CFP: Legal History @ LSA 2016

The organizers of the Law & History - LSA Collaborative Research Network ("Law and History CRN") have emailed the call for papers for the next annual meeting of the Law and Society Association, June 2-5, 2016, in New Orleans.  The deadline for submission is October 15, 2015. 

If you would like to use the Law & History CRN to find “other people interested in historical sources/methods/questions,” you should contact one of the organizers below by October 1.  You should also feel free to contact an organizer if you already have a complete panel and would like to have it listed as sponsored by the CRN.  And, btw, Emily's report on the recent activities of the CRN is here.

Here’s the call:

LSA 2016: At the Delta: Belonging, Place and Visions of Law and Social Change

An abiding theme in law and society scholarship is the relationship between law and social change.  Change can arise from many factors including the movement of people with their own traditions and beliefs, and their interaction with the forces of nature that affect the environments in which we live.

The site of the 2016 meeting, New Orleans, embodies as a place the experiences and processes of constant change that lie at the heart of law and society.  Legally, socially, politically and geographically, the city has been a site of constant change, from flowing water and shifting silt as well as from political mobilization over equality, inclusion and exclusion, the blending of different legal traditions, and the boundaries of legal responsibility. In the 19th century, Plessy v. Ferguson and other key cases that provided the legal framework for segregation originated in New Orleans. Today, in the aftermath of both Hurricane Katrina and the Deepwater Horizon oil rig explosion, the city is a symbol of contested rebirth in which the diversity of its culture is confronted by forces of economic rationalization and state regulation, forces it faces not only with its legacies of discrimination but also with pride in its unique traditions and powers of assimilation and innovation.

What visions of law and social change can we appreciate, imagine, and/or sustain, in the face of such constant change? The 2016 Law and Society Meeting will initiate our consideration of these themes of place and change through four plenary sessions that will focus on: (1) Jim Crow, New and Old -- race and the constitution of society; (2) Who Belongs, Who Doesn’t – law, citizenship and political economy in the 21st century; (3) Histories of Empire and Legal Pluralism – mixed legal systems around the globe; and (4) Natural and Unnatural Disasters – human crises and law’s response.

And here are the organizers of the Law & History CRN:

Joanna Grisinger
Assistant Professor of Instruction
Center for Legal Studies, Northwestern University
joanna.grisinger@northwestern.edu

Kimberly Welch
Assistant Professor 
Department of History, University of West Virginia
Kimberly.Welch@mail.wvu.edu

Logan Sawyer
Assistant Professor
University of Georgia Law School
lesawyer@uga.edu

Kathryn Schumaker
Assistant Professor
Department of Classics and Letters, University of Oklahoma
schumaker@ou.edu

On Louis Pollak

We missed the March 2014 issue of the Proceedings of the American Philosophical Society, with its oral history of and tributes to the law professor, law dean, and federal judge Louis H. Pollak (1922-2012).  The oral history is Lou Pollak: The Road to Brown v. Board of Education and Beyond, by Leanna Lee Whitman and Michael Hayes. Tributes are from Anthony J. Scirica, Stephen B. Burbank, Guido Calabresi, Stewart Dalzell, Michael A. Fitts, Alfred W. Putnam, Jr., and Catherine Struve.

CFP: Does Democracy Translate across Borders?

[We have the following call for papers.]

America has long promoted democracy as the optimal political system for all nations.  Is this right? Does democracy have the same effect in other parts of the world, is it a good fit for some but a catalyst for destruction in others?

The Spring 2016 edition of the Saint Louis University Public Law Review will be centered around the question, “Does democracy translate across borders?” The purpose of this edition will be to explore and examine democratic experiments – to see where and how democracy succeeds, and where and why it doesn’t. What factors boost or hinder democracy’s success? What impacts does it have on the people and institutions of a nation? We will be seeking articles concerning a wide range of topics relating to the idea of comparing democracies, from the “Arab Spring” movement to questioning the Western foreign policy of selling democracy to developing countries; from post-Colonial political movements in Africa to the effects of austerity measures within the European Union.

By stirring the debate about democracy, we hope to further our publication’s mission of providing a forum to discuss the “ethical dilemmas underlying social current issues.”  If interested in writing for the volume, please submit an abstract to the Spring Managing Editor, Claire Kates, at katesc@slu.edu, no later than August 10, 2015.

The JEV-Fellowship for European Administrative History

[We have the following announcement of a research fellowship in the field of European Administrative History.]

At the end of 2012 Prof. Dr. Erk Volkmar Heyen, Professor of Public Law and European Administrative History at the Ernst-Moritz-Arndt University of Greifswald until his retirement and the editor of the "Jahrbuch für europäische Verwaltungsgeschichte/Yearbook of European Administrative History" (JEV) published from 1989 to 2008, donated a research fellowship in the field of European Administrative History ("The JEV-Fellowship for European Administrative History"). The fellowship falls within the framework of the German University Foundation (Bonn, Germany).

The scholarship is intended to benefit the next generation of scientific researchers, particularly doctoral and post-doctoral students, and specifically for the final phase of their research project for a duration of no longer than 12 months. The scholarship is based on the usual rates for doctoral fellowships of the German Research Foundation (DFG). Should a fellowship be awarded for research abroad, the local conditions will be the determining factor. Marital status will not be deemed a consideration, and neither will travel- nor other costs be reimbursed.

The Board of the German University Foundation decides on and awards the fellowship based on a proposal by a jury. This jury is based at the Max Planck Institute for European Legal History (MPI) in Frankfurt, where the founder worked in the 1980s. Currently the permanent members of the jury are: the Managing Director of the Max Planck Institute, Prof. Dr. Thomas Duve, Prof. Dr. Stefan Brakensiek, Professor of Early Modern History at the Institute for History of the University of Duisburg-Essen, and Priv.-Doz. Dr. Peter Collin, Research Fellow at the Max Planck Institute. The German University Foundation provides for the payment of the fellowships and informs the recipients about the terms and conditions and the legal requirements to be complied with by the recipients in their personal capacities.

Early stage researchers from Germany and abroad are invited to apply. In accordance with the thematic and methodological spectrum covered by the JEV, the scholarship is open to all historical disciplines, provided the research project addresses an aspect of European administrative history from the period of the sixteenth to the twentieth century. The importance of the research topic should impact beyond the national level. Comparative research questions are particularly welcome.

First time applications for a scholarship commencing in January 2016 can be submitted until 30 September 2015; this deadline also applies to the succeeding years unless otherwise specified. Applications in English or German should be sent in electronic form to: Priv.-Doz. Dr. Peter Collin, collin@rg.mpg.de. The application, which must also include an indication of the duration for which the fellowship should run, is to be accompanied by the following documents: a curriculum vitae in tabular form with detailed information on the nature and the chronology of university studies together with the respective examination results achieved (copies of results to be enclosed) and, where applicable, a list of scientific publications written or hitherto contributed to; a detailed description of the research project including a detailed outline of the contents of the intended publication, a detailed report on the current development of the project and the status of publication, including the reasons for any (possible) delay in its completion; extensive excerpts from the current document; information on the current financing of the research project as well as on past or pending applications for funding of the project; a precise timetable for the completion of the writing of the publication. Furthermore care is to be taken that at least one expert opinion from a university lecturer on both the individual researcher and the research project as such be submitted directly to the jury. 

