Monday, July 6, 2015

A Festschrift for Richard H. Helmholz

I’m very pleased to note the publication of the festschrift Studies in Canon Law and Common Law in Honor of R. H. Helmholz, edited by Troy L. Harris (Berkeley: The Robbins Collection, 2015).  “Richard Helmholz is a scholar, mentor and gentleman,” writes the editor, Troy L Harris.  Although “perhaps best known as an historian of the Roman canon law in medieval and early modern England,” Professor Helmholz “has an enviable knack for addressing a variety of subjects–from the history of marriage law to the work of ecclesiastical courts to the prohibition against self-incrimination–with sophistication and rigor, while keeping a light touch and remaining accessible.”  And because his interests lie “at the intersection of multiple lines of inquiry, his contributions are recognized by historians whose paths might otherwise never cross: historians of Roman civil law, of English common law, of medieval and early modern European law, of medieval and early modern English society.”  The contents of festschrift attest to Professor Helmholz’s influence, Harris writes, but may not sufficiently reveal “the genuine affection and admiration” that the contributors “expressed toward our mutual friend.”

Richard Helmholz: Bibliography 1969-2015

Limitation of Actions: The Curious Case of Classical Roman Law
David Johnston

Episcopal Power and Royal Jurisdiction in Angevin England
Joshua C. Tate

The Common Lawyers of the Reign of Edward I and the Canon Law
Paul Brand

Ethical Standards for Advocates and Proctors of the Court of Ely (1374-1382) Revisited
Charles Donahue, Jr.

The Evolution of the Common Law
Thomas P. Gallanis

Clergy and the Abuse of Legal Procedure in Medieval England
Jonathan Rose

The Private Life of Archbishop Johannes Gerechini: Simulated Marriage and Clerical Concubinage in Early Fifteenth-Century Sweden
Mia Korpiola

The Presumption of Evil in Medieval Jurisprudence
Laurent Mayali

Pedro Guerrero’s Treatise on Clandestine Marriage
Philip Reynolds

Some Elizabethan Marriage Cases
Sir John Baker

The Arguments in Calvin’s Case (1608)
David Ibbetson

Hugo Groitus and the Natural Law of Marriage: A Case Study of Harmonizing Confessional Differences in Early Modern Europe
John Witte, Jr.

The Work of the Ecclesiastical Courts, 1725-1745
Troy L. Harris

Testamentary Proceedings in Spanish East Florida, 1783-1821
M. C. Mirow

The Durability of Maxims in Canon Law: From regulae iuris to Canonical Principles
Norman Doe and Simon Pulleyn

Canon Law: The Discipline of Teaching and the Teaching of the Discipline
Mark Hall

Agreed Payment for Non-Performance in European Contract Law
Reinhard Zimmermann

Hovenkamp on "Classical" American Patent Law

Herbert J. Hovenkamp, University of Iowa College of Law, on The Emergence of Classical American Patent Law.
An important historical debate has developed about whether the American Constitution was intended to be "classical" -- a term referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce development politics inevitably distorts the decision making. The result is excessive state involvement, with benefits typically going to well placed interest groups.

From the Colonial period until the mid-nineteenth century American legislatures and courts conceived of the patent as an active tool of economic development. States in particular granted patents in anticipation that the grantee would actually develop some work of public improvement. This conception of the patent was distinctly "pre-classical" in the sense that it envisioned considerable state involvement in ensuring that granted patents were put to appropriate use. In addition, state issued patents, but not federal patents, were issued to "promoters" -- that is, to those who did not really claim to have invented anything new, but rather promised to develop technology or infrastructure in a new place.

A few decades later a much more classical conception of the patent emerged, as a property right pure and simple. Questions about whether and how to employ a patent were lodged almost entirely with its owner, who at the high point of patent classicism even had the power to use patents to keep technology off the market -- precisely contrary to what the original framers of the provision had in mind.

An essential part of this development was the rise of federal patent exclusivity -- a result that was not mandated by the text of the Constitution's IP Clause, particularly when read against the Tenth Amendment. The sources of increased hostility toward state issued patents were twofold. First was the view that state issued patents burdened interstate commerce. For example, the Supreme Court struck down the state-issued steamboat patent under the Commerce Clause, not under the IP Clause. Second, however, only federal exclusivity could effectively limit the power of the states to grant unwarranted exclusive rights to favored grantees. The eventual result was a regime in which Congress acquired the exclusive power to award patents for inventions.

Changes in United States patent law under the 1836 Patent Act and later were driven by classical beliefs that monopoly is bad and generally unnecessary for economic development, with invention as a narrow exception. This entailed, first, that the conditions for obtaining a patent be narrow, limited to actual inventions within the applicant's possession, and adequately disclosed. Second, the system had to be made nondiscretionary and free from capture. Individual patent grants were no longer a matter of legislative prerogative. Rather, the applicant was entitled to a patent if he could make specific showings concerning prior technology and use. The "prior art" queries that increasingly dominated patentability doctrine focused on what had been available in the past, rather than what economic development might require for the future. Finally, once a patent was issued the government very largely abandoned its interest. The patent entered commerce as personal property, creating individual rights but few social obligations. Together these requirements led both Congress and the courts away from relatively open ended policy concerns, and toward technical specification and boundary clarity. The result was a patent system increasingly detached from questions about economic development.

Sunday, July 5, 2015

Sunday Book Roundup

There's plenty of Fourth of July and Founding Fathers themed book reviews and even a review of our blog's founder's most recent book. Here's a quick list of book reviews for weekend reading.





Saturday, July 4, 2015

Weekend Roundup

  • On November 5-6, 2015, the School of Law at Queen Mary University of London, along with the London Centre for Social Studies, will host a conference on Fighting Femicide: Cultural and Legal Interventions. The conference organizers welcome participation by legal historians.
  • From the Canadian Legal History blog: Congratulations to the winners of the Osgoode Society's annual prizes. The Peter Oliver Prize (for best published writing by a student) was awarded to Edward Cavanagh (University of Ottawa, Ph.D. candidate) and Tyler Wentzell (a recent graduate of the University of Toronto Law School). The R. Roy McMurtry Fellowship in Canadian Legal History went to Elizabeth Koester to support her studies at the University of Toronto. The Society awarded the John T. Saywell Prize in Constitutional Legal History to Hakeem O. Yusuf (University of Strathclyde Glasgow) for Colonial and Post-Colonial Constitutionalism in the Commonwealth: Peace, Order and Good Government.
  •  If you use Twitter for the purpose of scholarly engagement, you might enjoy this post from The Junto on "Twittiquette." 
  • The ABA's Silver Gavel winners have been announced.  
  • American, British, English and other legal history courses in American law schools: a view from the demimonde of for-profit, student-generated law outlines.  
  • The July 2015 newsletter of the DC Circuit Historical Society is here.   Among other things, it includes information on tributes and eulogies for Judge Thomas Penfield Jackson and Judge Louis Oberdorfer.
  • From HistPhil: Maribel Morey (Clemson University) interviews Larry Kramer, constitutional historian and now President of the Hewlett Foundation.
  • We've continued to update our post on historians and the Obergefell decision, here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, July 3, 2015

Lesaffer on Europe's Classical Law of Nations

Randall Lesaffer, Tilburg Law School, has posted The Nature and Sources of Europe's Classical Law of Nations:
The jurisprudence of the law of nature and nations of the Early-Modern Age holds pride of place in the modern historiography of international law. Whereas the classical writers of that age undeniably exercised a significant influence on 19th-century international law, their utility as a historical source for the study of the law of nations from their own period has been far overrated. The development of the law of nations between 1500 and 1800 was much more informed by State practice than historians have commonly credited.

