Coming to America: Lawyers, Exploration and Colonization

In the late summer of 1517, an English lawyer set out to discover America for himself. Inspired by brother-in-law Thomas More's new book Utopia and the very real expeditions of John Cabot years previous, John Rastell sailed for the "New Found Land" with four ships and a letter of recommendation from Henry VIII.

He never made it. His crew balked at the transatlantic crossing, proposed piracy at one point, and unceremoniously deposited Rastell in Ireland. Eventually returning to England, he sued the purser of one of his ships for compensation, but the lengthy litigation ultimately failed and Rastell went on to other things - among them, publishing the first English law dictionary in 1523.

The Rastell expedition is fascinating not just on its own terms, but as an early manifestation of an intense but now underplayed nexus linking English lawyers and efforts at American exploration and colonization over the next hundred years. This nexus is, I think, a much needed antidote to the conventional wisdom that lawyers were relative latecomers to America, and that prior to the mid-seventeenth century (and even for some time after that) they played but a minor role in American development. This may be technically true if we look only at lawyers in their capacity as practitioners, but if we look at them in other cultural capacities - as explorers, propagandists, investors, settlers, chroniclers and even early "framers" - it could not be more false.

CFP: “'Rights' in World History"

Via H-Law, we have the following announcement:

The Midwest World History Association is happy to announce a call for paper, poster, panel, roundtable, and workshop proposals for its annual conference to be held at Governors State University in University Park, Illinois, on September 26th and 27th 2014. The conference theme of “Rights” in World History is intended to connect the 50th anniversary of the 1964 Civil Rights Act with other struggles to conceptualize, claim, and defend the “rights” of individuals and groups in different societies and at different times.

The keynote will be given by award-winning journalist, activist, and historian Juan Gonzales. Robert Smith of UW-Milwaukee will offer a half-day workshop for teachers on The Civil Rights Movement in Transnational Context.

Please email a 250-word abstract and a short curriculum vitae via to nat.godley@alverno.edu no later than APRIL 30th, 2014. Where a complete panel is proposed, the convener should also include a 250 word abstract of the panel theme.

Rathod, "Distilling Americans: The Legacy of Prohibition on U.S. Immigration Law"

Jayesh Rathod (American University - Washington College of Law) has posted "Distilling Americans: The Legacy of Prohibition on U.S. Immigration Law." The article appears in Volume 51 of the Houston Law Review (2014). Here's the abstract:

Since the early twentieth century, federal immigration law has targeted noncitizens believed to engage in excessive alcohol consumption by prohibiting their entry or limiting their ability to obtain citizenship and other benefits. The first specific mention of alcohol-related behavior appeared in the Immigration Act of 1917, which called for the exclusion of “persons with chronic alcoholism” seeking to enter the United States. Several decades later, the Immigration and Nationality Act of 1952 specified that any noncitizen who “is or was . . . a habitual drunkard” was per se lacking in good moral character, and hence ineligible for naturalization. Although the “chronic alcoholism” provision was eventually removed from the grounds of exclusion, the habitual drunkard clause remains part of the statute, vexing both scholars and practitioners, and casting a shadow over many different forms of relief.

This Article uncovers the complex history of the habitual drunkard clause and similar alcohol-related norms in U.S. immigration law. In so doing, the Article explores a more transcendent question: how do we explain the preoccupation with noncitizen drunkenness in U.S. immigration law and in the immigration system at large? To guide both inquiries, the Article describes changing perceptions of alcohol use in U.S. history, from colonial times, to the Prohibition Era, to the present. To accompany this historical overview, the Article describes the legal regulation of drunkenness and alcohol-related behavior, uncovering its muddled normative foundations. The Article argues that different iterations of alcohol-related regulation since the nation’s founding — including, most notably, the Prohibition Era — have operated as forms of social, economic, and/or political control over noncitizens. Indeed, a complex set of factors has fueled these laws, including entrenched fears and stereotypes about immigrants, the desire to advance particular values and a vision of society, race- and class-based animus, and the simple preservation of power. These subterranean concerns continue to nourish narratives about immigrant alcohol use and its resulting ills — narratives that have captured the public consciousness, but are often untethered from empirical reality.

Having detailed the history and complexity of alcohol-related norms in U.S. immigration law, the Article examines the present-day utility of the habitual drunkard clause, a provision that has endured for more than six decades. The Article urges the elimination of the clause in light of contemporary understandings of alcohol use and complementary provisions in immigration law that screen for alcohol dependence and related conduct. This legislative fix, while important, is an initial step in curbing the broader legacy of Prohibition, which persists today in the exercise of discretion in immigration enforcement, adjudication in immigration courts, and in recurring legislative proposals targeting immigrant alcohol use.

Read on here.

New Release: Buckingham, "Fighting over God: a Legal and Political History of Religious Freedom in Canada"

Via the Canadian Legal History Blog, we have word of a new release from McGill-Queen's University Press: Fighting over God: a Legal and Political History of Religious Freedom in Canada (2014), by Janet Epp Buckingham (Trinity Western University). Here's a description from the Press:

From before Confederation to the present day, religion has been one of the most contentious issues in Canadian public life. In Fighting over God, Janet Buckingham surveys a vast array of religious conflicts, exploring both their political aspects and the court cases that were part of their resolution.

While topics such as the Manitoba Schools Crisis and debates about Sunday shopping are familiar territory, Buckingham  focuses on lesser-known conflicts such as those over the education of Doukhobor and Mennonite children and the banning of the Jehovah's Witness religion under the Defence of Canada Regulations during the Second World War. Subjects are explored thematically with chapters on the history of religious broadcasting, education, freedom of expression, religious practices, marriage and family, and religious institutions.

Contentious issues about religious accommodation are not going away. Fighting over God cites over six hundred legal cases, across nearly four centuries, to provide a rich context for the ongoing social debate about the place of religion in our increasingly secular society.

More information, including the TOC, is available here.

Sunday Book Roundup

Today, the Los Angeles Review of Books has a review of Estelle Freedman's Redefining Rape: Sexual Violence in the ERA of Suffrage and Segregation (Harvard University Press), and a review of Patrick Coffey's American Arsenal: A Century of Waging War (Oxford University Press).

There's also a review of Lewis Perry's Civil Disobedience: An American Tradition (Yale University Press).

"Perry goes on to delineate some of the basic rationales behind civil disobedience as well as the tensions in that reasoning. Perry seems most interested in tracing the fault lines in civil disobedience theory: moral authority versus media coverage? Individual consciousness versus higher power? Righteous law-breaking or general disorder? Civil disobedients, Perry posits, paradoxically respect the law and societal institutions (like courts) while feeling, at the same time, that they cannot acquiesce in perceived immoralities perpetrated by those same institutions. While civil disobedience is not mentioned in the Constitution — indeed, the Founding Fathers were fairly allergic to all forms of law-breaking — some people have taken the incorrect and paradoxical view that the First Amendment protects civil disobedience. But it would also be wrong to say that civil disobedience has no relationship to fundamental rights, because such individual rights are frequently the basis of civil protest movements."

Over at NewBooksInHistory.com, there is a discussion with Aram Goudsouzian about his new book Down to the Crossroads: Civil Rights, Black Power, and the Meredith March Against Fear (Farrar, Straus and Giroux).

H-Net adds a review of John B. Jentz and Richard Schneirov's Chicago in the Age of Capital: Class, Politics, and Democracy during the Civil War and Reconstruction (University of Illinois Press).

Also on H-Net is a review of David Allen Burke's Atomic Testing in Mississippi: Project Dribble and the Quest for Nuclear Weapons Treaty Verification in the Cold War Era (Louisiana State University Press).

There's also a review in the Washington Post of The Problem of Slavery in the Age of Emancipation by David Brion Davis (Knoft).

