Friday, August 1, 2014

Crump and Brophy on Cornelius Sinclair's Odyssey

Judson E. Crump and Alfred L. Brophy, University of North Carolina School of Law, has posted Cornelius Sinclair's Odyssey: Freedom, Slavery, and Freedom Again in the Old South.  Here is the abstract:
In August 1825 several free, young black people were enticed onto a ship in the Delaware River along the Philadelphia waterfront. Thus began their descent to the heart of the old South. They were kidnapped and held aboard a ship destined for a stop somewhere near Cape Henlopen, Delaware. Some days later they were carried by wagon to Maryland’s eastern shore and another ship took them further south. They walked across Georgia and into Alabama. One young man, Cornelius Sinclair, was sold in Tuscaloosa. He was a free person converted into a slave. But that was not the end.

Those who survived were then taken to Mississippi, where a slave-owner realized that they were probably free. The slave-owner contacted the Mayor of Philadelphia to verify the story of kidnapping and eventually most of those held in Mississippi were sent back to Philadelphia. Then the mayor set about rescuing Sinclair, too. In Tuscaloosa, a local minister helped Sinclair by filing a lawsuit to ask for his freedom. A judge, who would later, as governor of Alabama, seek to imprison abolitionists for spreading antislavery literature, presided over the trial that freed Sinclair. The newly freed Sinclair made a trip even further south, to New Orleans, and eventually back to Philadelphia where he faced down the men who had kidnapped him.

Sinclair's story is one of epic proportions. It is a nineteenth century version of the Odyssey. And while Cornelius' journey home took fewer years than Odysseus' journey, Sinclair traveled farther. Some of the other kidnapped people made it home as well; one died along the way. Others never returned. But this story is one of the dark evil in human hearts and also of the triumph, even if in greatly circumscribed fashion, of the rule of law. It is a story of a most unexpected turn in a legal system dedicated to the maintenance of the system of slavery.

While there has been some previous discussion of Sinclair’s case, that story has been told only briefly and exclusively from the perspective of the anti-slavery press and the records in Philadelphia. This is the first time that the Tuscaloosa part of the story has been told. And in this case study one can see the difficulty that southern jurists, slave-owners, and litigants had in dealing with the central tendency of the slave law in contrast with considerations of humanity and justice.

Wilkes on Habeas Petitions in the Reign of James I

Donald E. Wilkes, Jr., University of Georgia Law School, has posted Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625, which appears in the American Journal of Legal History 54 (2014): 200-63.  Here is the abstract:
English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during James I's reign. What was the origin and significance of the term High Court of Parliament? What was the parliamentary privilege of freedom from arrest, the violation of which could lead to the granting of habeas corpus relief by the House of Lords or the House of Commons? What was the civil arrest system in effect in seventeenth century Englanda system which made it likely that from time to time the parliamentary privilege from arrest would be violated and the parliamentary habeas remedy thereupon invoked? What other remedies, apart from habeas corpus, were available to deal with infringements of the parliamentary arrest privilege? And what were the contours of the parliamentary habeas corpus remedy itself, which appears not to have been successfully invoked prior to the reign of James I?

Parts II and III conclusively demonstrate that in the reign of James I the High Court of Parliament at times functioned as the High Habeas Court of Parliament. Part II provides an in-depth account of the habeas corpus proceedings in the House of Lords in the reign of James I, while Part III does the same for the habeas corpus proceedings in the House of Commons during the reign.

The Article concludes with a detailed discussion of the three major changes this work mandates in our understanding of English legal history.

Thursday, July 31, 2014

Gordon, "The Forgotten Nuremberg Hate Speech Case"

Gregory S. Gordon (University of North Dakota - School of Law) has posted "The Forgotten Nuremberg Hate Speech Case: Otto Dietrich and the Future of Persecution Law." The article appears in Volume 75 of the Ohio State Law Journal (2014). Here's the abstract:
Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against humanity judgment against Reich Press Chief Otto Dietrich, who was convicted despite the fact that the charged language did not directly call for violence. So why is the Dietrich judgment, a relatively obscure holding, issued sixty-five years ago, so significant today, after the development of a substantial body of ad hoc tribunal jurisprudence on atrocity speech? It is because the seemingly antithetical holdings in Streicher and Fritzsche are more than just the subject of academic discourse. The next generation of atrocity speech decisions, it turns out, is at loggerheads about the relationship between hate speech and persecution as a crime against humanity. Trial chambers for the International Criminal Tribunal for Rwanda (ICTR) have found that hate speech, standing alone, can be the basis for charges of crimes against humanity (persecution). A trial chamber for the International Criminal Tribunal for the former Yugoslavia has reached the opposite conclusion. And surprisingly, these judicial decisions, like the academic commentary, have completely ignored the Dietrich judgment. This Article fills in this significant gap in the judicial and academic literature by historically situating Dietrich, elucidating its holding and relationship to the IMT and ad hoc tribunal decisions, explaining its significance for current and future hate speech cases (including those in Kenya, Burma and Sudan) and offering an explanation for why it has lain in obscurity for over six decades. The Article concludes that judicial reliance on the Dietrich judgment would extricate the law from the Streicher-Fritzsche jurisprudential gridlock and permit development of doctrine that is more coherent and human rights-oriented. It would also help illuminate an important but long overlooked chapter in legal history.
The full article is available here.

Hat tip: Legal Theory Blog

Wednesday, July 30, 2014

Iowa Law Review Symposium on Gideon v. Wainwright

The Iowa Law Review has posted all of the articles stemming from its November 2013 Symposium on the 50th anniversary of Gideon v. Wainwright.  Several may be of special interest to legal historians:
Lawrence Herman, Gideon and the Golden Thread

Jerold H. Israel, Gideon v. Wainwright – From a 1963 Perspective

Bruce R. Jacob, The Gideon Trials

Sara Mayeaux, Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel

New Release: Doern, et al., "Rules and Unruliness: Canadian Regulatory Democracy, Governance, Capitalism, and Welfarism"

New from McGill-Queen's University Press: Rules and Unruliness: Canadian Regulatory Democracy, Governance, Capitalism, and Welfarism, by G. Bruce Doern (Carleton University/University of Exeter), Michael J. Prince (University of Victoria), and Richard Schultz (McGill University). Here's a description from the Press:
A critical examination of Canadian regulatory governance and politics over the past fifty years, Rules and Unruliness builds on the theory and practice of rule-making to show why government "unruliness" - the inability to form rules and implement structures for compliance - is endemic and increasing.

Analyzing regulatory politics and governance in Canada from the beginning of Pierre Trudeau's era to Stephen Harper's government, the authors present a compelling argument that current regulation of the economy, business, and markets are no longer adequate to protect Canadians. They examine rules embedded in public spending programs and rules regarding political parties and parliamentary government. They also look at regulatory capitalism to elucidate how Canada and most other advanced economies can be characterized by co-governance and co-regulation between governments, corporations, and business interest groups.

Bringing together literature on public policy, regulation, and democracy, Rules and Unruliness is the first major study to show how and why increasing unruliness affects not only the regulation of economic affairs, but also the social welfare state, law and order, parliamentary democracy, and the changing face of global capitalism.
More information, including the TOC, is available here.

Tuesday, July 29, 2014

CFP: The British Legal History Conference 2015

The British Legal History Conference 2015 has issued the following Call for Papers:
Conference Venue:

School of Law, University of Reading
Reading, United Kingdom

Details:

The twenty-second British Legal History Conference will be held at the University of Reading between 8 and 11 July 2015. The conference theme is "Law: Challenges to Authority and the Recognition of Rights". The deadline for the submission of paper proposals is 30 September 2014.