Moreover, historiography overestimates the novelty of the contribution of early-modern jurisprudence and has almost negated its major historic source of inspiration: the late-medieval jurisprudence of canon and Roman law. It is important to restore medieval jurisprudence to its rightful place in the grand narrative of the evolution of international law in Europe. Doing this renders a deeper insight into the dynamics of the jurisprudence of the Early-Modern Age. It shows that natural law acted as a vessel to recycle many of the doctrines of medieval jurisprudence into the language of the early-modern law of nations. But it also shows how it was an altogether feeble attempt at replacing the restrictive authority of scholastic jurisprudence with that of natural justice. As long as the fear of God gave teeth to the precepts of natural justice, it retained some real impact. But one this was lost and 19th-century international lawyers cut the historic bonds between natural law and religion, they pushed it to the wayside and ostracised it altogether from their world.

June Issue of the Journal of American History: Historians and the Carceral State

The June 2015 issue of the Journal of American History is a special issue on Historians and the Carceral State, produced in consultation with guest editors Kelly Lytle Hernández, Khalil Gibran Muhammad, and Heather Ann Thompson. From the Journal:

The United States is covered by an extensive, overlapping, and expanding policing apparatus. This has produced the world's largest prison population: every day more than 2 million people--mostly black, brown, or poor--are barred somewhere within the nation's vast archipelago of prisons, jails, and immigrant detention centers. Unsurprisingly, mass incarceration has had cascading implications for urban and suburban spaces, family lives, national borders, and the shape of the U.S. economy and American democracy. This special issue of the Journal of American History examines how the carceral state emerged in the early republic, was consolidated in the nineteenth century, and underwent phenomenal expansion during the twentieth century. The contributors to this special issue take an expansive approach to the historical drivers of the carceral state and consider topics including the role of incarcerated black women, the rise of undocumented Latinos in the prison system, the role of white suburban drug use and the crack epidemic in the racialized war on drugs, and how prison building drove the political economy of the sun belt.

Articles

"Introduction: Constructing the Carceral State," by Kelly Lytle Hernández, Khalil Gibran Muhammad, and Heather Ann Thompson

"African American Women, Mass Incarceration, and the Politics of Protection," by Kali Nicole Gross

"Less Crime, More Punishment: Violence, Race, and Criminal Justice in Early Twentieth-Century America," by Jeffrey S. Adler

"Youth of Color and California's Carceral State: The Fred C. Nelles Youth Correctional Facility," by Miroslava Chávez-Garcí­a

"Queer Law and Order: Sex, Criminality, and Policing in the Late Twentieth-Century United States," by Timothy Stewart-Winter

"We Are Not Slaves: Rethinking the Rise of Carceral States through the Lens of the Prisoners' Rights Movement," by Robert T. Chase

"Guns and Butter: The Welfare State, the Carceral State, and the Politics of Exclusion in the Postwar United States," by Julilly Kohler-Hausmann

"'A War within Our Own Boundaries': Lyndon Johnson's Great Society and the Rise of the Carceral State," by Elizabeth Hinton

"Flocatex and the Fiscal Limits of Mass Incarceration: Toward a New Political Economy of the Postwar Carceral State," by Alex Lichtenstein

"Impossible Criminals: The Suburban Imperatives of America's War on Drugs," by Matthew D. Lassiter

"Deportability and the Carceral State," by Torrie Hester

"Objects of Police History," by Micol Seigel

"Crack in Los Angeles: Crisis, Militarization, and Black Response to the Late Twentieth-Century War on Drugs," by Donna Murch

"The Unintended Consequences of the Carceral State: Chicana/o Political Mobilization in Post-World War II America," by Edward J. Escobar
Full content (gated) is available here.

Brady on Personal Property and the Fourth Amendment

Maureen E. Brady, a Ph.D. candidate in Law at the Yale Law School, has posted
The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection, which is forthcoming in the Yale Law Journal.   
Along with “persons, houses, and papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” Historically, “effects” have received less attention than the rest of the categories in the Fourth Amendment. However, in the last three years, Supreme Court opinions on Fourth Amendment searches have reintroduced the word “effects” in opinions without a definition of the word, an understanding of its history, or a clear approach to "effects" under the Fourth Amendment.

In the absence of a coherent approach to searches of “effects,” many lower courts apply the standard Fourth Amendment test for a search to personal property: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location. These courts hold that individuals lack expectations of privacy in personal property that is unattended in public space (say, a jacket left on a restaurant’s coat rack). The privacy standard was intended to broaden the scope of the Amendment’s protection beyond real property formulas, but lower courts have used real property concepts of privacy to narrow protection for personal property. This is both historically and theoretically unsound.

This Article argues that personal property in public space should be given greater constitutional protection by providing a history and theory of “effects.” A historical account of personal property from the Founding onward demonstrates a constitutional commitment to protecting personal property because of the privacy and security interests inherent in ownership and possession. If Fourth Amendment jurisprudence were instead informed by this constitutional commitment to personal property, courts would determine Fourth Amendment interests in an effect in public space by reference to its nature and context — factors personal property law already uses to ascertain the interests of a person in a thing. Using guidance from personal property law, this Article proposes a framework for identifying protected effects based on their qualities and environment and restoring them to the constitutional significance they deserve.

Thursday, July 2, 2015

Tocqueville Review Symposium on "Beyond Stateless Democracy"

The latest issue of The Tocqueville Review/La revue Tocqueville includes a symposium that is likely to interest our readers:
Beyond stateless democracy

Preface: The Reconfiguration Of Political History
Thomas J. Sugrue

Beyond Stateless Democracy
William J. Novak, Stephen W. Sawyer, James T. Sparrow

Beyond Max Weber: The need for a democratic (not aristocratic) theory of the modern state
William J. Novak

Morgenthau’s dilemma: Rethinking the democratic leviathan in the atomic age
James T. Sparrow

Foucault and the state
Stephen W. Sawyer
Full content (gated) is available here, at Project Muse.

