Sunday, February 18, 2018

Sunday Book Review Roundup


Tera Hunter's Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century is reviewed at Common-Place.

At Public Books is a review of We Will Win the Day: The Civil Rights Movement, the Black Athlete, and the Quest for Equality by Louis Moore.

Marjorie Spruill's Divided We Stand: The Battle Over Women's Rights and Family Values That Polarized American Politics is reviewed in The Washington Independent Review of Books.

In The Washington Post is a review of Black Fortunes: The Story of the First Six African Americans Who Escaped Slavery and Became Millionaires by Shomari Wills.

As always there are several interviews of interest at the New Books Network.  Sasha Turner discusses her Contested Bodies: Pregnancy, Childrearing, and Slavery in JamaicaMahon Murphy speaks about his Colonial Captivity during the First World War: Internment and the Fall of the German Empire, 1914-1919Howard I. Kushner is interviewed about his On the Other Hand: Left Hand, Right Brain, Mental Disorder, and HistoryChristopher Grobe introduces his The Art of Confession: The Performance of Self from Robert Lowell to Reality TVChristopher Haber speaks about his I Remain Yours: Common Lives in Civil War LettersFinally, Richard Brown discusses his Self-Evident Truths: Contesting Equal Rights from the Revolution to the Civil War.

In The Nation, Gabriel Winant reviews Lane Windham's Knocking on Labor’s Door: Union Organizing in the 1970s and the Roots of a New Economic Divide.  Also in The Nation is a review of The Impossible Presidency: The Rise and Fall of America's Highest Office by Jeremi Suri.

Richard Rothstein's The Color of Law: A Forgotten History of How Our Government Segregated America ireviewed in The New York Review of Books

Roxanne Dunbar-Ortiz's Loaded: A Disarming History of the Second Amendment is reviewed in the Los Angeles Review of Books.  Also at the site is a review of 1984: India's Guilty Secret by Pav Singh.  FinallyThe Gifted Generation: When Government Was Good by David Goldfield is also reviewed at LARB.

Saturday, February 17, 2018

Weekend Roundup

  • The Franklin D. Roosevelt Presidential Library and Museum will present an African American History Month conversation and book signing with David Lucander, the author of Winning the War for Democracy: The March on Washington Movement, 1941-1946 on Wednesday, February 28, 2018. The program will begin at 7:00 p.m. in Henry A. Wallace Center at the FDR Presidential Library and Home"  More
  • We were looking for something else when we stumbled upon Harvard Law Record podcasts with HLS legal historians Tomiko Brown-Nagin (All Rise! Episode 5) and Michael Klarman (All Rise! Episode 6).
    (Credit: #dc1968)
  • Detroit's engagement with the 50th anniversary of the 1967 rebellion has been fascinating to observe.  Here's the latest, from The Intelligencer, on DC's engagement with 1968, fifty years on: "In honor of the 50th anniversary of the events of 1968, DC Public Library has compiled a Library Resource Guide to help you navigate the many collections and events the Library has to offer in commemoration of that momentous year. The guide includes Evolutions and Legacies: Martin Luther King, Jr. and D.C., 1957-1972, an online exhibit curated by Special Collections Archivist Derek Gray and #dc1968 project curator, Dr. Marya A. McQuirter."
  • UPDATE: From Muster, the blog of the Journal of the Civil War Era, Martha S. Jones (Johns Hopkins) on "Legal History's Debt to Frederick Douglass." "[A]cross his lifetime, Douglass never forget how [Justice] Taney had used the high court to demean African Americans. From the podium and the pen, Douglass made a record that has endured and thus ensured Dred Scott will be long remembered as the lowest point in the history of race and law."
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 16, 2018

Thompson Reviews MacLean's "Democracy in Chains"

Fred Thompson, Willamette University, has posted  Public Choice and the Origins of the Radical Right: A Review of Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America.
Democracy in Chains is a heck of a read, but it is, at its core, fundamentally flawed. Its core is a confrontation with James Buchanan and the origins of public choice theory, which argues that public choice is a backlash to both the New Deal and the civil rights movement. The flaw reflects MacLean’s misapprehension of the content of public choice theory and its implications, a misunderstanding of what Buchanan actually believed (or, at least, claimed to believe), and, therefore, an unwarranted leap from Buchanan’s role in creating public choice theory to all things nasty about right-wing politics.

Saavedra on the Property on the Chilean Frontier, 1790-1830

Manuel Bastias Saavedra, University of Bremen, has posted The Lived Space: Possession, Ownership, and Land Sales on the Chilean Frontier (1790-1830), which appears (and may be cited) in Historia Crítica 67
By looking into sales of indigenous land in the territory of Valdivia between 1790 and 1830, this article discusses how legal interactions were tied to the local spaces of rural habitation. Since ownership was linked with possession and use in Spanish colonial law, local social relations and shared local knowledge were crucial for determining legal ownership and ensuring the validity of land transfers. This article provides insights into how law operated in newly integrated colonial spaces, and reveals that land transfers did not yet constitute purely contractual relations but were instead socially negotiated transactions involving different levels of authority and dependency.

Schmidt on Enforcing the 14th Amendment

Christopher W. Schmidt, Chicago-Kent College of Law, has posted Section 5's Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment Before Katzenbach v. Morgan, which is forthcoming in volume 113 of the Northwestern University Law Review:
William J. Brennan (LC)
Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan (1966). Justice Brennan’s opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation” the rights enumerated in that amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in Boerne v. Flores (1997) the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today Morgan stands largely as an aberration of American constitutional law.

This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history of Section 5 during a period when most have assumed it had no presence, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future.

