Wednesday, April 30, 2014

Lee on the Three Lives of the Alien Tort Statute

Thomas H. Lee, Fordham University School of Law, has posted The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations, which is forthcoming in the Notre Dame Law Review 84 (2014).  Here is the abstract:
This Article explains how the Alien Tort Statute (ATS) began in the late eighteenth century as a national security statute that the First Congress and early federal district judges saw as a way to afford damages remedies to British merchants, creditors, and other subjects whose persons or property were injured under circumstances in which treaties or the law of nations assigned responsibility to the United States. Torts committed within the United States by private American citizens were the most likely such circumstances. The ultimate aims of the statute were to avoid renewed war with Great Britain and the other European powers and to encourage commerce and trade with the same. Two centuries later, the ATS was reborn as an international human rights statute at a time when the United States had become a global superpower with an global human-rights agenda during the administration of President Jimmy Carter. Now that the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum Co. has undermined the international human rights vision of the ATS, this Article suggests that the statute be used once again as a way to afford aliens money damages when they suffer torts under circumstances where the United States bears sovereign responsibility under contemporaneous international law.

Legal History Review 81:3-4

The blog of the European Society for Comparative Legal History has the TOC for Tijdschrift voor Rechtsgeschiedenis-Revue d'Histoire du Droit-The Legal History Review, volume 81 (2013), Nos. 3-4.

Ross on Prison Museums

“Dark tourism” indeed!  Jeffrey Ian Ross, University of Baltimore Law School, has posted Touring Imprisonment: A Descriptive Statistical Analysis of Prison Museums, which previously appeared in Tourism Management Perspectives 4 (2012): 113-118.  Here is the abstract:    
Credit: Texas Prison Museum
This paper briefly reviews the scholarly literature about jail and prison museums. Then it presents the rationale and methods for developing a database on these worldwide museums (n=95). Data on 13 variables were collected. The study reviews the results of the data collected on 10 of the variables that were coded, and discusses the implications of the data. The results indicate that the majority of prison museums are located in advanced industrialized countries, with the United States having the largest number. Most of the prison museums in the United States are in California, Colorado, and Texas. Although one of the museums covered by the database was opened as a correctional facility in 1860, the majority of museums worldwide operated as jails and prisons over the past 150 years and were converted into prison museums after the 1960s. The fact that the United States has the greatest number of prisons reinforces both the reality and the perception of this country as one of the most punitive countries in the world.

Nicoletti to UVA Law

The University of Virgina Law School has issued an exciting hiring announcement:
Cynthia Nicoletti, an expert in legal history who specializes in the Civil War and Reconstruction, will join the University of Virginia School of Law in the fall as an associate professor of law.
Nicoletti is already a familiar face at the University. This year she taught four courses at the Law School, including Civil War and the Constitution, as a visiting law professor from Mississippi College. In addition, she earned her bachelor's, master's and doctoral degrees at UVA. (She earned her J.D. at Harvard Law School.)
"The law has always been at the center of my interest in the Civil War, and my interest in the Civil War is why I came to the University of Virginia," she said. "I loved going to school here, and it's really like a homecoming to be back."
Nicoletti's scholarship and teaching take a fresh look at some commonly held historical assumptions.
"If you know anything about the legal history of the Civil War, you tend to know two things: The war determined that secession was illegal, and that it ended slavery," she said. "I'm interested in questioning both of those conclusions."
Nicoletti is currently at work on a book based on her doctoral dissertation, which won the American Society for Legal History's William Nelson Cromwell Prize in 2011. The paper examines the issue of whether secession could have been legally valid.
Read on here.

Congratulations to Cynthia Nicoletti and to UVA Law!

The Civil Rights Act of 1964: The Miller Center Symposium

[On Friday, May, 2 from 9:00AM - 3:00PM, the Miller Center for Public Affairs at the University of Virginia will be hosting "The Life of the Law: A Symposium Commemorating the 50th Anniversary of the Civil Rights Act of 1964."  The first two of its three sessions will be webcast live.  Full schedule and more information here.]

This symposium will commemorate the 50th anniversary of the Civil Rights Act with an exploration of the Act’s origins, impact, and significance within several broad contexts, including the social movements and public policy transformations that the Act symbolized, promoted, and institutionalized.

Civil Rights Revolution and Reform: What the White House Tapes Reveal

John Kennedy proposed the civil rights bill and Lyndon Johnson ushered the Act through Congress amidst militant civil rights protests and violent white reaction nation-wide, at the height of the Cold War, with a divided and “deadlocked” Congress. What can the Miller Center’s Presidential Recordings Project reveal about presidential leadership in this period of crisis and opportunity? Were cold war pressures – to protect America’s image of free world leadership – in fact as significant as many argue, especially in light of the compelling moral and domestic political pressures leaders faced? Perhaps more importantly, how did each Administration define and try to shape the meaning of civil rights and the relative strength of the bill’s and the Act’s various titles?  How did these Administrations see the relationship between civil rights and the war against what JFK called “social and economic oppression?” What qualities of presidential leadership are evident in the two Administration’s civil rights tapes?

Thomas Jackson, University of North Carolina at Greensboro and Virginia Foundation for the Humanities
Kent Germany, University of South Carolina
Moderator: Claudrena Harold, University of Virginia Department of History

Cold War Civil Rights and Human Rights

Scholars have recently explored from many angles the intersection of domestic and international politics and policies during the civil rights revolution. This was a time when anti-colonial movements inspired U.S. activists, when widely publicized civil rights crises became acute cold war foreign policy headaches for Presidents, when defenders of racial hierarchy world-wide incorporated anti-Communism into their arsenals of resistance. Our invited scholars approach these debates from fresh perspectives that examine how the United Nations became a crucial site of contestation over the meaning and enforcement of civil rights and human rights. What can attention to cold war politics, global freedom movements, and debates in the UN about human rights tell us about the shape and scope, the successes and failures of the US rights agenda?

Carol Anderson, Professor of African American Studies and History, Emory University
Timothy Lovelace, Associate Professor, Indiana University Maurer School of Law
Moderator: William Hitchcock, UVa Department of History and Miller Center

Title VII and the Promise of Equal Employment

Title VII of the Act prohibited discrimination in employment on the basis of race, color, religion, sex, and national origin. Since 1964, thousands of cases have been litigated under Title VII. As a variety of grassroots organizations, lawyers, administrators in the EEOC, and judges have worked to implement that prohibition, they have found different opportunities and constraints. To what extent has the provision transformed the American workplace? What obstacles have claims under Title VII faced? How has both changing constitutional doctrine and changing social and political contexts affected both the nature of the claims brought and the judicial responses to them?