We welcome proposals which explore challenges of various types, and which are concerned with any period of history. However, proposals concerned with Magna Carta, and especially with its impact beyond the UK, are particularly welcome.

In addition to all of the usual attractions of the main conference programme, we will be offering a special session for postgraduate and early career researchers. To celebrate the 800th anniversary of Magna Carta we are also hoping to organise an optional trip to Runnymede.

Conference Organisers: Prof Catharine MacMillan and Dr Charlotte Smith

Conference Email Address: BLHC2015@reading.ac.uk
Hat tip:  Environment, Law, and History Blog

Johnson, "Law and the History of Corporate Responsibility: Corporate Governance"

Lyman Johnson (Washington and Lee University - School of Law; University of St. Thomas, St. Paul/Minneapolis, MN - School of Law) has posted "Law and the History of Corporate Responsibility: Corporate Governance." The article appears in Volume 10 of the University of St. Thomas Law Journal (2014). Here's the abstract:
This article is one part of a multi-article project on the role of law in the history of corporate responsibility in the United States. Key background material for the project is set forth in the introduction to an earlier article addressing corporate personhood. This paper deals with corporate governance while other articles address corporate purpose and corporate regulation.

Corporate responsibility concerns associated with corporate personhood, corporate purpose, and corporate regulation all ultimately relate to a far more basic issue: corporate governance. As the commercial demands of nineteenth century industrialization led to substantial displacement of the partnership form of business enterprise by large corporations with dispersed shareholders, control of these corporations - i.e., their governance - centered in the hands of senior managers, not investors themselves. This phenomenon of “separation of ownership from control” is quite different than in the typical partnership and was seminally described by Adolf Berle and Gardiner Means in their 1932 book, The Modern Corporation and Private Property. It has continued to occupy center stage in corporate law for the past eighty years.

From a legal history vantage point on corporate responsibility, the stupendous rise in commercial significance of the corporation in the nineteenth century corresponded to the precipitous decline of a regulatory approach to corporations under state corporate law, and instead, the twentieth century “outsourcing” of such regulation to an array of other legal regimes ostensibly designed to protect both investor and noninvestor groups. This meant that corporate law itself developed in such a way as to loosen, not tighten, most constraints on those who govern public corporations. The thesis of this article, developed in Parts I and II, is that corporate governance, both as a body of law and as a field of academic study, has historically had little to say on the important subject of corporate responsibility. Instead, the quest for greater responsibility in the United States largely has come from “external” legal regulation and from ongoing shifts in business and social norms. Recently, corporate law’s long and unsustainable neglect of corporate responsibility concerns has led to the emergence of a new type of business corporation, the “benefit corporation.” Benefit corporations expressly permit the directors to advance both investor and noninvestor interests, in aid of pursuing a larger public benefit. The implications of this development for governance of the regular business corporations are unknown. One potential adverse outcome is the “ghettoization” of corporate responsibility within benefit corporations, leading to even less serious attention to such concerns in the traditional business corporation.
Read on here.

Hat tip: Legal Theory Blog

Monday, July 28, 2014

Amar on Justice Jackson and "the Judicialization of the Judiciary"

Via John Q. Barrett’s Jackson List, we have the YouTube link to Akhil Reed Amar's delivery of the tenth annual Robert H. Jackson Lecture on the Supreme Court of the United States at the Chautauqua Institution.  Professor Barrett reports that the “lecture, entitled ‘Robert Jackson and the Judicialization of the Judiciary,’ was fascinating, insightful and a crowd-pleaser.”

Cajas-Sarria on the Colombian Supreme Court, 1934-35

We missed this one back in December: Mario Cajas-Sarria (Universidad Icesi Facultad de Derecho) has posted "Alfonso López Pumarejo and the Last Supreme Court of the Conservative Hegemony, 1934-1935." It appeared in Volume 40 of Revista de Derecho (2013). Here's the English Abstract:
This paper deals with the strategic behavior of a Supreme Court dominated by an overwhelming majority of conservative justices, which in the very beginning of the new liberal government seemed to be collaborative with the executive branch, on 1934.

It rebuilds the judicial review of a tax reform imposed by decree of siege by the liberal
government, that the Court declared unconstitutional in 1935, in a decision that increased the perception that the tribunal was influenced by partisan interests. Finally, it provides a joint analysis of the political role of the Court at this juncture of the Colombian political regime.

This analysis seeks to contribute to a better understanding of the judicial review of Colombia and the role played by the Supreme Court as constitutional judge, - and therefore an actor of the political regime -, in a historical perspective, in this case during the transition from the Conservative Hegemony to the Second Liberal Republic that was consolidated with the government of the "Revolucion en Marcha”.
The full version is here. (Note: the downloadable document is in Spanish.)

Sunday, July 27, 2014

Sunday Book Roundup

There's plenty to read this weekend. Gordon Wood reviews Our Declaration: A Reading of the Declaration of Independence in Defense of Equality by Danielle Allen (Liveright) in The New York Review of Books.
"This is a strange and remarkable book. There must be dozens of books on the Declaration of Independence written from every conceivable point of view—historical, political, theoretical, philosophical, and textual—but no one has ever written a book on the Declaration quite like this one. If we read the Declaration of Independence slowly and carefully, Danielle Allen believes, then the document can become a basic primer for our democracy. It can be something that all of us—not just scholars and educated elites but common ordinary people—can participate in, and should participate in if we want to be good democratic citizens."
Two other reviews in the NYRB are likely of interest to LHB readers as well, but these are behind a paywall. The first is a review by Edmund White of three books on marriage equality: Jo Becker's Forcing the Spring: Inside the Fight for Marriage Equality (Penguin), David Boies and Theodore B. Olson's Redeeming the Dream: The Case for Marriage Equality (Viking), and Walter Frank's Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy (Rutgers University Press).  The second is a review by David Cole titled, "The Anti-Court Court." It takes a look at Lawrence Tribe and Josua Matz's Uncertain Justice: The Roberts Court and the Constitution (Henry Holt), Mark Tushnet's In the Balance: Law and Politics on the Roberts Court (Norton), and Bruce Allen Murphy's Scalia: A Court of One (Simon & Schuster).

Over on H-Net there is a review of Harry Truman and the Struggle for Racial Justice by Robert Shogan (University Press of Kansas).
"In the last, and most interesting, section of the book, chapters 10 and 11, Truman falls out of the narrative and Shogan delves into the work of various members of the Truman administration as they carried out the desegregation of the armed services and supported civil rights litigation."
There's also a review of Nico Slate's Colored Cosmopolitanism: The Shared Struggle for Freedom in the United States and India (Harvard University Press).
"Through the notion of colored cosmopolitanism, these colored cosmopolitans--or the racial vanguards and most often the elites of the respective groups--questioned the meaning of color and freedom, bridging cultural and historical differences and achieving, although fleeting at times, transnational solidarities. But, Slate also shows that the diversity of the Indian and American freedom struggles produced contradictions which challenged and reinforced definitions of race, nation, class, cast, and gender."
Adding to this week's reviews on civil rights topics is an HNN review of Black Against Empire: The History and Politics of the Black Panther Party by Joshua Bloom and Waldo E. Martin, Jr. (University of California Press).

