Magliocca on the Bill of Rights in the Age of FDR

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted How Did the Bill of Rights Become the Bill of Rights?

This Article argues that the Bill of Rights is a legal fiction that legitimates the exercise of federal authority and judicial review.

At the Founding, bills of rights were revolutionary assertions that some states used to justify secession from the British Empire. During the debate over the Constitution, the absence of a bill of rights was a rallying cry for Anti-Federalists who mistrusted the establishment of a new national government. The First Congress responded with the first set of constitutional amendments, but hardly anyone then (or for a long time thereafter) called that text a bill of rights. Why? In part, the answer is that the state bills of rights at the time almost all came near the start of their constitutions and contained aphorisms about natural rights and popular sovereignty comparable to what was in the Declaration of Independence. What Congress wrote, by contrast, was put at the end of the Constitution and was largely free of rhetoric. Thus, in a formal sense the first set of amendments did not look like what people expected from a bill of rights. Moreover, there was no functional goal served by calling the amendments a bill of rights once they were ratified. The label was irrelevant.

Prior to the 1930s, the modern definition of the Bill of Rights was used extensively in three brief periods when there was a purpose for invoking that brand name. The first came during Reconstruction, when some members of Congress, especially John Bingham, sought to overturn Barron v. Baltimore and extend most or all of the first set of amendments to the states. Unlike the Anti-Federalists, who used the bill of rights trope to defend states-rights, Bingham and his allies embraced the label to increase federal power. When the incorporation debate arrived at the Supreme Court three decades later, Justice John Marshall Harlan picked up on Bingham’s lingo in dissenting from the Court’s refusal to abandon the spirit of Barron. Second, the “Bill of Rights” was trotted out after the Spanish-American War to legitimize our rule over the Philippines. The acquisition of colonies was highly controversial, and critics such as William Jennings Bryan argued that a constitutional democracy could not long endure as an empire that denied the protections of the “Bill of Rights” to its foreign subjects. Congress answered this challenge by extending parts of the first set of amendments to the Philippines, and in subsequent decisions the Supreme Court called this part of the Organic Act a territorial bill of rights. Third, when Theodore Roosevelt attacked judicial review by state courts as part of his platform to win the Republican presidential nomination in 1912, President William Howard Taft replied that state courts needed that power to save the Bill of Rights, even though most the first set of amendments did not apply to the states at the time.

The New Deal and World War II elevated the Bill of Rights to its present status as a means to support enhanced federal authority. Liberals are fond of Franklin D. Roosevelt’s proposed “Second Bill of Rights” on economic security, but he discussed the First Bill of Rights more often and in greater detail than all of his predecessors. He brandished the Bill of Rights in part to deflect charges that the New Deal was a dangerous invasion of individual freedom. The attack was false, FDR said, because the gold standard of liberty was the Bill of Rights, and those liberties were not being infringed. Roosevelt also stressed the Bill of Rights to distinguish the United States from the Third Reich. Prior to World War Two, this sort of comparison was meant to suggest that federal inaction could give use to a domestic tyranny that would erase our rights. A week after Hitler declared war on America, though, the President repackaged the Bill of Rights as a patriotic emblem with a dramatic radio address on the first “Bill of Rights Day” that expressly contrasted the values of the first set of amendments with Nazism.

FDR’s emphasis on the Bill of Rights was part of a broader change in popular and legal culture, and in 1940 the Court started citing the Bill of Rights to legitimize its decisions. Following the “switch-in-time” of 1937, the Justices needed a new justification for judicial review, and the Bill of Rights was an excellent tool for that purpose. West Virginia State School Board of Education v. Barnette gave a canonical defense of judicial review in 1943 by connecting the two ideas: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and to establish them as legal principles applied by the courts.” In 1965, the Court elaborated on this idea in Griswold v. Connecticut and grounded the right of privacy in the claim that the “guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In these cases (and others), the Justices flourish the Bill of Rights as a symbol to shore up decisions that are novel.

Samito on Military Justice and the Black Soldier

Christian G. Samito has posted Equal Rights and the Experience of Military Justice for African American Soldiers, which appeared as a chapter of his Becoming American under Fire: Irish Americans, African Americans, and the Politics of Citizenship during the Civil War Era (Cornell University Press, 2011), 77-102:

This chapter uses courts-martial records to examine how black Civil War soldiers vigorously refuted past lives as slaves now to claim rights as freedmen and citizens. Black mutineers sought to change laws which distinguished between white and black people and to bring official legal practices into conformity with their vision. Black soldiers turned the court-martial into an important way station on the road to freedom and citizenship, even where it punished those who violated military law. Besides revealing a surprising level of due process, general courts-martial records show the extent to which black soldiers situated themselves as American citizens by opposing discrimination, defying legal precedents that failed to acknowledge their equality, and advancing their interpretation of legal meanings and practices. Moreover, the experiences black troops, including many former slaves, had in courts-martial proceedings helped to shape their postwar agenda of legal change. Once in the courtroom, black soldiers encountered, often for the first time, the concepts of the rule of law, equality before the law, and due process protection, all of which were very different from arbitrary discipline under slavery and on plantations. Courts-martial in the army provided black soldiers with an unexpected, and neglected, encounter with core ideas that helped inform their demands during Reconstruction for color-blind justice as a component of American citizenship and their sense that the law could serve as a bulwark to protect their newfound freedom and changed status.

This chapter is part of a book that examines in greater detail the politics of African American citizenship during the Civil War era and how experiences in the military, such as the successful protest by black soldiers against the Union army's original plan to pay them less then white troops, shaped a postwar political movement that helped influence legal change during Reconstruction.

New Release: "Cambridge Companion to Civil Rights Literature"

Out recently, in cloth and paper, from the Cambridge University Press is The Cambridge Companion to American Civil Rights Literature, edited by Julie Buckner Armstrong:

The Cambridge Companion to American Civil Rights Literature brings together leading scholars to examine the significant traditions, genres, and themes of civil rights literature. While civil rights scholarship has typically focused on documentary rather than creative writing, and political rather than cultural history, this Companion addresses the gap and provides university students with a vast introduction to an impressive range of authors, including Richard Wright, Lorraine Hansberry, Gwendolyn Brooks, James Baldwin, Amiri Baraka, and Toni Morrison. Accessible to undergraduates and academics alike, this Companion surveys the critical landscape of a rapidly-growing field and lays the foundation for future studies.

TOC after the jump.

