Wednesday, March 4, 2015

New Release: Hollis-Brusky on the The Federalist Society and the Conservative Counterrevolution

New from Oxford University Press: Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Jan. 2015), by Amanda Hollis-Brusky (Pomona College). A description from the Press:
There are few intellectual movements in modern American political history more successful than the Federalist Society. Created in 1982 to counterbalance what its founders considered a liberal legal establishment, the organization gradually evolved into the conservative legal establishment, and membership is all but required for any conservative lawyer who hopes to enter politics or the judiciary. It claims 40,000 members, including four Supreme Court Justices, dozens of federal judges, and every Republican attorney general since its inception. But its power goes even deeper.

In Ideas with Consequences, Amanda Hollis-Brusky provides the first comprehensive account of how the Federalist Society exerts its influence. Drawing from a huge trove of documents, transcripts, and interviews, she explains how the Federalist Society managed to revolutionize the jurisprudence for a wide variety of important legal issues. Many of these issues-including the extent of federal government power, the scope of the right to bear arms, and the parameters of corporate political speech-had long been considered settled. But the Federalist Society was able to upend the existing conventional wisdom, promoting constitutional theories that had previously been dismissed as ludicrously radical. As Hollis-Brusky shows, the Federalist Society provided several of the crucial ingredients needed to accomplish this constitutional revolution. It serves as a credentialing institution for conservative lawyers and judges and legitimizes novel interpretations of the constitution that employ a conservative framework. It also provides a judicial audience of like-minded peers, which prevents the well-documented phenomenon of conservative judges turning moderate after years on the bench. As a consequence, it is able to exercise enormous influence on important cases at every level.

A far-reaching analysis of some of the most controversial political and legal issues of our time, Ideas with Consequences is the essential guide to the Federalist Society at a time when its power has broader implications than ever.
A few blurbs:
"Ideas have consequences because they develop in social networks of power and influence. In this impressive work, Amanda Hollis-Brusky shows how the Federalist Society network of lawyers, judges, scholars, and activists successfully pushed American constitutional law to the right. This book is an important contribution to the study of constitutional change." --Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School

"A valuable, well-researched addition to the growing literature on the conservative legal network. Rich in detail, thoughtful in execution." --Michael Greve, George Mason University School of Law
More information is available here.

Tuesday, March 3, 2015

Thank you, Sophia Lee!

Please join us in thanking guest blogger Sophia Z. Lee (University of Pennsylvania) for a terrific series of posts, most of which related to writing and publishing:
For more on Professor Lee's recently published book, The Workplace Constitution from the New Deal to the New Right, follow the link.

Civil Rights in Black and Brown: An Oral History Project

[Here’s an announcement of an employment opportunity with an oral history project this summer.]

The Civil Rights in Black and Brown oral history project is now hiring for summer 2015!  We seek several graduate student research assistants to work full-time for two months on a large collaborative effort to collect oral history interviews among African American, Mexican American, and white civil rights activists across Texas.  Housed at Texas Christian University (TCU) in Fort Worth in partnership with nearby universities, CRBB is directed by Max Krochmal, Marvin Dulaney, Jose Angel Gutierrez, and Todd Moye.  Field research sites for 2015 include East Texas, the Brazos Valley, the Rio Grande Valley, Laredo, and El Paso.   More.

University of Minnesota Spring 2015 Legal History Workshop Schedule

Sorry that we're a bit late on this one, but better later than never! Here's the line-up for the University of Minnesota's Spring 2015 Legal History Workshop, led by Barbara Welke:
1/30/15 "Dependency and Its Discontents: The Fractious Politics of Federal Welfare Grants, 1948-1953"
Karen Tani, Assistant Professor of Law, University of California Berkeley

2/5/15 "Unlawful Powers: Discerning and Denying the Presence of Slavery"
The Ronald A. and Kristine S. Erickson Legal History Lecture
Rebecca Scott, Charles Gibson Distinguished University Professor of History, Professor of Law, University of Michigan

2/6/15 Discussion with Rebecca Scott and Jean M. Hebrard, Freedom Papers: An Atlantic Odyssey in the Age of Emancipation, (Harvard University Press, 2012)

2/27/15 "Other Foreigners: U. S. Immigration and Citizenship Law, 1600-2000"
Kunal Parker, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law

3/13/15 "Three Americans and the Shaping of the UN Conventions on Refugees and the Stateless"
Linda K. Kerber, May Brodbeck Professor in the Liberal Arts & Sciences, Professor of History Emerita and Lecturer in the College of Law, University of Iowa

3/27/15 "Conscientious Objection, Conscience Clauses, and Religious Exemptions: Debating Rights, Obligations, and the Public Sphere, 1973-1974"
Sara Dubow, Associate Professor of History, Williams College

4/3/15 "Faith and Property in African American History"
Dylan Penningroth, Professor of History, Northwestern University

4/17/15 "Naturalization and De-Naturalization between Empire and Nation: Citizenship Laws in Chile, 1810-1844"
Sarah Chambers, Professor of History, University of Minnesota

4/24/15 "Freedom at the Font: Baptismal Manumission and Re-enslavement in Colonial Lima"
Michelle McKinley, Bernard B. Kliks Associate Professor, University of Oregon School of Law

4/28/15 "The 1965 Immigration Act: 50 Years of New Immigration and Immigration Debates"
Erika Lee, Rudolph J. Vecoli Chair in Immigration History, Director, Immigration History Research Center, Professor of History and Asian American Studies, University of Minnesota
Follow the link for abstracts of the papers.

Monday, March 2, 2015

Deadline Approaching: Cohen Student Essay Competition

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[We have the following announcement.]

Reminder! March 16 is the deadline for submissions to the seventh annual Morris L. Cohen Student Essay Competition sponsored by the Legal History & Rare Books Special Interest Section of the American Association of Law Libraries. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School, and is designed to encourage scholarship, and to acquaint students with AALL and law librarianship. Essays may be on any topic related to legal history, rare law books, or legal archives.

The competition is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. The entry form and instructions are available at the LH&RB website. Entries must be submitted by 11:59 p.m., March 16, 2015 (EST).

African Legal History at ASLH 2015

[We're moving this post up, as the deadline is less than a month away.]

The American Society for Legal History (ASLH) invites paper submissions for its third pre-conference workshop, which will be held immediately preceding the ASLH annual meeting in Washington, DC on Thursday, October 29, 2015.  The ASLH Workshop is intended to promote scholarship in areas of legal history that have been underrepresented at ASLH meetings and in the Law and History Review.  The 2015 workshop topic is African Legal History, defined as including North Africa and without any temporal restriction.  The workshop is being sponsored by the ASLH in order to promote innovative approaches to the study of African legal history and to create a community of legal historians who research African legal issues.

