Wednesday, December 31, 2014

Stein, Guzelian and Guzelian on Medical Malpraxis

Michael Ashley Stein, William & Mary Law School, and Christopher P. Guzelian and Kristina M Guzelian, Thomas Jefferson School of Law, have posted Expert Testimony in Nineteenth Century Malapraxis Actions, which is to appear in the American Journal of Legal History 55 (2015): 284-97.  Here is the abstract:    
Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.

Tuesday, December 30, 2014

Hatzimihail on Genealogies of Lex Mercatoria

Nikitas Hatzimihail, University of Cyprus, Department of Law, has posted Genealogies of Lex Mercatoria, which appeared in Studies in Memoriam of Professor Anthony Antapasis (Athens, 2013),  411-452.  Here is the abstract:    
The historical study of mercantile law has, without a question, much to teach both business and private international lawyers. Such study requires a sophisticated methodology that combines the rigour of professional historians with understanding of doctrinal complexity. However, most of the popular historical narratives about the “old” law merchant have little to contribute to historical scholarship and appear instead primarily concerned with genealogy: their principal aim is to inspire their audience or to provide argumentative weapons to their party in the modern debates about lex mercatoria and the governance of transnational business activities. In comprehensive historical accounts and casual references to a common historical consciousness alike, the “ancient” law merchant is presented as an autonomous, cosmopolitan, transnational legal system. This imagery is also recurring in the modern conflict-of-laws literature, as well as domestic commercial law. It permeates historical narratives in comparative law and doctrinal legal history. The ancient law merchant even serves as case-study material for legal and economic theorists.

Eppinger on Eugen Ehrlich and Late Habsburg Ethnography

Monica E. Eppinger, Saint Louis University School of Law and Department of Sociology and Anthropology, has posted Governing in the Vernacular: Eugen Ehrlich and Late Habsburg Ethnography, which originally appeared in Living Law: Reconsidering Eugen Ehrlich, ed. Marc Hertogh (Oxford: Hart, 2009).  Here is the abstract:    
Eugen Ehrlich's vision for a "dynamic conception of law" in 1903 challenges prior focus on doctrine and logic with a demand that legal science direct attention to the "facts of daily life." Ehrlich's program -- his innovative conception of law and calls for a new sociology of law -- has been claimed as inspiration by those intent on modernizing law and state administration and by critics launching attacks on state fetishism. Between these extremes, Ehrlich's understudied ideas about implementing "living law" as a program for governance deserve re-examination.

This Article, situating Ehrlich's work in the social, intellectual, and political milieu of late Habsburg Bukovina (then part of Austria, now Ukraine), shows that direct experience with pluralism and fluidity inform Ehrlich's conception of society as a living organism in constant flux. Ehrlich, searching for contemporary equipment adequate to this milieu, finds ethnography. In his work, ethnography emerges as not merely a matter of heuristics but of epistemology, a method of apprehending and studying "society," dynamically conceived. This version of ethnography becomes the centerpiece of Ehrlich's methodological program for making legal decisions. Ehrlich's radical proposal to the Free School is that, when facing gaps in the law, a judge's sense of what to do in an instant case be predominantly informed by studying current practice, operationalizing what I call a "user theory of rights."

Understanding Ehrlich in either extreme -- as visionary foundation-layer for state renewal or as righteous critic of state fetishism -- miscomprehends Ehrlich and sells his work short. Ehrlich offers a different kind of authoritative discourse, different from existing science and law. Ethnography in his hands defies the boundary between the descriptive and the normative. Incorporating ethnography into the production of judicial decisions, Ehrlich recognizes his fellow citizens' practice as already law. His program could be read as a blueprint for governing in the vernacular where the ethnographer is a key link but does not claim to produce law or to know the right answers, offering instead observations of law that others are already practicing.

Monday, December 29, 2014

Chicoine and Garry on South Dakota's 19th-Century Constitutional Debates

Catherine Chicoine and Patrick M. Garry, University of South Dakota School of Law, have posted The 1885 and 1889 Constitutional Convention Debates, which appears South Dakota Law Review 59 (2014).  Here is the abstract:    
The Constitution, adopted when South Dakota achieved statehood, was the product of three constitutional conventions. Each of the proposed constitutions produced by subsequent conventions built upon the work of previous conventions. Therefore, determining the intended meaning of provisions in the 1889 Constitution may require a consultation of debates related to similar provisions in previously proposed constitutions. However, those convention’s debates are not organized well or clearly regarding topic or subject matter.

