Tuesday, April 15, 2014

A Final Post on Tax Day

"The New Man on the Job" (LC)
Former Guest Blogger Ajay Mehrotra's op-ed: The Lost Promise of Progressive Taxes.

Kellogg on Holmes on the Syllogism

This one looks fascinating, especially for fans of The Metaphysical ClubFrederic R. Kellogg, George Washington University, has posted The Social Dimension of Legal Induction: The Problem of Legal Similarity and the Process of Entrenchment.  Here is the abstract:   
(Credit: Library of Congress)
After attending lectures on the logic of induction by C.S. Peirce in 1866 and reading J.S. Mill’s A System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of "reasoning from particulars to particulars." In an 1870 paper he adds an element of the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification.

Holmes’s rejection of the syllogism in The Common Law is well known, but not his attendance at Peirce’s 1866 Lowell Lectures, where Peirce addressed the improper use of the syllogism with respect to "occasions," as opposed to objects with extension. Peirce also criticized Mill’s assumption of a natural similarity among particulars, requiring no human selectivity. This paper suggests that Holmes applied these insights to law, analyzing how legal similarity is negotiated and eventually entrenched in the common law.

Krakoff, "Constitutional Concern, Membership, and Race"

Sarah Krakoff (University of Colorado Law School) has posted "Constitutional Concern, Membership, and Race," which is forthcoming in the Florida International Law Review (2014). Here's the abstract:
American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which is part of a larger project on tribes, sovereignty, and race, will discuss the history of Florida’s tribes, their road from pre-contact independent peoples to federally recognized tribes, and their contemporary membership criteria in order to shed light on the inextricably political nature of race, membership and sovereignty in the American Indian context.
The full article is available here.

Hat tip: Turtle Talk

Docket Books at the Supreme Court: A Definitive List and Access Rules

Courtesy: Office of the Curator, US Supreme Court
When U.S. Supreme Justice James McReynolds pushed his docket book across his desk to John Knox, the legal secretary felt “almost as if Moses had unexpectedly handed me the Ten Commandments.”  Knox’s awe was understandable: the book was a large, red volume, locked with a clasp, in which McReynolds, like his brethren, recorded votes, and sometimes more, during the conferences in which they considered the week's cases.  Knox recalled McReynolds saying rather sharply, ‘That book will not be preserved after this term of the Court!  Next June I shall take it downstairs myself and stand before the big furnace in this building and watch it burn up.  A book like this must be destroyed at the end of each term!”

McReynolds may well have destroyed his docket book for the 1936 Term, but, thanks to a list released yesterday by the Office of the Curator of the Supreme Court of the United States (right; click to enlarge), we now know that his docket book for 1934 survives, as do those of many other justices.

As I said in an earlier post, the existence of the docket books is hardly a secret.  Dean Robert C. Post used Pierce Butler’s, Owen Roberts’s, and Harlan Fiske Stone’s in The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, Minnesota Law Review 85 (2001): 1267-1390.  I mentioned my use of Butler’s and Roberts’s docket books in a post on Crowell v. Benson (1932).  Recently, Edward A. Purcell, Jr., drew upon Louis Brandeis’s and others’ in Understanding Curtiss-Wright, Law and History Review 31 (2013); 699 n. 99.  But until yesterday, I believe, no one outside the Curator’s office has had a complete list of the surviving docket books.

I consider myself only an accidental constitutional historian.  In Tocqueville’s Nightmare (publication date: May 21), I needed some informant to explain how American judges reconciled the administrative state and the rule of law.  No one served my purpose better than did Charles Evans Hughes.  Once I chose Hughes, a sally into "1937 and all that" was inevitable. 

Butler's docket books helped me not only with Crowell but also with Morgan v. United States (1938).  In an entry for the latter decision, Butler records Hughes's remark that although what constitutes a "full hearing" in an administrative procedure was "relative," the hearing in that case was inadequate.  Hearsay though it was, Butler's report is invaluable, because Hughes destroyed his own docket books, and the chief justice's court papers are quite thin.

Not until after my second visit to the Curator's Office to work with the Butler and Roberts docket books did I realize that others existed that might help with the Supreme Court's 1935 Term, during which Brandeis reported that Hughes was "deeply unhappy" and had lost "control over the court."  Charles E. Wyzanski, Jr., in a letter to his mother dated October 18, 1936, surviving in box 22 of his papers at the Massachusetts Historical Society, passed along gossip from Stone's clerk, Thomas Harris, that in conference Hughes had voted with Brandeis, Cardozo and Stone in Jones v. SEC, 298 U.S. 1 (1936), Great Northern Ry. Co. v. Weeks, 297 U.S. 135 (1936), and Elgin, Joliet R. v. U.S, 298 U.S. 492 (1936), but that he had changed his vote when he found he was in the minority, lest a series of 5-4 decisions undermine the Court's authority. I had a request pending with the Curator's Office to verify Harris's report in one of the surviving docket books for the term, but it was not granted before Tocqueville's Nightmare went to press.

In addition to the list of docket books, the Office of the Curator also released the following "Instructions to Researchers: Access to the Docket Book Collection":
The Office of the Curator at the Supreme Court of the United States maintains a collection of nearly 120 historic docket books used by former Justices. Due to the sensitive and fragile nature of these books, access is restricted. The Court will make these books available to researchers under the following procedures but reserves the right to decline access.

(1) Access to docket books is available to post-graduate scholars, professors, and historians as approved on a case-by-case basis.

(2) Researchers must submit a written request to the Office of the Curator providing:
a. Name.
b. Affiliated Institution.
c. Contact information, including phone number, email, and mailing address.
d. A short description of the project with timeframe.
e. A justification for why access to the docket books is required.
f. A limit of up to 20 specific case citations per request.

Please note: Requests to review an entire docket book will be denied unless there is a compelling reason that necessitates such access. In such a case, the Office of the Curator will offer a reasonable opportunity to view the book in person.

(3) Upon receipt of the above, requests will be reviewed by the Curator’s staff and submitted for approval.

(4) Upon approval, printed copies of the requested entries will provided at no cost. These copies are for research purposes only and may not be reproduced for publication.

(5) Requests will be handled in the order they are received and may take up to 6-8 weeks to review and process.

(6) Additional requests may be submitted, but each request will be handled as a new one and processed in the order it was received.

(7) The preferred citation for the docket books is: Case Name, Docket Book of Justice [name], [Term and Year], Office of the Curator, Supreme Court of the United States.