Serena Mayeri, University of Pennsylvania Law School
Phil Tiemeyer, Assistant Professor of History, Philadelphia University
Robert Samuel Smith, Associate Professor of History, University of Wisconsin-Milwaukee
\Moderator: Risa Goluboff, Professor of Law and History, University of Virginia

Tuesday, April 29, 2014

Garrow on the Writing of Roe v. Wade

David J. Garrow, University of Pittsburgh School of Law, has posted How Roe v. Wade Was Written, which also appears in the Washington and Lee Law Review 71 (2014): 893-924.  Here is the abstract:    
Justice Harry A, Blackmun (LC)
Let me begin with one sentence that Justice Harry A. Blackmun uttered in 1987: “Roe against Wade was not such a revolutionary opinion at the time” that it was handed down in January 1973, and in that statement Justice Blackmun was indisputably correct.

In early May 1971, the Supreme Court agreed to hear Roe v. Wade from Texas and Doe v. Bolton from Georgia. Both had been filed in early 1970 and had then come before special three-judge district courts from which direct appeal to the Supreme Court was possible following the panels’ denials of injunctive relief. Both panels had nonetheless ruled against the existing Texas and Georgia abortion statutes, and with a plethora of other abortion cases already docketed before the High Court — including ones from Louisiana, Missouri, and Illinois — and others known to be looming, it was unsurprising that five Justices — Douglas, Harlan, Brennan, White, and Marshall — voted to accept both Roe and Doe for argument on the merits come October Term 1971.

It is ironic that Harry Blackmun, who has gone down in history first and overwhelmingly foremost as the author of Roe v. Wade, privately opposed making the case’s holding anywhere near as extensive as his final opinion actually came to be. Equally notable, a strong and poignant counterfactual argument can be made that an actual majority of the Roe Court — Blackmun, William O. Douglas, the reluctant Warren Burger and the two actual dissenters, Byron White and William Rehnquist — would have preferred a holding that reached only to the end of the first trimester. But, instead, the more strongly articulated preferences of Lewis Powell, William Brennan, Thurgood Marshall’s chambers, and Potter Stewart decisively prevailed as Blackmun, encouraged also by his clerk Randall Bezanson, moved to adopt U.S. District Judge Jon O. Newman’s influential emphasis in a just-decided Connecticut abortion case, Abele v. Markle, concerning the decisiveness of fetal viability. That a supposedly conservative, southern appointee of Republican President Richard M. Nixon, in tandem with a Roman Catholic justice named to the Court by Republican President Dwight D. Eisenhower, made Roe v. Wade and Doe v. Bolton dramatically more far-reaching than they would have been had Harry Blackmun adhered to the view of pregnancy he brought to those 1972 discussions further underscores how ironic indeed it is that Roe and Doe came to be what they were on January 22, 1973.

The Illustrious Alumni of Albany Law

Tomorrow, from 5:30 - 7:30 PM, Albany Law School will be hosting a panel on Illustrious Alumni, with a reception to follow (and CLE credit available): 
This program, created with our Trustee, Penelope Andrews, Dean of Albany Law School, is the inaugural program in a new series on the contributions of Upstate New York law schools to our legal history. The series will highlight the contributions of alumni in events hosted at the various campuses.

The inaugural program will feature talks on four prominent alumni of Albany Law School:

Robert H. Jackson, United States Supreme Court Justice
by Professor John Q. Barrett, Professor of Law, St. John's University & Elizabeth S. Lenna Fellow, The Robert H. Jackson Center

David Josiah Brewer, United States Supreme Court Justice
by Dean Alicia Ouellette, Associate Dean for Academic Affairs and Intellectual Life & Professor of Law, Albany Law School

James Campbell Matthews, First African-American judge in New York
by Hon. Randolph F. Treece, U.S. Magistrate Judge for the Northern District of New York

Greene Bronson, Chief Judge of the New York Court of Appeals
by Professor Vincent M. Bonventre, Professor of Law, Albany Law School

Conversation with Presenters
Moderated by Hon. Albert M. Rosenblatt, President, The Historical Society of the New York Courts

Brown-Nagin to Deliver Fulton Lecture

On Thursday, May 8, LHB Blogger Tomiko Brown-Nagin, Harvard Law, will deliver this year's Fulton Lecture in Legal History:at the University of Chicago Law School.  She will speak on The Honor and Burden of Being First: Judge Constance Baker Motley at theBar and on the Bench:
Professor Brown-Nagin’s talk will examine the legacy of The Honorable Constance Baker Motley—and break new ground in the study of civil rights, women’s rights, and the legal profession. A protégée of Thurgood Marshall, Motley litigated in southern courtrooms during the 1940s and 1950s, when women lawyers scarcely appeared before the bar.  She captivated onlookers who had rarely seen a woman or a black lawyer, much less the extraordinary combination—a black woman lawyer.

In 1966 Motley then became the first African-American woman appointed to the federal judiciary.  After a long confirmation battle, she ascended to the United States District Court in New York.  In her new post, Motley sometimes ruled as segregationists had feared and as liberals had hoped. Typically, Motley deferred to constraints of the judicial role. Therefore, Professor Brown-Nagin  concludes, Motley’s judicial career demonstrates that—more often than not and regardless of who presides—courts preserve hierarchy.
It'll a big week for legal historians at Chicago Law.  Mary Bilder, Boston College Law, will appear in the Constitutional Law Workshop on May 1, and Kjell A. Modeer, University of Lund, will be in the Public Law and Legal Theory Workshop on May 6.

Schmidt on the Exatrajudicial Speech of Supreme Court Justices

Christopher W. Schmidt, Chicago-Kent College of Law, has posted Beyond the Opinion: Supreme Court Justices and Extrajudicial Speech, which appeared in Chicago-Kent Law Review 88 (2013): 487-526.  Here is the abstract:
This Article examines how and why Supreme Court Justices venture beyond their written opinions to speak more directly to the American people. Drawing on the history of the post-New Deal Court, I first provide a general framework for categorizing the kinds of contributions sitting Justices have sought to make to the public discourse when employing various modes of extrajudicial speech — lectures, interviews, books, articles, and the like. My goal here is twofold: to provide a historically grounded taxonomy of the primary motivations behind extrajudicial speech; and to refute commonplace claims of a lost historical tradition of Justices refraining from off-the-bench commentary about their work. I then turn to an analysis of the risks and opportunities for Justices who go beyond their written opinion. I argue that our understanding of the extrajudicial contributions of the Justices has too often been clouded by idealized, historically inaccurate assumptions about the Court and by exaggerated assessments of the potential costs of substantive, controversial extrajudicial speech for the Court’s legitimacy. Compared to the typical Supreme Court written opinion, extrajudicial speech allows for, even encourages, more personalized, more accessible, and potentially more effective pathways of communication with a general audience. By identifying the unique value of extrajudicial speech, I intend this Article to serve as an invitation for a more realistic and constructive discussion about the role of Supreme Court Justices in our constitutional democracy.