Fortunately, the South Dakota legislature had the foresight to preserve and publish the convention debates from 1885 and 1889. An act entitled Act Providing for the Publication of the Debates of the Constitution Conventions of 1885 and 1889, enacted by the Legislature of the State of South Dakota of 1897, directed the state librarian to edit and prepare the 1885 and 1889 debates for publication.

As a way of examining the concerns and controversies that existed during South Dakota’s constitutional formation, this Article attempts to summarize and highlight the areas of significant debate at the 1885 and 1889 conventions.

Bazyler and Tuerkheimer's "Forgotten Trials of the Holocaust"

Michael J. Bazyler, Chapman University, and Frank M. Tuerkheimer, University of Wisconsin, have published Forgotten Trials of the Holocaust with NYU Press.
In the wake of the Second World War, how were the Allies to respond to the enormous crime of the Holocaust? Even in an ideal world, it would have been impossible to bring all the perpetrators to trial. Nevertheless, an attempt was made to prosecute some. Most people have heard of the Nuremberg trial and the Eichmann trial, though they probably have not heard of the Kharkov Trial—the first trial of Germans for Nazi-era crimes—or even the Dachau Trials, in which war criminals were prosecuted by the American military personnel on the former concentration camp grounds.

This book uncovers ten “forgotten trials” of the Holocaust, selected from the many Nazi trials that have taken place over the course of the last seven decades. It showcases how perpetrators of the Holocaust were dealt with in courtrooms around the world—in the former Soviet Union, the United Kingdom, Israel, France, Poland, the United States and Germany—revealing how different legal systems responded to the horrors of the Holocaust. The book provides a graphic picture of the genocidal campaign against the Jews through eyewitness testimony and incriminating documents and traces how the public memory of the Holocaust was formed over time.

The volume covers a variety of trials—of high-ranking statesmen and minor foot soldiers, of male and female concentration camps guards and even trials in Israel of Jewish Kapos—to provide the first global picture of the laborious efforts to bring perpetrators of the Holocaust to justice. As law professors and litigators, the authors provide distinct insights into these trials.
TOC here; introduction here; blurbs after the jump

Saturday, December 27, 2014

Weekend Roundup

  • New York City's Housing Court at 40: "a compilation of interviews of many people who were involved with the formation of Housing Court, its implementation, and its advancement."
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, December 26, 2014

Rowe and Silver on the Action-Inaction Distinction

Jean Elting Rowe and Theodore Silver, Touro College Jacob D. Fuchsberg Law Center, have posted The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth Through the Twentieth Centuries, which appeared in the Duquesne Law Review 807 33 (1995): 807-55.  Here is the abstract:    
The article discusses how negligence doctrine has long distinguished misfeasance (a “misdoing”) from nonfeasance (a “not doing”), purporting to provide that the former occasions liability and the latter does not. After a brief explanation on the origins of this distinction and the chaos that has ensued because of it, the article lays the basis for subsequent discussion by (a) examining the manner in which English courts early defined and distinguished misfeasance and nonfeasance, (b) identifying the single case from which there emerged the erroneous jurisprudence that produced the law's confused perspective on the terms, and (c) probing the conceptual tensions to which the terms then gave rise from the fifteenth through the nineteenth centuries. Building on Part I, Part II describes the manner in which “nonfeasance” and its supposed contradistinction to “misfeasance” now muddles the law of negligence. Through historical inquiry it demonstrates that the confusion reflects, in truth, the law's failure ever to delimit the notion of duty as it, in turn, informs the realm of negligence. Part III sets forth a workable conceptual scheme through which courts might determine that with respect to negligence, a given defendant does or does not owe a duty to a given plaintiff. It thus unburdens the common law of the befuddlement with which it has so long lived in this regard and, indeed, frees it to delete “nonfeasance” and “misfeasance” from its lexicon.

Wednesday, December 24, 2014

Slow Posting Ahead

With the arrival of the holidays and the departure of Legal History Bloggers for various destinations, LHB will be entering a period of fewer posts.  Please don't be disheartened if we are slower than usual in responding to your always welcome communications.  We expect to resume our normal pace in mid-January.