The Workshop will bring together authors and noted scholars in the field in order to work collaboratively toward refining scholarly writing.  In order to keep the workshop size small, only three papers will be selected from among responses to this general call.  Each selected paper will be assigned one commentator who will prepare substantive feedback about the structure, organization, methodology, and theoretical approaches of the paper.  All papers will be pre-circulated to participants and to commentators in advance of the workshop and must be read prior to the workshop meeting.  Authors will not present their papers at the workshop.  Instead, each commentator will be given half an hour to discuss his/her assigned paper, followed by half an hour of general discussion in the larger group.  In this way, each individual author will receive feedback from all the participants of the workshop.  ASLH will provide limited funding for travel expenses for authors of selected papers.  (Participation in the ASLH Legal History Workshop does not preclude individuals from presenting at the ASLH annual meeting.)

We invite submissions that engage any aspect of African legal history from scholars at any point in their academic careers.  Interested authors should submit their work-in-progress papers to aslh.workshop@gmail.com on or before April 1, 2015.  Papers should include complete contact information, word count, and an abstract (identifying the specific geographical and temporal scope of the article); papers should not exceed 15,000 words (including footnotes).  Submissions must not have already appeared in print or have been accepted for publication.  Authors of selected papers will be notified on or before June 15, 2015.  Please direct questions to the ASLH Workshop Coordinator: Lena Salaymeh, at aslh.workshop@gmail.com.

By participating in the workshop, authors agree to revise their papers thoroughly and to submit them for publication consideration with Law & History Review on or before February 1, 2016.  (Submissions to Law & History Review should be not more than 12,000 words, including footnotes.)  Authors participating in the Workshop consent to publishing in Law & History Review, if their article is accepted.

Pollak on Doar on Selma and the Voting Rights Act

John Doar escorts James Meredith at Ole Miss, 1962 (LC)
“You hear the name John Doar fleetingly in the recent film, Selma,” writes James H. Johnston, a member of the Board of Directors of the Historical Society for the DC Circuit.  “Most who see the film won’t know who Doar was, but his key role and that of the Civil Rights Division of the Department of Justice in converting the drama into enactment and enforcement of the Voting Rights Act are detailed in the oral history of Steve Pollak, Doar’s assistant and successor as head of the Civil Rights Division.”  Johnston's essay, which draws upon the complete interview of Stephen Pollak (who is the society’s president), is here.

LaCroix on Secession and the Confederate Constitution

Alison L. LaCroix, University of Chicago Law School, has posted Continuity in Secession: The Case of the Confederate Constitution, which is forthcoming in Nullification and Secession, ed. Sanford Levinson.  Here is the abstract:
This essay examines two issues: (1) constitutional federalism in the Confederate States of America, and (2) the interpretive theories that Confederate leaders applied to the question of the relationship between their own constitution and the U.S. Constitution. In both structure and theory, the Confederate Constitution displayed what to modern eyes is surprising continuity with the U.S. constitutional regime. The specific textual provisions of the document duplicated some of the most contested language of the pre-war period. These provisions included a necessary and proper clause and a supremacy clause, both of which assumed a relatively powerful central level of Confederate government and a robust congress. Moreover, in addition to replicating some of the most nationalistic aspects of the U.S. Constitution, Confederate officials explicitly referred to themselves as the inheritors of the American Revolution. Confederate statesmen maintained not only that their government was the legitimate legal and political successor to the principles of 1776, but also that their new-modeled constitution of 1861 was a seamless continuation of the Constitution of 1789. This claim of continuity extended all the way from the text itself to the modes used to give meaning to that text. It was a claim about the mechanics of constitutional interpretation, in its most challenging form: interpretation over time, and across what southerners insisted was a break in regimes. The Confederate mode of constitutionalism was thus consciously intertemporal and inter-regime. To be sure, the explicit recognition of slavery in the Confederate Constitution was a crucial substantive difference between the original text and the inheritor. From a structural perspective, however, the relationship between center and periphery set forth in the two documents was remarkably similar.

Sunday, March 1, 2015

In praise of small archives

Meherjirana Library in Navsari, India
I am delighted to be a contributor to the Legal History Blog this month. This is the first of three posts in praise of sources and institutions that I find particularly valuable and that are sometimes underestimated. In this post, I share my love of small and lesser known archives and libraries.

Those of us who work on colonial South Asia gravitate toward two main archives: the British Library in London and the National Archives of India in Delhi. We know that our limited time and travel funds will be well spent at both places. If you sit in the British Library’s Asian & African Studies reading room in July, in fact, you will see many of the world’s historians of South Asia  pass through for the summer research season.

We all know and love the British Library. But what about the smaller, lesser known archives and libraries? Is a three-day research excursion from London to the Scottish Highlands or from Delhi to a small town in the Himalayan foothills worth the time away from your main archives? My answer is often yes. Initially, I kept my expectations in check for these short,

Sunday Book Roundup

We've mentioned reviews of Jill Leovy's Ghettoside: A True Story of Murder in America (Speigel & Grau) in previous weeks. This week there is a review in the Los Angeles Review of Books and another review in The Washington Post.

Fittingly, the Los Angeles Review of Books reviews William J. Mann's Tinseltown: Murder, Morphine, and Madness at the Dawn of Hollywood (Harper).

Sven Beckert's Empire of Cotton: A New History of Global Capitalism (Allen Lane) is reviewed in The Oxonian Review.

In administrative law you can find a comprehensive review by Jon D. Michaels of Nicholas Parrillo's Against the Profit Motive (Yale University Press) in the Harvard Law Review (available here).

There's also a review in The New Rambler of Daniel R. Ernst's Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940 (Oxford University Press).
"Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles."
NPR reviews David Graeber's The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy (Melville House).

There are two reviews this week of Rachel Holmes's Eleanor Marx: A Life (Bloomsbury), one in the Los Angeles Times and a second in the The Washington Post.

The Daily Beast reviews Julian Zelizer's The Fierce Urgency of Now.

H-Net adds a review of Timothy Nels Thurber's Republicans and Race: The GOP's Frayed Relationship with African Americans, 1945-1974 (University Press of Kansas).
"Thurber sets out to challenge both liberal arguments that the “Party of Lincoln” abandoned its long-standing commitment to civil rights during the 1960s, embracing a racially reactionary politics for electoral gain in the post-civil rights era, as well as conservative arguments that attempt to paint the GOP as a kind of forgotten champion of civil rights. Instead, Thurber attempts to cut a middle path between these rhetorical poles. He argues that, indeed, the Republican Party’s relationship was much more complicated than often admitted and that “Republicans exerted considerable influence over the timing and content of racial policy” throughout this period (p. 3). "
Other H-Net postings include a review of Tribal Worlds: Critical Studies in American Indian Nation Building edited by Brian Hosmer and Larry Nesper (SUNY Press) and a review of Ravi Malhotra and Morgan Rowe's Exploring Disability Identity and Disability Rights through Narratives: Finding a Voice of Their Own (Routledge)

Salon reviews Ed Larson's The Return of George Washington: 1783-1789 (William Morrow) in an article titled, "You have George Washington all wrong: Why he was more like Reagan or Clinton than you think."

Earlier this week we noted the release of Madison's Music: On Reading the First Amendment by Burt Neuborne (New Press). There's an excerpt from the book available now in Salon, "The First Amendment as we know it today didn't exist until the '60s."