Pritchard and Thompson on the 2d Circuit and Securities Law in the 60s

Adam C. Pritchard, University of Michigan Law School, and Robert B. Thompson, Georgetown University Law Center, have posted Securities Law in the Sixties: The Supreme Court, the Second Circuit, and the Triumph of Purpose Over Text:
Henry J. Friendly (credit)
This articles analyzes the Supreme Court’s leading securities cases from 1962 to 1972—Capital Gains, J.I. Case v. Borak, Mills v. Electric Auto-Lite Co., Bankers Life, and Affiliated Ute—relying not just on the published opinions, but also the justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather than a mere agent. The interpretive space opened by the Court’s invocation of purpose allowed a dramatic expansion in the law of securities fraud. Encouraged by the high court’s dynamic statutory interpretation doctrine, the Second Circuit—the “Mother Court” for securities law—developed new causes of action that transformed both public and private enforcement of the securities laws. The insider trading prohibition found a new home in the flexible confines of Rule 10b-5. Implied private rights of action encouraged class actions to flourish. The growth of fiduciary duty in the 1960s created a blueprint for “federal corporation law.” The Supreme Court’s “counter-revolutionary” turn in the 1970s cut back on purposivism and the doctrinal innovations of the Sixties, but the approaches to insider trading and private rights of action survived, remaining pillars of securities regulation today.

Thursday, February 15, 2018

Moyn on Legal History as a Source of International Law

This is gated, but it ended up in our inbox and is interesting, so we’re posting it anyway:  Samuel Moyn, Legal History as a Source of International Law: The Politics of Knowledge, in the Oxford Handbook of the Sources of International Law, edited Samantha Besson and Jean d’Aspremont:
This chapter maintains that no serious theory of the sources of international law can avoid what professional historians now take for granted: namely, that historical knowledge is necessarily political. It begins by laying out this argument, before assessing its implications for mainstream accounts of the sources of international law. The chapter goes on to explore a recent legal conflict in which history figured in order to test and improve the claim that history is political. It looks at the recent contention in US courts interpreting the Alien Tort Statute (1789) about whether a norm of corporate liability for atrocity crimes is part of customary international law. Finally, the chapter concludes that this fascinating instance of the uses of history in the ascertainment of the requirements of international law fits well the theory that historical knowledge is ineradicably political, though contained by professionalism.
Here are the parts of the piece:
I. Introduction
II. History of International Law as Contemporary Politics
III. Historians versus Lawyers: A Brief Contrast
IV. The Setting: The Alien Tort Statute in US Courts
V. Analysing the Historical Debate
VI. Conclusion: How the Past Matters in International Law
Research Questions
Selected Bibliography
Notes

2018 LSI Annual Graduate Student Paper Competition

[We are moving this post up, because the deadline is two weeks away.]

[We have the following announcement. Deadline: March 1, 2018]

Image result for "Law and social inquiry"The editors of Law & Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of law and social science written by a graduate or law student. Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives. Entries will be accepted starting January 1, 2018 and must be received by March 1, 2018.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. The author must be a graduate student or law student at the time the paper was written and when submitted. Faculty nominations should include a short description along with the paper and contact details for the student. Submissions will be evaluated by our editors.  The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication. All submissions (direct and faculty nominated) are weighted equally in the competition. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US).

Please send your article as a Microsoft Word document or PDF to lsi-abf@abfn.org.  Please indicate that (1) you intend to be considered in the competition, (2) you are currently a graduate student, and (3) you have not submitted your article to other journals for publication. Submission is limited to one paper per student; articles may not be altered or resubmitted with corrections once they have been received by our office.

Submissions must include a title page with a mailing address, e-mail address, and phone number. The second page should include a 100-150 word abstract. Beginning on the third page, all pages should be paginated.  Text, footnotes, endnotes, and references should be double-spaced in Times New Roman 12 point font and have 1” margins on all sides with no headers or footers.  Submissions must not exceed 15,000 words, including references and footnotes.

Questions regarding the competition can be directed to Willa Sachs: waschs@abfn.org(312) 988-6517. 

Kay on Amending the US Constitution

Richard S. Kay, University of Connecticut School of Law, has posted Formal and Informal Amendment of the United States Constitution, which is forthcoming in the American Journal of Comparative Law:
This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews the rules of Article V of the United States Constitution that sets out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, if not the hardest. constitutions in the world to change. It goes on to discuss possible limits on the substance of constitutional amendments. Some of these are set out in Article V but, as some other jurisdictions have recognized, there may be further, implicit restrictions based on the distinction between constitutional amendment and constitutional replacement. Many issues associated with constitutional amendment remain unresolved as a result of the Supreme Court’s reluctance to pronounce on the validity of amendments. Finally, the report compares the Article V process to the very significant constitutional change that has been accomplished through the constitutional interpretation of the United States Supreme Court. It concludes that jurisdictions like the United States where the constitution is treated with undisguised reverence, face a dilemma. Limiting constitutional revision to the formal process will eventually result in a constitution that is radically unsuitable for a modern society. But allowing irregular modification by judges sacrifices the key values of stability and predictability, the reasons we have a written constitution in the first place.