Tuesday, December 23, 2014

New Release: Wallenstein, "Race, Sex, and the Freedom to Marry: Loving v. Virginia"

We noted this book back in July, when we posted Timothy Huebner's Spring 2014 round-up of New Books in U.S. Constitutional/Legal History, but now it is officially out: Race, Sex, and the Freedom to Marry: Loving v. Virginia (University Press of Kansas), by Peter Wallenstein (Virginia Tech). The book is part of the Landmark Law Cases and American Society series. A description from the Press:
In 1958 Mildred Jeter and Richard Loving, two young lovers from Caroline County, Virginia, got married. Soon they were hauled out of their bedroom in the middle of the night and taken to jail. Their crime? Loving was white, Jeter was not, and in Virginia—as in twenty-three other states then—interracial marriage was illegal. Their experience reflected that of countless couples across America since colonial times. And in challenging the laws against their marriage, the Lovings closed the book on that very long chapter in the nation’s history. Race, Sex, and the Freedom to Marry tells the story of this couple and the case that forever changed the law of race and marriage in America.

The story of the Lovings and the case they took to the Supreme Court involved a community, an extended family, and in particular five main characters—the couple, two young attorneys, and a crusty local judge who twice presided over their case—as well as such key dimensions of political and cultural life as race, gender, religion, law, identity, and family. In Race, Sex, and the Freedom to Marry, Peter Wallenstein brings these characters and their legal travails to life, and situates them within the wider context—even at the center—of American history. Along the way, he untangles the arbitrary distinctions that long sorted out Americans by racial identity—distinctions that changed over time, varied across space, and could extend the reach of criminal law into the most remote community. In light of the related legal arguments and historical development, moreover, Wallenstein compares interracial and same-sex marriage.
A fair amount is known about the saga of the Lovings and the historic court decision that permitted them to be married and remain free. And some of what is known, Wallenstein tells us, is actually true. A detailed, in-depth account of the case, as compelling for its legal and historical insights as for its human drama, this book at long last clarifies the events and the personalities that reconfigured race, marriage, and law in America.
A few blurbs:
“A superb work by a proven scholar tracks the intertwining histories of race, gender, law, and religion; it masterfully revisions America’s past and presents through the window of the Loving story, a saga of race and marriage.”—Arica L. Coleman

“Placing the Loving drama in historical context, Wallenstein masterfully guides the reader through the Lovings’ state and federal court battle. Further, he examines how same-sex couples use the Loving precedent to afford them the right to marry as well. A readable, detailed, and valuable addition to the Loving history.”—Charles Robinson
More information is available here.

Shulman on Meyer, Pierce and Parental Rights

Jeffrey Shulman, Georgetown University Law Center, has posted Meyer, Pierce, and the History of the Entire Human Race: Barbarism, Social Progress, and (the Fall and Rise of) Parental Rights.  Here is the abstract:    
Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, by some accounts, the demise of parental authority.

The eighteenth and nineteenth centuries witnessed the emergence of social science disciplines built on a materialistic theory of cultural progress and an evolutionary view of law. One result of these early enthographic efforts was the enormously influential stage-theory of societal development. Simply enough, stage-theory describes how a society moves from a primitive to a civilized state of development, and how it might fail to do so. The theory was congenial to the moral philosophers and social theorists of the Scottish Enlightenment; to libertarian-minded contractualists of late-nineteenth-century America; and to the founding fathers of revolutionary socialism. It was a part of the nineteenth century’s great idiom of secular progress and social engineering, part of a story of worldly advancement and human achievement in which the courts had their own role to play.

Gerber on Liberal Originalism

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted Liberal Originalism: The Declaration of Independence and Constitutional Interpretation, which appears in the Cleveland State Law Review 63 (2014).  Here is the abstract:
This article is part of a law review symposium about "History and the Meaning of the Constitution." In the article I explain a theory of constitutional interpretation I named "liberal originalism" while I was writing my Ph.D. dissertation (later, my first book). Next, I assess the criticisms of liberal originalism, Justice Clarence Thomas's use of liberal originalism, and the reaction to Justice Thomas's liberal originalism. I conclude the article with a brief discussion of the future of liberal originalism.

Vogenauer to Direct Max Planck Institute for European Legal History

[From the press release:]

Stefan Vogenauer appointed as new Director at the Max Planck Institute for European Legal History

European Legal History, Comparative Law and Transnational Private Law – these are some of the items on the research agenda of Stefan Vogenauer, currently Professor of Comparative Law at the University of Oxford. He is the most recent Scientific Member of the Max Planck Society and will join the Max Planck Institute for European Legal History as of October 1, 2015. Prior to this, he will already commence to build up his research department in Frankfurt. It will, inter alia, focus on the common law tradition of the past, present and future.