The MPI provides fellowship recipients with work opportunities in its library. Fellows are given the opportunity to present their research projects to the public at the Institute and to discuss the projects with the latter. With the expiration of the fellowship the recipient is to submit a report on the status of the publication/book. The MPI provides for the publication of the funded book in one of its publication series, provided the Institute's required quality standards are met. The book is to make reference to the support provided by the "JEV-Fellowship for European Administrative History" in the imprint or in the preface. 

Donations to financially support and, if possible, extend the level of support of the fellowship are most welcome. These can be paid into the following account of the German University Foundation: Bank für Sozialwirtschaft, account number: 1140200 (BLZ: 37020500; BIC: BFSWDE33XXX; IBAN: DE47370205000001140200), Password: "Spende Erk-Volkmar-Heyen-Stiftungsfonds". The German University Foundation will issue the required receipt confirming the donation, if the postal address is provided. Should a permanent increase of fund assets be preferred, the password to be used is "Zustiftung Erk-Volkmar-Heyen-Stiftungsfonds".

Two New Books on Black Incarceration

We recently noticed the publication of two new books on the history of the criminal punishment of African Americans.  Talitha L. LeFlouri, an assistant professor of history at Florida Atlantic University, has published Chained in Silence: Black Women and Convict Labor in the New South, with the University of North Carolina Press:

In 1868, the state of Georgia began to make its rapidly growing population of prisoners available for hire. The resulting convict leasing system ensnared not only men but also African American women, who were forced to labor in camps and factories to make profits for private investors. In this vivid work of history, Talitha L. LeFlouria draws from a rich array of primary sources to piece together the stories of these women, recounting what they endured in Georgia's prison system and what their labor accomplished. LeFlouria argues that African American women's presence within the convict lease and chain-gang systems of Georgia helped to modernize the South by creating a new and dynamic set of skills for black women. At the same time, female inmates struggled to resist physical and sexual exploitation and to preserve their human dignity within a hostile climate of terror. This revealing history redefines the social context of black women’s lives and labor in the New South and allows their stories to be told for the first time.

Dennis Childs, an associate professor of literature at the University of California, San Diego, has published Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary, with the University of Minnesota Press.

The Thirteenth Amendment to the United States Constitution, passed in 1865, has long been viewed as a definitive break with the nation’s past by abolishing slavery and ushering in an inexorable march toward black freedom. Slaves of the State presents a stunning counterhistory to this linear narrative of racial, social, and legal progress in America.

Dennis Childs argues that the incarceration of black people and other historically repressed groups in chain gangs, peon camps, prison plantations, and penitentiaries represents a ghostly perpetuation of chattel slavery. He exposes how the Thirteenth Amendment’s exception clause—allowing for enslavement as “punishment for a crime”—has inaugurated forms of racial capitalist misogynist incarceration that serve as haunting returns of conditions Africans endured in the barracoons and slave ship holds of the Middle Passage, on plantations, and in chattel slavery.

Childs seeks out the historically muted voices of those entombed within terrorizing spaces such as the chain gang rolling cage and the modern solitary confinement cell, engaging the writings of Toni Morrison and Chester Himes as well as a broad range of archival materials, including landmark court cases, prison songs, and testimonies, reaching back to the birth of modern slave plantations such as Louisiana’s “Angola” penitentiary.

Slaves of the State paves the way for a new understanding of chattel slavery as a continuing social reality of U.S. empire—one resting at the very foundation of today’s prison industrial complex that now holds more than 2.3 million people within the country’s jails, prisons, and immigrant detention centers.

TOC after the jump.

Prakash's "Imperial from the Beginning"

Saikrishna Bangalore Prakash, University of Virginia Law School of Law, has published Imperial from the Beginning: The Constitution of the Original Executive (New Haven: Yale University Press, 2015)

Eminent scholar Saikrishna Prakash offers the first truly comprehensive study of the original American presidency. Drawing from a vast range of sources both well known and obscure, this volume reconstructs the powers and duties of the nation’s chief executive at the Constitution’s founding. Among other subjects, Prakash examines the term and structure of the office of the president, as well as the president’s power as constitutional executor of the law, authority in foreign policy, role as commander in chief, level of control during emergencies, and relationship with the Congress, the courts, and the states. This ambitious and even-handed analysis counters numerous misconceptions about the presidency and fairly demonstrates that the office was seen as monarchical from its inception.

Readers say:

“A Herculean effort to gather together all the extant materials dealing with the formulation of Article II of the Constitution. . . . The amount of scholarship that went into this book is staggering. Its fairness and accuracy leap out of every page."—Richard Epstein, NYU Law School

“By far and away the best and most comprehensive account available of the Framers’ original understanding of the powers and duties of the presidency.”--Steven Calabresi, Northwestern Law School

Scribes Book Awards

Although we've noted John Bessler's receipt of the Scribes Book Award for 2015, given by the American Society for Law Writers, the full list of books receiving recognition, including Herbert Hovenkamp's Opening of American Law, deserves a post of its own.

First Place:
The Birth of American Law: An Italian Philosopher and the American Revolution
by John D. Bessler   

Honorable Mentions:
Burning Down the House: The End of Juvenile Prison
by Nell Bernstein

Just Mercy: A Story of Justice and Redemption
by Bryan Stevenson

The Opening of American Law: Neoclassical Legal Thought 1870-1970
by Herbert Hovenkamp

Sunday Book Roundup

Over at HNN there is a review of The Limits of Optimism: Thomas Jefferson's Dualistic Enlightenment by Maurizio Valsania (UVA Press).

"Valsania’s final chapter underscores Jefferson’s Darwinian moment—a “demythologizing of imagination.” Jefferson came to realize that humans—evidence comes with his letters to John Colvin (20 Sept. 1810) and John Holmes (22 Apr. 1820)—are “creatures of the present and are committed to the brutal fact of their animal survival. In a word, he admitted the brutality of expediency.” Thus, Jefferson tried to live consistently with philosophical ideals, but found the principle of self-survival to be axial, and found reason, right, law, and morality to be ancillary (149–51 and 157)."

From New Books in History is an interview with Suzanna Reiss in which she discusses We Sell Drugs: The Alchemy of US Empire (University of California Press).

Elizabeth Cobbs Hoffman's American Umpire (Harvard University Press) is reviewed on H-Net.

"In American Umpire, Elizabeth Cobbs Hoffman offers a survey-style analysis of the history of both the United States and the country’s foreign policies towards the outside world. Within the work, Cobbs Hoffman presents a revisionist approach to the narratives that were discussed by the cultural and transnational historians who emerged during the early 1990s. In an attempt to shift the conversation away from the discussion of US imperial history, Cobbs Hoffman counters the anti-exceptional narratives offered by Kaplan, Kramer, Foster, Go, as well as a multitude of other academics, by arguing that the American Empire only existed from 1898 to 1946 and that the United States was “the pivot” that led the shift away from empires towards the existence of modern nation-states (pp. 13, 3)."

History Today has a review of Whistle Stop: How 31,000 Miles of Train Travel, 352 Speeches, and a Little Midwest Gumption Saved the Presidency Saved the Presidency of Harry Truman by Philip White (ForeEdge).

