Thursday, September 26, 2013

Tinker Talks!

Arabella Mansfield (credit)
River to River, a program of Iowa Public Radio devoted to the state’s “news, issues and events,” recently devoted a broadcast to Iowa Legal History.  The broadcast included an interview with Mary Beth Tinker, who, as a thirteen-year-old in 1965, “arrived at her Des Moines junior high wearing a black armband to protest the Vietnam War.”  The host, Ben Kieffer, discusses other “legal milestones,” including Arabella Mansfield (right), “the first female lawyer in the U.S.,” and In re the Matter of Ralph, “the very first case decided by the Iowa Supreme Court concerning a former slave who was captured by bounty hunters.”  Listen here.

July 2013 Issue of Journal of Supreme Court History

A new issue of the Journal of Supreme Court History is out. Here's the table of contents:
Melvin I. Urofsky 
Slouching Towards Roth: Obscenity and the Supreme Court, 1945-1957
Whitney Strub

Tom Clark under Fire:  The Consequences of Congressional Investigations of Supreme Court Justices
Craig Alan Smith

Tom Clark’s Transition from Attorney General to Supreme Court Justice
Alexander Wohl

October Term 1963: “The Second American Constitutional Convention”
L.A. Powe, Jr.

Inventing Democratic Courts: A New and Iconic Supreme Court
Judith Resnik and Dennis Curtis

Addenda to “Fair Labor:  The Remarkable Life and Legal Career of Bessie Margolin”:  A Discussion of Methodology on Tallying Margolin’s Supreme Court Argument Record as Well as Those of Other Pioneer Female Advocates Mabel W. Willebrandt, Helen R. Carloss and Beatrice Rosenberg
Marlene Trestman

The Judicial Bookshelf
Donald Grier Stephenson Jr.
Hat tip: H-Law

Wednesday, September 25, 2013

Knapp on "James Wilson and the Birth of American Jurisprudence"

Via the Legal Theory Blog, we have word of an article of interest: "Law's Revolutionary: James Wilson and the Birth of American Jurisprudence," by Aaron T. Knapp (Boston University). It is scheduled to appear in Volume 29 of the Journal of Law and Politics (Fall 2013). Here's the abstract:
This intellectual history of oft-forgotten founder James Wilson contends that as an outgrowth of his peculiar anti-Publian constitutionalism, Wilson’s post-ratification jurisprudence endeavored conceptually to reconcile American Law with the American Revolution in ways that even his ablest commentators have failed to appreciate but which boast a significance in the history of American legal thought that should command the attention of legal and constitutional historians alike. Spanning the period from 1774 to 1798, the Article’s historical analysis of Wilson’s ideas over time complicates prevailing literature on popular sovereignty’s origins and influence in post-Revolutionary America, revises influential scholarship interpreting pre-Marshallian Federalist jurisprudence in the 1790s, and sheds new light on the role of civic virtue in early American constitutional culture.
The full article is available here, at SSRN.

Freyer and Morris on the Making of Cayman

Tony A. Freyer and Andrew P. Morriss, University of Alabama School of Law, have posted Creating Cayman as an Offshore Financial Center: Structure & Strategy Since 1960, whih is forthcoming in the Arizona State Law Journal.  Here is the abstract:    
The Cayman Islands are one of the world’s leading offshore financial centers (OFCs). Their development from a barter economy in 1960 to a leading OFC for the location of hedge funds, captive insurance companies, yacht registrations, special purpose vehicles, and international banking today was the result of a collaborative policy making process that involved local leaders, expatriate professionals, and British officials. Over several decades, Cayman created a political system that enabled it to successfully compete in world financial markets for transactions, participate in major international efforts to control financial crimes, and avoid the political, economic, racial, and social problems that plague many of its Caribbean neighbors. Using archival sources, participant interviews, and a wide range of other materials, this Article describes how the collaborative policy making process developed over time and discusses the implications of Cayman’s success for financial reform efforts today.

Thank You, Sally Gordon! And Welcome, . . . Ms. Peppercorn?

We at LHB are so grateful to Sarah Barringer Gordon for joining us as a guest blogger these past weeks. She has responded to common queries about legal historical publishing, opened up a conversation about the entry-level hiring market, reminded us of the joys of reading outside of our subject areas, and much more!

