Friday, June 23, 2017

Priel on the Return of Legal Realism

Dan Priel, Osgoode Hall Law School, York University has posted The Return of Legal Realism, which is forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus D. Dubber and Christopher Tomlins:
The main goal of this essay is to explain in what sense “we are all realists now.” It examines various answers to this question suggested by existing literature and proposes another. The key is identifying a fundamental divide among the legal realists on what makes their view “realistic.” One group of legal realists, of whom Karl Llewellyn and Jerome Frank are the most notable exponents, has argued that realism consists in greater awareness by legal academics to the realities of legal practice. The other group, of whom Felix Cohen and Walter Wheeler Cook were notable exponents, has argued that being realistic about law meant adopting the methods of the natural sciences. Following on this, the two groups of realists have given very different answers to a series of fundamental questions about such as the common law, the proper approach to law reform, legal education. Ultimately, I argue, these two views rest on competing views on the authority of law. It is this contrast, I argue, that allows us to place the realists in historical context, as well as explain the continuing relevance of legal realism(s) to contemporary debates.

Landmark Cases in Land Law

Several new volumes in Hart Publishing’s Landmark Cases series came out in 2016. Here’s the first: Landmark Cases in Land Law, edited by Nigel Gravells, University of Nottingham. 

From the press:
Media of Landmark Cases in Land LawLandmark Cases in Land Law is the sixth volume in the Landmark Cases series of collected essays on leading cases (previous volumes in the series having covered Restitution, Contract, Tort, Equity and Family Law). The eleven cases in this volume cover the period 1834 to 2011, although, interestingly, no fewer than six of the cases were decided or reported in the 1980s. The names of the selected cases will be familiar to property lawyers. However, individually, the essays provide a reappraisal of the cases from a wide range of perspectives – focusing on their historical, social or theoretical context, highlighting previously neglected aspects and even questioning their perceived importance. Collectively, the essays explore several common themes that pervade the law of property – the numerus clausus principle, the conclusiveness of registration, the desirability of certainty in the law and the central question of the enforceability of interests through changes in ownership of land. This volume provides a collection of essays that will be of interest to academics, students and practitioners. –
Table of Contents after the jump.

Danner on a Falied American Attempt to Classify Law

Richard A. Danner, Duke University School of Law, has posted James DeWitt Andrews: Classifying the Law in the Early Twentieth Century:
This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in 1923.

Thursday, June 22, 2017

A Call for Projects and Proposals from the ASLH

[We have the following announcement.]

The Projects and Proposals Committee of the American Society for Legal History exists to encourage new initiatives in the study and presentation and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. It is the mission of the committee to find ways to bring talented new voices into our field, to encourage novel forms of scholarly interchange, to support pedagogical experiments in legal history, and to seed new forms and venues for public history.

The Board of Directors of the American Society for Legal History has asked the Committee to offer particular encouragement to two arenas for growth in the field. First, we have been asked to help internationalize legal history, by which we mean both to support ways to widen the study of legal history beyond its core Anglo-American base and to bring a global array of scholars and students of legal history into conversation with one another. And second, we have been asked to find ways to bring a younger generation of scholars and students into the field.

But beyond those particular arenas for initiative, we encourage proposals that are engaged both with what may seem to be “traditional” subjects in legal history and ones that move off in nontraditional ways. In the past, we have supported conferences (including the costs of bringing participants together, who could not afford to come otherwise), and we have supported internationalizing exchanges. We would consider subventions of scholarly publications or of museum exhibits or pedagogical experiments or of any number of other collective pursuits. We do not support individual research projects. Nor will we recommend for funding projects that have already been funded at the recommendation of the committee three times. We are not a funding source for ongoing and recurrent activities of the field or of the Society.

Most of the projects we have supported have been in the $4,000 to $6,000 range. Ordinarily, we
would expect that projects would have other institutional collaborators and/or cosponsors (including home universities). Proposals may come from educational institutions or from informal groups or networks of individuals. In most cases, someone involved in the proposal will be a member of the Society.

We issue a yearly call for proposals. That call will be sent to all members of the American Society for Legal History later in July 2017. Our deadline for receiving applications will be September 18, 2017. The committee will then review the proposals, with the goal of recommending a list to the Board of Directors of the Society in preparation for their meeting in late October 2017.