Rutherglen on Reverse Discrimination and Congress, 1866

George A. Rutherglen, University of Virginia School of Law, has posted The Origins of Arguments

“The Freedmen's Bureau,” A. R. Waud (LC)

Over Reverse Discrimination: Lessons from the Civil Rights Act of 1866.  Here is the abstract:    

Disputes, disagreement, ambiguity, and ambivalence have marked the law of affirmative action since it came to prominence in the Civil Rights Era, nearly 50 years ago. These current controversies might be attributed to modern attitudes, and in particular, the need to delay enforcement of a strict colorblind conception of prohibitions against discrimination until the continuing effects of racial and ethnic discrimination have been eliminated. But a look at the origins of the civil rights law in Reconstruction belies this modernist perspective, which foreshortens debates to the aftermath of Brown v. Board of Education rather than rediscovering their origins in Reconstruction. This article attempts to rediscover those origins by re-examining the legislative history and immediate reception of the Civil Rights Act of 1866 as it bears upon race-conscious remedies for racial discrimination. The argument proceeds in three parts. The first concerns the 1866 Act itself and the congressional debates over it, which featured charges of special treatment despite the neutral terms of the act. The second compares the act to the legislation authorizing the Freedmen’s Bureau, where arguments of special treatment carried more force, so much so that the authorization for the bureau had to remain temporary and it lapsed well before Reconstruction ended. The third part briefly considers the implications of this comparison for modern civil rights law, and in particular, for constitutional arguments over affirmative action. No one-to-one correspondence exists between the legislative debates in 1866 and constitutional arguments today, but the debates then have left their traces now in concerns over special remedies for discrimination, and in particular, over how long they last.

Rana on Constitutionalism and the Foundations of the Security State

Aziz Rana, Cornell Law School, has posted Constitutionalism and the Foundations of the Security State.  Here is the abstract:

Scholars often argue that the culture of American constitutionalism provides an important constraint on aggressive national security practices. This article challenges the conventional account by highlighting instead how modern constitutional reverence emerged in tandem with the national security state, functioning critically to reinforce and legitimate government power rather than simply to place limits on it. This unacknowledged security origin of today’s constitutional climate speaks to a profound ambiguity in the type of public culture ultimately promoted by the Constitution. Scholars are clearly right to note that constitutional loyalty has created political space for arguments more respectful of civil rights and civil liberties, making the very worst excesses of the past less likely. But at the same time, public discussion around protecting the Constitution – and with it a distinctively American way of life – has also served as a key justification for strengthening the government’s security infrastructure over the long-run.

I argue that in the late nineteenth and early twentieth centuries, significant popular skepticism actually existed concerning the basic legitimacy of the Constitution. But against the backdrop of World War I and the Russian Revolution, a combination of corporate, legal, and military elites initiated a concerted campaign to establish constitutional support as the paramount prerequisite of loyal citizenship. Crucially, such elites viewed the entrenchment of constitutional commitment as fundamentally a national security imperative; they called for dramatically and permanently extending the reach of the federal government’s coercive apparatus. In the process, defenders of the Constitution reproduced many of the practices we most associate with extremism and wartime xenophobia: imposed deference and ideological uniformity, appeals to exceptionalism and cultural particularity, militarism, and political repression. Moreover, the problem with such World War I origins for today’s constitutional climate is not simply that of a troubling but distant past. Rather, the foundations developed nearly a century ago continue to intertwine constitutional attachment with the prerogatives of the national security state in ways that often go unnoticed – emphasizing the real difficulties of separating the liberal and illiberal dimensions of American constitutional culture.

CFP: Criminology, Criminal Justice, Law & Society

We have the following Call For Papers:

Criminology, Criminal Justice, Law & Society (CCJLS), formerly Western Criminology Review (WCR), is the official journal of the Western Society of Criminology. This peer-reviewed journal builds on the mission of its predecessor by promoting understanding of the causes of crime; the methods used to prevent and control crime; the institutions, principles, and actors involved in the apprehension, prosecution, punishment, and reintegration of offenders; and the legal and political framework under which the justice system and its primary actors operate. Historical and contemporary perspectives are encouraged, as are diverse theoretical and methodological approaches.

CCJLS publishes

· theoretical and empirical research on criminology, criminal justice, and criminal law and society;

· practice-oriented papers (including those addressing teaching/pedagogical issues);

· essays and commentary on crime, law, and justice policy;

· replies and comments to articles previously published in CCJLS or WCR;

· book and film reviews; and

· scholarly article reviews.

Manuscripts must be submitted electronically through the journal’s portal on Scholastica (https://scholasticahq.com/criminology-criminal-justice-law-society). Submissions should be formatted according to the Publication Manual of the American Psychological Association, Sixth Edition (2009). All correspondence is conducted online to speed the review process. Due to the advantages of being an online journal, there are no page, color, or appendix restrictions, although a 30-page upper limit for the body of papers is recommended. Additionally, authors may, at their discretion, include images (in .jpg. or .gif formats), as well as hyperlinks to web pages, source documents, You Tube videos, and similar multimedia materials on the Internet to take full advantage of the digital nature of the journal. Our evaluation process involves an internal review by editorial staff, followed by a blind assessment by two external reviewers. Inquiries about CCJLS should be directed to the editors via email at CCJLS@WesternCriminology.org.

Wallach on the Life and Death of Glass-Steagall

We don’t always note gated scholarship, but, hey, it’s a snow day here in Washington.  In advance of the full publication of the issue, Competing Institutional Perspectives in the Life of Glass–Steagall, by Philip A. Wallach, Brookings Institution, is up on the website of Studies in American Political Development.  Here is the abstract:

Carter Glass (LC)

A growing body of scholarship explores processes of gradual but transformative institutional change, classifying patterns of change into several categories. I argue that policymakers themselves actively contest the appropriate institutional frames for understanding changes as they seek to guide institutional change, and show that judicial determinations of statutory meaning are sensitive to judgments about which institutional perspective is most compelling. A process-tracing examination of institutional changes in the Glass–Steagall Act over the law's whole life span, from 1933 to 1999, provides a concrete example of how the dynamics of contestation can play out. Those who conceived of Glass–Steagall as the institutional embodiment of the separation between commercial and investment banking argued that expansion of commercial bank powers represented institutional drift. Alternatively, those who came to see Glass–Steagall as just one set of statutory imperatives to be handled within the larger institutional context of American banking law, including banking regulators, interpreted regulatory changes as constructive acts of conversion adapting to novel economic challenges. I document the slow process through which courts came to accept the second framing while noting how the fixity of statutory text nevertheless continued to limit available adaptations.

Irving on "The Over-Rated Mr. Clark"

Helen Irving, University of Sydney Faculty of Law, has posted The Over-Rated Mr. Clark: Putting Andrew Inglis Clark's Contribution to the Constitution into Perspective, which is forthcoming in Papers on Parliament, 2014.  Here is the abstract:

Credit: UTas Library

Andrew Inglis Clark, the 19th century Tasmanian politician, jurist, and ardent Americanist, is often (these days) described as the primary ‘architect’ or ‘author’ of Australia’s Constitution. Equally frequently, he is credited with valiantly, albeit unsuccessfully, proposing a Bill of Rights for the Constitution. This paper challenges these claims. It poses three questions: Was Clark the primary author of the Constitution?; If not, was he one of the Constitution’s ‘architects’? If neither, was he nevertheless a ‘Founding Father’? It concludes that Clark was none of these, but that he deserves recognition for a different contribution: namely, his successful insistence, before the Constitution was written, that Australia should follow the U.S. form of federalism, and finally, for his vision of Australian judicial independence.

Fletcher on the Founding of BYU Law

Galen L. Fletcher, Brigham Young University J. Reuben Clark Law School, has posted Loyal Opposition: Ernest L. Wilkinson's Role in Founding the BYU Law School, which appeared in the BYU Studies Quarterly 52 (2013): 5-48.  Here is the abstract:    

Ernest L. Wilkinson is best known for being the president of Brigham Young University for twenty years (1951-1971). He should also be remembered for his role as catalyst for the existence of the J. Reuben Clark Law School at BYU. Wilkinson’s diaries and personal papers tell the story of the J. Reuben Clark Law School founding prior to its March 9, 1971, public announcement.

This article discusses the first mention in Wilkinson’s papers of a law school at BYU, Wilkinson’s work behind the scenes for a year to start it, and his important contributions to the law school’s early foundation. Ernest Wilkinson came up with the idea of a Mormon law school, but his “politically flavored model” was quickly set aside by the actual law school founders, who focused on legal competence and religious faithfulness. Despite his disappointment, Wilkinson stayed loyal to the LDS Church, BYU, and the law school, even though he did not get to play a greater role in the development of the BYU Law School.