Readers have responded so enthusiastically to her posts that we have invited her to stay on as a sort of advice columnist in residence -- someone to respond to questions about everything from applying to graduate school to publishing a third or fourth book.

She is doing this for nothing -- a peppercorn consideration, as they say in contract law -- and offers her advice with the proverbial grain of salt. With a nod to advice columnists past ("Dear Abby," "Dorothy Dix"), we will title these occasional posts "Ms. Peppercorn Considers."

If you have a question that you'd like to see addressed on the blog, send a message to the blog email address.

Dennis on "Blacks Informing during Slavery"

Andrea Dennis, University of Georgia Law School, has posted A Snitch in Time: An Historical Sketch of Black Informing During Slavery, which is forthcoming in the Marquette Law Review,  97 (2014).  Here is the abstract:    
This article sketches the socio-legal creation, use, and regulation of informants in the Black community during slavery and the Black community’s response at that time. Despite potentially creating benefits such as crime control and sentence reduction, some Blacks today are convinced that cooperation with government investigations and prosecutions should be avoided. One factor contributing to this perspective is America’s reliance on Black informants to police and socially control Blacks during slavery, the Civil Rights Movement, and the Wars on Drugs, Crime and Gangs. Notwithstanding this historical justification for non-cooperation, only a few informant law and policy scholars have examined closely the Black community’s relationship with informing. Furthermore, even among this small group of works, noticeably absent are historical explorations of Black America’s experience with informing during slavery. Drawn using a variety of primary and secondary historical and legal sources, this article develops a snapshot of the past revealing many similarities between the Black experience with informing both while enslaved and in contemporary times. Consideration of these resemblances during present debate on the topic may help to facilitate nuanced conversation as to whether and how the modern Black community and government should approach using informants in current times.

Tuesday, September 24, 2013

Custom Now: A Symposium

I've recently learned of an interesting symposium on custom published in volume 48 of the Texas International Law Journal, which is  available on line:

 Introduction, by Emily Kadens

In the Name of Custom, Culture, and the Constitution: Korean Customary Law in Flux, by Marie Seong-Hak Kim

Legal Autonomy Versus Regulatory Law: Customary Law in Eastern Scandinavia, by Kjell Å. Modéer

Western Scandinavia: Exit “Bürgerliches Gesetzbuch” — The Resurrection of Customary Laws, by Peter Ørebech

False Jurisdictions? A Revisionist Take on Customary (Religious) Law in Germany, by Pascale Fournier & Pascal McDougall

The Law and Economics of Norms, by Juliet P. Kostritsky

Custom in American Property Law: A Vanishing Act, by Henry E. Smith

The Jurisprudence of Custom, by Frederick Schauer

An excerpt from the introduction by Emily Kadens, Northwestern Law, after the jump.

Read more »

Indiana University Seeks Human Rights Scholar

Via H-Law, we have the following job posting:
The Department of International Studies in the School of Global and International Studies, College of Arts and Sciences, Indiana University, invites applications for a senior position in human rights, to begin August 2014. Qualified full and advanced associate professors are encouraged to apply, particularly those working in the areas of philosophy, history, political theory, cultural anthropology, cultural studies, or critical and/or public interest approaches to law (Ph.D. required). Candidates should have an outstanding research record with commensurate undergraduate and graduate teaching and mentorship, along with a commitment to studying global imperatives, structures, and formations alongside regional, linguistic, historical, political, and cultural particularities.
For more information, follow the link.