Our application form is relatively informal. The link can be found here.  And if you have any  questions, please write to Hendrik (Dirk) Hartog, at

Rao to Edit Law and History Review

After over five years of exceptional service, Elizabeth Dale, Professor of Law and Professor of History at the University of Florida, is stepping down as editor of the Law and History Review, the journal of the American Society for Legal History.  She has ably continued the great editorial tradition that has made LHR the world’s best journal devoted to “the social history of law and the history of legal ideas and institutions.”  Under her watch, it has become global in its coverage.  She has also kept LHR apace with methodological innovations, as in the recent special issue on Digital Law and History (34:4).  And, as @LHR_editor, she has brought the journal into the social media age.  Legal historians everywhere are in her debt.

I am very pleased to announce that Professor Dale will be succeeded as editor by Gautham Rao, a legal historian of revolutionary America and the Early American Republic who teaches in the Department of History at American University in Washington, DC.  Professor Rao is the author of National Duties: Custom Houses and the Making of the American State (University of Chicago Press, 2016), and many articles, including the prize-winning "The Federal Posse Comitatus Doctrine," published in Law and History Review.  He served on the ASLH’s Program Committee in 2010-11, has chaired its Kathryn T. Preyer Committee, and is currently a member of the Board of Directors.  Since 2012 he has been a member of the Editorial Board of Law and History Review.  And, like Professor Dale, he was a guest blogger on LHB!

The transfer of power will occur at the annual meeting of the American Society for Legal History in Las Vegas, October 26-29, 2017.  Throughout the transition, authors may continue to submit manuscripts through the LHR website.
Daniel R. Ernst
Chair, Publications Committee
American Society for Legal History

Hester on the Origins of Deportation

New from the University of Pennsylvania Press: Deportation: The Origins of U.S. Policy, by Torrie Hester (Saint Louis University). A description from the Press:
Before 1882, the U.S. federal government had never formally deported anyone, but that year an act of Congress made Chinese workers the first group of immigrants eligible for deportation. Over the next forty years, lawmakers and judges expanded deportable categories to include prostitutes, anarchists, the sick, and various kinds of criminals. The history of that lengthening list shaped the policy options U.S. citizens continue to live with into the present.
Deportation covers the uncertain beginnings of American deportation policy and recounts the halting and uncoordinated steps that were taken as it emerged from piecemeal actions in Congress and courtrooms across the country to become an established national policy by the 1920s. Usually viewed from within the nation, deportation policy also plays a part in geopolitics; deportees, after all, have to be sent somewhere. Studying deportations out of the United States as well as the deportation of U.S. citizens back to the United States from abroad, Torrie Hester illustrates that U.S. policy makers were part of a global trend that saw officials from nations around the world either revise older immigrant removal policies or create new ones.
A history of immigration policy in the United States and the world, Deportation chronicles the unsystematic emergence of what has become an internationally recognized legal doctrine, the far-reaching impact of which has forever altered what it means to be an immigrant and a citizen.
A few blurbs:
"Through impressive research and detailed analysis, Torrie Hester shows how the early history of deportation law and policy contributed to the world in which we now live. The author successfully shows how the incremental creation of acceptable grounds for deportation reflected an agenda of racialized nation building—an issue that is often raised in critique of the mass deportations of our own times."—Donna Gabaccia

"Deportation: The Origins of U.S. Policy is a tour-de-force of U.S. policy history, detailing how deportation was born as a lawful practice in the late nineteenth century and tracking its steady expansion into the twentieth century. Moreover, it follows the story beyond U.S. borders to examine the world in which U.S. immigration was made. It is a timely and urgent work."—Kelly Lytle Hernandez
More information is available here.

Wednesday, June 21, 2017

Likhovski on the Intellectual History of Law

Assaf Likhovski, Tel Aviv University School of Law, has posted The Intellectual History of Law, which is forthcoming in The Oxford Handbook of Historical Legal Research, ed. Markus Dubber and Christopher Tomlins:
This chapter identifies some recent trends in historiography generally, and in the study of intellectual history. The chapter discusses the relevance of these trends to the study of the intellectual history of law, referring to relevant legal history works reflecting these trends, noting existing lacunas, and proposing future directions of development of the study of the intellectual history of law.

O'Brien on Landis

Out with Hart Publishing is The Triumph, Tragedy and Lost Legacy of James M. Landis by Justin O’Brien, University of New South Wales. From the publisher:
Media of The Triumph, Tragedy and Lost Legacy of James M LandisJames M Landis – scholar, administrator, advocate and political adviser – is known for his seminal contribution to the creation of the modern system of market regulation in the USA. As a highly influential participant in the politics of the New Deal he drafted the statute which was to become the foundation for securities regulation in the US, and by extension the founding principle of financial market regulation across the world. He was also a complex and in some ways tragic figure, whose glittering career collapsed following the revelation that he had failed to pay tax for a five year period in the 1950s. The oversight was to cost possible elevation to the Supreme Court, forced prosecution and sentencing in 1963 to one month's imprisonment, commuted to forced hospitalisation, and subsequent suspension of licence to practise. This candid and revealing book sets his life in the context of his work as an academic, legislative draftsman, administrator and Dean of Harvard Law School. In rescuing from history Landis's battles and achievements in regulatory design, theory and practice, it speaks directly to the perennial problems in financial market regulation - how to deal with institutions deemed too big to fail, how to regulate the sale of complex financial instruments and what role can the professions play as gatekeepers of market integrity. It argues that in failing to learn from the lessons of history we limit the capacity of regulatory intervention to facilitate cultural change, without which contemporary responses to financial crises are destined to fail.