Stefan Vogenauer (credit)
“Over the past years, the Frankfurt Max Planck Institute has become an even more dynamic institution with excellent potential for the advanced study of legal history.  I am delighted to be able to contribute to this venture,” says Stefan Vogenauer.  Vogenauer is currently Professor for Comparative Law and Director of the Institute of European and Comparative Law at the University of Oxford. He has just been elected as a Scientific Member of the Max Planck Society and has been designated as Director of the MPI for European Legal History. In the coming months he will set up his new research department in the new premises of the Institute in the Hansaallee in Frankfurt before joining full-time in October 2015.

“At a Max Planck Institute you have the freedom to work at the frontiers of scholarly research,” states Vogenauer who has an interest in European legal history, particularly the history of EU law and European integration more generally, comparative law with a particular expertise in Anglo-American law, transnational private law and legal method. Before taking up his post at the University of Oxford and a Fellowship at Brasenose College he was a Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg where he was awarded the Otto Hahn Medal of the Max Planck Society. “I have always been fascinated by the aspiration of the Max Planck Society to rank amongst the top research institutions worldwide,” he adds. Vogenauer is aware that co-operation with the broader Higher Education sector is particularly important if this aim is to be achieved: “I am impressed by the legal history network of the Max Planck Institute, the Goethe University and other partners in the Frankfurt area. This is a promising environment to make legal history more visible both nationally and internationally.”

The external reviewers who were involved in the process of identifying a new research director for the MPI for European Legal History were confident that not only will Vogenauer draw inspiration from his new research environment: the process will also work in the opposite direction. They were in agreement that Vogenauer’s comparative approach to issues of contemporary law on the basis of historical analysis will give momentum to the whole discipline. One of his major research projects to be pursued over the coming years concerns the phenomenon of legal transfer in the common law world. It will broaden the current research activities at the MPI for European Legal History by introducing an Anglo-American perspective and reaching out to the non-Western traditions in the common law tradition. “When the Institute was established 50 years ago it was already intended to broaden European legal history beyond the continent, so as to include an Anglo-American dimension. This has now come true,” says Thomas Duve, Director of the second research department at the MPI for European Legal History.

Monday, December 22, 2014

Stanford's International Junior Faculty Forum

[We have a call for papers for Stanford Law School’s Eighth International Junior Faculty Forum:]

Sponsored by Stanford Law School, the International Junior Faculty Forum was established to stimulate the exchange of ideas and research, among younger scholars in the academy, from all parts of the world. We live today in a global community¡V in particular, a global legal community¡V and we would like to foster legal scholarship on a transnational basis. Scholars in different countries are often divided by barriers of time and space and also by barriers of different legal traditions and cultures. We hope that the Forum will be a step in the direction of surmounting these barriers. The papers at the 2014 forum were on a very wide range of subjects, from the economic impact of legal rules on hotel franchises, to the influence of Muslim legal culture on European laws. The authors of these papers came from many countries, as did the senior scholars who chose the papers and commented on them. A wide range of views, techniques, and methodologies were represented.

Stanford Law School is pleased to announce plans for the eight international forum. It will be held in Fall 2015, either in late September or early October (the exact date has not yet been fixed). It will take place at Stanford Law School, in Stanford, California.

In order to be considered for the 2015 International Junior Faculty Forum, authors must meet the following criteria:
  • Citizen of a country other than the United States
  • Current academic institution is outside of the United States and not a present student in the United States
  • Have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years as of 2015; and
  • Last degree earned less than ten years before 2015
Papers may be on any legally relevant subject. We particularly welcome work that is interdisciplinary. The papers can make use of any relevant approach: they can be quantitative or qualitative, sociological, anthropological, historical, or economic. Stanford would like to emphasize that it welcomes papers from junior scholars from all parts of the world. No country or group of countries has a monopoly of talent. Please note, however, that already published papers will not be eligible for consideration.

The first step is to submit an abstract of the proposed paper. We would like these to be no more than four (4) pages long; and to be in English. Tell us what you plan to do, lay out the
major argument of the paper, say something about the methodology and what you think the paper¡|s contribution will be to scholarship. The due date for the abstracts is February 6, 2015, although earlier submissions are welcome. Please submit the abstract electronically to Maria O¡|Neill,, with the subject line, International Junior Faculty Forum. The abstract should contain the author¡|s name, home institution, and the title of the proposed paper. Please also send a current CV.

After the abstracts have been reviewed, we will invite, no later than March 1st, a number of junior scholars to submit full papers of no more than 15,000 words, electronically, in English, by May 22, 2013. Please include a word count for final papers. There is no fixed number of papers to be invited, but in the past years, up to 50 invitations have been issued, from among a much larger number of abstracts.

