Wednesday, December 17, 2014

Capozzola reviews Hull's "A Scrap of Paper"

This past week JOTWELL published Christopher Capozzola's review, "The First World War: International Law Mattered More than You Think," which examines and lauds Isabel Hull's A Scrap of Paper: Breaking and Making International Law during the Great War (Cornell University Press). Here's a snippet from the review:
"The “scrap of paper” in Hull’s title refers to Britain’s 1839 treaty promise to defend Belgian neutrality, dismissed in a conversation on August 4, 1914, between German Chancellor Theobald von Bethmann Hollweg and British ambassador Edward Goschen. “[J]ust for a scrap of paper,” Goschen recalled Bethmann saying, “Great Britain was going to make war on a kindred nation who desired nothing better than to be friends with her.” (P. 42.) That scrap of paper—and the system of international law it reflected—mattered to actors at the time and should concern historians today. It was not simply that Germany or the Allies used international law as a post hoc justification for military actions (although, of course, they did that). Rather, Hull says, from beginning to end, “international law was central to how and why the Great War was fought.” (P. x.)"

New Online Sources on the New Deal

[Legal historians of taxation and immigration rejoice: the Franklin D. Roosevelt Library has just put on line the digitized Morgenthau Diaries and Press Conferences and the records of the War Refuge Board.  From the press release:]

FDR and Henry Morgenthau, Jr.
The Morgenthau Diaries and Press Conferences are some of the most unique resources in the Roosevelt Library. No other Cabinet official kept as complete a record of his official activities and his relationship to the President than Henry Morgenthau, Jr. During Morgenthau's nearly 12 years as FDR's Secretary of the Treasury, he compiled more than 860 diary volumes. These are not your typical diaries. Rather, they are Morgenthau's daily record of his official activities, including transcripts of his meetings and telephone conversations as well as copies and originals of the most important correspondence and memoranda that passed over his desk. These diaries were then expertly indexed by Morgenthau's trusted secretary, Henrietta Klotz.

Morgenthau also maintained a private "Presidential Diary." These diaries contain memoranda of his meetings with FDR, recollections of Cabinet meetings, and handwritten notes or chits passed between the two men. They provide a unique window into the personal and professional relationship of FDR and Morgenthau. During his Secretaryship, Morgenthau also delivered hundreds of press conferences which were transcribed and then microfilmed. These press conferences cover subjects ranging from New Deal monetary policy and war loan drives to refugee issues and post-war planning.

Records of the War Refugee Board

There was, perhaps, no greater contribution made by Henry Morgenthau, Jr., during his time as Secretary of the Treasury than his advocacy and commitment to the issue of rescuing Jewish refugees from Nazi-occupied Europe. Morgenthau's investigations into the State Department's obstruction of rescue efforts and his presentation of the evidence to the President resulted in FDR's creation in January 1944 of the War Refugee Board. As Treasury Secretary, Morgenthau served on the War Refugee Board, and the Board is credited with saving the lives of some 200,000 refugees.

The Records of the War Refugee Board, significant portions of which are now available in FRANKLIN, are housed at the FDR Presidential Library and Museum. These records contain correspondence, telegrams, petitions, and press materials pertaining to policies, programs, and operations of the Board. This significant Holocaust-era collection includes insider's descriptions of extermination camps like Auschwitz and Treblinka, documentation of rescue efforts made by citizens and government agents alike, and correspondence with several major figures in international Jewish history.


The Berger-Howe Legal History Fellowship

[We have the following announcement.]

Harvard Law School invites applications for the Berger-Howe Legal History Fellowship for the academic year 2015-16.  Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree.  A J.D. is preferred, but not required.  We will also consider applicants who are beginning a teaching career in either law or history.  The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined.  There are no limitations as to geographical area or time period. 

Fellows are expected to spend the majority of their time on their own research.  They also help coordinate the Harvard Law School Legal History Colloquium, which meets four or five times each semester.  Fellows are invited to present their own work at the colloquium.  Fellows will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2015-16 should submit their applications and supporting materials electronically to Professor Bruce H. Mann (

Applications should outline briefly the fellow’s proposed project (no more than five typewritten pages) and include a writing sample and a curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience, accompanied by official transcripts of all academic work done in college and at the graduate level.  The applicant should arrange for two academic references to be submitted electronically.  The transcripts may be sent by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is February 15, 2015, and announcement of the award will be made by March 15, 2015.  The fellow selected will be awarded a stipend of $38,000.

Tuesday, December 16, 2014

New Release: Lee on the History of Academic Freedom at American Universities

New from Lexington Books: Academic Freedom at American Universities: Constitutional Rights, Professional Norms, and Contractual Duties (November 2014), by Phillip Lee (University of the District of Columbia David A. Clarke School of Law). A description from the press:
This book details the legal and historical development of institutional and professorial academic freedoms to better understand the relationship between these concepts. While some judges and scholars have focused on the divergence of these protections, this book articulates an aligned theory that brings both the professorial and institutional theories together. It argues that while constitutionally based academic freedom does its job in protecting both public and private universities from excessive state interference, or at the very least it asks the right questions, it is inadequate because it fails to protect many individual professors in the same way. This solution entails using contract law to fill in the gaps that constitutional law leaves open in regard to protecting individual professors.

Contract law is an effective alternative to constitutional law for three reasons. First, unlike constitutional law, it covers professors at both public and private universities. Second, it allows for the consideration of the custom and usage of the academic community as either express or implied contract terms in resolving disputes between universities and professors. Third, contract law enables courts to structure remedies that take into account the specific campus contexts that give rise to various disputes instead of crafting broad remedies that may ill fit certain campus environments.