TerBeek's Obituary for Originalism

Calvin J. TerBeek, a Tulane JD and doctoral candidate in the Political Science Department at the University of Chicago, has posted Originalism's Obituary, which is to appear in the Utah Law Review (2015):
This short essay argues that originalism is in a Kuhnian (The Structure of Scientific Revolutions) crisis due to the theory's epistemic closure, ideological nature, and immodesty. After detailing the evidence for each of the three issues, the paper contends that originalism will eventually, and perhaps soon, be relegated to the dustbin along with other discarded normative theories of constitutional interpretation.
 H/t: Legal Theory Blog

Dayton on "The Oddest Man that I Ever Saw"

Cornelia H. Dayton, University of Connecticut Department of History, has published a fascinating article, “The Oddest Man that I Ever Saw”: Assessing Cognitive Disability on Eighteenth-Century Cape Cod, in the Journal of Social History.  It’s gated but otherwise available online.
In the eighteenth century, prior to the establishment of asylums and the rise of psychiatry in the United States, laypeople bore the onus of assessing whether community members had mental or cognitive disabilities that necessitated special treatment. This article analyzes a rare legal dossier that allows us to overhear laymen assessing and reacting to disability in an era when the words normal and abnormal were not used. Joseph Gorham lived all seventy-three years of his life in Barnstable, Massachusetts, protected by his father's wealth and social status. Neighbors puzzled over Gorham's unusual mix of capacities and incapacities. Some thought he was "Disordered in his Intelectuals," but others noted that he answered questions cogently, could read, and displayed a type of savantism. For the last three decades of his life, Gorham was under guardianship. He was not allowed to bargain, had no occupation, and did not marry. Not surprisingly, the will he signed fifteen years before his death in 1762 was challenged as invalid. Witnesses who had known him for forty or more years described Gorham as singular, uncommon, different "from all mankind." The essay explores what the puzzle of Joseph Gorham meant in his lifetime and it asks what we gain by noting the resonances between Gorham's situation and the ways we currently understand and debate autism. Applying the prism of autism as one of several interpretive approaches brings into sharper relief certain elements we might miss, notably Gorham's aloneness and his observers' silence on his emotional and affective deficits.

Wednesday, July 1, 2015

Historians and the Obergefell Decision - updated

Both the majority opinion and the dissents in Obergefell v. Hodges, the recent Supreme Court same-sex marriage case, are notable for their references to history. Research by legal historians Hendrik Hartog (Princeton University), Nancy Cott (Harvard University), and Stephanie Coontz (Evergreen State College), among others, made it into the decision. Historians have also weighed in on the decision's significance. Here's a roundup of coverage from around the web.

*UPDATED*
  • From Process, the blog of the Organization of American Historians: Dirk Hartog tells us how it feels to be cited by the Supreme Court ("Cool. Very Cool.") and offers "four suggestions about why the brief mattered and, more importantly, how it succeeded."
  • Over at Balkinization, Jack Balkin (Yale Law School) has posted on the Justices' competing uses of the concept of tradition
  • My personal favorite: Corey Robin (Brooklyn College/CUNY Graduate Center) digs into Justice Thomas's biography to shed light on the dignity references in his dissent. (Hat tip: Ariela Gross)
  • Writing for the web magazine Nomocracy in Politics, Bruce Frohnen (Ohio Northern University) responds to critiques of another historically grounded amicus brief--filed by originalist scholars in support of "traditional marriage." (Hat tip: Robert Waters)
Are there more articles we should note? Leave your comments and we'll continue updating the post.

Symposium on Hartog's "Someday All This Will Be Yours"

Law & Social Inquiry 40:2 (Summer 2015), available online shortly, includes a symposium on Hendrik Hartog's Someday All This Will Be Yours: A History of Inheritance and Old Age, with contributions from Naomi Cahn, Mary Anne Case, Nina A. Kohn, Dorothy E. Roberts, and Hendrik Hartog.

"Law As" III

Eleven essays from the third “Law As...” symposium, organized by Christopher Tomlins and held at UC Irvine Law in April 2014, are out in the most recent issue of the U.C. Irvine Law Review, Volume 5, No. 2 (June 2015).  They are available here.

Samito on "Constitution and Law" during the Civil War

Christian G. Samito, a lecturer in law at the Boston University School of Law, has posted Constitution and Law, an entry in A Companion to the U.S. Civil War (John Wiley & Sons, Inc., 2014).
This essay examines various aspects of legal development during the Civil War, which went beyond affirming the perpetuity of the Union and resolving the fate of slavery to involve an expansion of the borders and mechanics of state coercion during a time of crisis, a more robust role for the federal government in promoting economic development, and the formulation of a better defined understanding of national citizenship. Many of these events were unforeseen as of April 1861 and all of them were shaped by wartime circumstances, highlighting how legal development is influenced by politics, society, and other factors in ways that are not predetermined. An overarching theme emerges in Civil War legal development, even when specific components seem unrelated: the strengthening of the U.S. as a nation-state (meaning here something beyond maintenance of the territorial integrity of the U.S., critical though that was). The Civil War removed the one issue in U.S. history – slavery – so politically divisive it could rend the Union. Structural initiatives, such as railroad construction and banks, helped link markets and improve communications nationwide, while the end of slavery placed the entire reunified U.S. within the free labor ideology. While federalism remained important during the 1860s and remains so to this day, the federal government that emerged from the Civil War could play a greater role in shaping economic development (shifting the pendulum from the paradigm of the Jeffersonians and Jacksonian Democrats to the model of the Hamiltonians and Whigs) and safeguarding rights newly associated with national citizenship (in contrast to citizenship in the antebellum period, when states had much broader prerogatives to determine rights for people within their borders).

Tuesday, June 30, 2015

Saavedra on the Human Rights Network and the Chilean Coup

Manuel Bastias Saavedra, Universidad Austral de Chile, has posted The Unintended Legacy of September 11, 1973: Transnational Activism and the Human Rights Movement in Latin America, which appeared in Iberoamericana 13 (2013): 87-103:
The following article focuses on the impact of the September 11, 1973 coup in Chile on the formation of a transnational human rights network in Latin America. The article discusses the exemplary character of the human rights operations in Chile for other Latin American countries, but focuses on the formation of a transnational infrastructure that stimulated and accompanied the organization of human rights organizations across Latin America. The work of the Latin American churches and their international partners were at the center of the growth of the Latin American human rights movement that began in the 1970s.

Nice Try, Abe!

President Lyndon Johnson, December 11, 1963 (LC)
The other day I had some time on my hands at the National Archives and, as is my wont, started browsing some of its on-line databases.  That's when I finally realized that, thanks to the Miller Center on Public Affairs, I could listen in as erstwhile New Deal lawyers gave President Lyndon Baines Johnson a call.  Here, for example, for example, is Tom Corcoran telling LBJ how much better a recent speech was than anything JFK ever delivered.  But two conversations, from December 11 and 13, 1963, were not only fun but also pedagogically useful.

The last six weeks of my survey course on American Legal History treat the emergence of the New Deal political regime and its "consolidation" in the late 1940s and 1950s.  The last class–entitled, in an homage to a classic article by Richard L. McCormick,“The Discovery that Business Corrupts Administration”–is devoted to how the high hopes for New Deal agencies had in the 1950s run to ground in delay, corruption and incompetence, terrain recently surveyed by Joanna L. Grisinger in The Unwieldy American State.

After reviewing the symptoms and various diagnoses of administrative malaise in the 1950s and early 1960s, I have the class consider various remedies.  Although after the rise of the Consumer Movement the judiciary would become a powerful instrument of reform, they overwhelmingly deferred to the commissions.  I tell the students about Bernard Schwartz's tragicomic experience as Chief Counsel of House Legislative Oversight subcommittee, including his firing after he started investigating his congressional masters, to suggest the limits of the reform impulse within Congress circa the late 1950s.  What about the executive?  At first, JFK's appointments, such as Manuel Cohen, Philip Elman, Newton Minow, and Joseph Swidler, and his commissioning of James Landis to report on the regulatory commissions suggested that rule by the Best Men might be back.  His successor, however, viewed regulatory commissions less as Landis's Fourth Branch of Government than as a political resource to be bent to his will.