Please submit requests online here or send request to:
Office of the Curator
Attn: Docket Book Requests
Supreme Court of the United States
Washington, DC 20543
Brandeis's Docket Book, 1935 Term
The new policy is an improvement on prior practice, and I know that the staff of the Office of the Curator has worked hard to clarify and standardize what has been an opaque and ad hoc process.  Still, few scholars and teachers will be satisfied with this access, especially because we and our students have grown accustomed to using equally sensitive and fragile documents at the Library of Congress and other repositories.  For example, after my second visit to work with the Butler and Roberts docket books, I walked a block south to the Madison Building of the Library of Congress and, without any prior notice or approval, examined William O. Douglas's docket book for the 1938 Term, deposited there with the rest of his papers.  Rather than being limited to twenty entries at a time, I could turn the pages of the book at will.  This semester one of my students consulted another of Douglas's docket books for her seminar paper. Even if, under the access rules of the Curator's Office, she qualified as "a postgraduate scholar," I doubt she could have formulated a request, received clearance, and been scheduled for a visit before her paper was due.

The limits on access seem all the more incongruous when one realizes that scholars working on later periods can more easily view the Court’s deliberations, thanks to the court papers of justices deposited at the Library of Congress and other repositories.  See, for example, my former Georgetown colleague Richard Lazarus’s National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains, Georgetown Law Journal 100 (2012): 1507-86.

I hope the new rules governing access to the docket books will not be the last word on the subject.  I know nothing about how they were formulated, but I imagine they could be greatly improved by a referral to a committee of interested parties, including representatives of the Curator's Office and of the Supreme Court, archivists, historians, legal scholars, political scientists, and journalists.

Monday, April 14, 2014

Carle Receives Liberty Legacy Foundation Award for "Defining the Struggle"

[We have the following press release from the Organization of American Historians about former LHB Guest Blogger Susan Carle!]

Atlanta, GA-April 12, 2014. At the 2014 OAH Annual Meeting, OAH President Alan M. Kraut and OAH President-Elect Patricia Limerick presented Susan D. Carle, American University, with the 2014 Liberty Legacy Foundation Award for the best book by a historian on the civil rights struggle from the beginnings of the nation to the present. 

In Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press), Carle has written a paradigm-shifting study of the struggle for civil rights in the United States by moving the lens to focus on organizations that flourished during the period 1880-1915, before the heyday of the NAACP and the National Urban League. This deeply-researched book recovers the history of lesser-known, forerunner organizations that, she persuasively argues, laid the intellectual and organizational groundwork for these better-known organizational giants of the civil rights movement. The forerunner organizations introduced in Carle's account include the National Afro American League, the National Afro American Council, the National Association of Colored Women, and the Niagara Movement. These groups engaged in myriad struggles to improve the quality of life for black Americans long before the formation of the NAACP and the Urban League. Many of the early efforts focused on the economic needs of population-a variety of activism that later organizations often have been accused of overlooking. These early organizations also engaged in legal reform efforts-activities lost to historical memory after the NAACP won its famous battle to dismantle Jim Crow. By recounting the range of activities that these forerunner organizations undertook, Carle shows that lesser-known organizations provided a foundation that directly informed which battles later civil rights leaders would take on and which arguments and legal tactics they would draw upon to win them.

Through a deft, accessibly-written reconceptualization of the organizational foundations of the civil rights movement, Susan Carle makes an invaluable contribution to the historiography of the long civil rights movement in Defining the Struggle. Carle beautifully recovers the history of the nineteenth-century visionaries who powerfully shaped struggles for racial reform decades later. Thanks to Professor Carle, we now know that leaders of the Second Reconstruction owe these visionaries a great intellectual debt.

Lain on Reconstructing Engler

Corinna Lain, University of Richmond School of Law, has posted God, Civic Virtue, and the American Way: Reconstructing Engel, which is forthcoming in the Stanford Law Review 67 (2015).  Here is the abstract:    
If ever a decision embodied the heroic, countermajoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer — Engel v. Vitale. Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the Supreme Court than perhaps any other decision in its history. Indeed, Engel’s countermajoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case. It does not. Using the lens of legal history, this Article reconstructs the story of Engel, then explores the implications of this reconstructed narrative. Engel is not the countermajoritarian case it seems, but recognizing what it is not allows us to see Engel for what it is: a remarkably thick account of Supreme Court decision-making that enriches a number of conversations in constitutional law. Engel adds a new strand to a burgeoning body of scholarship on the power of culture in general, and social movements in particular, to generate constitutional change. It presents a rare glimpse of the Justices explicitly engaging in the dialogic function of judicial review. And it exposes qualitative differences in the way popular constitutionalism might play out in practice, with implications for the theory itself. In the end, Engel is still a case that offers valuable insights about Supreme Court decision-making and the role of judicial review. They just aren’t the insights that conventional wisdom would have us think.

Spitzer on the Washington State Supreme Court in the Progressive Era

Hugh D. Spitzer, University of Washington School of Law, has posted Pivoting to Progressivism: Justice Stephen J. Chadwick, the Washington Supreme Court, and Change in Early 20th-Century Judicial Reasoning and Rhetoric, Pacific Northwest Quarterly, Vol. 104 (Summer 2013):107-21 (published in 2014).   Here is the abstract:    
Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided by focusing on a single member of the Washington Supreme Court, Stephen J. Chadwick, who sat on that court between 1908 through 1919. Chadwick was in many respects typical of his Washington Supreme Court colleagues: educated, publicly-involved and politically ambitious. But Chadwick played the leading role in conceptualizing and communicating the Washington Supreme Court’s new approach to progressive legislation. Chadwick’s legal opinions are striking for their cogent reasoning and clarity. They are also striking for their honesty about the forces that were causing him, as a judge, to look at things in a fresh way. There were three key reasons for the turnaround in his court’s philosophy: First, the judges were sophisticated, pragmatic and politically-experienced leaders whose feet were “on the ground” in their communities. Second, as educated and economically comfortable elites, their personal views changed along with those of other middle class Washingtonians — i.e., those who formed the backbone of the progressive movement. Finally, the altered philosophy about the role of the courts, i.e., the shift from the practice of ruling many regulatory and worker protection statutes unconstitutional to a more hands-off deferential approach to policy decisions by elected lawmakers, was directly influenced by Oliver Wendell Holmes, Jr. Justice Chadwick was clearly influenced by Holmes, and on the Washington court he anticipated the “legal realist” approach to legal theory and judicial decision-making that gained dominance nationally in the following decades.
When the comparison is the U.S. Supreme Court, Professor Spitzer is surely right that “[r]elatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century.”  But see Carol L. Chomsky, “Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880-1925,” Law and History Review 11 (1993): 383-440.

