Friday, October 24, 2014

Walker on Lewis Powell on Civil Disobedience

Anders Walker, Saint Louis University School of Law, has posted A Lawyer Looks at Civil Disobedience: How Lewis F. Powell, Jr. Reframed the Civil Rights Revolution, which is forthcoming in the University of Colorado Law Review.  Here is the abstract:
This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. Powell’s reasons for defending diversity are worth recovering today, not least because courts continue to misinterpret his landmark opinion in Regents v. Bakke, confusing the use of diversity in higher education with the compensatory goals of affirmative action, a project that Powell rejected.

Thursday, October 23, 2014

Fleckner on Roman Business Associations

Andreas M. Fleckner, Max Planck Institute for Comparative and International Private Law, has posted Roman Business Associations, which is forthcoming in Roman Law and Economics, ed. Giuseppe Dari-Mattiacci.  Here is the abstract:
Roman businessmen could choose between three legal forms for joint business ventures: the societas, the societas publicanorum, and the peculium of a commonly held slave. None of these forms led to larger firms with publicly traded shares. The high level of instability is one of the key explanations: it was difficult under Roman law to commit capital in the long term and finance capital-intensive enterprises. The societas was inevitably liquidated following numerous dissolution events. Members could withdraw their money at any time; their private creditors were not barred from seizing common assets. The peculium was even more unstable: in addition to the dissolution events of the societas, the joint venture came to an end and all peculium items reverted back to the masters if the commonly held slave died. The societas publicanorum developed into a more stable institution over time. During the same period, however, its business almost disappeared. Why did Roman law fail to provide organizational forms that allowed businessmen to form large associations and commit capital in the long term? A closer analysis of Roman society suggests that reservations in the social and political setting rather than economic factors or oddities of Roman legal doctrine caused business associations to remain small and unstable. This is an important lesson from history, both for the theory of the firm and for the role that law plays in it.

Bonilla on Liberalism and Property in Colombia

Daniel Bonilla, Universidad de los Andes School of Law, has posted Liberalism and Property in Colombia: Property as a Right and Property as a Social Function, which appeared in the Fordham Law Review 80 (2011): 1135-70.  Here is the abstract:    
Liberalism has determined the structure of the property law regime in Colombia. A genealogical analysis of the legal forms of the recent past that define and regulate property provides evidence of three key periods in the creation and consolidation of the right to property in the country. These three moments revolve around different forms of interpreting and balancing three fundamental values in the liberal canon: autonomy, equality, and solidarity.

George C. Lamb Jr. Visiting Fellows in Regulatory Governance

Rethinking Regulation at the Kenan Institute for Ethics at Duke University, in collaboration with Duke’s Trinity College of Arts and Sciences and the Fuqua School of Business, invites outstanding scholars of regulatory governance to apply for 1-2 residential George C. Lamb, Jr. Fellowships for the 2015-16 academic year. The Rethinking Regulation program is a multi-disciplinary community comprised of faculty members and graduate/professional students from many academic departments and professional schools at Duke, UNC-Chapel Hill, and North Carolina State University. The group’s members study and assess “regulation in action” – the evolving politics, operations, and culture of regulatory institutions, their interactions with regulated businesses and other interest groups, and normative frameworks for the evaluation of regulatory policy. Find out more [here].

In addition to pursuing their own research, Lamb Fellows will be expected to participate in Rethinking Regulation seminars and workshops, as well as Kenan Institute for Ethics workshops and seminars. They will also help shape a significant collaborative research project along with other members of the Rethinking regulation community. As part of that collaboration, Fellows will undertake some teaching responsibilities in Duke University’s Trinity College of Arts and Sciences and/or Fuqua School of Business – most likely co-teaching an advanced research seminar focused on subject matter of the collaborative research project, though other arrangements are possible. Fellows can come from any relevant academic discipline, including political science, public policy/administration, history, economics, sociology, cognitive psychology, anthropology, business management, law, environmental studies, risk analysis, and engineering.

Thematic Preferences for 2015-16

We especially welcome proposals from scholars with expertise or a strong emerging interest in one of the following two areas:

·         Retrospective review – assessment of regulatory rules, programs, strategies and agencies, examining what distinguishes successful from unsuccessful regulatory governance.

·         Adaptive regulation – strategies of regulatory governance that can appropriately cope with changing conditions and rapid processes of technological or organizational innovation, in contexts such as financial regulation, the oversight of advanced techniques of extracting fossil fuels (fracking, deep-sea drilling), nanotechnology, etc.

Fellowship Terms

We prefer proposals for the full academic year, but will consider applications for a single semester fellowship. All applicants should: possess a doctorate, J.D., or equivalent professional degree; be at least two years beyond their graduate training; and be based outside the Research Triangle area of North Carolina. All scholarly ranks are eligible. Residence in Durham is expected during the tenure of the fellowship. Lamb Fellows will receive office space at the Kenan Institute for Ethics, full Duke Library privileges, and a modest research account. Primary financial support, in the form of a fellowship grant, will vary according to individual circumstances. We anticipate offering grants equal to one-half of yearly or semester salaries, up to an annually set maximum amount, which may be less than half-salary for professors at the higher end of the compensation spectrum.

Application Process

Applicants should submit all of the following to Amber Díaz Pearson ( by
January 9, 2015:

  • A letter of application that describes the candidate's research areas and experience, ongoing projects, interest in collaborative research and teaching, and rationale for desiring a sustained period of engagement with Rethinking Regulation
  • A 2-3 page research proposal that details the individual work to be pursued during the term of the fellowship
  • A curriculum vitae
  • Two to four references - these should be individuals who can speak to the candidate's research expertise, experience in multi-disciplinary contexts, and capacity for/interest in collaborative academic work.
Selection Criteria

The Selection Committee, made up of scholars active in the Rethinking Regulation program, will
assess applications on the basis of:
  • The quality of their research and other achievement
  • The promise of their current research, especially in bridging disciplinary divides and informing ongoing regulatory policy debates
  • Their capacity for/interest in collaborative research, teaching, and writing
  • The fit between their expertise and the research priorities identified by Rethinking Regulation.
 An affirmative action and equal-opportunity employer, Duke University is committed to increasing the cultural and intellectual diversity of its academic community

Hovenkamp on Progressive Legal Thought

Herbert J. Hovenkamp, University of Iowa College of Law, has posted Progressive Legal Thought.  Here is the abstract:
A widely accepted model of American legal history is that "classical" legal thought, which dominated much of the nineteenth century, was displaced by "progressive" legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it.