The Meanings of Property

[We have the following announcement of The Meanings of Property, a "four-week interdisciplinary NEH summer institute for twenty-five college and university faculty to explore the changing definitions of property," to be held June 1-27, 2014, in Poughkeepsie, New York, located in the Hudson River Valley.  The Project Director is Ann E. Davis, Associate Professor of Economics, Marist College.]

Is property a God-given natural right for human self-preservation? Is property a method of controlling other humans, such as women and slaves? Is property a means of exploitation and accumulation, or is it an essential mediator between the individual and social dimensions of life? Such questions can be found in many different disciplines, often without dialogue or interrogation. This summer institute provides the opportunity to explore these different narratives in the company of leading scholars and teachers from a range of disciplines, in a beautiful setting by the Hudson River. Successful applicants will receive stipends from NEH.

This interdisciplinary summer institute will focus on “Meanings of Property,” inviting notable scholars in related fields to Poughkeepsie, New York, coordinated by Ann E. Davis, Project Director and Associate Professor of Economics at Marist College. The 25 participating college and university professors in the summer institute will engage in discussion with Mary Poovey, literary scholar at New York University, Alan Ryan, Professor of Political Science at Princeton University, John R. Searle, Professor of Philosophy from University of California at Berkeley, Hendrik Hartog, Professor of History at Princeton University, Stuart Banner, Professor of Law at the University of California at Los Angeles, Kenneth Pomeranz, Professor of History at University of Chicago, and Robert J. Goldstein, Professor of Law at the United States Military Academy at West Point. They will also meet Marist Academic Vice President and Hudson Valley historian Thomas Wermuth, as well as Director of the Hudson River Valley Institute Col. James Johnson, former military historian at West Point, and participate in historic site visits to New York City and in the Hudson Valley region.

A Fourteenth-Century Scamblogger?

Medieval English lawyers left a permanent mark not only in court records, but in contemporary poetry, a still under-appreciated research source for legal historians that arguably reveals lawyers' foibles and their problematic public image more accurately than the formal documents we tend to be more comfortable with. Most historians and literary scholars are of course familiar with the figure of Geoffrey Chaucer's "Man of Law" from the Canterbury Tales, captured here in Nevill Coghill's classic modern rendering from Middle English:

A serjeant of the law, wary and wise
Who'd often gone from Paul's walk to advise
There was also, compact of excellence.
Discreet he was, and of great reverence;
At least he seemed so, his words were so wise.
Often he sat as justice in assize
By patent or commission from the crown
Because of learning and his high renown
He took large fees and many robes could own.
So great a purchaser was never known.

Even this limited quotation from the General Prologue shows that Chaucer had doubts about the sincerity and conduct of his lawyer, and perhaps lawyers in general, but the court poet was (unsurprisingly) a light touch as compared to other poet-commentators of the period. Take for instance William Langland, a secular cleric with populist leanings who found lawyers in his dream of the "fair field full of folk" (again as rendered from Middle English by Coghill):

Yet stood there scores of men in scarves of silk -
Law serjeants - they seemed to serve in court,
Pleaded cases for pennies and impounded the law.
And not for love of our lord unloosed their lips once.
You might better measure mist on Malvern Hills
Than get a mum from their lips till money is showed.

Langland pilloried venal, greedy and selfish lawyers at various junctures in Piers Plowman, his lengthy allegory on English society. Indeed, his later explicit reference to "legistres and lawyeres" in the B-text of the poem is (according to the Oxford English Dictionary) the first recognized use of the word "lawyer" in the English language, an inconvenient truth that grounds our most common professional term for ourselves in the work of one of our harshest critics.
For all his swipes at lawyers, however, Langland was tame as compared to a third 14th century English poet who was the most vicious and unforgiving in his denunciation of the profession. John Gower is virtually unknown to lawyers and legal historians today, and has only recently enjoyed a bit of a revival among literary scholars, but in two poems written between 1376 and 1381 he attacked lawyers with unprecedented vituperation. In his French-language work Mirour de l'Omme, he vilified lawyers in a tirade of over 500 lines, giving them far more attention than they had drawn in any earlier screed. That, however, was but a warm-up for his Latin poem Vox Clamantis, where lawyers dubiously took center-stage in Book 6 (translation by The Gower Project):

Beneath law's cloak lurks craft to change a law without
Right as its acts wish on a given day.
When advocates are able to twist such a law,
They change the given laws by their own words,
Paint everything in tinted likeness of justice,
Whereby dissembling courts bring them more gain...
This is the talky litigious tribe that prefers
To clamor loudly in trumped up suits.
The lawyer wishes to play the part of a whore,
And cannot love a man without a gift,
As you can see, he is always for sale to all;
Give him gold and you can have his body.
He never cares what a man's clan or order is,
Whenever he can have a bit of cash ...
Just as the way to Rome for pilgrims open stands
Who come to render prayers at holy sites,
So is the path to the lawyers' vulgar houses
On which the people go and bring them gifts.
For just as ancient tyrants tied up righteous men
Who wouldn't offer incense to their gods,
So now the greedy lawyer ties his neighbors up
Who are reluctant to fetch him tribute ...
A greedy lawyer wraps his neighbors terrified
In law and traps them in like circumstance.
He persecutes fainthearted folk with no defense,
The law's net packs them close together in.
The simple plebe falls in his webs, but to the man of means
The lawyer's nets give, lacerated, way.

Goldstein, "Finance and Foreclosure in the Colonial Present"

Alyosha Goldstein (University of New Mexico) has posted "Finance and Foreclosure in the Colonial Present." The essay appears in the Winter 2014 volume of the Radical History Review. Here's the abstract:

The Claims Resolution Act (CRA) of 2010, which brought together and financed a series of historic US civil rights and Native American class-action lawsuit settlements, serves as the lens through which this essay examines debates over accountability, debt, and reconciliation and provides a means to consider how present-day efforts to foreclose the genealogies of historical injustice have been shaped in response to the contemporary crisis of global capitalism and financialization. Focusing on the salience of racialization and settler colonialism, this essay studies how and why the CRA's juridical assemblage brings into proximity discrepant histories of dispossession and racism so as to situate these within an overarching teleology of progress and improvement in the face of contemporary economic volatility and social instability.

Read on here. (Hat tip: Turtle Talk)

William Blackstone: Courtroom Dramatist?

Simon Stern, University of Toronto Faculty of Law, has posted William Blackstone: Courtroom Dramatist? which is forthcoming in Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts, ed. Wilfrid Prest (Oxford: Hart, 2014).  Here is the abstract:    

Credit

This book chapter discusses William Blackstone's role as a judge, in relation to accounts (such as Bentham's) that portrayed him as "formal, precise, and affected." Rather than evaluating legal performance, in the courtroom, by reference to binaries such as formal/informal, cautious/inquisitive, or stolid/creative, I argue that the success of a legal performance depends on the speaker (e.g., witness, lawyer, judge), the audience (e.g., jury, judge, public), and the subject (e.g., the prosecution’s motives, the defendant’s alibi, the majesty of the common law). To explore this idea, I look at eighteenth- and early nineteenth-century commentators who praised or criticized particular lawyers or judges (in the course of offering "strictures on the bar") by invoking the language of theatricality. As I show, this language was most prevalent in discussions of jury trials, and was often pointedly abandoned in discussions of purely legal arguments (e.g., arguments before appellate courts). The figures in question include William Garrow, Sir John Scott, Sir Francis Buller, and Richard Sheridan. I also consider portrayals of inarticulate lawyers on the eighteenth-century stage, arguing that for the most part, these portrayals make none of the distinctions suggested here, as to audience and subject, but instead simply treat this character as a figure of fun because he is incompetent to perform his task, whatever that task may be. I close by reconsidering a shorthand transcription of Blackstone's performance on the bench in the 1770 trial of Onslow v. Horne, arguing that his conduct comports with an emerging sense of what makes for a good legal argument -- namely, one that takes written explanation as the template for an effective style of oral presentation, and one that Blackstone's own Commentaries helped to promote.

