Morag-Levine on the Continental Influences on the British Alkali Act

Noga Morag-Levine, Michigan State University College of Law, has posted Is Precautionary Regulation a Civil Law Instrument? Lessons from the History of the Alkali Act, which appeared in the Journal of Environmental Law 23 (2011): 1-43.  Here is the abstract:

Explanations for cross-national divergence in attitudes towards precautionary regulation have largely neglected the potential influence of legal traditions, notably the tension between precautionary tools and the common law’s reactive approach. This is partially due to the apparent clash between this thesis and the early emergence in Britain of precautionary regulation under the 1863 Alkali Act. Historical accounts of this development have focused entirely on domestic factors, entrenching in the process an understanding of the Alkali Act — and Britain more generally — as the origin of centralised precautionary environmental regulation. In contrast, this article argues that the Act was directly inspired by French and other continental regulatory models, and that the regime it spawned constituted a continental-common law hybrid. If the Alkali Act regime was partially transplanted from the Continent, it becomes easier to reconcile the civil law character of precautionary regulation with the evident presence of that instrument in Victorian Britain.

December 2012 JAH is out

The December 2012 issue of the Journal of American History is out (subscribers may access content online). The issue includes:

• Alice Kessler-Harris's recent Presidential Address, titled "Capitalism, Democracy, and the Emancipation of Belief."

• "Moving beyond 'Rags to Riches': New York’s Irish Famine Immigrants and Their Surprising Savings Accounts," by Tyler Anbinder

• "On a Temporary Basis: Immigration, Labor Unions, and the American Entertainment Industry, 1880s–1930s," by Krystyn Moon

• A roundtable on Women’s and Gender History. Here's the journal's summary:

For decades, women’s and gender historians have sought to expand the boundaries of their field, interrogate its assumptions, and reshape standard narratives of U.S. history. Cornelia H. Dayton and Lisa Levenstein assess the state of the field, emphasizing how the scholarship of the past decade challenges U.S. historians to think in new ways about how they teach, synthesize, and design research. The field’s radical edge lives on in scholars’ ever-more-flexible understandings of gender and their new interpretations in areas such as state building, rights claiming, and empire. Following Dayton and Levenstein’s article, Natsuki Aruga, Crystal N. Feimster, Alice Kessler-Harris, Ana Elizabeth Rosas, and Elisabetta Vezzosi offer perspectives on the state of the field.

• And as always, numerous reviews of exhibitions, books, films, and websites.

Nuisances, Snake Oil, and Jim Crow Banks at the Hagley

[This spring's Research Seminars at the Hagley Library and Museum are all of interest to legal historians.]

February 14, 2013
David Lucsko, Auburn University
"Not in My Neighbor’s Backyard, Either: Junkyards, Automobile Enthusiasts, and Property Owners, 1965-2010"
Comment: Alison Isenberg, Princeton University

March 14, 2013
Susan Strasser, University of Delaware
"Snake Oil Revisited"
Comment: Nancy Tomes, SUNY-Stony Brook

April 11, 2013
Shennette Garrett-Scott, Case Western Reserve University
"'All the Other Devils This Side of Hades': Jim Crow and State Regulation of Negro Banks in Mississippi during the Progressive Era"
Comment: TBA

Seminars are free and open to the public and are based on a paper that is circulated in advance. Those planning to attend are encouraged to read the paper before coming to the seminar. Copies may be obtained by contacting Carol Lockman at clockman@hagley.org. The seminars begin promptly at 6:30 p.m. in the Copeland Room of Hagley’s library building.

The Unwritten Constitution, Boilerplate Contracts, the Second Amendment, and More: This Week in the Book Pages

This week in the New York Times, Robert P. George reviews America's Unwritten Constitution:The Precedents and Principles We Live By (Basic Books) by Akhil Reed Amar.  As George writes, Amar "contends that the written Constitution points to an unwritten one, and he argues that we can interpret with both intellectual honesty and analytical rigor."  Read on here.

Also in the New York Times this week, a review of Craig R. Whitney's Living With Guns: A Liberal's Case for the Second Amendment (PublicAffairs), and Richard Aldous reviews The Last Lion: Winston Spencer Churchill, Defender of the Realm 1940-1965 (Little, Brown & Company).

In the LA Times, Tony Perry reviews two books on the war in Afghanistan: Jake Tapper's The Outpost: An Untold Story of American Valor (Little, Brown), and Dakota Meyer and Bing West's Into the Fire: A Firsthand Account of the Most Extraordinary Battle in the Afghan War (Random House).  And in the Washington Post, H.W. Brands reviews Robert M. Utley's Geronimo (Yale).

In the Wall Street Journal this week, Robert F. Nagel reviews Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton) by Margaret Jane Radin.  As Nagel writes, Radin "effectively debunks legal abstractions designed to reconcile boilerplate with contract theory."

And in TNR: The Book this week, Geoffrey Kabaservice reviews Robert O. Self's All in the Family: the Realignment of American Democracy Since the 1960s (Hill and Wang): "Self argues that the 'explosive issues surrounding gender, sex, and family" were not peripheral "culture war" matters, but were central to the political struggles over power, equality, and economics during the past five decades."  The Book also has Linda Colley's review of Round About the Earth: Circumnavigation from Magellan to Orbit (Simon and Schuster) by Joyce E. Chaplin.  Round About the Earth, Colley writes, is "strikingly original and wonderfully researched."

Holmes Goes Electric!

Hat tip to David Warrington to alerting me to the fact that, after years in the making, the Harvard Law School's Oliver Wendell Holmes Jr. Digital Suite went live last week.  The Harvard Gazette explains:

Library of Congress

On the website, a visitor can move from the erect soldier of 22 to the jurist in his prime at work behind a desk to the elderly Holmes, stooped as he walks beside Supreme Court colleague Louis Brandeis.

In a first for the library, the site aggregates multiple archival holdings into a single, hyperaccessible digital suite that anyone with a computer can search, browse, and tag. (The library uses the word “suite” to mean a collection of collections.) In the new suite, users can search and browse across five manuscript and three visual collections.

“We’re not making anything newly available through this. But the access is so greatly enhanced now. We’re making this convenient,” said Margaret Peachy, curator of digital collections at the library.