If you can't get enough of the founders this weekend, you can find a review of David O. Stewart's Madison's Gift: Five Partnerships that Built America (Simon & Schuster) in The Washington Post.

Kimberly A. Hamlin discusses her book, From Eve to Evolution: Darwin, Science, and Women's Rights in Gilded Age America (University of Chicago Press), over on New Books in American Studies.

New Books in Law has a conversation with J. Douglas Smith about his book, On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought "One Person, One Vote" to the United States (Hill and Wang).

They also posted an interview with Joseph M. Gabriel in which they discuss Medical Monopoly: Intellectual Property Rights and the Origins of the Modern Pharmaceutical Industry (University of Chicago Press).

The Nation reviews Paper Cadavers: The Archives of Dictatorship in Guatemala by Kirsten Weld (Duke University Press).

In other book news:

Saturday, February 28, 2015

Epilogue(s)

As a fitting last post, I thought I’d write about epilogues. My book’s epilogue was, perhaps, the hardest thing for me to write. After spending so much time reconstructing this history, now I was supposed to stand back and say something about it? Hadn’t I said enough already? I kept putting off writing it, agonized about it a ridiculous amount, then sat down one day and wrote it out. Phew, I thought, at last that is over. Except nobody liked it. It was fine. In fact, I turned the manuscript in to the press with my adequate epilogue. But I knew that if I could, I needed to come up with something better. I just didn’t know how.

This brings me to a brief segue into cultivating a group of supportive but critical readers. First and foremost for me was my editor Sally Gordon who pored over every word of the manuscript, sat me down for tough talks, and like an excellent coach, didn’t stint on pep talks or praise. I have also relied on writing groups. I formed my first during graduate school with a few people from my history program who were living, like me, in New York. At Penn, where I now teach, we have created a fantastic writing group that brings together faculty, fellows, and graduate students working in legal history. Whether what I received was helpful conversations about writing or a work over of a chapter, this group was invaluable in my book-writing process. But my secret weapon has been my good friend from graduate school, Dara Orenstein. She’s brilliant and astute, which has made for a handful of critically timed, incredibly helpful conversations, usually more at the conceptual level than about the nitty-gritty details of writing. Dara’s the kind of person I could call up and ask what a book cover should accomplish and I credit her for guiding me to my cover’s design. She’s also whom I turned to when I was stuck with my epilogue.

What follows is really Dara’s insightful advice, not mine. Dara gave my dull epilogue a quick read and, like a master diagnostician, broke its problems down for me. An epilogue, Dara observed, can do four things: First, it can summarize the history in the book. Second, it can offer a new slant on that history. Third, it can offer new information. And fourth, it can raise new questions entirely. An author can do a couple of these in an epilogue (e.g., offer new information and use it to raise new questions) but she can’t do all four. I, Dara pointed out, was doing all four. Further, Dara opined, summarizing, which is where I began, is the least interesting thing to do in an epilogue. And providing new information, especially when it is crammed in with so many other things, raises particular dangers. After providing a carefully wrought history, if you then skim across several decades or centuries in your epilogue, you risk jarring superficiality, not to mention outright errors.

I had to rewrite the epilogue, Dara prescribed. I couldn’t do everything; I had to choose. At a more meta level, she pointed out that summarizing and adding new information let me write the epilogue from a reporter’s remove. The strongest epilogues, Dara insisted rightly, use a strong voice, the author’s voice.

So we sat there over her dining room table and she made me talk about the book: why I wanted to write it, what I wanted readers to get from it, etc. When we got to something that resonated, I wrote it down. And after an hour or so of talking it out, literally in my own voice, I had a list of points I wanted to make in my new epilogue. That week, I turned the list into an outline and hammered out a new version of the epilogue. You’ll have to judge for yourself if I found my voice and if it achieves the right mix of goals. But I guarantee you it is a much better epilogue than the one I began with.

What epilogues have you found particularly effective? Are there other things an epilogue can or should try to accomplish? Comments welcome!

Welcome, Mitra Sharafi!

We are delighted to welcome Mitra Sharafi to the blog for the month of March.

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She is Associate Professor of Law at the University of Wisconsin-Madison, where she teaches Contracts, as well as a handful of undergraduate Legal Studies courses that we wish we could take ("Legal Pluralism," "Lawyers & Judges in the British Empire," "Law and Colonialism," "Medico-Legal History"). She has also been heavily involved with the Hurst Institute, which UW has generously hosted for many years, and the American Society for Legal History

Professor Sharafi holds law degrees from Cambridge and Oxford and a doctorate in history from Princeton. She is the author, most recently, of Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge University Press, 2014), and is currently working on a second book project, on medical jurisprudence in colonial India.

No stranger to legal history on the web, Professor Sharafi is the creator of South Asian Legal History Resources, which includes research guides and other tools for scholars interested in the history of law in South Asia.

Welcome, Mitra Sharafi!

Online Aids for Teaching Your Book

This post is not about sharing my book-related experiences but soliciting yours. As Sally Gordon mentioned in an earlier post, the series in which my book appears, the ASLH's Studies in Legal History, is interested in developing online materials to facilitate teaching legal history books. We've started conversations about using my book as a test run so I'd be eager to hear from readers of the blog if you have any ideas about what types of resources would be useful or if you know of model websites that do online history teaching aids well.

Thank you in advance for your suggestions. You can comment here or email me (slee@law.upenn.edu) or Sarah Barringer Gordon (sbgordon@law.upenn.edu).

Weekend Roundup

  • Coming up at Boston College is Legally Blind: Law, Ethics, and the Third Reich, a conference focusing “on Nazi Law as it impacts upon Civil Law, Race, Medicine, and Religion.”  It will take place March 10-11, 2015, in the Heights Room of BC’s Corcoran Commons.  This event is free and open to the public. The schedule is here.  It includes John Q. Barrett, St. John’s University School of Law, on “Dawning, Developing Comprehension of Nazi Law-Breaking & Atrocities: Justice Robert H. Jackson on the Road to Nuremberg, 1940-1945.”  Register here by March 6, 2015.
  • From JOTWELL: Elaine Craig (Dalhousie University Schulich School of Law) has written an appreciative review of Michael Boucai's "Glorious Precedents" (mentioned on the blog here).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers

