Asian Americans, foreign-born Americans living abroad, and during World War II, thousands of German-Americans. Typically associated with 20th century authoritarian regimes, denaturalization affected more than 140,000 naturalized and native-born Americans since the passage of the Naturalization Act of 1906. The Naturalization Act began the transfer of naturalization authority to the Federal government, despite tense debates that divided the Supreme Court between 1942 and 1967. Professor Weil traces the historical and legal processes of denaturalization over the last century, emphasizing the key Supreme Court decision of 1967 of Afroyim v. Rusk. The decision turned the possibility of revoking citizenship into a guarantee of protection for native-born Americans, introducing in the process the theory that sovereignty belongs to citizens themselves and not the state.
RSVP here

New Release: Pettigrew, "Freedom's Debt: The Royal African Company and the Politics of the Atlantic Slave Trade, 1672-1752"

New from the University of North Carolina Press: Freedom's Debt: The Royal African Company and the Politics of the Atlantic Slave Trade, 1672-1752 (Dec. 2013), by William A. Pettigrew (University of Kent). A description from the Press:
In the years following the Glorious Revolution, independent slave traders challenged the charter of the Royal African Company by asserting their natural rights as Britons to trade freely in enslaved Africans. In this comprehensive history of the rise and fall of the RAC, William A. Pettigrew grounds the transatlantic slave trade in politics, not economic forces, analyzing the ideological arguments of the RAC and its opponents in Parliament and in public debate. Ultimately, Pettigrew powerfully reasons that freedom became the rallying cry for those who wished to participate in the slave trade and therefore bolstered the expansion of the largest intercontinental forced migration in history.
Unlike previous histories of the RAC, Pettigrew's study pursues the Company's story beyond the trade’s complete deregulation in 1712 to its demise in 1752. Opening the trade led to its escalation, which provided a reliable supply of enslaved Africans to the mainland American colonies, thus playing a critical part in entrenching African slavery as the colonies' preferred solution to the American problem of labor supply.
A blurb of note:
"With startling precision, Pettigrew reveals the role of liberal political and market institutions in bringing about the massive eighteenth-century acceleration of the British Atlantic slave trade. All of us must ponder this deeply researched account of how 'a distinctively British conception of freedom' drove the expansion of slavery." --Christopher Tomlins
More information is available here.

Thursday, February 20, 2014

The Minimum Wage in Australian and World History

On Monday, February 24, 2014, at 4:00, the Washington History Seminar, “Historical Perspectives on International and National Affairs,” continues with Australia's Historic Minimum Wage: A World History Approach, by Marilyn Lake of the University of Melbourne:
Histories of the minimum wage are usually written within national analytic frameworks. Research in the New York Public Library on the first minimum wage, legislated in Victoria, Australia, in 1896, convinced historian Marilyn Lake that a world history approach was necessary, one that located this experiment in “state socialism” in the context of both the longue duree of imperial labor relations and encounters between the subjects of the British and Chinese empires in the new world of urban Melbourne.
The seminar will take place in the Woodrow Wilson Center, 6th Floor Moynihan Boardroom, in the Ronald Reagan Building, Federal Triangle Metro Stop.  Reservations requested because of limited seating:  The seminar is sponsored jointly by the National History Center of the American Historical Association and the Wilson Center.

Legal History at Tel Aviv, Spring 2014

 [We have the following announcement.]

The Yigal Arnon Legal History Workshop of Tel Aviv Law Faculty, moderated by Prof. Ron Harris, Prof. Roy Kreitner and Dr. Doreen Lustig, is happy to announce its line-up for spring 2014. The workshop meets on Wednesdays from 13:15-14:45, in room 17 of the the Zvi Meitar Center, Tel Aviv Law Faculty.   

March 5      Anne Orford, Melbourne Law School
March 12    Geetanjali Srikantan, Post-Doc, TAU Law Faculty
March 19    Elizabeth Blackmar, Department of History, Columbia University 
March 26    Patricia Clavin, Jesus College, University of Oxford
April 2         Arye Edrei, Tel Aviv University (TAU) Law Faculty
April 23       David Schorr, TAU Law Faculty                
April 30       Rivka Brot, TAU Law Faculty (PH.D Candidate)           
May 7          Ayelet Libson, Hebrew and Judaic Studies, NYU
May 14        William Forbath, The University of Texas Law School
May 21        Mark Cohen, Near Eastern Studies, Princeton University
May 28        Binyamin Blum, Hebrew University Law Faculty

American Lawyer Emigrants: Loyalists and Confederates

As an immigrant in the United States who happens to be a legal historian, I'm naturally interested in American lawyer migration patterns over time - not only entries (which I've already touched on in one post, and will discuss in more detail in another), but exits. The latter are much more elusive, as our potential objects of study literally removed themselves from this country, often under political circumstances that made them (and to some extent still make them) anathema. They were nonetheless American lawyers, and their Americanness affected them (and those they encountered) in multiple ways for the rest of their professional and personal lives. Thus they deserve to be included in the history of American lawyering.