White on Rhodesia & African decolonization

Out with the University of Chicago Press' Law and Society series, we missed this one when it appeared in 2015. Luise White (University of Florida) has published Unpopular Sovereignty: Rhodesian Independence and African Decolonization. From the press:
Unpopular Sovereignty: Rhodesian Independence and African Decolonization by White, Luise (2015) PaperbackIn 1965 the white minority government of Rhodesia (after 1980 Zimbabwe) issued a unilateral declaration of independence from Britain, rather than negotiate a transition to majority rule. In doing so, Rhodesia became the exception, if not anathema, to the policies and practices of the end of empire. In Unpopular Sovereignty, Luise White shows that the exception that was Rhodesian independence did notin fact, make the state that different from new nations elsewhere in Africa: indeed, this history of Rhodesian political practices reveals some of the commonalities of mid-twentieth-century thinking about place and race and how much government should link the two.  
White locates Rhodesia’s independence in the era of decolonization in Africa, a time of great intellectual ferment in ideas about race, citizenship, and freedom. She shows that racists and reactionaries were just as concerned with questions of sovereignty and legitimacy as African nationalists were and took special care to design voter qualifications that could preserve their version of legal statecraft. Examining how the Rhodesian state managed its own governance and electoral politics, she casts an oblique and revealing light by which to rethink the narratives of decolonization.
Praise for the book:

“This is a thorough, comprehensive, and well-researched book that will be the essential starting point for the reconsideration of Zimbabwe’s recent history and historiography. A sharply acute and very readable study that resets the foundations for the understanding of Rhodesia’s Unilateral Declaration of Independence in 1965, it sets the events surrounding and following UDI in the context of African decolonisation and in their international context. With fascinating accounts of the constitutional machinations and the regime of economic sanctions and its failures, it is unrivalled as a rich resource for the period based on a very wide range of sources.” -Martin Chanock

“White’s Unpopular Sovereignty is a groundbreaking contribution to studies of decolonization. She places the seemingly anomalous history of Rhodesian independence within the decolonization of the rest of Africa. This is combined with a reanimation of the history of the ‘high politics’ of late colonialism by incisive accounts of the effects of various franchise commissions and experiments at constitution writing. The result is one of the most decisive challenges to linear versions of decolonization: of Rhodesia-into-Zimbabwe, to be sure, but also, more broadly, of colonies into nation-states. Written with characteristic brilliance, verve, and wit, Unpopular Sovereignty will become indispensable reading for scholars of colonialism and of the postcolonial world.” -Mrinalini Sinha

“Set in the late-colonial context of decolonization in Africa, this masterful book demonstrates that sovereignty does not flow in a linear fashion and according to preordained coordinates; and, that its predicates and foundations—political autonomy and self-government, on the one hand, and political identity and subjectivity, on the other—abide time and space in unpredictable ways. Relating the arguments to contemporary Zimbabwe, White demonstrates once and for all that the nature of sovereign power or associated political processes and outcomes are better understood through the manners in which shifting terrains of global, regional, and local alliances shaped the interests and the terms of the quest for power for protagonists—white minorities and so-called native populations alike. This is a truly impressive intervention in the historiography (and theory) of decolonization in Zimbabwe that holds significant insights for accounts of postcolonial sovereignty everywhere. Simply wonderful and a joy to read.” -Siba N'Zatioula Grovogui

Further information is available here

Lynch's History of Circuit Courts in the Early American Republic

David Lynch,a retired English Circuit Judge and a Master of the Bench of the Honourable Society of the Middle Temple, has published The Role of Circuit Courts in the Formation of United States Law in the Early Republic: Following Supreme Court Justices Washington, Livingston, Story and Thompson (Hart, 2018):
While scholars have rightly focused on the importance of the landmark opinions of the United States Supreme Court and its Chief Justice, John Marshall, in the rise in influence of the Court in the Early Republic, the crucial role of the circuit courts in the development of a uniform system of federal law across the nation has largely been ignored. This book highlights the contribution of four Associate Justices (Washington, Livingston, Story and Thompson) as presiding judges of their respective circuit courts during the Marshall era, in order to establish that in those early years federal law grew from the 'inferior courts' upwards rather than down from the Supreme Court. It does so after a reading of over 1800 mainly circuit opinions and over 2000 original letters, which reveal the sources of law upon which the justices drew and their efforts through correspondence to achieve consistency across the circuits. The documents examined present insights into momentous social, political and economic issues facing the Union and demonstrate how these justices dealt with them on circuit. Particular attention is paid to the different ways in which each justice contributed to the shaping of United States law on circuit and on the Court and in the case of Justices Livingston and Thompson also during their time on the New York State Supreme Court.
An endorsement that matters:
“Exhaustively researched and admirably argued, this book analyzes the crucial role played by the federal circuit courts in bridging the diversity of the new nation and the need to establish a unified body of national law. It also throws important new light on the internal operation of the Marshall Court. A significant contribution to our understanding of the federal court system of the early republic.” 
Professor R Kent Newmyer, University of Connecticut School of Law
Table of Contents after the jump.

Wednesday, February 14, 2018

Crowdsourcing SCOTUS Conference Notes

Marcia Coyle reports in the National Law Journal on @SCOTUSNotes, a crowdsourcing project to transcribe the conference notes of justices of the US Supreme Court.  “The initial focus of the project,” she reports, “is on 12,600 pages of notes taken by Justices William Brennan Jr. and Harry Blackmun in cases decided between 1959 and 1994, and overlapping notes taken by Blackmun and Brennan between 1970 and 1990.”  H/t: J. Grisinger.

Find a Co-Panelist for ASLH 2018!

[We're moving this up, as the deadline is now just two weeks away.]

[We here at Legal History Blog are happy to facilitate the matching service envisioned in this message from our friends at the American Society for Legal History, and we’ll be sure to post any comments we receive promptly.  Those ISO another papergiver or commentator should also consider posting to H-Law, which reaches scholars LHB may not.]