Oren Harris (credit)
Abe Fortas (LC)
To illustrate this last point, I recount how LBJ gave Elman "the Johnson Treatment" in a receiving line after Elman publicly criticized FTC Chairman Paul Rand Dixon for not aggressively regulating, thereby outraging Dixon's congressional sponsors.  (Elman tells the story in his oral history, in which he also runs down his fellow commissioners, in a passage I ssign my students.)  But I now realize I should have my students listen to this phone call.  As readers of Laura Kalman's biography of Abe Fortas know, Johnson respected and needed Fortas too much to be dismissive when the Washington lawyer urged the president to create something like the ABA's Standing Committee on the Federal Judiciary to review nominees to the federal regulatory commissions.  He even tried out the proposal on Congressman Oren Harris (D-Ark.), who approved.  But, in his conversation with Harris, LBJ seemed intrigued not because a review committee would remove politics from the appointment process but because a ranking of "qualified" might "clean . . . up" nominees chosen for political reasons.  (h/t LK.)

Monday, June 29, 2015

CFP: Law as Culture at Medieval Studies 2016

[We have the following announcement from Sasha Volokh, Emory Law.]

Every year, I run a legal history panel ("Law as Culture") at the International Congress on Medieval Studies in Kalamazoo, Michigan. Next year's meeting is May 12-15, 2016. Please let me know if you have any medieval legal history papers! Here's a somewhat more specific description of the panel. The description is very general on purpose -- a more specific subject may emerge depending on what sorts of submissions I get. I would really like to get some law-and-economics or institutional economics contributions!

Law as Culture XVII: Substance, Procedure, and Institutions in the Middle Ages

The "Law as Culture" series has been ongoing at Kalamazoo most years since 1994. In the past, organizers have included Richard Kaeuper and Paul Hyams. The Selden Society—the premier scholarly society for English legal history—has sponsored the series since 2000. Past sessions have explored notions of violence, sexuality, time, narrative, and vengeance in the law.

This panel, the seventeenth in the series, will explore the interaction between substance and procedure, with an emphasis on the development of the institutions of government, in the Middle Ages. We welcome submissions from any area, e.g. English, Celtic, Continental, Roman, Canon, and from any period within the Middle Ages. We are especially enthusiastic about interdisciplinary work, merging legal history with, e.g., economics, political science, literature, anthropology, etc. We also welcome submissions from junior scholars and graduate students.

Please send me any suitable abstracts at svolokh at gmail dot com by September 15, 2015.

Farber on the Declaration, the Consitution and the Interpreter's Dilemma

Daniel A. Farber, University of California, Berkeley School of Law, has posted The Declaration, the Constitution, and the Interpreter's Dilemma: An Essay on Historical and Iconic Meaning:
The Declaration of Independence is one of the paradigm texts in American history. It was originally written for a time-specific purpose. But it also has spoken to a broader audience across time, as an icon representing American ideals. After describing how the Declaration has been given both historical and iconic meaning by judges, presidents, and public figures, this Essay considers the relevance of these two forms of meaning to current debates over constitutional interpretation. Originalists generally privilege the historical meaning of texts.

Yet originalist Justices on the Court have acknowledged that iconic meaning also exists and can sometimes be more relevant. In Pleasant Grove City v. Summum, 555 U.S. 460 (2009), these originalist Justices turned to iconic meaning over historical meaning, endorsing dynamic interpretation of monuments -- even those containing texts. Ironically, then, they found fluidity in the meaning of texts that are literally carved in stone.

The Essay closes with a discussion of the interpreter’s dilemma: the tension between fidelity to the past (served by historical meaning) and affirmation in the present (served by iconic meaning).
H/t: Legal Theory Blog

Koziol Reviews the Hyams Festschrift

Law's  Dominion in the Middle Ages: Essays for Paul Hyams, a special issue of Reading Medieval Studies, is reviewed by Geoffrey Koziol, University of California, Berkeley, in The Medieval Review.  H/t Michael Widener.

Sunday, June 28, 2015

Sunday Book Roundup

With recent events in mind, The New York Times has put together an annotated reading list for "Reading About the Confederacy." On H-Net, there is a review of Caroline E. Janney's Remembering the Civil War: Reunion and the Limits of Reconciliation (UNC Press).
"When analyzing the Union Cause and the Lost Cause, Janney argues, quite correctly in the mind of this reviewer, that the period from 1865 to 1880 was not a period of hibernation or incubation in Civil War memory. Both sides cultivated, advanced, and protected their own interpretations of the Civil War. Union veterans may have regarded the preservation of the Union as preeminent, but they did not overlook the centrality of slavery to the war. Black and white Union veterans “agreed that Union and emancipation served as the dual legacy of their victory” (p. 105). By so doing, they assured that a reconciliationist interpretation of the war would not come to dominate the landscape of Civil War memory. In the South, the Lost Cause fostered “the extension of Confederate nationalism that would encourage resistance and defiance for years to come” (p. 134), and rebels angrily refuted northern claims about emancipation. Both sides, Janney asserts, could embrace reunion, but not reconciliation, and “the battleground of Civil War memory remained contested” (p. 132)."
In the Washington Independent Review of Books, there is a review of Days of Rage: America's Radical Underground, the FBI, and the Forgotten Age of Revolutionary Violence (Penguin) by Bryan Burrough.

Yearning to read about Nixon? There's a two-book review in The New York Times covering Tim Weiner's One Man Against the World: The Tragedy of Richard Nixon (Henry Holt) and Evan Thomas's Being Nixon: A Man Divided (Random House).

Kevin Kruse's One Nation Under God: How Corporate America Invented Christian America is glowingly reviewed on H-Net.
"Once in a blue moon a monograph comes along that both contributes decisively to an ongoing scholarly conversation and introduces its readers to a plethora of little-known documents, archives, organizations, and individuals."
There are several interesting interviews from the New Books series. For example, they talk with Andrew Hartman about his book, A War for the Soul of America: A History of the Culture Wars (University of Chicago Press).

Another is an interview with Claire Virginia Eby, covering her work, Until Choice Do Us Part: Marriage Reform in the Progressive Era (University of Chicago Press).

From New Books in American Studies is an interview with Madeline Y. Hsu, whose new book is The Good Immigrants: How the Yellow Peril Became the Model Minority (Princeton University Press).

And yet still one more is an interview with Ted Smith, which discusses his book, Weird John Brown: Divine Violence and the Limits of Ethics (Stanford University Press).

I want to particularly highlight We Will Shoot Back: Armed Resistance in the Mississippi Freedom Movement (NYU Press) by Akinyele Omowale Umoja, as I have found his writings to be particular useful in some of my own research. The interview on New Books in History can be found here.

From The New Rambler is a review of Jeb Barnes and Thomas Burke's How Policy Shapes Politics: Rights, Courts, Litigation and the Struggle over Injury Compensation (Oxford).

Also up is a review of Brandon L. Garrett's Too Big to Jail: How Prosecutors Compromise with Corporations (Harvard University Press).