McSweeney on Civil and Common Law in Medieval England

Thomas J. McSweeney, William & Mary Law School, has posted two articles.  The first is Property Before Property: Romanizing the English Law of Land, which appeared in the Buffalo Law Review 60 (2012):
We tend to treat the idea of property as if it is a neutral way to speak about the relationship between people and things. In comparative legal studies, it is easier to compare two different cultures’ approaches to people and things when we assume that both can usefully be spoken of in terms of property. But property has a history. Terms like proprietas and possessio, which give the modern common law a vocabulary for speaking about that relationship, arose in the context of the classical Roman law and were worked into a systematic language of property by medieval Roman law scholars. The early common law, however, did not use the language of property to describe the relationship between people and things.
Image Credit: BC Law Library
In this paper, I will examine the period when English justices first attempted to turn English norms and practices concerning landholding into a law of property. Between 1187 and 1258, several justices tried their hands at writing treatises in which they translated English court practices into a systematic property law on the Roman model. The justices of the twelfth and thirteenth centuries, particularly the justices who wrote the treatise known as Bracton, were heavily invested in the idea that English law was part of the Romano-canonical ius commune. They realized, however, that the practices of the English courts and the landholding norms of the Anglo-Norman landed elite could not be made to fit neatly into a Roman law mold. The authors of Bracton embarked upon what we might consider an early exercise in comparative law scholarship. They created several complicated and contradictory schemes to try to express English landholding in Roman law terms, but ultimately failed in their attempts to create a coherent English law of property. Their failure is useful to us, however, in that it shows us very clearly that the language of property is not natural or essential and in that it helps us to understand a way of talking and thinking about landholding that is alien to us today. We can use the ways the Bracton authors creatively misunderstood the Roman law of property to help us to understand the cultures of landholding they came from: those of the English courts and the Anglo-Norman landed elite of the twelfth and thirteenth centuries.
The second is English Judges and Roman Jurists: The Civilian Learning Behind England's First Case Law, which appeared in Temple Law Review 84 (2012):
This Article looks at a historical problem — the first use of case law by English royal justices in the thirteenth century — and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, the justices and clerks of the royal courts began to treat cases as if they were the opinions of great jurists, to apply the same types of dialectical reasoning that were used in civil law discourse to those cases, and to work them into systems of authority. They used cases, as the modern common law does; but they used cases to create systems of the kind we usually associate with civil law. In the second Part of the Article, I turn to the modern common law and, using the methods of medieval case law as a mirror, show that the differences between civil law and common law reasoning are more perceived than real. American lawyers tend to view common law as flexible and creative, whereas they view civil law as ossified and hierarchical. This largely stems from the fact that common lawyers focus on the judicial opinion as the place where legal reasoning takes place. By integrating other texts, like the student outline and the restatement — which seek to create a harmonious system out of judicial opinions — into the picture of common law reasoning, I show that common law reasoning shares quite a bit in common with civil law reasoning.

Monday, September 23, 2013

Alexander on the Passing of the Obscenity Defense in Copyright

Here's an article we missed earlier this year: "Evil Angel Eulogy: Reflections on the Passing of the Obscenity Defense in Copyright," by James R. Alexander (University of Pittsburgh at Johnstown). The article appeared in Volume 20 of the Journal of Intellectual Property Law (2013). Here's the abstract:
This article traces the historical development of the Clean Hands Doctrine (CHD), and its ancillary accepted affirmative (obscenity) defense in copyright infringement, and its residual application to pornographic works. As an equitable doctrine, the CHD was an entirely reasonable judicial response to the earliest statutory provision of copyright protection in the early 18th century in England as applied to different forms of literary property and in particular those suspected of having seditious, blasphemous and immoral tendencies. With no statutory guidance regarding substantive (or content) restrictions on extending copyright protection to literary property and generally reticent to rule on a completely discretionary basis, the Chancery court relied on established equitable maxims or principles as ratio for individual rulings, in the process developing an ersatz structure of procedural precedent. In the process, it sequestered content as a procedural issue deferred to law prior to any equitable consideration, leaving unresolved the more substantive issue of whether all works of literary property were eligible for copyright protection, or differentially when and in what forms could literary works be accorded protection.

The CHD, and more specifically the obscenity defense, was adopted wholesale and with little consideration into American jurisprudence in the 19th century, on occasion nuanced by historical debate over the meaning and intent of the Copyright Clause. Subsequent American statutory delineations for copyright protection, after a few nascent efforts to restrict eligibility to only those works that were original and informative, retreated to a marked absence of discussion of content, throwing judicial consideration of copyright protection almost entirely onto procedural issues, such as registration. By the latter part of the century, courts began to sporadically differentiate between the substantive and procedural elements of the CHD, the former spawning a transforming debate over doctrinal acceptance of the 1868 Hicklin test of obscene tendency and the latter focusing more narrowly the discretionary authority to the Register of Copyrights to reject works of certain content. I argue that this differentiation, and the subsequent obfuscation of obscenity standards resulting from a range of cases leading to and built upon Roth v. U.S. (1957), inevitably led to the appellate ruling in Mitchell Brothers v. Cinema Adult Theater (1979), now generally considered accepted doctrine, that the CHD does not support a substantive exclusion of selected content from copyright protection.
The full article is available here, at SSRN.

