Monday, September 26, 2016

Weinrib's "Taming of Free Speech"

Laura Weinrib, University of Chicago Law School, has published The Taming of Free Speech: America’s Civil Liberties Compromise (Harvard University Press).

In the early decades of the twentieth century, business leaders condemned civil liberties as masks for subversive activity, while labor sympathizers denounced the courts as shills for industrial interests. But by the Second World War, prominent figures in both camps celebrated the judiciary for protecting freedom of speech. In this strikingly original history, Laura Weinrib illustrates how a surprising coalition of lawyers and activists made judicial enforcement of the Bill of Rights a defining feature of American democracy.

The Taming of Free Speech traces our understanding of civil liberties to conflict between 1910 and 1940 over workers’ right to strike. As self-proclaimed partisans in the class war, the founders of the American Civil Liberties Union promoted a bold vision of free speech that encompassed unrestricted picketing and boycotts. Over time, however, they subdued their rhetoric to attract adherents and prevail in court. At the height of the New Deal, many liberals opposed the ACLU’s litigation strategy, fearing it would legitimize a judiciary they deemed too friendly to corporations and too hostile to the administrative state. Conversely, conservatives eager to insulate industry from government regulation pivoted to embrace civil liberties, despite their radical roots. The resulting transformation in constitutional jurisprudence—often understood as a triumph for the Left—was in fact a calculated bargain.

America’s civil liberties compromise saved the courts from New Deal attack and secured free speech for labor radicals and businesses alike. Ever since, competing groups have clashed in the arena of ideas, shielded by the First Amendment.
Samuel Moyn's review in the Wall Street Journal is here.  And here are two endorsements:

“This is a big, bold project, a painting on a large canvas, depicting many different scenes in the manner of a Brueghel painting or WPA mural. It is a major work of history which will, I am quite sure, remain for many years the authoritative account of the ACLU’s pivotal role in producing our modern law of free expression.”—Robert W. Gordon, Stanford Law School

“Weinrib’s important reconstruction of the history of our notions of free expression shows how an idea first offered on behalf of labor radicals became transformed into a general account of why all dissent from the conventional should be protected. The Taming of Free Speech is a major contribution to the history of civil liberties.”—Mark Tushnet, Harvard Law School

Sunday, September 25, 2016

Sunday Review Roundup

Fan of Marx? Hitler? Just need more information?  Check out these book reviews.

In The Guardian, Richard Norton-Taylor reviews Susan Williams’s Spies in the Congo, which describes American activities in the Shinkolobwe uranium mine in then Belgian Congo during the Cold War. Using newly opened archives and personal interviews, she describes how the OSS “recruited a motley band to ensure the uranium reached the US and did not fall into the hands of Nazi Germany.”

In the Times Literary Supplement, one can read about Greatness and Illusion, Gareth Stedman Jones’ “fine new biography” of Karl Marx. Jones sets out to resurrect Marx’s intellectual and personal world without drawing on the “all the posthumous elaboration of his character and achievements.” Indeed, he “calls his subject ‘Karl,’ not to suggest a fake intimacy but to remind us that we are dealing not with an already marmoreal icon but with a human being thinking his way through a recalcitrant world.”   Michael Kazin explores the same work a New Republic piece cleverly titled “Prophet or Loss.”  According to Kazin, Jones tries to disabuse readers of “the notion that, in Capital, Marx explained anything significant about the workings of capitalism—either then or now. … Where Marx did excel, according to Jones, was in his vivid and lavishly detailed descriptions of the miserable lives of ordinary English workers, which he had spent years researching in the British Museum.”

In the Wall Street Journal, Neil Gregor reviews Volker Ullrich’s Hitler: Ascent, 1889-1939, the first part of a two-volume biography of Hitler originally published in German. Ullrich, who is a journalist by training (and thus avoids the “often deadening prose of his German academic colleagues”), uses “a wonderful array of well-chosen anecdotes” to emphasize Hitler’s personal role in “driving the war” and orchestrating the Holocaust.

In the LA Review of Books, filmmaker Priyanka Kumar reviews Elizabeth Hinton’s From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (it is “rich with details and synthesis that give the reader fresh insights into how the well-meaning policies of the Kennedy and Johnson eras went awry”) and Stephen Hansen takes on Aviezer Tucker’s The Legacies of Totalitarianism: A Theoretical Framework (it rejects the revisionism of many contemporary accounts of Russian history to make a “forceful defense of the central arguments of the totalitarian school about the nature of Leninist rule”).

In the History News Network, John L. Godwin reviews Kenneth Robert Janken’s The Wilmington Ten: Violence, Injustice, and the Rise of Black Politics in the 1970s. According to Godwin, you should pick up Janken’s book after you finish reading Gareth Stedman Jones: “For believers in the Russian Revolution, those who still reverence Mao and anticipate the return of Radical Reconstruction—this book will seem to capture a fleeting sense of that revolutionary moment waiting to happen. But for those who are interested in facts and want to know what really happened on the streets of Wilmington on the weekend of February 5-6, 1971, and the subsequent trial, The Wilmington Ten will surely raise new questions.”