Case Notes of Sir Soulden Lawrence, 1787-1800

Just out from the Selden Society is Volume 128, Case Notes of Sir Soulden Lawrence, 1787-1800, edited by my Georgetown Law colleague James Oldham.  As the Society’s website explains:

Credit: NPG

Lawrence, a Common Pleas and King’s Bench judge 1794-1812, left extensive manuscript notes of his cases. These were for his own use, necessary because of the non-reporting or very-delayed reporting of cases in the central courts during most of the 18th century.  In the introduction the editor chronicles this lack of regular and timely reporting, especially in the courts of Exchequer and Common Pleas.  Hence the importance of materials such as these, drawn from the extensive collection of Lawrence manuscripts in the Middle Temple and Lincoln’s Inn libraries.  The first part has notes of cases by Lawrence when still at the bar.  But the main content is his notes as a judge, from 1794.  These contain not only many unreported cases, but also supply the printed reports with much fuller detail; and include the unreported intermediate stages of litigation.  In the last section of the volume, the editor has selected examples from seven out of the many Paper Books among Lawrence’s manuscripts.  More information about the volume is found here.

One of those cases seen more fully through the Paper Books is Marshall v. Rutton (1800), in which the twelve judges held the line on coverture by (as Professor Oldham wrote here) “overruling earlier King’s Bench decisions by Lord Mansfield that had allowed creditors to prevail in suits against married women in an expanding set of factual circumstances.”  Professor Oldham tells me that he believes the papers in this important decision appear in print for the first time in this volume.

Grow's "Baseball on Trial"

The baseball books keep on coming.  This week, over at Sports Law Blog, Nathaniel Grow, an Assistant Professor of Legal Studies in the Terry College of Business at the University of Georgia, is discussing his new book Baseball on Trial: The Origin of Baseball's Antitrust Exemption.  (The initial post is here.)  Professor Grow tells us that the book “provides the first comprehensive history of the 1922 Supreme Court case of Federal Baseball Club of Baltimore v. National League, the lawsuit giving rise to professional baseball's controversial exemption from federal antitrust law.” His posts will “summarize some of my more interesting discoveries and conclusions.”

Here’s the University of Illinois description of the book:

The controversial 1922 Federal Baseball Supreme Court ruling held that the "business of base ball" was not subject to the Sherman Antitrust Act because it did not constitute interstate commerce. In Baseball on Trial, legal scholar Nathaniel Grow defies conventional wisdom to explain why the unanimous Supreme Court opinion authored by Justice Oliver Wendell Holmes, which gave rise to Major League Baseball's exemption from antitrust law, was correct given the circumstances of the time.

Currently a billion dollar enterprise, professional baseball teams crisscross the country while the games are broadcast via radio, television, and internet coast to coast. The sheer scope of this activity would seem to embody the phrase "interstate commerce." Yet baseball is the only professional sport--indeed the sole industry--in the United States that currently benefits from a judicially constructed antitrust immunity. How could this be?

Using recently released documents from the National Baseball Hall of Fame, Grow analyzes how the Supreme Court reached this seemingly peculiar result by tracing the Federal Baseball litigation from its roots in 1914 to its resolution in 1922, in the process uncovering significant new details about the proceedings. Grow observes that while interstate commerce was measured at the time by the exchange of tangible goods, baseball teams in the 1910s merely provided live entertainment to their fans, while radio was a fledgling technology that had little impact on the sport. The book ultimately concludes that, despite the frequent criticism of the opinion, the Supreme Court's decision was consistent with the conditions and legal climate of the early twentieth century.

Jerusalem Legal History Workshop, Spring 2014

The Spring schedule for the Jerusalem Legal History Workshop is out.  The workshop meets Wednesdays from 4:30-6:00 PM, in Room 365, Law Library Building, Mt. Scopus Campus, Hebrew University of Jerusalem.

February 19, 2014: Douglas Harris, University of British Columbia: "Property and Sovereignty: An Indian Reserve in a Canadian City"

March 5, 2014: David Rabban, University of Texas: chapters 5 & 11 from Law's History: American Legal Thought and the Transatlantic Turn to History.

March 12, 2014: Michael Birnhack, Tel-Aviv University: The Melting Pot of Copyright Law: Urheberrecht in Jerusalem.

March 26, 2014: Geetanjali Srikantan, Tel-Aviv University: "Islamisation or Secularisation: The Trajectory of Anglo-Muhammadan Law".

April 2, 2014: Avishalom Westreich, Academic Center for Law and Business:  "The Right to Divorce in the Jewish Legal Tradition – in Theory and in Practice"

April 30, 2014: Noam Magor, Tel-Aviv University: "To 'Coddle and Caress These Great Capitalists': Eastern Money and Constitution Making in the American West"

May 7, 2014: Gregory Alexander, Cornell Law School, “The Sporting Life: The Historical Origins of the Scottish Right to Roam”

May 14, 2014: Rohit De, Cambridge University: "Cows and Constitutionalism: Religious Rites and Economic Rights in the Indian Republic"

May 21, 2014: Jed Shugerman, Fordham University: "The Unexpected Origins of Modern Administrative State: Independence, Accountability, and the Interstate Commerce Commission"

June 11, 2014: Catharine McMillan, University of Reading: 'Judah Benjamin: Nineteenth Century Trans-Atlantic Legal Migrations'

June 18, 2014: Symposium celebrating the publication of Law and Identity in Colonial South Asia, by Mitra Sharafi, University of Wisconsin. Commenting will be Assaf Likhovski (Tel-Aviv University), Itzhak Lubelsky (Tel-Aviv University), and Binyamin Blum (Hebrew University of Jerusalem). Prof. Sharafi will respond.

LHR 32:1

Volume 32, Issue 1 (February 2014) of Law and History Review is out on the Cambridge Journals website.  Here are its contents:

Social Change and Written Law in Early Chinese Legal Thought
Ernest Caldwell

What societal factors prompt the shift from legal practices based upon oral or customary law to the development of new legal institutions predicated upon bodies of written law? Certainly the presence within a given society of a functional writing system, whether indigenously developed or cross-culturally borrowed, is a prerequisite for the creation of written law. Several scholars, however, notably anthropologists and sociologists, have argued that the mere presence of writing does not necessarily result in the immediate, or inevitable, development of certain sociopolitical institutions dependent upon the technological capacities that writing offers. These same scholars warn that assigning such a monocausal role to writing reduces the multifaceted complexity of a social phenomenon, such as the development of written law, to a teleological inevitability. Instead, many believe that writing provides what Jack Goody has called “potentialities” for types of developments and alternative configurations of social organization. That is to say, the technological capacities of writing provide the potential for specific institutional developments, such as the use of written law; however, for such potential to be actualized, there must first exist within the society an acknowledgement of a social need, with a concomitant consciousness that that need can best be satisfied through the implementation of a form of writing.

War and Sovereignty in Medieval Roman Law
Ryan Greenwood

The theory of just war in medieval canon law and theology has attracted to it a large body of scholarship, and is recognized as an important foundation for Western approaches to the study of ethics in war. By contrast, the tradition on war in medieval Roman law has not received much attention, although it developed doctrines that are distinct from those in canon law and theology. The oversight is notable because medieval Roman law on war influenced subsequent tradition, forming with canon law the essential basis for early modern legal thought on war and peace. While the main canonistic contributions to legal theory on war came in the twelfth and thirteenth centuries, Roman jurists added new opinion in the fourteenth and fifteenth centuries, which can be related to the political life of Italy and to the growth of the independent cities. By the fourteenth century, Roman lawyers (or civilians) often considered licit war from a secular and pragmatic perspective, and associated a right of war with sovereignty. Here, I would like to trace the development of this theory, from roughly 1250 to 1450, and particularly a view that sovereigns licitly judged the justice of their own causes, as a remedy for a lack of superior authority.