 The deadline to submit panels and papers for the 2018 ASLH Annual Meeting in Houston, Texas, is March 1, 2018. As the Call for Papers notes, “Given the number and high quality of panel and other complete sessions submitted, individual papers are much less likely than full sessions to be accepted.” To help those of you with individual papers find other like-minded presenters to organize panels, the comments to this post are open. Feel free to post your paper topic and/or panel idea below (and make sure to include an email address or other contact information). And please feel free to spread the word (the conference hashtag is #ASLH2018).

Stevens's "A Time for Scandal"

Rosemary Stevens, professor emeritus at the University of Pennsylvania, has published A Time of Scandal: Charles R. Forbes, Warren G. Harding, and the Making of the Veterans Bureau, with the Johns Hopkins University Press.
In the early 1920s, with the nation still recovering from World War I, President Warren G. Harding founded a huge new organization to treat disabled veterans: the US Veterans Bureau, now known as the Department of Veterans Affairs. He appointed his friend, decorated veteran Colonel Charles R. Forbes, as founding director. Forbes lasted in the position for only eighteen months before stepping down under a cloud of criticism and suspicion. In 1926—after being convicted of conspiracy to defraud the federal government by rigging government contracts—he was sent to Leavenworth Penitentiary. Although he was known in his day as a drunken womanizer, and as a corrupt, betraying toady of a weak, blind-sided president, the question persists: was Forbes a criminal or a scapegoat?

Historian Rosemary Stevens tells Forbes’s story anew, drawing on previously untapped records to reveal his role in America’s initial and ongoing commitment to veterans. She explores how Forbes’s rise and fall in Washington illuminates President Harding’s efforts to bring business efficiency to government. She also examines the Veterans Bureau scandal in the context of class, professionalism, ethics, and etiquette in a rapidly changing world. Most significantly, Stevens proposes a fascinating revisionist view of both Forbes and Harding—and raises questions about not only the validity but the source of their respective reputations. They did not defraud the government of billions of dollars, Stevens convincingly documents, and do not deserve the reputation they have carried for a hundred years.

Packed with vibrant characters—conniving friends, FBI agents, and rival politicians split by sectional and ideological interests as well as gamblers, revelers, and wronged wives— A Time of Scandal will appeal to anyone interested in political gossip, presidential politics, the "Ohio Gang," and the 1920s.

Research Fellowship with the NYU Center on the Administration of Criminal Law

We have the following call for applications:
The Center on the Administration of Criminal Law at NYU Law School is a nonpartisan research center that focuses on good government practices in the criminal justice system. Its primary areas of research include the role of mercy and the opportunity for second chances in the justice system. Through the Mercy Project, it has worked on obtaining federal and state clemency grants for individuals incarcerated in prison. 
As part of this research agenda, the Center is seeking applicants for a one-year research fellowship that focuses on the historical use of the state clemency power. The research will involve analyzing and writing about historical state clemency grants in an effort to understand how government actors and the public viewed the clemency power, with the goal of contributing to, and reshaping, current attitudes toward clemency and the notion of who is “deserving” of second chances in our justice system today. Research will likely involve a combination of primary and secondary source review, and some travel may be required. Salary is $55,000, and the position will remain open until filled. 
While the ideal candidates are those who have completed coursework for a doctorate or who have recently been awarded a doctoral degree, candidates with a J.D. and strong history training will also be considered.

Interested candidates should email a transcript from their most recent academic institution, resume, and writing sample to courtney.oliva@nyu.edu.

Schmidt on Civil Rights since the Civil War

Christopher W. Schmidt, Chicago-Kent College of Law, has posted the introduction to Civil Rights: An American History, a book under contract with the Cambridge University Press:
This book is a history of how Americans have struggled over the meaning of civil rights from the Civil War through today. I explain how a label initially deployed in the aftermath of the Civil War as a term of legal categorization, valued (and challenged) as much for what it excluded as for what it protected, morphed into something quite different in the twentieth century. A narrow term of law became, in the 1940s, an agenda for policy reform and then, in the 1960s, a rallying cry for a social movement. Yet even as the movement for this new, emboldened idea of civil rights remade American life and law, progressive activists challenged its perceived limitations. They argued that civil rights reforms failed to break down the entrenched inequalities that still defined American society, that what was needed was a different mindset, more ambitious legal tools, and more far-reaching labels, such as social and human rights. In the years following the civil rights movement, conservatives began to describe their own agenda of law-and-order policies, ending affirmative action, and opposing abortion as protecting civil rights. Liberals denounced what they saw as the illegitimate cooptation of the term, while at the same time framing their own causes—equal rights for women, the disabled, LGBT people—as new battles for civil rights.

The premise of Civil Rights: An American History is that there has never been a singular, unchanging definition of civil rights. My goal is to reconstruct the concept in all its complexity; to not dismiss paradox or contradiction as errors or mistakes but to use them to help illuminate the public meaning of civil rights. I want to excavate the term as it was used and contested, redefined and redeployed. On a more general level, this book offers a case study of how the words and categories by which we understand our world become objects of contestation and points of leverage for social, political, and legal action.

Civil rights has become one of the most powerful and contested terms of our present-day struggles. Its power lies in its distinctive blend of abstract idealism and historical specificity. One cannot speak of civil rights without referencing the history of civil rights, without placing today’s struggles alongside past struggles. To debate the meaning of civil rights today is to debate the history of civil rights in America. This book provides the first comprehensive account of that history.