Comparative Legal History - new content online

The journal Comparative Legal History has posted some new content online (with full text available to subscribers):

Articles

Finding, sharing and risk of loss: of whales, bees and other valuable finds in Iceland, Denmark and Norway
William Ian Miller & Helle Vogt

Cultural and legal transfer in Napoleonic Europe: codification of Dutch civil law as a cross-national process
Martijn van der Burg

The theory and practice of indigenous dispossession in the late nineteenth century: the Saami in the far north of Europe and the legal history of colonialism
Kaius Tuori

The iuramentum perhorrescentiae under canon law: an influence on the development of early chancery jurisdiction?
Richard Perruso

The concept of military occupation in the era of the French Revolutionary and Napoleonic Wars
Peter M.R. Stirk

‘Inter ruinas publicas scriptum’: Ernest Nys, a legal historian in defence of Belgian tax payers during the Great War
Frederik Dhondt

Book reviews

Disputing strategies in medieval Scandinavia
Mia Korpiola

Rethinking modern European intellectual history
Katharina Isabel Schmidt

Frankfurt und Hamburg vor dem Reichskammergericht. Zwei Handels- und Handwerkszentren im Vergleich
Bram van Hofstraeten

Legal orientalism: China, the United States, and modern law
Stefan Kroll

Meyler on the "Love Triangle" of Law, Literature and History

Bernadette A. Meyler, Stanford Law School, has posted Law, Literature, and History: The Love Triangle, which is forthcoming in the UC Irvine Law Review:

A decade ago, at the end of her characteristically astute provocation of law and literature scholars in “Law, Literature, and the Vanishing Real,” Julie Peters suggested moving beyond the law/literature dichotomy into both “law, culture, and the humanities” and global “disciplinary tourism.” By silently glossing over “literature” in favor of the broader terms “culture” or the “humanities,” new formulations of the area of study might, she indicated, help to dispel the “interdisciplinary illusion” fueling the opposition between and relation of law and literature, dispensing with the notion shared by scholars of both law and literature that the “real” is located just over the methodological divide between the fields. Peters’ essay valuably rejected the binary that appears in far too many versions of law and literature scholarship. Its aspiration to put aside disciplinary boundaries among sectors of the humanities in studying “law, culture, and the humanities” or “law and the humanities” tout court has not, however, proved entirely feasible, nor is it necessarily desirable.

As those familiar with “law and society” know, the turn toward a broader category — like culture, or the humanities, or society — may not remain unvexed, as questions arise respecting the unity of the umbrella term and its framing in opposition to law. Moreover, from within the parameters of law, and particularly those of legal pedagogy, “law and the humanities” designates not precisely a decomposition of the boundaries between law and its outside, but a gesture toward one form of law’s outside, the humanistic, as opposed generally to the social sciences. Despite the proliferation of the “law and” fields, many — including law and the humanities — still appear from the vantage point of legal pedagogy as a superficial carapace that can be shed when financial exigencies press law schools to cut costs and reduce tuition.

This Article aims to demonstrate the centrality of the humanities to the core of law school pedagogy today. At the same time, by focusing on two areas within the humanities — literature and history — it tries to show how disciplines still matter, both as engines and impediments. Examining the shifting passions that bind law, literature, and history to each other, it foregrounds the dynamic quality of disciplinary relations as the attraction of fields for each other waxes and wanes. This dynamism itself advances the possibilities for new births of knowledge. Although unstable and of unknown fate, the love triangle of law, literature, and history continues to spawn fertile offspring.

New Release: Balogh's "Associational State"

Brian Balogh, Compton Professor at the Miller Center and Professor of History at the University of Virginia, has just published The Associational State: American Governance in the Twentieth Century, with the University of Pennsylvania Press.

In the wake of the New Deal, U.S. politics has been popularly imagined as an ongoing conflict between small-government conservatives and big-government liberals. In practice, narratives of left versus right or government versus the people do not begin to capture the dynamic ways Americans pursue civic goals while protecting individual freedoms. Brian Balogh proposes a new view of U.S. politics that illuminates how public and private actors collaborate to achieve collective goals. This "associational synthesis" treats the relationship between state and civil society as fluid and challenges interpretations that map the trajectory of American politics solely along ideological lines. Rather, both liberals and conservatives have extended the authority of the state but have done so most successfully when state action is mediated through nongovernmental institutions, such as universities, corporations, interest groups, and other voluntary organizations.

The Associational State provides a fresh perspective on the crucial role that the private sector, trade associations, and professional organizations have played in implementing public policies from the late nineteenth through the twenty-first century. Balogh examines key historical periods through the lens of political development, paying particular attention to the ways government, social movements, and intermediary institutions have organized support and resources to achieve public ends. Exposing the gap between the ideological rhetoric that both parties deploy today and their far less ideologically driven behavior over the past century and a half, The Associational State offers one solution to the partisan gridlock that currently grips the nation.

Reviewers say:

"A compelling and novel portrait of American political development. Balogh contends that a different and powerful reading of American political history can be developed by focusing on the organization of relationships between the state and society."—Elizabeth Clemens, author of The People's Lobby: Organizational Innovation and the Rise of Interest Group Politics in the United States

"A distinctive analysis of the growth of American government in the twentieth century, building its many insights on a commanding synthesis of American political development and the new political history."—James Sparrow, author of Warfare State: World War II Americans and the Age of Big Government

 TOC after the jump.

Osgoode Society to Honor Four Legal Historians

As reported in the Financial Post.

Woloch's "Class by Herself"

Just out is Nancy Woloch’s A Class by Herself: Protective Laws for Women Workers, 1890s-1990s (Princeton: Princeton University Press, 2015):

A Class by Herself explores the historical role and influence of protective legislation for American women workers, both as a step toward modern labor standards and as a barrier to equal rights. Spanning the twentieth century, the book tracks the rise and fall of women-only state protective laws—such as maximum hour laws, minimum wage laws, and night work laws—from their roots in progressive reform through the passage of New Deal labor law to the feminist attack on single-sex protective laws in the 1960s and 1970s.

Nancy Woloch considers the network of institutions that promoted women-only protective laws, such as the National Consumers’ League and the federal Women’s Bureau; the global context in which the laws arose; the challenges that proponents faced; the rationales they espoused; the opposition that evolved; the impact of protective laws in ever-changing circumstances; and their dismantling in the wake of Title VII of the Civil Rights Act of 1964. Above all, Woloch examines the constitutional conversation that the laws provoked—the debates that arose in the courts and in the women’s movement. Protective laws set precedents that led to the Fair Labor Standards Act of 1938 and to current labor law; they also sustained a tradition of gendered law that abridged citizenship and impeded equality for much of the century.

Drawing on decades of scholarship, institutional and legal records, and personal accounts, A Class by Herself sets forth a new narrative about the tensions inherent in women-only protective labor laws and their consequences.