The proposed reconceptualization of academic freedom merges constitutional protection for institutions and contractual protection for individual professors. This combined approach would provide a more comprehensive framework than is currently available under the predominantly constitutional paradigm of academic freedom.
A few blurbs:
Philip Lee makes a major and welcome contribution to the burgeoning literature on academic freedom through his current and cogent analysis of major court cases. He devotes special and justifiable attention to the singular role of the American Association of University Professors, which providentially observes its centennial this very year. The constitutional evolution of academic freedom which Lee traces through the past century also receives meticulous understanding in the broader context of higher education law and policy. Perhaps most notable is a concluding chapter which uniquely addresses contract (rather than constitutional) law as an alternative basis for protecting free expression on the university campus. -- Robert O'Neil

In Academic Freedom at American Universities Philip Lee skillfully details how conceptions of academic freedom in higher education have developed over time. Further, he proposes a stronger legal defense of academic freedom, based in contract law. This book is a must-read for anyone interested in legal, historical, and political issues around academic freedom in higher education. -- Natasha Kumar Warikoo
More information is available here.

Hat tip: Chronicle of Higher Education

Purcell on the Value of Legal History for Legal Education

Many of us law professors have already received "Paradoxes of Court-Centered Legal History: Some Values of Historical Understanding for a Practical Legal Education," Edward A. Purcell, Jr., New York Law School, in the Journal of Legal Education 64 (November 2014): 229-57.  Now everyone can download it here.  Professor Purcell takes up “the pressing contemporary educational questions: Does legal history contribute to a full, sound, and truly practical legal education?  If so, how?”  He answers it “by considering in greater detail what we can learn from but one of its many diverse sub-fields,” “court-centered legal history,” which “focuses on courts, judges, judge-made law, and the processes of judicial decision-making.”  His approach is to pursue various manifestation of the paradoxical nature of legal history: which “lies in the fact that for law and the judicial process it is both acutely subversive and profoundly supportive.”

Perez on Lincoln's Legacy for International Law

Antonio Perez, Catholic University of America Columbus School of Law, has posted Lincoln's Legacy for American International Law, which appeared in the Emory International Law Review 28 (2014): 167-236.  Here is the abstract:    
Abraham Lincoln (LC)
This Article argues that Lincoln reframed U.S. rhetoric and practice of international law in ways that subordinated customary international law and elevated general principles of law and treaty commitments. It explains that this reconceptualization was based on Lincoln’s constitutional theory, through which the U.S. was transformed from a plural a sui generis institutional arrangement in the community of states, a Madisonian hybrid, into a singular nation-state performing a sui generis role in the community of states. After explaining the shift in constitutional theory and practice and international law theory and practice, the Article argues that these two shifts were in turn grounded on Lincoln’s ethical commitment to reasoning from first principles, rather than social practice, leavened with modest self-doubt and humility in the exercise of reason. Under Lincoln’s view, the United States would serve as an exemplar of a particular kind of society and the kind of person Lincoln thought normatively superior, a vehicle for the formation of a kind of person he believed made such a society possible, and perhaps even a force in the world for the progressive and universal realization of those ideals. Much as Lincoln’s achievement was to refashion the American state, Lincoln’s vision of American sovereignty made possible and necessary an entirely new approach to international law in which the American state re-defined its relation to the world and its ethical mission coupling reason with restraint in ways from which we can still learn today.

Monday, December 15, 2014

Law and Legal Cultures at GSA

[Via H-Law, we have the following call for papers.]

Law and Legal Cultures Network Panels at the German Studies Association's Thirty-Ninth Annual Conference in Washington, DC, October 1-4, 2015.

Professor Sace Elder, Department of History, Eastern Illinois University (seelder(at)
Professor Todd Herzog, Department of German Studies, University of Cincinnati (Todd.Herzog(at)

The Law and Legal Cultures Network of the German Studies Association seeks to foster an extended interdisciplinary conversation on the law. We construe law and legal cultures broadly to mean the creation, administration, or use of law of any type (commercial, property, family, criminal, etc.); the ways in which laws function within society; the failure of law to fulfill its basic social purposes (for example, under the National Socialist regime); the use of law to either sustain or overcome any type of social inequality or injustice; and cultural studies of law and justice.

All periods of German and Central European history are welcome, as are papers in English or German. We encourage submission of individual papers as well as entire panels. While the GSA prefers complete panels, we hope to combine papers sent to us into complete panels and send them along to the GSA organizers.

Please submit a 250 word abstract and a brief CV by January 20, 2015 to the network’s email address: Interested presenters are encouraged to contact the organizers with any questions.

Note:  One must be a member of the GSA by February 16, 2015 to submit a proposal for the annual conference. All applicants to the Network series will be notified in advance of this deadline of the status of their proposals to the Network.

Pomerance on Mario Cuomo's NY Court of Appeals

Benjamin Pieter Pomerance, New York State Division of Veterans’ Affairs, has posted When Dad Reached Across the Aisle: How Mario Cuomo Created a Bipartisan Court of Appeals, which appeared in the Albany Law Review 77 (2013/2014): 185-270.  Here is the abstract:    
Governor Mario Cuomo (credit)
Before he leaves office, New York State Governor Andrew Cuomo almost certainly will have appointed every sitting judge on the state's Court of Appeals. The only other Governor to hold this power over New York State's respected high court was Andrew Cuomo's father, Mario Cuomo, who re-made the Court of Appeals with an unprecedented eleven appointments during his terms in the Governor's Mansion. Many people feared that Mario Cuomo would turn the Court into a playland of his political cronies. However, Mario Cuomo surprised even his greatest skeptics by reaching across the aisle, coming up with a set of bipartisan appointments that left an enduring mark on New York State's caselaw.

This article closely examines the multi-faceted ways in which Mario Cuomo sculpted the Court of Appeals. For instance, he fulfilled campaign promises to appoint the first female judge and the first African-American judge to the Court of Appeals bench, appointing the first Hispanic Court of Appeals judge as well. To date, he remains the last New York State Governor to appoint a Court of Appeals judge from the opposing political party. However, he also found ways to appoint judges who represented key personal interests that he possessed, from opposing the death penalty to increasing the number of Italian-Americans in high judicial posts.