Lash's "Fourteenth Amendment and the Privileges and Immunities of American Citizenship"

Just out from the Cambridge University Press is The Fourteenth Amendment and the Privileges and Immunities of American Citizenship by Kurt T. Lash, University of Illinois College of Law:
This book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. This exhaustively researched book follows the evolution in public understanding of "the privileges and immunities of citizens of the United States," from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.
Here's the TOC:

1. The Fourteenth Amendment: an introduction
2. On antebellum privileges and immunities
3. Framing the Privileges or Immunities Clause
4. The public debate
5. Post-adoption commentary on the Privileges or Immunities Clause
6. Text and theory

Here are some blurbs:
"There has been a great deal of commentary on the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, but that meaning has remained uncertain and contested. Kurt Lash's approach to the question has been to do something not previously attempted by historians or legal scholars: read all the available literature by antebellum and Reconstruction-era contemporaries on the subject. As a result he has gone far toward producing a definitive account of the Clause's history, and shown how contemporaries understood the "rights" contained in that Clause as sharply distinct from those contained in the Privileges and Immunities Clause of Article IV of the Constitution. Building on that distinction, Lash has fashioned a compelling argument as to how the original meaning of the Privileges or Immunities Clause should be understood."
G. Edward White, David and Mary Harrison Distinguished Professor and University Professor, University of Virginia School of Law

Sunday, April 13, 2014

Sunday Book Roundup

Chris Bryant's Parliament: the Biography, Vol. 1 (Doublday) is reviewed in the New Statesman. "Bryant’s volume runs from this period to the establishment of the Imperial Parliament following the union between Great Britain and Ireland in 1801. It is admirably comprehensive (the author wisely resisted the temptation to add to the glut of “short guides”) and written in the kind of lucid, elegant prose now rarely associated with our elected representatives." 

Dissent Magazine has a review of Thomas Piketty's Capital in the Twenty-First Century translated by Arthur Goldhammer (Belknap Press).

The Federal Lawyer has published its April book reviews. One can find a review of Richard Striner's Lincoln and Race (Southern Illinois University Press) and Brian  R. Dirck's Abraham Lincoln and White America (University Press of Kansas), as well as reviews for Fraternity by Diane Brady (Spiegel & Grau), Roger Williams and the Creation of the American Soul: Church, State, and the Birth of Liberty by John Barry (Viking), and Lobbyists at Work by Beth Leech (Apress). All reviews can be found here.

NPR has a story on All Things Considered covering a couple of books relevant to the upcoming Civil Rights Act anniversary: Seth Cagin and Phillip Dray's We Are Not Afraid: The Story of Goodman, Schwerner, and Chaney, and the Civil Rights Campaign for Mississippi (Nation) and Frances Stonor Saunders's The Cultural Cold War: The CIA and the World of Arts and Letters (New Press).
"In 1950 the CIA created the Congress for Cultural Freedom, whose mission was to use the arts to "nudge the intelligentsia of Western Europe away from its lingering fascination with Marxism and Communism towards a view more accommodating of 'the American way.' " ... 
The Congress for Cultural Freedom also used various foundations to act as fronts in funding exhibitions, international conferences, public performances and grants for artists. The roll call of beneficiaries — unwitting, to various degrees — included Mary McCarthy, Leonard Bernstein and Arthur Schlesinger. Over the years, Saunders writes, this surreptitious support system pervaded the production of a good deal of high culture, so that "[w]hether they liked it or not, whether they knew it or not, scores of Western intellectuals were now roped to the CIA by an 'umbilical cord of gold.' "
Make sure to take a look at several reviews on H-Net. The collected volume Beyond the Border: Tensions across the Forty-Ninth Parallel in the Great Plains and Prairies (McGill-Queen's University Press) edited by Kyle Conway and Timothy Pasch is reviewed, as is Edward Garvey Miller's Misalliance: Ngo Dinh Diem, the United States, and the Fate of South Vietnam (Harvard University Press) here. H-Net also adds a review of Dave St. Aubyn Gosse's Abolition and Plantation Management in Jamaica: 1807-1838 (University of West Indies Press).

In The Wall Street Journal Bill White's America's Fiscal Constitution: Its Triumph and Collapse is reviewed.

The Washington Post reviews Matt Taibbi's The Divide: American Injustice in the Age of the Wealth Gap (Random House). Other perspectives on the book can be found here in The New York Times, here in an interview with the author on NPR, and here in the Los Angeles Times.

Lastly, The Nation has a review of What Soliders Do: Sex and the American GI in World War II France by Mary Louise Roberts (University of Chicago Press).
"Roberts draws upon extensive sources, including diaries, police reports and court-martial transcripts, to examine the presence of American forces in France from 1944 to 1946. She contends that the sexual conduct of US servicemen in war should be moved from a historical footnote to “the center of the story.” Loaded with symbolism, sexual behavior in this context plays an important role in shaping the political and diplomatic negotiations of power between countries."

Saturday, April 12, 2014

Weekend Roundup

  • The University of Pennsylvania has announced that legal historian Wendell E. Pritchett (currently the Chancellor of Rutgers University-Camden) will serve as interim dean of the Law School for academic year 2014-15. 
  • From the Canadian Legal History Blog: a reminder of all the legal history offerings included in the Berkshire Conference on Women's History, scheduled to take place this year in Toronto.
  • Something new under the sun, at least until it melts: "Tucked into a back corner of Victoria School of the Arts, a group of Grade 11 students are busy solidifying, in wax, the Court of Appeal of Alberta’s major legal decisions and history."  More
  • Among the recipients of this year’s ACLS Fellowships is Brenna W. Greer, Assistant Professor of History, Wellesley College, for "Image Rights: Black Representation Politics and Civil Rights Work in the Postwar United States."  Hat tip: AHA Today.
  • Over at Balkinization, Georgetown Law's John Mikhail launches a series of posts on the origins of the necessary and proper clause, drawing upon work for his new articleIn this post, Mikhail uses a 2010 article by Geoffrey Miller as a point of departure for a summary of research showing "that [James] Wilson and his circle of bankers, merchants, and corporate lawyers—Robert Morris, Thomas Willing, Thomas Fitzsimmons, Alexander Hamilton, and others—frequently used the phrase ‘necessary and proper’ or similar language in their articles of association and business correspondence.’”
  • And over at Library of Congress Blog, Wendi A. Maloney, a writer-editor in the United States Copyright Office, has a post on using a copyright records to correct a misattribution of a noted 20th-century song.
  • Complicit, a “docu-drama” focusing "on the story of the SS. St. Louis refugee ship, while exploring the impact of the WWII Jewish refugee crisis on the Roosevelt legacy through a mythical courtroom drama,” has its Washington premiere at the Georgetown University Law Center on Thursday, April 17th, 2014: 5:30 p.m.  The creator is Robert Krakow, a GULC alumnus.  After the screening, he and Andrew Schoenholtz, the director of Georgetown’s Human Rights Institute, will discuss the film and “the development of international refugee policy since the 1930s.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 11, 2014

The Civil War and the Supreme Court

I want to highlight two upcoming events in the 2014 Leon Silverman Lecture Series of the Supreme Court Historical Society.  First, on May 1, Lea VanderVelde, Iowa Law, will speak on “Dred Scott and the Origins of the Civil War.”  On May 8, James McPherson and G. Edward White address the topic “Justice Oliver Wendell Holmes and the Civil War: How it Shaped Him.”  Brad Snyder, Wisconsin Law, will moderate on May 8.