A Retrospective on the Church Committee

As the first session of a three-part discussion series, Surveillance and Foreign Intelligence Gathering in the United States: Past, Present, and Future, tomorrow Georgetown Law’s Center on National Security and the Law will be hosting a retrospective on the Church Committee.  Senator Patrick Leahy (D-Vermont), Chairman, Senate Judiciary Committee, will deliver the keynote.  Panelists are Former Vice President Walter Mondale, Church Committee Member; Former U.S. Senator Gary Hart, Church Committee Member; Former U.S. Ambassador William Miller, Church Committee Staff Director; and Dr. Loch Johnson, Former Special Assistant to Senator Frank Church.  My colleague Laura K. Donohue, Professor of Law and Director of the Center on National Security and the Law, Georgetown University Law Center, will moderate.

The organizers explain:
This is a crucially important time for the United States—a number of foreign intelligence gathering programs using new technologies have recently been unveiled, and the public, the media, and scholars are just beginning to address their implications. Part one of this three-part discussion series will focus on the 1975-76 Church Committee (formally known as the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities), which exposed government surveillance abuses and played a key role in the creation of the Foreign Intelligence Surveillance Act. Following the keynote address by Senator Leahy, an esteemed panel of former Church Committee members and top staff will discuss this turning point in American history.
The keynote and panel will take place on Tuesday, September 24, 2013, from 9:45 a.m. to 12:00 p.m., in the Hart Auditorium, McDonough Hall, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, D.C. 20001.


Hartog's Mitchell Lecture

Hendrik Hartog’s James McCormick Mitchell Lecture at the University at Buffalo Law School in 2012, entitled, Two Stories about Two Currencies of Care, is available on-line from the Buffalo Law Review.  It is based on his book, Someday All This Will Be Yours: A History of Inheritance and Old Age (2012).

Sunday, September 22, 2013

New Release: "Between Court and Confessional: The Politics of Spanish Inquisitors"

New from Cambridge University Press: Between Court and Confessional: The Politics of Spanish Inquisitors, by Kimberly Lynn. A description from the Press:
Between Court and Confessional explores the lives of Spanish inquisitors, closely examining the careers and writings of five sixteenth- and seventeenth-century inquisitors. Kimberly Lynn considers what shaped particular inquisitors, what kinds of official experience each accumulated, and to what ends each directed his acquired knowledge and experience. The case studies examine the complex interplay of careerism and ideological commitments evident in inquisitorial activities. Whereas many studies of the Spanish Inquisition tend to depict inquisitors as faceless and interchangeable, Lynn probes the lives of individual inquisitors to show how inquisitors' operations in their social, political, religious, and intellectual worlds set the Inquisition in motion. By focusing on specific individuals, this study explains how the theory and regulations of the Inquisition were rooted in local conditions, particular disputes, and individual experiences.
A few blurbs:
"The Inquisitor is a figure engulfed in myth, yet about whom very little is actually known. Kimberly Lynn sets the record straight in this thoroughly researched and well-written book. Showcasing individual portraits of five inquisitors from different parts of the early modern Hispanic empire, she offers a lively and convincing composite biography of a unique - and uniquely complex - figure poised between medieval theocracy and modern bureaucracy." -- James S. Amelang, Universidad Autónoma, Madrid

"This outstanding piece of scholarship demonstrates how little the Spanish inquisitors fit the conventional view of them as insular men in single-minded pursuit of heresy. In a series of exacting and illuminating portraits, Kimberly Lynn reveals them in the full range of their activities, engaged in turf battles, jostling for position at court, moving from post to post, suffering career setbacks and disappointments, and seeking patronage and bestowing patronage - that is, negotiating the complex power structures of early modern Spain like other members of the power elite." -- Miriam Bodian, the University of Texas at Austin 

Saturday, September 21, 2013

Sunday Book Roundup

Jotwell has posted a review of Eliga H. Gould's Among the Powers of the Earth: The American Revolution and the Making of a New World Empire (Harvard Univ. Press). In it Christina Duffy Ponsa writes "the book makes you feel like you’re looking at history through a 360-degree lens. A legal, diplomatic, and intellectual history spanning from the mid-18th century to the declaration of the Monroe Doctrine in 1823, the book situates the Revolution in the context of the evolving law of nations in a strikingly rich and detailed account. Everything, it seems, is in there."