An international committee of legal scholars, who themselves represent many different countries, and many different styles and approaches, will review the papers. In the end, about ten of the papers will be chosen for full presentation at the conference. At the conference itself, two senior scholars will comment on each paper. After the remarks of the commentators, all of the participants, junior and senior alike, will have a chance to join in the discussion. One of the most valuable and enjoyable aspects of the Forum, in the opinion of many participants, has been the chance to meet junior and senior scholars, and to talk about your work and theirs.

Stanford will cover expenses of travel, including airfare, lodging, and food, for each participant. Questions should be directed to Maria O¡|Neill (

Professor Lawrence M. Friedman
Professor Deborah Hensler
Stanford Law School

JSCH 40:1

Via H-Law, here’s the TOC for the Journal of Supreme Court History 40:1.

Melvin I. Urofsky

Founding the Third Branch: Judicial Greatness and John Jay’s Reluctance
Matthew Van Hook

Police the Border:  Justice Field on Immigration as a Police Power
Adam Carrington

“The Silent Man:” From Lochner to Hammer v. Dagenhart: A Reevaluation of Justice William R. Day
Jesse Bair

The Clerks of the Four Horsemen (Part II, George Sutherland and Pierce Butler)
Barry Cushman

William O. Douglas’s Supreme Court Nomination
David J. Danelski

How Slavery Killed the Constitution of 1787

[We're moving this up, as the deadline of December 30, 2014, is approaching]

The Institute for Constitutional History is pleased to announce a seminar for advanced graduate students and junior faculty, “How Slavery Killed the Constitution of 1787,” led by Kent Newmyer and Richard B. Bernstein.  It meets Friday afternoons, 2:00-4:00 p.m., February 20, 27, March 6, 13, 20 and 27. The seminar will meet at the New-York Historical Society, 170 Central Park West, New York City.

Several large and small unknowns were rooted in the Constitution of l787 as it emerged from the hands of the framers and ratifiers.  Chief among them were: (1) the structure of power as between the new national government and the states, (2) the place of slavery in the new constitutional arrangement, and (3) the location of the final interpretative authority with regard to the first two unknowns:  whether in the Supreme Court of the United States; or in the state courts; or in specially elected state conventions; or in the will of the national electorate operating through the evolving new political party system; or, finally, in the god of battles? 

In addition to acquainting participants with useful scholarship and relevant primary sources, this seminar's objective is to trace the working-out of these constitutional uncertainties in the period leading to secession and Civil War--the period during which pro-slavery forces and state sovereignty theory converged to challenge the authority of the federal government. We also will explore the possibility that the slavery issue, almost from the outset of government under the Constitution of 1787, permeated every major aspect of constitutional law--making the antebellum period a distinct epoch in American constitutional history, one that ended with the Union victory and with the Civil War Amendments.

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines.  All participants will be expected to complete the assigned readings and participate in seminar discussions.  Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar.  Please consult with your advisor and/or director of graduate studies about these possibilities.  Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at until December 30, 2014.  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Kent Newmyer, Professor of Law and History at the University of Connecticut School of Law, has taught a wide range of graduate and undergraduate courses in American history, specializing in the political, constitutional, and legal history of the antebellum period. He is best known for Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985), and John Marshall and the Heroic Age of the Supreme Court (2001). A second edition of his short volume on The Supreme Court under Marshall and Taney was published in 2006. His most recent publication is The Treason Trial of Aaron Burr: Law, Politics, and the Character Wars of the New Nation (2012).

R. B. Bernstein, lecturer in political science in the Skadden, Arps Honors Program in Legal Studies at the Colin Powell School of Civic and Global Leadership at the City College of New York, is also a distinguished adjunct professor of law at New York Law School.  His most recent books include Thomas Jefferson (2003) and The Founding Fathers Reconsidered (2009).  He is now completing The Education of John Adams for Oxford University Press.

The Institute for Constitutional History (ICH) is the nation's premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

McSweeney on Magna Carta, Civil Law and Canon Law

Thomas J. McSweeney, William & Mary Law School, has posted Magna Carta, Civil Law, and Canon Law, which appears in Magna Carta and the Rule of Law, ed. Daniel Magraw et al (2014).  Here is the abstract:
With the 800th anniversary of Magna Carta approaching, interest has been piqued in the charter, which influenced the development of the common law in its early stages. One debate surrounding the charter is the degree to which Roman and canon law influenced the text. This debate has important implications for the identity of the common law. We tend to think of common law as an English institution, very different from those continental civil-law systems that trace their ancestry back to medieval Roman and canon law. If Roman and canon law influenced the charter, it could serve as evidence that the early common law was not so insular in its outlook as we have thought, and that it really should be placed in a broader European context.