Friday, February 27, 2015

Ho on Criminal Law in the Tang Dynasty

Norman P. Ho, Peking University School of Transnational Law, has posted Understanding Traditional Chinese Law in Practice: The Implementation of Criminal Law in the Tang Dynasty (618-907), which is forthcoming in the UCLA Pacific Basin Law Journal 32 (2015).  Here is the abstract:    
The Tang dynasty (618-907) is regarded as one of China’s most powerful and cosmopolitan dynasties – its achievements in the areas of literature, culture, economic development, and empire-building have influenced subsequent dynasties. The area of legal development is also not an exception – the Tang Code, a penal code which was promulgated in its finalized form in 653 and is the oldest imperial Chinese legal code to survive to the present-day in its entirety – is regarded as an apex in the development of traditional Chinese law. Indeed, the Tang Code served as model penal code for later Chinese dynasties, and the philosophical spirit animating some its provisions continues to influence modern Chinese criminal law today. Given the importance of the Tang Code and the Tang dynasty more generally, it is not surprising that much has been written about the Tang Code and Tang law. Most scholarship, however, has tended to focus on the history of codification and, more specifically, the Tang Code itself – for example, studying its various provisions, the philosophical bases and justifications behind its various provisions, and so forth. Less scholarship has been done to understand how the Tang Code was actually implemented and applied in society and to answer questions such as whether the application of justice (as mandated by provisions of the Tang Code) was applied consistently. Drawing on and introducing various selected historical sources (many of which have never been translated to English), this Article attempts to address these questions and to discuss the implementation of law in traditional China as viewed through enforcement of criminal law and criminal procedure (as set forth in the Tang Code) in the Tang dynasty. This Article argues that the Tang Code seems to have been applied inconsistently in criminal law cases and that there appears to have been discrepancies between what the Tang Code required and how criminal law was actually implemented and enforced in Tang society. Officials tasked with deciding criminal law cases still appear to have had substantial discretion in implementing the Tang Code. These inconsistencies and discrepancies are perhaps a testament to the diversity of approaches for governance and regulation in the Tang, which is not surprising given the geographic size and diversity of the Tang empire. Finally, given the current Chinese leadership’s proclivity for citing what it considers politico-legal models in the Chinese past, it is an especially important time to enhance and better our understanding traditional Chinese law – this Article is ultimately based on the premise that we can only arrive at a full understanding of traditional Chinese law by looking at the application of historical statutes and legal provisions in practice in actual cases, and not simply focusing on the statutes and legal provisions in a vacuum.

Barbarous Terms, Ill Explained

Edmund Burke (credit)
From Edmund Burke, who entered Middle Temple in 1749, via David Bromwich, Alan Ryan and the New York Review of Books, here is a challenge to all would-be authors of legal treatises:
The study of our jurisprudence presented to the liberal and well-educated minds, even in the best Authors, hardly any thing but barbarous terms ill explained. . . .  Young men were sent away with an incurable, and if we regard the manner of handling rather than the substance, a very well-founded disgust.

Knapp on the Judicialization of Police

Aaron T. Knapp, a doctoral candidate in Boston University’s Department of History, has posted The Judicialization of Police, which is forthcoming in Critical Analysis of Law 2 (2015).  Here is the abstract:    
This article contends that the origins of judicial review under the United States Constitution lay not in the common law, nor in “judicial duty,” natural law, popular sovereignty, or written constitutions, but rather in police powers handed down from the monarchial tradition conceived as a constituted government’s inherent prerogative of self-preservation. Nationalists at the Federal Convention in 1787 wanted to give Congress such a prerogative in the form of an unqualified preemptive negative on state legislation. They did not succeed. Yet with the adoption of an independent supremacy clause, the superintending police powers originally embodied in the congressional negative devolved on the courts and, ultimately, the Supreme Court. Questions remained whether the Court could in fact exercise such powers consistent with Article III’s jurisdictional limitations and, later, the Eleventh Amendment’s bar on state suability. With these questions in mind, the analysis devotes special attention to the first case in which the Supreme Court struck down a state law under the Supremacy Clause: Ware v. Hylton (1796). The article concludes, however, that the judicialization of police at the American founding would find its most potent historical expression in the Court’s prospective remedial powers over state enforcement officials first reserved by the Marshall Court and later confirmed in Ex Parte Young (1908).

Di Robilant on The Populists' Property Law

Anna Di Robilant, Boston University School of Law, has posted Populist Property Law.  Here is the abstract:    
This article tells the story of the National Reformers’ Association and the National Farmers’ Alliance. These 19th century American movements represented the “little guys” – workers and farmers – and used their folk legal imagination to develop new property forms that would solve their most pressing needs by improving access to key economic resources. Their stories are worth remembering for three reasons: First, they cast light on the phenomenon of popular law making, an aspect of the history of property law that legal historians have neglected. Second, they call into question the traditional narrative of the development of American property law by indicating that the transition away from feudalism and towards free alienability and efficient use was not as smooth as is typically thought. Third, these stories are particularly relevant today, as they help to make sense of aspects of contemporary property law that have developed in response to America’s rising inequality and increasing middle-class insecurity.

Thursday, February 26, 2015

Sovern's "Improbable Life"

Out from Columbia University Press is An Improbable Life: My Sixty Years at Columbia and Other Adventures, by Michael I. Sovern, president emeritus of Columbia University and the Chancellor Kent Professor of Law at Columbia Law School, with forewords by Walter F. Mondale and Lee C. Bollinger. 
Columbia University began the second half of the twentieth century in decline,bottoming out with the student riots of 1968. Yet by the close of the century, the institution had regained its stature as one of the greatest universities in the world.

According to the New York Times, "If any one person is responsible for Columbia's recovery, it is surely Michael Sovern." In this memoir, Sovern, who served as the university's president from 1980 to 1993, recounts his sixty-year involvement with the institution after growing up in the South Bronx. He addresses key issues in academia, such as affordability, affirmative action, the relative rewards of teaching and research, lifetime tenure, and the role of government funding. Sovern also reports on his many off-campus adventures, including helping the victims of the Tuskegee syphilis experiment, stepping into the chairmanship of Sotheby's, responding to a strike by New York City's firemen, a police riot and threats to shut down the city's transit system, playing a role in the theater world as president of the Shubert Foundation, and chairing the Commission on Integrity in Government.

Crane on Humphrey's Executor

Daniel A. Crane, University of Michigan Law School, has posted Debunking Humphrey's Executor.  Here is the abstract:
William E. Humphrey (LC)
The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s statutory design that ostensibly justified the Commission’s constitutional independence. It was to be non-partisan and a-political, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This article reconsiders Humphrey’s Executor from a different angle. At the end of a one hundred years natural experiment, the Commission bears almost no resemblance to the Progressive-technocratic vision articulated by the Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative. Rather, it is essentially a law enforcement agency beholden to the will of Congress. This finding has potentially important implications for agency design, constitutional doctrine and theory, and understanding of agency functioning.

Appleman on Gothic Stories and Mens Rea

Laura I. Appleman, Willamette University College of Law, has posted Gothic Stories, Mens Rea, and Nineteenth Century American Criminal Law, which is forthcoming in The Ashgate Research Companion to Law and Humanities in Nineteenth-Century America, ed.  Nan Goodman and Simon Stern (Ashgate Press 2015).  Here is the abstract:    
Edgar Allan Poe (credit)
The early-to-mid nineteenth century was a turbulent period for the cities of an expanding America. Beginning in the 1830’s, it was a time of “epic homicidal riots,” which prompted the creation of the first urban police force. The rise of the police helped reduce the rates of homicide dramatically. Concomitant with the explosion of real-life murder and the rise of the first police force was also a particular renaissance moment for gothic storytelling, focusing in large part on the wily criminal and the deductive reasoning used by these early police to track, apprehend and convict these offenders. What influence did these tremendously popular stories have on the creation of 19th-century criminal law and the public’s understanding of the 19th-century criminal?