The New Books Network features interviews with Katherine Turk, whose Equality on Trial: Gender and Rights in the Modern American Workplace explores the EEOC’s treatment of gender
discrimination cases in the 1970s. The backlog of claims, she argues, “pressed the EEOC to narrow the definition of sex equality and turned to statistics in developing cases to be tested in the courts.” One can also hear Marisa J. Fuentes on her new book Dispossessed Lives: Enslaved Women, Violence and the Archive, which “challenges historians to think more carefully about the methods and categories with which they have described and analyzed slavery,” taking up larger questions about “agency, violence, the production of knowledge, and gender,” and Megan Tompkins-Stange on the role of foundations in education reform (the subject of her new book: Policy Patrons: Philanthropy, Education Reform, and the Politics of Influence). Finally, the Network published an interview about America Abroad: The United States’ Global Role in the 21st Century, which takes stock of debates about globalization and serves as a “powerful reminder that a robust American presence is crucial for maintaining world order” a powerful defense of American globalism.” How’s that for “agency”?

The Literary Review (It's "for people who devour books”...) features reviews of several books of interest to legal historians, especially those with an interest in English law. David Edgerton reviews Benjamin Grob-Fitzgibbon’s Continental Drift: Britain and Europe from the End of Empire to the Rise of Euroscepticism and Brendan Simms’s Britain's Europe: A Thousand Years of Conflict and Cooperation. Richard Overy reviews The Vanquished: Why the First World War Failed to End, 1917–1923 , by Robert Gerwarth. You can also check out Adam Zaymorski on Richard Evans’s The Pursuit of Power: Europe 1815–1914 and Jeremy Lewis on Giles MIlton’s The Ministry of Ungentlemanly Warfare: Churchill’s Mavericks – Plotting Hitler’s Defeat.

 And finally, when I say “Thug Nation,” you think “Great Britain,” right? In a playfully titled review, Ted Vallance discusses A Fiery & Furious People: A History of Violence in England. The book, by James Sharpe, is also reviewed this week in The Guardian.

Saturday, September 24, 2016

Weekend Roundup

  • Last Thursday, the Icesi Law School in Cali, Colombia, held a conference to commemorate twenty-five years of the Constitution of Colombia (right).
  • The Franklin D. Roosevelt Presidential Library and Museum will present Listening to the Roosevelts: Franklin D. Roosevelt–The War Years at 7:00 p.m. on Wednesday, September 28, 2016, in the Henry A. Wallace Center at the FDR Presidential Library and Home.  Mary E. Stuckey, professor of communication at Georgia State University, presents, with selected audio recordings of FDR during World War II. 
  • On Talk Radio Europe: an interview with Ian Burney (University of Manchester) on his new book (with Neil Pemberton), Murder and the Making of English CSI, which we announced here
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 23, 2016

Decker's "Other Rights Revolution"

I'm very pleased to announce that Jefferson Decker, an Assistant Professor of American Studies and Political Science at Rutgers University, has published The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (Oxford University Press).
In 1973, a group of California lawyers formed a non-profit, public-interest legal foundation dedicated to defending conservative principles in court. Calling themselves the Pacific Legal Foundation, they declared war on the U.S. regulatory state--the sets of rules, legal precedents, and bureaucratic processes that govern the way Americans do business. Believing that the growing size and complexity of government regulations threatened U.S. economy and infringed on property rights, Pacific Legal Foundation began to file a series of lawsuits challenging the government's power to plan the use of private land or protect environmental qualities. By the end of the decade, they had been joined in this effort by spin-off legal foundations across the country.

The Other Rights Revolution explains how a little-known collection of lawyers and politicians--with some help from angry property owners and bulldozer-driving Sagebrush Rebels--tried to bring liberal government to heel in the final decades of the twentieth century. Decker demonstrates how legal and constitutional battles over property rights, preservation, and the environment helped to shape the political ideas and policy agendas of modern conservatism. By uncovering the history--including the regionally distinctive experiences of the American West--behind the conservative mobilization in the courts, Decker offers a new interpretation of the Reagan-era right.
TOC after the jump. 

Thursday, September 22, 2016

Call for Applications: Yale University Chauncey Postdoc

Via H-Law, we are passing along the following job announcement from Yale University:
The Chauncey Postdoctoral Fellowships are up to three positions funded by the Brady-Johnson Program in Grand Strategy for one year renewable for one additional year. We seek to attract outstanding junior scholars from around the globe whose work addresses questions of statecraft and grand strategy and demonstrates excellence in one of a range of academic disciplines and methodologies.
Postdoctoral fellows must have completed their PhD degree to begin the fellowship. They are expected to use their time at Yale to conduct original research and prepare manuscripts for publication. Working with an active academic community of postdoctoral and predoctoral fellows, as well as Yale faculty in history, political science, and other disciplines, postdoctoral fellows may examine a variety of areas of statecraft and grand strategy, including issues of security, economic development, environmental sustainability, global health, and human dignity.
A member of the Yale faculty will serve as a mentor during the fellowship and will meet on a regular basis with the fellow. Postdoctoral fellows may teach small seminars if desired. They participate regularly in research colloquia on campus and are granted opportunities to present their work. Postdoctoral fellows are expected to remain in residence through the duration of their fellowship and contribute to the intellectual life of the Grand Strategy Program and International Security Studies by participating in its activities and development.
Fellows will be expected to conduct their own research and to teach at least one course on a subject relevant to grand strategy during each year in which they hold the fellowship. The stipend will be at least $50,000.
The announcement lists Law and Legal History as one of the search's "primary categories."

