Like many first books by academics, Making the Modern American Fiscal State began as a dissertation. After graduating from law school and working for a couple of years in the field of taxation and structured finance, I entered graduate school to study American intellectual and legal history. I had intended to write a thesis exploring the economic ideas undergirding modern American law and political economy, a sort of cross between the work of Ed Purcell and Martin Sklar.
Saturday, March 8, 2014
Like many first books by academics, Making the Modern American Fiscal State began as a dissertation. After graduating from law school and working for a couple of years in the field of taxation and structured finance, I entered graduate school to study American intellectual and legal history. I had intended to write a thesis exploring the economic ideas undergirding modern American law and political economy, a sort of cross between the work of Ed Purcell and Martin Sklar.
- Philip Girard (Osgoode Hall Law School), a recently named honorary fellow of the American Society for Legal History, is scheduled to give the plenary address at this year's annual meeting. (Hat tip: Canadian Legal History Blog)
- Via In Custodia Legis: The Magna Carta is coming to the Library of Congress.
- Stop defending the humanities? Simon During makes the case. (Hat tip: Arts & Letters Daily)
- Via H-Law: the Center for Presidential History at Southern Methodist University has announced a call for short articles on the Election of 2004.
- If you're in New Haven, check out the Yale Law Library's new exhibit, "350 Years of Rebellious Lawyering."
- Legal History Blogger Tomiko Brown-Nagin, Harvard Law School, is to deliver the Maurice and Muriel Fulton Lecture in Legal History at the University of Chicago Law School on May 8, 2014.
- "A Constitutional History of the Long 1960s,” Risa Goluboff’s lecture on November 12, 2013, marking her appointment as John Allan Love Professor of Law at the University of Virginia School of Law is downloadable here.
Friday, March 7, 2014
As a powerful voice in the battle for Civil Rights and the first African American appointed to the nation's highest court, Justice Thurgood Marshall was among the scores of African Americans across the country who were conquering color barriers in government, sports, music, and culture. Randall Kennedy, former law clerk to Justice Marshall, offers an in-depth look at this monumental figure and his enduring legacy.The lecture will take place at the Society on Tuesday, March 11, commencing at 6:30 PM. To obtain a free ticket, “please use code HIST77 when ordering over the phone at (212) 485-9268 or in person at the Museum Admission desk.” The offer is not available online.
Canada the Good considers more than five hundred years of debates and regulation that have conditioned Canadians’ attitudes towards certain vices. Early European settlers implemented a Christian moral order that regulated sexual behaviour, gambling, and drinking. Later, some transgressions were diagnosed as health issues that required treatment. Those who refused the label of illness argued that behaviours formerly deemed as vices were within the range of normal human behaviour.
This historical synthesis demonstrates how moral regulation has changed over time, how it has shaped Canadians’ lives, why some debates have almost disappeared and others persist, and why some individuals and groups have felt empowered to tackle collective social issues. Against the background of the evolution of the state, the enlargement of the body politic, and mounting forays into court activism, the author illustrates the complexity over time of various forms of social regulation and the control of vice.More information is available here.
Thursday, March 6, 2014
The deific decree doctrine allows criminal defendants who believe that God commanded them to kill to plead not guilty by reason of insanity to murder. The insanity defense has remained moored to its Judeo-Christian roots, which has artificially limited its bounds. While civil law has focused on individualism within religion, criminal law has imposed state-defined limits on what religion (or socially acceptable religion) is. This Article argues that the deific decree doctrine is too closely tied to artificial limits on insanity imposed by 19th century developments in the mental health profession and criminal law. The doctrine unacceptably privileges certain mentally ill criminal defendants whose delusions fit within an outdated model that is not psychiatrically valid. Moreover, it has disparate gender consequences that harm women with postpartum psychosis who kill their children while supporting men who kill their female partners. The Article concludes by calling for the end of the deific decree doctrine and expanding the insanity defense so it more accurately tracks psychiatric understanding of mental illness.