Monday, April 28, 2014

Congress and Reconstruction, and More in Washington, DC

Amanda Moniz, the Assistant Director of the National History Center, has commenced a much-needed service for Washingtonians interested in history by gathering news of public historical events in the capital.  To contribute, email her at

Of note for legal historians are two “Researcher Talks” at the National Archives, which are held at noon in the Research Center, G-25, Archives 1.  On May 1 the speaker is Nancy Beck Young, who will discuss Why We Fight: Congress and the Politics of World War II.  On May 5 Romain Huret, Associate Professor of American History at the University of Lyon, will discuss American Tax Resisters.  For more information, please call 202-357-5350.

But the main event this week is A Just and Lasting Peace”: Ending the Civil War, the 2014 United States Capitol Historical Society Annual Symposium, to be held from 8:30 AM to 5:00 PM on Friday, May 2, 2014, in the Dirksen Senate Office Building, Room G-50.  The speakers are Gregory P. Downs, Carole Emberton, Paul Finkelman, Matthew Pinsker, Anne Sarah Rubin, Michael Vorenberg, and Peter Wallenstein.  I'll note the papers of Professor Finkelman and Vorenberg below.  The rest are here; other information, including that relating to registration here.
“Henry Wirz and Concept of War Crimes: Vengeance or Justice," by Paul Finkelman

“Judgment at Washington: Lew Wallace, Henry Wirz, and the Elusive Quest to End the Civil War," by Michael Vorenberg

Justice Gabriel Duvall Will You Please Go Now!

Ross E. Davies, George Mason University School of Law, has posted Recognition and Volition: Remembering the Retirement of Justice Gabriel Duvall, which also appears in 4 Journal of Law 1 (2014).  Here is the abstract:
Gabriel Duvall (SCHS)
When Gabriel Duvall resigned from the U.S. Supreme Court in January 1835, he became its first conventional retiree – the first Justice to voluntarily leave the Court after making a career of it. Everyone before Duvall had either died in office or left after serving briefly (anywhere from four months to five years). Duvall served for more than 23 years. By leaving while still alive, after long service, and at an advanced age (he was 82), Duvall: (a) gave his fellow Justices their first occasion to publicly salute a departing colleague who had devoted himself to the Court, and (b) gave himself a dignified, respectable ending to a long and successful career in the law. But his colleagues did not rise to the occasion, and history has not granted him that ending. This little article is an attempt to partially offset those defects.
Apologies to Dr. Seuss!

Chinn on the Ideology Origins of Brown v. Board of Education

Stuart Chinn, University of Oregon School of Law, has posted The Ideology Behind Brown v. Board of Education: Political Parties and 'Jurisprudential Bundling,” which is to appear in the Denver University Law Review in 2015.  Here is the abstract:    
Brown encompassed the start of a transformative period of political change, where the federal judiciary and Congress succeeded in dismantling Jim Crow. Yet, the question of why Brown occurred, when it did, continues to evade a fully satisfying answer despite all of the scholarly commentary devoted to it.

This paper illuminates a set of ideological influences behind the Brown ruling that help explain why the Court took the direction that it did, when the opportunity to do so arose. My claim is that the result in Brown might be partly understood as emanating from certain core elements of American political party ideology. These four elements were: a) the acceptance of a "class political" ideal, or the belief that law and public policies should promote the interests of certain social groups; b) the acceptance of a non-southern orientation toward class politics; c) a commitment to federal governmental statism, or the use of federal governmental power to promote desirable social goals; and d) a principled acceptance of the Supreme Court fulfilling, at times, a "rationalizing" function with respect to established legal doctrines.

These four ideas were core components of New Deal Democratic Party ideology that, I argue, provided a conceptual foundation for both the Brown decision in 1954 and the New Deal Democratic commitment to a form of economic liberalism in the 1930s. These four ideological elements thus allowed New Deal economic liberalism to be "jurisprudentially bundled" with racial liberalism among the Brown Court members.

After laying out these four ideological elements, I discuss several significant implications that stem from illuminating the links between these two historical periods. The most important implication is my proposal of "jurisprudential bundling" as a general theory of judicial behavior and constitutional development. The paper concludes by suggesting, more broadly, how ideas are capable of exerting autonomous influence upon the development of constitutional doctrine.
Hat tip: Legal Theory Blog

Journal of Supreme Court History 38:3

Although we recently posted the TOC for 39:1 of the Journal of Supreme Court History,  until now we somehow missed 38:3.  Here it is:

Mark R. Killenbeck, A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States

Jonathan O'Neill, Property Rights and the American Founding: An Overview

James W. Ely, Jr., Property Rights and the Supreme Court in the Gilded Age

Richard A. Epstein,  The History of Public Utility Rate Regulation in the United States Supreme Court: Of Reasonable and Nondiscriminatory Rates

Angela R. Riley, The History of Native American Lands and the Supreme Court

Marjorie Heins, "Priests of our Democracy": The Origins of First Amendment Academic Freedom

Deborah Ann Roy, The 1963 Good Friday Parade in Birmingham, Alabama: Walker v. City of Birmingham (1967) and Shuttlesworth v. City of Birmingham (1969)

Lyle Denniston, Anthony Lewis: Pioneer in the Court's Pressroom

Gordon on the First Disestablishment

Sarah Barringer Gordon, Penn Law, has published The First Disestablishment: Limits on Church Power and Property Before the Civil War in the University of Pennsylvania Law Review162 (2014): 307-72.  Here is the abstract:
The rights and responsibilities of religious institutions are hotly debated in the early twenty-first century. Liberal separationists argue that religious organizations should be subject to secular laws regarding labor, health care (including access to birth control), child protection, and more. Their opponents counter that the ideals of “church autonomy” or “the freedom of the church” exempt religious organizations from legal, administrative, or legislative oversight. The standoff is exacerbated by the opposing interpretations of history on offer. Former presidential candidate, talk show host (and historian) Newt Gingrich has called the Affordable Care Act’s requirement that all secular employers—regardless of their owners’ religious affiliations and convictions—provide birth control insurance coverage for employees “the most outrageous assault on religious freedom in American history” and asserted that “every time you turn around the secular government is shrinking the rights of religious institutions in America.”

From the other side of the spectrum, the invocation of history is equally strident. For example, Americans United for Separation of Church and State has battled against the claim that the government has undermined church autonomy. From this group’s perspective, strict separation of church and state is “good for America” and “good for religion” because it prohibits government involvement with religious organizations. American history, they argue, demonstrates that Presidents and right-thinking Americans alike have always supported their interpretation of disestablishment.

This back-and-forth highlights the sharply differing views among activists, scholars, and politicians regarding the tradition of special deference (or lack thereof) given to religious organizations. The Hobby Lobby case, set for argument at the Supreme Court in early spring 2014, is just the latest incarnation of these battles. The question is as old as the nation, however. The rights of individuals versus organizational rights have been essential to the development of the law of religion in America. The place of religious organizations was keenly debated as a key component of disestablishment. Yet we know almost nothing about the experience of such organizations in our nation’s history.