The most emblematic example of this fascination with American criminality, of course, was the writing of Edgar Allan Poe, whose Tales of the Grotesque and Arabesque was published in 1849. Close behind it in influence, however, was the gothic fiction of Washington Irving and short stories of Nathaniel Hawthorne, whose work beguiled a developing nation. These highly popular stories, steeped in mystery, psychology and potentially horrific crimes, were influential in the shaping of 19th-century criminal law and organized police forces, which rose hand in hand with the popular understanding of crime-solving.

There were many links between 19th-century gothic/criminal fiction and the intellectual development of 19th-century American criminal law. One example is the rise of new narrative techniques in 19th-century fiction in developing character studies, including third-person narrative forms, and the concomitant development of mens rea analysis (i.e., that liability for wrongdoing should not just be based on sheer “wickedness,” but on actual intent to commit a specific crime). As literary gothic fiction explored a new, more complex understanding of why a criminal defendant might act the way he did, this matched — and undoubtedly influenced — the way the legal understanding of mens rea became more refined, shifting from a simple finding of general wrongdoing to a more sophisticated, elemental approach. This book chapter explores the similarities and cross-pollination between the two.

VanderVelde on Mrs. Dred Scott and Lumley v. Wagner

Lea S. VanderVelde, University of Iowa College of Law, has posted two items from her backlist.  The first, written with Sandhya Subramanian is Mrs. Dred Scott, which was appeared in the Yale Law Journal 106 (1997): 1033:
This article argues that Harriet Robinson Scott's significance as co-plaintiff in Dred Scott v. Sanford has been overlooked for generations in part because her status was a contradiction. Recognizing her existence, however explains the incongruities that this particular case represents if one focuses only on the factual record about her husband, and the motivations implied from that record.

Harriet was the wife of a slave. Analytically, Harriet's existence as doubly subordinated through the institution of marriage and the institution of slavery, demonstrates the paradox of married and enslaved women. Marriage was conventionally seen to be legally inconsistent with the status of slavery. A wife would be a dependent, and a slave could have no dependents. This double subordination explains why she is so little known and why the case litigated under her husband's name.

The article is compensatory legal history, both in adding into the equation a long neglected party, and in by her addition, providing rationale for the sustained lawsuit. This article sheds light on the motives behind the Scott's suit for freedom and addresses questions that have long plagued scholars such as why Dred didn't sue sooner or escape to free territory. Harriet was in all likelihood the cornerstone of the litigation.

This article offers a reassessment of the Dred Scott decision. Lea VanderVelde followed this article with a full scale biography of Harriet in the book, Mrs. Dred Scott: A Life on Slavery’s Frontier (Oxford 2009). This article is completely distinct from the book.
The second is The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, which appeared in the Yale Law Journal 101 (1992): (1992):
The English case Lumley v. Wagner is part of the canon of contract law. The case maintains that although employees cannot be specifically ordered to perform on a contract, they may be enjoined from working for a competitor.
This article demonstrates how hostile the Lumley rule was to the American ethos of free labor when it was first introduced in the United States in the mid-nineteenth century. However, the Lumley rule was ultimately accepted into American Law, and indeed into the canon, through a curious pathway. This rule became incorporated in the American common law through a series of cases all of which involved women who performed on stage. Only after application in a series of cases enjoining women performers did the rule gain a foothold in American common law. This injunction was legally acceptable in cases involving women because it was consonant with a rule applied against women in divorces, that is, they could sever the marriage but they were not permitted to remarry. This was also socially acceptable because the social position of women stage performers was seen as lacking the propriety expected of women by Victorian standards of morality.
Thus, a rule that was counter to the American ethos of free labor came into the canon, and came to be applied to men, only after it had been applied against women. By the time that American treatises reported the rule, the gendered identity of every previous application was overlooked.

LHR 33:1

Law and History Review 33:1 (February 2015) is now out on Cambridge Journals Online:

States' Rights, Welfare Rights, and the “Indian Problem”: Negotiating Citizenship and Sovereignty, 1935–1954
Karen M. Tani

Race, Upper Canadian Constitutionalism and “British Justice”
Lyndsay Campbell

Divided by Law: The Sit-ins and the Role of the Courts in the Civil Rights Movement
Christopher W. Schmidt

Thomas Jefferson and the Uses of Equity
Matthew Crow

When Your Money Is Not Your Own: Coverture and Married Women In Business in Colonial New South Wales
Catherine Bishop

Citizen Kane: The Everyday Ordeals and Self-Fashioned Citizenship of Wisconsin's “Lady Lawyer”
Joel E. Black

Book Reviews by Jessica M. Marglin, Kirt von Daacke, Mark A. Graber, Tracey Jean Boisseau, Danaya C. Wright, Douglas Howland, Tahirih V. Lee, Benedetta Faedi Duramy, Charles Upchurch, Mary Ziegler, Carolyn Jones, C. Joseph Genetin-Pilawa, Christopher W. Schmidt, Brett Gadsden, Stefan Kirmse, Jane Burbank, Margaret Power, and Samuel Moyn.

Wednesday, February 25, 2015

Finding a Publisher for Your Book

Yes, a first time author may be more concerned with finding any publisher than with being picky about the terms of publication. Even so, she will have to choose ex ante which publishers to approach. And if she is lucky enough to have more than one nibble, she will have to choose with which publisher to proceed. When I finished my dissertation and turned to the book, the publication process was a deep dark black box. Thankfully, there were many more experienced scholars who patiently listened to my many questions and doled out invaluable advice. Below is a description of my experience finding a publisher intermixed with gathered advice and some factors to keep in mind along the way.

When to seek a book contract? The first question an author faces is whether to seek an advanced contract with a book proposal and little else or to wait until she has a full manuscript to submit to the press. I felt an advanced contract was imperative for both practical and substantive reasons. Practically, when I finished my dissertation I was in my second year at my first job. I would go up for pre-tenure review in my third year. My book would be the key element of my eventual tenure file but would not be very far along by pre-tenure review. If I could manage it, securing an advanced contract in time for pre-tenure review had obvious advantages. Substantively, as I discussed in an earlier post, my dissertation was a bit of a mess. Getting early advice from outside readers on my plan for the book and benefitting from the ongoing guidance of an editor as I wrote appealed to me.

Gelpern on the Unexpected Origins of a Sovereign Debt Principle

My Georgetown Law colleague Anna Gelpern has posted Pari Passu's Golden Fossils.  Here is the abstract:
U.S. federal court rulings against Argentina since 2012 have turned the pari passu clause in sovereign bond contracts into the most promising debt collection tool against immune governments since the days of gunboat diplomacy. The large literature on pari passu (“equal step” in Latin) assumes that the clause had not been used for enforcement before the late 1990s, and that it was first construed by a Belgian court in a case against Peru in the year 2000. The Belgian decision was criticized for wrongly interpreting pari passu as a promise of ratable payment to all holders of Peru’s external debt. A decade later, U.S. courts adopted the same interpretation against Argentina, despite interventions by the United States, Brazil, France, Mexico and a slew of eminent experts. The case is now caught up in litigation around the world involving bondholders, trustees, payment and clearing systems.