Here I'll deal briefly with two groups of lawyer emigrants - one known (albeit underappreciated and understudied by most contemporary American legal scholars), and another largely unknown. The first group, of course, is the Loyalists. A significant proportion of American lawyers in the 13 mainland English colonies that revolted in 1775 (two, Nova Scotia and Quebec, notably did not) remained loyal to the Crown. A good number of those worked for the Crown or had strong ties to the colonial administrations; some, however, adhered solely out of legal principle and had little sympathy with self-styled "patriots" who took up arms against the King. In a few colonies, such as Pennsylvania, some Loyalist lawyers were able to weather the storm of revolution; withdrawing to the country during hostilities, they were allowed to make their personal peace with the winning side after British and Loyalist forces were defeated. They never had to leave. In other colonies such as Massachusetts and Connecticut, most Loyalist lawyers were not so lucky. Abused, attacked and beaten, forced to take to the highway with their families, stripped of their property and sometimes even their clothes, once successful lawyers like Fyler Dibblee, a Yale graduate from Stamford, ended up boarding overcrowded British evacuation ships and sailing with their wives and children as refugees to grim and generally impecunious exile in Nova Scotia, the West Indies, and England itself.

In telling their tale to my American law students I repeatedly emphasize that at the outset of war, the Loyalist lawyers were as American as any of them, and maybe moreso. Many were from families who had been in America for generations, longer in fact than the American lineage of most of the students in my Pittsburgh classroom. Many were forced to leave the only land they had ever known for an uncertain future either in a wilderness, or in strange foreign colonies and cities. They were pointedly no citizens of the new United States, but they remained American in their background, their views, their prejudices and their social networks. In places like Nova Scotia, they infused local law and government with a new democratic energy they could not deny in themselves, maintaining cross-border family and even professional ties that subtly Americanized the legal culture of the Canadian Maritime provinces for generations. In purporting to escape the reach of American law, they ironically became vehicles of its first great exportation.

New Release: Zahler, "Ambitious Rebels: Remaking Honor, Law, and Liberalism in Venezuela, 1780-1850"

New from the University of Arizona Press: Ambitious Rebels: Remaking Honor, Law, and Liberalism in Venezuela, 1780-1850, by Rueben Zahler (University of Oregon). A description from the Press:
Murder, street brawls, marital squabbles, infidelity, official corruption, public insults, and rebellion are just a few of the social layers Reuben Zahler investigates as he studies the dramatic shifts in Venezuela as it transformed from a Spanish colony to a modern republic. His book Ambitious Rebels illuminates the enormous changes in honor, law, and political culture that occurred and how ordinary men and women promoted or rejected those changes.

In a highly engaging style, Zahler examines gender and class against the backdrop of Venezuelan institutions and culture during the late colonial period through post-independence (known as the "middle period"). His fine-grained analysis shows that liberal ideals permeated the elite and popular classes to a substantial degree while Venezuelan institutions enjoyed impressive levels of success. Showing remarkable ambition, Venezuela's leaders aspired to transform a colony that adhered to the king, the church, and tradition into a liberal republic with minimal state intervention, a capitalistic economy, freedom of expression and religion, and an elected, representative government.

Subtle but surprisingly profound changes of a liberal nature occurred, as evidenced by evolving standards of honor, appropriate gender roles, class and race relations, official conduct, courtroom evidence, press coverage, economic behavior, and church-state relations. This analysis of the philosophy of the elites and the daily lives of common men and women reveals in particular the unwritten, unofficial norms that lacked legal sanction but still greatly affected political structures.

Relying on extensive archival resources, Zahler focuses on Venezuela but provides a broader perspective on Latin American history. His examination provides a comprehensive look at intellectual exchange across the Atlantic, comparative conditions throughout the Americas, and the tension between traditional norms and new liberal standards in a postcolonial society.
More information is available here.