Saturday, June 27, 2015

Weekend Roundup

  • John Q. Barrett has announced on his “Jackson List” that Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard University, “will deliver Chautauqua Institution’s eleventh annual Robert H. Jackson Lecture on the Supreme Court of the United States.  Professor Tribe will give the Jackson Lecture on Wednesday, July 8, 2015, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.” 
  • In light of the Chief Justice Roberts's opinion in King v. Burwell, I'm indulging in a reprise link to my posts on NFIB, which likened the Chief Justice to Charles Evans Hughes .  While I'm at it, I'll note, as someone who studies the role of lawyers within political institutions, that, in accounting for the ACA's "more than a few examples of inartful drafting," Chief Justice Roberts put the blame where it belongs, on the legislators, not the staffs of the House and Senate's legislative counsels.  DRE
  • The “best place to bone up on Chicago’s legal history”?  The Chicago Reader says it’s the Cook County Clerk of the Circuit Court archives.  “I’ve seen authors write biographies of Chicagoans, and they never came in to look at the court records,” [archivist Phil] Costello says. “I’m thinking, ‘I know we’ve got a probate file on that guy.’” 
  • Check out the Irish Legal History Society's spiffy new website.  H/t: @Law&HistoryReview
  • The Franklin D. Roosevelt Presidential Library has announced “a special digitization project made possible through the support of AT&T” that will bring “together for the first time the President's Master Speech File and the FDR Speech Audio Recordings and makes them available through FRANKLIN, the Library's online digital repository hosted by Marist College.” 
  • Mark Wayne Podvia, West Virginia University College of Law, has posted a history of the Legal History and Rare Books Special Interest Section of the American Association of Law Libraries, written on the occasion of its 25th Anniversary.
  •  ICYMI: "The Man Who Lost the Gideon Case: An Interview with Bruce R. Jacob," on HNN.
  • On October 23, 2015, the Baldy Center for Law and Social Policy will host a conference to mark the 30th anniversary of David Engel's The Oven Bird’s Song: Insiders, Outsiders, and Personal Injuries in an American Community.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 26, 2015

The Purcell Backlist, Round 2

In a second round of posts to SSRN, Edward A. Purcell, Jr., New York Law School, has made available some of his more recent publications.

Danner on Langdell and the Labratory Metaphor

Richard A. Danner, Duke University School of Law, has posted Law Libraries and Laboratories: The Legacies of Langdell and His Metaphor, which is forthcoming in the Law Library Journal 107 (2015):
Langdell Hall (LC)
Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.

CFP: Law Collecting and Law Collectors

We have the following Call for Papers:
CALL FOR PAPERS
LAW COLLECTING AND LAW COLLECTORS 
Hosted by the Scottish Council of Law Reporting with the University of Edinburgh 
APRIL 14TH & 15TH 2016 IN EDINBURGH 
CONVENOR: PROFESSOR JOHN CAIRNS, University of Edinburgh

A conference to address the broad topic of the history of law reporting and the collecting of legal decisions, primarily in Scotland but with the development of law reporting situated in its broader British, European and comparative context. The conference is intended to consider subjects such as how the role of precedent developed, in what form were the earliest records of judicial opinions or decisions, how the form of the modern law report emerged and related issues.

Confirmed keynote speakers include Professor Sir John Baker, Professor John Ford, Professor Thomas Rüfner, and Lord Woolman.

Proposals for papers (proposals should not be more than 400 words in length) should be submitted to secretary@sclr.scot no later than 30th September 2015.

The conference is open to all interested in this subject area. It is expected that the fee, to include meals and refreshments during the conference and a conference dinner (but not overnight accommodation) will be in the order of £150. Please email secretary@sclr.scot if you wish to be sent a booking form.

New Release: Richards, "Who Freed the Slaves? The Fight Over the Thirteenth Amendment"

New from the University of Chicago Press: Who Freed the Slaves? The Fight Over the Thirteenth Amendment (April 2015), by Leonard L. Richards (independent scholar). A description from the Press:
In the popular imagination, slavery in the United States ended with Abraham Lincoln’s Emancipation Proclamation. The Proclamation may have been limited—freeing only slaves within Confederate states who were able to make their way to Union lines—but it is nonetheless generally seen as the key moment, with Lincoln’s leadership setting into motion a train of inevitable events that culminated in the passage of an outright ban: the Thirteenth Amendment.

The real story, however, is much more complicated—and dramatic—than that. With Who Freed the Slaves?, distinguished historian Leonard L. Richards tells the little-known story of the battle over the Thirteenth Amendment, and of James Ashley, the unsung Ohio congressman who proposed the amendment and steered it to passage. Taking readers to the floor of Congress and the back rooms where deals were made, Richards brings to life the messy process of legislation—a process made all the more complicated by the bloody war and the deep-rooted fear of black emancipation. We watch as Ashley proposes, fine-tunes, and pushes the amendment even as Lincoln drags his feet, only coming aboard and providing crucial support at the last minute. Even as emancipation became the law of the land, Richards shows, its opponents were already regrouping, beginning what would become a decades-long—and largely successful—fight to limit the amendment’s impact.

Who Freed the Slaves? is a masterwork of American history, presenting a surprising, nuanced portrayal of a crucial moment for the nation, one whose effects are still being felt today.
Reviewer James McPherson says:
"This study of the political drive toward the complete abolition of slavery is most welcome. Leonard Richards has rescued from obscurity James Ashley, who managed the course of the Thirteenth Amendment through the House of Representatives. The reader will come away with greater appreciation for the courage and skill of those antislavery leaders who never gave up and eventually triumphed."
More information is available here.

Thursday, June 25, 2015

Podvia on Douglass at Carlisle

Mark Wayne Podvia, West Virginia University College of Law, has posted Frederick Douglass in Carlisle, which appeared in Unbound: An Annual Review of Legal History and Rare Books 5 (2012): 17.  The abstract reads, “Over the course of his lifetime Frederick Douglass is known to have made three visits to Carlisle, Pennsylvania. He nearly lost his life on one of those visits and was denied access to a hotel dining room on another visit. This paper details all three visits.”

Clemente's on the Execution of "Idiots" at Common Law

Michael A. Clemente has posted his student note, A Reassessment of Common Law Protections for “Idiots.” which appears in the Yale Law Journal 124 (2015): 2746-2803.
When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.” This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow. It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities. Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.