Tuesday, February 13, 2018

An Essay Collection on Reconstruction and Race (in)Justice

New from Edward Elgar is Reconstruction and the Arc of Racial (in)Justice, edited by Julian Maxwell Hayter and George R. Goethals, both of the University of Richmond:
This collection of original essays and commentary considers not merely how history has shaped the continuing struggle for racial equality, but also how backlash and resistance to racial reforms continue to dictate the state of race in America. Informed by a broad historical perspective, this book focuses primarily on the promise of Reconstruction and the long demise of that promise. It traces the history of struggles for racial justice from the post US Civil War Reconstruction through the Jim Crow era, the Civil Rights and Voting Rights decades of the 1950s and 1960s to the present day.

The book uses psychological, historical and political perspectives to put today’s struggles for justice in historical perspective, considering intersecting dynamics of race and class in inequality and the different ways that people understand history. Ultimately, the authors question Martin Luther King, Jr.’s contention that the moral arc of the universe bends toward justice, challenging portrayals of race relations and the realization of civil rights laws as a triumph narrative.

Scholars in history, political science and psychology, as well as graduate students in these fields, can use the issues explored in this book as a foundation for their own work on race, justice and American history.
TOC is here.

Kimmel on conversion in early modern Spain

Out with the University of Chicago Press' Law and Society series, we missed this one when it appeared in 2015. Seth Kimmel (Columbia University) has published Parables of Coercion: Conversion and Knowledge at the end of Islamic SpainThe book was awarded the American Comparative Literature Association's Harry Levin Award in 2017. From the press:
Parables of Coercion: Conversion and Knowledge at the End of Islamic Spain
In the sixteenth and seventeenth centuries, competing scholarly communities sought to define a Spain that was, at least officially, entirely Christian, even if many suspected that newer converts from Islam and Judaism were Christian in name only. Unlike previous books on conversion in early modern Spain, however, Parables of Coercion focuses not on the experience of the converts themselves, but rather on how questions surrounding conversion drove religious reform and scholarly innovation.
In its careful examination of how Spanish authors transformed the history of scholarship through debate about forced religious conversion, Parables of Coercion makes us rethink what we mean by tolerance and intolerance, and shows that debates about forced conversion and assimilation were also disputes over the methods and practices that demarcated one scholarly discipline from another.
 Praise for the book:

"In Parables of Coercion Kimmel succeeds wonderfully in excavating the intersection of early modern Spanish socioreligious and intellectual history and in deciphering its various discourses....Kimmel further uncovers the dialectical relationship between socioreligious discord and innovative cultural production by religious intellectuals in seventeenth-century Spain, and in the process he manages brilliantly to render meaningless the conventional, simplistic characterization of early modern Spain as a purely intolerant society. It was far more complicated during the sixteenth century afterlife of Islamic Spain than historiographical orthodoxy suggests." -Modern Philology

"Ranging across canon law, sacred philology, and history in sixteenth- and early seventeenth-century Spain, Seth Kimmel aims to demonstrate how the phenomenon of Muslim converts to Christianity was entertained by experts in those disciplines, as well as the ways in which the Morisco question affected the disciplines themselves." -Renaissance Quarterly

"Kimmel has written a fascinating study of the learned cultures built out of a century of Spanish Christian intolerance toward Islam, beginning with the coerced conversion of Spain's Muslims to Christianity in the early sixteenth century, to the expulsion of the Moriscos (as the converts and their descendants were called) in the early seventeenth. He shows us how the evolving  'Morisco question' animated the emergence of disciplines such as philology, history, theology, political theory, and economics. In the process, he provides us with an alternate and disquieting history of our own scholarly, political, and religious practices." -David Nirenberg

Further information is available here.

Connor Named LHR's First Associate Editor for Digital Projects

[We have the following announcement.]

The Law and History Review is please to announce that Dr. Michan Connor has been selected as the journal's first Associate Editor for Digital Projects.  Michan is an interdisciplinary scholar of urban America, whose work addresses the relationship between metropolitan political fragmentation and racism and the significance of cities in American democracy. His work has been published in venues including the Journal of Urban History, Journal of Urban Affairs, and American Studies. He earned a doctorate in American Studies and Ethnicity from the University of Southern California, and has served as a faculty member at the University of Texas at Arlington and a visiting scholar at the James Weldon Johnson Institute at Emory University. He now lives in the Washington, D.C. area.

Congratulations, Michan Connor!

Monday, February 12, 2018

Crowdsourcing an Early Mass Jurist

We do our part.  From a WBUR report, incorporated into a post on NPR:
Among what it calls its "extensive collection of historic paintings and photographs," the Massachusetts Supreme Judicial Court has an oil painting of a justice who has remained unidentified, and it's launched a public campaign in the hopes that someone knows who he is.
In a statement, the court said the justice "may have sat on the bench between 1780 and 1820."
H/t: J. Grisinger.

Gordon on Wenger, "Religious Freedom"

Over at JOTWELL, LHB guest blogger Sarah Barringer Gordon (University of Pennsylvania) has posted an admiring review of Religious Freedom: The Contested History of an American Ideal (University of North Carolina Press, 2017), by Tisa Wenger (Yale University). Here's a taste:
Most likely, Tisa Wenger’s new book Religious Freedom: The Contested History of an American Ideal is not on many law professors’ reading lists. But for anyone who is interested in issues of church and state, race, and American empire, it should be. Wenger has uncovered a powerful collection of movements, legal claims, and government interference in religious life in the early twentieth century. Many of us have either never heard of them, or have not understood how crucial they were to religion’s role in public policy and (occasionally) resistance to government power. This is not a book written by a legal expert: the terms “disestablishment” and “free exercise” don’t appear here. But it is full of constitutional claims and legal conflict, as well as a careful examination of the incentives for invoking religious freedom.
Read on here.