Klerman on the Economic Analysis of Legal History

Daniel M. Klerman, University of Southern California Law School, has posted Economic Analysis of Legal History, which is forthcoming in Methodologies of Law & Economics, ed. Tom Ulen.  Here is the abstract:    
This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.

Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.

Law as an independent variable. Studies of this kind look at the effect of law and legal change on human behavior. Examples include analyses of the Glorious Revolution, legal origin, and nineteenth-century women’s rights legislation.

Bidirectional histories. Studies in the first two genres analyze law as either cause or effect. In contrast, bidirectional histories view law and society as interacting in dynamic ways over time. Laws change society, but change in society in turn leads to pressure to change the law, which starts the cycle over again. So, for example, the medieval communal responsibility system fostered international trade by holding traders from the same city or region collectively responsible. Nevertheless, the increase in commerce fostered by the system undermined the effectiveness of collective responsibility and put pressure on cities and nations to develop alternative enforcement institutions.

Private ordering. A significant body of historical work investigates the ability of groups to develop norms and practices partly or wholly independently of the state. Such norms include rules relating whaling, the governance of pirate ships, and, more controversially, medieval commercial law (the “law merchant”).

Litigation and Contracts. Law and economics has developed an impressive body of theories relating to litigation and the structure of contracts. These theories often shed light on legal behavior in former times, including contracts between slave ship owners and captains, and the suit and settlement decisions of medieval private prosecutors.

Mehrotra et al. on LOTL on Citizenship and Taxation

Tax Day looms up again, and with it renewed interest in the history of taxation.  Just up on The Life of the Law is a podcast that includes a discussion of Notions of Citizenship and Taxation organized by LHB's recent guest blogger, Ajay Mehrotra.
One of Life of the Law’s new advisors, Ajay Mehrotra, is tax historian and associate dean at the University of Indiana’s Maurer School of Law. Professor Mehrotra invited some of his fellow scholars to talk about taxation and citizenship. You’ll hear him speaking with Duke University law professor Lawrence Zelenak; Molly Michelmore, an associate professor of history at Washington and Lee University; and Beth Pearson, a PhD candidate at the University of California Berkeley who’s studying the evolution of state tax laws.
[Update:  Even if you aren't particularly interested in taxation and its history, this is worth a listen to see how well a bunch of academics can create a public-radio-style discussion of a topic.  If Ajay Mehrotra ever decides to give up his day job, Robert Siegel had better watch out.  DRE.]

New Release: Spears, "Baptized in PCBs: Race, Pollution, and Justice in an All-American Town"

New from the University of North Carolina Press: Baptized in PCBs: Race, Pollution, and Justice in an All-American Town, by Ellen Griffith Spears (University of Alabama). The Press explains:
In the mid-1990s, residents of Anniston, Alabama, began a legal fight against the agrochemical company Monsanto over the dumping of PCBs in the city's historically African American and white working-class west side. Simultaneously, Anniston environmentalists sought to safely eliminate chemical weaponry that had been secretly stockpiled near the city during the Cold War. In this probing work, Ellen Griffith Spears offers a compelling narrative of Anniston's battles for environmental justice, exposing how systemic racial and class inequalities reinforced during the Jim Crow era played out in these intense contemporary social movements.
Spears focuses attention on key figures who shaped Anniston--from Monsanto's founders, to white and African American activists, to the ordinary Anniston residents whose lives and health were deeply affected by the town's military-industrial history and the legacy of racism. Situating the personal struggles and triumphs of Anniston residents within a larger national story of regulatory regimes and legal strategies that have affected toxic towns across America, Spears unflinchingly explores the causes and implications of environmental inequalities, showing how civil rights movement activism undergirded Anniston's campaigns for redemption and justice.
A blurb:
"This is an excellent book--well written, exhaustively researched, original, and brilliantly conceived. Anyone interested in the history of the South, business history, civil rights, and environmental justice will find this essential reading. But more than that, this is a great story--at turns inspiring, maddening, depressing, and instructive. Everyone knows about Love Canal, Times Beach, Missouri, and Three Mile Island. Hopefully, after this book is published, everyone will know about Anniston as well!"
--Gerald Markowitz
More information is available here.

Thursday, April 10, 2014

Finding the Founders: A Symposium on Women Legal Pioneers

Mary L. Clark, Professor and Associate Dean for Academic Affairs, at the American University Washington College of Law, has sent us an announcement of the symposium, Finding the Founders:  Ellen Spencer Mussey and Emma Gillett and Other Early Women Legal Pioneers," to be held Monday, April 14, 2-5 pm at the law school, 4801 Massachusetts Avenue, NW, Washington, DC.   It will examine “the roles and impacts of WCL's very own Ellen Spencer Mussey and Emma Gillett and other early women legal pioneers on legal education and the legal profession.”  Panelists include Barbara Babcock of Stanford Law School, Jill Norgren of the City University of New York; Wendy Williams of the Georgetown University Law Center, with remarks by Mary Jane Mossman of the Osgoode Hall Law School.  The symposium coincides with what Professor Clark calls an “amazing new archival exhibition” on WCL’s founders.

Brewer Gets a Guggenheim!

According to today's New York Times, among this year's recipients of John Simon Guggenheim Memorial Foundation Fellowships is Holly Brewer, Burke Chair of American History and Associate Professor at the University of Maryland, who received hers in the field of Constitutional Studies.  Among other things, Professor Brewer is co-editor of the American Society for Legal History's book series and serves on the ASLH's Board of Directors.

Recipients in United States History were David Engerman, Karl Jacoby, Robin Kelley, and Jill Lepore; in European and Latin American History, Lillian Guerra, Eric Jennings, Steven Pincus, and Helmut Smith; in Medieval and Renaissance History, Marina Rustow; and in Law, Anver Emon.

Perry, Vogel, Barnes, and More Reviewed in the Law & Politics Book Review

The Law & Politics Book Review is out with a new batch of reviews. Items of interest include:

  • Mark Rush (Washington and Lee University) reviews Michael J. Perry, HUMAN RIGHTS IN THE CONSTITUTIONAL LAW OF THE UNITED STATES (Cambridge University Press, 2013).
  • Herschel Nachlis (Department of Politics, Princeton University) reviews David Vogel, THE POLITICS OF PRECAUTION: REGULATING HEALTH, SAFETY, AND ENVIRONMENTAL RISKS IN EUROPE AND THE UNITED STATES (Princeton University Press, 2012).
  • Jeb Barnes (Department of Political Science, University of Southern California) reviews Andrea Boggio, COMPENSATING ASBESTOS VICTIMS: LAW AND THE DARK SIDE OF INDUSTRIALIZATION (Ashgate, 2013).
  • Samuel B. Hoff (Department of History, Political Science, and Philosophy, Delaware State University) reviews Douglas S. Massey, et al., CLIMBING MOUNT LAUREL: THE STRUGGLE FOR AFFORDABLE HOUSING AND SOCIAL MOBILITY IN AN AMERICAN SUBURB (Princeton University Press, 2013).
  • Mariah Zeisberg (University of Michigan) reviews Graham Dodds, TAKE UP YOUR PEN: UNILATERAL PRESIDENTIAL DIRECTIVES IN AMERICAN POLITICS (University of Pennsylvania Press, 2013).