Legal History By Another Name? Legal History in History Departments

(Before you start reading this post in earnest, please know that it is not as long as it seems.  Thank you.)

There are some really wonderful legal historians that teach in history departments.  So many, in fact, that I hope I am excused for naming a few with full knowledge that I am overlooking a great many more:
Linda Kerber (Iowa), Rebecca Scott (Michigan), Laura Kalman (UCSB), Laura Edwards (Duke), Peter Hoffer (Georgia), Sally Hadden (Western Michigan), Margot Canady (Princeton), Cornelia Dayton (Connecticut), David Tannenhaus (UNLV), Hendrik Hartog (Princeton), Elizabeth Dale (Florida), Barbara Welke (Minnesota), Kelly Kennington (Auburn), David Konig (Washington U.), Michael Les Benedict (Ohio State), David Armitage (Harvard), Katherine Turk (UNC), Holly Brewer (Maryland), Jane Dailey (Chicago), Sara MacDougall (John Jay), Kyle Volk (Montana), Rebecca Mclennan (Berkeley), Maribel Morey (Clemson), Malick Ghachem (MIT), Yvonne Pitts (Purdue), Linda Przybyszewski, Michael Willrich (Brandeis), Honor Sachs (Western Carolina), Will Hanley (Florida State), Katrina Jagodinsky (Nebraska), Andrew Wender Cohen (Syracuse), Kimberly Welch (Vanderbilt), Philip Thai (Northeastern), Amy Dru Stanley (Chicago), Ken Ledford (Case Western), Elizabeth Kai Hinton (Harvard), Anne Kornhauser (City College), Ted Steinberg (Case Western), Rohit De (Yale), Alison Lefkovitz (Rutgers/NJIT), David Bodenhamer (Indiana-Purdue), Thomas Mackey (Louisville), Andrew Sandoval-Strausz (New Mexico), Mike Grossberg (Indiana), Robert Palmer (Houston), Saundra Schwartz (Hawai’i-Manoa), Richard Hamm (SUNY-Albany), Sara Butler (Ohio State), Deborah Rosen (Lafayette), Charles Zelden (NOVA-Southeastern), Elisa Minoff (South Florida), Debjani Battacharyya (Drexel), Tim Garrison (Portland State), Chris Capozzola (MIT), Matthew Sommer (Stanford), Julia Randolph (North Carolina State), Matthew Crow (Hobart and William Smith), Melanie Newport (Connecticut-Hartford), James Schmidt (Northern Illinois), Lou Williams (Kansas State), Patricia Minter (Western Kentucky), Lucy Salyer (New Hampshire), Katherine Unterman (Texas A&M), Sarah Levine-Gronningsater (Cal Tech), Jen Manion (UMass-Amherst), Abby Chandler (UMass-Lowell), Kimberly Reilly (Wisconsin-Green Bay), Adam Malka (SUNY-Buffalo), Devin Pendas (Boston College), Alan Rogers (Boston College), Mark Carroll (Missouri), Michael Pfeifer (CUNY), Michael Meranze (UCLA), Richard Ross (Maryland), Shane Landrum (Florida International), Jennifer Mittelstadt (Rutgers), H. Robert Baker (Georgia State), Lou Williams (Kansas State), Kate Masur (Northwestern), Joanna Grisinger (Northwestern), Melissa Macauley (Northwestern), Kathleen Brosnan (Oklahoma), Rena Lauer (Oregon State), Kathlene Baldanza (Penn State), Craig Hammond (Penn State), Emily Blanck (Rowan), Rebecca Rix (Princeton), Jack Rakove (Stanford), Susan Hinely (Stony Brook), James Gigantino (Arkansas), Peter Larson (Central Florida), Victor Bailey (Kansas), Abigail Firey (Kentucky), Daniel Gargola (Kentucky), Jennifer Nye (UMass-Amherst), Kate Ramsey (Miami), Anne S. Twitty (Mississippi), Guy Chet (North Texas), Kevin Butterfield (Oklahoma), Andrew Porwancher (Oklahoma), Kathryn Schumaker (Oklahoma), Randall McGowen (Oregon), Peter Karsten (Pittsburgh), Christopher Curtis (Armstrong State), Sam Lebovic (George Mason), Charlotte Walker-Said (John Jay), Timothy Huebner (Rhodes College), Sarah Milov (Virginia), Kate Brown (Huntington), Erika Vause (Florida Southern), Alejandro de la Fuente (Harvard), John Wertheimer (Davidson), Michael Schoeppner (Maine-Farmington), Nate Holdren (Drake), Anne O'Donnell (Harvard), Kirt von Daacke (Virginia), Nancy Woloch (Barnard), Katherine Hermes (Central Connecticut), Cedric de Leon (Providence College), Lee B. Wilson (Clemson), Carole Emberton (SUNY-Buffalo), Jonathan Gienapp (Stanford).

Again, I know my non-scientific methodology (conference programs, google searches, names in my inbox) has left out lots of people who should be on this list.  I’ve probably mangled a few affiliations, too.  I hope commentators and tweeters use their megaphones to set me straight.  I apologize in advance!