We generally identify classical legal thought with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not only simplification and arrangement, but also "formalism," in the sense that it presented the law as a complete system. At the risk of some caricature, the "data" of this system were legal decisions -- a model that reflected not only the penchant for classification but also devotion to the idea that law is essentially judge made and that it evolves over long historical development. Historicism became an important attribute of legal classicism. The authors held up as exemplars are people like Gilded Age Harvard Law Dean Christopher Columbus Langdell and Francis Wharton, the Episcopal priest and prolific legal writer who produced commentaries on many legal subjects. While classical legal thought was generally anti-statist on economic matters, it was not libertarian. In fact, it advocated heavy state regulation of morals even as it supported liberty of contract without state interference as a general matter. The anti-legislative bias of legal classicism readily accommodated doctrines such as economic Substantive Due Process, which originated mainly in the state courts and was an important part of Supreme Court doctrine during the first four decades of the twentieth century.

The classical-to-progressive model of historical explanation is far too narrow to account for the profound changes in American law that occurred during the decades straddling 1900. These changes were embraced by a wide spectrum of jurists and legal thinkers, not merely by the subgroup that styled themselves "progressive." Classical legal thought would have collapsed even if progressives had never showed up.

This historical model persists, however, mainly because it serves the interests of both the defenders and opponents of the institutions we have come to associate with progressive legal thought -- namely, the welfare state, increasing public involvement in economic development, the rise of regulatory agencies with broad quasi-judicial and quasi-legislative powers, deferential judicial review of economic legislation, and aggressive judicial review of government actions injuring underrepresented minorities.
A conference on Professor Hovenkamp's nonhistorical scholarship begins today at the University of Iwa.  Hat tip: Legal Scholarship Blog.

Wednesday, October 22, 2014

Now Out in Paper: Fisk's "Working Knowledge"

We're pleased to learn that the University of North Carolina Press is bringing out a paperback edition of Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930, by Catherine L. Fisk, University of California Irvine Law.  The book, which appeared in "Studies in Legal History" (the American Society for Legal History’s book series), won both the Littleton-Griswold Prize of the American Historical Association and the ASLH’s John Phillip Reid Book Award in 2010:
Skilled workers of the early nineteenth century enjoyed a degree of professional independence because workplace knowledge and technical skill were their "property," or at least their attribute. In most sectors of today's economy, however, it is a foundational and widely accepted truth that businesses retain legal ownership of employee-generated intellectual property.

In Working Knowledge, Catherine Fisk chronicles the legal and social transformations that led to the transfer of ownership of employee innovation from labor to management. This deeply contested development was won at the expense of workers' entrepreneurial independence and ultimately, Fisk argues, economic democracy.

By reviewing judicial decisions and legal scholarship on all aspects of employee-generated intellectual property and combing the archives of major nineteenth-century intellectual property-producing companies--including DuPont, Rand McNally, and the American Tobacco Company--Fisk makes a highly technical area of law accessible to general readers while also addressing scholarly deficiencies in the histories of labor, intellectual property, and the business of technology.

Parrillo Wins ABA Administrative Law Prize for "Against the Profit Motive"

We were pleased to learn that the ABA Section on Administrative Law has awarded Nicholas R. Parrillo, Yale Law School, its Annual Scholarship Award for the year's best book or article on administrative law, namely Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (New Haven, CT: Yale University Press, 2013).  We quote from the citation:
Professor Parrillo's book provides an important and comprehensive historical background on the use of commissions and fees to compensate persons executing core administrative functions (in both federal and state government agencies). The committee was tremendously impressed with the depth and scope of professor Parrillo's historical research into a topic of considerable importance. Plainly, the incentives we provide to those who staff administrative agencies will prefigure how - and whether -they exercise administrative discretion. A civil service working in the public interest is plainly more consistent with core democratic values of fair play, equal treatment, and due process than a system that relies on bounties and commissions to compensate civil servants.

Against the Profit Motive
is well written, comprehensively researched, and provides important insights into once-common administrative practices and structures that have been wisely abandoned. At a time when local, state, and even the federal government are considering whether to privatize public functions, Professor Parrillo's book provides an important cautionary note on the potential risks associated with embracing the profit motive as an organizing principle in the administrative state. As he observes in the book, "the history suggests that you can recognize the value of nonprofit government even if you are indifferent or even hostile to bureaucracy-building more generally." (p. 361).

The committee believes that the lessons of history that Against the Profit Motive presents will be of considerable interest to legislators, lawyers, and legal academics alike -as well as to our many section members who work in federal, state, and local agencies. We are pleased to recognize Professor Parrillo's excellent book "against the profit motive" as the best work published in the field of administrative law in 2013.

Parisi et al. on Deterrence in Ancient Law

Francesco Parisi, Daniel Pi, Barbara Luppi, and Iole Fargnoli have posted Deterrence of Wrongdoing in Ancient Law.  Here is the abstract:
Ancient laws addressed all types of wrongdoing with a single set of remedies that over time pursued a changing mix of retaliatory, punitive and compensatory objectives. In this paper, we consider the historical transition from retaliatory to punitive justice, and the subsequent transition from punitive to compensatory justice. This paper shows how the optimal level of enforcement varies under the three corrective regimes. Crimes that create a larger net social loss require lower levels of enforcement under retaliatory regimes. The optimal level of enforcement is instead independent of the degree of inefficiency of the crime when punitive and compensatory remedies are utilized. The paper provides several historical illustrations and sheds light on some of the legal paradoxes of ancient law.

CFP: Law & Humanities Junior Scholar Workshop

Via H-Law, we have the following Call for Papers:
Law & Humanities Junior Scholar Workshop
Columbia Law School, the University of Southern California Center for Law,
History & Culture, UCLA School of Law, and Georgetown University Law
School invite submissions for the eleventh meeting of the Law & Humanities
Junior Scholar Workshop to be held at Columbia Law School Law in New York
City on June 8 & 9, 2015.