Michael Wolraich's new book, Unreasonable Men: Theodore Roosevelt and the Republican Rebels Who Created Progressive Politics (Palgrave Macmillan), is reviewed in The Washington Post and is in excerpt form on The Daily Beast. Here's a snippet of what the Post has to say about the book,
"“Unreasonable Men” invites comparison with another book on the same era, Doris Kearns Goodwin’s “The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism.” Wolraich pays relatively little attention to muckraking journalism, whereas Goodwin’s long, impassioned account of that phenomenon is the best thing in her book. Goodwin devotes ample space to the roles played in Roosevelt’s and Taft’s careers by their wives — a subject that concerns Wolraich hardly at all. But Goodwin neglects the process by which the progressive agenda became legislative reality; for example, she covers the emasculation of Cannon in a single paragraph. As for the two books’ treatment of the tumultuous 1912 presidential campaign, I would call it a tossup."

Saturday, July 26, 2014

Brubaker on Bankruptcy Injunctions and the AIA in the Early Republic

Ralph Brubaker, University of Illinois College of Law, has posted Justice Story, Bankruptcy Injunctions, and the Anti-Injunction Act of 1793, which appears in the Texas Law Review 92 (2014).  Here is the abstract:  
This article explores how the courts of the early Republic interpreted the Anti-Injunction Act ("AIA') of 1793 as applied to federal bankruptcy injunctions restraining state-court proceedings — a common and indeed intrinsic constitutional feature of federal bankruptcy proceedings pursuant to any "uniform Law on the subject of Bankruptcies." The early-Republic bankruptcy injunction cases provide indirect support for James Pfander’s and Nassim Nazemi’s novel original-ancillary theory positing a much more limited scope for the 1793 AIA than do conventional accounts of that statute’s bar. According to Pfander and Nazemi, the 1793 AIA’s prohibition against "writs of injunctions" to stay state-court proceedings (sought via an original bill through a suit in equity) did not prohibit ancillary relief in the nature of an injunction (sought via a motion or petition) granted in an equitable proceeding principally seeking relief other than or independent of such an injunction, but for which an injunctive decree (not via a "writ of injunction") might nonetheless be necessary or appropriate. The original-ancillary distinction identified by Pfander and Nazemi is reflected in one of the most prominent, fundamental, and longstanding jurisdictional and procedural divides with respect to bankruptcy proceedings — the dichotomy between plenary assignee/trustee suits at law or in equity via an original complaint or bill, as distinguished from so-called summary bankruptcy proceedings in equity on motion or petition. Early, influential decisions of Justice Story established that federal bankruptcy injunctions properly issue in ancillary summary proceedings and (consistent with the Pfander-Nazemi original-ancillary theory) found no obstacle in the 1793 AIA to enjoining state-court proceedings thereby.

The bankruptcy cases not only help illustrate that the 1793 AIA had a much more limited scope than has generally been acknowledged (consistent with both the Pfander-Nazemi original-ancillary interpretation and William Mayton’s single-justice interpretation), they also illuminate the central importance of the AIA, nonetheless, in assuaging federalism sensitivities that were easily aroused in the early Republic. Indeed, the federal courts’ administration of nineteenth century bankruptcy laws produced a very acrimonious standoff involving U.S. Supreme Court Justice Joseph Story, New Hampshire Supreme Court Justice Joel Parker, and the New Hampshire legislature, and bearing striking similarities to the Morris v. Allen controversy that many posit as the impetus for enactment of the 1793 AIA. Tellingly, the U.S. Supreme Court ultimately diffused that bankruptcy controversy through a very nuanced invocation of the 1793 AIA that neither broadened its reach (beyond that posited by Pfander and Nazemi) nor posed any enduring obstacle to the effectiveness of federal bankruptcy laws.

Friday, July 25, 2014

Updating Legal History on the Web: Last Call (and Plea for Syllabi Links)

[We have the following from Edward J. Balleisen, Associate Professor of History and Public Policy at Duke University, which follows up on an earlier post.]

First, I want to thank the many individuals who have graciously sent in corrections and suggestions for new annotated links.  Before we put up the new version of the site, I wanted to ask especially for information about legal history syllabi that are publicly available.  Link rot seems particularly likely to afflict online syllabi, and it would be great to beef up what we have for that category.  If you need a few minutes break from summer writing, and you have a legal history syllabus that is available through the intertubes, please contact Ashton Merck at ashton.merck@duke.edu.  Consider this also an opportunity to post a syllabus that isn’t yet available.

Livingston's "Fascists and Jews of Italy"

Out recently from Cambridge University Press in the ASLH-sponsored book series, Studies in Legal History, is The Fascists and the Jews of Italy: Mussolini's Race Laws, 1938–1943, by Michael A. Livingston, Rutgers-Camden School of Law.  Here is the press’s description:
From 1938 until 1943 – before the German occupation and accompanying Holocaust – Fascist Italy drafted and enforced a comprehensive set of anti-Semitic laws. Notwithstanding later rationalizations, the laws were enforced and administered with a high degree of severity and resulted in serious, and in some cases permanent, damage to the Italian Jewish community. Written from the perspective of an American legal scholar, this book constitutes the first truly comprehensive survey of the Race Laws in the English language. Based on an exhaustive review of Italian legal, administrative, and judicial sources, together with archives of the Italian Jewish community, Professor Michael A. Livingston demonstrates the zeal but also the occasional ambivalence and contradictions with which the Race Laws were applied and assimilated by the Italian legal order and ordinary citizens. Although frequently depressing, the history of the Race Laws also involves numerous examples of personal courage and idealism, and provides a useful and timely study of what happens when otherwise decent people are confronted with an evil and unjust legal order.

Mossoff on Historical and Other Justifications for IP

Adam Mossoff, George Mason University School of Law, has posted the introduction to his Intellectual Property and Property Rights (Edward Elgar, 2013).  Here is the abstract:    
This essay is the introductory chapter to Intellectual Property and Property Rights (Edward Elgar, 2013), which contains some of the leading articles published in recent years on the nature of patents, copyrights, trademarks and trade secrets as property rights. But this essay does not merely review the articles. For the first time in a single essay, it presents the three basic analytical frameworks in which intellectual property rights are defined or justified as property rights – historical, conceptual, and normative.

Drawing upon the substantive content of the articles in the volume and beyond, the essay first reviews the two descriptive framings of intellectual property rights, explaining that intellectual property rights historically have been defined and justified as property rights since the eighteenth century and that there are serious analytical reasons why intellectual property is defined conceptually in this way. The essay then explains how these two descriptive bases – the historical account and conceptual definition – provide a foundation for the two normative justifications for intellectual property as property – the utilitarian and labor-desert theories. Ultimately, the essay summarizes the substantive theoretical case for intellectual property as property, and it also briefly summarizes the critique of intellectual property from the perspective of property rights advocates.

Thursday, July 24, 2014

Zoldan on the Ex Post Facto Clauses

Evan C. Zoldan, University of Toledo College of Law, has posted The "Professional" Meaning of the Ex Post Facto Clauses.  Here is the abstract:
Since its decision in Calder v. Bull, the Supreme Court has held consistently that the Ex Post Facto Clauses apply only to retroactive criminal, as opposed to civil, laws. Nevertheless, there continues to be significant scholarly debate over the original meaning of the clauses. Relying on sources contemporaneous with the framing of the Constitution, like treatises, newspaper articles, and notes from the debates in the Philadelphia Convention, some scholars conclude that the original meaning of the Ex Post Facto Clauses includes civil as well as criminal statutes; others, relying largely on this same evidence, conclude that the original meaning reaches only criminal statutes.

The key to resolving the dispute between these two camps of scholars lies in uncovering the “professional” meaning of the Ex Post Facto Clauses, that is, the meaning of the phrase “ex post facto” as it was used by the professional community of American judges and lawyers in the course of their work in the years leading up to the framing of the Constitution. The professional meaning of the phrase ex post facto has always been, and continues to be, the focal point for discussion of the original understanding of the Ex Post Facto Clauses; nevertheless, historical evidence of the professional meaning of the phrase ex post facto has been all but unexamined.