Saturday, February 10, 2018

Weekend Roundup

  • More on ASLH stalwart Patti Minter's candidacy for a seat in the Kentucky legislature. 
  • We've previously mentioned the legal history feature on the OAH's Process blog. Follow the link to see new posts by Katrina Jagodinsky (University of Nebraska), Gregory Evans Dowd (University of Michigan), and Andrea Geiger (Simon Fraser University).
  • Thursday was Legal Records Appreciation Day in Vermont!  The declaration was in conjunction with the a tribute for Dr. Samuel B Hand. who, vermontbiz reports, laid “the ground work for the identification, preservation and accessibility of legal records, specifically court records, in this state.”
  • The Smithsonian recently published a story on new database on “New York’s Historic Ties to Slavery,” with “searchable records of slavery from birth registrations to runaway slave advertisements.”
  • Amir Toft and Raha Rafii are seeking panelists for an ASLH proposal on "Courts and Judges in Islamic History." Please e-mail them by Feb.16 if you'd like to join forces: rafii@sas.upenn.eduamir.toft@yale.edu. Details posted on H-Law here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 9, 2018

Calabresi et al on Individual Rights and the States: 1791, 1868, 2018

Steven G. Calabresi, Northwestern University Law, et al. have posted Individual Rights Under State Constitution in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States:
This law review article describes what individual rights are protected under state constitutional law today in 2018; in 1868 when the Fourteenth Amendment was ratified; and in 1791, when the federal Bill of Rights was ratified. We seek to offer a picture over time as to what rights have gone into style and what rights have fallen out of style over the last 227 years. State constitutions are much easier to amend than is the federal constitution, so they provide a good sociological vantage point from which to assess rights. Moreover, since most originalists think that rights should be deeply rooted in history and tradition, as the U.S. Supreme Court held in Washington v. Glucksberg, the 1791 and 1868 data ought to be of interest to them. In contrast, the 2018 data should be of interest to advocates of a living constitution.

Fuentes and Luz on Legal Education in the High Middle Ages

Edgar Fuentes, Universidad de Buenos Aires, and Luz Eliyer Cárdenas Contreras, have posted, in Spanish, Genealogy of the Assimilation of Normativity: Analysis of the Study of Law in the Origin of Western Universities.  Here is the English abstract:
This paper carries out a genealogical study on the teaching of law; for that purpose, it uses a descriptive-correlational analysis of the teaching and learning models of the first Western universities, borned at the end of the High Middle Ages. It presents in three sections the emergence of universities and law schools; the so-called mos italicus and mos gallicus, and finally establishes a correlation between the later schools with the original models. Finally, we reach the conclusions about the dependence of medieval structures and their genetic extension, even in contemporary contexts.

Justice Thomas Interviewed and Justice Marshall Remembered

We’ve learned of two events sponsored or co-sponsored by the Supreme Court Historical Society.
On Thursday, February 15, 2018 at 3:30 PM, Justice Clarence Thomas will participate in a conversation with Professor Gregory E. Maggs. It will be held in the Coolidge Auditorium in the Jefferson Building of the Library of Congress.  While available seating has been fully subscribed ..., [t]he conversation will be live streamed [here.]
In addition, the Society will host
the National Heritage Lecture on Tuesday, March 6, 2018 at 6:00 pm.  The lecture celebrates the 50th anniversary of Thurgood Marshall’s appointment to the Supreme Court.  Five of his former law clerks will hold a conversation about his life, career and legacy.  The participants are Justice Elena Kagan, Professor Stephen Carter, Judge Paul Engelmayer, Judge Douglas Ginsburg and Professor Randall Kennedy. Ticket prices are $100 per person and include a reception following the program.

The event will be held at the Supreme Court in the Court Chamber at 6 PM with the reception to follow. Further details can be found online.  Online registration is available [here.]

Thursday, February 8, 2018

Ziegler on Williams, "Defenders of the Unborn"

Over at JOTWELL, former LHB Guest Blogger Mary Ziegler has posted "The Costs of Constitutional Principle." It is a review of Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade (Oxford University Press, 2016), by Daniel K. Williams (University of West Georgia). Here's a taste:
The law delivers uneven benefits for the protagonists of Daniel K. Williams’ masterful study of the early decades of the pro-life movement. Williams chronicles the transformation in the 1960s of what had been a religious crusade against contraception and abortion into a secular, rights-based cause that also appealed to some left-leaning Catholics and Protestants. Williams argues that antiabortion activists invested more in legal strategies after the Supreme Court’s decision in Roe v. Wade. Leaders of the movement became preoccupied with a constitutional amendment overturning Roe. Entanglement with law ultimately undercut demands for material benefits that some pro-lifers believed women required to have a real reproductive choice. 
Williams first takes readers into the poorly understood years of early pro-life activism when “the campaign against abortion was almost inseparable from the Catholic Church’s fight against contraception.” (P. 4.) By studying the predominantly religious and medical debates that dominated the 1930s and 1940s, Defenders of the Unborn recovers a mostly lost prehistory of the abortion battle. At this time, as Williams shows, debate often turned not on the meaning of the Constitution but on the medical need for abortion and the religious beliefs of those opposed to it. Williams also traces the origins of now-ubiquitous comparisons of abortion and the Holocaust to this period.
Read on here.

Legislative History Researcher Sought

The legal recruiter Special Counsel "is currently seeking a contract Attorney to assist with Legislative History and Brief Checking at one of our national clients in Milwaukee. The ideal candidate will have performed Wisconsin legislative history search pre-1990, and ideally will have an illustrative work sample or experience. The role will have a heavy research component.”  More.