The paper competition is open to untenured professors, advanced graduate
students, and post-doctoral scholars in law and the humanities; in addition t0drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences. Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted, but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel and hotel expenses of authors whose papers are selected for presentation.

Submissions (in Word, no pdf files) will be accepted until January 5, 2015, and should be sent by e-mail to: Center for the Study of Law and Culture, be sure to include your name, institutional affiliation (if any), telephone and e-mail contact information.

For more information contact Cindy Gao, 212.854.0167 or, and to see past winners go to:

Katherine Franke
Sarah Barringer Gordon
Ariela Gross
Naomi Mezey
Hilary Schor
Norman Spaulding
Clyde Spillenger
Nomi Stolzenberg

Tuesday, October 21, 2014

Davies on Pennypacking the Waite Court

Ross E. Davies, George Mason University School of Law, has posted Breakfast with the Justices: Networking in the Nineteenth Century, which appears in the 2014 Green Bag Almanac & Reader 109.  Here is the abstract:
On Thursday, September 15, 1887, the Philadelphia bar hosted a lavish “Breakfast to the Justices of the Supreme Court of the United States” in that city’s American Academy of Music building. It was the first of a series of events — parades, ceremonies, speeches, and so on — celebrating the centennial of the Constitution of the United States. Some, like the “Breakfast to the Justices,” were by invitation only. Others were open to the public and attracted large crowds — the biggest were probably the “Civic and Industrial Procession” on September 15 and the “Memorial Day Ceremonies in Independence Square” on September 17. All those big events, both the private and the public, surely were exciting at the time and merit further study today. But the focus of this little essay is elsewhere — on a pair of small but instructive (and perhaps also amusing) aspects of the inner workings of the “Breakfast to the Justices.”

Metzger on Administrative Law, Public Administration and ACUS

Gillian E. Metzger, Columbia University Law School, has posted Administrative Law, Public Administration, and the Administrative Conference of the United States, which is forthcoming in the George Washington Law Review.  The article includes a section arguing that “the current divide between administrative law and public administration is not a new phenomenon, but dates back to when both fields were being born as areas of academic study and practice at the beginning of the twentieth century.”  Here is the abstract:
From its birth administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. In particular, as many have noted, administrative law ignores key administrative dimensions, such as planning, assessment, oversight mechanisms and managerial methods, budgeting, personnel practices, reliance on private contractors, and the like. The causes of administrative law’s disconnect from public administration are complex and the divide is now longstanding, going back to the birth of each as distinct fields. But it is also a growing source of concern, and internal administration is increasingly becoming the linchpin for ensuring accountable government. Enter the Administrative Conference of the United States (ACUS). ACUS represents one of the rare instances in which administrative law and public administration have been linked and is ideally situated to study administrative law’s effects on internal agency operations and assess whether — as well as how — administrative law might be used to improve public administration.

Olken on New Deal Constitutionalism

Samuel R. Olken, John Marshall Law School, has posted The Decline of Legal Classicism and the Evolution of New Deal Constittutionalism, which appears in the Notre Dame Law Review 89 (2014).  Here is the abstract:
Insofar as historians and constitutional scholars have focused upon the question whether external or internal changes precipitated the jurisprudential transformation that occurred in constitutional law during the 1930sand 1940s, they have characterized the change as revolutionary. Accordingly, they have described Legal Classicism (also referred to as Classical Legal thought), the bundle of jurisprudential tenets at the core of Lochner era police powers jurisprudence, in pejorative terms. Moreover, they have assumed that by the end of the 1930s, the Hughes Court’s adoption of constitutional adaptivity in its jurisprudence of economic liberty marked a relatively clear rejection of classical legal principles of legal formalism, factional aversion, laissez faire constitutionalism dual federalism. As Chief Justice Hughes himself noted in the seminal cases of Home Building and Loan Ass’n v. Blaisdell (1934) and West Coast Hotel Co. v. Parrish (1937), it was important for the Court to recognize the public interest in private contracts and the necessity to adapt the constitution to changing economic circumstances. And in Commerce Clause cases such as Jones & Laughlin Steel Corp. v. NLRB (1937), the Court employed a more flexible approach towards assessing the relationship between intrastate activities and interstate commerce, heralding a more realistic conception of commerce and a willingness to accord more deference to Congress than they had at the height of the Lochner era.

Notwithstanding this significant doctrinal transformation, relatively little attention has been given to the manner in which Legal Classicism itself may have actually contributed to the so-called constitutional revolution of the 1930s. This article will discuss how the ascension within the Hughes Court of Legal Realism and its notion of constitutional adaptation evolved from some of the very principles of classical legal thought that Chief Justice Hughes, and the other more progressive members of his court, such as Justices Stone, Brandeis and Cardozo earlier decried. Eventually, the underlying principles of Legal Classicism crumbled, and its assumptions about the relationship between the individual and government, as well as its presumed dichotomy between public power and private rights, proved untenable as the Supreme Court sought to interpret and apply the Constitution to the problems spawned by the Depression.

Monday, October 20, 2014

Turner, "Rights and the Ambiguities of Law: Infanticide in the Nineteenth-Century U.S. South"

The September 2014 issue of the Journal of the Civil War Era includes an article of interest: "Rights and the Ambiguities of Law: Infanticide in the Nineteenth-Century U.S. South," by Felicity Turner (Armstrong State University). Here's a summary from the author of the article's primary contribution:
Building on recent scholarship in gender history and African-American history, “Rights and the Ambiguities of Law” argues for a rethinking of the utility of narratives about the inexorable march toward expanded rights in U.S. history and memory.  Turner suggests that constitutional scholars and legal historians have traditionally emphasized the valuable expansion of civil and political rights to African Americans inaugurated at the federal level during Reconstruction.  The federal legislation and constitutional amendments prompted change at the state level, primarily in the South, which—in turn—prompted legal change at the local level, the consequences of which have been largely unexamined.  Turner's argument combines the traditional emphases of legal and political history with the more recent scholarship from historians of women and African-Americans.  Drawing from these combined strands of scholarship, Turner demonstrates the limitations inherent in narratives focusing primarily on the politico-legal changes that occurred at both the federal and state level during Reconstruction.  Using infanticide cases from antebellum and Reconstruction North Carolina to examine the operation of the legal process within local communities, "Rights and the Ambiguities of the Law" illuminates the complexities and ambiguities of legal change over time. 
A brief excerpt is available here, at Project Muse. Full content is limited to subscribers.