Here’s the TOC:

1 The Draftsman: The Normative Underpinnings of the Disclosure Paradigm 
2 The Administrator: Codes of Conduct and the Dynamics of Regulatory Politics 
3 The Activist: Institutionalizing the New Deal 
4 The Firefighter: The Existential Choice 
5 The Transformational Dean: Law, Lawyers and Society 
6 The Advisor: Revitalizing and Losing Regulatory Authority 
7 The Fall: Hubris and the Making of a Greek Tragedy 
Conclusion – The Lost Legacy: James M Landis and the
Future of Regulatory Capitalism

More information is available here.

CFP: Policy History 2018

[We have the following announcement.] The Institute for Political History, the Journal of Policy History, and the Center for Political Thought and Leadership at Arizona State University are hosting the tenth biennial Policy History Conference at the Mission Palms Hotel in Tempe, Arizona from Wednesday, May 16 to Saturday, May 19, 2018.

The Journal of Policy History is celebrating 30 years of publication. The Policy History Conference is celebrating 20 years of continued academic excellence. We hope you will join us for this historic event.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.

The deadline for submission is December 8, 2017.   Proposals for panels and papers must be submitted online at the links  below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es).
5. Mailing Address(es).
6. Panel and paper title(s).
7. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
8. 75 word description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

Submit paper proposals here; submit panel proposals here.

Update: The dates for the conference listed above have been changed to those appearing in a revisec call for papers that reached us after our initial post.]

Tuesday, June 20, 2017

Quinlan on the "Technoscientific Witness of Rape" in Ontario

New from the University of Toronto Press: The Technoscientific Witness of Rape: Contentious Histories of Law, Feminism, and Forensic Science, by Andrea Quinlan (Trent University). A description from the Press:
In 1984, the Sexual Assault Evidence Kit (SAEK) was dubbed "Ontario’s most successful rapist trap." Since then, the kit has become the key source of evidence in the investigation and prosecution of sexual assault as well as a symbol of victims’ improved access to care and justice. Unfortunately, the SAEK has failed to live up to these promises.

The Technoscientific Witness of Rape is the first book to chart the thirty year history of the sexual assault evidence kit and its role in a criminal justice system that re-victimizes many assault victims in their quest for medical treatment and justice. Drawing on actor-network theory and feminist technology studies, Andrea Quinlan combs through sixty-two interviews with police, nurses, scientists, and lawyers, as well as archival records and legal cases to trace changes in sexual assault forensics, law, advocacy, and anti-violence activism in Ontario. Through this history Quinlan bravely and provocatively argues that the SAEK reflects and reinforces the criminal justice system’s distrust of sexual assault victims.
More information is available here.

Remy on "The Malmedy Massacre: The War Crimes Trial Controversy"

New from Harvard University Press: The Malmedy Massacre: The War Crimes Trial Controversy, by Steven P. Remy (Brooklyn College and the Graduate Center, City University of New York). A description from the Press:
During the Battle of the Bulge, Waffen SS soldiers shot 84 American prisoners near the Belgian town of Malmedy—the deadliest mass execution of U.S. soldiers during World War II. The bloody deeds of December 17, 1944, produced the most controversial war crimes trial in American history. Drawing on newly declassified documents, Steven Remy revisits the massacre—and the decade-long controversy that followed—to set the record straight.
After the war, the U.S. Army tracked down 74 of the SS men involved in the massacre and other atrocities and put them on trial at Dachau. All the defendants were convicted and sentenced to death or life imprisonment. Over the following decade, however, a network of Germans and sympathetic Americans succeeded in discrediting the trial. They claimed that interrogators—some of them Jewish émigrés—had coerced false confessions and that heat of battle conditions, rather than superiors’ orders, had led to the shooting. They insisted that vengeance, not justice, was the prosecution’s true objective. The controversy generated by these accusations, leveled just as the United States was anxious to placate its West German ally, resulted in the release of all the convicted men by 1957.
The Malmedy Massacre shows that the torture accusations were untrue, and the massacre was no accident but was typical of the Waffen SS’s brutal fighting style. Remy reveals in unprecedented depth how German and American amnesty advocates warped our understanding of one of the war’s most infamous crimes through a systematic campaign of fabrications and distortions.
More information is available here.