New Release: Conforti, "Lizzie Borden on Trial"

New from the University Press of Kansas: Lizzie Borden on Trial: Murder, Ethnicity, and Gender (June 2015), by Joseph A. Conforti (University of Southern Maine). The Press explains:
Most people could probably tell you that Lizzie Borden took an axe and gave her mother forty whacks, but few could say that, when tried, Lizzie Borden was acquitted, and fewer still, why. In Joseph A. Confortis engrossing retelling, the case of Lizzie Borden, sensational in itself, also opens a window on a time and place in American history and culture.
Surprising for how much it reveals about a legend so ostensibly familiar, Confortis account is also fascinating for what it tells us about the world that Lizzie Borden inhabited. As Conforti—himself a native of Fall River, the site of the infamous murders—introduces us to Lizzie and her father and step-mother, he shows us why who they were matters almost as much to the trials outcome as the actual events of August 4, 1892. Lizzie, for instance, was an unmarried woman of some privilege, a prominent religious woman who fit the profile of what some characterized as a Protestant nun. She was also part of a class of moneyed women emerging in the late 19th century who had the means but did not marry, choosing instead to pursue good works and at times careers in the helping professions. Many of her contemporaries, we learn, particularly those of her class, found it impossible to believe that a woman of her background could commit such a gruesome murder. 
As he relates the details, known and presumed, of the murder and the subsequent trial, Conforti also fills in that background. His vividly written account creates a complete picture of the Fall River of the time, as Yankee families like the Bordens, made wealthy by textile factories, began to feel the economic and cultural pressures of the teeming population of native and foreign-born who worked at the spindles and bobbins. Conforti situates Lizzies austere household, uneasily balanced between the well-to-do and the poor, within this social and cultural milieu—laying the groundwork for the murder and the trial, as well as the outsize reaction that reverberates to our day. As Peter C. Hoffer remarks in his preface, there are many popular and fictional accounts of this still-controversial case, but none so readable or so well-balanced as this.
More information is available here.

Wednesday, June 24, 2015

Legal History at SHAFR 2015

We hear that the annual meeting of the Society for Historians of American Foreign Relations starts tomorrow in Arlington, Virginia,, with several panels on legal history, including:

Panel 12: Roundtable: Humanitarianism and Human Rights: A State of the Field
Chair: Sarah B. Snyder, American University
Michael Barnett, George Washington University
Gary Bass, Princeton University
Elizabeth Borgwardt, Washington University in St Louis
Julia Irwin, University of South Florida
Amanda Moniz, National History Center of the American Historical Association

Panel 92: The Use of International Law to Mobilize, Demobilize, and Otherwise Shape Public Opinion in the Nineteenth and Twentieth Centuries

Chair: Susan Brewer, University of Wisconsin-Stevens Point

The Atlantic Slave Trade & International Law in the United States Marco Basile, Harvard University

Arbitration as Kabuki Dance: Rhetoric and Reality during the Roosevelt-Taft Era Andrei Mamolea, Graduate Institute, Geneva

A Mere Scrap of Paper? The 1882 United States-Korea Treaty, 1882-2007 David P. Fields, University of Wisconsin-Madison

Comment: Christopher Dietrich, Fordham University

Danner on Antebellum Reviews of American Law Reports

More than AppealingRichard A. Danner, Duke University School of Law, has posted More than Decisions: Reviews of American Law Reports in the Pre-West Era:
In the early nineteenth century, both general literary periodicals and the first American legal journals often featured reviews of new volumes of U.S. Supreme Court and state court opinions, suggesting their importance not only to lawyers seeking the latest cases, but to members of the public. The reviews contributed to public discourse through comments on issues raised in the cases and the quality of the reporting, and were valued as forums for commentary on the law and its role in American society, particularly during debates on codification and the future of the common law in the 1820s. James Kent saw the reports as worthy of study by scholars of taste and literature, or to be read for their drama and displays of great feeling. By the 1840s fewer lengthy reviews of reports were published in the journals, but shorter reviews continued in the years prior to and after the Civil War; they largely disappeared with the emergence of West’s National Reporter System and other privately published reporters in the 1880s. This paper examines role and influences of the reviews in earlier decades of the century.

Stern on "Fanny Hill" and Obscenity Law

Simon Stern, University of Toronto Faculty of Law, has posted Fanny Hill and the 'Laws of Decency': Investigating Obscenity in the Mid-Eighteenth Century, forthcoming in Eighteenth-Century Life 40 (2016):
This essay discusses John Cleland's novel The Memoirs of a Woman of Pleasure (1748/9, better known as Fanny Hill), in the context of eighteenth-century obscenity law and the law of search and seizure. To explain why obscenity could have been treated as a criminal offense at all, the essay discusses prosecutions against writers and actors from the later seventeenth century through Cleland's time, showing how the criminality of the offense was taken for granted (circa 1670-1700), then rejected (in 1708), and then rationalized (in 1727). Cleland's novel, notable for resorting to metaphorical and euphemistic language so as to avoid "rank words," was nevertheless easily covered by the rationale offered in Curll (1727), but his case was never brought to trial. While some have thought that this circumstance is mysterious and requires explanation, in fact obscene works were rarely prosecuted at this time, and the decision even to begin proceedings against Cleland is more notable than the decision not to go to trial. Cleland implied, in some of his letters, that he believed his circumlocutory language should have excused him from prosecution, but his stronger argument would have involved the process that led to his arrest: the investigation proceeded by means of a general warrant, a device that would be criticized in the litigation after the 1763 Wilkes prosecution, which in turn influenced the prohibition against unreasonable searches and seizures in the Fourth Amendment to the US Constitution. Along the way, the essay discusses several famous but inaccurate claims about the prosecution of Cleland and his publishers (e.g., that Cleland was paid to stop writing obscene novels, and that his publishers made a fortune from the book), and also includes a list of eighteenth-century editions of Fanny Hill.

Tuesday, June 23, 2015

Fishkin and Forbath on the Constitution of Opportunity

Joseph Fishkin and William E. Forbath, University of Texas at Austin School of Law, have posted Wealth, Commonwealth, & the Constitution of Opportunity: A Story of Two Traditions, which is forthcoming in NOMOS:
We live in a time of profound and justified anxiety about economic opportunity. The number of Americans facing poverty is growing, opportunities for middle-class livelihoods are shrinking, and economic clout is becoming concentrated at the top to a degree that recalls the last Gilded Age. For reformers throughout the nineteenth and early twentieth centuries, economic circumstances like these posed not just an economic, social, or political problem but a constitutional one. A society with a “moneyed aristocracy” or a “ruling class,” these reformers understood, was an oligarchy, not a republic. This understanding was rooted in a constitutional discourse we have largely forgotten — one that this essay suggests we ought to reclaim. From the beginning of the Republic through roughly the New Deal, Americans vividly understood that the guarantees of the Constitution are intertwined with the structure of our economic life. This understanding was the foundation of a powerful constitutional discourse that today, with important but limited exceptions, lies dormant: a discourse of constitutional political economy. A powerful tradition of arguments, from the founding era through the nineteenth and early twentieth centuries, sounded in this tradition: arguments that we we cannot keep our constitutional democracy — our “republican form of government” — without (a) constitutional restraints against oligarchy, and (b) a political economy that maintains a broad middle class, accessible to everyone. We call this the democracy of opportunity tradition.
Today, when we speak of “equal opportunity” and the Constitution, we usually think of a different tradition, more recognizable today as constitutional law: the inclusionary tradition, which has its roots in Reconstruction and animates arguments that the Constitution requires us to include, on equal terms, those who have previously been excluded from important opportunities on grounds such as race and sex. This essay, forthcoming in the journal NOMOS, tells the story of these two traditions and the relations between them, which have been fraught and often tragic. Generation after generation of white male champions of the older democracy of opportunity tradition refused to include women and racial others. Later, the great triumphs of the inclusionary tradition in the mid-twentieth century — the Civil Rights Revolution, the Great Society — were largely disconnected from the constitution of opportunity tradition. This was for a different reason: The Civil Rights Revolution and Great Society unfolded in an unprecedented moment of broadly shared prosperity; what remained to be done, it seemed, was to open the nation’s abundant middle-class opportunities to black America, women and other excluded “minorities.” Thus, the moment that marked the rebirth and greatest triumphs of the inclusionary tradition also signaled the eclipse of the democracy of opportunity tradition, and more generally of any constitutionalism not centered on the judiciary — an eclipse whose consequences have been far-reaching.