Sunday, April 27, 2014

Sunday Book Roundup

The Times Literary Supplement, in a review titled "Disappointed democracy," reviews two books, David Runciman's The Confidence Trap: A History of Democracy in Crisis from World War 1 to the Present  (Princeton University Press) and Steven Beller's Democracy: All that Matters (Hodder and Stoughton).

HNN reviews Selected Speeches and Writings of Theodore Roosevelt, edited by Gordon Hutner (Vintage).
"Hutner’s brief, germane introductions  to each chapter plus his deft selections of TR’s output, show him as an  inquisitive polymath, a prolific biographer (Thomas Hart Benton and Gouverneur Morris), historian (The Naval War of 1812) and his six-volume The Winning of the West, which took him five years to research and write and which Hutner rightly calls “magisterial.”"
George Kennan's personal writings--edited by Frank Costigliola in The Kennan Diaries (Norton)--are reviewed in the New Republic.

In case you haven't read the many reviews of Thomas Piketty's Capital in the Twenty-First Century, translated by Arthus Goldhammer (Belknap Press), MIT professor emeritus Robert Solow has put "Everything you need to know" about the book in a New Republic piece titled "Thomas Piketty is Right."

Readers can put down their reading glasses and listen to an interview with Miriam Kingsberg about her new book Moral Nation: Modern Japan and Narcotics in Global History (University of California Press) over at New Books in History.

H-Net posts a couple of new reviews this week. There is a review of a collection of essays, Public Health in the British Empire: Intermediaries, Subordinates, and the Practice of Public Health, 1850-1960 edited by Ryan Johnson and Amna Khalid (Routledge), as well as a review of Miles Orvell's The Death and Life of Main Street: Small Towns in American Memory, Space and Community (University of North Carolina Press).

Eric Arnesen has a review of Clay Risen's The Bill of the Century: The Epic Battle for the Civil Rights Act (Bloomsbury) in The Washington Post. Arnesen concludes,
"“The Bill of the Century” is an appropriately celebratory account that is indispensable reading for understanding what civil rights activists and politicians were up against in their campaign to topple Jim Crow. The act may have been the 20th century’s most important legislative achievement, but it was only one step, albeit an important one, in a much longer process that still continues."
Also in The Washington Post, Johnathan Yardley reviews Ed Offley's The Burning Shore: How Hitler's U-Boats Brought World War II to America (Basic).

There is also a nice review of Theodore Rosengarten's All God's Dangers: The Life of Nate Shaw (Univ. of Chicago Press, 1974), a oral history of a black Alabama sharecropper. Reviewer Dwight Garner writes,
"I wish I could say that, this early spring, I read “All God’s Dangers” in one sitting. It’s not that kind of book. It’s a meandering thing; its pleasures are intense but cumulative. This book rolls. But it is superb — both serious history and a serious pleasure, a story that reads as if Huddie Ledbetter spoke it while W. E. B. Du Bois took dictation. That it’s been largely forgotten is bad for it, but worse for us."

The New York Times adds a review of Jo Becker's Forcing the Spring: Inside the Fight for Marriage Equality (Penguin).

Saturday, April 26, 2014

Weekend Roundup

  • From the Yale Law Library Rare Book Blog: more highlights from the Lillian Goldman Library's Taussig Collection (this post features justice of the peace manuals).
  • Policy History Conference goers be advised that registration and hotel rates go up May 1.  Also, the  luncheon speaker on Friday, June 6, will be Steven Pincus, Yale University, on the topic “War and State Formation.”
  • Update. This just in: If you're in Washington on May 3, you can take tea with legal historian Linda Przybyszewski, Notre Dame, at the Willard Intercontinental, in an event co-sponored with famed DC bookstore Politics and Prose.  She will be giving an illustrated talk on her new book, The Lost Art of Dress (Basic Books), which “tells the story of the 'Dress Doctors,' who spoke on radio programs and at clubs all over the country to millions of American women, teaching them how to dress beautifully and thriftily for the 20th century.”  But maybe you should rethink that outfit before you go.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 25, 2014

Deadline Approaching for Gordon's ICH Workshop

[We are moving this up as the deadline of May 1 is approaching.  DRE]

[Sign me up! Our friends at the Institute for Constitutional History have sent us an announcement for the Jordan Saunders Seminar in Constitutional History Interdisciplinary Summer Workshop, entitled “Embedded Histories in Constitutional Argument,” to be taught July 13-18, 2014, in Stanford, California, by Robert W. Gordon of Stanford Law School.  Professor Gordon was the Chancellor Kent Professor of Law and Legal History and Professor of History Emeritus at Yale and a past president of the American Society for Legal History.  His book “on embedded histories in legal argument, Taming the Dragon: Law in History and History in Law, will appear next year.” The announcement explains:]

In judicial opinions, oral advocacy and briefs arguing cases before courts, and in articles and treatises, lawyers use history to connect the past to the present, to show how law and society have evolved from past enactments or cases to the present day. Sometimes these histories are explicit, such as those exploring "original" public meanings of constitutional text, sometimes implicit stories of changing interpretations and social circumstances. This seminar will examine selected fragments of such embedded histories in several areas of constitutional law, including (tentatively): the history of the "ancient [English] constitution" in the legal arguments of American revolutionaries; the history of regulation in constitutional arguments over the police power; the history of the right to bear arms in arguments over the Second Amendment; the history of racial segregation in recent arguments over civil rights; and the history of church-state separation in arguments over the religion clauses.

Participants will receive accommodation at the Munger Graduate Residence on the campus of Stanford Law School and a modest stipend for meals.  Participants will also receive a travel reimbursement up to $250.  Workshop participants are expected to attend all sessions and engage in all program activities. 

The summer workshop is designed for university instructors who now teach or plan to teach courses in constitutional studies, including constitutional history, constitutional law, and related subjects.  Instructors who would like to devote a unit of a survey course to constitutional history are also welcome to apply.  All university-level instructors are encouraged to apply, including adjuncts and part-time faculty members, and post-doctoral fellows from any academic discipline associated with constitutional studies (history, political science, law, anthropology, sociology, literary criticism, etc.).

To apply, please submit the following materials: a detailed résumé or curriculum vitae with contact information; syllabi from any undergraduate course(s) in constitutional studies you currently teach; a 500- word statement describing your interest in both constitutional studies and this workshop; and a letter of recommendation from your department chair or other professional reference (sent separately by e-mail or post). The application statement should address your professional background, any special perspectives or experiences you might bring to the workshop, and how the workshop will enhance your teaching in constitutional studies.