Also up on H-Net is a review of Lynchings in Kansas, 1850s-1932 by Harriet C. Frazier (McFarland).

"In addition, Lynchings in Kansas tends to accept the viewpoint of the mob, assuming the guilt of the lynched person, unless otherwise noted (for an especially troubling example of this, see the discussion of the white-on-black lynching of Hugh Henry in Larned in 1892, pp. 120-121). Furthermore, with the exception of cursory references to the race of the victims, the book spends remarkably little time grappling with the racist implications of the state’s white-on-black lynchings. Indeed, it seems to affirm implicitly Yost’s highly questionable declaration that “the negroes form such a small percentage of the total lynched, a ratio of one negro to four and one-half whites, that the race problem cannot be considered an especially important factor in the state.”"

Eileen Boris reviews Lisa Baldez's Defying Convention: U.S. Resistance to the UN Treaty on Women's Rights (Cambridge University Press).

"This book is a hybrid: part careful history, part policy brief. Enthusiastic advocacy for the convention does not kept Baldez from weighing opposing political arguments and divergent scholarly interpretations in a balanced manner. Her eight chapters divide into three sections: the origins of CEDAW, the evolution of its monitoring committee, and the politics of US consideration. “CEDAW matters” (p. 152), she convincingly asserts, because it has served as a touchstone for foreign policy as well as for national debates over abortion, motherhood, violence against women, and equality between the sexes. Based on a wide array of sources—including government documents (such as printed congressional hearings and State Department memos), legal cases, oral interviews, UN proceedings, memoirs, and newspaper stories—Defying Convention provides the fullest account we have of the domestic and geopolitical forces that have shaped US engagement with CEDAW."

Weekend Roundup

• The National Humanities Center invites applications for residential fellowships. The deadline is October 15.

• Seth Barrett Tillman replies to critics of his paper on Ex parte Merryman here. 

• Here is a news report from Boise of a controversy over a WPA mural depicting the hanging of a Native American by white settlers.

• Saul Cornell (Fordham University) continues to offer strong critiques of "new originalism" and to attract equally strong responses. You can follow the back-and-forth via the links in his recent ACSblog post.

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

Beauchamp, "Invented by Law"

Recently released from Harvard University Press: Invented by Law: Alexander Graham Bell and the Patent That Changed America, by Christopher Beauchamp (Brooklyn Law School). A description from the Press:

Alexander Graham Bell’s invention of the telephone in 1876 stands as one of the great touchstones of American technological achievement. Bringing a new perspective to this history, Invented by Law examines the legal battles that raged over Bell’s telephone patent, likely the most consequential patent right ever granted. To a surprising extent, Christopher Beauchamp shows, the telephone was as much a creation of American law as of scientific innovation.

Beauchamp reconstructs the world of nineteenth-century patent law, replete with inventors, capitalists, and charlatans, where rival claimants and political maneuvering loomed large in the contests that erupted over new technologies. He challenges the popular myth of Bell as the telephone’s sole inventor, exposing that story’s origins in the arguments advanced by Bell’s lawyers. More than anyone else, it was the courts that anointed Bell father of the telephone, granting him a patent monopoly that decisively shaped the American telecommunications industry for a century to come. Beauchamp investigates the sources of Bell’s legal primacy in the United States, and looks across the Atlantic, to Britain, to consider how another legal system handled the same technology in very different ways.

Exploring complex questions of ownership and legal power raised by the invention of important new technologies, Invented by Law recovers a forgotten history with wide relevance for today’s patent crisis.

Two noteworthy blurbs:

“Invented by Law offers an utterly convincing reinterpretation of the legal struggles over the telephone patents and the making of the Bell telephone monopoly. Beauchamp locates lawyers as the leads in a historical drama that used to pay attention solely to inventors and those who claimed to be inventors. But his deeper contribution is to make the rise of the Bell empire both deeply contingent and deeply evocative of the transatlantic capitalist culture that came into being at the end of the nineteenth century. A brilliant work of economic-legal history, one shaped by meticulous and imaginative research and by an iconoclastic historical imagination.”—Hendrik Hartog

“Invented by Law shows how an epic late-nineteenth-century contest over intellectual property rights shaped the communications networks of twentieth-century America. Monopoly, Beauchamp concludes, was made and not born, an insight that raises troubling questions about the idealization of patent rights not only in the age of Alexander Graham Bell, but also in our own.”—Richard R. John

More information is available here.

Hat tip: Law & History Collaborative Research Network

Falk and Patrick on Jury Selection in Dennis

Barbara J Falk, Royal Military College of Canada, and Jeremy Patrick, University of Southern Queensland School of Law, have posted The “Red Menace” on Trial: Jury Discrimination in Dennis.

Eugene Dennis (credit)

In 1949, the leadership of the American Communist Party was put on trial for allegedly conspiring to teach the overthrow of the American government. The case, known as the Dennis trial, is a major part of American political and Cold War history. One of the rarely-discussed aspects of the case, however, is that the defendants argued that the jury was stacked against them: it would be composed almost exclusively of wealthy white men. The defendants' claim of jury discrimination was denied, but it can be seen as a vital step towards reforming New York's "Blue Ribbon Panel" system of jury selection, eventual Congressional legislation to end bias in jury selection, and the slow recognition by the Supreme Court that jury discrimination was more pervasive than previously thought. This Article is the first scholarly effort to explain the nature of the jury challenge in Dennis and situate the defendants' failure as part of a larger narrative of discrimination and injustice. Section II of this Article provides background on the case and establishes its importance as one of the most significant political trials of the twentieth century. Section III traces the evolution of Supreme Court jurisprudence on jury discrimination prior to the Dennis case. Section IV explains the peculiar "Blue Ribbon Panel" system of jury selection used in New York at the time for cases seen by the court system as especially serious or important. Section V dives into the heart of the Dennis defendants' claim that a skewed selection process would result in a jury that was almost wholly white, male, and upper-class. Last, Section VI discusses the aftermath of the Dennis trial and its importance both historically and legally.

Hasan's "Loren MIller"

Amina Hassan has published Loren Miller: Civil Rights Attorney and Journalist with the Oklahoma University Press.  Hassan, the holder of the Ph.D., is “an independent historian and award-winning public radio documentarian.”  Saith the press:

Loren Miller was one of the nation’s most prominent civil rights attorneys from the 1940s through the early 1960s, particularly in the fields of housing and education. With co-counsel Thurgood Marshall, he argued two landmark civil rights cases before the U.S. Supreme Court, whose decisions effectively abolished racially restrictive housing covenants. One of these cases, Shelley v. Kraemer (1948), is taught in nearly every American law school today. Loren Miller: Civil Rights Attorney and Journalist recovers this remarkable figure from the margins of history and for the first time fully reveals his life for what it was: an extraordinary American story and a critical chapter in the annals of racial justice.

Born the son of a former slave and a white midwesterner in 1903, Loren Miller lived the quintessential American success story, both by rising from rural poverty to a position of power and influence and by blazing his own path. Author Amina Hassan reveals Miller as a fearless critic of the powerful and an ardent debater whose acid wit was known to burn “holes in the toughest skin and eat right through double-talk, hypocrisy, and posturing.”