The TOC is here.  Readers say:

"A monumental contribution to the history of gendered labor law, Woloch's clear and authoritative guide to this complex topic provides a solid foundation for future scholars. Its commanding perspective offers effective summaries, astute interpretations, and thoughtful connections across a century of social, economic, and political change. This is a book of enduring value to historians, legal scholars, and everyone interested in fairness in the workplace."--Kathryn Kish Sklar, author of Florence Kelley and the Nation's Work

"Rarely are we fortunate enough to get such a careful and nuanced exploration of such an important subject. Woloch moves well beyond polemics to help us genuinely understand the complexities of issues that remain in a class by themselves in terms of their significance in American legal and political history. Woloch's chronological reach is especially impressive, ultimately helping us to understand the many different conceptions of 'progressive' politics that have enlivened modern America."--Robert D. Johnston, author of The Radical Middle Class

"How did women move from the border of belonging to the center of the struggle for equality? Many historians have tackled pieces of the story, but nobody has traced the history of single-sex protective legislation from its conception to its disintegration until now. Well-researched, elegantly composed, and persuasive, A Class by Herself is a sterling account of one of the great issues in American women’s history."--Alice Kessler-Harris, Columbia University

New Release: Burrill on "Gender, Justice, and Rights in Colonial Mali"

New from Ohio University Press: States of Marriage: Gender, Justice, and Rights in Colonial Mali, by Emily S. Burrill (University of North Carolina, Chapel Hill). The Press explains:

States of Marriage shows how throughout the colonial period in French Sudan (present-day Mali) the institution of marriage played a central role in how the empire defined its colonial subjects as gendered persons with certain attendant rights and privileges. The book is a modern history of the ideological debates surrounding the meaning of marriage, as well as the associated legal and sociopolitical practices in colonial and postcolonial Mali. It is also the first to use declassified court records regarding colonialist attempts to classify and categorize traditional marriage conventions in the southern region of the country.

In French Sudan, as elsewhere in colonial Africa, the first stage of marriage reform consisted of efforts to codify African marriages, bridewealth transfers, and divorce proceedings in public records, rendering these social arrangements “legible” to the colonial administration. Once this essential legibility was achieved, other, more forceful interventions to control and reframe marriage became possible. This second stage of marriage reform can be traced through transformations in and by the colonial court system, African engagements with state-making processes, and formations of “gender justice.” The latter refers to gender-based notions of justice and legal rights, typically as defined by governing and administrative bodies as well as by socio­political communities. Gender justice went through a period of favoring the rights of women, to a period of favoring patriarchs, to a period of emphasizing the power of the individual — but all within the context of a paternalistic and restrictive colonial state.

More information is available here.

Sunday Book Roundup

Jim Grimsley's How I Shed My Skin: Unlearning the Racist Lessons of a Southern Childhood (Algonquin) is reviewed in the Washington Post.

History Today has a review of Presidential Faith and Foreign Policy: Jimmy Carter the Disciple and Ronald Reagan the Alchemist by William Steding (Palsgrave Macmillan).

"Steding is surely right to emphasise the importance of understanding the mindset a president brings to the momentous foreign policy decisions that are unavoidable for the occupant of the White House. Traces of the book's origins in a doctoral thesis are evident, such as calling these mindsets 'cognetic narratives' or 'cognetics'. Such jargon aside, the author succeeds in illuminating the way the presidents looked at the world. He makes the valid point that even historians who are interested in the values and beliefs of leaders tend to pass lightly over their religious convictions – clearly a mistake with Jimmy Carter and, perhaps less obviously, with Ronald Reagan."

Over on H-Net is a review of Leslie Rosenthal's The River Pollution Dilemma in Victorian England: Nuisance Law versus Economic Efficiency (Ashgate).

"In this well-researched book, Leslie Rosenthal examines ten legal conflicts over river pollution, and shows how judges balanced the formal upholding of the law with the management of the nuisance. While the polluters were held liable for causing the nuisance, in none of the case studies was a town’s sewer outlets physically stopped by the courts. Instead, the court took on a supervisory role on the process of abating the nuisance by ordering injunctions, but not actually enforcing them until a certain date, thus allowing the towns the time to adjust their sewers’ outflows. An important theme of the book is that the existing nuisance law was ill-equipped as a protector of the environment, as complainants could be paid compensation or sewage could be diverted, which solved the legal case but did not actually address the pollution itself. In addition, the technological options for treating the sewage were limited at the time. As a result, Rosenthal argues, the cases in which the court induced a town to reduce the nuisance of its pollution should be considered a success “worthy of celebration” (p. 231)."

Also on H-Net is a review of Returns: Becoming Indigenous in the Twenty-First Century (Harvard University Press) by James Clifford.

And from New Books in American Studies is an interview with author Michael G. Miller about his book, Subsidizing Democracy: How Public Funding Changes Elections and How it Can Work in the Future (Cornell University Press).

Weekend Roundup

• Joseph Vining (University of Michigan) has posted a short essay on the "basic elements" in John Noonan's thought. (Hat tip: Legal Theory Blog)

• From History Today: a "comprehensive overview of the landmark books" on the Magna Carta.

• Matthew Fletcher (Michigan State University) has posted "A Short History of Indian Law in the Supreme Court," published recently in the ABA Human Rights Magazine. (Hat tip: Turtle Talk)

• Over at Slate, Steven Lubet (Northwestern University) writes about that time he sued the Grateful Dead.

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

New Release: Field and Syrett, eds., "Age in America: The Colonial Era to the Present"

New from New York University Press: Age in America: The Colonial Era to the Present, edited by Corinne T. Field (University of Virginia) and Nicholas L. Syrett (University of Northern California). Here's a description from the Press:

Eighteen.  Twenty-one. Sixty-five.  In America today, we recognize these numbers as key transitions in our lives—precise moments when our rights and opportunities change—when we become eligible to cast a vote, buy a drink, or enroll in Medicare.This volume brings together scholars of childhood, adulthood, and old age to explore how and why particular ages have come to define the rights and obligations of American citizens.  

 

Since the founding of the nation, Americans have relied on chronological age to determine matters as diverse as who can marry, work, be enslaved, drive a car, or qualify for a pension. Contributors to this volume explore what meanings people in the past ascribed to specific ages and whether or not earlier Americans believed the same things about particular ages as we do.  The means by which Americans imposed chronological boundaries upon the variable process of growing up and growing old offers a paradigmatic example of how people construct cultural meaning and social hierarchy from embodied experience.  Further, chronological age always intersects with other socially constructed categories such as gender, race, and sexuality.  Ranging from the seventeenth century to the present, taking up a variety of distinct subcultures—from frontier children and antebellum slaves to twentieth-century Latinas—Age in America makes a powerful case that age has always been a key index of citizenship.

The TOC is available here, the Introduction, here.

New Release: Stockdale, "Imagining Exile in Heian Japan: Banishment in Law, Literature, and Cult"

New from the University of Hawai'i Press: Imagining Exile in Heian Japan: Banishment in Law, Literature, and Cult, by Jonathan Stockdale (University of Puget Sound). A description from the Press:

For over three hundred years during the Heian period (794–1185), execution was customarily abolished in favor of banishment. During the same period, exile emerged widely as a concern within literature and legend, in poetry and diaries, and in the cultic imagination, as expressed in oracles and revelations. While exile was thus one sanction available to the state, it was also something more: a powerful trope through which members of court society imagined the banishment of gods and heavenly beings, of legendary and literary characters, and of historical figures, some transformed into spirits.