The deadline for applications is May 1, 2014.  Applications should be sent via electronic mail to Successful applicants will be notified soon thereafter.  For further information, please contact:

Maeva Marcus
Director, Institute for Constitutional History
 New-York Historical Society and
The George Washington University Law School
(202) 994-6562

Jones on the Supreme Court's Decision in Schuette: The Problem of Mixed-Race People

Martha S. Jones (University of Michigan) has an opinion piece on CNN that brings her historical research to bear on the Supreme Court's recent decision in Schuette v. Coalition to Defend Affirmative Action. Here's an excerpt from the opening paragraphs:
In Schuette v. Coalition to Defend Affirmative Action, Justice Anthony Kennedy, writing for the plurality, cast doubt upon the court's capacity to deliberate over race cases -- and mixed-raced people were said to be the culprits. 
Kennedy wrote that "not all individuals of the same race think alike." Fair enough. But then he went on to suggest that mixed-race people confound the court's capacity to "define individuals according to race."
. . .  
Kennedy's view feels familiar: There is nothing new about regarding mixed-race people as a problem in the United States.
Read on here.

Deadline Approaching for Oakes and Witt's ICH Seminar

[We are moving this post up, as the deadline of May 1 is approaching.  DRE]

Our friends at the Institute for Constitutional History have announced “Slavery and the Laws of War,” a Jordan Saunders Seminar in Constitutional History to be held for advanced graduate students and junior faculty at the New-York Historical Society this fall.  It will be conducted by two extraordinary scholars.  The first is James Oakes, Distinguished Professor of History and Graduate School Humanities Professor at the Graduate Center of the City University of New York and the author of Freedom National: The Destruction of Slavery in the United States, 1861-1865 and The Scorpion's Sting: Antislavery and the Coming of the Civil War.  The second is John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, whose most recent book Lincoln's Code: The Laws of War in American History, was awarded the 2013 Bancroft Prize.

Here is the ICH’s description of the seminar:
The abolition of slavery and the advent of humanitarian limits in war have long been viewed as two of the great moral accomplishments of modern history. But we are only recently beginning to see how interconnected these two developments really were. How did Enlightenment laws of war affect the way Americans dealt with slavery in wartime? Or is that the wrong question? Should we ask, instead: How did the way Americans dealt with slavery and emancipation in wartime shape their understanding of the laws of war? Do the successes of antislavery help us understand the character of humanitarian constraints in war? And do the considerable failings of those humanitarian constraints in wartime shed light on the limits of Emancipation? Readings and discussions take up these questions by examining early American wars, beginning with the War of Independence and ending with the Civil War and Reconstruction.
The seminar will tale place on Friday afternoons, 2:00-5:00 p.m., September 19, 26, October 10, and 24, at the New-York Historical Society, 170 Central Park West, New York City.

The announcement adds:
The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines.  All participants will be expected to complete the assigned readings and participate in seminar discussions.  Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar.  Please consult with your advisor and/or director of graduate studies about these possibilities.  Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at until May 1, 2014.  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

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

AJLH 54:2

The April 2014 issue (54:2) of the American Journal of Legal History is out.  It consists of “Essays in Honor of Professor Erwin C. Surrency,” who founded the AJLH in 1957 and died in November 2012 at the age of 88.  Here are the articles:

“Virginia Law Reports,” by W. H. Bryson

“Leon A. Berezniak: The Theatrical Counselor,” by Robert M. Jarvis

“ID in the Courts: Anti-Evolutionism for the 21st Century,” by Edward J. Larson

“The Law of Colonial Maryland: Virginia Without Its Grandeur,” by William E. Nelson

“Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625,” by Donald E. Wilkes, Jr.

Thursday, April 24, 2014

Race, Law, and the American State: An Interdisciplinary Symposium

--> From the University of Michigan Program in Race, Law, and History, we have the following event announcement:

Race, Law, and the American State: An Interdisciplinary Symposium
April 26, 2014

1070 South Hall, University of Michigan Law School
Attention to the role of the state in producing racial knowledge, creating racial identities, policing racial boundaries, and distributing resources unequally across racial categories, are just some of the topics currently flourishing in the fields of history, legal studies, and American political development. And new theories of the interaction of race, law, and the state are proliferating at an extraordinary rate. This one-day interdisciplinary symposium will take a close look at new work currently defining the fields at the intersection of Race, Law, and the American State. Our goal is to produce a future research and writing agenda collaboratively.

Matt Lassiter, Associate Professor of History and of Urban and Regional Planning, University of Michigan

Bill Novak, Charles F. and Edith J. Clyne Professor of Law and codirector of the Program in Race, Law & History, University of Michigan Law School
The sessions below are open to the public:
8:15 a.m. Coffee and continental breakfast  

9:00 a.m. Panel I: Historians and the Racial State 
Moderator: Matt Lassiter, University of Michigan 
Nathan Connolly, Johns Hopkins University 
Martha Jones, University of Michigan 
Heather Thompson, Temple University 
Paul Kramer, Vanderbilt University

11:15 a.m. Panel II: Race and American Political Development
Moderator: Mariah Zeisberg, University of Michigan
Commenter: Robert Lieberman, Johns Hopkins University 
Dan HoSang, University of Oregon 
Joe Lowndes, University of Oregon

1:00 p.m. Lunch (provided)
2:15 p.m. Panel III: New Theories of the State 
Moderator: Bill Novak, University of Michigan 
Gary Gerstle, Vanderbilt University 
Stephen Sawyer, American University

Journal of Supreme Court History 39:1

Here, via H-Law, are the articles in the Journal of Supreme Court History, 39:1:

A Better Story in Prigg v. Pennsylvania?
H. Robert Baker

Judicial Modesty in the Wartime Context: Roosevelt v. Meyer (1863)
Dawinder S. Sidhu

Doing Brandeis Justice: the Development of the Liebmann Dissent
Jessie Steffan

Debunking Douglas: The Case Against Writing Both Majority and Minority Opinions
Craig Alan Smith

Supreme Court Messenger, 1977 Term
Thomas G. Snow

The Burger Court and the Conflict Over the Rational Basis Test: The Untold Story of Massachusetts Board of Retirement v. Murgia.
Earl M. Maltz

New Books on Higher Education

Every so often, the Chronicle of Higher Education spotlights "New Books on Higher Education." Here are some items of interest from the most recent list.