Roman and canon law — collectively called the ius commune in the Middle Ages — certainly made their mark on Magna Carta, but this paper argues that the elements of the ius commune that found their way into Magna Carta were inserted not to influence the early development of the common law, as many scholars have assumed, but rather because ius commune, and more particularly canon law, was a political language that appealed to various important constituencies in England and abroad. Appeals to canon law in Magna Carta were more likely placed there to elicit support from the papacy than to reform English law. This paper places Magna Carta in the longer context of the Church reform movement and its instantiation in England — the Becket dispute — and argues that Magna Carta’s ius commune-influenced provisions were attempts by English actors to give universal significance to their local disputes.

Sunday, December 21, 2014

Sunday Book Roundup

H-Net adds a review this week of Gail Radford's The Rise of the Public Authority: Statebuilding and Economic Development in Twentieth-Century America (University of Chicago Press).
"Among the many challenges faced by historians of the modern United States is finding a way to decipher and depict the labyrinth of government. The task proves tangled enough when dealing with the federal, state, and local layers, and all their executive, legislative, and judicial divisions. But the complexity grows exponentially when one builds in the myriad boards, commissions, agencies, and districts to which executive and legislative bodies have delegated responsibilities. It is a relief, then, to see a scholar like Gail Radford tackle the public authority, a particularly sizeable but woefully understudied branch of modern governance. The Rise of the Public Authority: Statebuilding and Economic Development in Twentieth-Century America provides a valuable overview of an intricate topic, explaining the growing role these institutions have played in the public provision of goods and services in the United States."
In the Los Angeles Review of Books, The Inspection House: An Impertinent Field Guide to Modern Surveillance by Emily Horne and Tim Maly (Coach House Books) is reviewed.
"This terrain is the English philosopher Jeremy Bentham’s panopticon (the prison he designed in the 1870s), as seen from the viewpoint of Michel Foucault. The authors use Foucault’s Discipline and Punish: The Birth of the Prison as a gateway to discussion of what they call “our strange present condition,” meaning our “disciplinary” society and its enforcement through the widespread practice of surveillance by governments, corporations, and individuals."
Salon has published an excerpt from Jason Sokol's All Eyes Are Upon Us: Race and Politics from Boston to Brooklyn (Basic).You can hear an interview with the author on New Books in American Studies.

The New Books series has also conducted an interview with Jothie Rajah discussing her book, Authoritarian Rule of Law: Legislation, Discourse, and Legitimacy in Singapore (Cambridge University Press).

Additionally, New Books in History has posted a new interview with Daniel O. Prosterman regarding his new book, Defining Democracy: Electoral Reform and the Struggle for Power in New York City (Oxford University Press).

Saturday, December 20, 2014

Weekend Roundup

  • An announcement for untenured law professors: The Yale/Stanford/Harvard Junior Faculty Forum has issued its annual call for submissions.
  • Ronald Collins's interview of Judge Richard Posner continues on Concurring Opinions.  In this post, Judge Posner comments on other (now deceased) eminent judges.
  • From the Philadelphia Tribune: “A rare exhibit of American History artifacts opened Monday at the U.S. Constitution Center.  One of the 12 original copies of the Bill of Rights went on display. It will share a gallery with a first-edition stone engraving of the Declaration of Independence and the first public printing of the United States Constitution.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, December 19, 2014

Parks, Ray and Patterson on Alpha Kappa Alpha and Civil Rights

Gregory Scott Parks, Wake Forest University School of Law, Rashawn Ray, University of Maryland, and Shawna M. Patterson, University of Pennsylvania, have posted Complex Civil Rights Organizations: Alpha Kappa Alpha Sorority, an Exemplar.  Here is the abstract:    
The narrative about African American organizations and their role in blacks’ quest for social equality and civil rights in the United States is often a conventional one. Traditional Civil Rights organizations (e.g., NAACP, NCNW, SCLC) take center-stage with the efforts that they made and make, as well as the model that they employed and continue to employ, being the exemplar. Other African American organizations, too, have played a critical role in the Civil Rights Movement. For example, Theda Skocpol and colleagues, as well as Corey D.B. Walker, in their respective works, highlight the contributions that African American secret societies made to blacks’ struggle for social equality in the United States. In this article, the authors analyze the role that another set of African American fraternal groups have played in African Americans’ Civil Rights struggle and the challenges, and maybe opportunities, created from the complexity associated with these organizations as they pertain to carrying out this mission. Specifically, we focus on the efforts of Alpha Kappa Alpha Sorority, Inc. during the mid-20th Century.