In this article, I seek to resolve the debate over the original understanding of the Ex Post Facto Clauses by examining undeveloped evidence of the professional meaning of the phrase ex post facto. I conclude that the professional meaning of the phrase ex post facto, and original understanding of the Ex Post Facto Clauses, includes retroactive civil, as well as criminal, laws. Finally, even leaving aside these historical arguments, the story of uncovering the professional meaning of the Ex Post Facto Clauses suggests that there are prudential, doctrinal, and structural reasons for reconsidering Calder’s limitation on the scope of the clauses.

Call for Submissions: No Foundations

No Foundations ("an interdisciplinary journal of law and justice")has issued the following call for submissions:
No Foundations is an international peer-reviewed journal committed to publishing interdisciplinary legal scholarship of the highest quality at the interface between law and justice. We encourage contributions from all areas of law and beyond, with the aim of bridging the gap once opened between law and other social and human activities and experiences.
On the assumption that law is a socially embedded phenomenon that cannot be fully understood as an autonomous discipline, we aim to connect law both with its real effects on the lives of individuals and societies, and with the realm of human aspirations and ideals that give it life and meaning.
No Foundations is currently accepting general submissions and book reviews for NoFo 12 (June 2015). To facilitate the review process please send us your manuscript before March 1, 2015. Please include an abstract of no more than 200 words with your submission.
Hat tip: Legal Scholarship Blog

Wednesday, July 23, 2014

Distinguished Historians Win National Humanities Medals


President Obama recently announced the 2013 winners of the National Humanities Medal. The medals recognize those whose work has “deepened the nation’s understanding of the humanities, broadened our citizens’ engagement with the humanities, or helped preserve and expand Americans’ access to important resources in the humanities.” Three distinguished historians were among those who received the honor: David Brion Davis (Yale-Emeritus), the scholar of slavery; Darlene Clark Hine (Northwestern), the scholar of African-American and women's history; and Anne Firor Scott (Duke, emeritus), the scholar of Southern and women's history. Congratulations to these scholars on this well-deserved honor.  And thanks to each of them for producing groundbreaking scholarship that has enriched our lives.     

The Hugo Black Papers

Hugo Black, 1937 (LC)
For years, anyone who wanted to consult the papers of Supreme Court Justice Hugo Black in the Manuscript Division of the Library of Congress had to obtain the permission of one of the surviving donors, Hugo Black, Jr.  This turned out to be the opposite of a chore, because the justice’s son was so interested in scholars’ work and fun to talk to.  After his death, uncertainty about the existence of other surviving donors forced the Manuscript Division to defer accepting new requests for access to the collection, but I now have good news to report.  Jeff Flannery, the Head of Reference and Reader Services at the Manuscript Division, tells me that “restrictions to access the Hugo Black Papers have been removed by the surviving donor, with the exception of one letter which relates to family matters.”  Presumably, the Division will provide access to that letter after the lifetime of the surviving donor.  But everything else is open now.

New Release: Day, "The Southern Manifesto: Massive Resistance and the Fight to Preserve Segregation"

New from the University Press of Mississippi: The Southern Manifesto: Massive Resistance and the Fight to Preserve Segregation, by John Kyle Day (University of Arkansas at Monticello). Here's a description from the Press:
On March 13, 1956, ninety-nine members of the United States Congress promulgated the Declaration of Constitutional Principles, popularly known as the Southern Manifesto. Reprinted here, the Southern Manifesto formally stated opposition to the landmark United State Supreme Court decision Brown v. Board of Education, and the emergent civil rights movement. This statement allowed the white South to prevent Brown's immediate fullscale implementation and, for nearly two decades, set the slothful timetable and glacial pace of public school desegregation. The Southern Manifesto also provided the Southern Congressional Delegation with the means to stymie federal voting rights legislation, so that the dismantling of Jim Crow could be managed largely on white southern terms.
In the wake of the Brown decision that declared public school segregation unconstitutional, seminal events in the early stages of the civil rights movement--like the Emmett Till lynching, the Montgomery bus boycott, and the Autherine Lucy riots at the University of Alabama brought the struggle for black freedom to national attention. Orchestrated by United States Senator Richard Brevard Russell Jr. of Georgia, the southern congressional delegation in general, and the United States Senate's Southern Caucus in particular, fought vigorously and successfully to counter the initial successes of civil rights workers and maintain Jim Crow. The South's defense of white supremacy culminated with this most notorious statement of opposition to desegregation. The Southern Manifesto: Massive Resistance and the Fight to Preserve Segregation narrates this single worst episode of racial demagoguery in modern American political history and considers the statement's impact upon both the struggle for black freedom and the larger racial dynamics of postwar America.

Tuesday, July 22, 2014

Finkelman at the Dallas Bar's Legal History Group on Douglass's Constitution

[We have the following from our faithful reader Josiah Daniel, a lawyer at Vinson & Elkins who chairs the Dallas Bar Association’s Legal History Discussion Group.]

If a reader of Legal History Blog finds him/herself in Dallas this Thursday (July 24), consider this your invitation to attend a lecture at Noon presented by the Legal History Discussion Group of the Dallas Bar Association.  Paul Finkelman speaking on “Frederick Douglass’s Constitution: From Garrisonian Abolitionist to Lincoln Republican.”  The event will be in the Belo Mansion, headquarters of the Association, in the Dallas Arts District at 2101 Ross Avenue.  It is Texas-MCLE accredited and free.  (Lunch is available for a fee.)

The 10-Minute Approach to Writing. Every. Day.

Gregory Semenza's (U Conn-English) recent post about how to make time for writing caught my eye. In a Chronicle of Higher Education column entitled "The Value of 10 Minutes: Writing Time for the Timeless Academic," Semenza advises that instead of spending brief windows of time between meetings or other tasks surfing the web or otherwise distracted, use those intervals to comply with the dictate to Write. Every. Day. Those snatches of productivity add up and can make writing less daunting. What terrific advice! And it's easy to customize the idea to fit one's own schedule (e.g. the 20-minute or 30-minute method), if a different time interval strikes you as more suitable. (Whatever strategy you choose, of course you should still surf here, at the Legal History Blog, during your downtime!)

CFP: Remaking North American Sovereignty

[Via the Canadian Legal History Blog, we have the following Call for Papers:]

Remaking North American Sovereignty: Towards a Continental History of State Transformation in the Mid Nineteenth-Century

July 30-August 1, 2015 at the  Banff  Centre  in  Banff,  Alberta,  Canada.

This  conference  considers  state  making  in  mid-nineteenth  century  North  America from  a  continent-wide  perspective. Peaking  in  the  years  1865-67  with  the  end  of  the  American  Civil  War,  Canadian  Confederation,  and  the  restoration  of  the  Mexican  republic  after  the  expulsion  of  Maximilian,  a French-imposed  monarch, this  era  of  political  transformation  has  had  profound  consequences  for  the  future  of  the  continent.

Key  to  the  reformulation  of  North  American  polities  was  the  question  of  sovereignty,  or  the  power  to  rule.  Conflicts over  sovereignty went  well  beyond  the  years  1865-67  and  encompassed  not  only  the  political  and  diplomatic  aspects of  state-making but  also  the  broader social, economic,  and  cultural  histories  of  this  process.

Thus  far,  the  continental  dimensions  of North  American  sovereignty have  been  obscured  by  historical  traditions  that  confine  each  of  these  state making  conflicts  within  its  specific  national  framework.  In  light  of  the  global  turn  in  19th century historiography,  as  well  as  the  real  interconnections across  the  continent,  it  is  time  to  consider  these  political  crises  as  an  inter-related  struggle  to  redefine  the  relationship  of  North  Americans  to  new  governments.
         