Lawyering Inside and Out

Teaching my law students about ancient lawyers provides a unique opportunity to reflect on a dimension of lawyering usually given little thought: its exterior or interior location. Modern advocates take their inside environment for granted, and apart from occasionally praising (or more often griping about) the architecture of the courthouse, the aesthetics of the courtroom or the paintings on the courtroom walls, they give it no further thought. In classical Athens and Republican Rome, however, most litigation was conducted out of doors in the general vicinity of the marketplace. Athenian juries heard cases in what appear to have been unroofed structures in the Agora and elsewhere in the city. Roman crowds gathered around advocates pleading before judges seated on folding curule chairs set on tribunals (raised platforms) near temples and other public buildings in the Forum. The outdoor setting of advocacy shaped what was said in court, and how it was said.

By definition, outdoor advocates performed in public. They argued their cases under the unobstructed gaze of their community's gods, and they shared the very physical and acoustic spaces where other members of the community interacted to buy and sell, borrow and beg, meet and greet. Even within the confines of the court or the corona (the ring of onlookers surrounding the Roman judge), litigants and their legal representatives inevitably heard the calls and cries of commerce from the market area beyond. People in the marketplace could in turn hear (and in the Roman Forum see) litigants and/or lawyers pleading, creating mutual awareness and to some extent social accountability. There was no silence in these courts.

If nothing else, litigants and orators speaking in these settings needed strong voices to compete against noise and the wind. As space permitted, they became accustomed to using their bodies to move or gesture in ways that added force and meaning to their words. They employed their public surroundings as rhetorical props to remind their listeners of the community, its heroes, its gods, and its values. Inevitably they learned to play off juries and massed spectators to make their points, leveraging reactions to sway decisions.

Sunday Book Roundup

Los Angeles Review of Books reviews Gerard Magliocca's American Founding Son : John Bingham and the Invention of the 14th Amendment (NYU Press) in a piece titled "When Legislators Actually Mattered."

"Professor Gerard Magliocca spares no detail in his comprehensive review of John Bingham’s life and his drafting of the 14th Amendment to the Constitution. For history buffs, constitutional scholars, and civil war experts, the book is a smorgasbord of facts about a critical period in America’s history. The reader is taken step by step through the political and legal hurdles required to enact one of the most significant post–Bill of Rights provisions of our Constitution."

HNN reviews James Tobin's The Man He Became: How FDR Defied Polio to Win the Presidency (Simon & Schuster).

"Yes, Roosevelt’s tale has been well told by a wide variety of accomplished historians. But Toobin’s book is unique in that it focuses on the crucial period following his 1921 polio diagnosis up until his election to the presidency in 1932. This is the story of not only FDR’s struggle with polio, but of the Democratic Party in the 1920s, and Roosevelt’s tenuous place in it.
How much did polio shape the essential character of the man? After reading this account, one can only come to the conclusion: a whole lot—and probably even more than anyone will ever know."

The Los Angeles Times reviews Joshua Zeitz's Lincoln's Boys: John Hay, John Nicolay, and the War for Lincoln's Image (Viking Adult).

H-Net adds reviews of Guy Laron's Origins of the Suez Crisis: Postwar Development Diplomacy and the Struggle over Third World Industrialization, 1945-1956 (Woodrow Wilson Center Press) (here); and Melissa R. Klapper's Ballots, Babies, and Banners of Peace: American Jewish Women's Activism, 1890-1940 (NYU Press) (here).

"In Ballots, Babies, and Banners of Peace, Melissa R. Klapper explores the activist trajectories of American Jewish women who “believed in [their] responsibility and power to make a difference not only to [their] own Jewish family and community but also to the wider world” (p. 2). Focusing on progressive movements for woman suffrage, birth control, and peace, Klapper provides a compelling portrait of Jewish women’s late nineteenth- and early twentieth-century efforts to navigate the intricate terrain of identity politics and to reconcile their religious, ethnic, national, and communal identities with their activist commitments during a time of significant change."

Weekend Roundup

• The El Paso Newspaper Tree is carrying a report of a recent address at the University of Texas-El Paso by Allison Brownell Tirres (DePaul Law).  One of her points, as reported in the story, was that "comprehensive immigration reform must be based on a clear understanding of the legal history underlying today’s immigration policies."

• Pen and Sword Books has published Breach of Promise to Marry: A History of How Jilted Brides Settled Scores, by Denies Bates, who is “a Chartered Accountant by profession, her interests now relate to the voluntary and community sector, research and writing.”  According to the press, the book is based on her review of “over 1,000 forgotten cases of women who found very different endings” to that of such fictional counterparts as Dickens’s Miss Havisham.  “This social history of breach of promise shows that when men behaved badly hell had no fury like a woman scorned!”

• Via the American Historical Association's blog (AHA Today): The American Council of Learned Societies has announced 20 public fellowship opportunities for recent doctorates. The AHA encourages historians to apply (deadline: March 29, 2014). 

• According to the Springfield State Journal-Register, Illinois lawyers have staged a series of mock trials to raise funds to preserve five rare maps and preserve portraits of state supreme court justices.  “The programs, held in theaters in both Chicago and Springfield, depicted the retrial of Mary Surratt, the first U.S. woman sentenced to death as an alleged conspirator in the assassination of Lincoln; the insanity retrial of Mary Todd Lincoln; and the habeas corpus hearings of Joseph Smith, founder of the Church of the Latter Day Saints.”
  

• The Junto has introduced a new podcast: “'The History Carousel' will connect the past with the present, and will feature a rotating cast of Junto members and guests."

• On SCOTUSblog, Ronald Collins interviews Lee Levine and Stephen Wermiel about their just published book, The Progeny: Justice William Brennan’s Fight to Save New York Times v. Sullivan (American Bar Association, 2014).

• From Books&Ideas.net: "Financial Crises and Banking Regulation : A History" -- An interview with Eugene White (Rutgers University/National Bureau of Economic Research).

• The good folks at the Historical Society have rounded up years of teaching-related posts into a set of Resources for Teaching History. 

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

Federal History 6 (January 2014)

H-Law sent around the call for submissions to the January 2015 issue of Federal History, the journal of the Society for History in the Federal Government.  According to the call, "FH examines all aspects of U.S. government history as well as innovative work done in federal public history. FH is a peer-reviewed academic journal published both in print and online. The journal is indexed by ebscohost, and the editors welcome articles from both federal historians and those in academia.”

A link directed us to the January 2014 issue, which has articles of interest to legal historians:

Roger R. Trask Lecture: A Search for Historical Understanding
Pete Daniel

The First Attempt at Federalizing Tort Law and Why It Failed
Ian J. Drake

From “Air Conditioning” Youth to STEM: The FAA and Aviation Education, 1935–2007
Theresa L. Kraus

Evil, Greed, Treachery, Deception, and Fraud: The World of Lobbying According to Senator Hugo Black
Jamie C. Euken

“This ‘Who Shot John Thing’”: Disaster Relief as an Entitlement in the 20th Century
Natalie Schuster

Serenading the President: John Adams, the XYZ Affair, and the 18th-Century American Presidency
Christopher J. Young

Interpretation and Technology: Going Mobile: Changing the Face of Interpretation in the National Park Service
Brett Oppegaard and Gregory P. Shine

Contreras on Mid Twentieth-Century Patent Licensing Decrees

Jorge L. Contreras (American University - Washington College of Law) has posted "A Brief History of FRAND." Here's the abstract:

Much has been written lately about commitments that participants in standards-setting activities make to license their patents on terms that are “fair, reasonable and non-discriminatory” (FRAND). These discussions pay little attention, however, to a long series of remedial patent licensing decrees issued by federal courts from the 1940s through 1970s that outwardly resemble FRAND commitments in all but the rationale for their imposition. These early decrees shed light on questions only now re-emerging as pertinent to the FRAND debate: the meaning of the non-discrimination prong of the FRAND commitment, the degree to which courts should intervene in the determination of reasonable royalty rates, the use of arbitration as a means for resolving licensing disputes, the extent to which royalty-free licensing may be “reasonable”, the effects of a potential licensee’s refusal to accept a patent holder’s license offer, the acceptability of a patent holder’s demand for reciprocal licenses from its licensees, and means for ensuring that such commitments survive the transfer of underlying patents.