The point of the preceding list was not to be comprehensive, though.  Rather it was in part to give Legal History Blog readers—a great many of whom reside on law faculties—a sense of the remarkable depth of legal history in history departments.  Yet another reason for going down this road is to pick up on a thread from my previous post.  There I had postulated that legal history did not always fit comfortably within the confines of history departments.  In a book driven field, I personally felt pressure to push my project about very legal topics—statutes and administration, for instance—toward topics that had a broader audience within history departments.  But today I’ll try and mute my narcissism for a moment and think more generally about the seeming paradox: the breadth of legal history scholarship in history departments and the persisting uncomfortable fit of legal history within history departments.

First, is there a problem here at all?  For one thing, history departments only rarely search for legal historians.  This year the American Historical Association Careers site finds only one available position for legal historians—the Siegenthaler Chair in American History at Vanderbilt University.  A decade or so worth of search ads on the H-Net Job Guide finds thirteen positions within the United States.  This discussion is not at all intended to mimick the incorrect recent argument of Frederick Lovegall and Kenneth Osgoodthat a paucity of searches in political history reflected that field’s long goodbye.  In fact the opposite is true of both political history and legal history.  As the list above suggests, legal history is booming within history departments.  If someone were to build a similar list of political historians they would surely come to the same conclusion about that field.  But the lack of searches for tenure-line legal historians suggests a structural deficit of interest in hiring faculty who chiefly identify as legal historians.

The sleight of hand at play in my list is that almost everyone on it was not hired as a legal historian but rather as a promising historian of an important historical theme or an epochal, chronological division.  There are, of course, exceptions to this hypothesis, especially in hires for faculty to serve as pre-law advisors or to run pre-law programs.  But by and large legal historians in history departments wear at least two hats as historians of, say, the early American republic and as historians of law.  It is undeniable that historians on law faculties perform similar labors as they juggle black letter teaching and historical research (when the two do not converge).  But a quick glance at the leading legal history journals and legal history conference programs—the Law& History Review, the AmericanJournal of Legal History, Law &Social Inquiry, the American Society for Legal History—suggests that despite the fact that legal historians on history and law faculties do double-duty, fewer of those in history departments choose legal history venues to present their work.  Here then is a second reason there may be a problem for it is not just university administrators overlooking legal history for other fields.  In fact, legal historians within history departments are steering themselves elsewhere.

Those seeking jobs within history departments—who have it tough enough as it is—have long adjusted to the nominal demand problem in their field by teaching well beyond legal history.  Many simply call themselves something else.  Depending on what job I was applying for, I was a historian of early America (not so much), the early republic (yes), the American revolution (sure), the long nineteenth-century (ok), America in the world (hmmm), and big data (eeek).  Joking aside, legal historians on the history job market learn how to be flexible and how to make their legal history research speak to more widely advertised fields in the market, such as it is and has been. 

Some have also found that their work speaks to contemporary concerns.  Carceral state scholars are a case in point.  Jen Manion, whose Liberty’s Prisoners: Carceral Culture in Early America is one of my favorite recent books, taught at Connecticut College and now is in the history department at Amherst College.  Melanie Newport, who is working on a book about the jail crisis in twentieth-century Cook County, Illinois, now teaches at the University of Connecticut-Hartford.  Katherine Unterman, author of the outstanding Uncle Sam’s Policemen: The Pursuit of Fugitives Across Borders(2015), teaches in the history department at Texas A&M.  Elizabeth Kai Hinton teaches at Harvard University and has written the recently published but already well-received From the War on Poverty to the War on Crime(2016).  Julilly Kohler-Hausmann’s Getting Tough: Welfare and Imprisonment in 1970s America is much anticipated (slated for 2017).  She teaches at Cornell.  And as if to underscore my point about this type of scholarship making waves outside of traditional legal history venues, essays by Kohler-Hausmann and Hinton on the carceral state were paired in an issue of the Journal of Urban History(vol. 41, no. 5, 2015).

There are a great many more scholars within history departments who would not identify as legal historians but whose work has a great deal to say about law, governance, and the state.  That same issue of the Journal of Urban History features work by my good friend, Timothy Stewart-Winter of Rutgers-Newark.  From the title alone, Stewart-Winter’s outstanding essay, “The Law and Order Origins of Urban Gay Politics” is of clear interest to legal historians.  But since Stewart-Winter’s faculty profile lists his interests as “sexuality and gender, political, social, urban, African American,” some may not guess that his recent book, Queer Clout: Chicago and the Riseof Gay Politics, would also be of interest to legal historians.  It most certainly is.  A second example is to be found on the other side of the NY metropolitan region in the work of Stony Brook’s Kathleen Wilson.  In my opinion, Wilson’s 2011 essay in the American Historical Review, “Re-thinking the Colonial State: Gender and Governmentality in theEighteenth-Century British Empire” is a pathbreaking model for new approaches to the boundaries of state power in the age of revolution.  Yet Wilson’s stated interests on her faculty page are “modern British cultural and political history.”  Of course neither Stewart-Winter nor Wilson need identify themselves as legal historians.  But legal historians would be wise to explore their work.