The September issue of The Federal Lawyer is out and has reviewed several books of note: The Law of Armed Conflict: An Operational Approach (Wolters Kluwer Law & Business) by Geoffrey Corn, Victor Hansen, Chris Jenks, Richard Hackson, Eric Talbot Jenson, and Hames Schoettler Jr; Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers (NYU Press) by Jill Norgren; Out of Order: Stores from the History of the Supreme Court (Random House) by Sandra Day O'Connor; as well as David O. Stewart's The Lincoln Deception (Kensington). Of the last book, reviewer JoAnn Baca provides an intriguing introduction:
"Lawyer and award-winning author David O. Stewart has written three nonfiction books—on Aaron Burr, Andrew Johnson’s impeachment, and the men who drafted the Constitution. But what happens when a historian comes across a story that cannot be proven by any fact he can uncover, yet it sparks his imagination? For Stewart, the answer is to leave his comfort zone and write a novel, allowing him to theorize and extrapolate, far from established facts, about a part of our history that fascinates many as much today as it did in 1865: the assassination of Abraham Lincoln. The Lincoln Deception is the result of Stewart’s need to explore to his own satisfaction a vague suggestion of duplicity as yet undiscovered in the assassination of the President."
H-Net has added many reviews of interest to this week's roundup readers including several books that extend beyond the American context, such as David Lemmings's Crime, Courtrooms, and the Public Sphere in Britain, 1700-1850 (Ashgate) here; and a review of two books including Adam Roberts and Timothy Garton Ash's Civil Resistance and Power Politics: The Experience of Non-violent Action from Gandhi to the Present (Oxford University Press) and Sean Scalmer's Gandhi in the West: The Mahatma and the Rise of Radical Protest (Cambridge University Press). Elizabeth F. Thompson's Justice Interrupted: The Struggle for Constitutional Government in the Middle East (Harvard University Press) is also reviewed. Seth Offenbach writes of Thompson's work:
"In the nearly three years since the Arab uprisings began, the expertise of Middle East historians has been in demand like almost never before, as observers attempt to understand the historical roots underlying the seemingly sudden popular challenges to long-standing authoritarian regimes. The result has been a surge in publications that are broad in their scope and appeal but limited in the depth of their analysis and historical insight. A strong exception to this trend is the recent work of historian Elizabeth F. Thompson, whose study on the rise of constitutionalism in the Middle East swiftly dispenses with the facile explanations of the Arab uprisings, instead offering readers a comprehensive yet nuanced look at the lasting impact of efforts to enshrine and institutionalize the language of justice across the region during the last two centuries. While the study is bookended by a discussion of the implications that these developments hold for the contemporary calls for universal rights, its substantive chapters provide a perceptive and deeply contextualized look at the common thread underlying a struggle that dates back to the premodern era."
For the Washington Post Johnathan Yardley reviews Ebony and Ivy: Race, Slavery, and the Troubled History of America’s Universities by Craig Steven Wilder. Also in the Post is a review of Gerald R. Ford: An Honorable Life (University of Michigan) by James Cannon.

The Guardian reviews Churchill's Bomb: How the United States Overtook Britain in the First Nuclear Arms Race (Faber & Faber) by Graham Farmelo.

Maya Jasanoff reviews River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Harvard University Press) by Walter Johnson in the New York Review of Books. She finds:
"The artistry of River of Dark Dreams lies in the close-up—in Johnson’s mesmerizing attention to the “material” in historical-geographical materialism. In the pointillist style so dexterously displayed in his reconstruction of the New Orleans slave market, Soul by Soul, Johnson zooms in on the “nested set of abstractions” that made the Cotton Kingdom run: money, markets, maps, labor. “If you looked more closely,” he observes, “you would see that each abstraction stood at odds with the physical properties of the object it sought to represent.”River of Dark Dreams delivers spectacularly on the long-standing mission to write “history from the bottom up”: from the soil tangy and pungent with manure, and the Petit Gulf cotton plants rooted into it, and the calloused fingers plucking its blooming, sharp-edged bolls. This is a history of how wilderness became plantations that became states, nations, and empires—of how an overseer’s lashes sliced into a slave’s back turned “into labor into bales into dollars” into visions of America’s future in the world."
This week readers can also listen to the New Books in History Podcast for a discussion with Tevi Troy, author of What Jefferson Read, Ike Watched, and Obama Tweeted: 200 Years of Popular Culture in the White House (Regnery History).