Wednesday, February 19, 2014

New Release: Lambert, "Unclean Lips: Obscenity, Jews, and American Culture"

New from New York University Press: Unclean Lips: Obscenity, Jews, and American Culture (Nov. 2013), by Josh Lambert (Yiddish Book Center/University of Massachusetts, Amherst). The Press explains:
Jews have played an integral role in the history of obscenity in America. For most of the 20th century, Jewish entrepreneurs and editors led the charge against obscenity laws. Jewish lawyers battled literary censorship even when their non-Jewish counterparts refused to do so, and they won court decisions in favor of texts including Ulysses, A Howl, Lady Chatterley’s Lover, and Tropic of Cancer. Jewish literary critics have provided some of the most influential courtroom testimony on behalf of freedom of expression.

The anti-Semitic stereotype of the lascivious Jew has made many historians hesitant to draw a direct link between Jewishness and obscenity. In Unclean Lips, Josh Lambert addresses the Jewishness of participants in obscenity controversies in the U.S. directly, exploring the transformative roles played by a host of neglected figures in the development of modern and postmodern American culture.

The diversity of American Jewry means that there is no single explanation for Jews' interventions in this field. Rejecting generalizations, this book offers case studies that pair cultural histories with close readings of both contested texts and trial transcripts to reveal the ways in which specific engagements with obscenity mattered to particular American Jews at discrete historical moments.

Reading American culture from Theodore Dreiser and Henry Miller to Curb Your Enthusiasm and FCC v. Fox, Unclean Lips analyzes the variable historical and cultural factors that account for the central role Jews have played in the struggles over obscenity and censorship in the modern United States.
More information, including the Introduction and TOC, is available here.

Mack to Lecture on The Civil Rights Movement, 50 Years On

Tomorrow, Kenneth W. Mack, the Lawrence Biele Professor of Law at Harvard University, and co-faculty leader of the Harvard Law School Program on Law and History, will deliver the Al Meyerhoff Lecture in Public Interest Law at University of California Irvine Law.  His lecture is entitled Remembering the Civil Rights Movement, Fifty Years On.

"Opportunities for Law's Intellectual History": The Baldy Center Conference

The Baldy Center for Law and Social Policy  and the SUNY Buffalo Law School announce the conference “Opportunities for Law's Intellectual History,” which is to take place in John Lord O'Brian Hall, SUNY Buffalo Law School, on  October 10-11, 2014.  As the conveners explain,  “A conference designed to explore the possibility that methods and materials of intellectual history might be used to shed light on topics related to law that are not traditionally associated with the field of intellectual history: bureaucracy, capitalism and risk, doctrine, and popular culture.” 

The participants will be:

Charles Barzun, University of Virginia, Law School
Susanna Blumenthal, University of Minnesota, Law School
Christine Desan, Harvard University, Law School
Laura Edwards, Duke University, Department of History
Daniel Ernst, Georgetown University, Law School
Mark Fenster, University of Florida, Law School
Robert W Gordon, Stanford University, Law School
Ajay K. Mehrotra, University of Indiana, Law School
Noga Morag-Levine, Michigan State University, Law School
Samuel Moyn, Columbia University, History Department
Cynthia Nicoletti, Mississippi College, Law School
Edward Purcell, New York Law School
Rebecca A. Rix, Princeton University, History Department
John Henry Schlegel, SUNY Buffalo, Law School
Daniel Sharfstein, Vanderbilt University, Law School
Thomas Streeter, University of Vermont, Sociology Department
Chris Tomlins, University of California/Irvine, Law School

For further information, contact

[According to its website, "The Baldy Center is an endowed, internationally recognized, interdisciplinary research institute that supports research and scholarship in the broad arenas of law, legal institutions, and social policy. The Baldy Center, housed in the SUNY Buffalo Law School, collaborates with over 200 faculty members in several different departments at the University at Buffalo."]

Moyn to HLS

From the Crimson: "Samuel Moyn, who currently serves as the James Bryce Professor of European Legal History at Columbia University, will join the Harvard Law School faculty in July as a professor of law."  More.

Teaching [American Lawyering History] While Canadian

One of the most intriguing aspects of guest blogging (or perhaps blogging, period) is that sooner or later the enterprise requires you to look in the mirror - to take explicit stock of what you're choosing to say to your readers, and why *you* are saying it. This is more than just cathartic for the blogger. If publicly articulated, it's also a useful exercise in transparency for readers who haven't thought much about where the blogger is coming from (maybe literally) and how their experience or background shapes their interests, perspectives and arguments. My predecessor LHB guest blogger Susan Carle did something of this sort back in December when she offered some very sensitive and revealing reflections on writing about the African American experience while being a white scholar. In this post, I'm going to follow in her footsteps, while taking a somewhat different path.