This compelling and well-researched volume is the first in English to explore the rich resonance of exile in the cultural life of the Japanese court. Rejecting the notion that such narratives merely reflect a timeless literary archetype, Jonathan Stockdale shows instead that in every case narratives of exile emerged from particular historical circumstances—moments in which elites in the capital sought to reveal and to re-imagine their world and the circulation of power within it. By exploring the relationship of banishment to the structures of inclusion and exclusion upon which Heian court society rested, Stockdale moves beyond the historiographical discussion of "center and margin" to offer instead a theory of exile itself.

Stockdale's arguments are situated in astute and careful readings of Heian sources. His analysis of a literary narrative, the Tale of the Bamboo Cutter, for example, shows how Kaguyahime's exile from the "Capital of the Moon" to earth implicitly portrays the world of the Heian court as a polluted periphery. His exploration of one of the most well-known historical instances of banishment, that of Sugawara Michizane, illustrates how the political sanction of exile could be met with a religious rejoinder through which an exiled noble is reinstated in divine form, first as a vengeful spirit and then as a deity worshipped at the highest levels of court society.

Imagining Exile in Heian Japan is a model of interdisciplinary scholarship that will appeal to anyone interested in the interwoven connections among the literature, politics, law, and religion of early and classical Japan.

More information is available here.

New Release: Aiello on "Jim Crow's Last Stand"

New from LSU Press is Jim Crow's Last Stand: Nonunanimous Criminal Jury Verdicts in Louisiana, by Thomas Aiello, an associate professor of history at Valdosta State University:

The last remnant of the racist Redeemer agenda in the Louisiana’s legal system, the nonunanimous jury-verdict law permits juries to convict criminal defendants with only ten out of twelve votes. A legal oddity among southern states, the ordinance has survived multiple challenges since its ratification in 1880. Despite the law’s long history, few are aware of its existence, its original purpose, or its modern consequences. At a time when Louisiana’s penal system has fallen under national scrutiny, Jim Crow’s Last Stand presents a timely, penetrating, and concise look at the history of this law’s origins and its troubling legacy.

The nonunanimous jury-verdict law originally allowed a guilty verdict with only nine juror votes, funneling many of those convicted into the state’s burgeoning convict lease system. Yet the law remained on the books well after convict leasing ended. Historian Thomas Aiello describes the origins of the statute in Bourbon Louisiana—a period when white Democrats sought to redeem their state after Reconstruction—its survival through the civil rights era of the 1950s and 1960s, and the Supreme Court’s decision in Johnson v. Louisiana (1972), which narrowly validated the state’s criminal conviction policy.

Spanning over a hundred years of Louisiana law and history, Jim Crow’s Last Stand investigates the ways in which legal policies and patterns of incarceration contribute to a new form of racial inequality.

New Release: Landmark Cases in Property Law

Out from Hart Publishing is Landmark Cases in Property Law, edited by: Simon Douglas, Robin Hickey, Emma Waring:

This book explores the development of basic principles of property law in leading cases. Each paper considers a case on land, personal property or intangibles, discussing what that case contributes to the dominant themes of property jurisprudence - how are property rights acquired? What is the content of property rights? What are the limits or boundaries of property? How are property rights extinguished? Individually and collectively, the papers identify a number of important themes for the doctrinal development of property institutions and their broader justification. These themes include: the obscure and incremental development of seemingly foundational principles, the role of instrumentalism in property reasoning, the influence of the law of tort on the scope of property doctrines, and the impact of Roman legal reasoning on the common law of property. One or more of these themes (and others) is revealed through careful case analysis in each paper and they are collected and critically explored in the editors' introduction. This makes for a coherent and provocative collection.

The TOC is here.  Most chapters take up what are, for the law of property, at least, fairly recent cases, but they also include

“Banks v Whetson (1596),” by David Fox

“Millar v Taylor (1769): Landmark and Beacon. Still,” by Catherine Seville

“Armory v Delamirie (1722): Possession, Obligation, and the Evolution of Relative Title to Goods,” by Robin Hickey

Rubin, "A Neo-Institutional Account of Prison Diffusion"

Ashley T. Rubin (Florida State University) has posted "A Neo-Institutional Account of Prison Diffusion." The article appeared in Volume 49, issue 2, of the Law and Society Review (2015). Here's the abstract:.

Interest in legal innovations, particularly in the criminal law realm, often centers on an innovation’s emergence, but not its subsequent diffusion. Typifying this trend, existing accounts of the prison’s historical roots persuasively explain the prison’s "birth" in Jacksonian-Era northern coastal cities, but not its subsequent rapid, widespread, and homogenous diffusion across a culturally, politically, and economically diverse terrain. Instead, this study offers a neo-institutional account of the prison’s diffusion, emphasizing the importance of national, field-level pressures rather than local, contextual factors. This study distinguishes between the prison’s innovation and early adoption, which can be explained by the need to replace earlier proto-prisons, while its subsequent adoption, particularly in the South and frontier states, was driven by the desire to conform to increasingly widespread practices. This study further attributes the isomorphic nature of the diffusion to institutional pressures, including uncertainty surrounding the new technology, pseudo-professional penal reformers and their claims about competing models of confinement, and contingent historical factors that reinforced these institutional pressures. This study illustrates the importance of distinguishing between the motivations that initiate criminal law innovations and the varied reasons behind their diffusion.

The full article is available here.

Nixon's Court: The Griswold Prize Lecture

[We're moving this up. as Professor McMahon's lecture may now be viewed on C-SPAN.]

Thanks to the usual competence and efficiency of the Supreme Court Historical Society, Kevin J. McMahon’s Erwin Griswold Prize Lecture on Nixon’s Court: His Challenge to Judicial Liberalism and Its Consequences, went off well last night.  The audience and the official host—Justice Antonin Scalia–did have to negotiate Professor McMahon’s reading of a passage in which Nixon, caught on tape, sized up the political benefits of appointing an Italian American to the Court, but Justice Scalia did his part by being warm and gracious.  His observation that “his dean”–Dean Griswold–was incapable of small talk confirmed Griswold’s own belief that he was not selected legal secretary to Justice Oliver Wendell Holmes “because I was not the ‘polished gentleman’ who was usually chosen for the post.” 

The prize was created by Jones Day in 1995 to honor Griswold, who joined the firm's Washington office after his Solicitor Generalship.  Among the firm’s lawyers in attendance was Kevyn Orr, whose recent service as Detroit’s emergency manager was acknowledged.  The unexpected juxtaposition of Mister Orr and President Nixon prompted reflections on how the wielding of enormous discretionary power can bring out the best in some lawyers and the worst in others.