On HNN, reviewer Bernard von Bothmer finds that American Umpire (Harvard University Press) by Elizabeth Cobbs Hoffman "offers a sweeping, wide-ranging, and remarkably in-depth overview of the history of American foreign relations." HNN also reviews Thurston Clarke's JFK's Last Hundred Days (Penguin).

Salon has published an excerpt from Front Porch Politics: The Forgotten Heyday of American Activism in the 1970s and 1980s (Hill and Wang) by Michael Stewart Foley.

Friday, September 20, 2013

Weekend Roundup

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

Novick on Holmes and the New Originalists

Sheldon Novick, Vermont Law School, has posted a new preface, entitled Honorable Justice at Twenty-Five, to his biography Honorable Justice: The Life of Oliver Wendell Holmes (1989).  Here is the abstract:
There have been three print editions since 1989 of Honorable Justice: The Life of Oliver Wendell Holmes by Sheldon Novick: the first hardcover edition from Little Brown, a trade paperback edition from Dell Publishing, and a collectible leather-bound edition from Legal Classics Library. The text of successive print editions was unchanged. A new ebook edition from Plunkett Lake Press has been revised and corrected, redesigned for digital readers, and a new preface has been added bringing the book up to date. This article includes the text of the preface.

In summary: Interest in Justice Holmes continues, especially with regard to his First Amendment jurisprudence. He has also become a major figure in debates over originalism. As portrayed in this biography, Holmes was a champion of the common law, particularly as common-law privileges were the basis of the Bill of Rights. He viewed the Supreme Court as a common-law court bound by its precedents, and engaged in the process of defining the principles "transplanted from foreign soil" found in those precedents The New Originalists argue that the original understanding of the text of the Constitution is authoritative in cases arising under the Constitution, and that fidelity to the original understanding trumps any precedents that depart from it. Holmes, the champion of an evolving common law, accordingly has become the target of originalist criticism, criticism that the author of this preface claims he stoutly withstands.

Thursday, September 19, 2013

New Release: Enayat, "Law, State, and Society in Modern Iran"

Palgrave Macmillan has released Law, State, and Society in Modern Iran: Constitutionalism, Autocracy, and Legal Reform, 1906-1941, by Hadi Enayat. The publisher describes the book as follows:
Incorporating history, sociology, and rule of law studies, this book sheds light on an understudied but fascinating dimension of modernization in Iran, namely the emergence of a new legal system between the 1906 Constitutional Revolution and the end of Reza Shah's rule in 1941. While Iranian constitutionalism can be seen as part of a global trend of constitutional revolutions at the turn of the twentieth century, in Iran, an unusual institutional and historical background shaped a path to legal reform that was in many ways unique. Among other factors, the scholastic legalism of the Shi'i ulama and the considerable autonomy they enjoyed in administering the civil law in the nineteenth century made legal reform a particularly contested, difficult, and politically charged aspect of state building.
A few blurbs:
"Law, State, and Society in Modern Iran offers a perceptive examination of the impact of legal reforms on the process of state building and modernization in the first half of twentieth century in Iran. Its use of a wide range of primary source material will be particularly welcomed by historians of the period, and its broad analytical approach should make it indispensable for comparative studies of legal reforms in the wider context of the Middle East and current debates on constitutional development." -- Ali Gheissari
"Legal transformations of codes, institutions, and procedures constituted a crucial motor in the formation of political modernity and the modern state in Iran. This book contains lucid and original accounts and analyses of the events and processes in these transformations, rich in the details of political struggles and ideological contests, not only between the entrenched clerical hierarchy and the modernizing constitutionalists but also within and across both camps. This is key to understanding the subsequent fractured evolution of Iranian state, society, and revolution." -- Sami Zubaida

Cushman on "Court-Packing and Compromise"

Senate Judiciary Committee Considers the Court-Packing Bill (Credit: LC)
Barry Cushman, Notre Dame Law School, has posted Court-Packing and Compromise, which appears in Constitutional Commentary 26 (2013).  Here is the abstract:
President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than six additional appointments in order to secure a liberal working majority on the Court. Those sources also help to clarify why the substitute Court bill introduced by Senate Majority Leader Joseph Robinson in July of 1937 took the form that it did, and why Robinson’s untimely death that month not only made passage of the bill impossible, but also made it unnecessary. Though Roosevelt’s refusal to compromise can be seen as more rational than is commonly thought, in retrospect one can see that his Court-packing proposal was an entirely unnecessary misadventure through which the President ultimately lost far more than he gained.
I can't resist the temptation to chime in with something I've just read in the archives.  On November 4, 1936, Charles E. Wyzanski, Jr., wrote his mother from the Solicitor General's office: “I do not like the size of the Roosevelt vote.  With a man of the President’s temperament such an endorsement may prove an irresistible temptation."  DRE.