Keynote addresses  will  be  delivered by  Professors  Steven  Hahn,  University  of Pennsylvania;  Pekka  Hämäläinen, Oxford  University;  Erika  Pani,  Colegio  de  Mexico;  and Andrew  Smith,  University  of  Liverpool.

The  conference  organizers  seek  papers  that  offer  original  work  examining  different  aspects  of  national  sovereignty  formation  in North  America during  this  period.  Work  that  examines  these  conflicts  in  a  transnational  perspective  is  especially  welcome. Paper  proposals  (between  200-500  words)  should  be  accompanied  by  a  brief  CV  and  should  be  submitted  to  Frank  Towers  (ftowers@ucalgary.ca)  by  August  31,  2014.  Papers from the conference  may  be  included  in  a  publication.  In  preparation,  presenters  will  be asked  to  circulate  drafts  of  their  papers  by  July  1,  2015. This  conference  is  sponsored  by  the George  and  Ann  Richards  Civil  War  Era  Center  at  Penn State  University  and  supported  by  the  Virginia  Center  for  Civil  War  Studies at  Virginia  Tech University and  the  University  of  Calgary.

Dudziak, A Legal History Survival Guide

Over at War Time, LHB founder Mary Dudziak (Emory University) has been running a series of posts titled "A Legal History Survival Guide." It is addressed to diplomatic historians, but would be useful for all scholars seeking to bring law into their work. Here's the text of the first one (cross-posted with permission):
For an essay on legal history as diplomatic history for the 3rd edition of Explaining the History of American Foreign Relations, I close with some tips about how a non-legal historian might venture into legal history. Here's my list. What am I missing?
Building legal history into your diplomatic history research may be important or essential. It can also be fraught with peril. Historians without legal training can make mistakes when unaware of the way different areas of law interconnect, or the way jurisdictional or procedural rules affect a case. But even complex areas of law can be mastered sufficiently.

Here are some guidelines to help you bring law into your project without making mistakes:
  • Audit a law school class in your subject area. Do all the reading and participate in class discussion.
  • To develop an overview of an area of law, find a well-regarded treatise.
  • Ask a legal historians to be on your dissertation committee.
  • Attend meetings of the American Society for Legal History.
  • Present your work in law settings, including at ASLH  and Law and Society Association meetings. Find opportunities for legal scholars to read your work and comment on it.
  • Attend legal history workshops and programs in your area. Some law schools have legal history workshop series. They will be delighted to have you.
  • Take advantage of legal history programs for graduate students and others hosted by ASLH and others.
  • Read the Legal History Blog, where new scholarship is discussed and opportunities are often announced.
And here's part two.

We'll keep an eye out for further "legal history survival guide" posts. In the meantime, you can follow them yourself at War Time.

Monday, July 21, 2014

Mehrotra Receives Intellectual History Book Award

Congratulations to former LHB Guest Blogger Ajay Mehrotra, Indiana University Maurer School of Law, for being named the recipient of the Society of U.S. Intellectual History’s book award for 2014 for Making the Modern American Fiscal State (Cambridge University Press, 2013). Here is the citation, from the Society’s website:
Mehrotra’s important and ambitious book chronicles the early 20th-century transformation in American tax policy and public finance. It analyzes the shift from the nineteenth-century “regime of indirect, hidden, partisan, and regressive taxes” to the “direct, transparent, professionally administered, and progressive tax system” we know today. A book on taxation may well seem a curious choice for an intellectual history prize, but we were struck by how successfully Mehrotra weaves together the intellectual, legal, administrative threads of his argument. Mehrotra takes ideas seriously. He traces legal and administrative change to a prior “conceptual revolution,” wrought primarily by a cohort of professionally trained intellectuals, including Henry Carter Adams, Richard Ely, and Edwin R.A. Seligman. And he shows how notions of economic justice, political obligation, ethical duty, and democratic reciprocity underwrote the new progressive conception of what Mehrotra aptly labels “fiscal citizenship.” He also shows what happened to those ideas as they traveled through a contested political process and were embodied in a complex administrative apparatus with paradoxical and often unintended consequences. Mehrotra’s book is thus a history of ideas in action. It makes a signal contribution to the field by demonstrating how even the most seemingly mundane features of our world have strikingly rich intellectual histories.

Ms. Peppercorn Considers: Grafton Line

And now a post from our advice columnist in residence, Ms. Peppercorn:
Ms. Peppercorn has some apologies due to a correspondent who wrote earlier this summer. Here we are past the all-star break and she is just getting around to answering a query about the best use of time over the summer when one wants to be productive. Here is the question:

Dear Ms. Peppercorn,

For the first time in many years, I find myself with three months of mostly
uninterrupted writing time, and I am desperate to use it wisely. I worry, though, that without the structure imposed by fixed deadlines I will squander this rare gift of time and fail to make significant progress on my book manuscript. My academic Twitter and Facebook friends seem to have stumbled on the answer: something they call “Grafton Line.” What do you make of this? Just a passing fad, or a tried and true strategy for making the most of a writing summer? Could it be that the solution to this old academic conundrum really that simple?
Nervous in New England

Upon receipt of this request, Ms. Peppercorn began her research, and was stunned to learn that legal historians of otherwise respectable habits have become followers of the Grafton Line. What is that, asks the gentle reader. See this interview with Tony Grafton. The result has been a twitter feed #GraftonLine. Lots of people you know are on the facebook page. (For an overview, follow the link.) The internet is not just changing the way we read, but how we write, and how we think about writing. Ms. Peppercorn immediately descended into a funk. Efficiency? Competition? When did we become such bean counters? And 3,500 words in four hours of writing, sacré bleu!

A conversation with fellow legal historians after a wonderful recent conference put on by Barbara Welke at Minnesota revealed that the Grafton Line has become a vital element for several eminent scholars. They report greater productivity and vastly increased joy in their work.

Egad.

And mere mortals are imposing their own Grafton lines. 500 words per day, or 750. Something even a legal historian might aspire to. And many of them are finding a new kind of supportive community through their embrace of sharing their goals on blogs and twitter feeds.

Ms. Peppercorn must admit that she still thinks Anthony Trollope (who also wrote thousands of words every morning) was a pretty wretched hack, and apparently some people still read that stuff. But she has started counting her words. (This column will come in at around 500 or so; maybe a day’s work?) The Grafton Line, it seems, is so contagious, that even those who try to resist are drawn in. If this approach really helps to spur effort devoted directly to writing, perhaps my correspondent still has time to log in a productive summer!
Do you have thoughts about Grafton Line or tips for staying productive over the summer? Feel free to post a comment below or send us a message on twitter (@legalhistory).

Do you have a question for Ms. Peppercorn? Email us anytime.

Sunday, July 20, 2014

Sunday Book Roundup


This week over at Balkinization, Mark Graber reviews Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights by Emily Zackin (Princeton University Press). He calls the book "an excellent example of the wonderful scholarship that can be produced when exceptional scholars analyze state constitutions through the prism of state constitutional actors rather than through the prism of Warren Court liberalism."

Law and Politics Book Review has two reviews to note. The first is Jill Norgren’s Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers (NYU Press), which “will be of interest to undergraduate and graduate students of American legal history, labor, and gender. Norgren’s well written and thorough volume illuminates the experiences of these determined women and shows the impact of their struggles on the legal profession and the struggles for women’s civil rights.” 