Hull focuses on seven cases in which each government’s response was shaped by its understanding of and respect for the law: Belgian neutrality, the land war in the west, the occupation of enemy territory, the blockade, unrestricted submarine warfare, the introduction of new weaponry (including poison gas and the zeppelin), and reprisals. Drawing on voluminous research in German, British, and French archives, the author reconstructs the debates over military decision making and clarifies the role played by law—where it constrained action, where it was manipulated to serve military need, where it was simply ignored, and how it developed in the crucible of combat. She concludes that Germany did not speak the same legal language as the two liberal democracies, with disastrous and far-reaching consequences. The first book on international law and the Great War published since 1920, A Scrap of Paper is a passionate defense of the role that the law must play to govern interstate relations in both peace and war.A few blurbs:
"Over the last decade, with wars in Iraq and Afghanistan, the laws of armed conflict have become matters of popular and public interest. Despite the growth of international humanitarian law, much of the law with which we still operate dates from the fifteen years just before the First World War and was applied within it. A Scrap of Paper is the first book to pay sustained attention to the subject of international law in the First World War since 1920. It is not only a timely book, it is an overdue one, and its impact on the study of the war will be important and game-changing. Isabel V. Hull has the linguistic range and scholarly tools to tackle the subject in the truly comparative fashion that its complexity demands."—Sir Hew Strachan
"Isabel V. Hull's passionate narrative of the role of international law in the decision-making processes in Berlin and London during the First World War opens a strikingly original perspective on the consciousness of the wartime actors. This was a war waged also by legal arguments. In the end, the inability and unwillingness of Imperial Germany to defend its case in legal terms crucially undermined its war effort. This is not only superb history, but also the most powerful defense of the role of law in international crisis that I have read, and as such is of obvious contemporary relevance."—Martti KoskenniemiMore information is available here.
Wednesday, March 5, 2014
Kevin H. Govern (Ave Maria School of Law/California University of Pennsylvania/CUNY, John Jay College of Criminal Justice) have posted "Florida and the Film Industry: An Epic Tale of Talent, Landscape, and the Law." The article appears in Volume 38 of the Nova Law Review (2013). Here's an excerpt from the abstract:
This article chronicles the development of the Florida film and entertainment industry, from its inception to the present day, as a product of environment, opportunity, economics, law, and policy. The film and entertainment industry is one of the most significant contributors to Florida’s local, regional, and global image, through depiction of its people, cities, industry, and nature. As an ever-growing contributor to the state’s economy through job creation, service industry revenues, and tax collections, Florida’s relationship with the film and entertainment industry has gone from an ad hoc approach to a carefully strategized, multi-year effort, fueled by the Florida Film and Entertainment Industry Financial Incentive Program, to encourage the use of the state as a location for all facets of digital, film, and television production.The full text is available here.
This article will address in Part I the earliest history of film in Florida from the late nineteenth century birth and flourishing through the 1917 transfer to California and revitalization during World War II. Part II considers the state’s economic, political, and legal enticements for the film industry to grow in the state and to match the public relations campaign to draw tourism to the Sunshine State. Part III outlines the essence of 1950s blockbuster hits that gave impetus to rules and laws to solidify the state’s relationship with the film industry. As commented upon in Part IV, Florida’s compelling call to the industry reached New York City and beyond, bringing rare talent that would further expand the industry’s reach and hold in Florida. Worthy of Part V’s particular focus, mesmerizing Miami reached international recognition as a thriving hub for both television and film from the 1950s onward, and industry contractual practices there set the standard for the entire film and television industry thenceforth. Part VI summarizes the background, legislative authority, and practical efforts of the Governor’s Office of Film and Entertainment, followed by the tax incentives under state and federal law which caused the film and television industry efforts in Florida to expand exponentially in the twenty-first century onward in Part VII; specifically with some of the most notable progeny of this effort and their value to state, regional, and the national economies showcased in Part VIII. Part IX highlights how past is prologue for Florida film and television, why current state and federal initiatives will prevent major production efforts from becoming runaway boons to other states and countries, and the demonstrable economic benefits those laws and policies have already produced for Florida in particular, and the United States in general. In conclusion, Part X predicts how faithfulness and fidelity to the film and television industry will continue to reap benefits in a multi-billion dollar relationship continuing into its second century, with over 120 films and television shows to its credit and counting.
The Reid Award and the Cromwell Book Prize are mutually exclusive. The Cromwell Book Prize is awarded for first books, wholly or primarily written while the author was untenured. The Reid Award is for a first or subsequent book written by a mid-career or senior scholar. For advice in doubtful cases, please consult Jane Dailey, Chair of the Cromwell Book Prize Advisory Subcommittee, and Sophia Lee, chair of the ASLH Committee on the John Phillip Reid Book Award.