This article offers the first historical analysis of the patent licensing decrees issued from the 1940s through the 1970s in view of their relationship to FRAND commitments made in the standards-setting context. It concludes that these historical patent licensing orders are, in fact, the direct lineal predecessors of today’s FRAND commitments, and that despite their differences, the interpretation and analysis of these remedial orders by courts, enforcement agencies and private firms offer essential insight into the interpretation of FRAND commitments today.

Hat tip: Legal Theory Blog

Race and Nation in the Age of Emancipations

[Via H-Law, we have the following announcement.]

We are pleased to announce an upcoming conference scheduled to take place on the campus of Rice University in Houston, Texas, titled "Race and Nation in the Age of Emancipations: A Symposium on the Atlantic World." The symposium seeks to explore the complicated relationship of race, citizenship, and national identity during the tumultuous long nineteenth century. By examining this connection in particular contexts within a broad Atlantic perspective, this symposium will contribute to a better understand of if, how, and why enslaved and free blacks throughout the Americas came to understand themselves as citizens of a particular nation (or possibly multiple nations) during the era of emancipation.

Along with several panels focusing on varying aspects of this topic, the symposium will also feature a roundtable on the Atlantic World as a field, analytical concept, and pedagogical tool.

"Race and Nation" is set to take place in Houston, Texas, on Rice University's campus on February 21st and 22nd, 2014. The symposium is made possible thanks to generous funding from Rice University's School of Humanities, the Department of History, the Humanities Research Center, the Program for the Study of Ethnicity, Race, and Culture, and the Graduate Student Association.

More information and program here.

A Short Book of Bad Judges

Best title ever: A Short Book of Bad Judges is a recently published volume by Graeme Williams, QC, from the English publishing house of Wildy, Simmonds and Hill.

As Graeme Williams states "readers of John Milton and Beatrix Potter will know, reading about bad characters tends to be much more fun than reading about good ones. I confess to thinking that Paradise Lost and the Tales of Mr Tod, and of Two Bad Mice are all more entertaining to read than Paradise Regained or the Flopsy Bunnies and I have found that the same is true about writing about judges." 

While there are plenty of books about Good English Judges: indeed their ‘goodness’ may well have been one of their authors’ main reasons for writing them, there is as yet no book specifically about Bad Judges in this country, though there are quite a few in the United States.

No doubt there are a number of reasons for this: the law of libel, within its limits, protects the living, and the old maxim de mortuis nil nisi bonum may protect the dead, at least for a decent interval post mortem.

In recent times there have been fewer Bad Judges than in the past, even though there are now more judges, at every level, than there were fifty years ago. The position today is no doubt the result of our modern, and on the whole very sensible and worthwhile practice, of appointing ‘new’ permanent judges only after they have attended judicial training, have sat as a judge in a part-time, temporary judicial post before appointment, and have performed in that capacity well enough to justify long-term judicial office.

Contents after the jump.

Call for Proposals for the 129th Annual Meeting of the AHA

The deadline (Feb. 15) is approaching for submitting proposals to the American Historical Association for the 129th Annual Meeting of the AHA. The theme of the upcoming meeting -- "History and the Other Disciplines" -- may be of particular interest to LHB readers. Here's an excerpt from the announcement:

The 129th annual meeting of the American Historical Association will be held on January 2–5, 2015, in New York City. The Program Committee welcomes proposals from all members of the Association, whatever their institutional affiliation or status, as well as from affiliated societies, historians working outside the United States, and scholars in related disciplines. The theme for the meeting, described in greater detail on the following pages, is "History and the Other Disciplines." While seeking proposals for sessions that explore facets of this broad theme, we also welcome submissions on the histories of all places and periods, on many different topics, on the uses of varied sources and methods, and on theory and the uses of history itself. We also invite members to employ and analyze diverse strategies for representing the past, including fiction, poetry, film, music, and art. The AHA is a capacious organization, unique among learned societies in its devotion to the full range of historical scholarship and practice. We hope that our program will reflect this strength, and to this end, we will seriously consider any proposal that advances the study, teaching, and public presentation of history.

The 2015 annual meeting will also continue the discussions, launched at the 2012 meeting in Chicago, of the ways that historical practice is changing as a result of the ongoing digital revolution. We thus invite proposals on what it means to practice history in this digital age, and what new technologies imply for how we do research, how we present our findings, and how we interact with a variety of current and potential audiences. We welcome proposals that focus not only on cutting-edge "digital history," but also on the broad implications of digital technologies for all historical practitioners.

Read on here.

H-Law also recently circulated the following:

Seeking to form a panel for the American Historical Association’s Annual Meeting / Conference in New York City, January 2-5, 2015. In keeping with the theme “History and the Other Disciplines,” this panel will feature historical work informed by the discipline of law. Papers can be expressly interdisciplinary or multidisciplinary, but should include the use of the disciplinary concerns/perspectives of legal scholars, whether judges, lawyers or legal academics. Please contact Ian Drake at drakei@mail.montclair.edu, with “AHA2015” in subject line. 

Tweedy, "How Allotment-Era Literature Can Inform Current Controversies on Tribal Jurisdiction and Reservation Diminishment"

Via Turtle Talk, we have word of a recent article by Ann Tweedy (Hamline University School of Law): “How Allotment-Era Literature Can Inform Current Controversies on Tribal Jurisdiction and Reservation Diminishment” appeared in Volume 82 of the University of Toronto Quarterly, in a special issue on law and literature. Professor Tweedy explains:

I looked at non-Native authored and Native-authored literature of the time, specifically in South Dakota and surrounding states and territories, to see whether it helped illuminate the injustices that were being perpetrated on tribes through the allotment process and the takings of surplus lands. The idea was that this literature might have, like the news articles I looked at in “Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers,” put purchasers on notice that tribal lands were being taken unjustly. Most of the non-Native literature I looked at was not that helpful, but a work by historian/poet Doane Robinson was an exception. On the Native side, Zitkala-Sa’s short stories proved to be the most helpful, but the works I looked at by Luther Standing Bear and Charles Eastman were also somewhat helpful.

The published version is available on Project Muse (subscribers only); an older version is available here, on SSRN.

Ancient Lawyers

Beginning an American law school course on the history of lawyering with "ancient lawyers" - i.e. Athenian orators, Roman advocates and Roman jurists - is not a necessarily-obvious pedagogical move. At the outset it throws some law students, especially the increasing number who come to law school with minimal (or more often no) background in classics or ancient studies, or even that old hoary standby Western Civ. It threatens to frustrate others who think that they should be deposited immediately in American territory, and who instinctively balk at the prospect of being forced to deal with lawyer-types from less familiar or less chronologically proximate cultures. And yet I persist. Why?

One reason is that I honestly believe that teaching my law students about ancient lawyers and lawyering is a worthwhile enterprise in itself, not necessarily because "origins" are special, but because the exercise expands the mind by forcing us to contemplate how legal and social norms were articulated and defended in cultural contexts radically different from our own. If the past is a foreign country, the distant past is even more so, and from a humanistic or anthropological perspective I think exploring that past is a good thing. Secondly, I believe ancient lawyers can usefully remind us of the deep connection between advocacy and community, and how the former can serve and improve the latter by persuasive appeals to shared values through responsible rhetoric (thus Quintilian's famous definition of the true orator as a "good man speaking well"). Frankly, I'd take a few pages from Cicero or Quintilian on this topic over most contemporary legal ethics textbooks any day of the week.

Thirdly, I want my law students to understand that lawyering in America did not appear full-blown and immaculate, like (to pointedly use a simile from ancient Greek mythology) Athena springing from the forehead of Zeus. Eighteenth, nineteenth and even a few (mostly early) twentieth century American lawyers overtly saw themselves as heirs of the (legal) ancients. John Adams (whom Daniel Coquillette cleverly called "Justinian in Braintree" at one point) routinely evoked Cicero; James Kent admired Juvenal; Daniel Webster imitated Demosthenes; Rufus Choate translated Quintilian for pleasure; William Wirt had his portrait painted in classical garb; Elihu Root bought busts of both Cicero and Demosthenes for his personal library. It's interesting how the popularity of certain ancient lawyers and rhetoricians ebbed and flowed over time as American political and legal circumstances changed. Roman legal figures seem to have dominated the legal thinking and oratory of the Revolutionary era. Greek orators like Demosthenes were more often evoked in the courtrooms and legal classrooms of Jacksonian America, and then interest in the Roman (and this time largely imperial) legal past gained ground again as America became a world power in the late 19th century. Go figure. Only in the 20th century, when the underpinning of classical undergraduate education and classical languages was largely lost, even to the upper end of the bar, did "ancient lawyers" lose their fascination for the American legal mind.