In this essay and in a larger book project, we aim to recover the idea that inequality and unequal opportunity, oligarchy and aristocracy, have a constitutional dimension. In the end, we argue that the inclusionary tradition and the democracy of opportunity tradition can only succeed together and intertwined. Here, we begin to sketch how a revived democracy of opportunity tradition, and a revived discourse of constitutional political economy, might matter both inside and outside the courts.

New Release: Mulcahy and Sugarman, "Legal Life-Writing: Marginalised Subjects and Sources"

New from Wiley-Blackwell: Legal Life-Writing: Marginalised Subjects and Sources (April 2015), by Linda Mulcahy (London School of Economics) and David Sugarman (Lancaster University). A description from the Press:
Legal Life-Writing provides the first sustained treatment of the implications of life-writing on legal biography, autobiography and the visual history of law in society through a focus on neglected sources, and on those usually marginalized or ignored in legal biography and legal history, such as women and minorities.
  • Draws on a range of sources and disciplinary approaches including legal history, life-writing, sociology, history, art history, feminism and post-colonialism, seeking to build a bridge-head between them
  • Challenges the methodologies employed in conventional accounts of legal lives
  • Aims to ignite debate about the nature of the relationship between socio-legal studies and legal history
  • Aims to enlarge the fields of legal biography, legal history, history and socio-legal studies, and to foster a closer and more inter-disciplinary dialogue between these disciplines 
More information is available here.

Hat tip: Mitra Sharafi

The Purcell Backlist

Edward A. Purcell, Jr. (credit)
Not too long ago, Edward A. Purcell, Jr., New York Law School, posted a number of items from his backlist.  If you missed some of these articles and book reviews by this masterful historian of federal courts and legal ideas, now is a good time to catch up.

Barry Friedman’s The Will of the People: Probing the Dynamics and Uncertainties of American Constitutionalism, Michigan State Law Review 2010: 663-95.
This essays examines Barry Friedman’s book, The Will of the People, and its thesis that, with lags and hesitations, the Supreme Court’s constitutional jurisprudence has increasingly adapted to the changing social and political attitudes of the American people. Noting the book’s close affinity with the work of recent scholars who argue that popular attitudes should and do have substantial influence in shaping constitutional law, the essay explores the lessons Friedman draws from his constitutional history and, in particular, the significance of four “critical periods”: the Federalist Era with its opposition to what seemed an overtly partisan Court, the first half of the nineteenth century with its widespread defiance of the federal judicial power, the long period from the Civil War to the New Deal when Americans sought to limit and control the judicial power, and the modern period that brought general acceptance of federal judicial power once it had learned to accommodate itself more closely to popular demands. The essay highlights the qualifications Friedman makes to his thesis, and it examines three particular historical issues -- the origins of the Judiciary Act of 1875, the Court’s alleged “formalism” in the late nineteenth century, and the relationship between the Court’s jurisprudence addressing racial and economic issues at the beginning of the twentieth century -- to extend and deepen Friedman’s analysis. The essay concludes by emphasizing the importance of history in enabling Americans to understand their constitutional system more realistically and thus, one hopes, to honor and maintain it more effectively.
Evolving Understandings of American Federalism: Some Shifting Parameters, New York Law School Law Review 50 (2006): 635-98:
This article examines the enduring question of the nature of the American federalism and its supposed role as a constitutional norm. It argues that federalism has not, and cannot, provide specific normative directions for resolving contested constitutional issues. The article stresses the fact that American understandings of the nation’s constitutional federalism were from the beginning sharply contested, and it explores the ways in which those understandings have remained sharply contested over the centuries. In particular, it traces changes that have occurred in ideas about the role of the Supreme Court, the “values” of federalism, the nature of federalism as a structure of government, and the very nature and meaning of the Constitution itself. The article concludes that “originalist” ideas misunderstand the nature of the federal system and that no “originalist” theory can either capture the reality of American constitutional federalism or provide specific normative direction to resolve the contemporary problems it confronts. Rather, American constitutional federalism must be understood as an evolving national enterprise guided generally by certain basic, if contested, values and principles and that those values and principles endure and give the system its true meaning.

Monday, June 22, 2015

Cheffins on Corporate Governance Since the Sixties

Brian R. Cheffins, University of Cambridge Faculty of Law, has posted Corporate Governance Since the Managerial Capitalism Era:
Today’s public company executives face a considerably different set of opportunities and constraints than their counterparts from the managerial capitalism era, which reached its apex in the 1950s and 1960s. The growing prominence of corporate governance played a significant role in this process. This paper explores these developments, taking into account in so doing prominent corporate scandals occurring in the first half of the 1970s and early 2000s, the 1980s “Deal Decade”, the “imperial” chief executive phenomenon and changes to the roles played by directors and shareholders of public companies.

ASLH 2015

We’ve been remiss in not mentioning sooner that pre-registration is open for the 2015 annual meeting of the American Society for Legal History, to be held October 29-November 1, in Washington, DC.  The meeting hotel is the Hyatt Regency Washington on Capitol Hill.  The plenary reception will be held at the Supreme Court of the United States.  The ASLH website adds: “Please note that hotel bookings must be made by September 27, 2015, which is also the date when pre-registration will end.”

New Release: Ziegler's "After Roe"

Just out from the Harvard University Press is After Roe: The Lost History of the Abortion Debate, by Mary Ziegler, the Stearns Weaver Miller Professor of Law at the Florida State University College of Law:
Forty years after the U.S. Supreme Court handed down its decision legalizing abortion, Roe v. Wade continues to make headlines. After Roe: The Lost History of the Abortion Debate cuts through the myths and misunderstandings to present a clear-eyed account of cultural and political responses to the landmark 1973 ruling in the decade that followed. The grassroots activists who shaped the discussion after Roe, Mary Ziegler shows, were far more fluid and diverse than the partisans dominating the debate today.

In the early years after the decision, advocates on either side of the abortion battle sought common ground on issues from pregnancy discrimination to fetal research. Drawing on archives and more than 100 interviews with key participants, Ziegler’s revelations complicate the view that abortion rights proponents were insensitive to larger questions of racial and class injustice, and expose as caricature the idea that abortion opponents were inherently antifeminist. But over time, “pro-abortion” and “anti-abortion” positions hardened into “pro-choice” and “pro-life” categories in response to political pressures and compromises. This increasingly contentious back-and-forth produced the interpretation now taken for granted—that Roe was primarily a ruling on a woman’s right to choose.