As a freshly minted member of the bar who preferred political activism and writing to the law, Miller set out for Los Angeles from Kansas in 1929. Hassan describes his early career as a fiery radical journalist, as well as his ownership of the California Eagle, one of the longest-running African American newspapers in the West. In his work with the California branch of the ACLU, Miller sought to halt the internment of West Coast Japanese citizens, helped integrate the U.S. military and the L.A. Fire Department, and defended Black Muslims arrested in a deadly street battle with the LAPD. Hassan charts Miller’s ceaseless commitment to improving the lives of Americans regardless of their race or ethnicity. In 1964, Governor Edmund G. Brown appointed Miller as a Municipal Court justice for Los Angeles County.

The story told here in full for the first time is of a true American original who defied societal limitations to reshape the racial and political landscape of twentieth-century America.

Kessler on Conscientious Objection in WW2

Jeremy K Kessler, Columbia University Law School, has posted A War for Liberty: On the Law of Conscientious Objection, forthcoming in The Cambridge History of World War II (Michael Geyer & Adam Tooze eds. 2015), 3:447-474.

One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked with regard to many areas of law. The traditional order of property rights, for instance, was already in disarray thanks to the shocks of monopoly capitalism, labour militancy, the First World War, and the profound crisis of the Great Depression. Yet few rights would more directly test a wartime government's conception of the rule of law than the right of conscientious objection. The refusal of alleged pacifists to participate in the often lawless violence of the Second World War posed fundamental practical and normative challenges for all combatants – but especially for those who understood themselves to be fighting for individual liberty.

Call for Papers: California Law Review Symposium on Obergefell v. Hodges

We have been closely covering historians' commentary on Obergefell v. Hodges, a decision that stands out for its multifaceted uses of history. Readers who have been following these posts may also be interested in the following call for submissions:

The California Law Review welcomes you to submit a brief essay on the Supreme Court’s decision in Obergefell v. Hodges.

We will publish select submissions in a fall series in the California Law Review’s online companion, Circuit. To be clear, we are interested in fielding a wide range of reflections and perspectives on this historic decision. While we welcome essays celebrating the decision, we also seek essays that take a more critical view of the decision and the marriage equality movement more generally. We welcome submissions from legal scholars and practitioners. Submissions are capped at 3,000 words and due by August 28, 2015. Please send your submission via email at clrcircuit@gmail.com.

Circuit promotes scholarly discussion and original thinking on current legal topics from practitioners, academia, and law students. Should you have general questions about Circuit, please contact Senior Online Editor Mona Fang. We look forward to reading your work.

Women as Printers, Donors, and Owners of Law Texts

Via H-Law, we have word of a new exhibit at the Yale Law Library, Evidence of Women: Women as Printers, Donors, and Owners of Law Texts.

Women printed, donated, and owned law books – from manuals to treatises to codes – long before women entered legal practice. From queens to unknown women, from the fifteenth to the nineteenth centuries, this exhibit provides a glimpse of women’s involvement with law books both inside and outside of official structures.

The exhibit, “Evidence of Women: Women as Printers, Donors, and Owners of Law Texts,” is curated by Anna Franz (Rare Book Fellow, Yale Law Library). It is on display through August 25, 2015, in the Rare Book Exhibition Gallery, located on Level L2 of the Lillian Goldman Law Library, Yale Law School (127 Wall Street, New Haven, CT).

This exhibit provides further evidence of women’s long involvement with the law even at times when they could not practice it. Since the exhibit represents only a small sampling from the vast corpus of law texts, it prompts reflection on the potential depth and breadth of women’s interactions with the law as producers, transmitters, and consumers, instead of as objects or eventually practitioners of law. It especially highlights women’s importance in the dissemination of law texts through their substantial and sustained role as printers and sellers of law books.

For more information, contact Anna Franz at (203) 432-5678, email anna.franz@yale.edu, or Mike Widener at (203) 432-4494, email mike.widener@yale.edu.

Program for the 22nd British Legal History Conference

With apologies for letting this one slip through the cracks, here's the program for the 22nd British Legal History Conference, going on now (July 8-11, 2015) at the University of Reading. The theme of the conference is Law: Challenges to Authority and the Recognition of Rights.

Hat tip: Michelle McKinley

Cott on Obergefell

The latest issue of Perspectives, the newsmagazine of the American Historical Association, includes a reflection piece by Nancy Cott (Harvard University) on the use of history in Obergefell v. Hodges. Here's the first paragraph:

History really matters in Obergefell v. Hodges [et al.], the US Supreme Court case that has brought equal marriage rights to same-sex couples in every state. Justice Anthony Kennedy, writing for the majority, needs the history of marriage to lay the groundwork for his reasoning. “Before addressing the principles and precedents that govern these cases,” the opinion begins, “it is appropriate to note the history of the subject now before the Court.” The opinion proceeds to make the crucial claims that marriage “has not stood in isolation from developments in law and society”; it has “evolved over time.” Why should such points be necessary? Because the dissent written by Justice John Roberts (and signed by the other three dissenters) embraces a very different view. Justice Roberts calls marriage an “unvarying social institution enduring over all of recorded history.” It is “a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” More than one version of the history of marriage is operating here, in other words.

Read on here. (Hat tip: AHA Members' Forum)

For our previous roundup of coverage on this topic, follow the link.

A Symposium on Moyn on Christian Human Rights

Over at The Immanent Frame is a symposium on Samuel Moyn’s Personalism, Community, and the Origins of Human Rights,  in Human Rights in the Twentieth Century, edited by Stefan-Ludwig Hoffmann (2010), 85-106, which heralds Moyn's forthcoming book Christian Human Rights.  Among the contributors is John Witte, Jr. (Roots and Routes of Rights).   H/t Lael Daniel Weinberger

Eyer on the Declaration as Bellwether

Katie R. Eyer, Rutgers School of Law-Camden, has posted The Declaration of Independence as Bellwether, which is forthcoming in the Southern California Law Review.

As scholars have long observed, the Declaration of Independence serves as one of the principal points of popular engagement with constitutional meaning. In particular, the Declaration’s introductory passages regarding liberty and equality provide a key entry-point for the general public in engaging with the purpose and meaning of those core constitutional values. As such, claims about the Declaration’s meaning — and appropriation of its terms — have long pervaded public debates over core areas of constitutional contestation.

This essay suggests that this unique role of the Declaration may render it an especially useful subject of study for understanding shifts in popular constitutional understandings. To the extent that popular invocations of the Declaration have shifted over time, this shift may signal broader changes in public understandings of how the constitution should be understood. Moreover, to the extent one credits popular constitutionalism as a descriptive theory (i.e., a theory of how, ultimately, Constitutional law evolves), such shifts may provide an important bellwether of the redirection of constitutional doctrine.

This essay explores this idea in the context of a historical examination of the shifting invocation of the Declaration of Independence in the context of affirmative action. As such a historical account demonstrates, invocations of the Declaration's equality principles in the context of affirmative action have shifted profoundly over time, from the early years when such invocations are found predominantly in the context of pro-affirmative action statements, to the present, in which such invocations are largely made in opposition. As this essay explores, this shift has accompanied broader shifts in the equality discourse of both proponents and opponents of affirmative action; shifts that have profoundly changed the dominant discourse of affirmative action’s relationship to equality. The essay concludes by discussing the troubling implications for proponents of a particular vision of equality or liberty of the disassociation of their project with popular understandings of equality and liberty as represented by the Declaration.