Beyond the University: Why Liberal Education Matters, by Michael S. Roth (Yale University Press). The Press explains:
Contentious debates over the benefits—or drawbacks—of a liberal education are as old as America itself. From Benjamin Franklin to the Internet pundits, critics of higher education have attacked its irrelevance and elitism—often calling for more vocational instruction. Thomas Jefferson, by contrast, believed that nurturing a student’s capacity for lifelong learning was useful for science and commerce while also being essential for democracy. In this provocative contribution to the disputes, university president Michael S. Roth focuses on important moments and seminal thinkers in America’s long-running argument over vocational vs. liberal education. 
Conflicting streams of thought flow through American intellectual history: W. E. B. DuBois’s humanistic principles of pedagogy for newly emancipated slaves developed in opposition to Booker T. Washington’s educational utilitarianism, for example. Jane Addams’s emphasis on the cultivation of empathy and John Dewey’s calls for education as civic engagement were rejected as impractical by those who aimed to train students for particular economic tasks. Roth explores these arguments (and more), considers the state of higher education today, and concludes with a stirring plea for the kind of education that has, since the founding of the nation, cultivated individual freedom, promulgated civic virtue, and instilled hope for the future.
Should I Go to Grad School? 41 Answers to an Impossible Question, edited by Jessica Loudis and others (Bloomsbury). A description from the Press:
The decision to attend graduate school is easy for future doctors and lawyers: they must have a professional degree to get started. But for young creative workers, aspiring artists, and intellectuals, grad school is an existential fork in the road. An M.F.A. or a humanities Ph.D. can give you time to invest in studying something you love among like-minded intellectuals and qualify you to teach a new generation of students; but it can also uproot you geographically, expose you to backstabbing competitors, and saddle you with debt. Given the current job market, is grad school really worth it—financially, professionally, and emotionally?

In Should I Go to Grad School?, a wide range of people who lead intellectually and creatively interesting lives—sculptors and philosophers, activists and poets, a cocktail designer and a movie star—tell their own stories about choosing to go to grad school—or steering clear—and what that decision has meant in their lives. They give us an inside look at what grad school today is really like, and share the wisdom they wish they could have had going in. They reflect on their divergent paths to success, and muse about the path not taken.

With contributors including David Orr, James Franco, Simon Critchley, Terry Castle, Sheila Heti, and many more, Should I Go to Grad School? is a must read for anyone seriously considering that titular question.

Wednesday, April 23, 2014

Rohit De to Be Awarded L&SA's Dissertation Prize

Rohit De, Department of History, Princeton University, is a co-recipient of the Law and Society Association’s Dissertation Prize, for "The Republic of Writs: Litigious Citizens, Constitutional Law, and Everyday Life in India (1947-1964)."  Here’s the citation:
Rohit De’s brilliant dissertation "The Republic of Writs: Litigious Citizens, Constitutional Law ,and Everyday Life in India (1947-1964)” is a fascinating, interdisciplinary study of the role of diverse parties in the Indian legal system and their legal consciousness in the period from colonial times to the post-colonial era.  With unusual access to Indian Supreme Court archives, De provides a captivating account of litigation surrounding such issues as commodity controls (e.g., alcohol prohibition laws in Bombay), the cow protection laws in Bitar,  and laws regulating sex work.   This study affords insights into the legal process in India by moving beyond doctrinal analysis to the investigation of how law influences the ways of life of diverse cultural communities.  This magnificent legal history deals with subaltern communities and their ability to maneuver in legal processes, and provides this incisive analysis with great clarity.  It shows that important jurisprudence was sometimes a consequence not of the work of legal elites but rather of diverse marginalized communities seeking justice through legal institutions.  For its scintillating and eloquent cultural analysis, the committee recommends that Rohit De receive the Law and Society dissertation prize.

Parrillo to Be Awarded L&SA's Hurst Award

Former Guest Blogger Nick Parrillo, Yale Law School, has received the J. Willard Hurst Award of the Law and Society Association for his book Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (Yale University Press 2013).  Here is the citation: 
Against the Profit Motive traces the transformation between the late eighteenth century and the early twentieth century in the way public officials were paid. During this period, set salaries, divorced from the profit motive, supplanted alternative forms of income dependent on the delivery of services or the achievement of output.  Through exhaustive and creative archival research, Parrillo uncovers the prevalence in antebellum America of recipients of government services paying government officers a fee (what Parrillo calls a facilitative payment) for the service; in the early period the fees were negotiated by the officer and recipient of services but later were set by statute. He also shows widespread reliance by government on payment of bounties to officials to enforce criminal and civil law and to collect taxes.  Parrillo reveals that facilitative payments fell from favor because the notion that officers should serve their customers was inconsistent with mass democratic politics and interest-group rivalry.  Governments abandoned bounties because they were excessively coercive, failed to secure mass voluntary cooperation, and undercut state legitimacy.  This is a thought-provoking, novel, and magisterial account of the theory and practice of compensation of government officials and public servants and shows how practices that were once considered legitimate and, indeed, desirable to induce careful service became discredited as corrupt.   
The book both recovers and reconstructs an unfamiliar historical world and persuasively explains the emergence of key features of modern governance. Weaving together exhaustive archival research with sophisticated theoretical engagement, the book draws our attention to something familiar -- payment of government officials – and makes the familiar seem surprising.  It shows us how to think anew about this familiar topic by reconstructing the profit motive model of payment.  It explores how our revised understanding of this specialized but important topic sheds light on some of the largest issues in political and legal history, particularly the development of institutional legitimacy in American state-building.  Parrillo easily moves back and forth from the particular to the general. With mastery over impressive swaths of secondary literature in history, political science, and law, Parrillo judiciously and effectively draws on other disciplines to bring insight to historical developments.  This is a book filled with smart observations and insights; it is sprawling in its coverage and its use of archival materials, yet it is meticulously organized and constructed so as to carry the reader through a long period of time and a wide array of government operations.

Tuesday, April 22, 2014

CFP: "Legal Scholarship We Like, and Why it Matters"

Via JOTWELL (which regularly alerts us to terrific legal history scholarship) we have the following call for proposals:
Legal Scholarship We Like, and Why it Matters 
University of Miami School of Law November 7-8, 2014 
JOTWELL, the Journal of Things We Like (Lots), is an online journal dedicated to celebrating and sharing the best scholarship relating to the law. To celebrate Jotwell’s 5th Birthday, we invite you to join us for conversations about what makes legal scholarship great and why it matters.
In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We hope this conference will serve as an answer to those challenges, both in content and by example.
We invite pithy abstracts of proposed contributions, relating to one or more of the conference themes. Each of these themes provides an occasion for the discussion (and, as appropriate, defense) of the scholarly enterprise in the modern law school–not for taking the importance of scholarship for granted, but showing, with specificity, as we hope Jotwell itself does, what good work looks like and why it matters.
I. Improving the Craft: Writing Legal Scholarship
We invite discussion relating to the writing of legal scholarship. 
1. What makes great legal scholarship? Contributions on this theme could either address the issue at a general level, or anchor their discussion by an analysis of a single exemplary work of legal scholarship. We are open to discussions of both content and craft.
2. Inevitably, not all books and articles will be "great". What makes "good" legal scholarship? How do we achieve it?
II. Improving the Reach: Communicating and Sharing
Legal publishing is changing quickly, and the way that people both produce and consume legal scholarship seems likely to continue to evolve. 
3. Who is (are) the audience(s) for legal scholarship?
4. How does legal scholarship find its audience(s)? Is there anything we as legal academics can or should do to help disseminate great and good scholarship? To what extent will the shift to online publication change how people edit, consume, and share scholarship, and how should we as authors and editors react?
III. Improving the World: Legal Scholarship and its Influence
Most broadly, we invite discussion of when and how legal scholarship matters. 
5. What makes legal scholarship influential? Note that influence is not necessarily the same as "greatness". Also, influence has many possible meanings, encompassing influence within or outside the academy.
6. Finally, we invite personal essays about influence: what scholarship, legal or otherwise, has been most influential for you as a legal scholar? What if anything can we as future authors learn from this?