Sullivan & friends on religious freedom

We're getting caught up on the past few years of the University of Chicago Press' Law and Society book series. Edited by Winnifred Fallers Sullivan (Indiana University Bloomington), Elizabeth Shakman Hurd (Northwestern University), Saba Mahmood (University of California, Berkeley), and Peter G. Danchin (University of Maryland), Politics of Religious Freedom came out in 2015. Here is the abstract:

In a remarkably short period of time, the realization of religious freedom has achieved broad consensus as an indispensable condition for peace. Faced with widespread reports of religious persecution, public and private actors around the world have responded with laws and policies designed to promote freedom of religion. But what precisely is being promoted? What are the cultural and epistemological assumptions underlying this response, and what forms of politics are enabled in the process? 
The fruits of the three-year Politics of Religious Freedom research project, the contributions to this volume unsettle the assumption—ubiquitous in policy circles—that religious freedom is a singular achievement, an easily understood state of affairs, and that the problem lies in its incomplete accomplishment. Taking a global perspective, the more than two dozen contributors delineate the different conceptions of religious freedom predominant in the world today, as well as their histories and social and political contexts. Together, the contributions make clear that the reasons for persecution are more varied and complex than is widely acknowledged, and that the indiscriminate promotion of a single legal and cultural tool meant to address conflict across a wide variety of cultures can have the perverse effect of exacerbating the problems that plague the communities cited as falling short.
The second section of the book should be of special interest to LHB readers:
PART 2. History 
Preface Elizabeth Shakman Hurd 
Chapter 8. The Problem with the History of Toleration Evan Haefeli 
Chapter 9. Religious Minorities and Citizenship in the Long Nineteenth Century: Some Contexts of Jewish Emancipation  David Sorkin
Chapter 10. Varieties of Religious Freedom and Governance: A Practical Perspective Robert W. Hefner 
Chapter 11. Religious Freedom between Truth and Tactic Samuel Moyn 
Chapter 12. Religious Freedom, Minority Rights, and Geopolitics Saba Mahmood 
Chapter 13. Ceylon/Sri Lanka: The Politics of Religious Freedom and the End of Empire Benjamin Schonthal 
Chapter 14. Liberty as Recognition Nandini Chatterjee
Further information is available here.

McRae's "Mothers of Massive Resistance"

Elizabeth Gillespie McRae, Western Carolina University, has published Mothers of Massive Resistance: White Women and the Politics of White Supremacy, with Oxford University Press:
Why do white supremacist politics in America remain so powerful? Elizabeth Gillespie McRae argues that the answer lies with white women.

Examining racial segregation from 1920s to the 1970s, Mothers of Massive Resistance explores the grassroots workers who maintained the system of racial segregation and Jim Crow. For decades in rural communities, in university towns, and in New South cities, white women performed myriad duties that upheld white over black: censoring textbooks, denying marriage certificates, deciding on the racial identity of their neighbors, celebrating school choice, canvassing communities for votes, and lobbying elected officials. They instilled beliefs in racial hierarchies in their children, built national networks, and experimented with a color-blind political discourse. Without these mundane, everyday acts, white supremacist politics could not have shaped local, regional, and national politics the way it did or lasted as long as it has.

With white women at the center of the story, the rise of postwar conservatism looks very different than the male-dominated narratives of the resistance to Civil Rights. Women like Nell Battle Lewis, Florence Sillers Ogden, Mary Dawson Cain, and Cornelia Dabney Tucker publicized threats to their Jim Crow world through political organizing, private correspondence, and journalism. Their efforts began before World War II and the Brown decision and persisted past the 1964 Civil Rights Act and anti-busing protests. White women's segregationist politics stretched across the nation, overlapping with and shaping the rise of the New Right. Mothers of Massive Resistance reveals the diverse ways white women sustained white supremacist politics and thought well beyond the federal legislation that overturned legal segregation.
Some endorsements:

Wednesday, February 7, 2018

Wilkinson-Ryan on Fleming, "The Rise and Fall of Unconscionability as the ‘Law of the Poor’"

Also at JOTWELL, Tess Wilkinson-Ryan (University of Pennsylvania) spotlights "The Rise and Fall of Unconscionability as the ‘Law of the Poor’," by Anne Fleming (Georgetown University Law Center). The article appeared in Volume 102 of the Georgetown Law Journal (2014). Here is a taste:
Who is best suited to police unfair terms—the market, the judiciary, or the legislature? Williams vs. Walker-Thomas Furniture has long been offered as a cautionary tale, but in her 2014 article, legal historian Anne Fleming takes on the standard narrative of judicial overreach and recasts the relationships among institutional actors in a reform movement. 
In 1965, Judge Skelly Wright ruled that Ora Lee Williams’s contract to pay for furniture on a pro rata installment plan was subject to review for unconscionability—a moment of judicial activism that was later blamed for the decline and stagnation of the doctrine of unconscionability. Fleming pushes back against the standard narrative that Williams created a backlash against Wright’s ‘law of the poor’ – according to that simplistic story, “Judges ended up hurting the very people they were trying to help. In the face of incisive criticism, judicial enthusiasm for the doctrine of unconscionability quickly faded.” (Pp. 1387-1388.) Fleming’s argument reframes the Williams decision within a broader context of judicial, legislative, and popular pressure, tracing the revival of unconscionability back to the Uniform Commercial Code, enacted in Washington, D.C. in 1963.
Read on here.