By "connecting the dots" of various factors, this article sheds some light on factors that Mario Cuomo likely considered important in selecting Court of Appeals judges. In doing so, this article illuminates key points about Mario Cuomo, about the Court of Appeals, and about the strategic machinations of high court judicial appointments overall.

Sunday, December 14, 2014

Sunday Book Roundup

The internet seems light on book reviews this weekend. Here's a few that stick out:

Walter Johnson reviews Racecraft: The Soul of Inequality in American Life (Verso) by Barbara J. Fields and Karen Fields and The Problem of Slavery in the Age of Emancipation (Knopf) David Brion Davis for Dissent.

Law and Politics Book Review has released issue no. 10 with a heavy focus on the Constitution. For example, there is a review of Perfecting the Constitution: The Case for Article V (Lexington Books) by Darren Patrick Guerra, and a review of Dean Smith's A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism (LFBScholarly Publishing). Robert Wigton's The Parties in Court: American Political Parties under the Constitution (Lexington Books) is also reviewed, as is John Vile's Re-Framers: 170 Eccentric, Visionary, and Patriotic Proposals to Rewrite the U.S. Constitution (ABC-Clio) (here). Of the last book, reviewer Stephen Griffen writes,
"Vile identifies fifteen questions that the framers of the Constitution and the re-framers have continued to ask. These questions include whether it should be easier or harder to amend the Constitution, whether the nation should be more or less centralized, should the presidency be stronger or weaker, and whether the nature of the judiciary should be changed."
The New Statesman reviews Juliet Barker's England, Arise: the People, the King, and the Great Revolt of 1381 (Little, Brown).
"Take this sentence, from Juliet Barker’s timely and comprehensive new history of the Great Revolt of 1381, more commonly – and less accurately, as it turns out – known as the Peasants’ Revolt: “It must have seemed to many of those struggling to earn their livings and feed their families that their hard-earned money was being seized only to finance the personal ambitions of powerful princes.” Squint your eyes enough and you can make out a faint image of early 21st-century Britain, with its hollowed-out politics, disconnected elites, deepening inequality and rudderless waves of anger at the savage effects of globalisation." 

Saturday, December 13, 2014

Weekend Roundup

  • The AllAfrica website carries an editorial from the Star responding to critics of the decision to devote part of the Supreme Court building in Kenya to a legal history museum.  “This new museum of legal history will show that justice systems existed in traditional societies before the arrival of the colonialists; both the positive and repressive aspects of our inherited British legal system; and the attempts after Independence to introduce a more progressive legal system culminating in the new constitution,” the Star editorialized.
  • Ronald Collins's interview of Judge Richard Posner continues over at Concurring Opinions.
  • Anthem Press, a London-based publisher, announces “a new educational app about King John in the run up to the 800th anniversary of the Magna Carta in 2015.”  Targeted at “A-level, IB diploma and undergraduate students,” he app “allows the student to record their own opinions and make notes” and has “a large number of essay questions” addressing “competing historical interpretations on King John.”  It will soon be available on iTunes.  
  • And, speaking of Magna Carta, via the Library of Congress Blog, here are Curator Nathan Dorn's five favorite picks from the Law Library of Congress's exhibition.
  • Don’t forget to sign up for the Winter 2015 Institute for Constitutional History Seminar, How Slavery Killed the Constitution of 1787, led by Kent Newmyer and R. B. Bernstein, at the New-York Historical Society, February 20, 27, March 6, 13, 20, and 27, 2015.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, December 12, 2014

Bahde's "Death and Life of Gus Reed"

Also on race and criminal justice in the postbellum United States is The Life and Death of Gus Reed: A Story of Race and Justice in Illinois during the Civil War and Reconstruction, by Thomas Bahde, Oregon State University, published by the Ohio University Press:
Gus Reed was a freed slave who traveled north as Sherman’s March was sweeping through Georgia in 1864. His journey ended in Springfield, Illinois, a city undergoing fundamental changes as its white citizens struggled to understand the political, legal, and cultural consequences of emancipation and black citizenship. Reed became known as a petty thief, appearing time and again in the records of the state’s courts and prisons. In late 1877, he burglarized the home of a well-known Springfield attorney—and brother of Abraham Lincoln’s former law partner—a crime for which he was convicted and sentenced to the Illinois State Penitentiary.

Reed died at the penitentiary in 1878, shackled to the door of his cell for days with a gag strapped in his mouth. An investigation established that two guards were responsible for the prisoner’s death, but neither they nor the prison warden suffered any penalty. The guards were dismissed, the investigation was closed, and Reed was forgotten.

Gus Reed’s story connects the political and legal cultures of white supremacy, black migration and black communities, the Midwest’s experience with the Civil War and Reconstruction, and the resurgence of nationwide opposition to African American civil rights in the late nineteenth century. These experiences shaped a nation with deep and unresolved misgivings about race, as well as distinctive and conflicting ideas about justice and how to achieve it.
Saith Daniel W. Hamilton, the dean of the University of Nevada Law School and author of The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War: “The Life and Death of Gus Reed is a major new interpretation of emancipation and Reconstruction. Bahde weaves together the details of an emblematic life into larger social, political, and legal themes. The result is an ambitious and novel design for a book on this period of history.”