Lerner on Originalism's Failure to Preserve Civil Jury Trial

Renee Lettow Lerner, George Washington University Law School, has posted The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, which appears in the William & Mary Bill of Rights 28 (2014): 811-80.  Here is the abstract:    
The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.

New Release: Probert, ed., "Cohabitation and Non-Marital Births in England and Wales, 1600-2012"

New from Palgrave Macmillan: Cohabitation and Non-Marital Births in England and Wales, 1600-2012 (June 2014), edited by Rebecca Probert (University of Warwick). The Press explains:

Today, almost half of all children are born outside marriage, with cohabiting relationships accounting for the majority of such births. But what was the situation in earlier centuries? Bringing together leading historians, demographers and lawyers, this interdisciplinary collection examines the changing context of non-marital child-bearing in England and Wales since 1600. Drawing on Private Acts of Parliament, ecclesiastical court records, reported cases, sessions files, coronial records, poor law records, petitions to the London Foundling Hospital, the registers of the London Bridewell, the records of charitable institutions, surveys and modern demographic data, it not only shows the relative rarity of cohabitation in earlier periods but also discovers the nature of individual relationships. It also explores how differences in the extent of both non-marital child-bearing and cohabitation emerge depending on definition, source material, interpretation and location, building up a more nuanced picture of past practices.
The TOC:
Introduction; Rebecca Probert
1. Bridewell, Bawdy Courts and Bastardy in Early Seventeenth-Century London; Eleanor Fox and Martin Ingram
2. Cohabitation in Context in Early Seventeenth-Century London; Martin Ingram
3. 'All He Wanted Was To Kill Her That He Might Marry The Girl': Broken Marriages and Cohabitation in the Long Eighteenth Century; Joanne Bailey
4. 'They Lived Together As Man And Wife': Plebeian Cohabitation, Illegitimacy, and Broken Relationships in London, 1700-1840; Samantha Williams
5. Bastardy and Divorce Trials, 1780-1809; Julie Shaffer
6. Cohabiting Couples in the 19th Century Coronial Records of the Midlands Circuit; Elizabeth Hurren and Steven King
7. The Kindness of Strangers Revisited: Fostering, Adoption and Illegitimacy in England, 1860-1930; Ginger Frost
8. The Context of Illegitimacy from the 1920s to the 1960s; Rebecca Probert
9. Cohabitation and Births Outside Marriage after 1970: A Rapidly Evolving Phenomenon; John Haskey
10. Cohabitation and Marriage in Britain Since the 1970s; Éva Beaujouan And Máire Ní Bhrolcháin
More information, including a sample chapter, is available here.

Sunday, October 19, 2014

Sunday Book Roundup

The History Roll has a review of Kurt T. Lash's The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge University Press).
"It does not definitively settle the debate over the nascent Fourteenth Amendment’s meaning, but it should initiate a new generation of scholarly debates over the meaning of Reconstruction and the Republicans’ willingness to protect newly freed slaves."
The New York Times reviews Zephyr Teachout's Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United (Harvard University Press).

Also in the NY Times is a review by Sean Wilentz of Jonathan Darman's Landside: LBJ and Ronald Reagan at the Dawn of a New America (Random House).

Michael A. Ross's Great New Orleans Kidnapping Case: Race, Law and Justice in the Reconstruction Era (Oxford University Press) is also reviewed in the NY Times:
"Those twists, recounted by Mr. Ross in “The Great New Orleans Kidnapping Case: Race, Law and Justice in the Reconstruction Era,” published this week by Oxford University Press, include psychic consultations, a shadowy “House of Secret Obstetrics” and the derring-do of a crack Afro-Creole police detective versed in the latest “French” techniques — seemingly the first black detective in the United States to take part in a case that received national attention, Mr. Ross says.
The story also offers something else that was all but unheard-of in pre-Civil Rights-era trials involving African-Americans accused of crimes against whites: genuine suspense about the outcome."
HNN adds a review of Edmund Fawcett's Liberalism: The Life of an Idea (Princeton University Press).

New Books in American Studies interviews Anthony Santoro about his book, Exile & Embrace: Contemporary Religious Discourses on the Death Penalty (Northeastern University Press).

New Books in Law interviews Lynette J. Chua about her book, Mobilizing Gay Singapore: Rights and Resistance in a n Authoritarian State (Temple University Press); and New Books also talks with Joshua Fershee about his book, Energy Law: A Context and Practice Casebook (Carolina Academic Press).

Saturday, October 18, 2014

Weekend Roundup

  • From PQ Monthly: “On September 4, OGALLA: The LGBT Bar Association of Oregon; GLAPN (Gay & Lesbian Archives of the Pacific Northwest); and Oregon State Bar Diversity & Inclusion Department jointly sponsored a class entitled ‘LGBT Rights in Oregon: A Historical Perspective.’” More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 17, 2014

Park on the Cohasset Marshlands Dispute

William W. Park, Boston University School of Law, has posted The Cohasset Marshlands Dispute: International Arbitration in Colonial New England, which is forthcoming in International Council Commercial Arbitration (2014).  Here is the abstract:    
One of the earliest international arbitrations in the Americas arose from rival claims to hayfields contested between two groups of religious dissidents. The dispute resolution process which unfolded in 1640 between the Massachusetts and Plymouth colonies takes special significance as an epochal step toward the robust cross-border cooperation that ultimately united thirteen disparate colonies into a single nation.