The new suite replaces and expands the library’s digital collection on Holmes. It not only aggregates manuscripts and images, but it offers simple and advanced searching, facilitates browsing, and offers links to like-minded searchers.

Who are the expected users? “Anybody with a computer who comes to this site,” said Stephen Chapman, project manager in the library’s digital lab.

More.

Weekend Roundup

• In the wake of the Newtown tragedy, historians are claiming a place in national conversations about gun control, the right to bear arms, violence and American culture, and the duties of educators. Saul Cornell's recent piece in the Daily Beast is here. Jill Lepore's April 2012 New Yorker article ("Battleground America") remains relevant. Claire Potter (Tenured Radical) has posted some reflections here. History News Network is also compiling a round-up of commentary from historians.

• Earlier this fall Maribel Morey (NYU law) gave a talk at the Hannah Arendt Center at Bard College, focusing on Gunnar Myrdal's An American Dilemma (1944) and Hannah Arendt’s “Reflections on Little Rock” (1959). The Arendt Center has now posted a written re-cap, as well as recording of the talk and ensuing discussion. (Hat tip: bookforum)   

• Robert Bork's visit to Grove City College in 1988 is remembered here.

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

CFP: ASLH 2013

[Via H-Law we have the Call for Papers for next year’s annual meeting of the American Society for Legal History.]

The 2013 meeting of the American Society for Legal History will take place in Miami, Florida, November 7-10, 2013. The ASLH invites proposals on any facet or period of legal history, anywhere in the world. In selecting presenters, the Program Committee will give preference to those who did not present at last year's meeting.

Travel grants will be available for presenters in need; these resources will nevertheless still be limited, and special priority will be given to presenters traveling from abroad, graduate students, post-docs, and independent scholars.

The Program Committee welcomes proposals for both full panels and individual papers, though please note that individual papers are less likely to be accepted. As concerns panels, the Program Committee encourages the submission of a variety of different types of proposals, including: traditional 3-paper panels (with a separate commentator and chair) incomplete 2-paper panels (with a separate commentator and chair), which the Committee will try to complete with at least 1 more paper; panels of 4 or more papers (with a separate commentator and chair); thematic panels that range across traditional chronological or geographical fields ; author-meets-reader panels; roundtable discussions.

All panel proposals should include the following:

A 300-word description of the panel;
A c.v. for each presenter (including complete contact info); In the case of paper-based panels only, a 300-word abstract of each paper .

Individual paper proposals should include:

A c.v. for each presenter (including complete contact info); A 300-word abstract of each paper

The deadline for submitting proposals is March 1, 2013. Proposals should be sent as email attachments to proposals@aslh.net.  Substantive questions should be directed to Christina Duffy Ponsa at cponsa@law.columbia.edu or Karl Shoemaker at kbshoemaker@wisc.edu.

Those unable to send proposals as email attachments may mail hard copies to:

2013 ASLH Program Committee
c/o Christina Duffy Ponsa
Columbia Law School
435 W. 116th Street, Rm. 913
New York, NY 10027

CFP: Law and Literature via Bentham

[The twelfth issue of the Revue d’Études Benthamiennes, to be published in autumn 2013, which is to be devoted to Law and Literature.  It will be coordinated by Claire Wrobel (Université Lille 2).  The full call is here.]

Bentham and his followers were undeniably interdisciplinary thinkers as their interests ranged from reforming the legal and political system to economic and colonial matters as well as language. They moved about diverse social circles and, even when they did not meet face to face, reformers and writers often discussed, albeit on different modes, the same issues.

The REB is seeking to publish papers relying on the methodology of “Law and Literature” studies to shed new light on the works and thinking of Bentham and his followers and, conversely, identify what Bentham's theory of fiction or evidence – for instance – may bring to the field.

John Wigmore (1863-1943) is usually regarded as the founding father of the “law and literature” movement. At the beginning of the twentieth century, he established lists of legal novels – meaning novels which included trial scenes or portraits of lawyers for example – which lawyers should read. Wigmore, like Bentham, analysed the common-law system of evidence (Treatise on the Anglo-American System of Evidence in Trials at Common Law, 4 vols, 1904-5). The fact that Bentham and Wigmore's theories of evidence should have been studied conjointly by William Twining is quite significant (Theories of Evidence: Bentham and Wigmore, Stanford, Calif.: Stanford University Press, 1985).

Wigmore's undertaking was supported and continued by some of his colleagues, including Benjamin Cardozo (whose essay on “Law and Literature” was published in the Yale Review in 1925 [vol.14, pp.699-718]) and Richard Posner (who took a critical stance in Law and Literature: a Misunderstood Relation, Harvard University Press, 1988).

The Legal Imagination (Chicago; London: University of Chicago Press, [1973] 1985), which James Boyd White, a Law Professor at the University of Michigan, devoted to Shakespeare, provided new impetus to the movement and the field has kept on developing in the United States, especially from the 1990s. Most American law schools now offer “Law and Literature” classes. Three academic reviews centre on the subject: the Yale Journal of Law and the Humanities, the Legal Studies Forum, and the Cardozo Studies in Law and Literature.

In France, two conferences were organised recently: in 2007 at the Cour de cassation (the French Court of Appeal) and in 2011 at the University of Paris Ouest-Nanterre. In France as in Anglo-Saxon countries, the interest in “Law and Literature” has emerged through law specialists but the field is by its very nature open to other disciplines. This CFP addresses specialists of Law, Literature, but also philosophy.

Contributions may address - but are not necessarily limited to – the axes which are already well-established: law in literature (the way literature reflects – in both senses of the word – the world of law and legal processes), law as literature (the literary properties of legal texts), the law of literature (the laws relating to literary production and intellectual property), legal and literary hermeneutics. Bentham's theories on fictions and evidence may prove particularly fruitful for hermeneutic issues.***

Please send proposals (in French or in English) of around 500 words and a short biography to Emmanuelle de Champs (edechamps@univ-paris8.fr) and Claire Wrobel (claire.wrobel@univ-lille2.fr) by December 12th. [Note: we've just received this call here at LHB, so we assume that submissions are still being solicited.]  Acceptance of proposals will be signified in February. Completed articles will be due by June 1st 2013.

Update: The deadline for submissions is now January 20th.