Monday, June 19, 2017

More from JOTWELL: Ford on Hutchison, Levy on Grove, Stein on Qiao

We make a practice of posting reviews from JOTWELL's Legal History Section. But it turns out that the other sections appreciate history, too.

From Christie Ford in the Corporate Law Section, we have an admiring review of Camden Hutchison's recent Columbia Business Law Review article, "Progressive Era Conceptions of the Corporation and the Failure of the Federal Charter Movement." Ford writes:
Good history, including good legal history, sheds light on our own times. Well-written history, peopled with recognizable figures and marked by a strong narrative arc, also makes for good reading. In a new article, Camden Hutchison brings a precise historical eye and an engaging storytelling style to the understudied area of corporate legal history. His topic is Progressive Era corporate law reform, and particularly the question of why the United States failed to develop a federal corporate law regime in that period (and, of course, since).
Read on here.

From the Courts Law Section, Marin Levy spotlights an article with a significant historical component: Tara Leigh Grove's "The Origins (and Fragility) of Judicial Independence," forthcoming in the Vanderbilt Law Review. From Levy:
Drawing in part from her own (excellent) past work, Grove undertakes a significant examination of the independence of the federal judiciary. She traces the historical arcs of several key contestations between the judicial branch and one of its sibling branches, including the failure to comply with a court order, the potential removal of a judicial officer outside the impeachment process, and court packing. Though these contestations have received scholarly attention before, Grove brings them together in a new way. In so doing, she provides a persuasive account of how these various attempts to curb the courts were not only not verboten, but were embraced in the early days of the judiciary—and how political actors ultimately reversed their course.
Read on here.

And from the Property Law Section comes a review of Shitong Qiao's "The Evolution of Chinese Property Law: Stick by Stick?," a contribution to the edited collection Private Law in China and Taiwan: Legal and Economic Analyses (Yun-chien Chang et al. eds., Cambridge University Press, forthcoming 2017). Writes Gregory M. Stein:
Professor Qiao’s chapter contributes to property scholarship in several important and meaningful ways. He reminds his readers that scholarship focusing on Western attitudes toward property can easily overlook non-Western cultures and legal systems. He emphasizes how cultural context influences social and legal attitudes toward property rights. He reminds the reader that China is still in an experimental phase in which private parties test out new approaches and the government endorses the ones that seem to work best.
Read on here.

Prest and friends on Blackstone's Commentaries

Now out with Hart is a collection edited by Wilfred Prest, University of Adelaide: Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts. From the press:
Media of Re-Interpreting Blackstone's Commentaries
This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. 
In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. 
The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. 
This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).
Here’s the line-up:
1 Blackstone's 'Stutter': the (Anti)Performance of the Commentaries
Kathryn Temple
William Blackstone: Courtroom Dramatist?
Simon Stern
2 Blackstone as Draughtsman: Picturing the Law
Cristina S Martinez
3 Blackstone's Commentaries: England's Legal Georgic?
Michael Meehan

4 Blackstone in the Bayous: Inscribing Slavery in the Louisiana Digest of 1808
John W Cairns
Legal Jambalaya
Stephen M Sheppard
5 Blackstone and the Birth of Quebec's Distinct Legal Culture 1765–1867
Michel Morin
6 Blackstone's Ghost: Law and Legal Education in North Carolina
John V Orth
7 Antipodean Blackstone 
Wilfrid Prest

8 Blackstone's King
Paul D Halliday
Modern Blackstone: the King's Two Bodies, the Supreme Court and the President
Ruth Paley
9 Blackstone's Commentaries and the Origins of Modern Constitutionalism
Horst Dippel
10 Reading Blackstone in the Twenty-First Century and theTwenty-First Century through Blackstone
Jessie Allen
You can read more about the book here.

Rose's "Maintenance in Medieval England"

Jonathan Rose, Professor of Law & Willard H. Pedrick Distinguished Research Scholar Emeritus at the Sandra Day O'Connor College of Law at Arizona State University, has just published Maintenance in Medieval England with Cambridge University Press, in its series Cambridge Studies in English Legal History:
This is the first book covering those who abused and misused the legal system in medieval England and the initial attempts of the Anglo-American legal system to deal with these forms of legal corruption.  Maintenance, in the sense of intermeddling in another person’s litigation, was a source of repeated complaint in medieval England. This book reveals for the first time what actually transpired in the resultant litigation. Extensive study of the primary sources shows that the statutes prohibiting maintenance did not achieve their objectives because legal proceedings were rarely brought against those targeted by the statutes: the great and the powerful. Illegal maintenance was less extensive than frequently asserted because medieval judges recognized a number of valid justifications for intermeddling in litigation. Further, the book casts doubt on the effectiveness of the statutory regulation of livery. In fact litigants used maintenance litigation to harass and burden their opponents. This book is a treasure trove for legal historians, literature scholars, lawyers, and academic libraries.