New Release: Loyd, "Health Rights Are Civil Rights"

New from the University of Minnesota Press: Health Rights Are Civil Rights: Peace and Justice Activism in Los Angeles, 1963–1978, by Jena Loyd (University of Wisconsin-Milwaukee). The Press explains:
Health Rights Are Civil Rights tells the story of the important place of health in struggles for social change in Los Angeles in the 1960s and 1970s. Jenna M. Loyd describes how Black freedom, antiwar, welfare rights, and women’s movement activists formed alliances to battle oppressive health systems and structural violence, working to establish the principle that health is a right. For a time—with President Nixon, big business, and organized labor in agreement on national health insurance—even universal health care seemed a real possibility.
Health Rights Are Civil Rights documents what many Los Angeles activists recognized: that militarization was in part responsible for the inequalities in American cities. This challenging new reading of suburban white flight explores how racial conflicts transpired across a Southland landscape shaped by defense spending. While the war in Vietnam constrained social spending, the New Right gained strength by seizing on the racialized and gendered politics of urban crisis to resist urban reinvestment and social programs.

Recapturing a little-known current of the era’s activism, Loyd uses an intersectional approach to show why this diverse group of activists believed that democratic health care and ending war were essential to create cities of freedom, peace, and social justice—a vision that goes unanswered still today.
Laura Pulido says:
Health Rights are Civil Rights suggests an entirely new geography of Los Angeles based on both activism and geopolitics. Jenna M. Loyd makes pathbreaking connections between health, war-making, race, and the environment that offer us a new way of viewing midcentury Los Angeles. An essential text for all scholars of Los Angeles, health, race, and activism. 
More information is available here.

Wednesday, April 9, 2014

Davies on the Retiring Justice Nelson

Samuel Nelson (LC)
Ross E. Davies, George Mason University School of Law, has posted Pioneer of Retirement: Justice Samuel Nelson, which also appears in 17 Green Bag 2d 209-233.  Here is the abstract:
In November 1872, Justice Samuel Nelson retired from the U.S. Supreme Court. The formal farewells were of the good-spirited kind that prominent public figures have almost always received: heavy on recitations of his virtues, light on mentions of flaws that were really, of course, merely misunderstood manifestations of his greatness. There were, however, two unusual features of the Nelson celebrations. This article sketches those oddities and makes a couple of suggestions about their significance then and now.

Legal History at OAH 2014

[Many thanks to Lael Weinberger, University of Chicago, for culling the following legal history sessions from the program of this week’s annual meeting of the Organization of American Historians.]

Crossing Professional Borders in America, 1890-2000

Friday, April 11, 2014
9:00am - 10:30am

After immigrants to America cross the physical border, they encounter a series of other borders that need to be crossed as they make their way in U.S. society. There are borders in jobs, in education, and in other aspects of American life. Those who make it into the professions will have normally made a big jump into the middle class, but even in the professions, there are borders that need to be understood, sometimes crossed, sometimes defended or attacked. The papers in this session all deal with professional borders: Susan Carle looks at the border between law/non-law from the perspective of gender and race in turn-of-the-century United States. Her lens is provided by women active in reform efforts. Christy Chapin looks at a later period in American history and studies organized physicians during the post-World War II years when borders were changing as individual practice gave way increasingly to practice within relatively large organizations. In many cases, professional boundaries were eroded; in other cases, the physicians themselves sought to experiment with new types of practices and new professional borders. Finally, Jeffrey Sturchio and Louis Galambos sweep over the twentieth century and explore the tensions that existed between businesses and the professions as they defined and re-defined their respective borders. Businesses needed professional expertise, but they initially often found it difficult to recruit and keep the professionals they needed. When corporations began to promote women and minorities to executive positions, professional standing became an important stepping stone for advancement.

Chair: Louis Galambos, Johns Hopkins University
Commentators: Christopher Tomlins, University of California- Irvine, and Melissa Fisher, New York University

"Doctors Without Borders: American Medical Practice in Diverse Organization Settings"
By: Christy Chapin, University of Maryland, Baltimore County

"Looking at the Law/Non-Law Divide Through The Lenses of Gender and Race in Turn-Of-The-Twentieth-Century American Women's Reform Activism"
By: Susan D. Carle of American University

American Business and the Challenge of Professionalism"
By: Jeffrey Sturchio, Rabin Martin

The Scope and Stakes of Reproductive Politics: Contesting Sexual Freedom, Abortion and Unwed Parenthood Since 1965
Friday, April 11, 2014
9:00am - 10:30am
Endorsed by: OAH Committee on the Status of Women in the Historical Profession

Since 1965, social movements have contested the meaning of legitimate sexual and reproductive decision-making. The history of these debates reveals a surprising and complex story about attitudes toward sex, choice, and licit reproduction the aftermath of the sexual revolution. This panel recovers this lost history by examining three settings in which activists, lawmakers, and judges have struggled to define the scope and stakes of reproductive and sexual freedom. Mary Ziegler’s paper uncovers a rich and unexpected dialogue about unwed motherhood among anti-abortion activists in the 1960s and 1970s. Serena Mayeri’s paper uses contemporaneous constitutional challenges to illegitimacy penalties to explore attitudes toward extramarital sexuality among various historical actors, including feminists, unmarried parents, and judges. Sara Dubow canvasses a long sweep of recent American history to trace the evolution of debates over conscience clauses that enabled individual physicians and hospitals with moral and religious objections to refuse to provide abortions and sterilizations.

Apart from their similar subject matter, several themes unite the three papers. The ideological diversity of activism on both sides of debates over reproductive and sexual freedom complicates narratives of longstanding polarization. To the extent that social movements reached internal consensus and defined themselves in contraposition to their adversaries, the process was often partial, messy, and gradual, rather than instantaneous and inevitable. Nor did economic and cultural ideologies automatically align in the ways that are familiar to twenty-first century political observers. For some activists, robust visions of gender and economic equality coexisted with profound misgivings about abortion. Others believed strongly in access to reproductive health services but also accepted arguments for conscience-based exemptions. Still others idealized marriage but opposed efforts to penalize unwed parenthood.