Konefsky on Simon Greenleaf and the Stillborn Bowdoin Law School

Simon Greenleaf (credit)

You won’t see it on SSRN anytime soon, but that shouldn’t keep you from reading the latest from Alfred S. Konefsky, SUNY Buffalo Law School: “Piety and Profession: Simon Greenleaf and the Case of the Stillborn Bowdoin Law School, 1850-1861,” New England Quarterly 85 (December 2012): 695-734.  One wouldn’t think a failure would be all that interesting–after all, Bowdoin College never did get a law school–but this one is.  In part that is because Konefsky has brought to bear on a revealing cache of manuscripts his great understanding of the antebellum legal profession to give us a lively account of the attempt to create in Maine something like the legal adjuncts to the antebellum colleges in Cambridge and New Haven.  It helps, as well, that the articulate and thoughtful Simon Greenleaf (1783-1853), retired from his professorship at the Harvard Law School, was the principal advisor to Bowdoin’s president.  Greenleaf was not about to sever “my present pursuits & connexions, which are like pleasant and profitable,” to teach in distant Brunswick–although for a time he entertained a similar offer from Brown’s Francis Wayland.  Still he prepared a lengthy report, which in Konefsky’s hands, reveals much about the pedagogy, dubious business model, and ideological mission of the antebellum law school, as envisioned by a devout Whig, who, with Richard Hooker, said of law that “her seat is the bosom of God, her voice the harmony of the world.”  In his report and other correspondence with the Bowdoin president we can see how much Greenleaf counted on the instruction of “the sons of New England” in legal doctrine and a moral code to deliver the republic from “men without religion or moral principle, foes of all manner of legal restraint, mistaking licentiousness for liberty & having no just conception of the nature of free government.”  When he died in 1853, few remained to keep alive Greenleaf’s belief in “moral science as an animating force in legal education” and hope that a cadre of learned lawyers could contain the passions of a polyglot people.

Roe and the Changing Meaning of Conscientious Objection

Robin Elliott’s journey in the abortion rights movement brought him from England to Columbia University and finally into the front lines of the abortion wars. The director of public relations for Planned Parenthood, Elliott worked, after 1973, to create a new message for the abortion-rights movement. He urged Planned Parenthood to stress individual freedom of conscience. A person could oppose abortion but could not impose that belief on anyone else.

A similar idea found expression in the Church Amendment, a conscience-clause law passed with bipartisan support in 1973. As Sara Dubow argued recently at the American Society for Legal History Conference, conscience legislation in the 1970s was popular, uncontroversial, and widespread. In the decades to come, however, conscience laws took their place at the center of conflict about women’s health and religious liberty. 

Dubow attributes this shift to several larger changes in the political terrain. Bipartisan consensus on the importance of religious freedom, the desirability of guaranteed access to healthcare, and women's rights broke down over time. Legislators once willing to discuss conscience without mentioning abortion were no longer willing to do so.

This argument is as compelling as much of Dubow’s work (see Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (New York: Oxford University Press, 2010)). I think a few additional changes have fueled the conscience wars. First, in the decades since Roe came down, consensus on the value of conscience has obscured intense conflict about what choice or conscience means. Beginning in the mid-1970s, abortion opponents seized on the ideas of choice as a way of narrowing abortion rights. In this account, the Constitution recognized the importance of a woman’s freedom of conscience rather than access to abortion. As the Supreme Court expressed views of this kind in cases like Maher v. Roe, it became clear that agreement on the importance of freedom of conscience went only so far. Those on opposing sides of the abortion issue held dramatically different views on what that freedom involved.

Second, those claiming freedom of conscience have defined that freedom ever more broadly. The Church Amendment applied primarily to those who did not want to assist in abortions. Current religious liberty claims suggest that the legality of abortion or same-sex marriage itself represents a threat to freedom of conscience. Abortion opponents, among others, argue that making something legal creates a risk that believers will have to learn about, participate in, or approve of that practice. Defined in this way, freedom of conscience almost requires a ban on the challenged practice.

As early as 1973, participants in the conscience wars disagreed about who could speak for religious liberty and what that liberty entailed. Now, this conflict is more visible and intense, but it began as early as did Robin Elliott’s public-relations campaign.

Robert Bork and the Right to Discriminate

Robert Bork, who died yesterday, left a legacy that includes leading roles in several major events in American legal history—among them, his failed nomination to the Supreme Court in 1987 and his role in Nixon’s “Saturday Night Massacre” as the Watergate scandal unfolded in 1973.  But Bork’s first turn in the national spotlight came in 1963, when he became a uniquely influential critic of what would become Civil Rights Act of 1964.  Bork, an expert in antitrust law, had only recently left private practice to teach at Yale Law School when he published an article in The New Republic attacking advocates of national public accommodations legislation for failing to appreciate its costs for individual freedom.  It was to this article that Senator Ted Kennedy referred when he announced, during Bork’s confirmation hearing, that “in Robert Bork's America, there is no room at the inn for blacks.” 

Kennedy was wrong to smear Bork as a segregationist.  Bork’s point was not to defend racial segregation.  Indeed, in the article he explicitly denounced the practice.  But Kennedy was not wrong to draw attention to Bork’s deeply problematic argument against the Civil Rights Act.  The kind of liberty-based critique of antidiscrimination policy that Bork was articulating is a topic I explore in a forthcoming essay titled “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement.”  It will be included in Signposts: New Directions in Southern Legal History, a collection of seventeen essays, expertly edited by Sally Hadden and Patti Minter, which the University of Georgia Press will publish this spring.

Bork’s New Republic article about the pending federal public accommodations bill has become probably the most famous defense of the “right to discriminate.”  Bork began by separating himself from segregationist opponents of civil rights policy.  He described the proposed legislation as based in “justifiable abhorrence of racial discrimination,” and he lamented that most critics of the law were “southern politicians who only a short while ago were defending laws that enforced racial segregation” and hence only opportunistic libertarians.  Yet, Bork insisted, one may stand opposed to racial discrimination and still see something amiss in a national public accommodations law.  “It is not whether racial prejudice or preference is a good thing but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them…. The trouble with freedom is that it will be used in ways we abhor.”  State enforced segregation was wrong, but so was state enforced integration in certain spheres of private relations.  The principle behind the proposed law, Bork explained in the most widely quoted lines of the article, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths.  This is itself a principle of unsurpassed ugliness.”