The second is Statebuilding from the Margins: Between Reconstruction and the New Deal edited by Carol Nackenoff and Julie Novkov (University of Pennsylvania Press).
“In an enjoyable, well-researched, and well-edited compilation of eclectic case studies edited by Carol Nackenoff and Julie Novkov, scholars examine how non-state actors of various civic, social, and ideological groups during the Progressive Era brought the state back in as a means of achieving desired policy ends. The accounts are notable for drawing attention to previously unexamined policy areas that provide leverage for claims that statebuilding is not always rational or linear, the distinction between public and private actors is not so cut-and-dried, and that the agency of actors is bounded by institutions and prevailing ideologies of the public good. Taken together, the chapters of this important contribution to the subfield of American Political Development exemplify the quintessential nature of the fragmented, piecemeal, inconsistent, and often jarring development of the capacity of the American state."
Abigail Perkiss talks with New Books in History about her new book, Making Good Neighbors: Civil Rights, Liberalism and Integration in Postwar Philadelphia (Cornell University Press).

And, Michael Bryant talks with New Books in Law about his new book, Eyewitness to Genocide: The Operation Reinhard Death Camp Trials, 1955-1966 (University of Tennessee Press). 

“A recent trend in Native studies is tribal-level examinations on indigenous nation-building and the expanding definitions of sovereignty, as well as examinations regarding citizenship that are inevitably generated from such endeavors. Brian Klopotek, in Recognition Odyssey: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities, brings a much-needed perspective to these conversations through his detailed analysis of the variability in the recognition process and how success or failure is predicated more on the intersections of larger historical social structures with specific circumstances than on objective qualifications. Using a multidisciplinary approach combining history, anthropology, and sociology, Klopotek has written an immensely impressive and supremely complex history of three distinct Indian communities in late twentieth-century Louisiana seeking state and federal recognition: the Tunica-Biloxi, the Jena Choctaws, and the Clifton-Choctaws.”

Saturday, July 19, 2014

Conyers Papers to the Keith Collection

[From the Columbus, Indiana, Republic.] A number of judges and lawyers honored U.S. Rep. John Conyers in a ceremony Friday, thanking the 85-year-old Detroit Democrat for donating personal papers from his nearly 50 years in Washington to Wayne State University.

The papers, which include his work on the Voting Rights Act of 1965 and the establishment of the Rev. Martin Luther King Jr.'s birthday as a national holiday, will be held by the Damon J. Keith Collection of African-American Legal History.  More.

British Legal History Conference 2015

Via @LHR_editor and ESCLH we have the following call for papers for “Law: Challenges to Authority and the Recognition of Rights," the British Legal History Conference 2015.  It will be held at the University of Reading July 8-11, 2015.]

In celebration of the 800th anniversary of Magna Carta the theme of the British Legal History Conference 2015 at the University of Reading is ‘Law: Challenges to Authority and the Recognition of Rights’.

While different forms and ideas of authority have shaped law historically, law has also been  moulded by, and influenced, challenges to authority brought to assert and seek recognition of rights. Magna Carta resulted from one such challenge, but challenges to social, economic, political and doctrinal authorities existed before Magna Carta and have continued to occur since.

The British Legal History Conference 2015 is concerned to explore how law, both public and private, has been shaped by, and shaped, challenges to authority brought to seek the recognition of rights. It welcomes papers which examine how law, legal processes and legal actors have developed in response to such challenges to authority, and indeed how an understanding of the law has itself often influenced these challenges. While the conference will explore challenges of different natures and from different epochs, proposals concerned with Magna Carta, and particularly its impact beyond England, are welcomed.

In addition to this general call for papers, the 2015 Conference will also include a special session for young and less experienced scholars. The organisers welcome proposals from postgraduate and early career researchers for this session.

Proposals for papers (maximum 300 words) should be submitted to BLHC2015@reading.ac.uk
by 30 September 2014.

Friday, July 18, 2014

Sawyer, "English Law and American Democracy in the Revolutionary Republic: Maryland, 1776-1822"

Jeffrey K. Sawyer (University of Baltimore School of Law) has posted "English Law and American Democracy in the Revolutionary Republic: Maryland, 1776-1822." The essay appeared in Volume 108 of the Maryland Historical Magazine (Fall 2013). Here's the abstract:
Between 1776 and 1784, eleven of the original thirteen states made some provision for the continuing authority of the common law and British statutes. But there were highly significant variations in the pattern from state to state, variations that helped to differentiate each state as a unique jurisdiction. In Maryland, despite the effort of leading lawyers to settle the matter once and for all in 1776, the precise effects of Article 3 had to be worked out over several decades of political, legal, and intellectual maneuvering. As a result, Marylanders left a remarkable record of politicians, lawyers, and judges contesting for different views of the importance of legal continuity in a democratic republic. This history helps explain why Marylanders are still entitled to the benefits of the common law by the authority of Article 5 of their current constitution, and it also illuminates a defining feature of American democracy, the tension between its theory of sovereignty and the rule of law in practice.

As historians and students of the revolutionary era in Maryland well know, the constitution of 1776 as a whole was a defeat for direct democracy and any popular agenda of social leveling or economic equality that may have been in play, A few idealists, notably Colonel Rezin Hammond of Anne Arundel County, were elected to the 1776 convention but were unable to build a strong statewide political coalition. Effectively led by their wealthy and worldly leaders, notably Charles Carroll of Carrollton, Matthew Tilghman, Samuel Chase, Thomas Johnson, Charles Carroll the Barrister, and William Paca, a majority of delegates embraced independence from the British Empire but voted consistently for a style of government that was familiar and predictable. Why was this plan so conservative? In part because delegates embraced a conception of democratic legitimacy shaped not just by Revolutionary ideals and rhetoric about liberty and rights, but also by the particulars of local legal history.
Read on here.

Hat tip: Legal Theory Blog

Coombe on Breach of Marriage Promise and Defamation in Victorian Ontario

Rosemary Coombe, York University, has been posting her backlist on SSRN.  Two articles of special interest to legal historians.  The first is  'The Most Disgusting, Disgraceful and Inequitous Proceeding in Our Law': The Action for Breach of Promise of Marriage in Nineteenth Century Ontario, University of Toronto Law Journal 38 (1988): 64-108: 
This study examines judicial management of the action for breach of promise of marriage in nineteenth-century Ontario through an analysis of reported cases, trial records, and newspaper accounts. This seldom researched area of legal history sheds light on the interplay between cultural ideology and legal developments. Breach of promise of marriage cases elicited much societal attention and often consternation because they challenged widely held attitudes on women’s participation in the legal system. This study also illustrates how judges at the time exhibited a strong commitment to judicial autonomy in the face of contentious juridical gender issues, as these cases often threatened Victorian visions of social order.
A second is Contesting the Self: Negotiating Subjectivities in Nineteenth-Century Ontario Defamation Trials, Studies in Law, Politics and Society 11 (1991): 3-40:
Understanding the hegemonic quality of legal discourse requires us to view hegemony as unfolding in multiple sights of discursive practice. Thus, we must begin to analyze not only hegemonic legal discourse but hegemony in social sights of legal practice in order to see that legal practice is essential in processes of domination and social ordering. In this article, I explore the processes of political subjection and resistance as they manifest in witness testimony and judicial decisions from late nineteenth century defamation trials in Ontario. I argue that slander and libel suits were integral in constructing particular legitimate knowledges about class and gender as categories of social identity.