But how should legal historians not-in-the-know find the work of scholars like Stewart-Winter or Wilson who may describe themselves as something else?  Herein lies the challenge and the potential danger of history departments with limited lines for ‘legal historians.’ It is admittedly very difficult for already overworked scholars to read even more journals and keep abreast of multiple historiographies.  

Yet I am bullish nonetheless.  Social media, much-maligned for elevating cat GIFs to an art form, has also succeeded in becoming a wonderful platform for historians to learn of works in fields that they may not consider their own.  Twitter, where I do spend a great deal of time kvetching about my sports teams, was also where I learned about that above referenced issue of the Journal of Urban History, as well as works by Debjani Battacharyya and Emily Blanck, among many others.  Blanck’s work was also serialized in Slate wherein it was shared several hundred times on Facebook.  The Atlantic Monthly, perhaps due to the guidance of social and cultural historian Yoni Applebaum, has also become a premier venue for legal historians to present their work to new audiences.  A second source of optimism lies in the incredible strength of legal history within law faculties.  Because it is almost impossible to be a legal historian in a law school without a doctorate in history, law school legal historians—especially graduates within the past decade plus—quite rightly see their work in dialogue with their history department counterparts.  Here’s one example: our own Karen Tani’s States of Dependency: Welfare, Rights, andAmerican Governance, 1935-1972 (2016), who LHB readers will know teaches in a law school and has a Ph.D. from the University of Pennsylvania, clearly curries a scholarly conversation with University of Vermont historian Felicia Kornbluh’s great book, The Battle for Welfare Rights: Politics and Poverty in Modern America (2007).  Likewise, University of New Hampshire historian Eliga Gould’s Among the Powersof the Earth: the American Revolution and the Making of a New World Empire interlocutes with the work of NYU Law School legal historian Daniel Hulsebosch as well as Hulsebosch’s more recent collaboration with his colleague DanielGolove. 


In short, the conversation is already happening.  I believe it will only continue to grow.  So much for the present, then.  And since my first two posts dredged up the past, I’ll devote my next and final post to talking a little about the future and my next project.  As always I look forward to your feedback.

Wednesday, September 21, 2016

Benton and Ford on International Law

Just out with Harvard University Press is Rage for Order: The British Empire and the Origins of International Law, 1800-1850, by Lauren Benton (Vanderbilt) and Lisa Ford (University of New South Wales). From the press:
International law burst on the scene as a new field in the late nineteenth century. Where did it come from? Rage for Order finds the origins of international law in empires—especially in the British Empire’s sprawling efforts to refashion the imperial constitution and use it to order the world in the early part of that century.

Lauren Benton and Lisa Ford uncover the lost history of Britain’s global empire of law in colonial conflicts and bureaucratic dispatches rather than legal treatises and case law. Tracing constitutional politics around the world, Rage for Order shows that attempts to refashion the British imperial constitution touched on all the controversial issues of the day, from slavery to revolution. Scandals in turbulent colonies targeted petty despots and augmented the power of the Crown to intervene in the administration of justice. Campaigns to police piracy and slave trading linked British interests to the stability of politically fragmented regions. Dull bureaucrats dominated legal reform, but they did not act in isolation. Indigenous peoples, slaves, convicts, merchants, and sailors all scrambled to play a part in reordering the empire and the world beyond it. Yet, through it all, legal reform focused on promoting order, not advancing human rights or charting liberalism.  
Rage for Order maps a formative phase in world history when imperial, not international, law anchored visions of global order. This sweeping story changes the way we think about the legacy of the British Empire and the meaning of international law today.
A few blurbs (after the jump):

Lindseth on the EU as "Administrative" or "Constitutional"

Peter L. Lindseth, University of Connecticut School of Law, has posted What's in a Label? The EU as “Administrative” and “Constitutional,” which is forthcoming in Susan Rose-Ackerman, Peter Lindseth, and Blake Emerson, eds., Comparative Administrative Law, 2d ed. (Elgar):
How shall we “come to terms” with the complex reality of governance in the European Union? If we regard this challenge in strictly legal terms and, more importantly, give the pronouncements of the European Court of Justice (ECJ) and sympathetic legal commentators the dispositive role in our determination, then the response is clear: The EU is a “constitutional” level of governance in its own right, with the EU treaties serving as a “constitutional charter of a Community based on the rule of law”. There is another sense of “coming to terms”, however, that is less ECJ-centric. It looks beyond the nominal and legal and moves into the sociological and historical domains. It recognizes that “coming to terms” must focus on the core disconnect at the heart of European integration, in which regulatory power has undoubtedly shifted to the supranational level but the EU lacks autonomous democratic and constitutional legitimacy to support the exercise of that power in its own right. The EU legal order clearly enjoys a legal, technocratic and functional legitimacy sufficient to support autonomous regulatory power of a uniquely powerful supranational type. The problem with the nominal constitutionalism of the ECJ and legal commentators, however, is that it proceeds “as if” the EU possesses robust democratic and constitution legitimacy in its own right, in defiance of the EU’s actual socio-historical character. Two features of EU public law — nationally grounded resource mobilization and nationally mediated legitimacy — point strongly to the EU’s character as ultimately derivative, delegated, and “administrative”, operating as a regulatory “agent” of democratic and constitutional “principals” who remain largely national. These features of EU governance focus our attention on what we can call “the power-legitimacy nexus”; that is, the linkage between the nature of the legitimacy enjoyed by a legal or political order (legal, technocratic, functional, or robustly democratic and constitutional) and the scope of power that the legal order can then successfully exercise. Using a comparative administrative law perspective, this chapter argues that several judicial doctrines of the ECJ — relating to “legal basis”, “subsidiarity” and “supremacy”, among others — should be reformed to bring them more fully into line with the EU’s actual socio-historical character as an instance of supranational administrative governance. Rather than indulging in an “as if” constitutionalism as the ECJ has done, the public law of European integration should confront the EU as it actually is. In “coming to terms” with this reality, we must do more than simply label it; rather, we must also understand how European law, both national and supranational, should evolve to accommodate its underlying socio-historical disconnect and the contradictions it raises.