Aaronson's "From Slave Abuse to Hate Crime"

Ely Aaronson, an Assistant Professor of Law at the University of Haifa, Israel, has published From Slave Abuse to Hate Crime: The Criminalization of Racial Violence in American History, in Cambridge Historical Studies in American Law and Society, edited by Christopher L. Tomlins at the Cambridge University Press.
This book explores the complex ways in which political debates and legal reforms regarding the criminalization of racial violence have shaped the development of American racial history. Spanning previous campaigns for criminalizing slave abuse, lynching, and Klan violence and contemporary debates about the legal response to hate crimes, this book reveals both continuity and change in terms of the political forces underpinning the enactment of new laws regarding racial violence in different periods and of the social and institutional problems that hinder the effective enforcement of these laws. A thought-provoking analysis of how criminal law reflects and constructs social norms, this book offers a new historical and theoretical perspective for analyzing the limits of current attempts to use criminal legislation as a weapon against racism.
 A blurb:
"With a broad chronological sweep from the colonial era to the present day, Ely Aaronson for the first time illuminates the connections between efforts to criminalize violence against African Americans under slavery and Jim Crow and hate crime legislation today. Putting the tools of sociological analysis to work, he recasts familiar stories in a new and fascinating light, showing the way criminal justice - or injustice - works to perpetuate racial hierarchies. A must-read for students of law, history, criminology, and critical race studies."
Ariela J. Gross, John B. and Alice R. Sharp Professor of Law and History, University of Southern California Law School
And the TOC:
  1. Towards a historical and sociological analysis of the criminalization of racial violence
  2. Progressive criminalization at the heart of darkness?: the legal response to the victimization of slaves in the colonial and antebellum South
  3. 'Social equality is not a subject to be legislated upon': the rise and fall of federal pro-black criminalization policy, 1865–1909
  4. 'We bring it out in the open, where it can be seen and dealt with': campaigning for criminalization reform in the long civil rights movement, 1909–1968
  5. Criminalizing racial hatred, legitimizing racial inequality: hate-crime laws and the new politics of pro-black criminalization
  6.  Conclusion: criminalization reform and egalitarian social change – an uneasy relationship

Hong Kong's Court of Final Appeal

Out earlier this year from Cambridge University  Hong Kong's Court of Final Appeal: The Development of the Law in China's Hong Kong, ed. Yash Ghai and Simon N. M. Young, both of the University of Hong Kong.  The press explains:
This book is primarily about how a former British colony, now a part of China, established its own final court (to replace the Privy Council), and how that court under a new constitutional order developed the law in Hong Kong in its first thirteen years, under the leadership of its first Chief Justice, Andrew Li. In doing so we look broadly at the question of whether the court has acted justly and delivered justice to the litigants. The first part of the book provides a broader context to view at these issues. So there are chapters describing the context of China and autonomy, followed by a chapter on the Macau Court. But these chapters only serve to provide a kind of foil from which to see and understand the Hong Kong Court.
Chapter 4 (pp. 94-118) is now available via SSRN: Oliver Jones, Seven Wentworth Chambers, A Worthy Predecessor? The Privy Council on Appeal from Hong Kong, 1853 to 1997.  Here is the abstract:    
The Judicial Committee of the Privy Council was the final appellate court for the colony of Hong Kong for almost 150 years. There were a substantial number of appeals, with a sharp uptake shortly before the People's Republic of China resumed sovereignty over Hong Kong in 1997. At a time when 15 years of Hong Kong's Court of Final Appeal, under the stellar leadership of Chief Justice Andrew Li, warrants academic commentary, it is worth appraising the work of the JCPC on appeal from Hong Kong. It is possible simply to analyse the JCPC cases specific to Hong Kong, in a piecemeal fashion. However, it is preferable, as this chapter does for the first time, to place the JCPC cases from Hong Kong in the context of broader academic debates over the nature of the JCPC as an imperial court, an umpire in constitutional law and a court of final appeal in criminal cases. Despite criticisms of the JCPC on appeal from other jurisdictions, its work on appeal from Hong Kong is largely praiseworthy, if a little humdrum in comparison with the sometimes electric atmosphere of the Andrew Li Court.
The TOC for the entire book appears after the jump.

Thursday, December 11, 2014

Tani, "States' Rights, Welfare Rights, and the 'Indian Problem': Negotiating Citizenship and Sovereignty, 1935–1954"

I'm excited to announce that I have a new article out in the February 2015 issue of the Law & History Review: "States' Rights, Welfare Rights, and the 'Indian Problem': Negotiating Citizenship and Sovereignty, 1935–1954." The full issue is not yet available (we'll schedule another post when it is), but Cambridge University Press has published my article online. Here's the abstract:
Starting in the 1940s, American Indians living on reservations in Arizona and New Mexico used the Social Security Act of 1935 to assert unprecedented claims within the American federal system: as U.S. and state citizens, they claimed federally subsidized state welfare payments, but as members of sovereign nations, they denied states the jurisdiction that historically accompanied such beneficence. This article documents their campaign, and the fierce resistance it provoked, by tracing two legal episodes. In 1948, through savvy use of both agencies and courts, and with aid from former government lawyer Felix Cohen, reservation Indians won welfare benefits and avoided accompanying demands for state jurisdiction; the states, in turn, extracted a price--higher subsidies--from the federal government. Arizona officials re-opened the dispute in 1951, by crafting a new welfare program that excluded reservation Indians and suing the federal government for refusing to support it. The 1954 dismissal of the case was a victory for Indians, but also leant urgency to efforts to terminate their anomalous status. Together these episodes illustrate the disruptive citizenship claims that became possible in the wake of the New Deal and World War Two, as well as the increasingly tense federal-state negotiations that followed.
Subscribers may access the full article here.

I learned a lot from the process of writing and publishing this particular piece--about the value of workshopping, the difficulty of disentangling American federalism from race, and the challenges of bringing together disparate historical literatures--so expect a few more posts down the line. Until then, thanks to the many, many folks who made this article possible.