New Release: "Constitutionalism in the Approach and Aftermath of the Civil War"

New from Fordham University Press: Constitutionalism in the Approach and Aftermath of the Civil War, edited by Paul D. Moreno (Hillsdale College) and Johnathan O'Neill (Georgia Southern University). The Press describes the book as follows:
The irreducibly constitutional nature of the Civil War’s prelude and legacy is the focus of this absorbing collection of nine essays by a diversity of political theorists and historians. The contributors examine key constitutional developments leading up to the war, the crucial role of Abraham Lincoln’s statesmanship, and how the constitutional aspects of the war and Reconstruction endured in the late nineteenth and early twentieth centuries. This thoughtful, informative volume covers a wide range of topics: from George Washington’s conception of the Union and his fears for its future to Martin Van Buren’s state-centered, anti-secessionist federalism; from Lincoln’s approach to citizenship for African Americans to Woodrow Wilson’s attempt to appropriate Lincoln for the goals of Progressivism. Each essay zeroes in on the constitutional causes or consequences of the war and emphasizes how constitutional principles shape political activity. Accordingly, important figures, disputes, and judicial decisions are placed within the broader context of the constitutional system to explain how ideas and institutions, independently and in dialogue with the courts, have oriented political action and shaped events over time.
More information is available here.

Wednesday, September 18, 2013

New Release: Flaherty, "Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth-Century Japan"

The Harvard University Asia Center has released Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth-Century Japan (2013), by Darryl E. Flaherty (University of Delaware). A description from the publisher:
Long ignored by historians and repudiated in their time, practitioners of private law opened the way toward Japan’s legal modernity. From the seventeenth to the turn of the twentieth century, lawyers and their predecessors changed society in ways that first samurai and then the state could not. During the Edo period (1600–1868), they worked from the shadows to bend the shogun’s law to suit the market needs of merchants and the justice concerns of peasants. Over the course of the nineteenth century, legal practitioners changed law from a tool for rule into a new epistemology and laid the foundation for parliamentary politics during the Meiji era (1868–1912).

This social and political history argues that legal modernity sprouted from indigenous roots and helped delineate a budding nation’s public and private spheres. Tracing the transition of law regimes from Edo to Meiji, Darryl E. Flaherty shows how the legal profession emerged as a force for change in modern Japan and highlights its lasting contributions in founding private universities, political parties, and a national association of lawyers that contributed to legal reform during the twentieth century.

Friedman's Introduction to "Law and the Modern Condition"

Lawrence Friedman, New England Law, has posted the Introduction to Law and the Modern Condition: Literary and Historical Perspectives, ed. Lawrence Friedman (Talbot Publishers, 2013).  Here is the abstract:
Using fiction as a lens through which to view particular developments in the law, each of the essays in the new book, Law and the Modern Condition: Literary and Historical Perspectives (Talbot Publishing, 2013), discusses a work of literary fiction — some classical (the tale of Ruth in the Bible, the fiction of Franz Kafka and Herman Melville, the plays of William Shakespeare) some modern (the post-September 11 fiction of William Gibson, Ken Kalfus, Claire Messud, Ian McEwan and Helen Schulman) — that concerns, directly or indirectly, the historical development of the law. This exploration of legal history through fiction pays particular attention to its relevance to our present circumstances and our growing concerns about terrorism and civil liberties. Each essay considers the legal lessons about the fictional event or events at its core, lessons that tell us something worth remembering as we continue to chart law’s evolution. These lessons, like those that may be found in all great literature, necessarily extend beyond the historical confines of the characters and plot and background of each story to embrace the modern condition — which, as these great stories suggest, is and always has been the only condition.