Each of these debates also illuminates the material stakes of “culture war” conflict, and the political costs and benefits of exposing the price of ideals such as liberty and equality. Disagreements among anti-abortion activists over the proper approach to unwed motherhood foregrounded the social and economic conditions that made reproductive “choice” a misnomer for poor unmarried women. Spotlighting discrimination against unmarried mothers in employment and elsewhere exposed the contingency of links between non-marriage and poverty, as well as the racial subtext of campaigns against “illegitimacy.” Anti-abortion lawmakers depicted conscience clauses as integral to religious liberty while masking their devastating impact on women’s access to abortion. The panel exposes the contradictory and ideologically charged history of the values, interests, and strategies that continue to shape debates about sexuality and reproduction.

Chair: Linda Gordon, New York University
Commentator: Regina G. Kunzel, Princeton University

"“A Constitutional right rendered utterly meaningless”: Federal Conscience Clause Laws and the Politics of Abortion, 1973-2013"By: Sara Dubow of Williams College

"Reproducing Inequality: Legal Challenges to Illegitimacy Penalties, 1968-1979"
By: Serena Mayeri of the University of Pennsylvania Law School

"Negotiating the Double Standard: Sex in the Abortion Debate, 1965 - 1980"
By: Mary Ziegler, Saint Louis University School of Law

Boundless War: The Legal, Military, and Psychological Effects of the Vietnam War across Time and Space
Endorsed by: SHAFR
Friday, April 11, 2014
1:50pm - 3:20pm

War is often seen as a bounded institution—fought by a specified class of people in a particular place over a defined period of time. But as the historian Mary Dudziak has recently shown in her discussion of the temporal boundaries of armed conflict, War•Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012), this notion of war as bounded is increasingly difficult to sustain. Not only is the distinction between wartime and peacetime less clear than the American public often imagines but war also has consequences for politics, economics, and individual lives well beyond the battlefield. Our panel seeks to build on this insight by exploring some of the broader effects of the Vietnam War across time and space.

At the heart of this panel is one particular conflict—the Vietnam War—but in keeping with the panel’s theme, we seek to show a continuum of conflict in the post-1945 era and to place the Vietnam War in a broader spatial framework. The panel begins with an examination of how U.S. government lawyers developed ideas about the legality of certain types of conflict in Latin America in the 1960s which were then transferred to the Vietnam theater and beyond. This paper details how the efforts of American lawyers to reconsider the status of borders and the commitment not to violate them in international law contributed to the development of a mode of warfare less constrained by geographical boundaries. The panel continues with a discussion of how publicity surrounding war crimes committed by U.S. servicemen in Vietnam, particularly the My Lai Massacre, had a significant subsequent impact on both military policy with regard to war crimes and the American people’s views on the conduct of war. It suggests that the nature of fighting in Vietnam was influenced by a transnational context in which ideas of war circulated between the front line in Vietnam and the home front in the United States. The panel ends with a consideration of how return trips after the war by U.S. veterans to Vietnam for the purposes of promoting healing among civilians have played into similar efforts by veterans of America’s most recent wars. This paper illuminates the influence of war on veterans themselves even after they have left the war zone and the importance of crossing borders to the healing process in the lives of both Vietnam and Iraq veterans. Each of these papers demonstrates how individuals and institutions continued to respond to the war legally, in policy, and personally in new geographic spaces well beyond the height of hostilities.
Together, these papers show the unbounded nature of war. They demonstrate the sprawling effects and influences of the Vietnam War both temporally and geographically. Finally, this scholarship speaks to the early and potential effects of more recent undeclared wars in Iraq and Afghanistan.

Chair and Commentator: Edwin Martini, Western Michigan University

“American War Crimes: The My Lai Massacre in U.S. Military Policy”
by: Christine Lamberson, Angelo State University

“'More and More Americans are Taking Responsibility for What Was Done in Our Name': Vietnam’s Legacy and Transnational Healing After the Iraq War"
By: David Kieran of The George Washington University

"Wars without Borders: The American Challenge to International Law, 1961 - 1965"
by: Brian Cuddy, Cornell University

Legal Histories of Human Rights 
Saturday, April 12, 2014
10:50am - 12:20pm
Endorsed by: SHAFR
Lawyers and political scientists had been working on the subject of “human rights” before professional historians came on the scene. But about 15 years ago, historians discovered human rights. Since then, the historiography of human rights has exploded. With the growth of human rights studies from within the disciplinary field of history, most of the work has moved away from looking at the narrow issues of treaties and tribunals that lawyers and political scientists focused on.

Yet this move away from law has left major issues unexplained. Most fundamentally, we still need an explanation for how and why the field of human rights came to be suffused with law and legality. Historians are now only beginning to look at the legal history of human rights and it promises to be an exciting field.

The papers presented on this panel will explore legal histories of modern human rights across a wide chronological span and from a variety of angles. How did human rights make their way into international law? Why have activists and national actors alike looked to international human rights law to advance their agendas? What role has the legal profession played in shaping the discourse of human rights? How have attorneys reacted to international human rights treaties, statements, and declarations?

By asking—and proposing answers to—these questions, this panel will be joining the ongoing historical discussion of how modern human rights discourse has developed. It will historicize the issue of how the field of human rights has become so widely infused with law and legality. And it will explore the diverse and complex relationships that can exist between national laws and international legal norms.

Chair: Heide Fehrenbach, Northern Illinois University
Commentator: Mark Bradley, University of Chicago
"Manley Hudson and the Quest for International Order: From Peace through Law to Human Rights"
by: Lael Weinberger, University of Chicago

"'Whittling Away' at Domestic Jurisdiction: The NAACP and the Afro-Asian Bloc’s Anti-Colonial Strategy in the United Nations"
By: Carol Anderson of Emory University

"America, the Exceptional: Morris Abram, Cold War Liberalism, and the Politics of Drafting the U.N. Race Convention"
By: H. Timothy Lovelace of Indiana University Mauer School of Law

"To Champion the Cause Through Law: Transnational Legal Efforts in the Fight Against the Apartheid"
by: Robert Smith, University of Wisconsin-Milwaukee, Milwaukee


Bomhoff on Balancing Constitutional Rights in Postwar US and Germany

Published recently in Cambridge Studies in Constitutional Law is Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse, by Jacco Bomhoff, Associate Professor of Law at the London School of Economics and Political Science.  Saith CUP:
The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.
Professor Bomhoff writes to us:
Of most interest for legal historians (I hope) are the book's two central chapters which discuss the simultaneous advent of a discourse of 'balancing' rights, values and interest in US Supreme Court and German Constitutional Court jurisprudence in the late 1950s and early 1960s. While this early case law provoked well-known - infamous - debates on both sides of the Atlantic, these clashes had not yet been the subject of any extended comparison. From this comparative perspective, and in part because of their almost cliche status, they provide a perhaps surprisingly useful lens for looking at the character of US and Western European legalism and constitutionalism more generally.
The book also looks at the broader legal-intellectual context of the time, notably comparing efforts to develop 'new' standards for adequate judicial reasoning (the neutral principles and process jurisprudence currents in the US, and the 'topical jurisprudence' and dialectical reasoning movements in Germany). In this way, the book aims to uncover thicker, contextualized, understandings of key jurisprudential concepts such as objectivity, neutrality, and most importantly: legal formality and its opposites.