Balleisen's "Business Regulation"

Out next month from Edward Elgar Publishing but available for preorder now is the three-volume collection Business Regulation, edited by Edward J. Balleisen, Duke University.

This comprehensive collection conveys leading scholarly ideas on modern regulatory governance since 1871. The first two volumes lay out the rationales for and critiques of technocratic governance in industrialized societies. They trace the evolution of regulatory institutions, highlighting the most recent era of globalization, deregulation, privatization and regulatory innovation. The third volume presents influential frameworks for understanding regulatory culture in action, assessing the impacts of regulatory policies, and explaining regulatory change.

With an original introduction by the editor, this set is a definitive compendium for libraries, regulators, administrative lawyers, regulated businesses, NGOs and scholars of regulation from across the social sciences.

The TOC is here.  Here’s an endorsement:

Edward Balleisen's collection covers, for the first time, some of the
most outstanding scholarly works on business regulation. It offers
compelling testimony to the importance of historical perspective on
the issue of business regulation, and to the best of my knowledge
the most comprehensive and impressive scholarly effort of this sort
that is currently available anywhere.

– David Levi-Faur, The Hebrew University of Jerusalem, Israel

The collection is not priced for the likes of me or thee, but why not see if your library might acquire it?  (Disclosure: an essay of mine is included.)

Fox on Counterpublic Originalism

James W. Fox, Jr., Stetson University College of Law, has posted Counterpublic Originalism and the Exclusionary Critique, which is forthcoming in the Alabama Law Review  67 (2016).

This Article proposes a new form of originalism — Counterpublic Originalism — as a method to better incorporate excluded communities into the narratives of constitutional history. Looking at a broad range of originalists, from conservative (McGinnis & Rappaport, Calabresi & Rickerts) to progressive (Amar, Balkin), I find that each wrongly assumes some version of a single “public” at the time of ratification, a “public” comprised of the very elites who were benefiting from the exclusionary practices. Focusing on the Reconstruction period, I argue that there was no definitive “public” but instead a series of partial publics, some (white men) who were legally and socially privileged and dominant, and others (feminists, African-Americans) who operated as dissenting communities that developed their own normative discourse and challenged dominant views and interests. I then argue that these dissenting communities, or counterpublics, provide important sources of public discourse and activity that spoke to precisely the questions and ideas raised in constitutional amendments, and particularly in the Reconstruction Amendments. In the process I also challenge the Supreme Court’s and scholarly treatment of African-American materials on the meaning of the Second Amendment during Reconstruction.

Ht: Legal Theory Blog

A Festschrift for Richard H. Helmholz

I’m very pleased to note the publication of the festschrift Studies in Canon Law and Common Law in Honor of R. H. Helmholz, edited by Troy L. Harris (Berkeley: The Robbins Collection, 2015).  “Richard Helmholz is a scholar, mentor and gentleman,” writes the editor, Troy L Harris.  Although “perhaps best known as an historian of the Roman canon law in medieval and early modern England,” Professor Helmholz “has an enviable knack for addressing a variety of subjects–from the history of marriage law to the work of ecclesiastical courts to the prohibition against self-incrimination–with sophistication and rigor, while keeping a light touch and remaining accessible.”  And because his interests lie “at the intersection of multiple lines of inquiry, his contributions are recognized by historians whose paths might otherwise never cross: historians of Roman civil law, of English common law, of medieval and early modern European law, of medieval and early modern English society.”  The contents of festschrift attest to Professor Helmholz’s influence, Harris writes, but may not sufficiently reveal “the genuine affection and admiration” that the contributors “expressed toward our mutual friend.”

Richard Helmholz: Bibliography 1969-2015

Limitation of Actions: The Curious Case of Classical Roman Law
David Johnston

Episcopal Power and Royal Jurisdiction in Angevin England
Joshua C. Tate

The Common Lawyers of the Reign of Edward I and the Canon Law
Paul Brand

Ethical Standards for Advocates and Proctors of the Court of Ely (1374-1382) Revisited
Charles Donahue, Jr.

The Evolution of the Common Law
Thomas P. Gallanis

Clergy and the Abuse of Legal Procedure in Medieval England
Jonathan Rose

The Private Life of Archbishop Johannes Gerechini: Simulated Marriage and Clerical Concubinage in Early Fifteenth-Century Sweden
Mia Korpiola

The Presumption of Evil in Medieval Jurisprudence
Laurent Mayali

Pedro Guerrero’s Treatise on Clandestine Marriage
Philip Reynolds

Some Elizabethan Marriage Cases
Sir John Baker

The Arguments in Calvin’s Case (1608)
David Ibbetson

Hugo Groitus and the Natural Law of Marriage: A Case Study of Harmonizing Confessional Differences in Early Modern Europe
John Witte, Jr.

The Work of the Ecclesiastical Courts, 1725-1745
Troy L. Harris

Testamentary Proceedings in Spanish East Florida, 1783-1821
M. C. Mirow

The Durability of Maxims in Canon Law: From regulae iuris to Canonical Principles
Norman Doe and Simon Pulleyn

Canon Law: The Discipline of Teaching and the Teaching of the Discipline
Mark Hall

Agreed Payment for Non-Performance in European Contract Law
Reinhard Zimmermann

Hovenkamp on "Classical" American Patent Law

Herbert J. Hovenkamp, University of Iowa College of Law, on The Emergence of Classical American Patent Law.

An important historical debate has developed about whether the American Constitution was intended to be "classical" -- a term referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce development politics inevitably distorts the decision making. The result is excessive state involvement, with benefits typically going to well placed interest groups.

From the Colonial period until the mid-nineteenth century American legislatures and courts conceived of the patent as an active tool of economic development. States in particular granted patents in anticipation that the grantee would actually develop some work of public improvement. This conception of the patent was distinctly "pre-classical" in the sense that it envisioned considerable state involvement in ensuring that granted patents were put to appropriate use. In addition, state issued patents, but not federal patents, were issued to "promoters" -- that is, to those who did not really claim to have invented anything new, but rather promised to develop technology or infrastructure in a new place.

A few decades later a much more classical conception of the patent emerged, as a property right pure and simple. Questions about whether and how to employ a patent were lodged almost entirely with its owner, who at the high point of patent classicism even had the power to use patents to keep technology off the market -- precisely contrary to what the original framers of the provision had in mind.

An essential part of this development was the rise of federal patent exclusivity -- a result that was not mandated by the text of the Constitution's IP Clause, particularly when read against the Tenth Amendment. The sources of increased hostility toward state issued patents were twofold. First was the view that state issued patents burdened interstate commerce. For example, the Supreme Court struck down the state-issued steamboat patent under the Commerce Clause, not under the IP Clause. Second, however, only federal exclusivity could effectively limit the power of the states to grant unwarranted exclusive rights to favored grantees. The eventual result was a regime in which Congress acquired the exclusive power to award patents for inventions.