Tushnet on the Roberts Court at BC

At 5:30 today Boston College’s Clough Center for the Study of Constitutional Democracy is sponsoring an author-meets-readers session on In the Balance: Law and Politics on the Roberts Court, by Mark Tushnet, Harvard Law School.  Commentators are Aziz Huq, University of Chicago Law School; Kent Greenfield, BC Law School; and Ken Kersch, Boston College.  The moderator is Katharine Young, BC Law School.  The even will take place at the Boston College Law School’s Barat House.  Space is limited.

Eyer, "Lessons From Sex and Illegitimacy"

Katie R. Eyer (Rutgers School of Law - Camden) has posted "Lessons From Sex and Illegitimacy," which is forthcoming in the UC Davis Law Review. The abstract follows:
We stand at a crossroads in Equal Protection doctrine. Over the last 20 years, the Supreme Court has decided a series of cases in which it has constitutionally invalidated anti-gay discrimination. In each of these cases, the Court has declined to specify its standard of review, and has deployed an approach that is not easily classifiable within its traditional tiered standards of review. Nevertheless, as such decisions have accumulated, it has become clear that they are not simply aberrational deviations from deferential rational basis review; that they mark some form of more systematic development in the Court’s Equal Protection doctrine.

The precise nature of the development marked by the gay rights cases, however, remains far from clear. On the one hand, such cases could be understood as simply precursors to a turn to formal heightened scrutiny for sexual orientation-based classifications; as a mark of the Court’s special solicitude for challenges to discrimination targeting lesbians and gay men. But, such cases can also be understood very differently; as marking broader shifts in the Court’s Equal Protection doctrine, away from its traditional “tiered” approach, and towards a more flexible and robust vision of Equal Protection review.

This bifurcation of possibilities bears remarkable similarities to another historical moment in the Court’s Equal Protection doctrine: the dilemma that the Court faced in mid-1970s regarding how to characterize its early precedents striking down sex and illegitimacy classifications. And yet relatively little scholarship has explored these interconnections, and their potential salience for this contemporary moment in Equal Protection review. This essay seeks to recover this largely forgotten history, and to draw on it in considering the possibilities and risks that may attach to the particular juncture at which we find ourselves vis-à-vis the Court’s Equal Protection doctrine.

What such an inquiry suggests is that the dominant modern understanding of the Court’s minimum tier (rational basis) review—as a shallow and empty form of review, devoid of meaningful scrutiny—is, to some extent, a byproduct of our loss of historical memory. Just like the contemporary gay rights cases, the early sex and illegitimacy cases were not, at the time they were decided, applications of formally heightened review. It was only later—as mid-tier scrutiny became formally institutionalized—that such cases were reimagined as “[h]eightened scrutiny under a deferential, old equal protection guise."

When viewed together with the Court’s contemporary gay rights cases (as well as other, largely forgotten applications of minimum tier review), what this history suggests is that our canonical understanding of minimum tier review is by no means the only vision of Equal Protection review possible. Rather, taking account of the full sweep of the Court’s minimum tier jurisprudence suggests that the Court often applies greater than minimal scrutiny where group or rights-based concerns exist. Retaining this historical memory—regardless of the ultimate outcome of the Court’s gay rights jurisprudence—may help ensure that all groups have access to a more robust and meaningful form of Equal Protection review.
The full article is available here, at SSRN.

Monday, April 21, 2014

Barbas on the Tort of Appropriation of Identity, 1900-50

From Privacy to Publicity: The Tort of Appropriation in the Age of Mass Consumption, by Samantha Barbas, SUNY Buffalo Law School, is out in the Buffalo Law Review 61 (2013): 1119-89.  Here is the abstract:
Around 1900, states began to recognize a tort of “commercial appropriation of identity,” a branch of the tort of invasion of privacy. Under the appropriation tort, a person whose image or identity had been used in an advertisement without consent could recover damages for dignitary and emotional harms. In the middle of the 20th century, the tort underwent a fundamental shift. Courts reoriented the tort so that it no longer exclusively protected a person’s interest in dignity or “privacy,” but rather the pecuniary interest in the commercial exploitation of one’s identity, or one’s “right of publicity.”

No one disputes that this change occurred. Why it happened has yet to be explained. In this article, I explain appropriation’s transformation from a dignity-based “right of privacy” to a profit-oriented “right of publicity” as a consequence of changing social attitudes towards advertising and mass consumption. At the turn of the 20th century, when frugality, modesty, and self-restraint were prevailing middle-class values, mass consumption and product advertising were widely associated with moral corruption and decay. Insofar as it associated a person with the "taint of commerce," appropriating someone's image and displaying it in an ad without consent subjected that person to public scorn and injured his or her dignity, reputation, and sense of self.

By the 1950s, advertising and mass consumption had been resignified in the popular imagination. In the consumer culture and celebrity culture that America had become, buying consumer goods and being publicly associated with products were no longer viewed as disreputable acts but as potentially desirable and prestigious. The commercialization of personal identity took on an aura of glamour and status. The “right of publicity” eclipsed the “right of privacy” when modern consumer culture came to see loss of profit as the real injury to be had from the unauthorized commercial use of one’s image, rather than harm to one's dignity or reputation.

New Release: Farganis and Wedeking, "Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade"

New from the University of Michigan Press: Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade (March 2014), by Dion Farganis (Elon University) and Justin Wedeking (University of Kentucky). The Press explains:
Critics claim that Supreme Court nominees have become more evasive in recent decades and that Senate confirmation hearings lack real substance. Conducting a line-by-line analysis of the confirmation hearing of every nominee since 1955—an original dataset of nearly 11,000 questions and answers from testimony before the Senate Judiciary Committee—Dion Farganis and Justin Wedeking discover that nominees are far more forthcoming than generally assumed. Applying an original scoring system to assess each nominee’s testimony based on the same criteria, they show that some of the earliest nominees were actually less willing to answer questions than their contemporary counterparts. Factors such as changes in the political culture of Congress and the 1981 introduction of televised coverage of the hearings have created the impression that nominee candor is in decline. Further, senators’ votes are driven more by party and ideology than by a nominee’s responsiveness to their questions. Moreover, changes in the confirmation process intersect with increasing levels of party polarization as well as constituents’ more informed awareness and opinions of recent Supreme Court nominees.
More information is available here.