New Release: Long, "The Point of No Return: Rights, Refugees and Repatriation"

New from Oxford University Press: The Point of No Return: Rights, Refugees and Repatriation, by Katy Long (University of Edinburgh). The Table of Contents suggests that the book includes several historical chapters. A description from the Press:

In the past twenty years, over 25 million refugees have returned 'home'. These refugee repatriations are considered by the international community to be the only real means of solving mass refugee crises. Yet despite the importance placed on repatriation—both in principle and practice—there has been very little exploration of the political controversies that have framed refugee return. Several questions remain unresolved: do refugees have a right to refuse return? How can you remake citizenship after exile? Is 'home' a place or a community? How should the liberal principles be balanced against nationalist state order?

The Point of No Return: Rights, Refugees and Repatriation sets out to answer these questions and to examine the fundamental tensions between liberalism and nationalism that repatriation exposes. It makes clear that repatriation cannot be considered as a mere act of border-crossing, a physical moment of 'return'. Instead, repatriation must be recognised to be a complex political process, involving the remaking of a relationship between citizen and state, the recreation of a social contract.

Importantly, The Point of No Return shows that this rebuilding of political community need not actually involve refugees becoming residents in their country of origin. Instead, refugees may rebuild their state-citizen relationship while living as migrants, or holding regional or dual citizenships. In fact, in some settings, 'mobile' repatriation may not just be a possible but a necessary form of post-conflict citizenship. The Point of No Return therefore concludes with the radical claim that repatriation not only can but also sometimes should happen without return.

More information, including the Introduction, is available here.

Meadows reviews Scott & Hébrard, Nathans, Auslander, on "Race, Family, and Law in the Struggle for Freedom"

Common-place has just released a special issue, edited by Megan Kate Nelson and Kevin Levin, on "The Civil War at 150: Memory and Meaning." Of particular interest to LHB readers is an essay by R. Darrell Meadows, titled "The (Not So) Distant Kinship of Race, Family, and Law in the Struggle for Freedom." Meadows (Kentucky Historical Society) reviews Rebecca J. Scott and Jean M. Hébrard, Freedom Papers: An Atlantic Odyssey in the Age of Emancipation (Harvard University Press, 2012); Sydney Nathans, To Free a Family: The Journey of Mary Walker (Harvard University Press, 2012); and  Mark Auslander, The Accidental Slaveowner: Revisiting a Myth of Race and Finding an American Family (University of Georgia Press, 2011). "Each of these works," writes Meadows, "complicate our often overly generalized understandings of how individuals and groups navigated the complex and frequently porous boundaries of family, race, and class in the pursuit of freedom." Read on here.

New Release: Glanville, "Sovereignty and the Responsibility to Protect: A New History"

New from the University of Chicago Press: Sovereignty and the Responsibility to Protect: A New History, by Luke Glanville (Australian National University). A description from the Press:

In 2011, the United Nations Security Council adopted Resolution 1973, authorizing its member states to take measures to protect Libyan civilians from Muammar Gadhafi’s forces. In invoking the “responsibility to protect,” the resolution draws on the principle that sovereign states are responsible and accountable to the international community for the protection of their populations and that the international community can act to protect populations when national authorities fail to do so. The idea that sovereignty includes the responsibility to protect is often seen as a departure from the classic definition, but it actually has deep historical roots.

           
In Sovereignty and the Responsibility to Protect, Luke Glanville argues that this responsibility extends back to the sixteenth and seventeenth centuries, and that states have since been accountable for this responsibility to God, the people, and the international community. Over time, the right to national self-governance came to take priority over the protection of individual liberties, but the noninterventionist understanding of sovereignty was only firmly established in the twentieth century, and it remained for only a few decades before it was challenged by renewed claims that sovereigns are responsible for protection.

           
Glanville traces the relationship between sovereignty and responsibility from the early modern period to the present day, and offers a new history with profound implications for the present.

A few blurbs:

“Luke Glanville provides a powerful corrective to the literature that sees sovereignty—and particularly the right of nonintervention—as a static norm in international politics, showing that there has always been an inherent tension between rights and responsibilities and that the ‘traditional’ meaning of sovereignty became predominant only at the end of World War II. Well-written and deeply rooted in the relevant literature, Sovereignty and the Responsibility to Protect makes a valuable contribution to scholarship in international relations.” -- Stacie Goddard, Wellesley College

"In international relations, sovereignty has often been associated with the rule of noninterference. In practice, it has been used as a veil behind which abusive governments hide. In this brilliant new book, Luke Glanville explodes the myth that sovereignty grants states carte blanche to govern however they please. In meticulous detail, Glanville shows that the theory and practice of sovereignty has always entailed responsibilities as well as rights. Sovereignty and the Responsibility to Protect forces us all to rethink how we understand, practice, and teach others about sovereignty. As such, it marks an  important contribution to the field that should be read by newcomers and old hands alike." -- Alex Bellamy, Griffith University, Australia

More information is available here.

Orth, "'The Release of Energy': Reflections on a Legal History Trope"

Via Al Brophy at the Faculty Lounge, we have word of a recently published essay by John V. Orth (University of North Carolina). "'The Release of Energy': Reflections on a Legal History Trope" appears in Volume 34 of the Adelaide Law Review (2013). Here's the abstract:

Historians of American law, particularly of American law in the nineteenth century, often summarise its development with the phrase ‘the release of energy’. This paper traces the prevalence of that trope and compares it with AV Dicey’s influential periodisation of English legal history. In Dicey’s uncomplicated view, Tory repression yielded to the logic of Liberal Benthamism, which swept away statutory ‘restraints on individual liberty’, until at last Socialism subordinated the individual to the state. If energy could be released in nineteenth century England by the repeal of statutes, in contemporary America, its release required an ill-assorted pairing of laissez-faire judicial doctrines with legislation that subsidised desired behavior. The story was further complicated in America by federalism, which contributed to competition among states for the most attractive (from one point of view or another) set of legal rules, derogatively known as ‘the race to the bottom’. Of course, ‘the release energy’ can equally describe legislative programs less likely to appeal to Victorian values, as illustrated by the permissive culture of modern-day Las Vegas, the product of the repeal of restrictive social legislation.

Who Do We Think We Are?: Teaching the History of Lawyering

First of all, my thanks to Dan Ernst and the good folks at the Legal History Blog for the invitation to guest blog this month. As Dan said in his intro on Saturday, much of what I hope to be talking about in this forum will be based on my experiences teaching a course at Pitt Law called "Lawyering: A History." In a nutshell, it's a survey course on the history of lawyering and lawyers from the classical world through medieval Europe, England, colonial America and later the United States down to the present day. Its goal is to help law students consider and answer - from an historical perspective - a basic but remarkably little-asked question: "who do we think we are?" (and yes, Virginia, my riff on the title of a well-known genealogical history TV series on NBC in the US and the BBC in the UK is fully intentional!).

Quite frankly, my otherwise bright and enthusiastic law students don't know who they are. And that's a real problem these days when law students face huge burdens in law school (read "debt") and huge burdens when they graduate (read "job"). They see before them a legal profession buffeted by major challenges and unsure of its direction. Disoriented themselves, they have no sense of what challenges their predecessors faced, what opportunities they grasped, or how they helped create the circumstances that all of us in the law have to live with today. They have little sense of context and lack any grounding in remembered professional experience. Instead, they suffer from might almost be described as early-onset amnesia (an interesting condition which ironically may allow sufferers to continue to perform skills without having any memory of why they are performed).

Of course this amnesia is our fault. As legal historians we teach our law students relatively little about lawyers (as opposed to, say the history of doctrine or of legal thought, or the historical interactions of law and society). Sure, we continually reference lawyers in garden-variety American legal history courses, but apart from mentioning the "usual suspects" (and most of them only in their later capacity as judges) we rarely dig down in an any deep or systematic way.