Thursday, July 17, 2014

Leubsdorf on the Preponderance of the Evidence Standard

John Leubsdorf, Rutgers-Newark Law School, has posted Preponderance of the Evidence: Some History.  Here is the abstract:
Although much has been written on the history of the requirement of proof of crimes beyond a reasonable doubt, this is the first study to probe the history of its civil counterpart, proof by a preponderance of the evidence. It turns out that the criminal standard did not diverge from a preexisting civil standard, but vice versa. Only in the late eighteenth century, after lawyers and judges began speaking of proof beyond a reasonable doubt, did references to the preponderance standard begin to appear. Moreover, United States judges did not start to instruct juries about the preponderance standard until the mid-nineteenth century, and English judges not until after that. The article explores these developments and their causes with the help of published trial transcripts and newspaper reports that have only recently become accessible. The history thus revealed casts a new light on two subjects that have aroused much scholarly attention during the last few years: the fact that European civil law systems do not proclaim differing standards for civil and criminal proceedings; and the questionable policy foundations on which the preponderance standard rests.

New Release: Blair on Treason and Loyalty in the Civil War Era

New from the University of North Carolina Press: With Malice Toward Some: Treason and Loyalty in the Civil War Era, by William A. Blair (Pennsylvania State University). A description from the Press:
Few issues created greater consensus among Civil War-era northerners than the belief that the secessionists had committed treason. But as William A. Blair shows in this engaging history, the way politicians, soldiers, and civilians dealt with disloyalty varied widely. Citizens often moved more swiftly than federal agents in punishing traitors in their midst, forcing the government to rethink legal practices and definitions. In reconciling the northern contempt for treachery with a demonstrable record of judicial leniency toward the South, Blair illuminates the other ways that northerners punished perceived traitors, including confiscating slaves, arresting newspaper editors for expressions of free speech, and limiting voting. Ultimately, punishment for treason extended well beyond wartime and into the framework of Reconstruction policies, including the construction of the Fourteenth Amendment.
Establishing how treason was defined not just by the Lincoln administration, Congress, and the courts but also by the general public, Blair reveals the surprising implications for North and South alike.
A few blurbs:
"William Blair’s With Malice toward Some represents a remarkably fresh contribution toward historians' understanding of treason and loyalty during the Civil War era. Highly original and deeply researched in heretofore neglected sources, Blair offers a elegantly written reinterpretation that operates at many levels, with many different actors, and with profound implications for the American constitutional system during wartime. A must read for nineteenth-century American historians." --William A. Link
 
"This book makes a very important contribution to the scholarship on treason and disloyalty during the American Civil War and Reconstruction; it has wonderful new research while drawing on the latest literature; and it is a very good read." --Michael Vorenberg
More information is available here.

The Roosevelt Court and the Landis Report from Quid Pro Books

New from our friends at Qud Pro Books is a reissue of another “Classic in Law and Society,” The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947, by C. Herman Pritchett:
This is a brilliant analysis of Supreme Court decisions during a crucial decade in the Supreme Court's history, by a political scientist "interested in the social and psychological origins of judicial attitudes and the influence of individual predilections on the development of law." A much-cited classic of the Court and judicial decision-making from the point of view of social science and history -- not just doctrine -- this work is at last available in a new reprint edition. It is the book that jump-started the modern study of judicial behavior.
"One of the most informative, judicious, and illuminating of all the books on our judicial history." —Henry Steele Commager

 "His analysis is continuously interesting to the general student of the Court.... Excellent analysis of the subject matter of Court opinions.... No one has done a better job of catching the true meaning of the Supreme Court's role as an instrumentality of government, or of putting that meaning into striking yet comprehensible language.... No better brief summary of the constitutional law of [this] decade can be found anywhere. Finally, the book Is studded with wise insights into the nature of judicial review and the business of the Supreme Court."
 —American Historical Review

"Provocative, well-written, and adventurous."
 —New York Times
"Written in an easy style, free of dogma, and interspersed with a sense of humor, it will solve for many the enigma of seven justices appointed by the same President and presumably endowed with a kindred social outlook attaining unprecedented heights of disagreement."
 —Christian Science Monitor
Part of the Classics of Law & Society Series from Quid Pro Books, this is an authorized and unabridged republication of the original work. Presented in a modern format, it nonetheless retains and embeds the original pagination for continuity of referencing and syllabus and for the convenience of the reader. A new digital edition is also available from Quid Pro.
And, speaking of classics, Quid Pro Books also has an edition of “The Landis Report," more formally known as Report on Regulatory Agencies to the President Elect (on which see Donald Ritchie's article and Joanna Grisinger's Unwieldy American State).  The press explains:
James Landis (LC)
James Landis’ hard-to-find but much-cited Report to Sen. John Kennedy’s committee on administrative regulation and commissions is now readily and affordably available as an ebook or new paperback. Sold out or “unavailable” with major booksellers despite its frequent use in academic literature, the Report finds its new home in the Legal Legends Series.

In 1960, James M. Landis drafted the Report on Regulatory Agencies to the President-Elect and submitted it to President-elect (Sen.) John F. Kennedy, reexamining the federal regulatory commissions and administrative agencies’ structures and powers. He recommended such reforms as strengthening the commissions’ chairpersons and streamlining the agencies’ procedures. The Kennedy Administration subsequently adopted many of the recommendations.

This historic and insightful monograph is now available as a quality ebook, featuring active Contents and accurate reproduction of the original report. It also has a new paperback reprint edition.

James McCauley Landis (1899–1964) was a lawyer, law professor, government official, and legal advisor. More specifically, he was a professor of law and Dean at Harvard Law School and served in various government positions as part of the New Deal, as well as in the Truman Administration. He also served as Special Counsel to President John F. Kennedy.

Wednesday, July 16, 2014

Legal History at SHEAR

The annual meeting of the Society for Historians of the Early American Republic (SHEAR) convenes this week (July 17-20) in Philadelphia. Here's a sampling of the legal history offerings (the full program is available here):

FAITH, POLITICS, AND LAW AFTER THE FOUNDING
PRESIDING: Christopher Grasso, College of William and Mary

The African Supplement: Corporate Law, Race, and Religion in Early National Philadelphia
Sarah Barringer Gordon, University of Pennsylvania

The Founders Speak: Spiritualist Visitations from the Revolutionary Generation in the Mid-Nineteenth Century
Ryan K. Smith, Virginia Commonwealth University

The Myth of American Religious Coercion: The New Nation’s Un-official Religious Establishment and Its Paradoxes
Chris Beneke, Bentley University
COMMENTS: Mary Kupiec Cayton, Miami University; Christopher Grasso

BOUNDARIES OF CITIZENSHIP IN THE NEW AMERICAN REPUBLIC
PRESIDING: Douglas Bradburn, Binghamton University

The Loyalist Problem in New York and Pennsylvania
Brett Palfreyman, Binghamton University

The Argument against Confiscation in South Carolina and New York
Tom Cutterham, New College, Oxford University

Native Citizenship, Sovereignty, and the Law of Nations in the New Republic
Greg Ablavsky, University of Pennsylvania Law School
“Creating an Order of Citizens”: Black Northerners and Civic Status in the Early Republican North
Sarah Levine-Gronningsater, University of Chicago
COMMENT: Holly Brewer, University of Maryland

THE SOUTH AMERICAN QUESTION IN THE EARLY REPUBLIC: DIPLOMACY, STATE BUILDING, AND POLITICAL ECONOMY
PRESIDING: Brian Rouleau, Texas A&M University

Contracted Weaponry: The Law of Nations and the U.S.-Latin American Arms Trade, 1793-1818
Andrew Fagal, Binghamton University
Edward Pompeian, College of William and Mary

“An universal alteration in the commercial relations of the universe”: U.S. Political Economy and South America, ca. 1815-1825
Martin Öhman, University of Virginia