New Release: Poser, "Lord Mansfield: Justice in the Age of Reason"

New from McGill-Queen's University Press: Norman S. Poser, Lord Mansfield: Justice in the Age of Reason (2013). Poser is professor emeritus at Brooklyn Law School. A description from the publisher:
In the first modern biography of Lord Mansfield (1705-1793), Norman Poser details the turbulent political life of eighteenth-century Britain's most powerful judge, serving as chief justice for an unprecedented thirty-two years. His legal decisions launched England on the path to abolishing slavery and the slave trade, modernized commercial law in ways that helped establish Britain as the world's leading industrial and trading nation, and his vigorous opposition to the American colonists stoked Revolutionary fires. Although his father and brother were Jacobite rebels loyal to the deposed King James II, Mansfield was able to rise through English society to become a member of its ruling aristocracy and a confidential advisor to two kings. Poser sets Mansfield's rulings in historical context while delving into Mansfield's circle, which included poets (Alexander Pope described him as "his country's pride"), artists, actors, clergymen, noblemen and women, and politicians. Still celebrated for his application of common sense and moral values to the formal and complicated English common law system, Mansfield brought a practical and humanistic approach to the law. His decisions continue to influence the legal systems of Canada, Britain, and the United States to an extent unmatched by any judge of the past. An illuminating account of one of the greatest legal minds, Lord Mansfield presents a vibrant look at Britain's Age of Reason through one of its central figures.
A few blurbs:
"I read this book with much pleasure and instruction. It admirably fills a major gap in the body of legal historical literature - the absence of a comprehensive biography of arguably the most famous and influential Anglo-American judge of the modern era." -- Simon Devereaux

"A remarkable portrait of both a man and a legal age. I enjoyed the book tremendously, learned so much, and am deeply grateful. A master work." -- Kent Syverud

Rabb to Harvard Law School

Harvard Law School has announced that legal historian Intisar Rabb will join the faculty in 2014. From the HLS press release:
Intisar A. Rabb (credit)
Intisar A. Rabb, a leading expert on Islamic Law and legal history, will join the faculty of Harvard Law School beginning Spring 2014, with an appointment as a tenured Professor of Law.
Rabb is currently associate professor of Middle Eastern and Islamic Studies and Law at New York University School of Law, where she holds a joint appointment at the NYU Middle Eastern and Islamic Studies Department and the NYU School of Law. At HLS, she will be a faculty director of the Islamic Legal Studies Program.
Read on here.

Congratulations to Intisar Rabb and to Harvard Law School!

Tuesday, September 17, 2013

Policy History Plenaries Announced

The Institute for Political History and the Journal of Policy History are drumming up interest in next June’s Conference on Policy History by circulating news of three plenary sessions:

Wednesday June 4:  “Party Balance, Partisan Polarization, and Policy Conflict,” with Michael Holt, Daniel Walker Howe, Richard John, Gareth Davies, Sidney Milkis, Byron Shafer
Thursday June 5: “Can Social Activism Change Public Policy? If so, How? If not, Why Not?” with Mark Brilliant, Rhonda Williams, Nancy MacLean, Matthew Garcia
Friday, June 6: “New Perspectives on the Presidency and Party Politics,” with Jeffrey Pasley, Mark Summers, Irwin Gellman, Bruce Miroff, Daniel DiSalvo

The conference–the eighth biennial– will take place at the Sheraton Capitol Square Hotel in downtown Columbus, Ohio from June 4-7, 2014.  The organizers report:
We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s) are strongly encouraged. Individual paper proposals are welcome. Because the conference has grown in size, individual papers might have a more difficult time being placed on the program. In order to accommodate more participants, conference organizers have created a poster session which will allow younger scholars to display their research projects.  Participants may only appear once as a presenter in the program. 
 Proposals for posters, panels and papers must be submitted online here.  Deadline for submission is December 2, 2013.

An Author's Query

Mark J. Osiel, University of Iowa College of Law, asks:
I wonder whether anyone might be able to suggest examples of situations, in various countries, where the law is considerably more indulgent toward a given practice than prevailing views within society at large, because law-makers assume that conventional morality will dissuade people from “abusing” their legal rights, exercising them in what most people consider “irresponsible” ways.  For instance, U.S. law tolerates a great deal more in hate speech than any other Western society; but then we’ve never suffered the Third Reich.
Please respond directly to Professor Osiel.