Predictably, the article became a favorite reference point for segregationists desperately looking for footholds from which to make their stand.  Bork’s argument also found fertile ground in the new wave of libertarianism spearheaded by Barry Goldwater and his 1964 presidential campaign.  Bork wrote a seventy-five page brief for Goldwater outlining the constitutional infirmities of the civil rights bill.  It likely was influential with Goldwater, who ultimately voted against the Civil Rights Act.

It is worth stopping for a moment to consider exactly why Bork’s argument has rightly earned the condemnation of history.  (When, in 2010, Rand Paul, the newly elected U.S. Senator from Kentucky, attempted to revive some version of Bork’s argument, even his conservative allies told him to find a new issue to talk about.)  It cannot be simply because judges have basically laughed such claims out of court whenever they appeared.  In upholding the public accommodations provision of the Civil Rights Act in Heart of Atlanta Motel v. U.S. (1964), the Supreme Court summarily slapped down an array of long-shot “right to discriminate” claims.  But just because a constitutional claim is not judicially cognizable does not mean that it is necessarily illegitimate in other institutional contexts.  Furthermore, Bork was not wrong to insist that there are certain realms of private life in which government should not tell individuals with whom they can associate—who one invites to a dinner party, for instance, or to a book group or perhaps even to join a private club.  Where Bork was wrong—where he was deeply, dangerously wrong—was in thinking that the operator of a restaurant or hotel or other privately owned public accommodations had some sort of liberty interest that outweighed the government interest in extinguishing the shameful practice of racial segregation from American society.  While the general principle was not wrong, the application surely was.

Thankfully, Bork lost this particular battle.  It is important to recognize, however, that the more general argument in favor of a right to discriminate survived the civil rights movement.  When employed in opposition to the desegregation of public accommodations, the argument failed to gain much adherence outside the Deep South.  Its logic was too tangled, its implications too sweeping, its assumptions about the line between personal associations and public life too implausible in modern American life.  Yet, by the late 1960s, when housing discrimination became a leading issue on the civil rights agenda, this rights claim, so improbable in its other applications, quickly became the argument of choice for open housing opponents throughout the nation.

It was at least partly by design that claims of a right to discriminate were eventually picked up outside the South.  Segregationists embraced the language of individual liberties because it provided a more politically acceptable way in which to resist civil rights, shifting the discussion of civil rights from a question of white supremacy versus equality toward a question of liberty versus equality.  To recognize this turn to the language of freedom and rights was often flagrantly opportunistic and disingenuous does not take away from its effectiveness.  For all the conspicuous failures of the libertarian challenge to civil rights it provided another way in which opponents of civil rights could effectively operate in a post-civil rights movement society.  It provided a language through which conservatives could accept much of what the civil rights movement had accomplished, but also to insist that there should be limits to antidiscrimination policy.  And these limits could be defended using the same tools that conservatives had been cultivating in other contexts: a commitment to limited government and a suspicion that excessive government regulation would lead the nation down a slippery slope to socialism, and a belief that the expansion of government power necessarily diminishes personal liberties. The argument that basic constitutional rights were at stake, that liberty must be championed alongside (or above) equality, opened the possibilities of creating alliances between defenders of segregation in the South and conservatives outside the South.  Although Bork and other proponents of the right to discriminate failed in their effort to block the Civil Rights Act, their libertarian critique provided a potent common ground that helped unite the segregationist cause with conservatives around the country.

Koppelman on Welch v. United States (1970)

Andrew Koppelman, Northwestern University School of Law, has posted The Story of Welsh v. United States: Elliott Welsh's Two Religious Tests, which appeared in First Amendment Stories, ed. Richard Garnett and Andrew Koppelman (Foundation Press, 2011).  Here is the abstract:

Welsh v. United States (1970) presented the Supreme Court with the problem of whether conscientious objector status had to be extended to a person who rejected participation in war as a matter of conscience, but who was an avowed atheist. When it ruled in Welsh’s favor, the Court offered the fullest answer it has yet given to a central constitutional problem: the definition of the “religion” which is protected by the First Amendment. This article, based on extensive interviews with Elliott Welsh, tells his story for the first time. It also sheds light on the perennial problem of discerning the boundaries of the free exercise clause.

Kent on Ex parte Quirin

Andrew Kent, Fordham University School of Law, has posted Judicial Review for Enemy Fighters: The Court's Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case, which will appear in Vanderbilt Law Review 66 (2013); 101.  Here is the abstract:    

Credit: Library of Congress

The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post-9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on a broader, more systemic basis, and to understand its application to future conflicts. A leading precedent ripe for reconsideration is Ex parte Quirin, a World War II-era case in which the Supreme Court held that saboteurs admittedly employed by an enemy nation’s military had a right to access civilian courts during wartime to challenge their trial before a military commission. Even though admitted members of an enemy nation’s military had never before accessed the civilian justice system during wartime, the Court in Quirin declined to explain why it reversed course in such a significant fashion. Since and because of Quirin, it has become accepted that literally any individual present in the United States has a constitutional right to habeas corpus.

Journal of Supreme Court History 38:1

Via H-Law, we have the table of contents for the latest issue of the Journal of Supreme Court History, (38:1):

“Heating Up A Case Gone Cold: Revisiting The Charges of Bribery and Official Misconduct Made Against Supreme Court Justice Robert Cooper Grier in 1854-55,” by Daniel J. Wisniewski

“The Roosevelt Court: The Critical Juncture from Consensus to Dissensus,” by Pamela C. Corley, Amy Steigerwalt, and Artemus Ward

“The Little League Champions Benched by Jim Crow in 1955: Resistance and Reform After Brown v. Board of Education,” by Douglas E. Abrams

“Edward Schempp and His Family,” by Douglas Laycock

"The Story of Kedroff v. St. Nicholas Cathedral," by Richard W. Garnett

"353 Books by Supreme Court Justices," by Ronald K.L. Collins

Abortion and the Ascendancy of Arguments for Choice

The racial politics of abortion partly arises from the current framing of abortion as a right to choose. The ideas of choice and privacy privileged in Roe did not speak to the need for state support of reproductive freedom, either in the form of financial support or protection against coercion. In explaining the persistence of the choice framework, studies tend to focus on Roe itself. The Court framed abortion as a matter of privacy, legitimating arguments based on choice.