Changes in United States patent law under the 1836 Patent Act and later were driven by classical beliefs that monopoly is bad and generally unnecessary for economic development, with invention as a narrow exception. This entailed, first, that the conditions for obtaining a patent be narrow, limited to actual inventions within the applicant's possession, and adequately disclosed. Second, the system had to be made nondiscretionary and free from capture. Individual patent grants were no longer a matter of legislative prerogative. Rather, the applicant was entitled to a patent if he could make specific showings concerning prior technology and use. The "prior art" queries that increasingly dominated patentability doctrine focused on what had been available in the past, rather than what economic development might require for the future. Finally, once a patent was issued the government very largely abandoned its interest. The patent entered commerce as personal property, creating individual rights but few social obligations. Together these requirements led both Congress and the courts away from relatively open ended policy concerns, and toward technical specification and boundary clarity. The result was a patent system increasingly detached from questions about economic development.

Sunday Book Roundup

There's plenty of Fourth of July and Founding Fathers themed book reviews and even a review of our blog's founder's most recent book. Here's a quick list of book reviews for weekend reading.

• Mary Dudziak's War Time: An Idea, Its History, Its Consequences (Oxford University Press) is reviewed on H-Net. 
• In The New York Times, there is a review of By the People: Rebuilding Liberty Without Permission by Charles Murray (Crown Forum) and Wages of Rebellion by Chris Hedges (Nation). 
• Also in NYT is a review of Something Must Be Done About Prince Edward County: A Family, a Virginia Town, a Civil Rights Battle by Kristen Green (Harper).
• A third NYT review examines David K. Shipler's Freedom of Speech: Mighter Than the Sword (Knopf).
• Joseph J. Ellis's The Quartet: Orchestrating the Second American Revolution (Knopf) is reviewed in the NYT here. 
• From New Books in History is an interview with Jonathan Eig about
  
  his book, The Birth of the Pill: How Four Crusaders Reinvented Sex and Launched a Revolution (Norton).
• An Eye for an Eye: A Global History of Crime and Punishment by Mitchel P. Roth (Reaktion) is reviewed by History Today.
• The July issue of The Federal Lawyer is posted online. This month's reviews include one of A History of The Twentieth Century in 100 Maps by Tim Bryars and Tom Harper (University of Chicago Press). All reviews can be found here. 
• Books & Ideas reviews Ira Katznelson's Fear Itself: The New Deal and the Origins of Our Time (Norton).
• Several excerpts are featured in Salon this week, including one from One Righteous Man: Samuel Battle and the Shattering of the Color Line in New York (Beacon) by Arthur Browne. 
  
• There's another excerpt from Inventing a Christian America: The Myth of the Religious Founding (Oxford University Press) by Steven K. Green.
• H-Net has a review of African Americans in U.S. Foreign Policy: From the Era of Frederick Douglass to the Age of Obama edited by Linda Heywood, Allison Blakely, Charles Stith, and Joshua C. Yesnowitz (University of Illinois Press).
• Meredith Mason Brown's Touching America's History: From the Pequot War through World War II (Indiana University Press) is reviewed on H-Net. 
• And, Brett Rushforth's Bonds of Alliance: Indigenous and Atlantic Slaveries in New France (UNC Press) is also reviewed on H-Net. 

Weekend Roundup

• On November 5-6, 2015, the School of Law at Queen Mary University of London, along with the London Centre for Social Studies, will host a conference on Fighting Femicide: Cultural and Legal Interventions. The conference organizers welcome participation by legal historians.

• From the Canadian Legal History blog: Congratulations to the winners of the Osgoode Society's annual prizes. The Peter Oliver Prize (for best published writing by a student) was awarded to Edward Cavanagh (University of Ottawa, Ph.D. candidate) and Tyler Wentzell (a recent graduate of the University of Toronto Law School). The R. Roy McMurtry Fellowship in Canadian Legal History went to Elizabeth Koester to support her studies at the University of Toronto. The Society awarded the John T. Saywell Prize in Constitutional Legal History to Hakeem O. Yusuf (University of Strathclyde Glasgow) for Colonial and Post-Colonial Constitutionalism in the Commonwealth: Peace, Order and Good Government.

•  If you use Twitter for the purpose of scholarly engagement, you might enjoy this post from The Junto on "Twittiquette." 

• The ABA's Silver Gavel winners have been announced.  

• Lindsay G. Robertson, the author of Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford University Press), has just been named the University of Oklahoma’s first Chickasaw Nation Native American Law Chair.

• Congratulations to John Bessler, University of Baltimore School of Law, whose The Birth of American Law: An Italian Philosopher and the American Revolution has just won the American Society of Legal Writers’ Scribes Book Award.  It has also been named the Gold Winner in the history category of the INDIEFAB Book Awards competition and First Prize winner in the eighteenth- and nineteenth-century category of the American Association for Italian Studies Book Award competition.

• American, British, English and other legal history courses in American law schools: a view from the demimonde of for-profit, student-generated law outlines.  

• The July 2015 newsletter of the DC Circuit Historical Society is here.   Among other things, it includes information on tributes and eulogies for Judge Thomas Penfield Jackson and Judge Louis Oberdorfer.

• From HistPhil: Maribel Morey (Clemson University) interviews Larry Kramer, constitutional historian and now President of the Hewlett Foundation.

• We've continued to update our post on historians and the Obergefell decision, here.

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

Lesaffer on Europe's Classical Law of Nations

Randall Lesaffer, Tilburg Law School, has posted The Nature and Sources of Europe's Classical Law of Nations:

The jurisprudence of the law of nature and nations of the Early-Modern Age holds pride of place in the modern historiography of international law. Whereas the classical writers of that age undeniably exercised a significant influence on 19th-century international law, their utility as a historical source for the study of the law of nations from their own period has been far overrated. The development of the law of nations between 1500 and 1800 was much more informed by State practice than historians have commonly credited.

Moreover, historiography overestimates the novelty of the contribution of early-modern jurisprudence and has almost negated its major historic source of inspiration: the late-medieval jurisprudence of canon and Roman law. It is important to restore medieval jurisprudence to its rightful place in the grand narrative of the evolution of international law in Europe. Doing this renders a deeper insight into the dynamics of the jurisprudence of the Early-Modern Age. It shows that natural law acted as a vessel to recycle many of the doctrines of medieval jurisprudence into the language of the early-modern law of nations. But it also shows how it was an altogether feeble attempt at replacing the restrictive authority of scholastic jurisprudence with that of natural justice. As long as the fear of God gave teeth to the precepts of natural justice, it retained some real impact. But one this was lost and 19th-century international lawyers cut the historic bonds between natural law and religion, they pushed it to the wayside and ostracised it altogether from their world.

June Issue of the Journal of American History: Historians and the Carceral State

The June 2015 issue of the Journal of American History is a special issue on Historians and the Carceral State, produced in consultation with guest editors Kelly Lytle Hernández, Khalil Gibran Muhammad, and Heather Ann Thompson. From the Journal:

The United States is covered by an extensive, overlapping, and expanding policing apparatus. This has produced the world's largest prison population: every day more than 2 million people--mostly black, brown, or poor--are barred somewhere within the nation's vast archipelago of prisons, jails, and immigrant detention centers. Unsurprisingly, mass incarceration has had cascading implications for urban and suburban spaces, family lives, national borders, and the shape of the U.S. economy and American democracy. This special issue of the Journal of American History examines how the carceral state emerged in the early republic, was consolidated in the nineteenth century, and underwent phenomenal expansion during the twentieth century. The contributors to this special issue take an expansive approach to the historical drivers of the carceral state and consider topics including the role of incarcerated black women, the rise of undocumented Latinos in the prison system, the role of white suburban drug use and the crack epidemic in the racialized war on drugs, and how prison building drove the political economy of the sun belt.