Cromwell Book Prize
The William Nelson Cromwell Foundation awards annually a $5000 book prize for excellence in scholarship in the field of American Legal History by a junior scholar. The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured. The work may be in any area of American legal history, including constitutional and comparative studies, but scholarship in the colonial and early national periods will receive some preference. The prize is limited to a first book, wholly or primarily written while the author was untenured. The William Nelson Cromwell Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Committee will consider books bearing a copyright date of 2013.
To nominate a book, please send copies of it and the curriculum vitae of its author to John D, Gordan, III, Chair of the Cromwell Prize Advisory Committee, and to each member of the Cromwell Book Prize Advisory Committee with a postmark no later than June 15, 2014.
John D. Gordan, III
Secretary of the Cromwell Foundation
1133 Park Avenue
New York, NY 10128
Professor Jane Dailey
Chair, Cromwell Book Prize Advisory Subcommittee
600 N. Fairbanks Ct., #3702
Chicago, IL 60611
Professor Andrew Wender Cohen
412 Salt Springs St.
Fayetteville, NY, 13066
Professor Thomas C. Mackey
101 Gottschalk Hall
Department of History
University of Louisville
Louisville, KY 40292
Professor Laura F. Edwards
Durham, NC 27708
John Phillip Reid Book Award
Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history. The award is given on the recommendation of the Society's Committee on the John Phillip Reid Book Award.
For the 2014 prize, the Reid Award Committee will accept nominations from authors, presses, or anyone else, of any book that bears a copyright date in 2013. Nominations for the Reid Award should be submitted by June 15, 2014, by sending a curriculum vitae of the author and one copy of the book to each member of the committee:
Professor Sophia Lee
Chair, Committee on the John Phillip Reid Book Award
University of Pennsylvania Law School
3501 Sansom St.
Philadelphia, PA 19104
Professor Richard J. Ross
University of Illinois College of Law
504 E. Pennsylvania Avenue
Champaign, IL 61820
Professor Laura Weinrib
University of Chicago Law School
1111 E. 60th St., Room 410
Chicago, IL 60637
Professor Steven Wilf
University of Connecticut
65 Elizabeth Street
Hartford, Connecticut 06105
Professor Nicholas Parrillo
Yale Law School
P.O. Box 208215
New Haven, CT 06520
Kate Puddister (Department of Political Science, McGill University) reviews Grace Li Xiu Woo, GHOST DANCING WITH COLONIALISM: DECOLONIZATION AND INDIGENOUS RIGHTS AT THE SUPREME COURT OF CANADA (UBC Press, 2011).
Whitley Kaufman (Departments of Philosophy and Global Studies, University of Massachusetts Lowell) reviews John O. McGinnis & Michael B. Rappoport, ORIGINALISM AND THE GOOD CONSTITUTION (Harvard University Press, 2013).
James C. Foster (Political Science, Oregon State University-Cascades) reviews Gordon K. Hirabayashi with James A. Hirabayashi and Lane Rio Hirabayashi, A PRINCIPLED STAND: THE STORY OF HIRABAYASHI v. UNITED STATES (University of Washington Press, 2013).
Jeffrey Sanders (Department of Social Sciences and Cultural Studies, Montana State University-Billings) reviews Shelley A.M. Gavigan, HUNGER, HORSES, AND GOVERNMENT MEN: CRIMINAL LAW ON THE ABORIGINAL PLAINS, 1870-1905 (UBC Press. 2012).
Aaron J. Ley (Department of Political Science and Public Administration, University of North Dakota) reviews Alexander Wohl, FATHER, SON, AND CONSTITUTION: HOW JUSTICE TOM CLARK AND ATTORNEY GENERAL RAMSEY CLARK SHAPED AMERICAN DEMOCRACY (University Press of Kansas, 2013).
Staci L. Beavers (Department of Political Science, California State University San Marcos) reviews Yasuhide Kawashima, THE TOKYO ROSE CASE: TREASON ON TRIAL (University Press of Kansas, 2013).