As my current project shows, the emphasis put on choice arguments did not follow inevitably from Roe. In the mid-1970s, abortion opponents secured a string of victories, ensuring passage of the Hyde Amendment and winning several cases in the Supreme Court. Mainstream abortion-rights organizations attributed these defeats to the advantages the opposition enjoyed in electoral politics. In crafting a new political strategy, the movement emphasized arguments thought to have the broadest public appeal. The idea of choice, many concluded, had more public support than did the abortion procedure itself.

Conflict about the desirability of a choice-based frame continued throughout the 1970s, as feminist women’s health activists argued for a more comprehensive idea of reproductive freedom. Women, as activist Meredith Tax put it, had a right to have children as well as a right to abortion, and that right required government assistance with health care, child care, protection against sterilization abuse. In the period, women’s health activists criticized the idea of a right to choose. Women, they argued, needed a good deal more than freedom from state intervention.

By 1981, however, even advocates like Tax began to focus more exclusively on abortion and choice-based claims. As Tax saw it, her colleagues had little choice, with Ronald Reagan in the White House and Congress seriously considering statutory or constitutional strategies to overrule Roe. Roe came under constant and serious attack. It simply did not seem realistic to make the kind of nuanced arguments or far-reaching demands that characterized Tax’s reproductive-justice agenda.

The politics of choice in the 1970s and beyond reflected far more than the Court’s own framing of the abortion issue. The meaning and relevance of choice, moreover, set the terms of other battles, including those on conscience clauses and the defense of religious freedom. In fact, in debate about marriage equality and abortion, conscientious refusal today is more relevant today than ever. Why and how this came to be the case will be the subject of a future post.

Bout on "The Creation of Defence in China"

Books & Ideas (the English-language mirror website of La Vie des Idées) has published an interesting essay by Judith Bout (l'École des hautes études en sciences sociales) on "The Creation of Defence in China: Revisiting the Trial of the Gang of Four." Here's a brief summary:

The trial of the Gang of Four, which included Mao Zedong’s wife, took place after the end of the Cultural Revolution, during the winter of 1980-81. In the West, it is usually seen as a show trial; in China it constitutes the founding act of defence, throwing light on the particular way in which contemporary Chinese lawyers focus on technique and impartiality.

And a snippet of the introduction:

Before 1979, the People’s Republic of China had no lawyers except for a brief period of experimentation between 1954 and 1957. The profession was immediately discredited within a Marxist system based on a rejection of the neutrality of law and its servants: defending an enemy of the people was to be an enemy of the people oneself. Most lawyers were categorised as rightists after the Hundred Flowers Campaign in 1957. It was not until August 1980 that defence was established by a provisional regulation.

Before then, no place was given to lawyers in China, particularly considering that trials were a rare occurrence. Most of the sentencing powers were delegated to local Party activists and leaders in self-criticism sessions and struggle sessions in which . . . the population was mobilised against the accused, who were deprived of the right to defend themselves or to be defended. . . . Under such circumstances, how did Chinese lawyers reinvest in that stolen right to defend in order to create a right of defence at the beginning of the 1980s?

Read on here.

Gaughan on the Confiscation of Lee's Estate

Credit: Library of Congress

Anthony Gaughan, Drake University Law School, has posted The Arlington Cemetery Case: A Court and a Nation Divided, which originally appeared in The Journal of Supreme Court History 37 (March 2012): 1-21.  Here is the abstract:

In May 1861, the United States Army seized the Virginia home of Confederate General Robert E. Lee and his wife, Mary Lee. During the Civil War, the Lincoln Administration converted the estate into a refugee camp for runaway slaves and a military cemetery, a burial ground that is known today as Arlington National Cemetery. In December 1882, seventeen years after Lee surrendered at Appomattox, the United States Supreme Court ruled that the federal government had unlawfully seized the Arlington estate without paying just compensation to the Lee family. It further held that the doctrine of sovereign immunity did not bar the Lees from bringing suit to vindicate their legal title to the property. In the aftermath of the Supreme Court’s ruling, Congress reached a settlement agreement with the Lee family. Arlington National Cemetery has remained the lawful property of the United States ever since. The Supreme Court’s ruling in United States v. Lee made clear that the Constitution is not suspended in wartime. At all times, legal and constitutional limits govern the exercise of official power. This article tells the story of United States v. Lee and places the case in historical context.

The Selden Society's David Yale Prize

[We have the following announcement via H-Law.]

The Selden Society hopes to award again in 2013 its David Yale Prize.  The Prize is for an outstanding contribution to the history of the law of England and Wales.  The previous age requirement, that it be by a scholar under the age of 35, is being relaxed but the intention of the prize remains:  to encourage younger researchers and also those new to the field to engage in and produce substantial new work.  In previous years a prize of £1,000 sterling has been awarded. For further details please contact the Secretary, Selden Society, School of Law, Queen Mary University of London, Mile End Road, London E1 4NS, England.

Kaczorowski's Fordham University School of Law: A History

A copy of Robert J. Kaczorowski's Fordham University School of Law: A History (Fordham University Press, 2012), has just landed on my desk.  As a fellow writer of a law school history, I dipped in at once.  Even a cursory reading shows that it transcends the usual limitations of the genre, so memorably described by Alfred S. Konefsky and John Henry Schlegel, to become not just the biography of an institution but a contribution to the history of legal education.  (If, as Michael Grossberg writes, "Histories of individual law schools tend more toward the celebratory than the cerebral," Kaczorowski has bucked the trend.)  William Nelson, NYU Law, lists three such contributions: (1) “it documents why large numbers of late nineteenth and early twentieth-century immigrants and their children needed the founding of Catholic law school”; (2) “it documents the factors that produce greatness in a law school”; and (3) “it traces a conflict over the funding of law schools.”

I’ll add that the book contributes to the Catholic and Jesuit (as we also say here at Georgetown) response to the legal realists, on which the starting point is still Edward Purcell’s Crisis of Democratic Theory.  Further, the third contribution Nelson identifies is especially timely as law faculties, responding to the decline in the market for their graduates, decrease class sizes and adopt other measures that call for reconsideration of transfer payments from law schools to the rest of their universities.  By showing how the fiscal policies of Fordham's administrators sent the law school into a decline after World War II, Kaczorowski provides an important object lesson for today's law deans and university presidents.  (Danielle Citron has made the same point over at Concurring Opinions.)