Peering beneath the surface of social-movement struggles in the 1970s, After Roe reveals how actors on the left and the right have today made Roe a symbol for a spectrum of fervently held political beliefs.
Reviewers say:
“An original and compelling history that complicates our understanding of abortion politics in important ways. Ziegler has written a real insiders’ account—rich and textured—that comprehensively traces the history of social movements’ response to Roe v. Wade, explaining how they developed, navigated internal tensions and external pressures, and made strategic and ideological choices and compromises. She demonstrates that the pro-life/pro-choice split was never inevitable; instead, it emerged in response to a variety of contingencies, including changing political conditions.”—Sara Dubow, author of Ourselves Unborn: Fetal Meanings in Modern America
“Ziegler’s compelling book challenges conventional wisdom about Roe v. Wade’s short- and long-term consequences for social movements and the law. Using a wide range of sources, she shows how fluid the abortion debate remained in the decade following Roe, and details how activists on both sides responded in complicated ways to the decision and to other political constraints and opportunities in the 1970s and early 1980s. After Roe makes important and original contributions to constitutional law and legal history, and to the study of women, gender, and sexuality.”—Serena Mayeri, author of Reasoning from Race: Feminism, Law, and the Civil Rights Revolution
 TOC is here; an excerpt from the foreword, here.

Sunday, June 21, 2015

Sunday Book Roundup

There's no shortage of book reviews to read this weekend! To start with, The New Rambler reviews Naomi Murakawa's The First Civil Right: How Liberals Built Prison America (Oxford University Press).
"Naomi Murakawa, a political scientist and associate professor of African American Studies at Princeton, has written an interesting book that blames both features on American liberals—in particular Harry Truman, Ted Kennedy, and Bill Clinton (and Lyndon Johnson and Joe Biden)—and American liberalism. In The First Civil Right: How Liberals Built Prison American, Murakawa takes as her target a conventional wisdom that explains the rise of mass incarceration as a victory of Republican law-and-order over Democratic civil rights. Rather, she argues, starting right in her subtitle, “liberals built prison America.” It was liberals, she claims, who “established a law-and-order mandate: build a better carceral state, one strong enough to control racial violence in the streets and regimented enough to control racial bias in criminal justice administration.” (page 3)"
Michael Signer's Becoming Madison: The Extraordinary Origins of the Least Likely Founding Father (PublicAffairs) is excerpted in The Daily Beast.

H-Net adds a review of The Street Politics of Abortion: Speech, Violence, and America's Culture Wars by Joshua C. Wilson (Stanford University Press).
"Firstly, he attempts to develop these stories through the lens of "movement-countermovement" analysis whereby he analyzes "how directly competing movements interact with one another—and possibly with a more traditional entity like the state—in a dynamic process where each movement in part creates the conditions within which the other acts" (p. 10). At the same time, he sets out to understand what we can learn about these stories regarding questions raised by traditional "legal consciousness" research, including "determining if and how law mattered for those involved in these disputes; how their stories may or may not reproduce, challenge, or amend legal power and state authority; ... and how their conceptions of law affect the ongoing politics of abortion" (p. 111). Lastly, Wilson includes the perspective of a group of participants in these legal conflicts that is often explicitly excluded in traditional legal consciousness research: state legal insiders or legal "elites," specifically lawyers, legislators, and amicus brief authors. Overall, this book achieves the ambitious goals it sets for itself in that it engages with and furthers two types of socio-legal-historical research: movement-countermovement literature and legal consciousness literature. Nonetheless, certain aspects of the conclusions reached by Wilson raise questions and leave room for further analysis."
More on culture wars and rights can be found in a review of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars (University of Chicago Press) in the Washington Independent Review of Books.

Still yearning for yet more Magna Carta talk? The Los Angeles Review of Books has a multi-book review including Magna Carta and the Rule of Law by Roy Edmund Browned II, Andrea Martinez, Daniel Barstow Magraw (American Bar Association); In the Shadow of the Great Charter: Common Law Constitutionalism and the Magna Carta by Robert M. Pallitto (University Press of Kansas); King John and the Road to Magna Carta by Stephen Church (Basic); and Magna Carta: The Foundation of Freedom 1215-2015 by Nicholas Vincent (Third Millennium).
"The deeper that one goes in studying Magna Carta, beyond the uncritical and largely superficial treatment it receives in high school and popular culture, the more one begins to understand that it is the myth and the reinterpretation of Magna Carta over time that have influenced later generations far more than what actually happened in June 1215."
Also in the LA Review of Books is a review of Steve Inskeep's Jacksonland: President Andrew Jackson, Chief John Ross, and a Great American Land Grab (Penguin).

History Today reviews Don H. Doyle's The Cause of All Nations: An International History of the American Civil War (Basic).

The New York Review of Books adds a couple of reviews of interest, including one of Chen Guangcheng's The Barefoot Lawyer: A Blind Man's Fight for Justice and Freedom in China (Henry Holt).

There's also a multi-book review titled, "Our Universities: The Outrageous Reality," that takes up many works, including, Degrees of Inequality: How the Politics of Higher Education Sabotaged the American Dream by Suzanne Mettler (Basic); The Student Loan Mess: How Good Intentions Created a Trillion-Dollar Problem by Joel Best and Eric Best (University of California Press); Financing American Higher Education in the Era of Globalization by William Zumeta, David W. Breneman, Patrick M. Callan, and Joni E. Finney (Harvard Education Press); Locus of Authority: The Evolution of Faculty Roles in the Governance of Higher Education by William G. Bowen and Eugene M. Tobin (Princeton University Press); Paying for the Party: How College Maintains Inequality by Elizabeth A. Armstrong and Laura T. Hamilton (Harvard University Press); and Aspiring Adults Adrift: Tentative Transitions of College Graduates by Richard Arum and Josipa Roksa (University of Chicago Press). Here's a bit of the review:
"All in all, despite an emerging recognition that we must change course, the story told in the books under review is a dispiriting one. Mettler attributes the decline of educational opportunity since the 1980s to a failure of “upkeep,” by which she means the failure of government to renew and adapt policies from the past in order to advance their original purposes in the present and future. This strikes me as a generous explanation. The truth may be uglier. Perhaps concern for the poor has shriveled not only among policymakers but in the broader public. Perhaps in our time of focus on the wealthy elite and the shrinking middle class, there is a diminished general will to regard poor Americans as worthy of what are sometimes called “the blessings of American life”—among which the right to education has always been high if not paramount."
In The New York Times, Ryan Gatos's novel, All Involved (Harper Collins), is reviewed.
"Gattis’s premise is provocative: In the six days following the verdict of April 29, 1992, that acquitted three white police officers of using excessive force on Rodney King, the Los Angeles Police Department was so focused on the most violent manifestations of civil unrest that much of the rest of the city went unregulated. “All Involved” consists of 17 different perspectives, a majority of which issue from characters who have all been involved in some manner of illegal activity. As their neighborhood, Lynwood, plunges into general lawlessness because the police are struggling elsewhere, the path becomes clear for these individuals to go extra rogue, settling scores that mostly revolve around revenge and betrayal."
With Politics & Prose Joseph Ellis discusses The Quartet: Orchestrating the Second American Revolution, 1783-1789 (Knopf).

Geraldo L. Cadava discusses his Standing on Common Ground: The Making of a Sunbelt Borderland (Harvard University Press) with New Books in American Studies.

The New York Times has curated a list of fiction and nonfiction works for those interested in "Reading About Racial Boundaries."