New Release: Baldwin, "The Copyright Wars: Three Centuries of Trans-Atlantic Battle"

New from Princeton University Press: The Copyright Wars: Three Centuries of Trans-Atlantic Battle, by Peter Baldwin (University of California, Los Angeles/New York University). A description from the Press:
Today’s copyright wars can seem unprecedented. Sparked by the digital revolution that has made copyright—and its violation—a part of everyday life, fights over intellectual property have pitted creators, Hollywood, and governments against consumers, pirates, Silicon Valley, and open-access advocates. But while the digital generation can be forgiven for thinking the dispute between, for example, the publishing industry and Google is completely new, the copyright wars in fact stretch back three centuries—and their history is essential to understanding today’s battles. The Copyright Wars—the first major trans-Atlantic history of copyright from its origins to today—tells this important story.
Peter Baldwin explains why the copyright wars have always been driven by a fundamental tension. Should copyright assure authors and rights holders lasting claims, much like conventional property rights, as in Continental Europe? Or should copyright be primarily concerned with giving consumers cheap and easy access to a shared culture, as in Britain and America? The Copyright Wars describes how the Continental approach triumphed, dramatically increasing the claims of rights holders. The book also tells the widely forgotten story of how America went from being a leading copyright opponent and pirate in the eighteenth and nineteenth centuries to become the world’s intellectual property policeman in the late twentieth. As it became a net cultural exporter and its content industries saw their advantage in the Continental ideology of strong authors’ rights, the United States reversed position on copyright, weakening its commitment to the ideal of universal enlightenment—a history that reveals that today’s open-access advocates are heirs of a venerable American tradition.
Compelling and wide-ranging, The Copyright Wars is indispensable for understanding a crucial economic, cultural, and political conflict that has reignited in our own time.
A scholarly endorsement:
"From Kant and Fichte to Wikipedia’s protest shutdown and the Swedish Pirate Party, and from international copyright in the Confederacy to moral rights in Fascist Italy, Baldwin offers a riveting historical account of copyright in the Anglo-American and Continental European spheres that becomes an indispensable guide to understanding today’s struggles over copyright and international trade treaties."--Yochai Benkler
More information, including the TOC and introduction, is available here.

Thursday, October 16, 2014

Inniss, "Cherokee Freedmen and the Color of Belonging"

Lolita Buckner Inniss (Cleveland State University - Cleveland-Marshall College of Law) has posted "Cherokee Freedmen and the Color of Belonging." The article is scheduled to appear in Volume 5 of the Columbia Journal of Race and Law (2014-2015). Here's the abstract:
This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and the past and continuing use of skin color-coded belonging not only undermines the coherence of Cherokee identity and belonging but also problematizes the notion of an explicitly aboriginal way of life by bridging Indian and white cultural difference over a point of legal and ethical contention: black inequality.
The full article is available here.

Hat tip: Legal Theory Blog

CFP: Consent in Early America, 1600-1900

Via The Junto, we have the following Call for Papers:
Consent in Early America, 1600-1900 
Tuesday 10th-Wednesday 11th March 2015
Rothermere American Institute, Oxford University

The notion of consent plays an important role in our understanding of power in human society. It gives us a way to think about not only when choices are freely made, and when they aren't, but a whole spectrum that lies in-between.

Questions about consent are questions about people and social relations, about power and the state, and about freedom and its lack. These questions span micro and macro scales, from politeness at a Boston dinner table, to gangs of slaves cutting sugar in Louisiana, to establishing a national government in Philadelphia. The ability to give and to withhold consent helps to determine categories and dynamics of struggle, including gender, race, and class. Consent concerns the problems of coordinated action and coordinated ideas that, we suggest, determine social life and historical change—it's about who gets to decide, and how.

We invite contributors to share their ideas about these complex issues as they played out in the lives of early Americans and in the records of early American history, from the first colonisation to the end of the nineteenth century. Papers might look at:
· Marriage, sex, childhood, and domestic labour

· Slavery, wage work, share-cropping, and indenture

· Governments, constitutions, and the state of nature

· Crime, punishment, violence, and justice

· Medicine, public health, and notorious places

· Representation, writing, contract, and the law
...or any other topic that engages “consent,” including papers that cross boundaries between fields and categories, using the notion of consent to draw new and unexpected connections.

Papers will be chapter-length (4,000-8,000 words) and pre-circulated, to maximise time for discussion on the day. Travel within the UK and accommodation for presenters will be provided for. The conference will take place from the afternoon of Tuesday 10th through to the evening of Wednesday 11th March, 2015. Graduate students and early-career researchers are particularly encouraged to submit proposals, which should be around 500 words, and accompanied by a CV. The deadline for proposals is 4th January 2015. Please get in touch if you have any questions!

Kathryn Olivarius and Tom Cutterham

New Release: Freyer, "The Passenger Cases and the Commerce Clause"

New from the University Press of Kansas: The Passenger Cases and the Commerce Clause: Immigrants, Blacks, and States’ Rights in Antebellum America (December 2014), by Tony Allan Freyer (University of Alabama). The Press explains:
In 1849 Chief Justice Taney’s Court delivered a 5-4 decision on the legal status of immigrants and free blacks under the federal commerce power. The closely divided decision, further emphasized by the fact there were eight opinions, played a part in the increasingly contested politics over growing immigration and the controversies about fugitive slaves and the western expansion of slavery that resulted in the Compromise of 1850.
In the decades after the Civil War federal regulation of immigration almost entirely displaced the role of the states. Yet, over a century later, Justice Scalia in Arizona v. US appealed to the era when states exercised greater control over who they allowed to cross their borders; a dissent which has returned the Passenger Cases to the contemporary relevance. The Passenger Cases provide a counter-history that allowed the Court to affirm federal supremacy and state-federal cooperation in Arizona I (2011) and II (2012).

In The Passenger Cases and the Commerce Clause Tony Allan Freyer focuses on the antebellum Supreme Court’s role prescribing state-federal regulation of immigrants, the movement of free blacks within the United States. The divided opinions in the Passenger Cases also influenced the immigrant and slavery crises which disrupted the balance between free and slave-labor states, culminating in the Civil War. The states did indeed enact laws enabling exclusion of undesirable white immigrants and free blacks.
The 5-4 division of the Court anticipated the better known, but even more divisive, views of the Justices in the Dred Scott case (1857). And in considering the post-Reconstruction evolution of new standards by which to judge immigration issues, the Passenger Cases revealed the continuing controversy over how to treat those who wish to come to our country, even as federal law came to dominate the regulation of immigration. These issues continued to complicate immigration law as much today as they did more than a century and a half ago. The persistence of these problems suggested that a “decent respect to the opinions of mankind” continued to demand a coherent, humane, and more consistent immigration policy.
A few reviews:
“This volume has a special importance as the current conservative Supreme Court continues to struggle with defining state police powers in regard to newly arrived and illegal immigrants. This brief but pithy volume reinforces an often forgotten distinction between the antebellum Constitution and the “new” Constitution of post-1870 America.”—Herbert A. Johnson

“In his comprehensive treatment of the Passenger Cases, Tony Allan Freyer deftly situates the decision at the intersection of the political and legal disputes over slavery, immigration, and federal power.”—Earl Maltz
More information is available here.