The lecture by McMahon, the John R. Reitemeyer Professor of Political Science at Trinity College, will be broadcast on C-Span and available online, in due course. 

New Release: Sobecki on "The Making of England’s Vernacular Legal Culture, 1463–1549"

New from Notre Dame Press: Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463–1549 (March 2015), by Sebastian Sobecki (University of Groningen, the Netherlands). Here's a description from the Press:

In Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463-1549, Sebastian Sobecki argues that the commitment by English common law to an unwritten tradition, along with its association with Lancastrian political ideas of consensual government, generated a vernacular legal culture on the eve of the Reformation that challenged the centralizing ambitions of Tudor monarchs, the scriptural literalism of ardent Protestants, and the Latinity of English humanists.

Sobecki identifies the widespread dissemination of legal books and William Caxton’s printing of the Statutes of Henry VII as crucial events in the creation of a vernacular legal culture. He reveals the impact of medieval concepts of language, governance, and unwritten authority on such sixteenth-century humanists, reformers, playwrights, and legal writers as John Rastell, Thomas Elyot, Christopher St. German, Edmund Dudley, John Heywood, and Thomas Starkey. Unwritten Verities argues that three significant developments contributed to the emergence of a vernacular legal culture in fifteenth-century England: medieval literary theories of translation, a Lancastrian legacy of conciliar government, and an adherence to unwritten tradition. This vernacular legal culture, in turn, challenged the textual practices of English humanism and the early Reformation in the following century. Ultimately, the spread of vernacular law books found a response in the popular rebellions of 1549, at the helm of which often stood petitioners trained in legal writing. Informed by new developments in medieval literature and early modern social history, Unwritten Verities sheds new light on law printing, John Fortescue’s constitutional thought, ideas of the commonwealth, and the role of French in medieval and Tudor England.

A few blurbs:

“Sebastian Sobecki’s lucid and lively study seeks to address a major lacuna in the current understanding of English vernacularity from the fourteenth to the sixteenth centuries: English common law. This huge body of knowledge and practice, written and unwritten, awaits focused attention from historians and literary historians, particularly in the light of new scholarship on Anglo-French vernacularity in this period. Sobecki’s ambitious, original, and deeply considered account includes such figures as John Fortescue, John Rastell, and Christopher St. German and their investments in and influence on early Tudor commonality. The range and intelligence of his approach to this material, his ability to think beyond period and disciplinary boundaries, and his alertness to the complex bilingual condition of English intellectuals add a compelling dimension to the debate on the linguistic and political shapes of insular identity in these centuries.” — Ardis Butterfield (Yale University)

“Unwritten Verities proposes an arresting and original thesis: that the English common law’s commitment to an oral tradition permitted it, on the eve of the Reformation, to become a transformative repository for notions of consensual government, of the inwardness of spiritual jurisdiction, and of the preeminence of English. This elegantly written and engagingly controversial book will stimulate literary scholars, legal historians, and historians of political thought to look afresh at some of their fundamental assumptions about English literature, politics, and the law at the turn of the fifteenth century." — Lorna Hutson (University of St. Andrews)

More information is available here.

Magna Carta and the Constitution at the National Archives

[We have the following announcement of a free panel discussion, Magna Carta and the Constitution, to be held Monday, June 15, at 7:00 p.m., National Archives, William G. McGowan Theater.]

To celebrate the 800th anniversary of the sealing of Magna Carta, the National Archives and The Constitutional Sources Project (ConSource) present a discussion on the influence of Magna Carta on American constitutionalism, including its place in the charters of the American colonies, its impact on the era of the Founding Fathers, and its continued influence today. Moderated by Judge Royce Lamberth, Senior United States District Judge for the District of Columbia, panelists include: Jennifer Paxton, historian and medieval specialist, Catholic University of America; Robert Pallitto, author of In the Shadow of the Greater Charter; and Bruce O’Brien, Magna Carta expert from the University of Mary Washington, who served on scholar advisory Board for the Library of Congress’s Magna Carta: Muse and Mentor exhibit.

You can register for the Magna Carta and the Constitution panel discussion here or call 202-357-6814.

The panel discussion will be livestreamed online on June 15, so if you are unable to join us at the Archives, we encourage you to view the program online here.

The evening panel discussion is part of the National Archives’ larger Magna Carta Day celebration, which includes a lunchtime speaker, as well as Magna Carta Cake. You can learn more about the full National Archives Celebration here.

Update: A front-page (although below the fold) story in today's Washington Post: After 800 years, Britain finally asks: Do we need a written constitution?

Sunday Book Roundup

Common-Place has posted its Spring 2015 issue online. Included is a review of Robert E. Wright's Corporation Nation (University of Pennsylvania Press).

"In his sweeping new study of the useful rise and moral fall of the American corporation, Robert E. Wright has simultaneously provided a timely means to help us understand the corporate form and corporate behavior, a scathing account of evolving corporate ills and abuses, and a preliminary prescription for their reform. In doing so Wright demonstrates just how, in the matter of corporate governance, history can be Americans' best teacher. Corporation Nation traces the life of the corporate form in America from colonial times to the recent financial debacles of 2007-2009 to show how American corporations have transformed from governable local enterprises into unwieldy, ungovernable entities that have reached a nadir in public opinion and confidence."

The Washington Independent Review of Books has a review of Empire of Deception: The Incredible Story of a Master Swindler Who Seduced a City and Captivated the Nation by Dean Jobb (Algonquin Books).

"In Empire of Deception, Dean Jobb, a Canadian journalist, has written an intriguing story of the rise and fall of Leo Koretz, a Chicago-based swindler in the 1920s. It was a time when that city was plagued with gangland violence and everything in Chicago seemed for sale — from judgeships and other political offices to phony stock in oil companies. Hardly a scandal or murder in Chicago in the 1920s is omitted in this book."

Erwin Chemerinsky reviews Akhil Reed Amar's The Law of the Land: A Grand Tour of Our Constitutional Republic (Basic) for the LA Review of Books.

"Every chapter is filled with interesting and important analyses of these topics. But to a large extent, organizing the book around the states is artificial and irrelevant to Amar’s discussion. For example, Amar’s discussion of the Second Amendment is no more linked to Wyoming than to any other state where there is strong opposition to gun control. His discussion of how the composition of the Supreme Court has changed, and how the justices now all come from Harvard or Yale law schools and have a narrow range of experience, really has nothing to do with New York, the chapter in which it is found. Amar has been arguing against the exclusionary rule for years; it is not about Massachusetts in any particular way. The discussion of presidential succession is placed in a chapter about Texas only because Lyndon Johnson was sworn in there after John F. Kennedy’s assassination; the issue of presidential succession has nothing specifically to do with Texas."