New Perspectives on European Women’s Legal History,

Just published is New Perspectives on European Women’s Legal History, ed. Sara L. Kimble and Marion Rowekamp (Routledge):
This book integrates women’s history and legal studies within the broader context of modern European history in the late nineteenth and twentieth centuries. Sixteen contributions from fourteen countries explore the ways in which the law contributes to the social construction of gender. They analyze questions of family law and international law and highlight the politics of gender in the legal professions in a variety of historical, social and national settings, including Eastern, Southern, Western, Northern and Central Europe. Focusing on different legal cultures, they show us the similarities and differences in the ways the law has shaped the contours of women and men’s lives in powerful ways. They also show how women have used legal knowledge to struggle for their equal rights on the national and transnational level. The chapters address the interconnectedness of the history of feminism, legislative reforms, and women’s citizenship, and build a foundation for a comparative vision of women’s legal history in modern Europe.
TOC here.

Tuesday, September 20, 2016

12th Annual Israeli History and Law Association

[We have the following announcement.]

The Twelfth Annual Conference of the Israeli History and Law Association will be held on Monday, October 10, 2016, at  Yad Izhak Ben-Zvi, Ibn Gvirol 14, Jerusalem.  Enquiries can be directed to berg@post.tau.ac.il.

Complete schedule after the jump.

Smail on Households and Debt Collection in Late Medieval Europe

New from Harvard University Press: Legal Plunder: Households and Debt Collection in Late Medieval Europe (2016), by Daniel Lord Smail (Harvard University). A description from the Press:
As Europe began to grow rich during the Middle Ages, its wealth materialized in the
well-made clothes, linens, and wares of ordinary households. Such items were indicators of one’s station in life in a society accustomed to reading visible signs of rank. In a world without banking, household goods became valuable commodities that often substituted for hard currency. Pawnbrokers and resellers sprang up, helping to push these goods into circulation. Simultaneously, a harshly coercive legal system developed to ensure that debtors paid their due.
Focusing on the Mediterranean cities of Marseille and Lucca, Legal Plunder explores how the newfound wealth embodied in household goods shaped the beginnings of a modern consumer economy in late medieval Europe. The vigorous trade in goods that grew up in the fourteenth and fifteenth centuries entangled households in complex relationships of credit and debt, and one of the most common activities of law courts during the period was debt recovery. Sergeants of the law were empowered to march into debtors’ homes and seize belongings equal in value to the debt owed. These officials were agents of a predatory economy, cogs in a political machinery of state-sponsored plunder.
As Daniel Smail shows, the records of medieval European law courts offer some of the most vivid descriptions of material culture in this period, providing insights into the lives of men and women on the cusp of modern capitalism. Then as now, money and value were implicated in questions of power and patterns of violence.
A few blurbs:
Full of unexpected insights, this exciting and innovative social history brings the late Middle Ages to life through everyday objects that served as the basis of an emotional package of vanity, optimism, humiliation, and violence surrounding debt seizures.—Paul Freedman, Yale University
A terrific book, rich with well-told anecdotes as well as smart analytical interventions. Smail makes ordinary people more than mere onlookers or victims of the long so-called commercial revolution of Europe.—Martha Howell
More information is available here.

Monday, September 19, 2016

Lederman on History's Lessons for Wartime Military Tribunals

Martin Lederman, Georgetown University Law Center, has posted If George Washington Did it, Does that Make it Constitutional? History's Lessons for Wartime Military Tribunals, which is forthcoming in the Georgetown Law Journal:    
Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, targeting U.S. forces, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may consider as early as this Term.

In the rare cases where the Court has recognized exceptions to Article III’s criminal trial protections, it has almost invariably invoked functional and normative justifications; as this Article explains, however, the government has not offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees when adjudicating domestic-law offenses, even in wartime. The government and judicial defenders of military tribunals thus must rely almost exclusively upon historical claims to defend the constitutionality of using commissions. This Article addresses one of the government’s central historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to “carry[] on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British.

The Article provides the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which they have been invoked as authority, and mischaracterized, in later wars. It demonstrates that the age-old received wisdom about those precedents is almost entirely mistaken, and that they do not offer a basis for recognizing a new Article III exception for military adjudication of war-related domestic-law offenses.

The pre-constitutional history does, however, include one conspicuous aberration —a
Joshua Hett Smith House, Treason Hill (wiki)
1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.

More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.