Here’s the press’s description:

In this engaging, erudite new book, Robert J. Kaczorowski, director of the Condon Institute of Legal History, immerses readers in the story of Fordham Law School from the day it opened its doors in 1905 in the midst of massive changes in the United States, in the legal profession, and in legal education. Kaczorowski explores why so many immigrants and their children needed the founding of Catholic law schools in order to enter the legal profession in the first half of the twentieth century. He documents how, in the 1920s and 1930s, when the legal profession’s elites were actively trying to raise barriers that would exclude immigrants, Dean Wilkinson and the law faculty at Fordham were implementing higher standards while simultaneously striving to make Fordham the best avenue into the legal profession for New York City’s immigrants.

Tracing Fordham Law School’s history in the context of developments in legal education over the course of the twentieth century, this book pinpoints those factors that produce greatness in a law school and those that contribute to its decline. Fordham University School of Law: A History shows and explains why, prior to World War II, Fordham was one of the leading law schools in America and, along with Columbia's, one of the top two law schools in New York City. As one of those leading schools, Fordham was in the vanguard of legal education reform, and its faculty made important contributions to legal scholarship.

Fordham University School of Law: A History also reveals that, after World War II, the Law School suffered a decline, primarily because of inadequate funding resulting from the university’s fiscal policies. These policies brought the university’s administration into direct conflict with the American Bar Association (ABA) and the Association of American Law Schools (AALS), which consistently observed that the Law School was being starved for funds compared with its peer schools, with the result that peer law schools were improving their quality while Fordham was in decline. The conflict, which did not approach resolution at Fordham until the last quarter of the century, was replicated throughout legal education, especially in Catholic universities—yet this is the first scholarly work to document and explain it.

Kaczorowski’s wonderfully contextualized, meticulously documented history of Fordham Law School brings readers right up to the present day and traces how the Law School, with the unprecedented financial support and active involvement of its alumni, is resuming its prior position as one of the nation’s leading law schools.

Roe and the Racial Politics of Abortion

Claims about race, racism, and abortion represent one of several historical arguments recently emphasized by abortion opponents (see, e.g., Tracy Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle U. L. Rev. 1 (2012)).  In the case of race, activists debate the legacy left to contemporary discussion by Margaret Sanger and the early family planning movement. But as I argue in an article forthcoming in the Yale Journal of Law and Feminism, the politics of race immediately before and after Roe, however, defy any of the simple explanations on offer in current debate. For many, concerns about abortion as a means of “black genocide” were real. Thea Rossi Barron, the head lobbyist for the National Right to Life Committee, told me about the assistance that Jesse Jackson offered her in lobbying for the Hyde Amendment. Jackson worried about the ties between the movements for population control and abortion, particularly, the sterilization abuse epidemic revealed to have taken place in the late 1960s and 1970s. Women of color like Shirley Chisholm or Frances Beale instead responded to concerns about black genocide by demanding both abortion rights and protection against sterilization abuse, and many black and Chicana women worked within the mainstream movement to reform abortion laws.

Just the same, concerns abortion and racism reflected real social changes: the emergence of the black power movement and its new expression of protest and dissent, the rise of a feminist women’s health movement suspicious of the medical establishment, and the challenges to the role of population politics in the reproductive-rights movement. Even in the 1970s, opposing activists contested the history of race and abortion. Abortion-rights activists reframed their cause and its history, denying its connection to population control and stressing the importance of self-determination for women. Abortion opponents offered a very different historical narrative, highlighting arguments or players shared by the movements for eugenics, population control, and abortion rights.

In dialogue with one another, those on each side offered a highly politicized and oversimplified account of past reproductive politics. As Khiara Bridges has shown, social constructions of race continue to play an important role in access to reproductive health care (see Khiara Bridges, Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization (Berkeley: University of California Press, 2011)). We should not be surprised by this, given the uses of history in the abortion debate. The full picture of the racial politics of abortion is a large and complex one, and current debate offers little room for nuance of any kind.

Confronting the Khmer Rouge, Britain's Far Right, and More: This Week in the Book Pages

This week in the New York Times, Belinda Cooper reviews Francois Bizot's Facing the Torturer (Knopf).  Bizot was the only Westerner to be released from Khmer Rouge captivity, and the book is his "attempt to come to terms with" his testimony in 2010 in Cambodia's war crimes tribunal against one of his captors.  "In the end," Cooper writes, "he fails to provide us with any new information beyond his own feelings, and his conclusions add little to the existing literature on mass crime, the nature of evil or the complexities of human behavior."  Read on here.

At TNR: The Book Yelena Akhtiorskaya reviews Former People: The Final Days of the Russian Aristocracy (Farrar, Straus, and Giroux) by Douglas Smith.  TNR: The Book also has a review of Bloody Nasty People: The Rise of Britain's Far Right (Verso), and a review of Kevin Dutton's The Wisdom of Psychopaths: What Saints, Spies, and Serial Killers Can Teach Us About Success (Farrar, Straus, and Giroux).

In The Nation you'll find a review of Lisa Cohen's All We Know: Three Lives (Farrar, Straus, and Giroux), Chris Lehmann reviews Brigham Young: Pioneer Prophet (Belknap) by John G. Turner, and Tara Zahra reviews R.M. Douglas's Orderly and Humane: The Expulsion of the Germans After the Second World War (Yale).

In the Washington Post, Tim Page reviews David Schoenbaum's The Violin: A Social History of the World's Most Versatile Instrument (W.W. Norton), and Thane Rosenbaum reviews Isaac's Army: A Story of Courage and Survival in Nazi-Occupied Poland (Random House) by Matthew Brzezinski.

On the Wall Street Journal's list of "The Best Non-Fiction of 2012": Anne Applebaum's Iron Curtain: The Crushing of Eastern Europe, 1944-1956 (Doubleday), The Endgame: The Inside Story of the Struggle for Iraq, from George W. Bush to Barack Obama (Pantheon) by Michael R. Gordon and Bernard E. Trainor, Thomas McCraw's The Founders of Finance: How Hamilton, Gallatin, and Other Immigrants Forged a New Economy (Harvard), and more.