I know this because I was one of the guilty ones. When I first toyed with the idea of teaching a course on the history of lawyering four years ago, I thought that having taught legal history for some 20 years, it would be a relatively straightforward matter - more, perhaps, an exercise in further specialization than anything else. I could not have been more wrong. Instead, I found myself in a veritable "fair field full of folk" (yes, there are lawyers in Piers Plowman!) but without a usable text, without a clear periodization, and with very few pedagogical precedents to draw on, there being but a tiny handful of similar courses in American law schools (and most of those with a narrower chronological and national focus). At the same time, I began to find lawyers in places and positions where I didn't really expect to find them, and I began to rethink the very idea of offering a "professional" history of lawyering, slowly inclining towards a broader "cultural" history of lawyering that would overtly regard lawyers as having a truly fundamental role in the development of American society in particular, from explorers to investors to orators to revolutionaries to framers to politicians to poets to evangelists to soldiers to editors to entrepreneurs to CEOs to activists and so on, and on, and on. Here, right before me, were individuals who as a class could truly be described (pace Gramsci) as the "organic intellectuals" of the American experience (arguably much more so than members of any other professional or occupational group), but about whom we had told our law students little or nothing.

How crazy is that? Right now, when we want to inspire our law students, raise their horizons, broaden their minds, and prepare them (by necessity) for a world beyond the Scylla of BigLaw on the one hand and the Charybdis of solo practice on the other, shouldn't we be telling them about these people, their successes and their failures, their strengths and their weaknesses, their dreams and their delusions? This is no celebratory "lawyers' history" that I'm proposing, but rather a living, breathing, warts-and-all history of lawyering - a history of lawyers as people whose examples and actions, for good or ill, can be offered to our students. What do they have to gain from all this? Two things at least: first, a better, more accurate and more ambitious sense of themselves and their own potential as lawyers, and second, a humility that comes from knowing that they are not the first generation of lawyers to strive, to struggle, to succeed and even sometimes to fail.

Hopefully my students benefit from these take-aways. I certainly have. Teaching this course on the history of lawyering has been not only educational for me, but truly life-changing. That's a great thing for a legal historian to say when he's mid-career(! - where did the time go??). But it's true. I look at lawyers differently now. It's been exciting to meet literally hundreds of lawyers that I'm very ashamed to say I had never heard of before but who did amazing things. And even many of our unknown and underappreciated "villains" I find to have been remarkable in their own way. Together, the experiences of all these people have forced me to reevaluate many of the nostrums of legal history that I formerly accepted.

This month, on this blog, I look forward to introducing you to just a few of the lawyers in my lawyering history course, partly to whet your appetite and partly just to share my own excitement in (re-)discovering them and hauling them out of history one at a time.

Now, though, I close with a question to colleagues. What aspects of the history of lawyering (and lawyers!) do you teach? Who are the (relatively unknown) lawyers you consider remarkable in history, for good or ill? And what do you think we can do to better leverage our knowledge of these lawyers and the lawyering they practiced for the greater benefit of our students? I look forward to hearing from you, online and off.

Graham, "Strict Products Liability at 50: Four Histories"

Kyle Graham (Santa Clara University School of Law) has posted "Strict Products Liability at 50: Four Histories." Here's the abstract:

This article offers four different perspectives on the strict products-liability "revolution" that climaxed a half-century ago. One of these narratives relates the prevailing assessment of how this innovation coalesced and spread across the states. The three alternative histories introduced by this article both challenge and complement the standard account by viewing the shift toward strict products liability through "populist," "functionalist," and "contingent" lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how certain types of once-common products cases forged a practical argument for strict products liability as a superior alternative to negligence. The third examines why tort law eclipsed warranty as the doctrinal forum for products-liability reform. This article concludes that these non-canonical accounts have been obscured due to patterns and biases that recur across descriptions of doctrinal development in tort law.

The full paper is available here.

Sunday Book Roundup

The Los Angeles Review of Books reviews David Runciman's, The Confidence Trap: A History of Democracy in Crisis from World War I to the Present (Princeton University Press).

NPR has a short piece on Greg Grandin's The Empire of Necessity: Slavery, Freedom and Deception in the New World (Holt). The Washington Post also reviews the book, here.

H-Net has lots of new reviews for us this week. First, there is a review of the edited volume, Opening Statements: Law, Jurisprudence, and the Legacy of Dutch New York (SUNY Press).

"How much of the credit should the Dutch of New Netherland share for shaping subsequent American institutions? If scholars have underestimated the Dutch legacy, legal history may provide a useful corrective because of the paper trail and precedents that law generates. Set in their cultural and material milieu, subtle legal doctrines might even be a vehicle for broader historical understanding. That is certainly the case in this relatively brief, beautifully designed volume. Thirteen essays and dozens of vivid illustrations reanimate a lost world that will stir the imagination of early Americanists and New York history buffs, while inviting those interested in the legal history of freedom of religion, arbitration, the right of petition, republican sovereignty, and multiculturalism to undertake their own fresh investigations of Dutch New York."

Gordon Baker's Fugitive Slaves and the Unfinished American Revolution: Eight Cases, 1848-1856 (McFarland) has also been reviewed. As has The Good Neighbor: Franklin D. Roosevelt and the Rhetoric of American Power (Michigan State Univ. Press) by Mary E. Stuckey (here). Others include a review of Kevin Doughterty's The United States Military in Limited War: Case Studies in Success and Failure, 1945-1999 (McFarland), and a review of James C. Knarr's Uruguay and the United States, 1903-1929: Diplomacy in the Progressive Era (Kent State University Press).

There is also a review of American Epic: Reading the U.S. Constitution (Oxford University Press) by Garrett Epps.

"American Epic is an immensely informative and useful volume. I can sympathize with one of the lamentations that spurred Professor Epps to write this book. When asked to “read the Constitution from start to finish,” even the most diligent and enthusiastic undergraduate will--like his law students--probably “quickly skim its 7,500 words” (or at least the parts they find least interesting). They will “then arrive in class, expecting that I will now tell them what it means” (p. x). If, however, they can be convinced to read Epps’s book, they will be better equipped to understand the strengths and weaknesses of the arguments that others make when they feel the urge to say that they know “what it means.”"

The New York Review of Books reviews Doris Goodwin's Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism (Simon and Schuster), and also has a review of Ira Stoll's JFK, Conservative (Harcourt).

Jonathan Yardley reviews Where the Negroes Are Masters: An African Port in the Era of the Slave Trade (Harvard University Press) by Randy J. Sparks.

"Harvard University Press clearly is offering “Where the Negroes Are Masters” to the trade as opposed to an academic readership, but it could have bent over a bit more to help out the general reader. The apparent assumption that the Fante are common knowledge is incorrect; they should have been explained more clearly than they ever are. There is some unnecessary and irritating repetition: The tale of an African “prince” with which the book opens is repeated, almost verbatim, later on, and “country marriage” is defined twice, again almost verbatim. More careful editing could and should have corrected these shortcomings in what is otherwise an interesting and important book."

Also on the Washington Post is a review of Jeffrey Frank's Ike and Dick: Portrait of a Strange Political Marriage (Simon & Schuster).

For The Nation, Eric Foner reviews The Problem of Slavery in the Age of Emancipation (Knopf) by David Brion Davis. He finds that

"The Problem of Slavery in the Age of Emancipation is considerably less comprehensive than its earlier companions. A “highly selective study,” as Davis describes it, the book focuses almost exclusively on the United States and Great Britain. ...  Rather than a full history of abolition in the nineteenth century, Davis offers a set of erudite ruminations on questions central to the debate over slavery."

The New York Times reviews Betty Medsger's The Burglary: The Discovery of J. Edgar Hoover's Secret FBI (Knopf). The NYT also has a piece looking at three "Books About Builders, Bootleggers and Bosses" in which the writer directs us to "Forget the Chris Christie saga. Between seasons of “Boardwalk Empire,” readers can catch up on the history of New Jersey politics with Steven Hart’s American Dictators: Frank Hague, Nucky Johnson and the Perfection of the Urban Political Machine (Rutgers University Press)."