Marion Holmes Katz discusses her book, Women in the Mosque: A History of Legal Thought and Social Practice (Columbia University Press) with New Books in History.

A Narco History: How the United States and Mexico Jointly Created the 'Mexican Drug War' (O/R Books) by Carmen Boullosa and Mike Wallace is reviewed in the LA Times.

"Boullosa and Wallace connect the savagery as well to our war on drugs. Their binational tale includes U.S. drug prohibitions, Americans' appetite for illegal dope and our childlike refusal to do anything serious to limit the flow of arms south, even as those guns and bullets have daily bathed Mexico in blood.
Their overview — a century of history in a few hundred pages — emerges ornate in detail yet refreshingly concise." 

Weekend Roundup

Jennifer Mnookin

• Congratulations to UCLA's Jennifer Mnookin, the latest legal historian to become dean of a law school! H/t: LK!

• Welcome to the blogosphere, Punishment and Society, "the official blog of the Law and Society Association's CRN 27 Punishment and Society."

• The Cumberland Law Review is seeking papers on the Voting Rights Act of 1965. (Hat tip: Faculty Lounge)

• Over at Balkinization, Bruce Ackerman (Yale Law School) previews the argument of his current book project, on the world-wide rise of constitutionalism during the twentieth century.

• On HNN: A report on the panel at the annual meeting of the American Association for the History of Medicine, “Reproductive Rights after Griswold: A Fifty Year Retrospective,” by Heather Munro Prescott, Central Connecticut State University. 

• Mapping Segregation in Washington DC: A presentation and online launch on June 17 in DC’s Martin Luther King Library.

• From our friends at the Canadian Legal History Blog: a few panels of interest from this week's meeting of the Canadian Law and Society Association.

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

Stack on Wyman's "Principles of Administrative Law"

Kevin M. Stack, Vanderbilt Law, has posted Reclaiming 'The Real Subject' of Administrative Law: A Critical Introduction to Bruce Wyman's The Principles of the Administrative Law Governing the Relations of Public Officers (1903; Lawbook Exchange, 2014):

This introductory essay, included in a republication of Bruce Wyman’s treatise on administrative law, The Principles of the Administrative Law Governing the Relations of Public Officers (1903, republished with new introduction, 2014), describes Wyman’s vision of administrative law and examines the treatise’s uneasy relationship with the dominant intellectual currents of his day. Wyman’s treatise provides the first development in American legal thought of the idea that the primary grounds of administrative legality are the internal practices and procedures that agencies adopt to structure their own exercise of discretion, "the internal administrative law," as opposed to the standards and types of judicial review, "the external law of administration." Wyman’s treatise thus serves as a fount for the rekindled project of understanding the forms and roles of internal administrative law. The treatise contains many other insights that resonate in current debates; we can read Wyman, writing a mere three years after his graduation from and subsequent appointment to the faculty of Harvard Law School, as prescient in his understanding of the grounds and role of delegation to agencies and judicial deference to their decisions. Wyman’s treatise also covers topics falling within the law of enforcement, such as police investigations and foreign affairs, prompting contemporary readers to consider what has been lost from the isolation of these areas from the cognizance of administrative law.

Lee Discusses "Workplace Constitutionalism"

Over at New Books in History, Peter Christian Aigner talks to former LHB Guest Blogger Sophia Z. Lee about The Workplace Constitution from the New Deal to the New Right.

Americans believe they have a number of protections on the job, which are common in other democracies (free speech and privacy, defense against capricious firing, etc.). They are wrong. And in her fascinating new book The Workplace Constitution from the New Deal to the New Right (Cambridge University Press, 2014), the legal historian Sophia Z. Lee wants to understand why.

She explores two major campaigns, stretching roughly from the 1920's to the 1980's, to establish constitutional safeguards in the workplace, uncovers their remarkable successes, and ultimate failures. It is a story of unlikely bedfellows: black, pro-union labor activists like C.W. Rice and Charles Houston fighting if not quite alongside then at least parallel to anti-union, right-to-work corporate leaders like Cecil B. DeMille and William T. Harrison for a similar goal to contrary ends.

Lee finds that, contrary to what many think, civil rights groups like the NAACP were actively pursuing employment safeguards in the postwar era, using the "exclusive representation" granted by the New Deal to unions to make creative arguments for "state action" on the basis of the "duty of fair representation." At the same time, conservatives sought to roll back the dramatic expansion of organized labor during the late 1930's and especially World War II (to a third of the non-agricultural workforce) by arguing that "closed shop" rules forced men to join unions and to pay for such things as lobbying.

Initially, the courts rejected these latter petitions, during a time when corporations suffered from its Great Depression reputation. But in the late 1950's, as Congress uncovered corruption in select unions and the civil rights movement steadily grew, businessmen and liberal Republicans had far more success allying themselves with discrimination cases. The Supreme Court, for its part, was caught between not wanting to uphold segregation in labor, or to establish safeguards that would force integration on the entire private sector. Free marketers had nightmares about the racial and economic implications of a workplace Constitution, and unions did, too, for different reasons. With this deadlock, administrative agencies like the National Labor Relations Board and the Federal Communications Commission became fertile arenas for legal expansions.

The result is a tale of absorbing complexity–thankfully, lucidly and beautifully written.

Lerner on "The Uncivil Jury"

Renée Lettow Lerner

Renée Lettow Lerner, GW Law, has just completed a series of guest posts, entitled “The Uncivil Jury,” for The Volokh Conspiracy:

Americans’ misplaced sentiment about the civil jury
The unromantic origins of the jury and the continuous need for an alternative
The perils of jury trial, efforts to control juries, and the deceptive allure of nullification
The collapse of the civil jury
What to do now — repeal and redesign

LSA 2015 Report: Law & History Collaborative Research Network

At the recent Law & Society Association conference in Seattle, Washington, the Law & History Collaborative Research Network (CRN 44) made an excellent showing. Although only in its second year, the CRN sponsored and planned 13 panels at LSA—tying for fourth for the most CRN-sponsored panels! Panels included titles such as “Law and Rights in the 20^th Century,” “Law, Bodies, and Markets: The Legal Construction of Social Categories in the United States,” “Rethinking Legal Conservatism After Brown,” and “Promising Progress, Producing Difference: Law in Colonial Contexts.”

If you're unfamiliar with the group, the CRN seeks to bring together sociolegal scholars interested in legal history. It welcomes a broad array of scholarly interests and methodological approaches. The Law and Society Movement has long welcomed legal historians and encouraged legal history, and the CRN intends to further foster this relationship. Organizers seek to encourage presentation of historical legal work at the Law and Society’s Association’s annual meeting, and to create opportunities for interdisciplinary and cross-generational conversations. You can find out more about the CRN from last year’s post in Q&A form, here.

At this year’s Law & History CRN business meeting, a small group of faculty and graduate students discussed ways of building on this year’s successes -- including more outreach to non-Americanist legal historians and an expanded web presence.