Gordon Bakken (1943-2014)

Gordon M. Bakken (credit)
Gordon M. Bakken, probably the leading legal historian of the American West of his generation, died of cancer on December 5. An "in memoriam" page at California State University Fullerton notes that Professor Bakken, a Wisconsin native, "earned his bachelor's degree in English, master's and doctorates in history and law at the University of Wisconsin."  He "joined the campus in 1969 and never stopped teaching, advising or mentoring."
He "authored or edited 24 books, including The Development of Law in Frontier California: Civil Law and Society, 1850-1890, Women Who Kill Men: California Courts, Gender and the Press and Invitation to an Execution, as well as hundreds of articles in such publications as the American Journal of Legal History, Southern California Historical Quarterly, Rocky Mountain Social Science Journal and the Nevada Historical Society Quarterly."  The Western History Association awarded him its Award of Merit in 2009.  Contributions to either of two funds are requested instead of flowers.

The Orange County Register’s obituary emphasizes Professor Bakken's study of women's history:
“My interest in women’s history flowed from the 1960s interest in the history of unrepresented groups,” said Bakken in a 2009 CSUF news article. “Many of my colleagues at the University of Wisconsin focused on African-Americans, but I started looking into the experiences of women in the American West. I quickly found that women had far more to teach me than any other group of people.”

Fitzmaurice's "Sovereignty, Property and Empire"

Andrew Fitzmaurice, an Associate Professor of History at the University of Sydney, has published Sovereignty, Property and Empire, 1500–2000, with Cambridge University Press:
This book analyses the laws that shaped modern European empires from medieval times to the twentieth century. Its geographical scope is global, including the Americas, Europe, Africa, Asia, Australia and the Poles. Andrew Fitzmaurice focuses upon the use of the law of occupation to justify and critique the appropriation of territory. He examines both discussions of occupation by theologians, philosophers and jurists, as well as its application by colonial publicists and settlers themselves. Beginning with the medieval revival of Roman law, this study reveals the evolution of arguments concerning the right to occupy through the School of Salamanca, the foundation of American colonies, seventeenth-century natural law theories, Enlightenment philosophers, eighteenth-century American colonies and the new American republic, writings of nineteenth-century jurists, debates over the carve up of Africa, twentieth-century discussions of the status of Polar territories, and the period of decolonisation.
 Contents after the jump.

Wednesday, December 10, 2014

Revisiting the Hughes-Roberts Visit

Green Bag 2d 18:1 (Autumn 2014) is out.  It includes my exchange with Barry Cushman, Notre Dame Law School, concerning the Hughes-Roberts visit of, shall we say, the mid-1930s.  The essays are The Hughes-Roberts Visit Revisited, by Daniel R. Ernst, and Interpreting Secretary Perkins, by Barry Cushman.

Ziegler on Young v. UPS in Historical Context

Mary Ziegler, Florida State University College of Law, has posted Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty.  Here is the abstract:    
In granting cert in Young v. United Postal Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights.

A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.

The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.

Upcoming in the Washington History Seminar

[The Washington History Seminar has quite a lineup for spring 2015. “The seminar is sponsored jointly by the National History Center of the American Historical Association and the Wilson Center.”  It meets Mondays at 4:00 p.m. in the Woodrow Wilson Center, 6th Floor Moynihan Board Room, Ronald Reagan Building, Federal Triangle Metro Stop.  The “schedule, speakers, topics, and dates as well as webcasts and podcasts” are here. “The seminar thanks the Society for Historians of American Foreign Relations for its support.”]

January 12: Robyn Muncy (University of Maryland), on Relentless Reformer: Josephine Roche and the Persistence of Progressivism in Twentieth-Century America

January 19: No seminar (Martin Luther King Day)

January 26: Kathy Peiss (University of Pennsylvania), on Bookmen at War: Libraries, Intelligence, and Cultural Policy in World War II

February 2: Pawel Machcewicz (Museum of the Second World War, Gdansk) on Poland's War on Radio Free Europe

February 9: Charles Neu (Brown University) on Colonel House: A Biography of Woodrow Wilson's Silent Partner

February 16: No seminar (President's Day)

February 23: Bat Sparrow (University of Texas) on The Strategist: Brent Scowcroft and the Call of National Security

March 2:  Heather Cox Richardson (Boston College) on To Make Men Free: A History of the Republican Party

March 9: Carol Anderson (Emory University) on Bourgeois Radicals: The NAACP and the Struggle for Colonial Liberation

March 16: William LeoGrande (American University) and Peter Kornbluh (National
Security Archive) on Back Channel to Cuba: The Hidden History of Negotiations between Washington and Havana

March 23: Martha Hodes (NYU) on Mourning Lincoln
Report from the Field: Sharita Thompson on the Hill's Center Emancipation Day program

March 30: Bruce Kuklick (University of Pennsylvania) on Death in the Congo: Murdering Patrice Lumumba

April 6: No seminar (Passover)

April 13: Christopher Darnton (Catholic University) on Rivalry and Alliance Politics in Cold War Latin America

April 20: David Armitage (Harvard University) and Jo Guldi (Brown University), panel discussion of The History Manifesto, with John McNeill (Georgetown University) and Rosemarie Zagarri (George Mason University)

April 27: Sulmaan Khan (Tufts University) on Muslim, Trader, Nomad, Spy: China's Cold War and the People of the Tibetan Borderlands

May 4:  Doug Rossinow (Metropolitan State University) on The Reagan Era: A History of the 1980s 
May 11: James Loeffler (University of Virginia) on The Sovereignty of a Higher Law?: Global Antisemitism and Jewish Politics in the 1960s

May 18: Kate Brown (University of Maryland Baltimore County) on Plutopia: Nuclear Families, Atomic Cities, and the Great Soviet and American Plutonium Disasters

Tuesday, December 9, 2014

Earl B. Dickerson Fellowship at Chicago Law

[We have the following announcement.]