CFP: Australian and New Zealand Studies Association of North America

ANZSANA (Australian and New Zealand Studies Association of North America) will hold its 20th annual conference at Georgetown University, Washington, DC. ANZSANA is a multidisciplinary organization and welcomes papers on any aspect of Australian or New Zealand studies as well as comparative studies involving Australia, New Zealand, and North America. It welcomes proposals for individual papers as well as proposals for panels by groups of scholars. ANZSANA welcomes submissions from graduate students and may be able to provide scholarships to defer conference expenses.

The DEADLINE for submission of paper and panel proposals is 31 December 2012. . . . Paper proposals must include the author's name, institutional affiliation, curriculum vitae, paper title, and an abstract of no more than 500 words. They must be attached to an email as either a Word or PDF document. Panel proposals must include similar information for each of the proposed papers. Please send all proposals to Patricia O'Brien at pao4@georgetown.edu.

ANZSANA will meet simultaneously with the American Association of Australian Literary Studies (AAALS). The conference registration fee is $200.00 (either US or CD) or $140 for graduate students. The formal banquet dinner on Friday, February 15 is an additional $90. The Georgetown Marriott Hotel (1-888-902-1606 or 202 687 3200) is offering attendees a special rate at of $129/night (plus taxes) so long as they book before Tuesday, 15 JANUARY 2013 and indicate their affiliation with the conference at the time of booking. More information on ANZSANA, including conference updates and registration information, will become available here.

Weekend Roundup

• What do you think is the best history book of 2012? History News Network wants to hear from you!

•  The Junto is a new group blog on Early American Legal History. We welcome it to the blogosphere! (hat tip: H-Law)

• The Daniel R. Coquillette Rare Book Room, located in the Boston College Law Library, announces its acquisition of "a 1693 edition--the first in Latin--of A Book of Entries, from Richard Brownlow (1553-1638), chief protonotary of the court of common pleas." Read more here.

• Registration is now open for the 2013 meeting of the Organization of American Historians. Register early for discounted rates.

• Not a lot of legal history in the University of Chicago law faculty's list of "the last good book" they read, although Mary Ann Case named Hendrik Hartog's "Someday All This Will Be Yours."

• Paul Caron tells us that according to the "quarterly traffic rankings (page views and visitors) of the Top 35 blogs edited by law professors with publicly available SiteMeters for the most recent 12-month period (October 1, 2011 - September 30, 2012)" LHB is ranked 25th, with a bullet.  Thanks for your readership!

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

Rechtskulturen: A Legal History Postdoc in Berlin

[We have the following announcement for an interesting postdoctoral program in Berlin.]

The Berlin-based Postdoctoral Program Rechtskulturen: Confrontations beyond Comparison invites scholars to apply for seven postdoctoral fellowships for the academic year 2013/2014.

Rechtskulturen (‘legal cultures’) is a Berlin-based postdoctoral research program which is designed to explore the law in new and innovative ways.  We intend to create a space of reflection and communication where fundamental and salient questions of the law and its context(s) can be re-negotiated from a variety of disciplinary and regional perspectives, and re-connected with jurisprudence and legal methodology.

As a central element of the Berlin research network Recht im Kontext (‘law in context’) based at the Wissenschaftskolleg zu Berlin, Rechtskulturen aims at re-contextualizing established understandings of law by transcending the scope of comparative legal studies and international law. It is designed to enhance a re-location of law among its neighboring disciplines—the humanities, the cultural and social sciences—, and can thus allow affiliated scholars, fellows and faculty to develop innovative research agendas in transregional constellations beyond a European or Anglo-American focus. The program addresses scholars from a variety of disciplinary backgrounds, regional contexts and academic fields of discourse. In Berlin, the postdoctoral fellows will work on projects of their own choice. The program’s scholarly environment is designed to enable and to encourage both fellows and the wider community to explore and create new orientations in their transdisciplinary research on law.

The program Rechtskulturen is directed by Susanne Baer (Bundesverfassungsgericht/Humboldt-Universität), Christoph Möllers (Humboldt-Universität/Wissenschaftskolleg zu Berlin) and Alexandra Kemmerer (Wissenschaftskolleg zu Berlin), and is supported by an international group of scholars.

Applicants should be at the postdoctoral level and should have obtained their doctorate within the last five years before their application to the program. We welcome candidates with various disciplinary backgrounds, such as the field of legal studies, sociology, political science, philosophy, history, anthropology, theology, and area studies, representing a broad range of diverse approaches to the law, including gender studies, comparative research, law & literature, critical legal studies, administrative sciences, transitional justice, postcolonial theory, and legal philosophy and theory. In particular, we encourage applicants with a firm disciplinary background in law to engage in reflexive and transdisciplinary research.

For the academic year 2013/2014, we welcome in particular applicants interested in the law’s place in systems of knowledge and knowledge production (e.g. its relation to science, theology, philosophy, philology), in legal methodologies, in the law as a professional field, and in law in professional practices. We strongly encourage applications from scholars analyzing the law in various cultural contexts, engaging with confrontations beyond comparison.

Candidates should demonstrate their strong interest and innovative approaches to engage with the law. Rechtskulturen fellows are expected to participate in the regular Rechtskulturen Colloquium series, as well as in workshops, conferences and seminars organized by the program and the overarching project Recht im Kontext. The program seeks to create a context of intellectual synergy, where scholars from various disciplinary and regional backgrounds can work together comparatively (and confrontational) and develop a common language necessary for intra- and transdisciplinary exchanges and for an engagement with fundamental questions of the law and its cultural and political entanglements.

We encourage and welcome applications from all regions of the world.  Especially candidates from Latin America, the Middle East, Africa and Asia are strongly encouraged to apply.  Fellows are given the opportunity to pursue their individual research projects within a transdisciplinary and transregional context. During the fellowship in Berlin, they will be associated with the Faculty of Law at Humboldt-Universitat. In the overall context of the program Rechtskulturen and the framework of the Forum Transregionale Studien, they will be part of a vibrant discursive environment.

To apply, please make use of our web-based electronic application procedure that will be open for applications from 10 January 2013 to 24 January 2013 (24:00 CET).