Sunday, June 18, 2017

Sunday Book Review Roundup

Legal historians, enjoy these book reviews and have a happy Father's Day.

The NY Times provides Three Books on Puerto Rico’s Statehood vs. Independence Debate, including Puerto Rico: The Trials of the Oldest Colony in the World by José Trias Monge and Requiem of the Cerro Maravilla: The Police Murders in Puerto Rico and the U.S. Government Coverup by Manuel Suarez. Last week, the Times had a similar roundup of books about the gay rights/marriage movement.

Garret M. Graff doesn't mince words when it comes to titles.  The Times also published a review of Graff’s Raven Rock: The Story of the U.S. Government’s Secret Plan to Save Itself — While the Rest of Us Die. The book, a history of the government’s often-botched efforts at nuclear defense preparation, “shows how, again and again, technocratic efforts to prepare for governing after a nuclear attack have collided with the reality that doing so would almost certainly prove impossible.”

The Washington Post reviews He Calls Me By Lightning: The Life of Caliph Washington and the forgotten Saga of Jim Crow, Southern Justice, and the Death Penalty, by S. Jonathan Bass, which uses the thirteen year “legal saga” of Caliph Washington to paint a “picture of how Jim Crow legal systems operated at the local and state level.”

The Guardian has a short review of Britain’s Europe: A Thousand Years of Conflict and Cooperation by Brendan Simms, who argues that Brexit is “neither inevitable nor an accident”.

In the LA Review of Books, Eric D’Amato’s Getting Europe’s Right Wrong covers Far-Right Politics in Europe by Jean-Yves Camus and Nicolas Lebourg, and Mastering the Past: Contemporary Central and Eastern Europe and the Rise of Illiberalism by Ellen Hinsey. The former book is ultimately more satisfying, he argues, although it still does not contend with the diversity of Europe’s far right, which is “above all defined by its heterogeneity, decentralism, and ideological adaptability.” The Nation’s review of Christos Efstathiou’s E.P. Thompson: A Twentieth-Century Romantic may be inspiring to legal historians seeking a political reputation. It notes that: Thompson was “so prominent” in anti-nuclear activism that “polls placed him high in the ranks of the most admired, trailing only the ‘first women’ of the nation: [Margaret] Thatcher, Queen Elizabeth, and the Queen Mother.” The review also contrasts Thompson’s ability to find “agency” in his historical actors with the exacting standards to which he held his activist contemporaries. Those interested in biographies of historians may also enjoy this review of Ernst Kantorowicz: A Life by Robert E. Lerner, which seeks to revive the Medievalist’s reputation after Norman Cantor’s 1963 “hatchet job”. 

Also in The Nation, Sophie Pinkham reviews Lenin on the Train by Catherine Merridale, The Russian Revolution: A New History by Sean McMeekin, and Russia in Revolution: An Empire in Crisis, 1890–1928 by S.A. Smith, arguing that “how historians narrate the story of the Russian Revolution tells us much about their philosophy of history, as well as about their attitude toward the revolutionary project and the politics of the left.” 

The New York Review of Books has several essays of historical-inclination, not all of which have can be viewed without a subscription. These include:

Saturday, June 17, 2017

Weekend Roundup

  • Over at the Library of Congress, there is an online exhibition that may be of interest: "Drawing Justice: The Art of Courtroom Illustration showcases the Library’s extensive collections of original art by talented artists hired by both newspapers and television to capture the personal dynamics of legal trials." (h/t Slate's The Vault)
  •  In the Washington Post, Joanne Freeman (Yale University) writes about the "long, and ominous, history" of violence against members of Congress. 
  • Over at Concurring Opinions, Ronald Collins has a post on the centennial of the Espionage Act of 1917, with commentaries by Derik Bambauer, Erwin Chemerinsky, Geoffrey Stone and Stephen Vladeck.
  • The American Historical Association is offering a "sneak peek" at its January 2018 annual meeting in Washington, DC.  Panels include “New Histories of State Surveillance” and “Sexual Violence in Historical Context."
  • Al Brophy (UNC Law) has posted some thoughts on the famous case State v. Will - "and some other things, too." You'll find them at the Faculty Lounge.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 16, 2017

Legal History at Law and Society

As many LHB readers are aware, the Law and Society Association hosts "Collaborative Research Networks" that sponsors panels for its annual meeting.  After the jump are the panels sponsored by the  Law and History CRN a next week's annual meeting in Mexico City.  H/t: Joanna Grisinger.