Simon on Mayeux, "The Idea of 'the Criminal Justice System'"

Over at JOTWELL, my colleague Jonathan Simon (Berkeley Law) has posted an admiring review of "The Idea of 'The Criminal Justice System,'" by Sara Mayeux (Vanderbilt). The article is forthcoming in the American Journal of Criminal Law (2018). Here are the first two paragraphs:
Do you want to reform the criminal justice system? Maybe with new evidence-based practices? Or maybe you doubt the word ‘justice’ is appropriate and you would like to shrink the criminal system more generally? Good luck, because, to paraphrase an old anarchist poster from London that used to hang on my wall in high school, “whoever you voted for, the system got in.” In short, almost all of us return repetitively to the idea, the metaphor really, that the criminal process is or at least can aspire to be a system. It may be time, in the aftermath of mass incarceration, to not only reform, and shrink American crime control institutions (or the carceral state if you prefer), but to (use a horrible malapropism, forgive me George Orwell) de-systematize it. 
Mayeux’s enlightening essay provides us a genealogy of the rise of system thinking over criminal justice thinking. The idea that all things natural and artificial can usefully be thought of as systems (and creation a complete system) goes back to the Enlightenment at least. Modern sociology, in its mid-century rise to national prominence, promoted the idea of a social system, inside of which functioned numerous sub-systems. After the war systems theory took off in the operations research wing of engineering where, spurred by the tremendous numbers of bombs dropped and planes built and destroyed during World War II (Mayeux skips these details), the idea of breaking down processes into their essential elements and studying their flow and interaction took hold. This thinking seeded in business schools in the 1950s and came back to government with Robert MacNamara in the 1960s.
Read on here.

From Goldwater to Zivotofsky: The Political Question Doctrine in the D.C. Circuit

[We’ve previously noted this event but now have an updated announcement.]
The Historical Society of the District of Columbia Circuit presents:

From Goldwater to Zivotofsky: The Political Question Doctrine in the D.C. Circuit

Date: Wednesday, March 7, 2018       
Time: 4:30 p.m. – 6:00 p.m.
Location: Ceremonial Courtroom, 6th Floor
E. Barrett Prettyman U.S. Courthouse
3rd Street & Constitution Avenue, N.W., Washington, D.C.

In December 1978, President Carter decided to recognize the People’s Republic of China, instead of the Republic of China, simultaneously invoking the termination clause of the Mutual Defense Treaty with Taiwan. Senator Goldwater and other members of the Senate and House sued, contending that termination could not be constitutionally effective without concurrence of the entire Congress. D.C. District Judge Oliver Gasch enjoined the Secretary of State from taking action to implement the termination, holding that the U.S. could not terminate the Treaty until the President’s actions received the approval of two-thirds of the Senate or a majority of both Houses of Congress. President Carter appealed contending that the case presented a non-justiciable political question that should not be resolved in the courts but rather through give-and-take accommodation of the political process. The D.C. Circuit reversed on the merits, concluding that the President had not exceeded his constitutional authority; no judge would have declined to exercise jurisdiction by reason of the political question doctrine. The Supreme Court reversed without argument and ordered the case dismissed, with a plurality concluding that the case was non-justiciable under the political question doctrine.

Our program will include a reenactment of arguments presented to the D.C. Circuit sitting en banc in 1979 on the political question issue in Goldwater v. Carter. Professor Stephen Vladeck will set the stage. Erin Murphy will argue for President Carter, Harold Koh for Senator Goldwater. Senior Circuit Judges Edwards and Williams, who reached opposite conclusions on the political question/justiciability issue in a 1991 case, will preside. Following the reenactment, Paul Smith will moderate a discussion exploring the scope and viability of the political question doctrine today. Panelists will include Professor Vladeck, the advocates Ms. Murphy and Professor Koh, as well as Beth Brinkmann.

Alexander on the Origins of Obscenity Exceptionalism

James R. Alexander, University of Pittsburgh at Johnstown, has posted Chasing Echoes of Obscenity Exceptionalism in Copyright: Recent Swarm Cases, which is forthcoming in volume 17 of the Chicago-Kent Journal of Intellectual Property (2018):
Recent district court rulings regarding copyright violations using BitTorrent file-sharing protocols to illegally download pornographic films have been numerous and largely procedural. But some have casually included language challenging the established doctrine of content neutrality in copyright, noting that obscenity exceptionalism might still be within the court’s policy discretion. This article traces these recent rulings and finds little substantive argument on behalf of exceptionalism other than its long-time understanding under common law, now abandoned. It also examines the critical early nineteenth century common law rulings considered seminal in establishing content exceptionalism in copyright and finds that current court references to them in swarm cases appear willing to accept what was believed to be their governing principles without consideration of the cautions expressed by earlier courts.
The article draws upon Professor Alexander’s considerable research on Lord Eldon’s opinion in Walcot v. Walker (Ch. 1802).

Tuesday, February 6, 2018

Research Grants at State Historical Society of Iowa

[We have the following announcement.]

The State Historical Society of Iowa (SHSI) announces a grant program for the 2018/2019 academic year. SHSI will award up to ten stipends of $1,000 each to support original research and interpretive writing related to the history of Iowa or Iowa and the Midwest. Preference will be given to applicants proposing to pursue previously neglected topics or new approaches to or interpretations of previously treated topics. SHSI invites applicants from a variety of backgrounds, including academic and public historians, graduate students, and independent researchers and writers. Applications will be judged on the basis of their potential for producing work appropriate for publication in The Annals of Iowa. Grant recipients will be expected to produce an annotated manuscript targeted for The Annals of Iowa, SHSI’s scholarly journal.

Applications for the 2018/2019 awards must be postmarked by April 15, 2018. Download application guidelines from our website or request guidelines or further information from:

Research Grants
State Historical Society of Iowa
402 Iowa Avenue
Iowa City  IA  52240-1806

Phone: 319-335-3931
e-mail: marvin-bergman@uiowa.edu