Sunday, April 20, 2014

Sunday Book Roundup

Continuing with works published this year to mark the 50th anniversary of the Civil Rights Act, The Washington Post reviews Todd S. Purdum's An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (Holt). An excerpt can also be found here on NPR. Of the book, the Post writes,
"Probably “An Idea Whose Time Has Come” will be of most use to readers who were too young to appreciate what happened in Washington in 1964 (as indeed was Purdum, who was born in 1959) or who came along well after it had receded into dim memory, which is what most American historical memory tends to do anyway." 
It's also been 50 years since Rachel Carson's death in 1964, and her life and writings are celebrated by both the New Statesman, which discusses her "sea trilogy" here, and HNN, which has a review of Robert K. Musil's Rachel Carson and Her Sisters: Extraordinary Women Who Have Shaped America's Environment (Rutgers University Press).
"Despite the central role of women in the environmental movement, surprisingly little is known about them. Furthermore, what is known is usually limited to the work of Rachel Carson, whose powerful call to action, Silent Spring (1962), is widely credited with jump-starting the modern environmental movement. But, as shown by Robert Musil’s new book, Rachel Carson and Her Sisters, Carson is merely the most visible of numerous women who have had a powerful impact upon how Americans have viewed the natural environment and sought to preserve it."
Also in biography, the Washington Independent Review of Books reviews Mark Perry's The Most Dangerous Man in America: The Making of Douglas MacArthur (Basic Books).  And Jill Lepore discusses Senator Elizabeth Warren's memoir, A Fighting Chance (Metropolitan Books) in The New Yorker.

Two books on gay rights are featured in reviews this week. History Today reviews David A.J. Richards's The Rise of Gay Rights and the Fall of the British Empire: Liberal Resistance and the Bloomsbury Group (Cambridge University Press). The second book is Jo Becker's Forcing the Spring: Inside the Fight for Marriage Equality (Penguin Press). The New Republic covers the book in a piece here, and The Washington Post reviews the book here.
"This book is not intended to be a tome on gay history, but Becker should brace for accusations of omission, particularly by longtime activists who will feel marginalized. “Forcing the Spring” is a riveting legal drama, a snapshot in time, when the gay rights movement altered course and public opinion shifted with the speed of a bullet train."
The Federal Lawyer has still more reviews online this month. Reviews of Andrew Kahrl's The Land Was Ours: African American Beaches from Jim Crow to the Sunbelt South (Harvard University Press)  and Doris Kearns Goodwin's The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism (Simon & Schuster) can be found here.

An excerpt of Chasing the American Dream: Understanding What Shapes Our Fortunes (Oxford University Press) by Mark Robert Rank, Thomas Hirschl, and Kirk Foster can be found in Salon.

Slate reviews Nikil Saval's "detailed cultural history of how the office grew to become the definitive 20th century workplace," Cubed: A Secret History of the Workplace (Doubleday).

H-Net adds several good reviews this week. There is a review of Emma Christopher's A Mericless Place: The Fate of Britain's Convicts after the American Revolution (Oxford University Press), a review of The Dunning School: Historians, Race and the Meaning of Reconstruction edited by John David Smith and J. Vincent Lowery (University Press of Kentucky), a review of Elizabeth Cobbs Hoffman's American Umpire (Harvard University Press), and a review of Anne E. Marshall's Creating a Confederate Kentucky: The Lost Cause and Civil War Memory in a Border State (University of North Carolina Press).

The Los Angeles Times reviews Alex Beam's American Crucifixion: The Murder of Joseph Smith and the Fate of the Mormon Church (Public Affairs).  

Saturday, April 19, 2014

Weekend Roundup

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 18, 2014

Berring on West's Digests and Legal Thought

Richard A. Danner, Duke University School of Law, has posted Influences of the Digest Classification System: What Can We Know?, which also appears in Legal Reference Services Quarterly 33 (2014).  Here is the abstract:    
Robert C. Berring has called West Publishing Company’s American Digest System “the key aspect of the new form of legal literature” that West and other publishers developed in the last quarter of the nineteenth century. Berring argued that West’s digests provided practicing lawyers not only the means for locating precedential cases, but a “paradigm for thinking about the law itself” that influenced American lawyers until the development of online legal research systems in the 1970s. This article discusses questions raised by Berring’s scholarship, and examines the late nineteenth and early twentieth century legal environment in which the West digests were created and became essential research tools for American lawyers.

The Romance of Flight and Patent Litigation

We don’t review books here at Legal History Blog, but we also don’t complain when publishers send us review copies.  This week we received Birdmen: The Wright Brothers, Glenn Curtiss, and the Battle to Control the Skies, by Lawrence Goldstone, an epic account of patent litigation enlivened by the romance of invention and flight, published by a subsidiary of Random House.  Although I only dipped into it before passing it along to our patent maven here at Georgetown Law, I’m happy to reproduce the press’s somewhat breathless copy, in case anyone out there wants to punch up their summary the next time they confront an author’s questionnaire.  Surely, there’s a happy medium between this and the usual fare for a scholarly book?  Maybe something with about a third the adjectives.
From acclaimed historian Lawrence Goldstone comes a thrilling narrative of courage, determination, and competition: the story of the intense rivalry that fueled the rise of American aviation.
The feud between this nation’s great air pioneers, the Wright brothers and Glenn Curtiss, was a collision of unyielding and profoundly American personalities. On one side, a pair of tenacious siblings who together had solved the centuries-old riddle of powered, heavier-than-air flight. On the other, an audacious motorcycle racer whose innovative aircraft became synonymous in the public mind with death-defying stunts. For more than a decade, they battled each other in court, at air shows, and in the newspapers. The outcome of this contest of wills would shape the course of aviation history—and take a fearsome toll on the men involved.

Birdmen sets the engrossing story of the Wrights’ war with Curtiss against the thrilling backdrop of the early years of manned flight, and is rich with period detail and larger-than-life personalities: Thomas Scott Baldwin, or “Cap’t Tom” as he styled himself, who invented the parachute and almost convinced the world that balloons were the future of aviation; John Moisant, the dapper daredevil who took to the skies after three failed attempts to overthrow the government of El Salvador, then quickly emerged as a celebrity flyer; and Harriet Quimby, the statuesque silent-film beauty who became the first woman to fly across the English Channel. And then there is Lincoln Beachey, perhaps the greatest aviator who ever lived, who dazzled crowds with an array of trademark twists and dives—and best embodied the romance with death that fueled so many of aviation’s earliest heroes.

A dramatic story of unimaginable bravery in the air and brutal competition on the ground, Birdmen is at once a thrill ride through flight’s wild early years and a surprising look at the personal clash that fueled America’s race to the skies.
Do you think they'll let me play "Cap't Tom" in the movie?