Tuesday, April 8, 2014

ASLH Call for Applications: 2014 Kathryn T. Preyer Scholars

The American Society for Legal History has issued the following call for applications:
Kathryn T. Preyer Scholars 
Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.
Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.
Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers. as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2014.
Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting in Denver, Colorado, on November 6-9, 2014.  The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.
Please send submissions as Microsoft Word attachments by June 15, 2014, to the chair of the Preyer Committee, Gautham Rao <email>.  He will forward them to the other committee members.
The 2014 Preyer Memorial Committee
Sam Erman, Assistant Professor of Law, University of Southern California
Serena Mayeri, Professor of Law and History, University of Pennsylvania
Gautham Rao, Assistant Professor of History, American University
Michael Schoeppner, Visiting Assistant Professor of History, University of Maine at Farmington
Karen Tani, Assistant Professor of Law, University of California, Berkeley

The Law in Action: A Graduate Student Conference at Northwestern

The Law in Action: Re-Thinking the Boundaries of Law and Society, a graduate student conference, sponsored by the Nicholas D. Chabraja Center for Historical Studies at Northwestern University, will take place in Northwestern’s Leopold Room (Harris 108) on Friday, April 18. 

9:00- 10:45 Session One—Embodying Law: The Legal Construction of the Individual
Chair. Paul Ramirez (NU)
• Evelyn Atkinson (University of Chicago), "The Right to Bodily Integrity: Pratt v. Davis and the Origins of Informed Consent"
• Rachel Boyle (Loyola University), “From Hysteria to Insanity: Feminine Criminality and Husband Slaying in Chicago, 1870-1919”
• Jason Morgan (University of Wisconsin-Madison), “Suehiro Izutaro, Hozumi Shigeto, and the Case Law Revolution in Japan: Domesticating Taisho Democracy”
Commentator: Kate Masur (NU)

11:00- 12:45 Session Two—The Law, Violence, and the State
Chair: Joanna Grisinger (NU)
• Jesse Nasta (NU), “Navigating Freedom: African American Mobility and Legal Status on the Antebellum Mississippi”
• Matthew June (NU), “A History in Two Acts: Uses and Abuses of the Constitution's Commerce Power from the New Deal to Civil Rights and Controlled Substances”
• Andrew Baer (NU), "Police Torture and Other Pervasive Practices: The Role of Official Misconduct in the Rise of Mass Incarceration in the United States after 1970."
Commentator: Beth Lew-Williams (NU)

1:30- 3:00: Keynote Address
—Rebecca Scott (University of Michigan)
“Free or Not? Eulalie Oliveau, the Kidnapped Midwife from False River”

3:00- 4:45: Session Three—Law in Culture and Culture in Law
Chair: Helen Tilley (NU)
• Melissa Vise (NU), “Free Speech, the Law, and Republican Ethics: The Medieval Case”
• Ian Saxine (NU), “Imperial Properties: Land Deeds and Anglo-Wabanaki Relations in Eighteenth-Century Maine”
• GĂ©raldine Gudefin (Brandeis University), “Jewish Bigamists?: Rabbinical Divorces and Trials for Bigamy in New York at the Turn of the Twentieth Century"
Commentator: Mitra Sharafi (University of Wisconsin-Madison)

New Release: Huret, "American Tax Resisters"

This next new release is a fitting epilogue to Ajay Mehtrotra's fantastic posts on the "making of the modern American fiscal state" --

New from Harvard University Press: American Tax Resisters, by Romain D. Huret (University of Lyon). A description from the Press:
“The American taxpayer”—angered by government waste and satisfied only with spending cuts—has preoccupied elected officials and political commentators since the Reagan Revolution. But resistance to progressive taxation has older, deeper roots. American Tax Resisters presents the full history of the American anti-tax movement that has defended the pursuit of limited taxes on wealth and battled efforts to secure social justice through income redistribution for the past 150 years.
From the Tea Party to the Koch brothers, the major players in today’s anti-tax crusade emerge in Romain Huret’s account as the heirs of a formidable—and far from ephemeral—political movement. Diverse coalitions of Americans have rallied around the flag of tax opposition since the Civil War, their grievances fueled by a determination to defend private life against government intrusion and a steadfast belief in the economic benefits and just rewards of untaxed income. Local tax resisters were actively mobilized by business and corporate interests throughout the early twentieth century, undeterred by such setbacks as the Sixteenth Amendment establishing a federal income tax. Zealously petitioning Congress and chipping at the edges of progressive tax policies, they bequeathed hard-won experience to younger generations of conservatives in their pursuit of laissez-faire capitalism.
Capturing the decisive moments in U.S. history when tax resisters convinced a majority of Americans to join their crusade, Romain Huret explains how a once marginal ideology became mainstream, elevating economic success and individual entrepreneurialism over social sacrifice and solidarity.
A few blurbs:
In this important work, Romain Huret reconstructs as no one else has the durable political tradition out of which the Koch brothers, the Tea Partiers, and other prominent tax resisters of our time emerged. A fascinating and indispensable guide to 150 years of movements, personalities, and struggles that have done so much to shape the conservative temper in modern America.—Gary Gerstle
Romain Huret has written the definitive account of tax resistance in the United States. Rather than presenting opposition to taxation simply as part of American political culture, he meticulously traces the organizations and activists who fought and negotiated with the government as it developed its capacity to tax income. An important history that reveals the roots of contemporary debate.—Julian E. Zelizer
More information is available here.