Sweeney on Cohabitation Statutes

Joanne Sweeney, University of Louisville, has posted Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws, which appeared in the Loyola University of Chicago Law Journal 46 (2014); 127-173:
Cohabitation is a reality for a majority of Americans. Non-monogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. This Article traces that progression by looking at how American culture has changed over time, including judicial views on and changing evidentiary standards for the crimes of adultery and fornication, both of which have led to fewer prosecutions. The resulting picture indicates why these laws are no longer regularly enforced and why they still remain part of the criminal codes in several states, regardless of their uncertain constitutional pedigree.
The article should be read in conjunction with Elizabeth Pleck’s Not Just Roommates, perhaps while listening to this.

Legal History @ LAPA, Fall 2016

Three of the five meetings of the seminar of Princeton University's Law and Public Affairs(LAPA) Program this semester are legal historical.  The seminar meets Mondays at 4:30 PM, in 301 Marx Hall.  The format is paper in advance with a commentator who summarizes the main themes of the paper and presents topics for discussion.

September 26, 2016
The Systems Fallacy: The Perils of Systems Analysis, Past and Present (From Operations Research to Contemporary Cost-Benefit Analysis)
Bernard E. Harcourt, Columbia University
At the height of the Cold War in the late 1950s and early 1960s, a decision-making technique called Systems Analysis was perfected and began to be applied broadly from matters of national defense strategy to government policy to criminal justice. The turn to systems analysis has been deeply consequential in the field of law and public policy, and is essentially responsible for the dominant role that cost-benefit analysis plays today throughout the administrative state. A close examination of the attempt to extend the use of systems models from the narrow military domain to the broader public policy context, however, reveals a recurring problem centered on the choice of scope of the analysis. I call this “The Systems Fallacy” and I demonstrate it in this essay.
November 7, 2016
Outcasts from the Vote: Women Suffrage and Disability over the Long 19th Century
Rabia Belt, Stanford Law School

November 28, 2016

Distraction Framed: Law and Mental Disabilities in Early New England
Cornelia Dayton, LAPA Fellow; University of Connecticut

Levinson, ed., "Nullification and Secession in Modern Constitutional Thought"

New from the University Press of Kansas: Nullification and Secession in Modern Constitutional Thought (Sept. 2016), edited by Sanford Levinson (University of Texas). A description from the Press:
The Missouri legislature passes a bill to flout federal gun-control laws it deems unconstitutional. Texas refuses to recognize same-sex marriages, citing the state's sovereignty. The Tenth Amendment Center promotes the “Federal Health Care Nullification Act.” In these and many other similar instances, the spirit of nullification is seeing a resurgence in an ever-more politically fragmented and decentralized America. What this means—in legal, cultural, and historical terms—is the question explored in Nullification and Secession in Modern Constitutional Thought. Bringing together a number of distinguished scholars, the book offers a variety of informed perspectives on what editor Sanford Levinson terms “neo-nullification,” a category that extends from formal declarations on the invalidity of federal law to what might be called “uncooperative federalism.”
Mark Tushnet, Mark Graber, James Read, Jared Goldstein, Vicki Jackson, and Alison La Croix are among the contributors who consider a strain of federalism stretching from the framing of the Constitution to the state of Texas’'s most recent threat to secede from the United States. The authors look at the theory and practice of nullification and secession here and abroad, discussing how contemporary advocates use the text and history of the Constitution to make their cases, and how very different texts and histories influence such movements outside of the United States—in Scotland, for instance, or Catalonia, or Quebec, or even England vis-à-vis the European Union. Together these essays provide a nuanced account of the practical and philosophical implications of a concept that has marked America's troubled times, from the build-up to the Civil War to the struggle over civil rights to battles over the Second Amendment and Obamacare.
Subscribers to Project Muse may access full content here.

We've previously noted the contribution by Alison LaCroix (University of Chicago), on "Secession and the Confederate Constitution."

Sunday, September 18, 2016

Sunday Book Review Roundup


There's an exciting collection of reviews out this week.

In The Nation, Stephanie McCurry reviews Manisha Sinha's The Slave’s Cause: A History of Abolition.  Also in Then Nation is a review of Habermas: A Biography by Stefan Müller-Doohm.  Finally, readers might find interesting this review essay on Picturing Frederick Douglass: An Illustrated Biography of the Nineteenth Century's Most Photographed American and Racecraft: The Soul of Inequality in American Life by Karen E. Fields and Barbara J. Fields.

The New York Times has a review of Richard Kluger's Indelible Ink: The Trials of John Peter Zenger and the Birth of America's Free Press.  Also reviewed is Blood at the Root: A Racial Cleansing in America by Patrick Phillips (Blood at the Root is also featured on NPR's Fresh Air).

The Washington Post has a review of Candice Millard's Hero of the Empire: The Boer War, a Daring Escape, and the Making of Winston Churchill.  His Final Battle: The Last Months of Franklin Roosevelt by Joseph Lelyveld is also reviewed in The Washington Post.

His Final Battle has also received a review in The New York Review of Books.

At the New Book Network is an interview with Barbara Hahn and Bruce Baker, authors of The Cotton Kings: Capitalism and Corruption in Turn-of-the-Century New York and New Orleans.  Also interviewed is Holly Allen, author of Forgotten Men and Fallen Women The Cultural Politics of New Deal Narratives.  Finally, there is an interview with Mireya Loza about her Defiant Braceros How Migrant Workers Fought for Racial, Sexual, and Political Freedom.