Schiller reviews Klarman, "The Framers' Coup"

Over at JOTWELL, Reuel Schiller (UC Hastings) has posted an admiring review of Michael Klarman's The Framers' Coup: The Making of the United States Constitution (2016). Here's a taste:
Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution is a marvel. It’s an 850-page tome that draws us in even though we all know what happens in the end. Indeed, for most readers, the broad outlines of its narrative are ones that we’ve heard many times: in grade school, again in high school, perhaps in college, and, for a lucky few, once again in graduate school. The book’s seven chronological chapters tell our nation’s origin story: the flaws of the Articles of Confederation; the politics of the pre-constitutional period; the Constitutional Convention in Philadelphia; the debate over the constitutional status of slavery; the hard-fought political battles between Federalists and Antifederalists at the state ratifying conventions; ratification itself; and the drafting and adoption of the Bill of Rights.
Yet Klarman manages to give us a story that demands reading despite its familiarity. . . .
And a bit more:
Thus, Klarman’s story of the framing is not one of brilliant political philosophers collaborating on a document to preserve their republican revolution. Instead, it is one of “ordinary politics” (p. 8) in which each side attempted to create a federal government that would further its mundane political interests.  . . .
Read on here.

Monchalin on Colonialism, Crime, and Canada's First Nations

Lisa Monchalin, Kwantlen Polytechnic University, has published The Colonial Problem: An Indigenous Perspective on Crime and Injustice in Canada with the University of Toronto Press. From the publisher:
The Colonial Problem: An Indigenous Perspective on Crime and Injustice in CanadaIndigenous peoples are vastly overrepresented in the Canadian criminal justice system. The Canadian government has framed this disproportionate victimization and criminalization as being an “Indian problem.” In The Colonial Problem, Lisa Monchalin challenges the myth of the “Indian problem” and encourages readers to view the crimes and injustices affecting Indigenous peoples from a more culturally aware position. She analyzes the consequences of assimilation policies, dishonoured treaty agreements, manipulative legislation, and systematic racism, arguing that the overrepresentation of Indigenous peoples in the Canadian criminal justice system is not an Indian problem but a colonial one.
Some reviews of the book:

“Monchalin's timely and innovative book exposes ugly truths about Canada's 'colonial problem' in a comprehensive and compelling way. With a clear focus on the restoration of justice and harmony for Indigenous peoples, Monchalin provides pathways for reimagining and decolonizing current relationships via land-based resurgence, artistic resistance, community campaigns, and ultimately reclaiming the rebellious dignity of Indigenous nations and peoples. This is an important read for anyone seeking Indigenous perspectives on justice and the impacts of ongoing, shape-shifting colonization on Indigenous communities.” -Jeff Corntassel

“Written from an Indigenous perspective, comprehensive yet easy to read, and complete with discussion questions and activities, this book would be a useful classroom text for justice studies, sociology, Indigenous studies, political science, and history. Highly recommended!” -Rob Nestor

“This textbook is long overdue, brilliantly written, and filled with pertinent information that all Canadians and all Indigenous peoples need to know. Monchalin leaves no stone unturned. Understanding this text is key if we truly want to learn to 'live together in a good way' and move toward a 'just' society.” -Wenona Victor

Further information about the book is available here.

Thursday, June 15, 2017

Landmark Cases in Criminal Law in the UK

Landmark Cases in Criminal Law, edited by Philip Handler, Ian Williams, and Henry Mares, is now available from Hart Publishing.
Criminal cases raise difficult normative and legal questions, and are often a consequence of compelling human drama. In this collection, expert authors place leading cases in criminal law in their historical and legal contexts, highlighting their significance both in the past and for the present.

The cases in this volume range from the fifteenth to the twenty-first century. Many of them are well known to modern criminal lawyers and students; others are overlooked landmarks that deserve reconsideration. The essays, often based on extensive and original archival research, range over a wide spectrum of criminal law, covering procedure and doctrine, statute and common law, individual offences and general principles. Together, the essays explore common themes, including the scope of criminal law and criminalisation, the role of the jury, and the causes of change in criminal law.
TOC after the jump.

Wednesday, June 14, 2017

AJLH 57:2

Alfred Brophy has the TOC for the June 2017 issue of the American Journal of Legal History over at the Faculty Lounge.