Debates about the meaning of pari passu have so far drawn on bond language, contract practices and diplomatic statements, not judicial opinions. This essay reports on a once-famous lawsuit in Swiss courts, brought by Swedish holders of German government bonds in 1935 against the Bank for International Settlements as bond trustee. The Swedes claimed that the BIS violated the pari passu clause when it paid them nominal value, while payments to other bondholders were indexed to the value of gold. Three Swiss courts concluded that such payment discrimination was a breach of the pari passu clause; one even suggested that it could give rise to inter-creditor remedies. However, all three courts held against the bondholders on the grounds that the trustee’s duties in this case were limited to following Germany’s instructions. Subsequent commentators criticized the Swiss courts’ views of the trustee’s role, but did not disagree with its reading of the pari passu clause. The case has featured prominently in 20th century sovereign debt literature, but the pari passu angle appears to have been forgotten.

Judging in the DC Circuit: 1994 and 2013

[We are moving this up, because the conversation between these two Federal District Judges takes place today, Wednesday February 25, at 4:30.]

A Conversation on Judging: Then and Now will take place in the Ceremonial Courtroom of the E. Barrett Prettyman Court House, Washington, DC, on Wednesday, February 25.  It will be "a dialogue featuring Senior Judge Paul Friedman, who joined the U.S. District Court in 1994, and Judge Ketanji Brown Jackson, who joined the Court in 2013, moderated by Miguel Estrada. The judges will compare their experiences on the bench as they discuss changes in the confirmation process, the makeup of the Court, dockets, training, staffing, technology, and the impact of these and other changes on judging." Admission is free; reservations are not required.  The event is sponsored by the Historical Society of the District of Columbia Circuit.

Eskridge on Original Meaning and Marriage Equality

William N. Eskridge Jr, Yale Law School, has posted Original Meaning and Marriage Equality, which is forthcoming in the Houston Law Review 52 (2015): 101-54.  Here is the abstract:
In the 2014 Term, the Supreme Court is hearing challenges to four state exclusions of same-sex couples from their marriage law and other family law protections. Unlike the circuit judges who have evaluated these claims, the Justices find relevant the original meaning of the Fourteenth Amendment. Many opponents of Marriage Equality for lesbians, gay men, bisexuals, and transgender persons assume that original meaning is hostile to such claims. In this article, Professor Eskridge maintains that the original meaning supports the marriage equality claims. While the drafters of the Equal Protection Clause had no "expectations" that states in 1868 would have to issue marriage licenses to same-sex couples, the term they adopted ("equal protection") had an established meaning: the state cannot create a caste regime arbitrarily marking a whole class of worthy persons as outside the normal protections of the law. This original meaning has bite today that it would not have had in 1868. In the twentieth century, states created a terrifying anti-homosexual caste regime, whose deep norm was that gay persons are anti-family. In the twenty-first century, much of this caste regime has been dismantled, but new and sweeping family law exclusions such as those before the Court are recent expressions of that regime and should be skeptically examined by the Justices.

New Release: Kirchmeier on Warren McCleskey and the American Death Penalty

New from Oxford University Press: Imprisoned by the Past: Warren McCleskey and the American Death Penalty (Jan. 2015), by Jeffrey L. Kirchmeier (City University of New York School of Law). The Press explains:
Imprisoned by the Past: Warren McCleskey and the American Death Penalty connects the history of the American death penalty to the case of Warren McCleskey. By highlighting the relation between American history and an individual case, Imprisoned by the Past provides a unique understanding of the big picture of capital punishment in the context of a compelling human story.

McCleskey's criminal law case resulted in one of the most important Supreme Court cases in U.S. legal history, where the Court confronted evidence of racial discrimination in the administration of capital punishment. The case marks the last that the Supreme Court realistically might have held that capital punishment violates the Eighth Amendment of the U.S. Constitution. As such, the constitutional law case also created a turning point in the death penalty debate in the country. The book connects McCleskey's case -- as well as his life and crime -- to the issues that have haunted the American death penalty debate since the first executions by early settlers and that still affect the legal system today.

Imprisoned by the Past ties together three unique American stories in U.S history. First, the book considers the changing American death penalty across centuries where drastic changes have occurred in the last fifty years. Second, the book discusses the role that race played in that history. And third, the book tells the story of Warren McCleskey and how his life and legal case brought together the other two narratives.
A blurb of note:
"No legal decision in the last half of the 20th century characterized America's continuing failure to confront its history of racial inequality more than the McCleskey decision. Jeff Kirchmeier's welcomed and insightful book brings much needed context and perspective to this critically important issue. Compelling and thoughtful, this book is a must read for those trying to understand America's death penalty and its sordid relationship to our failure to overcome three centuries of racial injustice." -- Bryan Stevenson, Executive Director of the Equal Justice Initiative
More information is available here.

Tuesday, February 24, 2015

Tai on the Emergence of Food Systems Law

“To many modern eaters,” writes Stephanie Tai, Wisconsin Law, “the worlds of agriculture and food appear detached from each other.”  In Food Systems Law from Farm to Fork and Beyond, just up on SSRN and forthcoming in volume 45 of the Seton Hall Law Review, Professor Tai, whom I proudly claim as a student, shows how legal scholars have come to understand the Agriculture Law and Food Law as parts of a whole, “Food Systems Law,” thereby arriving at insights that might otherwise have eluded them.  Could there be a more apt illustration of the "Wisconsin Idea" of the university in the service of its state, nation, and world, not by capitulating to the kind of "narrow pragmatism" that Willard Hurst decried and that evidently inspired Governor Scott Walker’s recent attempt to reduce the university's mission from the “search for truth” and the improvement of "the human condition” to "meet[ing] the state’s workforce needs," but by doing the unexpected?

Here is the abstract:
In urging “responsible eating,” food writer Wendell Berry once wrote,“I begin with the proposition that eating is an agricultural act.” Yet the legal world has long treated food and agriculture as separate spheres. Food law in the United States has traditionally been viewed as the area of law related to the development and marketing of final food products, while agricultural law has been viewed as the area of law relevant to farmers and rangers,agri-businesses, and food processing and marketing firms. But more recently, both policymakers and scholars have been taking a more systems-oriented approach to food regulation through the re-framing of food and agricultural law into a broader food systems law. In particular, a number of legal scholars working in these areas have begun merging the fields of food law and agricultural law — as well as components of other fields of law — into something perhaps greater than the sum of its parts: a field of law that examines food systems as an interactive whole, rather than as individual components of the farm-to-fork process.