I'm a Canadian immigrant living in the US. Some of you may have concluded this from reading Dan Ernst's introduction of me a couple of weeks ago, but it bears repeating because I think it affects what I think and what I say, especially as I begin to turn my attention in these guest posts to the history of American lawyering and lawyers. Now of course nationality is not destiny, and certainly not everything of mine that you have been or will be reading on this blog is driven or informed by my national origin and/or residency status, but ultimately I do think those things are relevant. Because of who I am, I'm unlike many of my fellow laborers (labourers?) in this particular vineyard of legal history. Not being American, I'm an outsider looking in.

Haskell on Modern Anglo-American Approaches to the History and Politics of International Law

John D. Haskell (Mississippi College School of Law/Durham University) has posted "The Scandal of Disenchantment: Blind Spots in Modern Anglo-American Approaches to the History and Politics of International Law." The article appeared in Volume 44 of the University of Memphis Law Review (2013). Here's the abstract:
From the “War on Terror” initiated during the Bush administration to the European conflict over the right to wear Islamic headscarves, the return of religion is a central challenge to inter-national law and policy in the post-Cold War. The legitimacy of international law is based on the claim that the normative foundations of modern sovereignty are agnostic to transcendental truth and political agendas. A sensibility of disenchantment, in other words, sustains the promise of international law’s emancipatory character. This article challenges the disenchantment thesis within international law through a historical and discursive analysis that draws upon diverse literature from legal theory, socio-political history, and theology. First, the article provides a revisionist history to the mainstream characterization that international law is a liberal cosmopolitan scheme of governance born through the slow divorce from a natural law and/or Christian orientation (e.g., the secularization thesis). Second, the article analyzes how the disenchantment thesis structures the options within international legal argument today, and in doing so, seeks to demonstrate that these options represent a set of false distinctions that hide the distinctly Christian core of modern international law. In conclusion, the article raises and considers the possibilities and limits of emancipation through international law in relation to its Christian orientation. 
Read on here.

Tuesday, February 18, 2014

Cajas-Sarria on the History of the Supreme Court of Colombia

Mario Cajas-Sarria (Icesi University Law School- Universidad Icesi Facultad de Derecho) has posted "La Corte Suprema De Justicia De Colombia, 1886-1910: De Juez De La Regeneración a Juez Constitucional" ("The Colombian Supreme Court, 1886-1910: From the Court of the Regeneration to Constitutional Court"). The article appeared in Volume 14 of Historia Constitucional (2013). Here's the English-language abstract:
The first part of the article re-frames the debate about the origins of the judicial review in Colombia, taking into account the constitutions that established notions about defending the Constitution, the contexts in which these arose, and the institutional design and implications for the exercise of judicial review of the Constitution.

The second section tells the history of the Supreme Court of Colombia since the National Constitution of 1886 to the constitutional amendment of 1910. It explores the political context in which the Court was established to be the guardian of the political-legal regime of the conservative Regeneración, and the experience of the Court in different moments of a trajectory where she started being a Court of Cassation to become a constitutional Court. This narrative shows the weakness of evolutionist approaches that assume the creation of the actio popularis (unconstitutionality) as an unavoidable continuation and development of a supposed "constitutional judicial review" established since 1886, and even of those who claim that such a judicial review had started a long time ago.
The full paper is available here.

Coming to America: Lawyers, Exploration and Colonization

In the late summer of 1517, an English lawyer set out to discover America for himself. Inspired by brother-in-law Thomas More's new book Utopia and the very real expeditions of John Cabot years previous, John Rastell sailed for the "New Found Land" with four ships and a letter of recommendation from Henry VIII.

He never made it. His crew balked at the transatlantic crossing, proposed piracy at one point, and unceremoniously deposited Rastell in Ireland. Eventually returning to England, he sued the purser of one of his ships for compensation, but the lengthy litigation ultimately failed and Rastell went on to other things - among them, publishing the first English law dictionary in 1523.

The Rastell expedition is fascinating not just on its own terms, but as an early manifestation of an intense but now underplayed nexus linking English lawyers and efforts at American exploration and colonization over the next hundred years. This nexus is, I think, a much needed antidote to the conventional wisdom that lawyers were relative latecomers to America, and that prior to the mid-seventeenth century (and even for some time after that) they played but a minor role in American development. This may be technically true if we look only at lawyers in their capacity as practitioners, but if we look at them in other cultural capacities - as explorers, propagandists, investors, settlers, chroniclers and even early "framers" - it could not be more false.