Klarman, Shugerman, Hartog & More Reviewed in Tulsa L. Rev. Book Review Issue

Via Ken Kersch at Balkinization, we have word that the annual Tulsa Law Review book review issue is now available. Kersch co-edited the issue with Linda McClain. Here are some items of interest:

  • Thomas F. Burke reviews Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (2012).
  • Lisa L. Miller reviews Sotirios A. Barber, The Fallacies of States' Rights (2013), David Brian Robertson, Federalism and the Making of America (2012) and Erin Ryan, Federalism and the Tug of War Within (2011). 
  • Stephen M. Engel reviews Justin Crowe, Building the Judiciary: Law, Courts and the Politics of Institutional Development (2012) and Jed Handelsman Shugerman, The People's Courts: Pursuing Judicial Independence in America (2012). 
  • Patricia A. Caine reviews Hendrick Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age (2012). 
  • Emily Zackin reviews George I. Lovell, This is Not Civil Rights: Discovering Rights Talk in 1939 America (2012) and Ronald J. Krotoszynski, Jr., Reclaiming the Petition Clause: Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for a Redress of Grievances (2012).
  • William P. Marshall reviews Steven K. Green, The Bible, The School and the Constitution: The Clash That Shaped Modern Church-State Doctrine (2012.
  • Mark A. Graber reviews Alexander Tsesis, For Liberty and Equality: The Life and Times of the Declaration of Independence (2012), Justin Buckley Dyer, Natural Law and the Antislavery Constitutional Tradition (2012), Nicholas Buccola, The Political Thought of Frederick Douglass (2012), and Brian R. Dirck, Lincoln and the Constitution (2012). 
  • Michael McCann Jr. reviews Kenneth W. Mack, Representing the Race: The Creation of The Civil Rights Lawyer (201), and Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012). 
  • Devan O. Pendas reviews Allan A. Ryan, Yamashita's Ghost: War Crimes, MacArthur's Justice, and Command Accountability (2012), and Charles Anthony Smith, The Rise and Fall of War Crimes Trials: From Charles I to Bush II (2012). 
Check out the full TOC here.

Monday, April 7, 2014

Harris to Speak on State Trials and the Rule of Law under Charles II

Tim Harris, Brown University, will speak on State Trials and the Rule of Law under Charles II: Some Reflections on Thursday, April 10 from 4 p.m. to 5:30 p.m. at the Nicholas D. Chabraja Center for Historical Studies, Northwestern University

Two by Schorr on Water Law

David Schorr, Tel Aviv University Buchmann Faculty of Law, has recently posted two papers on SSRN.  The first is Reform of Water Rights in Mandate Palestine, which is forthcoming in Water History.  Here is the abstract:
This article surveys the water law of Palestine under British rule, identifying the legal norms governing the use of water and explaining some of the factors shaping the development of this area of the law. It argues that despite their lack of official lawmaking power, Arabs and Jews succeeded in decisively shaping the course taken by water law in this period.

After surveying the Ottoman water law in force when the British took power in 1917, the article examines influential court decisions in a case brought by the Arab residents of the village Artas against government expropriation of water, and explains the significance of this litigation for the subsequent development of Palestine's water law. It then turns to British initiatives meant to reform water law and subject the country's water to state control, plans frustrated by the opposition of Zionist groups fearful of increased government regulation. It closes by noting that water law was made in this colonial context neither by imposition from above nor by resistance from below, but by intervention of subject peoples at the highest levels of official lawmaking.
The second is Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences.  Here is the abstract:
The development of the law of riparian rights in the Anglo-American world in the nineteenth century has been analyzed from several points of view, including economic property theory and Marxian legal history. Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development. Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.

This paper examines the crossed histories of English common law, French civil law, and American law in the jurisprudence of water rights in Lower Canada/Canada East/Quebec in the mid-nineteenth century, and the influence of this jurisprudence on the developing water law of the British Empire.

New Release: Tsai, "America's Forgotten Constitutions"

New from Harvard University Press: America's Forgotten Constitutions: Defiant Visions of Power and Community, by Robert L. Tsai (American University). The Press explains:

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: “We the People.” Robert Tsai’s gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion—the defiant groups that refused to accept the Constitution’s definition of who “the people” are and how their authority should be exercised.
America’s Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a new constitution. He examines the alternative Americas envisioned by John Brown (who dreamed of a republic purged of slavery), Robert Barnwell Rhett (the Confederate “father of secession”), and Etienne Cabet (a French socialist who founded a utopian society in Illinois). Other dreamers include the University of Chicago academics who created a world constitution for the nuclear age; the Republic of New Afrika, which demanded a separate country carved from the Deep South; and the contemporary Aryan movement, which plans to liberate America from multiculturalism and feminism.
Countering those who treat constitutional law as a single tradition, Tsai argues that the ratification of the Constitution did not quell debate but kindled further conflicts over basic questions of power and community. He explains how the tradition mutated over time, inspiring generations and disrupting the best-laid plans for simplicity and order. Idealists on both the left and right will benefit from reading these cautionary tales.
Two blurbs, from two big names:
Tsai’s recovery of the constitutional plans of dissenting political communities challenges our sense of a stable constitutional history. America’s Forgotten Constitutions masterfully exposes the disturbingly shaky foundations of constitutional identity; yet it also shows the (mildly reassuring) consistency of constitutional thinking, even among white supremacists, land-grabbers, and moralistic ideologues.Sarah Barringer Gordon
For two centuries, dissenters from the American mainstream have drawn inspiration from the U.S. Constitution—and chafed at it. Tsai elegantly maps the margins of our constitutional landscape to reveal one of the Framers’ great forgotten legacies. A brilliantly conceived book.John Fabian Witt
More information is available here, at the book's HUP website. Read about the book's journey here, at Tsai's site. 

Sunday, April 6, 2014

Sunday Book Roundup

The New York Review of Books takes a look at two books in "Innovation: The Government was Crucial After All": Mariana's Mazzucato's The Entrepreneurial State: Debunking Public vs. Private Sector Myths (Anthem) and William Janeway's Doing Capitalism in the Innovation Economy: Markets, Speculation and the State (Cambridge). Of Mazzucato's book, Jeff Madrick writes
"We hear time and again from those who should know better that government is a hindrance to the innovation that produces economic growth. Above all, the government should not try to pick “winners” by investing in what may be the next great companies. Many orthodox economists insist that the government should just get out of the way. ...
Fortunately, a new book, The Entrepreneurial State, by the Sussex University economist Mariana Mazzucato, forcefully documents just how wrong these assertions are. It is one of the most incisive economic books in years."
The Federal Lawyer has new online book reviews, all available here. Reviewed books include Michael Avery and Danielle McLaughlin's The Federalist Society: How Conservatives Took the Law Back from Liberals (Vanderbilt University Press), and Martin Clancy and Tim O'Brien's Murder at the Supreme Court: Lethal Crimes and Landmark Cases (Prometheus Books).

The New York Times interviews former Justice John Paul Stevens about his book interests here.

The Guardian reviews Trials of Passion: Crimes in the Name of Love and Madness (Virgao Press) by Lisa Appignanesi, who "is a novelist as well as a historian of ideas, and her relish for a good story sometimes gets the better of her analytical purpose. But her subject is serious, and its implications are far-reaching."

On H-Net readers will find a review of Daniel K. Richter's Trade, Land, Power: The Struggle for Eastern North America (University of Pennsylvania Press).

HNN also has several reviews this week. Randall Balmer's Redeemer: The Life of Jimmy Carter (Basic) is reviewed, as well as Phillip Deery's Red Apple: Communism and McCarthyism in Cold War New York (Fordham University Press) (here).

The Los Angeles Review of Books has a review of Ramin Jahanbegloo's The Gandhian Moment (Harvard University Press).