Yeager on Anglo-Saxon England

From Lawmen to Plowmen: Anglo-Saxon Legal Tradition and the School of LanglandWe missed this one a few years ago. We're posting it now because  there’s more on the LHB about Anglo-Saxonism (like this) than the actual Anglo-Saxons! Stephen Yeager, Concordia University published From Lawmen to Plowmen: Anglo-Saxon Legal Tradition and the School of Langland with the University of Toronto Press in 2014. From the press:

The reappearance of alliterative verse in the fourteenth and fifteenth centuries remains one of the most puzzling issues in the literary history of medieval England. In From Lawmen to Plowmen, Stephen M. Yeager offers a fresh, insightful explanation for the alliterative structure of William Langland’s Piers Plowman and the flourishing of alliterative verse satires in late medieval England by observing the similarities between these satires and the legal-homiletical literature of the Anglo-Saxon era.
Unlike Old English alliterative poetry, Anglo-Saxon legal texts and documents continued to be studied long after the Norman Conquest. By comparing Anglo-Saxon charters, sermons, and law codes with Langland’s Piers Plowman and similar poems, Yeager demonstrates that this legal and homiletical literature had an influential afterlife in the fourteenth-century poetry of William Langland and his imitators. His conclusions establish a new genealogy for medieval England’s vernacular literary tradition and offer a new way of approaching one of Middle English’s literary classics.
A blurb:

“Yeager has an interesting and innovative thesis that sheds a great deal of light on the possible connection between Old English legal-homiletic writing and Middle English alliterative verse.” -Joyce Lionarons

And the TOC:

  • Introduction
  • Chapter 1. From Written Record to Memory: A Brief History of Anglo-Saxon Legal-Homiletic Discourse
  • Chapter 2. Leges Cnuti, Sermones Lupi: Homily, Law, and the Legacy of Wulfstan
  • Chapter 3. Ecclesiastical Anglo-Saxonism in Thirteenth-Century Worcester:The First Worcester Fragment and The Proverbs of Alfred
  • Chapter 4. Laȝamon’s Brut: Law, Literature, and the Chronicle-Poem
  • Chapter 5. Defining the Piers Plowman Tradition
  • Chapter 6. Documents, Dreams and the Langlandian Legacy in Mum and the Sothsegger
  • Conclusion

You can read more about the book here.

Barzun on Kessler and Pozen on the Life Cycle of Legal Theories

Charles L. Barzun, University of Virginia School of Law, has posted Working for the Weekend: A Response to Kessler & Pozen:
In "Working Themselves Impure: A Life Cycle Theory of Legal Theories," Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time. Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.

Tuesday, June 13, 2017

A Female Majority on the NZ Supreme Court

We usually limit ourselves to the historical, and not simply the historic, but we're making an exception for this one.  A press release of the New Zealand Law Society announces "The Supreme Court sat today with a bench of three women and two men: the first time in New Zealand’s history that the country’s highest court has sat with a majority of women on the full bench."  More.

Landmark Cases in Public Law in the UK

Landmark Cases in Public Law, edited by Satvinder Juss, King's College London, and Maurice Sunkin, University of Essex, is now out from Hart Publishing.  Saith the press:
Landmark Cases in Public Law answers the need for an historical examination of the leading cases in this field, an examination which is largely absent from the standard textbooks and journal articles of the day. Adopting a contextualised historical approach, this collection of essays by leading specialists in the field provides both an explanation of the importance and impact of the chosen decisions, as well as doctrinal analysis. This approach enables each author to throw light on the driving forces behind the judicial outcomes, and shows how the final reasoning of the court was ultimately as much dependent upon such human factors as the attitudes, conduct, and personalities of the parties, their witnesses, their counsel, and the judges, as the drive to seek legal realignment with the political developments that were widely perceived to be taking place. In this way, this form of analysis provides an exposition of the true stories behind these landmark cases in public law.
TOC after the jump.

Braatz on Penal Reform in the Late 18th Century

Erin Braatz, a former Samuel I. Golieb Fellow at the New York University School of Law, has posted The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century, which appeared in the Journal of Criminal Law and Criminology 106 (2016): 405-472:
Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application.  These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption.  These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century.  This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms. 

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the founding generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic.  It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era.  Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe.  Foregrounding the content of both the experiments themselves and the debates over penal practice they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality.  It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.