“Anywhere where we have diplomatic powers we can affect regulation”: Managing New Markets in an Age of Latin American Revolutions, 1810-1830
Lindsay Schakenbach, Brown University
COMMENTS: Andrew Shankman, Rutgers University at Camden; Brian Rouleau

WOMEN AND PROPERTY IN EARLY AMERICA
PRESIDING: Kirsten E. Wood, Florida International University
“Great Value in the Personal Property Here”: Elite Women’s Ownership in Early National New York City
Alisa Wade Harrison, The Graduate Center, City University of New York

“The consideration due to him as the head of his family”: Hostility to Women’s Separate Estates in the Early National South
Lindsay Keiter, College of William and Mary

Widows and Waste: Disputing Dower Rights in Early National New Jersey
Eleanor McConnell, Frostburg State University

COMMENTS: Stephen A. Mihm, University of Georgia; Kirsten E. Wood
UPDATE:

One more, from the session titled PECHA-KUCHA (to inspire a lively atmosphere, bringing a drink from the bar is encouraged)
Unrolling the Past: Massachusetts Anti-Slavery Petitions
Nicole Topich, Harvard University

 Did we miss anything? Leave a comment of send us an email and we'll update the post.

Brown-Nagin's Fulton Lecture for 2014

A recording of "The Honor and Burden of Being First: Judge Constance Baker Motley,” Tomiko Brown-Nagin’s Fulton Lecture, delivered at the University of Chicago on May 8, 2014, is available here.  (Tomiko Brown-Nagin is Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, Professor of History at Harvard Graduate School of Arts & Sciences, and Co-Director, Program in Law and History at Harvard University–as well as an LHB Blogger.
Professor Brown-Nagin's talk examines the legacy of The Honorable Constance Baker Motley—and break new ground in the study of civil rights, women's rights, and the legal profession. A protégée of Thurgood Marshall, Motley litigated in southern courtrooms during the 1940s and 1950s, when women lawyers scarcely appeared before the bar. She captivated onlookers who had rarely seen a woman or a black lawyer, much less the extraordinary combination—a black woman lawyer. In 1966 Motley then became the first African-American woman appointed to the federal judiciary. After a long confirmation battle, she ascended to the United States District Court in New York. In her new post, Motley sometimes ruled as segregationists had feared and as liberals had hoped. Typically, Motley deferred to constraints of the judicial role. Therefore, Professor Brown-Nagin concludes, Motley's judicial career demonstrates that—more often than not and regardless of who presides—courts preserve hierarchy.

ANZLH E-Journal 2013

I don't believe we've noticed the publication of the 2013 volume of the Australia & New Zealand Law & History E-Journal, available, as its title suggests, online.  Here is the TOC:

Editor's Introduction   

Searching for the Hidden Convict in Virginia’s Servant Laws
Jennifer Jeppesen, History, University of Melbourne

The Corruption of Benjamin Boothby
Peter Moore, Law, University of Technology Sydney

Francis Lieber and the South Carolina College Library: An Examination of a Scholar’s Academic Library Use
Patrick F. Roughen, Jr, North Carolina Central University

‘Their Proper Historical Place’: The Adjudication of History at the 1978–79 Commission of Inquiry into Chiropractic in New Zealand
Willem van Gent, History, University of Auckland

FORUM: LAW, HISTORY, CULTURE: READING SOURCES
   
A map, a poem and two copyright statutes
Isabella Alexander, Law, University of Technology Sydney

The Vanished Source: Gossip and Absence in the Cape of Good Hope ‘Placard Scandal’ of 1824.
Kirsten McKenzie, History, University of Sydney

The Usual Sources: Historical Surprises in Letters and Wills
Prue Vines, Law, University of New South Wales

‘As this painting suggests’: The Power and Perspective of the Visual in Law and History
Diane Kirkby, History, La Trobe University

Reading the Old Bailey Proceedings
Arlie Loughnan, ARC Postdoctoral Research Fellow, Faculty of Law, University of Sydney

Stolen Generations’ Online Testimonies as Sources of Social Justice: Towards an Ethics of Encounter
Honni van Rijswijk, Law, University of Technology, Sydney

BOOK REVIEWS
   
Hickford, Mark. Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire. (Oxford University Press, Oxford, 2011. 522 pp. ISBN 9780199568659).
David V Williams, University of Auckland

Kirkby, Diane (ed). Past Law, Present Histories. (ANU E Press, Canberra, 2012. 230 pp. ISBN 97819222144027).
Grant Morris, Victoria University of Wellington

Tuesday, July 15, 2014

Law and History Review: A Continental Issue

A tweet from @LHR_editor tells us the next issue of Law and History Review is available now as a series of “First View Articles on Cambridge’s website:

Access to Justice: Legal Aid to the Poor at Civil Law Courts in the Eighteenth-Century Low Countries
Griet Vermeesch

The Transformation of Adultery in France at the End of the Middle Ages
Sara McDougall

Public Opinion and the French Capital Punishment Debate of 1908
James M. Donovan

Disciplining the Market: Debt Imprisonment, Public Credit, and the Construction of Commercial Personhood in Revolutionary France
Erika Vause

New Release: Smith, "On Democracy's Doorstep"

New from Hill & Wang: On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought "One Person, One Vote" to the United States, by J. Douglas Smith (Director of Humanities, Colburn Music Conservatory). A description from the Press:
As chief justice of the U.S. Supreme Court, Earl Warren is most often remembered for landmark rulings in favor of desegregation and the rights of the accused. But Warren himself identified a lesser known group of cases—Baker v. Carr, Reynolds v. Sims, and their companions—as his most important work. J. Douglas Smith’s On Democracy’s Doorstep masterfully recounts the tumultuous and often overlooked events that established the principle of “one person, one vote” in the United States.

Before the Warren Court acted, American democracy was in poor order. As citizens migrated to urban areas, legislative boundaries remained the same, giving rural lawmakers from sparsely populated districts disproportionate political power—a power they often used on behalf of influential business interests. Smith shows how activists ranging from city boosters in Tennessee to the League of Women Voters worked to end malapportionment, incurring the wrath of chambers of commerce and southern segregationists as they did so. Despite a conspiracy of legislative inaction and a 1946 Supreme Court decision that instructed the judiciary not to enter the “political thicket,” advocates did not lose hope. As Smith shows, they skillfully used the Fourteenth Amendment’s Equal Protection Clause to argue for radical judicial intervention. Smith vividly depicts the unfolding drama as Attorney General Robert F. Kennedy pressed for change, Solicitor General Archibald Cox cautiously held back, young clerks pushed the justices toward ever-bolder reform, and the powerful Senate Minority Leader Everett Dirksen obsessively sought to reverse the judicial revolution that had upended state governments from California to Virginia.

Today, following the Court’s recent controversial decisions on voting rights and campaign finance, the battles described in On Democracy’s Doorstep have increasing relevance. With erudition and verve, Smith illuminates this neglected episode of American political history and confronts its profound consequences.
A few blurbs:
“Today, the principle of ‘one person, one vote’ is fundamental to democracy—but it wasn’t always so. On Democracy’s Doorstep tells how the Supreme Court decided to enter the political thicket and create the modern law of democracy, and how a proposed constitutional amendment almost reversed the Court. In today’s era of partisan gerrymandering and the overturning of the Voting Rights Act, this book could not be more timely and relevant.” —Noah Feldman
“On Democracy’s Doorstep is the compelling story of how a president and a Supreme Court rescued American democracy a half century ago—a vitally important book for our democracy’s new age of crisis.” —John Fabian Witt
More information is available here.