The University of Chicago Law School invites applications for the Earl B. Dickerson Fellowship, with an appointment at the rank of Instructor, for a non-renewable one-year term to begin July 1 or August 1, 2015. The Fellowship is named after the first African-American graduate of the Law School, from the class of 1920. The Law School seeks candidates who demonstrate the promise of distinguished legal scholarship and law teaching, who have relevant practice experience that will qualify them to act as teachers and mentors of students, and who will bring diverse experiences and perspectives to the Law School that will enrich and improve student experiences and the Law School's intellectual culture. The Dickerson Fellow will teach one or more courses per year and will be expected to publish high-quality scholarship and contribute to the intellectual life of the Law School. A J.D. is required. Candidates must apply online at the University of Chicago Academic Career Opportunities website.  and upload a current curriculum vitae, law school transcript, and reference contact information. All application material must be received by February 28, 2015.

All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, age, protected veteran status or status as an individual with disability. The University of Chicago is an Affirmative Action / Equal Opportunity / Disabled / Veterans Employer.

Krishnan, Dias and Pence on Brazil's Elite Corporate Lawyers

Jayanth K. Krishnan, Vitor Martins Dias, and John E Pence, Indiana University-Bloomington, have posted Legal Elites and the Shaping of Corporate Law Practice in Brazil: A Historical Study, which is forthcoming next year in Law and Social Inquiry.  Here is the abstract:    
While Brazil today has a legal market that allows for foreign lawyers and foreign firms, existing regulations are restrictive. Foreign lawyers are barred from practicing domestic law or litigation, and Brazilian-licensed lawyers working for foreign firms or partnering with foreign lawyers cannot do either as well. This was not always the case, however. Until 1963, there was little regulation on the legal profession. Beginning in 1913, elite American lawyers traveled to Brazil, with some even becoming prominent domestic practitioners. They partnered with local elite lawyers (who maintained their domestic privileges) and served as key brokers for U.S. businesses seeking market-entry. Drawing upon the elite theory literature, and on ethnographies, interview data, and over 1,000 pages of rare Portuguese and English archival sources, this study’s thesis is that sophisticated American and Brazilian legal elites capitalized on the lack of regulation to advance their financial interests, and in the process transformed Brazil’s corporate legal sector.

New Release: Pliley, "Policing Sexuality: The Mann Act and the Making of the FBI"

New from Harvard University Press: Policing Sexuality: The Mann Act and the Making of the FBI (Nov. 2014), by Jessica R. Pliley (Texas State University). A description from the Press:
America’s first anti–sex trafficking law, the 1910 Mann Act, made it illegal to transport women over state lines for prostitution “or any other immoral purpose.” It was meant to protect women and girls from being seduced or sold into sexual slavery. But, as Jessica Pliley illustrates, its enforcement resulted more often in the policing of women’s sexual behavior, reflecting conservative attitudes toward women’s roles at home and their movements in public. By citing its mandate to halt illicit sexuality, the fledgling Bureau of Investigation gained entry not only into brothels but also into private bedrooms and justified its own expansion.
Policing Sexuality links the crusade against sex trafficking to the rapid growth of the Bureau from a few dozen agents at the time of the Mann Act into a formidable law enforcement organization that cooperated with state and municipal authorities across the nation. In pursuit of offenders, the Bureau often intervened in domestic squabbles on behalf of men intent on monitoring their wives and daughters. Working prostitutes were imprisoned at dramatically increased rates, while their male clients were seldom prosecuted.
In upholding the Mann Act, the FBI reinforced sexually conservative views of the chaste woman and the respectable husband and father. It built its national power and prestige by expanding its legal authority to police Americans’ sexuality and by marginalizing the very women it was charged to protect.
A few blurbs:
A fascinating, first-rate study. Using a remarkable trove of documents in the Bureau of Investigation’s white slavery files, Pliley resurrects a lost history of conflicts over gender, sexuality, masculinity, disease, and deviance in the early twentieth-century United States.—Beverly Gage

A brilliant, counterintuitive history of the FBI that takes women from the margins—party girls and runaways, adventurers and adulterers, hardened hustlers and delinquent daughters—and shows how they were central to the rise of federal power in America. Written in crystal clear, jargon-free prose, and brimming with important insights, Policing Sexuality is a major contribution to the histories of sexuality and government surveillance, and will be required reading for anyone interested in the sex trade, past, present, or future.—Debby Applegate
More information is available here.

Monday, December 8, 2014

Tyrannophobia, on Backstory

TR: “L’Etat, c’est moi.” Puck (1904) (LC)
BackStory, the “public radio program and podcast” in which U.S. historians Ed Ayers, Peter Onuf, and Brian Balogh bring historical perspective to today’s events, devoted their most recent episode to Tyrannophobia: The Uses and Abuses of Executive Power:
With Republicans expected to gain seats in the House and Senate, it looks like President Obama will cap off his time in office with more gridlock. But if Congress can’t act, he says, he’ll use executive authority to sidestep the legislative process on key issues, like immigration reform and the use of force against Islamist extremists.

Obama’s detractors have accused him of being an “imperial” president. It’s a theme that runs through the course of American history. Call it tyrannophobia — the fear that any one person or party could wield too much power over the body politic. But also: a strange, even paradoxical fascination with strong leadership. So this time on BackStory, we ask how perceptions of authoritarianism in the United States have changed over time, starting with the earliest colonial revolts of the 1700s against strong-arm agents of the British crown. Are wars a slippery-slope to unchecked presidential powers? Why does Congress complain about executive orders, while passing laws that grant the president so much power? And why were so many of the most renowned presidents also seen by many in their day as dangerous, even tyrannical?
 The episode begins with an interview of Bruce Ackerman on the War Powers Act.