If you’re interested in joining the CRN, contact Joanna Grisinger (Center for Legal Studies, Northwestern University) or Logan Sawyer (University of Georgia Law School). 

For those who attended, the Legal History Blog welcomes your guest post about any relevant panels. (Examples of the type of coverage we're looking for are here and here.) To sign up for guest post(s), please email us. No technical expertise is required -- we take care of that for you.

And finally, for tweets from the conference, you can search #LSAWA2015.

Katz Discusses "Women in the Mosque"

Over at New Books in History, Kristian Petersen talks to Marion Holmes Katz about Women in the Mosque: A History of Legal Thought and Social Practice (Columbia University Press, 2014):

Recently, there have been various debates within the Muslim community over women's mosque attendance. While contemporary questions of modern society structure current conversations, this question, 'may a Muslim woman go to the mosque,' is not a new one. In Women in the Mosque: A History of Legal Thought and Social Practice (Columbia University Press, 2014), Marion Holmes Katz, Professor of Islamic Studies at New York University, traces the juristic debates around women's mosque attendance. Katz outlines the various arguments, caveats, and positions of legal scholars in the major schools of law and demonstrates that despite some differing opinions there was generally a downward progression towards gendered exclusion in mosques.   were engaged in at the mosque, the time of day, the permission of their husbands or guardians, attire, and the multitude of conditions that needed to be met. Later interpreters feared women's presence in the mosque because they argued it stirred sexual temptation. Katz pairs these legal discourses with evidence of women's social practice in the Middle East and North Africa from the earliest historical accounts through the Ottoman period. In our conversation we discuss types of mosque activities, Mamluk Cairo, women's educational participation, the Aqsa Mosque in Jerusalem, the transmission of knowledge, European travelers accounts of Muslim women, night prayers, mosque construction, debates about the mosque in Mecca, and modern developments in legal discussions during the 20th century.

New Release: Ibrahim, "Pragmatism in Islamic Law"

New from Syracuse University Press: Pragmatism in Islamic Law: A Social and Intellectual History, by Ahmed Fekry Ibrahim (McGill University). A description from the Press:

In Pragmatism in Islamic Law, Ibrahim presents a detailed history of Sunni legal pluralism and the ways in which it was employed to accommodate the changing needs of society. Since the formative period of Islamic law, jurists have debated whether it is acceptable for a law to be selected based on its utility, rather than weighing conflicting articulations of the law to determine the most likely expression of the divine will. Virtually unanimous opposition to the utilitarian approach, referred to as “pragmatic eclecticism,” emerged among early Islamic jurists. However, due to a host of changing institutional and socioeconomic transformations, a trend toward the legitimization of pragmatic eclecticism arose in the thirteenth century. Subsequently, the Mamluk authorities institutionalized this pragmatism when Sultan Baybars appointed four chief judges representing the four Sunni schools in Cairo in 1265 CE. After a brief attempt to reverse Mamluk pluralism by imposing the Hanafi school in the sixteenth century, Egypt’s new rulers, the Ottomans, embraced this pluralistic pragmatism. In examining over a thousand cases from three seventeenth- and eighteenth century Egyptian courts, Ibrahim traces the internal logic of pragmatic eclecticism under the Ottomans. An array of archival sources documents the manner in which Egyptian society’s subaltern classes navigated Sunni legal pluralism as a tool to avoid more austere legal doctrines. The ensuing portrait challenges the assumption made by many modern historians that the utilitarian approaches adopted by nineteenth- and twentieth-century Muslim reformers constituted a clear rupture with early Islamic legal history. In contrast, many of the legal strategies exercised in Egypt’s partial codification of family law in the twentieth century were rooted in premodern Islamic jurisprudence.

Full content is available to subscribers of Project Muse.

White on the Emergence and Development of Amreican Tort Law

G. Edward White, University of Virginia School of Law, has posted The Emergence and Development of a Law of Torts, which is to appear in the University of St. Thomas Law Journal 11 (2015):    

This article discusses the origins and development of tort law in late nineteenth and early twentieth century America. It simultaneously considers tort law as an independent common law field, a subject taught in law schools, and an area of growing litigation. It attempts to delineate the various factors that combined, in the first two decades after the Civil War, to facilitate the emergence of tort law in each of those dimensions. It then discusses the peculiar history of tort law in the early twentieth century, when the advent of worker’s compensation statutes served to remove many prospective workplace accident suits from the common law tort system, but at the same time tort law continued to grow because of the collapse of the privity bar in suits involving negligently manufactured or defectively designed products. Finally, the article describes how the most problematic doctrinal issue for early twentieth-century tort law, “proximate” causation, was temporarily “resolved” by courts and commentators through the “risk-relation-duty” analysis of causation issues proposed by Judge Benjamin Cardozo in the majority opinion in Palsgraf v. Long Island R.R. and initially adopted by the First Restatement of Torts in 1935. Cardozo and the Restatement’s framers hoped that the analysis would enable tort law to get beyond the seemingly intractable issue of which causes of accidents were “remote” and which “proximate,” but the experiment utterly failed, leaving tort law as doctrinally uncertain, and epistemologically complex, as it had always been.

Parrillo on "Against the Profit Motive" on New Books in Law

Former LHB Guest Blogger Nicholas R. Parrillo, Yale Law School, discusses Against the Profit Motive:The Salary Revolution in American Government, 1780-1940 (Yale University Press, 2013) Siobhan Barco on the New Books in Law podcast.  Among the topics covered are:

"The ways American lawmakers made the absence of a profit motive a defining feature of government

"The two non-salary forms of payment for government officials that initially predominated in the US

"How these two forms of payment tended to give rise to very different social relationships between officials and the people with whom they dealt

"Why the flight to salaries was an admission of law's weakness and failure"

Thank You, Reuel Schiller!

We here at LHB are grateful to Reuel Schiller for an excellent series of posts inspired by his new book .  In case you missed them, here they are:
Forging Rivals:

Tugging on Loose Ends

Was Terry Francois Ahead of His Time?

Redevelopment and Legal Liberalism

Banks v. Housing Authority and a Multi-Racial Approach to the Equal Protection Clause (Parts 1 and 2)

Herbert Resner and the Decline of Radical Lawyering

Joseph V. Baker and the Invisible Man

Politics, Administration, and Fair Employment Practices

Legal History at San Francisco State University's Labor Archives and Research Center 

Legal History and Urban History

New Release: Han on "Race and the Fantasy of Colorblindness in American Law"

New from Stanford University Press: Letters of the Law: Race and the Fantasy of Colorblindness in American Law, by Sora Y. Han (University of California, Irvine). A description from the Press:

One of the hallmark features of the post-civil rights United States is the reign of colorblindness over national conversations about race and law. But how, precisely, should we understand this notion of colorblindness in the face of enduring racial hierarchy in American society? In Letters of the Law, Sora Han argues that colorblindness is a foundational fantasy of law that not only informs individual and collective ideas of race—but also structures the imaginative capacities of American legal interpretation. Han develops a critique of colorblindness by deconstructing the law's central doctrines on due process, citizenship, equality, punishment and individual liberty, in order to expose how racial slavery and the ongoing struggle for abolition continue to haunt the law's reliance on the fantasy of colorblindness.