Monday, June 12, 2017

The Hermann Kantorowicz Collection at Minnesota Law

The Stefan A. Riesenfeld Rare Books Research Center at the University of Minnesota Law Library has the following post on Riesenfeld Rare Books Blog:
The University of Minnesota Law Library and Riesenfeld Rare Books Center are pleased to announce the creation of the Hermann Kantorowicz Collection, a significant collection of books and articles formerly owned by Hermann Kantorowicz (1877-1940), one of the twentieth century’s most eminent legal scholars. Comprising over 1,850 titles from the sixteenth through twentieth centuries, the Kantorowicz Collection includes notable early modern works, and rare and important scholarship on medieval law, jurisprudence, criminal law and German constitutional law, among other fields. Previously dispersed throughout the Law Library’s collections, Kantorowicz’s library has recently been identified and organized into a discrete collection in the Riesenfeld Center.

Postell's "Bureaucracy in America"

Joseph Postell, University of Colorado-Colorado Springs, has published Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government with the University of Missouri Press.
The U.S. Constitution requires laws be made by elected representatives.  Today, most policies are made by administrative agencies whose officials are not elected. Not coincidentally, many Americans increasingly question whether the political system works for the good of the people. In this trenchant intellectual history, Postell demonstrates how modern administrative law has attempted to restore the principles of American constitutionalism, but it has failed to be as effective as earlier approaches to regulation.
Here’s an endorsement:
“Federal bureaucracy often seems to roam far beyond what Congress has clearly authorized and often does so without meaningful check from courts. Postell’s book demonstrates that Americans have worried about over-reaching officials since colonial times. Bureaucracy in America shows what we can learn from past efforts to secure the people’s rights, even from government officials.”—Jeremy A. Rabkin, George Mason University, author of Law without Nations?

Hancock on Australian barrister Tom Hughes

Historian and biographer Ian Hancock published Tom Hughes QC: A Cab on the Rank with The Federation Press in 2016. From the publisher:
Tom Hughes QC
For more than thirty years, Tom Hughes, a scion of a notable Sydney family of high achievers, was one of Australia’s top barristers, renowned, respected and sometimes feared for his dominating presence in the courtroom. Equally at home in all jurisdictions, his theatrical style, command of language and forensic skills filled public galleries, exposed witnesses, persuaded juries and ensured that judges paid attention. An icon of the Sydney and Australian Bar, he appeared in a raft of celebrated cases, became the subject of many media profiles and was, from the 1970s to the 1990s, the country’s most expensive advocate. 
Hughes has also been a wartime pilot, a politician, an activist federal Attorney-General, a grazier, and a racehorse owner. He survived a broken marriage, a spiteful sacking from ministerial office and a prolonged though not permanent loss of an inherited Catholic faith. He endured years of frustration before finding the right partner to replicate the perfect marriage of his beloved parents. Even in dark times, however, a thorough professional and a prodigious worker, Hughes remained focused on his first love, the law, always upholding its traditions and processes. 
In addition to published material, the book draws on a huge trove of personal records, including fee books, intimate diaries, autobiographical jottings and private correspondence, supplemented by interviews with Hughes, his family, friends and colleagues. Using these sources, the book provides insights into a many-sided character - telling the story of how Hughes and his immediate forebears embraced more of their English than their Irish heritage while becoming distinctively Australian. It also offers a personal perspective on several decades of Australian political, social and legal history.
Praise for the book:

"The subtitle of this compellingly readable biography of Thomas Eyre Forrest Hughes AO QC borrows the underlying philosophical metaphor of the independent Bar. A barrister is available for hire by those who will pay the fee, irrespective of personal, political, social, or other co- incidence with the client, or approval or disapproval of his or her cause. Hughes’s advocacy style has been described as declamatory and theatrical, a characteristic pose was, with ‘menacing pirouette’, to address the side, or even the rear of the courtroom. Occasionally there would be penetrating wit, as when he said of a trade union hearing which had expelled his client that to describe it as a kangaroo court ‘would be an understatement and an insult to a great Australian marsupial.'” –Peter Heerey

“Crime, defamation, constitutional issues, commercial litigation, inquiries - for 60 years Tom Hughes was there, a big man with a big capacity for the big cases. … He has attained almost legendary status as being perhaps the last of his kind. The case for reading his biography is substantial on these grounds alone, and reinforced because Hughes' story comprises many other fascinating narratives.” –Kate Allman

“Most Sydney lawyers have a repertoire of Tom Hughes stories. He became a legend in his lifetime, and was still practising as a barrister well into his 80s. His trademark was a rare ability to persuade and intimidate: judges, juries, witnesses, legal opponents, clients, colleagues, all. Instructing solicitors were fair game, yet it was always an honour to work with Hughes. For more than 50 years he was a commanding presence in Australian and English courts. And as Ian Hancock demonstrates in this excellent biography, he has lived a life of multifaceted eminence.” –Roy Williams

Further information about the book, including interviews and other media coverage, is available here.