This Article is the first of a two-part project.  This part explores trends in agricultural and food law scholarship to argue that a nascent integrated approach, one that is more systems-oriented, is developing within current legal scholarship. The Article begins by providing some broader context on systems-oriented approaches to understanding food, drawing from food policy and environmental policy literature. It next briefly describes the different origins and coverage of early agricultural law and food law, situating the distinct historical and theoretical foundations of agricultural law and food law into the broader literature of legal taxonomy. It then illustrates developing trends in scholarly articles, legal casebooks, and other law school institutional coverage to suggest the convergence of these two areas into a broader, more systems-oriented approach. Finally, the Article highlights distinctive features that might arise out of a more deliberate development of systems-oriented approach in this legal field. It argues that such an approach may provide insights into other cross-cutting areas of legal scholarship that the separated areas of food law and agricultural law cannot provide. In doing so, this Article lays the groundwork for the next part of this project, which presents case studies to provide a more complete an analysis of the benefits that would arise from such an approach and uses systems theory to develop important considerations for the deliberate cultivation of food systems law as a field of law.

Law in Transition: A Conference at Tel Aviv University

We have word that  "Law in Transition," the 6th Annual Berg Conference and XXIst Annual Meeting of the Association of Young Legal Historians will be held at Tel Aviv University on March 1-2.  The conference program, here, includes three keynote addresses and over sixty papers in seventeen sessions.

Herbert Hoover vs. The Great Depression at the MIller Center

HH, 1929 (LC)
On Tuesday, March 3, from 3:30 to 5:00 p.m., the Historical Presidency series of the Miller Center for Public Affairs at the University of Virginia will host Herbert Hoover Versus the Great Depression with historian George H. Nash, an independent historian, lecturer, and authority on the life of Herbert Hoover.  This event is open to the public. It will be webcast live and archived here

New Release: Neuborne on Reading the First Amendment

Just out from the New Press: Madison’s Music: On Reading the First Amendment, by Burt Neuborne (NYU Law School). A description from the Press:
What if most of what we think we know about the First Amendment is just wrong? For years, the Supreme Court has treated the First Amendment like a laundry list of isolated words, stopping every once in a while to pull a couple of words out of the full text and claiming to be able to use the artificially isolated words as an infallible guide to what the First Amendment really means. Burt Neuborne, who has been one of the nation’s foremost constitutional lawyers for the past fifty years, argues that the Supreme Court has gotten it all wrong. If, he argues, judges would only look at the First Amendment’s full text—all forty-five words—they would discover Madison’s music, a First Amendment that is democracy’s best friend.
Neuborne, who was the national legal director of the ACLU during the Reagan presidency and has argued many cases before the Supreme Court, explains that the remarkably disciplined order and structure of the ideas in Madison’s forty-five-word First Amendment—beginning with freedom of conscience in the religion clauses; moving on to freedoms of speech, press, and assembly in that order; and ending with freedom to petition for redress of grievances—tells the story of democracy in action. Madison’s music, he argues, is the chronicle of a democratic idea conceived in the free conscience of a free citizen, articulated by a free speaker, disseminated widely by a free press, turned into a political movement by freely assembled people, and enacted into law through the petition clause. No other rights-bearing document, beginning with the Magna Carta in 1215, comes close to such a careful narrative of democracy in action. Neuborne argues that the Supreme Court’s misuse of what he calls “an imperial Free Speech Clause” to blot out Madison’s democratic music has led to an arbitrary First Amendment that turns democracy over to hugely wealthy individuals and corporations, encourages cynical officials to disenfranchise the weak, and allows politicians to manipulate the system to stay in power. Recovering the ability to hear Madison’s music, he argues, is the first step to reclaiming our democracy for everyone—not just the rich.
A few blurbs:
“A brilliant book that offers an original and insightful way of understanding the First Amendment and all of the Bill of Rights. Professor Neuborne grounds his analysis in a wonderful telling of history and uses it to offer new ways to deal with some of the most important contemporary issues facing American democracy, such as campaign finance and partisan gerrymandering. This beautifully written book is a must read.” — Erwin Chemerinsky
“Simply wonderful . . . fully reflective of Burt Neuborne’s learning, insight, and wit.” — Norman Dorsen
More information is available here.

Monday, February 23, 2015

Using Articles to Advance but not Preempt the Book

If you are a legal historian in a law school, writing articles as well as a book is likely a tenure requirement. Even if you don’t face institutional pressures to publish articles, you should consider doing so because they can help your book. But in either case, you need to be careful not to preempt your book in the process. This can happen if your articles leave a publisher concerned that everything important in the book has already been said. By the time my book appeared, I had published two articles, one book chapter, and two symposium pieces related to the book. They fell into three types, the benefits and potential pitfalls of which I discuss below.

(NB: this is a long post—perhaps as a result of failing to do this—so I’ve bolded the article types for anyone who wants to skim for them and skip the detailed article descriptions.)

The first type of article I’ll call “substrata.” These articles lay important ground for the book that for whatever reason (space, audience, etc.) doesn’t belong in the book itself. Two of my pieces played this role.

Rothman's "Beyond Freedom's Reach"

Adam Rothman, Associate Professor of History, Georgetown University, has just published Beyond Freedom's Reach: A Kidnapping in the Twilight of Slavery, with the Harvard University Press:
Born into slavery in rural Louisiana, Rose Herera was bought and sold several times before being purchased by the De Hart family of New Orleans. Still a slave, she married and had children, who also became the property of the De Harts. But after Union forces captured New Orleans in 1862 during the American Civil War, Herera’s owners fled to Havana, taking three of her small children with them. Beyond Freedom’s Reach is the true story of one woman’s quest to rescue her children from bondage.

In a gripping, meticulously researched account, Adam Rothman lays bare the mayhem of emancipation during and after the Civil War. Just how far the rights of freed slaves extended was unclear to black and white people alike, and so when Mary De Hart returned to New Orleans in 1865 to visit friends, she was surprised to find herself taken into custody as a kidnapper. The case of Rose Herera’s abducted children made its way through New Orleans’ courts, igniting a custody battle that revealed the prospects and limits of justice during Reconstruction.