MacMahon, "The Inquest and the Virtues of Soft Adjudication"

Paul MacMahon (London School of Economics - Law Department) has posted "The Inquest and the Virtues of Soft Adjudication," which is forthcoming in the Yale Law & Policy Review. Although the essay is largely focused on contemporary policy, it includes a substantial historical section -- thus we are noting it here. Here's the abstract:
An inquest is a quasi-judicial proceeding resulting in a verdict as to the cause and manner of a suspicious or unusual death. Inquests are an important feature of most common-law legal systems, but have been ignored by American legal scholars for decades. In fact, inquests continue to be held in some American localities. Inquests are intriguing partly because they are inquisitorial proceedings in stereotypically adversarial common law systems. Their determinations do not directly affect anyone’s legal rights or duties, but may be highly consequential. This Article uncovers the American inquest, and explores the case for revamping and reviving the institution. Precisely because their verdicts do not carry coercive consequences, the Article contends, inquests can aim more squarely than other legal proceedings at establishing the truth about a contested event. Accordingly, they have significant advantages in the furtherance of important societal goals, including accountability for wrongful deaths, the collection and dissemination of information about risky activities, and helping the deceased’s family come to terms with a traumatic death. The Article focuses on one particular area where suitably designed inquests could be particularly effective: deaths at the hands of police and prison officers. More broadly, the inquest is an example of legal institutions providing non-binding-yet-formal-pronouncements about past events, a phenomenon I call “soft adjudication.”
The full article is available for download here, at SSRN.

New Release: Gould on "Taft betwixt the White House and Supreme Court"

New from the University Press of Kansas: Chief Executive to Chief Justice: Taft betwixt the White House and Supreme Court (Nov. 2014), by Lewis L. Gould (Monmouth College). The Press explains:
As our 27th president from 1909 to 1913, and then as chief justice of the Supreme Court from 1921 to 1930, William Howard Taft was the only man ever to lead two of America’s three governing branches. But between these two well-documented periods in office, there lies an eight-year patch of largely unexplored political wilderness. It was during this time, after all, that Taft somehow managed to rise from his ignominious defeat by both Woodrow Wilson and Theodore Roosevelt in the 1912 election to achieve his lifelong goal of becoming chief justice. In the first in-depth look at this period in Taft’s singular career, eminent presidential historian Lewis L. Gould reveals how a man often derided for his lack of political acumen made his way through the hazards of Republican affairs to gain his objective.

In the years between the presidency and the Supreme Court Taft was, as one commentator observed, “the greatest of globe trotters for humanity.” Gould tracks him as he crisscrosses the country from 1913 through the summer of 1921, the inveterate traveler reinventing himself as an elder Republican statesman with no visible political ambition beyond informing and serving the public. Taft was, however, working the long game, serving on the National War Labor Board, fighting for the League of Nations, teaching law and constitutional history at Yale, making up his differences with Roosevelt, all the while negotiating the Republican Party’s antipathy and his own intense dislike of Woodrow Wilson, whose wartime policies and battle for the league he was bound to support. Throughout, his judicial ambition shaped his actions, with surprising adroitness.
This account of Taft’s journey from the White House to the Supreme Court fills a large gap in our understanding of an important American politician and jurist. It also discloses how intricate and complicated public affairs had become during the era of World War I and its aftermath, an era in which William Howard Taft, as a shrewd commentator on the political scene, a resourceful practitioner of party politics, and a man of consummate ambition, made a significant and lasting mark.
Reviewers say:
“Lew Gould has long been an indispensable guide to the presidency, particularly during the McKinley, Theodore Roosevelt, Taft and Wilson eras. In this engaging and engrossing book, Gould tells the story of how Taft satisfied his deepest ambition and became chief justice of the United States.”—Laura Kalman
More information is available here

Sunday, December 7, 2014

Sunday Book Roundup

Being the first week of December, the first of the annual "best of 2014" lists are out. Here are a few: "100 Notable Books of 2014" in the  New York Times, the "Holiday Book Guide 2014: Nonfiction" in the Los Angeles Times, and "The best politics books of 2014" in The Guardian. And to commemorate his time as a book reviewer at the Washington Post and his retirement, Jonathan Yardley's favorite books can be found here.

Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (Oxford University Press) by our very own Dan Ernst is reviewed over on the U.S. Intellectual History Blog.
"Ernst unfolds his answer in measured, elegant prose, through two interrelated stories—one technical, for specialists, the other accessible, and of interest to all historians of American political ideas.
The technical story first. As a legal matter, the challenge of the administrative state can be understood as a problem of judicial review. Many American lawyers and statesmen were great fans of administration, at least in principle. The corporate bar liked the way it took complicated decisions away from corrupt legislatures and gave them to trained commissioners. Administration could be expert and predictable, by contrast with idiosyncratic and inefficient common-law adjudication. The legal issue, then, wasn’t to make the case for administration, but to reconcile it with a Diceyist commitment to judicial supremacy."
Of course H-Net also has several new reviews up this week. There is a double review of Stephen L. Longenecker's Gettysburg Religion: Refinement, Diversity, and Race in the Antebellum and Civil War Border North (Fordham University Press) and Timothy L. Wesley's The Politics of Faith during the Civil War (Louisiana State University Press). Also up is a review of Kim Murphy's I Had Rather Die: Rape in the Civil War (Coachlight Press):
Kim Murphy’s I Had Rather Die is the first book-length project examining sexual violence during the Civil War. In it she levels some rather damning although not unwarranted charges against historians who argue that the conflict was a low-rape war. Murphy persuasively asserts that focusing on the number of rapes stems from a misguided assumption that calculations reveal something meaningful about wartime sexual violence. By reframing rape as a crime of power, she attempts to sidestep the numbers game in order to expose a seemingly genteel and restrained Victorian society that in reality provided few protections for white and black rape victims and often freed convicted rapists.
H-Net also provides a review of Dana Cooper's Informal Ambassadors: American women, Transatlantic Marriages, and Anglo-American Relations, 1865-1945 (Kent State University Press).

Victor Pickard is interviewed by New Books in History about his new book, America’s Battle for Media Democracy: The Triumph of Corporate Libertarianism and the Future of Media Reform (Cambridge University Press).