Wednesday, October 15, 2014

Early American Legal Histories: A CFP

[We have the following call for proposals for the workshop Early American Legal Histories.]

The Omohundro Institute and the University of Southern California-Huntington Library Early Modern Studies Institute are pleased to announce the tenth in a series of William and Mary Quarterly-EMSI workshops designed to identify and encourage new trends in understanding the history and culture of early North America and its wider world.

Participants will attend a two-day meeting at the Huntington Library (May 29-30, 2015) to discuss a precirculated chapter-length portion of their current work in progress along with the work of other participants. Subsequently, the convener may write an essay elaborating on the issues raised at the workshop for publication in the William and Mary Quarterly. The convener of this year’s workshop is Sarah Barringer Gordon of the University of Pennsylvania.

This workshop will explore new work in law and history, with the goal of bridging the two disciplines. Scholars of early American history have long probed the legal past through research in government and court records. Legal historians have explored the evolution of doctrine and substantive law. Recent scholarship has united the two fields, resulting in work that spans disciplinary boundaries and brings new insight to both. This workshop presents a unique opportunity to deepen and broaden the growing cross-disciplinary conversation. The organizers welcome proposals that address (among other topics) the law of empire and legal status of colonies from Atlantic, continental, and comparative perspectives, as well as the status of Native peoples, enslaved and other bound persons, and colonists; competing legal systems and legal pluralism, including indigenous legal systems and religious and customary law; domestic relations, including the law of master and servant, husband and wife, and parent and child; property in land as well as persons; trade, finance, and debt; war and conquest; the legal profession; courts and/or the judiciary.

Proposals for workshop presentations should include a brief abstract (250 words) describing the applicant’s current research project, an equally brief discussion of the particular methodological, geographic, or historiographical issues they are engaging (which will be circulated to all participants along with the chapter or essay), and a short c.v. The organizers especially encourage proposals from midcareer scholars. Materials should be submitted online at the conference website by October 27, 2014.

Questions may be directed to Joshua Piker, Editor, William and Mary Quarterly, at

The workshop will cover travel and lodging costs for participants.

New Immigration and Immigration Histories, 1965-2015

[We have a conference call for papers for Immigrant America: New Immigration and Immigration Histories from 1965 to 2015, “an interdisciplinary conference marking the 50th anniversary of the 1965 Immigration Act.”  It will take place on Friday, October 23, and, Saturday, October 24, 2015, at the University of Minnesota, Minneapolis, MN.  The conference is cosponsored by “the Immigration History Research Center and Archives (University of Minnesota), which promotes interdisciplinary research on migration, race, and ethnicity in the U.S. and houses the largest archive of immigrant and refugee life in North America, and the Immigration and Ethnic History Society, the premier professional association of historians who study immigration and ethnicity. Both organizations will be celebrating their 50th anniversaries in 2015.”]

1965 was a turning point in the long history of immigration to the United States. That year, President Lyndon Baines Johnson signed into law the 1965 Immigration Act, a law that removed national origins quotas, reshaped immigration to the United States, and led to the creation of new immigrant communities. This conference uses the anniversary of the 1965 Immigration Act to explore the connections between contemporary and historical migrations and communities in the U.S. We invite faculty, graduate students, independent scholars, artists, community advocates, and public history professionals from a wide range of disciplines to join us in examining all aspects of post-1965 immigration, including the ways in which it has affected the study of immigration before 1965. In examining how immigration has transformed the United States in the past fifty years, we hope to contribute to the development of migration studies across disciplines and to identify key directions for future scholarship.

Possible conference themes may include (but are not limited to) the following:

Borders and borderlands
Childhood and migration
Citizenship and belonging
Community advocacy
Comparative ethnic studies
Comparative North American experiences and perspectives
Culture and arts
Digital history and digital storytelling
Families and generations
Gender and migration
History, historiography, and memory
Identity and ethnicity
Immigrant rights and activism
Immigration law and policy
Immigration and settler colonialism
Labor and labor movements
Migration theories and frameworks
Public health
Public history and archives
Race and racial formation
Refugee resettlement, communities, and identities
Sexuality and migration
Transnational and diasporic identities, networks, organizations
Transracial and transnational adoption
Unauthorized Migration

Proposals due: January 9, 2015
We encourage full-panel submissions (including chairs/commentators) that highlight new research and perspectives, consider the state(s) of various specific fields and topics, and span the broad scope of immigration history and migration studies, including comparative and interdisciplinary approaches. Single paper submissions will also be given full attention. Final selection of participants will be made by the program committee. Limited funding is available for graduate student presenters through an application process. The selection process will begin shortly after the deadline. Notifications will be sent by email in May 2015.

For panel submissions, please submit the following (in 1 .pdf file):
(1)  One paragraph description of the panel, including chairs/commentators, and identification of the conference theme(s) the panel will address
(2)  Descriptions of each paper (1-2 paragraphs)
(3)  One-page CV per panelist

For single-paper submissions, please submit the following (in 1 .pdf file):
(1)  Description of paper (1-2 paragraphs) and identification of conference theme(s) it addresses
(2)  Presenter's one-page CV

To submit your paper/panel proposal, visit [here].

Conference Proposal Portal will be open on December 1, 2014.

Bagley on the History of the Regulating Medicine as a Public Utility

Nicholas Bagley (University of Michigan Law School) has posted "Medicine as a Public Calling." It is scheduled to appear in Volume 114 of the Michigan Law Review (forthcoming 2015). Here's the abstract:
The debate over how to tame private medical spending tends to pit advocates of a single-payer approach against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating medicine as a public utility is dismissed as a political impossibility — or, worse, as anathema to the American regulatory tradition. Yet there is a rich history in the United States of subjecting private businesses that wield undue power to economic regulation. Growing out of an ancient common law practice of imposing special duties on innkeepers and common carriers, the body of law governing the regulation of “public callings” had evolved by the early twentieth century into a comprehensive challenge to the principles of laissez faire.