Articles

"Introduction: Constructing the Carceral State," by Kelly Lytle Hernández, Khalil Gibran Muhammad, and Heather Ann Thompson

"African American Women, Mass Incarceration, and the Politics of Protection," by Kali Nicole Gross

"Less Crime, More Punishment: Violence, Race, and Criminal Justice in Early Twentieth-Century America," by Jeffrey S. Adler

"Youth of Color and California's Carceral State: The Fred C. Nelles Youth Correctional Facility," by Miroslava Chávez-Garcí­a

"Queer Law and Order: Sex, Criminality, and Policing in the Late Twentieth-Century United States," by Timothy Stewart-Winter

"We Are Not Slaves: Rethinking the Rise of Carceral States through the Lens of the Prisoners' Rights Movement," by Robert T. Chase

"Guns and Butter: The Welfare State, the Carceral State, and the Politics of Exclusion in the Postwar United States," by Julilly Kohler-Hausmann

"'A War within Our Own Boundaries': Lyndon Johnson's Great Society and the Rise of the Carceral State," by Elizabeth Hinton

"Flocatex and the Fiscal Limits of Mass Incarceration: Toward a New Political Economy of the Postwar Carceral State," by Alex Lichtenstein

"Impossible Criminals: The Suburban Imperatives of America's War on Drugs," by Matthew D. Lassiter

"Deportability and the Carceral State," by Torrie Hester

"Objects of Police History," by Micol Seigel

"Crack in Los Angeles: Crisis, Militarization, and Black Response to the Late Twentieth-Century War on Drugs," by Donna Murch

"The Unintended Consequences of the Carceral State: Chicana/o Political Mobilization in Post-World War II America," by Edward J. Escobar

Full content (gated) is available here.

Brady on Personal Property and the Fourth Amendment

Maureen E. Brady, a Ph.D. candidate in Law at the Yale Law School, has posted
The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection, which is forthcoming in the Yale Law Journal.   

Along with “persons, houses, and papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” Historically, “effects” have received less attention than the rest of the categories in the Fourth Amendment. However, in the last three years, Supreme Court opinions on Fourth Amendment searches have reintroduced the word “effects” in opinions without a definition of the word, an understanding of its history, or a clear approach to "effects" under the Fourth Amendment.

In the absence of a coherent approach to searches of “effects,” many lower courts apply the standard Fourth Amendment test for a search to personal property: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location. These courts hold that individuals lack expectations of privacy in personal property that is unattended in public space (say, a jacket left on a restaurant’s coat rack). The privacy standard was intended to broaden the scope of the Amendment’s protection beyond real property formulas, but lower courts have used real property concepts of privacy to narrow protection for personal property. This is both historically and theoretically unsound.

This Article argues that personal property in public space should be given greater constitutional protection by providing a history and theory of “effects.” A historical account of personal property from the Founding onward demonstrates a constitutional commitment to protecting personal property because of the privacy and security interests inherent in ownership and possession. If Fourth Amendment jurisprudence were instead informed by this constitutional commitment to personal property, courts would determine Fourth Amendment interests in an effect in public space by reference to its nature and context — factors personal property law already uses to ascertain the interests of a person in a thing. Using guidance from personal property law, this Article proposes a framework for identifying protected effects based on their qualities and environment and restoring them to the constitutional significance they deserve.

Tocqueville Review Symposium on "Beyond Stateless Democracy"

The latest issue of The Tocqueville Review/La revue Tocqueville includes a symposium that is likely to interest our readers:

Beyond stateless democracy

Preface: The Reconfiguration Of Political History
Thomas J. Sugrue

Beyond Stateless Democracy
William J. Novak, Stephen W. Sawyer, James T. Sparrow

Beyond Max Weber: The need for a democratic (not aristocratic) theory of the modern state
William J. Novak

Morgenthau’s dilemma: Rethinking the democratic leviathan in the atomic age
James T. Sparrow

Foucault and the state
Stephen W. Sawyer

Full content (gated) is available here, at Project Muse.

TerBeek's Obituary for Originalism

Calvin J. TerBeek, a Tulane JD and doctoral candidate in the Political Science Department at the University of Chicago, has posted Originalism's Obituary, which is to appear in the Utah Law Review (2015):

This short essay argues that originalism is in a Kuhnian (The Structure of Scientific Revolutions) crisis due to the theory's epistemic closure, ideological nature, and immodesty. After detailing the evidence for each of the three issues, the paper contends that originalism will eventually, and perhaps soon, be relegated to the dustbin along with other discarded normative theories of constitutional interpretation.

 H/t: Legal Theory Blog

Dayton on "The Oddest Man that I Ever Saw"

Cornelia H. Dayton, University of Connecticut Department of History, has published a fascinating article, “The Oddest Man that I Ever Saw”: Assessing Cognitive Disability on Eighteenth-Century Cape Cod, in the Journal of Social History.  It’s gated but otherwise available online.

In the eighteenth century, prior to the establishment of asylums and the rise of psychiatry in the United States, laypeople bore the onus of assessing whether community members had mental or cognitive disabilities that necessitated special treatment. This article analyzes a rare legal dossier that allows us to overhear laymen assessing and reacting to disability in an era when the words normal and abnormal were not used. Joseph Gorham lived all seventy-three years of his life in Barnstable, Massachusetts, protected by his father's wealth and social status. Neighbors puzzled over Gorham's unusual mix of capacities and incapacities. Some thought he was "Disordered in his Intelectuals," but others noted that he answered questions cogently, could read, and displayed a type of savantism. For the last three decades of his life, Gorham was under guardianship. He was not allowed to bargain, had no occupation, and did not marry. Not surprisingly, the will he signed fifteen years before his death in 1762 was challenged as invalid. Witnesses who had known him for forty or more years described Gorham as singular, uncommon, different "from all mankind." The essay explores what the puzzle of Joseph Gorham meant in his lifetime and it asks what we gain by noting the resonances between Gorham's situation and the ways we currently understand and debate autism. Applying the prism of autism as one of several interpretive approaches brings into sharper relief certain elements we might miss, notably Gorham's aloneness and his observers' silence on his emotional and affective deficits.

Historians and the Obergefell Decision - updated

Both the majority opinion and the dissents in Obergefell v. Hodges, the recent Supreme Court same-sex marriage case, are notable for their references to history. Research by legal historians Hendrik Hartog (Princeton University), Nancy Cott (Harvard University), and Stephanie Coontz (Evergreen State College), among others, made it into the decision. Historians have also weighed in on the decision's significance. Here's a roundup of coverage from around the web.

*UPDATED*

• From History News Network: "In gay marriage decision, Supreme Court turns to historians for insight." The article focuses on the amicus brief filed by "historians for marriage" and the American Historical Association. 

• From Process, the blog of the Organization of American Historians: Dirk Hartog tells us how it feels to be cited by the Supreme Court ("Cool. Very Cool.") and offers "four suggestions about why the brief mattered and, more importantly, how it succeeded."

• The Atlantic published commentary by David M. Perry (Dominican University), titled "A New Right Grounded in the Long History of Marriage."