Tuesday, March 4, 2014
Irus Braverman’s recent book Zooland is a wonderful read on a topic that is of both historical and current interest—zoos. How should we view zoos given the frank admission by all, including zoo advocates, that zoo animals are captives, forced to forgo what would otherwise be a superior existence in order to serve the pedagogical and conservationist agenda that zoos have cultivated as justifications for their existence? . . .
Read on here.
Legal historians will be interested in the shift Braverman describes from zoos as sites of entertainment, a variation on the old menagerie style collection of animals, preferably exotic, that would then perform various colonialist and empire-building functions, to the (arguably) more laudable conservationist rationale and its accompanying practices often targeted at educating adults and children about species and habitat decline and destruction. . . .
In Defense of Disciplines: Interdisciplinarity and Specialization in the Research University (University of Chicago Press, 2013). The Press explains:
Calls for closer connections among disciplines can be heard throughout the world of scholarly research, from major universities to the National Institutes of Health. In Defense of Disciplines presents a fresh and daring analysis of the argument surrounding interdisciplinarity. Challenging the belief that blurring the boundaries between traditional academic fields promotes more integrated research and effective teaching, Jerry Jacobs contends that the promise of interdisciplinarity is illusory and that critiques of established disciplines are often overstated and misplaced.Robin L. West, Teaching Law: Justice, Politics, and the Demands of Professionalism (Cambridge University Press, 2013). From the Press:
Drawing on diverse sources of data, Jacobs offers a new theory of liberal arts disciplines such as biology, economics, and history that identifies the organizational sources of their dynamism and breadth. Illustrating his thesis with a wide range of case studies including the diffusion of ideas between fields, the creation of interdisciplinary scholarly journals, and the rise of new fields that spin off from existing ones, Jacobs turns many of the criticisms of disciplines on their heads to mount a powerful defense of the enduring value of liberal arts disciplines. This will become one of the anchors of the case against interdisciplinarity for years to come.
Teaching Law reimagines law-school teaching and scholarship by going beyond crises now besetting the legal academy and examining deeper and longer-lasting challenges. The book argues that the legal academy has long neglected the needs to focus teaching and scholarship on the ideals of justice that law fitfully serves, the political origins of law, and the development of a respectful but critical relationship with the legal profession. This book suggests reforms to improve the quality of legal education and responds to concerns that law schools eschew the study of justice, rendering students amoralist; that law schools slight the political sources of law, particularly in legislative action; and that law schools have ignored the profession entirely. These areas of neglect have impoverished legal teaching and scholarship as the academy is refashioned in response to current financial exigencies, and addressing them is long overdue.Helen Small, The Value of the Humanities (Oxford University Press, 2013). The Press describes the book as follows:
The Value of the Humanities provides a critical account of the principal arguments used to defend the value of the Humanities. The claims considered are: that the Humanities study the meaning-making practices of culture, and bring to their work a distinctive understanding of what constitutes knowledge and understanding; that, though useful to society in many ways, they remain laudably at odds with, or at a remove from, instrumental use value; that they contribute to human happiness; that they are a force for democracy; and that they are a good in themselves, to be valued 'for their own sake'. Engaging closely with contemporary literary and philosophical work in the field from the UK and US, Helen Small distinguishes between arguments that retain strong Victorian roots (Mill on happiness; Arnold on use value) and those that have developed or been substantially altered since. Unlike many works in this field, The Value of the Humanities is not a polemic or a manifesto. Its purpose is to explore the grounds for each argument, and to test its validity for the present day. Tough-minded, alert to changing historical conditions for argument and changing styles of rhetoric, it promises to sharpen the terms of the public debate.
Monday, March 3, 2014
This conference hopes to point to fresh opportunities for joining the insights of environmental and business history. We are especially interested in providing historical perspectives on a question of obvious relevance today: Can capitalism be green - or at least greener? Our title - "Green Capitalism?" - is admittedly drawn from contemporary discourse. But we are convinced that history can provide invaluable insights into the complex and changing relationship between business and the environment.More
We invite papers that consider in specific historical contexts the extent to which the business enterprises that are central to capitalism operated in an environmentally sound or detrimental manner by the way they dealt with their refuse, by managing their use of resources, and mitigating or ignoring any harmful impact on those who handled their products or are affected by their waste. Though business activities have had many deleterious environmental consequences, businesses sometimes have acted to protect the environment, reduce their direct and indirect environmental impact, and promote environmental reform in society. That is true now, but it also was sometimes the case long before the rise of modern environmentalism.