New Release: Siegrust and Müller, eds., "Property in East Central Europe"

New from Berghahn Books: Property in East Central Europe: Notions, Institutions, and Practices of Landownership in the Twentieth Century, edited by Hannes Siegrist (University of Leipzig) and Dietmar Müller (University of Leipzig). A description from the Press:
Property is a complex phenomenon comprising cultural, social, and legal rules. During the twentieth century, property rights in land suffered massive interference in Central and Eastern Europe. The promise of universal and formally equal rights of land ownership, ensuring predictability of social processes and individual autonomy, was largely not fulfilled. The national appropriation of property in the interwar period and the communist era represent an onerous legacy for the postcommunist (re)construction of a liberal-individualist property regime. However, as the scholars in this collection show, after the demise of communism in Eastern Europe property is again a major factor in shaping individual identity and in providing the political order and culture with a foundational institution. This volume analyzes both historical and contemporary forms of land ownership in Poland, Romania, and Yugoslavia in a multidisciplinary framework including economic history, legal and political studies, and social anthropology.
The TOC:
Introduction: Property in East Central Europe: Notions, Institutions and Practices of Landownership in the Twentieth Century
Hannes Siegrist and Dietmar Müller
Chapter 1. The Changing Landscape of Property: Landownership and Modernization in Poland in the Nineteenth and Twentieth Centuries
Jacek Kochanowicz
Chapter 2. Agriculture and Landownership in the Economic History of Twentieth-century Romania
Bogdan Murgescu
Chapter 3. Property in the East Central European Legal Culture
Herbert Küpper
Chapter 4. The Habsburg Cadastral Registration System in the Context of Modernization
Kurt Scharr
Chapter 5. Property between Delimitation and Nationalization: The Notion, Institutions and Practices of Land Proprietorship in Romania, Yugoslavia and Poland, 1918–1948
Dietmar Müller
Chapter 6. Frontline Soldiers into Farmers: Military Colonization in Poland after World War I and World War II
Christhardt Henschel
Chapter 7. The Country Road to Revolution: Transforming Individual Peasant Property into Socialist Property in Yugoslavia, 1945–1953
Jovica Luković
Chapter 8. Homeland as Property: Symbolic Ownership and the Local Heritage of the Past in Lemkowyna and the Ukraine
Jacek Nowak
Chapter 9. Landownership in Practice: The Case of the Local Community of Naramice in Central Poland
Paweł Klint
Chapter 10. Property and Agricultural Policy in Twentieth-century Romania: Intentions, Technical Means and Social Realities
Cornel Micu

Chapter 11. Owning Land in Central Serbia: Contemporary Notions and Practices: The Case of Mrčajevci
Srđan Milošević
Chapter 12. The Practices of Land Ownership in Vojvodina: The Case of Aradac
Jovana Diković
More information is available here.

McSweeney on Pardoning as Almsgiving in Medieval England

Thomas J. McSweeney, William & Mary Law School, has posted The King's Courts and the King's Soul: Pardoning as Almsgiving in Medieval England, which will appear in "Law's Dominion: Medieval Studies for Paul Hyams," a special issue of Reading Medieval Studies 40 (2014): 159.  Here is the abstract:    
This paper examines the workings of the English royal courts in the thirteenth century through one of their practices — pardoning — and argues that the king and his officials could see courts not just as venues for justice, but also as institutions through which the king could see to the health of his own soul. The royal courts and royal administration of the thirteenth century used the power to pardon to relieve people of many legal penalties, from amercements (what we would today call fines) to the death penalty in felony cases. Scholars who have studied these pardons have tended to use the medieval sources to try to find the rules of pardoning. They have assumed that pardoning followed some kind of legal logic, and that pardons were given to the worthy. Amercement pardons were given to those who could not afford to pay and felony pardons were given to those who were not culpable. This paper looks at pardons that cannot be explained according to this legal logic. It looks at the many pardons explicitly made “for the sake of the king’s soul,” many of which have nothing to do with the killer’s culpability or the amerced party’s ability to pay, and argues that they operated according to a different logic: the logic of alms. Pardons were granted or denied based on their ability to salve the king’s soul, leading to results that appear to be anomalous to us today — such as a blanket pardon for most felons that excluded Jews — but which would have appeared to be logical to people who were accustomed to view the courts not solely as agents of justice, but as extensions of the king’s person.