• From the New York Times: Timothy Stewart-Winter (Rutgers University, Newark) on "The Price of Gay Marriage."

• Over at Balkinization, Jack Balkin (Yale Law School) has posted on the Justices' competing uses of the concept of tradition. 

• From Inside Higher Ed: Johann Neem (Western Washington University) uses Obergefell as an example of "The Social Impact of Humanities 'Inventions.'"

• My personal favorite: Corey Robin (Brooklyn College/CUNY Graduate Center) digs into Justice Thomas's biography to shed light on the dignity references in his dissent. (Hat tip: Ariela Gross)

• Over at HistPhil, Maribel Morey (Clemson University) uses Obergefell to reflect on "the Role of Philanthropy in a Democracy."

• Andy Seal, writing for the U.S. Intellectual History Blog, has a post on "What the Obergefell Decision Could Have Been." (Hat tip: Kate Redburn) 

• Also on the U.S. Intellectual History Blog: Claire Potter (New School for Public Engagement) places "Gay Marriage, in (Out)Historical Context." (Hat tip: Sara Mayeaux)

• Writing for the web magazine Nomocracy in Politics, Bruce Frohnen (Ohio Northern University) responds to critiques of another historically grounded amicus brief--filed by originalist scholars in support of "traditional marriage." (Hat tip: Robert Waters)

• From historian Lara Freidenfelds, writing over at Nursing Clio: "Obergefell Made History, and History Made Obergefell."

• The history of sexuality blog Notches has posted "The Obergefell Syllabus: Historicizing Same-Sex Marriage in the United States."

Are there more articles we should note? Leave your comments and we'll continue updating the post.

Symposium on Hartog's "Someday All This Will Be Yours"

Law & Social Inquiry 40:2 (Summer 2015), available online shortly, includes a symposium on Hendrik Hartog's Someday All This Will Be Yours: A History of Inheritance and Old Age, with contributions from Naomi Cahn, Mary Anne Case, Nina A. Kohn, Dorothy E. Roberts, and Hendrik Hartog.

"Law As" III

Eleven essays from the third “Law As...” symposium, organized by Christopher Tomlins and held at UC Irvine Law in April 2014, are out in the most recent issue of the U.C. Irvine Law Review, Volume 5, No. 2 (June 2015).  They are available here.

Samito on "Constitution and Law" during the Civil War

Christian G. Samito, a lecturer in law at the Boston University School of Law, has posted Constitution and Law, an entry in A Companion to the U.S. Civil War (John Wiley & Sons, Inc., 2014).

This essay examines various aspects of legal development during the Civil War, which went beyond affirming the perpetuity of the Union and resolving the fate of slavery to involve an expansion of the borders and mechanics of state coercion during a time of crisis, a more robust role for the federal government in promoting economic development, and the formulation of a better defined understanding of national citizenship. Many of these events were unforeseen as of April 1861 and all of them were shaped by wartime circumstances, highlighting how legal development is influenced by politics, society, and other factors in ways that are not predetermined. An overarching theme emerges in Civil War legal development, even when specific components seem unrelated: the strengthening of the U.S. as a nation-state (meaning here something beyond maintenance of the territorial integrity of the U.S., critical though that was). The Civil War removed the one issue in U.S. history – slavery – so politically divisive it could rend the Union. Structural initiatives, such as railroad construction and banks, helped link markets and improve communications nationwide, while the end of slavery placed the entire reunified U.S. within the free labor ideology. While federalism remained important during the 1860s and remains so to this day, the federal government that emerged from the Civil War could play a greater role in shaping economic development (shifting the pendulum from the paradigm of the Jeffersonians and Jacksonian Democrats to the model of the Hamiltonians and Whigs) and safeguarding rights newly associated with national citizenship (in contrast to citizenship in the antebellum period, when states had much broader prerogatives to determine rights for people within their borders).

Saavedra on the Human Rights Network and the Chilean Coup

Manuel Bastias Saavedra, Universidad Austral de Chile, has posted The Unintended Legacy of September 11, 1973: Transnational Activism and the Human Rights Movement in Latin America, which appeared in Iberoamericana 13 (2013): 87-103:

The following article focuses on the impact of the September 11, 1973 coup in Chile on the formation of a transnational human rights network in Latin America. The article discusses the exemplary character of the human rights operations in Chile for other Latin American countries, but focuses on the formation of a transnational infrastructure that stimulated and accompanied the organization of human rights organizations across Latin America. The work of the Latin American churches and their international partners were at the center of the growth of the Latin American human rights movement that began in the 1970s.

Nice Try, Abe!

President Lyndon Johnson, December 11, 1963 (LC)

The other day I had some time on my hands at the National Archives and, as is my wont, started browsing some of its on-line databases.  That's when I finally realized that, thanks to the Miller Center on Public Affairs, I could listen in as erstwhile New Deal lawyers gave President Lyndon Baines Johnson a call.  Here, for example, for example, is Tom Corcoran telling LBJ how much better a recent speech was than anything JFK ever delivered.  But two conversations, from December 11 and 13, 1963, were not only fun but also pedagogically useful.

The last six weeks of my survey course on American Legal History treat the emergence of the New Deal political regime and its "consolidation" in the late 1940s and 1950s.  The last class–entitled, in an homage to a classic article by Richard L. McCormick,“The Discovery that Business Corrupts Administration”–is devoted to how the high hopes for New Deal agencies had in the 1950s run to ground in delay, corruption and incompetence, terrain recently surveyed by Joanna L. Grisinger in The Unwieldy American State.

After reviewing the symptoms and various diagnoses of administrative malaise in the 1950s and early 1960s, I have the class consider various remedies.  Although after the rise of the Consumer Movement the judiciary would become a powerful instrument of reform, they overwhelmingly deferred to the commissions.  I tell the students about Bernard Schwartz's tragicomic experience as Chief Counsel of House Legislative Oversight subcommittee, including his firing after he started investigating his congressional masters, to suggest the limits of the reform impulse within Congress circa the late 1950s.  What about the executive?  At first, JFK's appointments, such as Manuel Cohen, Philip Elman, Newton Minow, and Joseph Swidler, and his commissioning of James Landis to report on the regulatory commissions suggested that rule by the Best Men might be back.  His successor, however, viewed regulatory commissions less as Landis's Fourth Branch of Government than as a political resource to be bent to his will.

Oren Harris (credit)

Abe Fortas (LC)

To illustrate this last point, I recount how LBJ gave Elman "the Johnson Treatment" in a receiving line after Elman publicly criticized FTC Chairman Paul Rand Dixon for not aggressively regulating, thereby outraging Dixon's congressional sponsors.  (Elman tells the story in his oral history, in which he also runs down his fellow commissioners, in a passage I ssign my students.)  But I now realize I should have my students listen to this phone call.  As readers of Laura Kalman's biography of Abe Fortas know, Johnson respected and needed Fortas too much to be dismissive when the Washington lawyer urged the president to create something like the ABA's Standing Committee on the Federal Judiciary to review nominees to the federal regulatory commissions.  He even tried out the proposal on Congressman Oren Harris (D-Ark.), who approved.  But, in his conversation with Harris, LBJ seemed intrigued not because a review committee would remove politics from the appointment process but because a ranking of "qualified" might "clean . . . up" nominees chosen for political reasons.  (h/t LK.)