Letters of the Law provides highly original readings of iconic Supreme Court cases on racial inequality – spanning Japanese internment to affirmative action, policing to prisoner rights, Jim Crow segregation to sexual freedom. Han's analysis provides readers with new perspectives on many urgent social issues of our time, including mass incarceration, educational segregation, state intrusions on privacy, and neoliberal investments in citizenship. But more importantly, Han compels readers to reconsider how the diverse legacies of civil rights reform archived in American law might be rewritten as a heterogeneous practice of black freedom struggle.

A few blurbs:

"Letters of the Law offers a profoundly engaged and sensitive reading of critical race theory. It illuminates not only the foundational antagonism of American law—between racism and equal rights—but also displaces the widely-accepted notion that racial disproportionality is the 'ur-fact of racial inequality.' Han has re-instantiated critical race theory as fundamental to any understanding of the law."

—Fred Moten, UC Riverside

"A stunning inquiry into the racial haunt of the law, Letters of the Law is a rare example of that ornery beast we call 'interdisciplinary scholarship.' In this compelling and beautiful work, Han proves that the time of slavery is with us still."

—Colin Dayan, Vanderbilt

More information is available here.

CFP: AICILS 2015

[We have the following Call for Papers.  H/t Mary Dudziak]

Academic International Conference on Interdisciplinary Legal Studies, University of Cambridge, Cambridge, United Kingdom

The Academic International Conference on Interdisciplinary Legal Studies - AICILS 2015 (Cambridge) Organising Committee has now issued CALL FOR PAPERS to be presented in July 13-15 2015, at the University of Cambridge, Newnham College, Cambridge, United Kingdom. The overall objective of the AICILS is to provide platform and stimulate discussion on key Interdisciplinary legal issues affecting politics, economics, history, psychology, criminology,  sociology, socio-legal studies and medicine.

AICILS provides an opportunity for  academics, practitioners, consultants, scholars, researchers and policy makers with different backgrounds and experience to present their papers in the conference and exchange and share their experiences, new ideas, research results, as well as discuss the practical challenges encountered and the solutions adopted. Conference committee highly encourages doctorate (PhD) and postgraduate students also to present their re-search proposal or literature review or findings or issues in this conference with a very special registration fees. Case studies, abstracts of research in progress, as well as full research papers will be considered for the conference program for presentation purposes.

Legal History and Urban History

A striking thing I learned while writing Forging Rivals was that cities were leaders in passing fair employment practices legislation in the immediate postwar period. It is commonly known that the federal government created a fair employment practices commission without enforcement powers during World War II. As the War ended, there was a contentious battle to create a peace-time commission with more expansive powers. In the increasingly conservative postwar political environment, progressives lost that fight. In the standard narrative, they then took the fight for fair employment practice legislation to state legislatures.

While it is true that in the fifteen years after the War, some state legislatures passed employment discrimination laws and set up agencies to enforce those laws, it is less well know that many cities did so as well. Indeed, a pattern emerged. When state-wide legislation failed, fair employment advocates asked liberal municipalities to pass such legislation, with a fair degree of success. (We’re currently seeing a similar pattern with respect to living wage legislation.) Consequently, by 1960, twenty-two jurisdictions had some form of anti-discrimination legislation: eleven states, and eleven municipalities.

This fact suggests that legal historians should spend a little more time studying cities, a subject that they have neglected. Twentieth-century American legal historians tend to focus on law-making by the federal government, or on high profile doctrinal areas such as constitutional law and civil rights law that are not directly related to the governance of American cities. Additionally, the legal history of cities is very much a history focused on administrative agencies and administrative law, both subjects that, until recently, legal historians have shied away from. Indeed, even the more recent interest in the administrative state has not focused on cities. We’ve started to “bring the state back in” but we’ve left out the smallest units of government, particularly as we study twentieth-century legal institutions. We need to “bring the city back in” lest we miss an important location of state-building and policy creation.

Consider, for example, the legal history of postwar urban planning. Postwar cityscapes were shaped by two conflicting visions of urban planning. The first was a centralized, expertise-driven vision that was put into effect by various public and quasi-public authorities that were remarkably independent of local political actors. It sought to create housing, economic and cultural infrastructure and transportation systems in a massive, modernist idiom. (Think Lincoln Center, Cabrini Green, or BART.) The second vision was community-based, anti-expertise, and democratic. It was a reaction to modernist central planning -- urban romanticism suffused with a love of small-scale, urban authenticity. (Think Jane Jacobs, freeway revolts, and brownstone renovators.)

Each of these visions of the postwar city came equipped with a host of legal mechanisms. The centralizing modernists created a network of agencies and authorities that linked the federal government, and its tax dollars, with local and regional planners, often bypassing traditional city governmental structures. These were ingenious, complicated legal entities that touched on and transformed a whole host of legal regimes: public finance, eminent domain, local government law. Similarly, community-based, urban romantics deployed legal mechanisms (both traditional and innovative) to further their interests: historic preservation law, environmental law, zoning.

Thus, in this one area – postwar urban planning – there is a lot of legal history that could be explored. Indeed, because cities were a locus of many different types of reform in postwar period, to truly understand the dimensions of legal liberalism, we should turn our attention to the legal history of urban America.

Berger on Birthright Citizenship

Bethany Berger, University of Connecticut School of Law, has posted Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark, which is forthcoming in the Cardozo Law Review:

Wong Kim Ark (NA)

The constitutional dimensions of birthright citizenship revolve around two cases decided at the end of the nineteenth-century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the fourteenth amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the histories of the decisions and provides previously neglected facts about the litigants, lawyers, and communities in each to provide new perspectives on the cases and their continuing repercussions.

First, although John Elk’s non-Native lawyers presented him as seeking to assimilate and abandon his tribe, Elk was part of a Winnebago community and likely sought only freedom from the federal government’s aggressive policies of land acquisition and domination. Second, while Wong Kim Ark’s lawyers were products of an organized Chinese migrant community, Wong also likely sought citizenship less as a quest for full assimilation than as an effort to maintain his transnational family in the face of exclusionary immigration policies. The histories also show the limits of judicial action, as the effect of each opinion was quickly undermined by congressional action, and used to justify expanded administrative power. Together, these histories challenge idealized concepts of citizenship, freedom, and individual action that remain with us today, and provide a richer understanding of race, constitutional doctrine, and administrative structure in the United States.