Public Books has a review of several works on Harlem, including Farah Jasmine Griffin's Harlem Nocturne: Women Artists and Progressive Politics During World War II (Basic Civitas), Carla Kaplan's Miss Anne in Harlem: The White Women of the Black Renaissance (Harper), Camilo Jose Vergara's Harlem: The Unmaking of a Ghetto (University of Chicago Press), and Edward White's The Tastemaker: Carl Van Vechten and the Birth of Modern America (Farrar, Straus & Giroux).
"After all this time, we still have Harlem on our minds. Close to a century after the first waves of mass migration from the American South into uptown Manhattan, movements to, from, and around Harlem continue to stir scholarly inquiry. We tend to think of these journeys in large-scale terms: African Americans searching for better livelihoods; slumming white bohemians descending upon cabarets; migrants departing the West Indies. But within these group histories are the individual journeys, some stranger than fiction, that remind us of the exceptional singularities that make up any Great Migration."

Saturday, December 6, 2014

Weekend Roundup

  • Over at Concurring Opinions, Ronald K. L. Collins continues his posts on Judge Richard Posner. In this one and this one Judge Posner responds to questions from Collins and others.
  • More on the YLS exhibit, “Murder and Women in 19th-Century America: Trial Accounts in the Yale Law Library.”
  • We recently learned of "O Say Can You See: Early Washington DC Law and Family Project."  It "explores multigenerational black and white family networks in early Washington, D.C., by collecting, digitizing, making accessible, and analyzing over 4,000 case files from the D.C. court from 1808 to 1815, records of Maryland courts, and related documents about these families. . . . We focus first on the landmark 1813 case Queen v. Hepburn, one of a handful of petitions for freedom from slavery heard by the U.S. Supreme Court, and a foundational case establishing the hearsay rule."  More.
  • From Slate's The Vault: a 1936 map from the District of Columbia’s Juvenile Court pinpointing the residencies of “juvenile delinquents.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, December 5, 2014

Charles on What Heller is Doing to History

Patrick J. Charles, US Air Force, has posted The Second Amendment in the Twenty-First Century: What Hath Heller Wrought? Which is to appear in volume 23 (2015) of the William & Mary Bill of Rights.  Here is the abstract:
This article explores the impact District of Columbia v. Heller has had on the public discourse. It is a discourse that will be broken down into two categories: (1) the right’s impact on politics and lawmaking or what may otherwise be described as the political discourse, and (2) the right’s impact on the opinions of society at large or what may otherwise be described as the public discourse. In many respects the two categories are intertwined. For instance, political rhetoric and debate often influence society’s view of what is and is not lawful. At the same time, whatever the judiciary identifies as constitutionally protected impacts society’s perception of historic custom and tradition, regardless of whether it is built on historical fact or historical myth. Still, despite the substantial overlap between Supreme Court opinions and the political and public discourse, it worth exploring the two categories separately. It is only then one can truly assess the impact Heller has had on American society as a whole.

New Release: Flogaitis's "Evolution of Law and the State in Europe"

Spyridon Flogaitis, Professor of Administrative Law, University of Athens, has published The Evolution of Law and the State in Europe: Seven Lessons (Hart, 2014):
Most books about public power and the state deal with their subject from the point of view of legal theory, sociology or political science. This book, without claiming to deliver a comprehensive theory of law and state, aims to inform by offering a fresh reading of history and institutions, particularly as they have developed in continental Europe and European political and legal science. Drawing on a remarkably wide range of sources from both Western and Eastern Europe, the author suggests that only by knowing the history of the state, and state administration since the twelfth century, can we begin to comprehend the continuing importance of the state and public powers in modern Europe. In an era of globalization, when the importance of international law and institutions frequently lead to the claim that the state either no longer exists or no longer matters, the truth is in fact more complex. We now live in an era where the balance is shifting away from the struggle to build states based on democratic values, towards fundamental values existing above and beyond the borders of nations and states, under the watchful gaze of judges bound by the rule of law.

Congressional Research Grants at the Dirksen Center

[We have the following announcement for Congressional Research Grants.  Hat tip: Sarah Barringer Gordon]

Everett M. Dirksen (1938) (LC)
The Dirksen Congressional Center invites applications for grants to fund research on congressional leadership and the U.S. Congress. The Center, named for the late Senate Minority Leader Everett M. Dirksen, is a private, nonpartisan, nonprofit research and educational organization devoted to the study of Congress. Since 1978, the Congressional Research Grants program has invested more than $944,208 to support over 436 projects. Applications are accepted at any time, but the deadline is March 1 for the annual selections, which are announced in April.

The Center has allocated $50,000 in 2015 for grants (an increase of $15,000 over 2014) with individual awards capped at $3,500. Stay tuned for news on the application and selection process.

The competition is open to individuals with a serious interest in studying Congress. Political scientists, historians, biographers, scholars of public administration or American studies, and journalists are among those eligible. The Center encourages graduate students who have successfully defended their dissertation prospectus to apply and awards a significant portion of the funds for dissertation research. Applicants must be U.S. citizens who reside in the United States.

The grants program does not fund undergraduate or pre-Ph.D. study. Organizations are not eligible. Research teams of two or more individuals are eligible. No institutional overhead or indirect costs may be claimed against a Congressional Research Grant.

Download the Word document -- Congressional Research Grant Application -- and complete the required entries. You may send the application as a Word or pdf attachment to an e-mail directed to Frank Mackaman at Please insert the following in the Subject Line: "CRG Application [insert your surname]." Thank you.

The Congressional Research Award Application contains the following elements: Applicant Information, Congressional Research Award Project Description, Budget, Curriculum Vita, Reference Letter, and Overhead Waiver Letter.

The entire application when printed must NOT exceed ten pages. Applications may be single-spaced. Please use fonts no smaller than 10-point. This total does NOT include the reference letter (one additional page) or the Overhead Waiver Letter (one additional page).

All application materials must be received on or before March 1, 2015. Awards will be announced in April 2015.

Complete information about what kind of research projects are eligible for consideration, what could a Congressional Research Award pay for, application procedures, and how recipients are selected may be found at The Center's Website.