On H-Net is a review of Elizabeth Dale's Robert Nixon and Police Torture in Chicago, 1871-1972

Common-Place has released a new issue.  In it is a review of Mary Sarah Bilder's Madison's Hand: Revising the Constitutional Convention.   Also reviewed is Padraig Riley's Slavery and the Democratic Conscience: Political Life in Jeffersonian America.

In the Los Angeles Review of Books is a review of Akhil Reed Amar's The Constitution Today: Timeless Lessons for the Issues of Our Era.

Public Books carries a review of Sebastian Conrad's What Is Global History?.  Also in Public Books is a review of Roger Casement: The Black Diaries - with a study of his background, sexuality, and Irish political life by Jeffrey Dudgeon.

Finally, though it's well outside the realm of legal history, the New Yorker has an enjoyable review essay on Paul Freedman's Ten Restaurants That Changed America.

Saturday, September 17, 2016

Weekend Roundup

  • Kalyani Ramnath, a doctoral candidate at Princeton University, is interviewed on a bollywood film's depiction of the Nanavati trial.
  • Margaret Wood, a legal reference librarian at the Law Library of Congress, on conscription in World War I, on Library of Congress Blog.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 16, 2016

CFP: A Return to the Archives

[Whoever left?  But, seriously, we have the following CFP.  H/t: Jay Stewart.]

The Society for History in the Federal Government (SHFG) will hold its annual meeting on April 13, 2017, at the National Archives and Records Administration (NARA) Building in Washington D.C.

Throughout its 37-year history, the SHFG has enjoyed a unique & fruitful relationship with the National Archives (NARA). As the primary steward of the nation’s records, NARA’s holdings are indispensable to federal historians and public history professionals across the nation. In turn, SHFG members have used NARA’s resources for official work duties and personal projects. Thus, the Society’s annual meeting will highlight the interplay among archivists, historical researchers, and public history professionals that enables a greater understanding of our collective past.

The program committee invites participants to broadly interpret the conference theme, “A Return to the Archives.” Topics might include: the impact of technology and archival resources on the sharing of public history; the challenges of managing and preserving data in a digital age; recent projects from local and state archives, special collections, and non-government archival collections; how archival repositories use the web for outreach and to promote their collections; the use of archival resources  in oral history programs; and research into the history of the federal government using archival sources.

The program committee invites entire panels and roundtables, as well as individual papers. We welcome proposals from graduate students, federal historians, public historians, archivists from varied institutions, oral historians, digital archivists, and scholars from other disciplines. We also welcome panels composed of practitioners from a variety of backgrounds and experiences in these topics.

Paper proposals should include a brief abstract of 250-300 words, a brief biographical paragraph for the presenter, and contact information. Panel proposals should include brief abstracts of each paper as well as biographical paragraphs and contact information for each presenter.  Deadline for proposals is November 15, 2016.

Please visit SHFG’s website for further information. Please send all correspondence, including questions and proposals, to shfgannualmeeting@gmail.com.

Call for Applications: Hurst Summer Institute in Legal History

Attention advanced graduate students and junior scholars -- the Hurst Summer Institute is now accepting applications. This year's Institute will be led by LHB's own Mitra Sharafi (University of Wisconsin):
Call for Applications
Hurst Summer Institute in Legal History: June 4-17, 2017
University of Wisconsin-Madison
Application Deadline: 12/1/2016

Invitation

The American Society for Legal History and the Institute for Legal Studies at the University of Wisconsin Law School are pleased to invite applications for the ninth biennial Hurst Summer Institute in Legal History. The purpose of the Hurst Institute is to advance the approach to legal scholarship fostered by J. Willard Hurst in his teaching, mentoring, and scholarship. The Hurst Institute assists scholars from law, history, and other disciplines in pursuing research on the legal history of any part of the world.

The 2017 Hurst Institute will be led by Mitra Sharafi, Associate Professor of Law and Legal Studies (with History affiliation) at University of Wisconsin-Madison. The two‑week program features presentations by guest scholars, discussions of core readings in legal history, and analysis of the work of the participants in the Institute. The ASLH Hurst Selection Committee will select twelve Fellows to participate in this event.

Applicant Qualifications

Scholars in law, history and other disciplines pursuing research on legal history of any part of the world are eligible to apply. Preference will be given to applications from scholars at an early stage of their career (beginning faculty members, doctoral students who have completed or almost completed their dissertations, and J.D. graduates with appropriate backgrounds).

Fellowship Requirements

Fellows are expected to be in residence for the entire two‑week term of the Institute, to participate in all program activities of the Institute, and to give an informal works‑in‑progress presentation in the second week of the Institute.

Application Process

(1) Submit the following materials in a single pdf file starting with your last name to ils@law.wisc.edu. Multiple attachments will not be accepted.
·         Curriculum Vitae with your complete contact information.
·         Statement of Purpose (maximum 500 words) describing your current work, specific research interests, and the broader perspectives on legal history that inform your work.

(2) Arrange to have two letters of recommendation sent electronically as a pdf files (these must be on institutional letterhead and signed) to ils@law.wisc.edu by the deadline.

Please note that late or incomplete applications will not be accepted.


Questions: Contact ils@law.wisc.edu