The rise of the modern medical industry in the years after the Second World War prompted the enactment of federal and state laws emerging from this tradition and directed at the business of medicine. Although the last two decades of the twentieth century saw many of these laws give way to a resurgent belief that market forces ought to guide the distribution of health-care services, an important strain of the law has always treated modern medicine as a public calling. Now that the Affordable Care Act has eased concerns about the uninsured, a stubborn set of economic problems in the medical industry — supply imbalances, access restrictions, and abusive and discriminatory pricing — may spur renewed interest in laws reflecting the principles of public utility regulation. Indeed, nascent interest in such laws suggests that we may already be heading that direction.
Full text is available here.

Tuesday, October 14, 2014

Frost on Greco-Roman Analysis of Metaphoric Reasoning

Michael Frost, Southwestern Law School, has posted Greco-Roman Analysis of Metaphoric Reasoning, which appeared in Legal Writing: The Journal of the Legal Writing Institute 2 (1996).  Here is the abstract:    
When lawyers want to emphasize or crystallize their analysis or arguments, they instinctively and
Aristotle, US Courthouse, Erie, PA
unavoidably use figurative and metaphoric language. Their use of familiar metaphoric clichés — the law as a “seamless web,” cases with “progeny,” corporations with “veils,” and constitutional “penumbras” — reveals not only their recognition of the persuasive power of figurative language, but also their unspoken and, perhaps, unconscious reliance on subtle forms metaphoric reasoning. Recognizing this, Justice Cardozo warned that “metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” His warning did not take into account the fact that metaphors in the law have been “narrowly watched” for over 2,000 years. Ancient rhetoricians like Aristotle, Cicero and Quintilian meticulously analyzed the subtle, concise and intellectually attractive value of metaphors in legal argument, noting both their emotional impact and their logical appeal. Their insights into metaphors’ persuasive value in legal argument have increasingly drawn the attention of modern language theorists, cognitive psychologists and, lately, legal scholars.

The Fed's "Doomsday Book"

Over at the Wall Street Journal’s blog, Damian Paletta reports the existence of  “a compendium of legal opinions, in some cases stretching back decades, that explore the legal limits of the Federal Reserve in the event of a financial crisis."  In what I take to be a pun on the great medieval document, the Fed lawyers refer to the "big, fat binder” as “the Doomsday Book.”  During a trial growing out of the federal government's bailout of AIG, David Boies read from its first page a description of the binder as "a collection of emergency documentation and memoranda compiled by the Legal Department of the Federal Reserve Bank of New York.”

Of special note is a legal memorandum written by Howard H. Hackley, formerly general counsel of the Fed's Board of Governors.  A subsequently written document in the binder calls the Hackley memo “probably the most important historical document in the collection: a piece of original legal scholarship” that includes "an extensive legal history of Federal Reserve lending activities.”

Update: More, from the New York Times.

New Release: Aslakson, "Making Race in the Courtroom"

New from New York University Press: Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans (Sept. 2014), by Kenneth R. Aslakson (Union College). From the Press:
No American city’s history better illustrates both the possibilities for alternative racial models and the role of the law in shaping racial identity than New Orleans, Louisiana, which prior to the Civil War was home to America’s most privileged community of people of African descent. In the eyes of the law, New Orleans’s free people of color did not belong to the same race as enslaved Africans and African-Americans. While slaves were “negroes,” free people of color were gens de couleur libre, creoles of color, or simply creoles. New Orleans’s creoles of color remained legally and culturally distinct from “negroes” throughout most of the nineteenth century until state mandated segregation lumped together descendants of slaves with descendants of free people of color.
Much of the recent scholarship on New Orleans examines what race relations in the antebellum period looked as well as why antebellum Louisiana’s gens de couleur enjoyed rights and privileges denied to free blacks throughout most of the United States. This book, however, is less concerned with the what and why questions than with how people of color, acting within institutions of power, shaped those institutions in ways beyond their control. As its title suggests, Making Race in the Courtroom argues that race is best understood not as a category, but as a process. It seeks to demonstrate the role of free people of African-descent, interacting within the courts, in this process.
A few blurbs:
"Historians are fond of spotlighting the role of 'human agency' in making history. Kenneth Aslakson is one of those rare scholars who actually map out its modus operandi—in this case, in the courtrooms of New Orleans, where free people of color used jurisprudence to defend their rights and, unwittingly, erect a tripartite racial order that was Caribbean before it was American.  Aslakson’s research is superb, his writing unfailingly clear, his arguments smart and crisp. Making Race in the Courtroom joins a lengthening bookshelf that is changing how we think about race in America."
—Lawrence N. Powell, Tulane University
"Between 1791 and 1812, as New Orleans was transformed by the consequences of the Haitian Revolution and the Louisiana Purchase, the city's free people of color fought to establish and defend their freedoms and to protect their property rights. Despite facing a legal, political, and social system that was increasingly hostile to their interests, this book demonstrates how they successfully utilized the court system to carve out a space for themselves within New Orleans' racial hierarchy. Most importantly, Aslakson's exhaustive examination of the records of the New Orleans City Court reveals the ways in which free people of color participated in the continuous project that was race making in the early republic."
—Jennifer M. Spear, Simon Fraser University
More information is available here.

Monday, October 13, 2014

Charles on History in Law, Mythmaking, and Constitutional Legitimacy

Patrick J. Charles, US Air Force, has posted History in Law, Mythmaking, and Constitutional Legitimacy, which is to appear in the Cleveland State Law Review 62 (2014).  Mr. Charles tell us that the article is “part of last spring's mini-symposium, ‘History and the Meaning of the Constitution,’ and that readers may respond to the article through Cleveland State Law Review's website, Et Cetera.  Here is the abstract:    
Defining what constitutes myth and history has been an ongoing debate among historians for over a century. The debate centers as to whether there can truly ever be such a thing as an objective historical account. Given that all historical inquiries grow out of the respective historian’s ideological mind, it is argued the writing of history is not so much about truth-seeking as it is about the ideological leanings of the respective historian. In other words, critics of objective history frequently claim that one historian’s truth is another’s falsity.