Thursday, December 18, 2014

Stern on the Pre-History of the Public Domain

Simon Stern, University of Toronto Faculty of Law, has posted Towards a Pre-History of the Public Domain: Copyright Law and its Limits in Eighteenth-Century England, which is forthcoming in the Oxford Literature Handbooks series.  Here is the abstract:
The advent of statutory copyright in eighteenth-century England raised questions about ensuring access to the materials that writers need to produce new books. The public domain did not spring into being as the obverse of the rights afforded by the Act of Anne (1710), nor was it created by nineteenth-century doctrines such as fair use; rather, it developed out of practices and assumptions predating the Act of Anne, and others that emerged in the statute’s wake. To explore these ideas, the essay considers booksellers’ and authors’ conceptions of copyright as property, the metaphors proposed by advocates of anti-piracy measures, arguments about copyright’s duration and its basis in the common law, and analogies between copyright and patent law during this period. Finally, the essay discusses the booksellers’ strategic litigation in the equity courts, where pleading could rely on imaginative premises that, in some respects, rival those of contemporaneous novelists.

Judith Kelleher Schafer (1942-2014)

Judith Kelleher Schafer
[We're sorry to pass on news of the death of another important contributor to American legal history.]

Judith Kelleher Schafer obtained a BA from H. Sophie Newcomb College, and an MA and PhD in History from Tulane University. She was both a highly regarded scholar and professor of American history and legal history at Tulane University and Tulane University Law School where she worked for over 30 years. Dr. Schafer published numerous articles and essays in law reviews and historical journals. She also published three books: Slavery, the Civil Law, and the Supreme Court of Louisiana (winner of the Francis Simkins Prize of the Southern Historical Association and the Kemper Williams award of the Louisiana Historical Association; Becoming Free, Manumission and Enslavement in Antebellum New Orleans; and Brothels, Depravity and Abandoned Women: Illegal Sex in Antebellum in New Orleans, winner of the Gulf Coast Historical Association’s book prize for 2011.

She served as the President of the Louisiana Historical Association and Associate Director of the Murphy Institute for Political Economy. She was a member of the American Society for Legal History, the Southern Historical Association, and the Louisiana Historical Association, where she served as president in 2002 and was elected to the Company of Fellows. The organization honored her scholarship with the McGinty Lifetime Achievement Award in 2004.

Hat tip: Victoria Saker Woeste

Kolasky's "Trustbusters"

William Kolasky, a partner with the Washington, D.C. office of the law firm Hughes Hubbard & Reed LLP and Deputy Assistant Attorney General for International Enforcement in the Antitrust Division of the US Department of Justice during the George W. Bush administration, has written a series of sketches on the history of antitrust in America, entitled "Trustbusters."  About a year ago we noted one; here, via Hughes Hubbard’s website, is the entire series:

Thurman Arnold: An American Original, 27 Antitrust 89 (Summer 2013)

Robert H. Jackson: How a "Country Lawyer" Converted Franklin Roosevelt into a Trustbuster, 27 Antitrust 85 (Spring 2013)

George Rublee and the Origins of the Federal Trade Commission, 26 Antitrust 106 (Fall 2011)

The Election of 1912:  A Pivotal Moment In Antitrust History, 25 Antitrust 82 (Summer 2011)

Theodore Roosevelt and William Howard Taft:  Marching Toward Armageddon, 25 Antitrust 97 (Spring 2011)

Chief Justice Edward Douglass White and the Birth of the Rule of Reason, 24 Antitrust 77 (Summer 2010)

Senator John Sherman and the Origin of Antitrust, 24 Antitrust 85 (Fall 2009)

Wednesday, December 17, 2014

Capozzola reviews Hull's "A Scrap of Paper"

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

New Online Sources on the New Deal

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

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

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

Records of the War Refugee Board

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

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


The Berger-Howe Legal History Fellowship

[We have the following announcement.]

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

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

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

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

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

Tuesday, December 16, 2014

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

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

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

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

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

Hat tip: Chronicle of Higher Education

Purcell on the Value of Legal History for Legal Education

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

Perez on Lincoln's Legacy for International Law

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

Monday, December 15, 2014

Law and Legal Cultures at GSA

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

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

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

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

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

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

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

Pomerance on Mario Cuomo's NY Court of Appeals

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

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

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

Sunday, December 14, 2014

Sunday Book Roundup

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

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

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

Saturday, December 13, 2014

Weekend Roundup

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

Friday, December 12, 2014

Bahde's "Death and Life of Gus Reed"

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

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

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

Aaronson's "From Slave Abuse to Hate Crime"

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

Hong Kong's Court of Final Appeal

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

Thursday, December 11, 2014

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

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

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

Gordon Bakken (1943-2014)

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

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