Rose Herera’s perseverance brought her children’s plight to the attention of members of the U.S. Senate and State Department, who turned a domestic conflict into an international scandal. Beyond Freedom’s Reach is an unforgettable human drama and a poignant reflection on the tangled politics of slavery and the hazards faced by so many Americans on the hard road to freedom.
Here are two endorsements:

“Amidst slavery’s unraveling in New Orleans, Rose Herera fought to prevent her owner from taking her children to Havana, ‘beyond freedom’s reach.’ Rothman’s recovery of Herera’s remarkable story, her incarceration and journey through the legal system to rescue her children, marks an important contribution to the history of emancipation and the contingency of wartime freedom.”—Thavolia Glymph, author of Out of the House of Bondage: The Transformation of the Plantation Household

“The extraordinary odyssey of Rose Herera to recover her kidnapped children from slavery illuminates the impact of the Civil War on the enslavers and the enslaved and reminds us of the precariousness of freedom during the Reconstruction era. An impressive and compelling history.”—Randy J. Sparks, author of Where the Negroes Are Masters: An African Port in the Era of the Slave Trade

Zietlow on the 14th Amendment's Citizenship Clause

Rebecca E. Zietlow, University of Toledo College of Law, has posted The Other Citizenship Clause, which is to appear in “The Greatest and Grandest Act”: The Civil Rights Act of 1866 from Reconstruction to Today, ed. Christian Samito (Southern Illinois University Press).  Here is the abstract:    
The first sentence of the Fourteenth Amendment declares that “all persons born or naturalized within the United States . . . are citizens of the United States.” This clause defined the criteria for United States citizenship and established birthright citizenship as a principle of constitutional law. Yet two years before the Fourteenth Amendment became law, the Reconstruction Congress had already declared “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed . . . to be citizens of the United States.” This other Citizenship Clause is the preamble to the 1866 Civil Rights Act. This statutory clause directly contravenes the United States Supreme Court’s ruling in Dred Scott v. Sanford that freed slaves could not be citizens. Yet the 1866 Act was based on Congress’ power to enforce the Thirteenth Amendment, and before the Fourteenth Amendment’s Citizenship Clause was ratified. How could the members of the Reconstruction Congress have believed that they had the power to enact the other Citizenship Clause? The answer to this question has implications for the original meaning of the Thirteenth Amendment and its enforcement clause. Scholars have generally linked citizenship rights to the Fourteenth Amendment, and not the Thirteenth. However, the other Citizenship Clause is evidence that either the Thirteenth Amendment established freed slaves as United States citizens, or the Amendment’s enforcement clause empowered Congress to overturn the Supreme Court’s interpretation of the Constitution in Dred Scott on its own.

The 1866 Civil Rights Act was based in Congress’ new power to enforce the Thirteenth Amendment pursuant to its enforcement clause, Section Two. Thus, the 1866 Civil Rights Act provides a glimpse of those fundamental rights which the members of the Reconstruction Congress believed to be inherent in freedom, and furthers our understanding of the original meaning of the Thirteenth Amendment and its enforcement clause. The Act’s citizenship clause is evidence that many members of the Reconstruction Congress believed that free Blacks were United States citizens with fundamental rights. In their view, the Thirteenth Amendment not only ended slavery, but recognized the citizenship rights of freed slaves. For those members of Congress who did not equate freedom with citizenship, the other Citizenship Clause reflects the scope of their power to enforce the Thirteenth Amendment with “appropriate” legislation. Did they believe that the Amendment empowered them to overturn Dred Scott with a statute? If so, they thought that their enforcement power was broad indeed.

Saturday, February 21, 2015

A Weekend Break

Your Legal History Bloggers are out and about this weekend.  See you Monday.

Friday, February 20, 2015

Bernstein and Somin on the Mainstreaming of Libertarian Constitutionalism

David Bernstein and Ilya Somin, George Mason University School of Law, have posted The Mainstreaming of Libertarian Constitutionalism, which appeared in Law and Contemporary Problems 77 (2014): 43-70, as part of the symposium on “Law and Neoliberalism.”   Here is the abstract:    
Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.

Disciplining Detail

My prior posts have been about using a book’s macro- and micro-level structure to solve writing problems and advance your argument. This post is about strategies to avoid unnecessary detail.

I err in the direction of too much detail when I write. Partly, this is because it’s so tempting to share all the great stuff I find in the archives. Partly, it’s because I often need to write through my material in order to figure out what was really going on and what I want to say about it. Whatever the reason, and however valid excess detail is as a stop on the road toward a finished chapter, article, or book, it should not be your destination.

Most importantly, excess detail is unfair to your reader. I still remember my amazing dissertation advisor, Glenda Gilmore, giving some advice that I have often repeated. Unlike papers you write as a student, no one has to read what you write as a historian. Instead, you have to win your readers by drawing them in and keeping them there. It is a huge imposition on your busy readers’ time to ask them to read a chapter or article, let alone a whole book. Unnecessary detail can drive your reader away rather than draw her in because it inevitably muddles your points and confuses (not to mention bores) your reader. Loading your book with unnecessary detail also fails to respect your reader’s time, making her do the editorial work you didn’t.

Trimming excess detail may also be necessary to meet the sometimes stringent word limits set by publishers. Publishing books is expensive and page real estate is at a premium. While there is often some wiggle room in the word-limit given in an advanced contract, you’re more likely to be allowed to use that wiggle room if you’ve run over for good substantive reason and not because you’ve been unable to part with your own words. And even then, there are limits. Publishers may give an author back a manuscript and demand major cuts, as much as a third of the manuscript or more.

Luckily, cutting excess detail is good for the book, not only its reader and publisher. Trimming detail helps you clarify and sharpen your argument; after all, how else do you know what detail is necessary versus dispensable? But how to do it?

My strategy was to set optimistic page limits for each chapter. As I described in an earlier post, my book had four chronologically progressive parts, each with 3-4 chapters (you can see the TOC here). You do the math and you’ll see that’s a LOT of chapters. I worked back from where I needed to end based on my contract: 125,000 words or about 375 manuscript pages (already long for a book). I figured that gave me about 28 pages per chapter at most, with a short introduction and epilogue.

Then I forced myself to meet my goal. This was not easy—most chapters I drafted came in at about 35 pages and had to lose at least one-fifth of their length. But whittling the chapters down forced me to clarify each chapter’s arguments and then prioritize the material that advanced them. In other words, it made the book tighter, not only shorter.

My strategy may seem absurdly, even counter-productively, arbitrary. This is where being a good boss to yourself comes in. Because you will need to renegotiate the terms of the agreement as you go. But in doing so, you need to make reasonable accommodations without being a pushover. If you look at my book, you will see that my chapters are not a uniform length. Some ended up a bit over my 28-page mark, others came in a bit below. If I was going to go over my limit, however, I made sure I could make a good case to myself why that was justified. If a chapter came in under the mark, I still tried to reduce it by about 20% on the assumption that if there was that much that could go in the longer chapters, there was probably that much chaff in the shorter ones too.

You’ll have to decide for yourself if the book gives the reader the right amount of detail. But I assure you it has a lot less detail than it would have had without my detail diet. And just remember, if something is extremely painful to cut, maybe you can spin it off into a separate article…

What strategies have you used to discipline detail—or wordiness, which my strategy also helped with?

Ernst on Government Lawyers at AAA ad NRA

I've posted a conference paper, Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies.  Thanks to Mark Fenster and John Henry Schlegel for organizing the conference and to them and the other participants for their comments.  I view the paper as a revision of the position I took here.  Here is the abstract:
Jerome N. Frank
From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this working paper, prepared for "Opportunities for Law's Intellectual History," a conference sponsored by Baldy Center for Law and Social Policy at the State University of New York at Buffalo, October 10-11, 2014, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt's presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize the lawyers' agency as political actors. In particular, the New Deal lawyers' projection of their own preferences upon general statutory delegations of legislative power, which they then interpreted authoritatively, could make them less the faithful agents of their master’s voice than ventriloquists in pursuit of their own political agenda.