In any case there is an argument to be made that all history is myth and all myth is history. No matter how much of the evidentiary record is uncovered, no historian can ever fully reconstruct the past as it was. In their totality, those moments in history are lost forever. The best any historian can do is build upon those evidentiary remnants which remain. Still, at one level or another, historians will have to make a number of assumptions about the past. In some instances the assumptions will be small or minute because the evidentiary record is rich with information about the past, allowing the respective historian to recreate an event or time period in excruciating detail. In other instances the assumptions can be substantial, especially when the evidentiary record is barren, requiring the respective historian to fill the evidentiary gaps. But whenever historians make any assumptions about the past—whether they be minor or substantial—they are perpetuating myth in some form or another.

Given these problems, this article builds upon a previous work--"Historicism, Originalism and the Constitution"--and argues that history is much better suited as a philosophical and moral guide towards understanding the law’s development. This in turn minimizes mythmaking and the creation of poor constitutional constructs. This does not mean, however, that to legally reason from subjective historical accounts or myth can never be a legitimate enterprise. As this article outlines, there is at least two scenarios (and perhaps others) where the acceptance of myth is constitutionally legitimate.

Oiken on Sutherland's Free Speech Cases

Samuel R. Olken, John Marshall Law School, has posted Justice George Sutherland and the Business of Expression, which is forthcoming in Judging Free Speech: First Amendment Jurisprudence of U.S. Supreme Court Justices.  Here is the abstract:    
George Sutherland, J. (LC)
In 1936-1937, Justice George Sutherland wrote his only two United States Supreme Court opinions about freedom of expression. Sutherland’s majority opinion in Grosjean v. American Press Co. (1936) and his dissent in Associated Press v. NLRB (1937) set forth a novel and hybrid constitutional concept, the business of expression, which melded economic liberty and freedom of expression and reflected Sutherland’s aversion towards political factions and solicitude for private economic rights. In both cases Sutherland assessed economic regulations of the press through the prism of economic liberty and suggested that through partial laws – what Sutherland considered illegitimate class legislation – political factions sought to impede the business of expression. Sutherland’s analysis underscored the interplay between economic liberty and freedom of expression.

Rector, "Environmental Justice at Work"

The September 2014 issue of the Journal of American History includes an article of interest: "Environmental Justice at Work: The UAW, the War on Cancer, and the Right to Equal Protection from Toxic Hazards in Postwar America," by Josiah Rector (Wayne State University). Here's the abstract:
Josiah Rector analyzes a series of campaigns by midwestern autoworkers to secure stronger protections against cancer-causing chemicals after World War II. Although most historians of the environmental justice movement have neglected the contribution of labor unions, in the 1960s and 1970s, however, activists in unions and community organizations combined concerns about race, class, and gender inequality with related patterns of pollution exposure. In the process, these activists began to use popular epidemiology to link chemical exposures to disease. Emphasizing the role of working-class people in challenging pollution, Rector argues for a more inclusive history of the environmental justice movement.
Subscribers to the journal may access full content here.

Hat tip: Environment, Law & History

Sunday, October 12, 2014

Sunday Book Roundup

John Paul Stevens has a review in the latest issue of The New York Review, "Law Without History?" that examines Robert A. Katzmann's Judging Statutes (Oxford University Press). 
"In the introduction to his book Katzmann notes “the simple reality” that an enormous increase in the number of new statutes has led to a corresponding increase in the number of judicial decisions in which federal courts are called upon to interpret them as they apply in one situation or another. Now a substantial majority of the Supreme Court’s caseload involves statutory construction. And of course the work of lower federal court judges, administrative agencies, and practicing lawyers increasingly involves the interpretation of federal statutes. His topic is unquestionably important, and he has shed new light on the ongoing debate between “purposivists” and “textualists.”"
This week Breaking In: The Rise of Sonia Sotomayor (Farrar, Straus & Giroux) by Joan Biskupic is reviewed in The New York Times.

Nick Bunker's An Empire on the Edge: How Britain Came to Fight America (Knopf) is reviewed in the Washington Independent Review of Books.
"Everything that most of us know about the American Revolution comes from American historians because, as the old adage says, history is written by the winners. Now hear from an eloquent spokesman for the losers: Nick Bunker is a British writer who searches for the roots of the Revolution in the politics and economics of his homeland. He looks back to see “two overlapping empires,” political and commercial. In Bunker’s harsh and well-documented opinion, British politicians “valued their commercial empire more highly than the flags they had planted on the map.”"
The Washington Post has a review of Racial Reckoning: Prosecuting America's Civil Rights Murders (Harvard University Press) by Renee Romano.

Jonathan Eig's The Birth of the Pill: How Four Crusaders Reinvented Sex and Launched a Revolution (Norton) has been reviewed by Ann Friedman in The New Republic and reviewed by Irin Carmon for The New York Times:
"For much of the first half of the 20th century, women approached Margaret Sanger with a plea: “Do tell me the secret.” They wrote letters, too: “Doctors are men and have not had a baby so they have no pitty [sic] for a poor sick mother.” But she had no secret to not getting pregnant when you didn’t want to. By Sanger’s time, modern medicine had improved upon the crocodile dung ancient Egyptians used as vaginal plugs and the lemon half Casanova recommended as a cervical cap — but not by much. Diaphragms were faulty and ill-used. And condoms depended on men’s will, at a time when a doctor could advise a woman to sleep on her roof to avoid her husband’s advances."

There is a Q&A with Katha Pollitt about her book PRO: Reclaiming Abortion Rights (Picador) in the LA Times, and the book is also reviewed in The New York Times.
"“I never had an abortion, but my mother did. She didn’t tell me about it, but from what I pieced together after her death from a line in her F.B.I. file, which my father, the old radical, had requested along with his own, it was in 1960, so like almost all abortions back then, it was illegal.”
Thus begins “Pro,” the abortion rights manifesto by the Nation columnist, poet and red diaper baby Katha Pollitt. While parents with F.B.I. files may be exotic, her departure point is that abortion was and is not. Like six out of 10 women who get abortions today, Pollitt’s mom was already a mother when she chose to abort. Why didn’t she carry this pregnancy to term? How far along was she? Why didn’t she tell her husband? Was her practitioner good? Did a friend go with her? Pollitt doesn’t know."