Papers can take many forms. We expect that many papers will focus on the history of particular firms. Others may analyze historical controversies about the use of resources or the cultural, political, and environmental factors that have shaped how business treats the environment. Given the global nature of business activity and environmental concerns, we encourage papers that take a transnational perspective on these issues. The papers may address any area of the world in the industrial era, roughly after 1800.
First: the author and his book. Ian Ward, a Professor of Law at Newcastle University and the author of a number of books on law, literature and history, has published Sex, Crime and Literature in Victorian England with Hart Publishing Co. Here is the press's summary:
The Victorians worried about many things, prominent among their worries being the 'condition' of England and the 'question' of its women. Sex, Crime and Literature in Victorian England revisits these particular anxieties, concentrating more closely upon four 'crimes' which generated especial concern amongst contemporaries: adultery, bigamy, infanticide and prostitution. Each engaged questions of sexuality and its regulation, legal, moral and cultural, for which reason each attracted the considerable interest not just of lawyers and parliamentarians, but also novelists and poets and perhaps most importantly those who, in ever-larger numbers, liked to pass their leisure hours reading about sex and crime. Alongside statutes such as the 1857 Matrimonial Causes Act and the 1864 Contagious Diseases Act, Sex, Crime and Literature in Victorian England contemplates those texts which shaped Victorian attitudes towards England's 'condition' and the 'question' of its women: the novels of Dickens, Thackeray and Eliot, the works of sensationalists such as Ellen Wood and Mary Braddon, and the poetry of Gabriel and Christina Rossetti. Sex, Crime and Literature in Victorian England is a richly contextual commentary on a critical period in the evolution of modern legal and cultural attitudes to the relation of crime, sexuality and the family.The TOC and the Introduction are available here.
And here's the bit about the discount:
Order Online in the US
If you would like to place an order you can do so through the Hart Publishing website. To receive the discount please mention ref: ‘LEGALHISTORYBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.
Order Online in the UK, EU and ROW
If you would like to place an order you can do so through the Hart Publishing website. To receive the discount please type the reference ‘LEGALHISTORYBLOG’ in the voucher code field and click ‘apply’.
Sunday, March 2, 2014
"an important contribution to the growing literature on religious freedom and separation of church and state in the colonial era and early republic. Miller argues that previous studies of the rise of these concepts have overemphasized the secular influences on their development. He states his own "quite simple" thesis straightforwardly at the beginning of the book: "Protestant commitments, at least as maintained by some dissenting Protestants, to the right of private judgment in matters of biblical interpretation … led to a respect for individual conscience that propelled ideas of religious liberty and disestablishment in the early modern West. These religious commitments … were a central influence in the official disestablishment of religion in America during the colonial period and the early republic"."
This week, David Brion Davis's The Problem of Slavery in the Age of Emancipation (Knopf) is reviewed in The New York Review of Books.
"David Brion Davis has spent a lifetime contemplating the worst of humanity and the best of humanity—the terrible cruelty and injustice of slavery, perpetuated over centuries and across borders and oceans, overturned at last because of ideas and ideals given substance through human action and human agency. He concludes his trilogy by contemplating whether the abolition of slavery might serve as precedent or model for other acts of moral grandeur. His optimism is guarded. “Many humans still love to kill, torture, oppress, and dominate.” Davis does, after all, describe the narrative of emancipation to which he has devoted his professional life as “astonishing.” But even in his amazement, he has written an inspiring story of possibility. “An astonishing historical achievement really matters.” And so does its history."Two trials are revisited this week in book reviews. Kate Colquhoun's Did She Kill Him? A Victorian Tale of Deception, Adultery & Arsenic (Little) about Florence Maybrick's 1889 trial for poisoning her husband is reviewed in The Guardian. If you're interested in a true crime novel with more recent subject matter, The Washington Post reviews Blood Will Out: The True Story of a Murder, a Mystery and a Masquerade (Liveright) by Walter Kirn.
H-Net reviews The American South and the Atlantic World (University Press of Florida) edited by Brian Ward, Martyn Bone, and William A. Link. Included in the compilation is a piece by Martha Jones.
"The complicated nature of post-Revolutionary freedom and slavery also lie at the heart of legal historian Martha S. Jones’s illuminating look at the case of Jean Baptiste. Baptiste was an eight-year-old black refugee of the Haitian Revolution eventually settled in Baltimore. Treated as a slave dependent, Baptiste learned that French proclamations in effect during his time in Haiti in the 1790s would have made him a free man. Two decades after his arrival on U.S. shores under threats of removal to southwestern slave markets, he initiated a freedom suit. Baltimore jurists had to contemplate and contest the legal meaning of freedom not primarily based on Maryland law, but on French colonial law and their own reading of overly reified and racialized English accounts of the Haitian Revolution."Another edited volume is The Loyal Atlantic: Remaking the British Atlantic in the Revolutionary Era (University of Toronto Press) edited by Jerry Bannister and Liam Riordan (reviewed here on H-Net).
"However, over the last decade the growing number of studies about loyalism in the Revolutionary Atlantic world has revealed the importance of loyalists and royalism to a clear understanding of the era. In The Loyal Atlantic: Remaking the British Atlantic in the Revolutionary Era, editors Jerry Bannister and Liam Riordan explore how loyalism became an influential movement in the British Empire, arguing that it fundamentally shaped the British Atlantic and that the true consequences of colonization and the American Revolution cannot be fully understood without first understanding loyalism in the Atlantic world. "Also on H-Net is a review of Victoria Vantoch's Jet Sex: Airline Stewardesses and the Making of an American Icon (University of Pennsylvania Press).
The Los Angeles Times discusses The Daphne awards for the best books published in 1963. Those on the non-fiction shortlist include The Making of the English Working Class by E.P. Thompson and Anti-Intellectualism in American Life by Richard Hofstadter.
Saturday, March 1, 2014
I invited Professor Mehrotra to discuss his recently published book, Making the Modern American Fiscal State: Law, Politics and the Rise of Progressive Taxation, 1877-1929 (New York: Cambridge University Press, 2013), as well as anything else that interests him. Over at Jotwell, Christopher Schmidt called Making the Modern American Fiscal State “a truly impressive work of legal historical scholarship—thoroughly researched, well written, and powerfully argued. Mehrotra also offers a masterful demonstration of scholarly synthesis, artfully weaving together an intricate tapestry of economics, politics, law, and social history.” I teach its chapter on Treasury Department lawyers during World War II, originally published in Law and History Review, every year in my American Legal History course. Welcome, Ajay!
- "Solano County [California] Superior Court officials are seeking historic items related to the Old Solano Courthouse or items related to the legal history of Solano County for display." Hat tip.
- From Biddle Blog (the blog of the University of Pennsylvania Law School library): some highlights from the papers of William Ephraim Mikell (1868-1944).
- Congratulations to former LHB Guest Blogger Mark S. Weiner, upon being awarded a Fulbright to Salzburg Austria in 2014-15. His earlier Fulbright to Iceland yielded some fascinating posts on LHB and a chapter in his Rule of the Clan. In Salzburg, he will be teaching a course on U.S. constitutional law and a class on law in American film. He intends to make documentary videos about Austrian and European conceptions of law, including one about Hans Kelsen. His earlier documentary videos about law and legal history are here.
- Some intriguing images, going as much to the history of NYC as NYU, appear in a post on NYU Law's website.
Friday, February 28, 2014
Who Do We Think We Are?: Teaching the History of Lawyering
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
Missionary Man: William Sprague and the Correspondence Law School
Lawyers: Once More, With Feeling(s)
Of Lawyers and Lifeboats
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.
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.
A few blurbs: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.
“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
Thursday, February 27, 2014
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
"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
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
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.
A HISTORY OF PENAL REGIMES IN GLOBAL PERSPECTIVE: 1800-2014Hat tip: @adamsigoodman
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 http://wigh.wcfia.harvard.edu.
Proposals should include an abstract of no more than 500 words and a brief curriculum vita. Please email your submissions to Jessica Barnard (email@example.com) by May 15, 2014 with the heading “Penal Regimes Conference.” Travel expenses (economy) as well as accommodation will be covered.
Tuesday, February 25, 2014
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, firstname.lastname@example.org. 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.
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.
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.
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.
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.
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
Monday, February 24, 2014
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.