More information here.

Latin American Legal History: An ASLH Workshop

[We have the following call from the American Society for Legal History.]

The American Society for Legal History (ASLH) invites paper submissions for its first annual ASLH Workshop, which will be held immediately preceding the ASLH annual meeting in Miami/Fort Lauderdale (Nov. 7-10, 2013).  The workshop is sponsored by ASLH to promote scholarship in areas of legal history that have been traditionally underrepresented at ASLH meetings and in the Law and History Review.  This year’s workshop topic is Latin American Legal History.  (Workshop topics will rotate on an annual basis.)  The ASLH Legal History Workshop will bring together authors and noted scholars in the field in order to work collaboratively toward refining scholarly writing.  An important objective of the workshop is encouraging scholarly conversations among historians of legal systems from a broad range of historical periods and places.

In order to keep the workshop size small, only four to five papers will be selected from among responses to this general call.  Each selected paper will be assigned one commentator who will prepare substantive feedback about the structure, organization, methodology, and theoretical approaches of the paper.  All papers will be pre-circulated to participants and to commentators in advance of the workshop and must be read prior to the workshop meeting.  Authors will not present their papers.  At the workshop, each commentator will be given half an hour to discuss his/her assigned paper, followed by an hour of general discussion in the larger group.  In this way, each individual author will receive feedback from all the participants of the workshop.  ASLH will provide limited funding for travel expenses and accommodations for authors of selected papers.  (Participation in the ASLH Legal History Workshop does not preclude individuals from presenting at the ASLH annual meeting.)

We invite submissions that engage any aspect of Latin American legal history from scholars at any point in their academic careers.  Interested authors should submit their work-in-progress papers to aslh.workshop@gmail.com on or before April 1, 2013.  Papers should include complete contact information and should not exceed 15,000 words (including footnotes).  Papers in Spanish or other languages will be considered if an abstract (one to two pages) is included in English.  Submissions must not have already appeared in print or have been accepted for publication.  Authors of selected papers will be informed on or before May 30, 2013.  Please direct questions to the ASLH Workshop Coordinator: Lena Salaymeh, Robbins Post-Doctoral Fellow (lenas@law.berkeley.edu).

By participating in the workshop, authors agree to revise their papers thoroughly and to submit them for publication consideration (i.e. blind peer review) with Law & History Review on or before February 1, 2014.  (Submissions to Law & History Review should be not more than 12,000 words, including footnotes.)  Upon peer review approval, Law & History Review will publish the papers either together (in an issue dedicated to Latin American legal history) or separately.  Authors participating in the Workshop consent to publishing in Law & History Review, even if publication delays occur.  However, participation in the ASLH Workshop is not a guarantee of publication in the Law & History Review.  (Also, the ASLH Workshop organizers and the Editor of Law & History Review cannot guarantee a specific publication date.)

Roe, Women's Rights, and Population Control

As abortion opponents held different goals for movement incrementalism, before and after Roe, abortion-rights supporters had strikingly different identities and priorities. One issue, particularly explosive in contemporary historiography, involves the role of population-control politics in the pre- and post-Roe movement. As I have shown, population-control arguments played an important part in the pre-Roe rhetorical strategy of the movement (see Mary Ziegler, The Framing of a Right to Choose: Roe v. Wade and The Changing Debate on Abortion Law, 27 Law and History Review 272 (2009)). Abortion-rights pamphlets from the 1970s often highlight the benefits of legalizing abortion: the reduction of welfare costs, illegitimacy rates, and overall population growth. Movement leaders like Larry Lader and Richard Bowers worked within the population control movement. Others, like Judy Senderowitz, the feminist leader of Zero Population Growth, combined commitments to curbing population growth and legalizing abortion.

The meaning of the abortion-movement’s relationship to demands for population control was anything but straightforward, however. In the 1970s, population controllers themselves were diverse. Reva Siegel and Linda Greenhouse describe the commitment to sexual freedom evident in the work of organizations like Zero Population Growth, Inc. Donald Critchlow and Matthew Connelly have traced the movement’s ties to past demands for eugenic legal reform and government control of reproduction. Throughout the 1970s, different constituencies contested the identity and values of their movement. Some rifts tended to be generational. Older leaders more often had ties to earlier eugenic organizations or shared concerns about the relationship between population growth in the Third World and cold war politics. College students, by contrast, viewed the population control movement as a rallying cry for environmental stewardship, sexual freedom, and responsible childbearing within the white middle class.

Struggle about the meaning of the population control cause bled into battles within the abortion-rights movement. Were arguments for abortion based on population control merely politically expedient, or did these claims instead reflect the substantive beliefs of members of the abortion-rights movement? Were population arguments inherently incompatible with claims that abortion was a fundamental right for women? Gradually, feminists took positions of leadership and downplayed claims based on population control, at times, denying that related arguments had ever played a part in abortion rights advocacy. Significantly, the abortion-rights movement began rewriting its own history and the history of the population-control movement. Population control, in this account, involved government control over reproduction, something that a feminist abortion-rights movement had never endorsed. Perhaps the most controversial issue in this new narrative involved race and abortion, a subject I will take up next.

Medema on the Coase Theorem and the Legal Academe

Steven G. Medema, Department of Economics, University of Colorado-Denver, has posted Debating Law's Irrelevance: Legal Scholarship and the Coase Theorem in the 1960s.  Here is the abstract: 

This paper examines the diffusion of Coase’s negotiation result -- now better known as the 'Coase theorem'--in the legal literature during the 1960s, with particular attention paid to the challenge that this result posed for received legal thinking, how the it related to far older attempts to bring economic thinking to bear on the law, how legal scholars utilized it in their analysis, and how the treatment of this result by legal scholars compares to that accorded it by economists during this formative stage in the Coase theorem’s history. What will emerge, in the end, is an enhanced understanding of how the Coase theorem came to have a place in legal scholarship, as well as some additional insight into this neglected epoch in the history of the economic analysis of law.

 Medema has also posted Juris Prudence: Calabresi's Uneasy Relationship with the Coase Theorem.

Dressler on Dudley and Stephens, Again

Joshua Dressler, Ohio State Law, has posted Reflections on Dudley and Stephens and Killing the Innocent: Taking a Wrong Conceptual Path, which will appear in The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams, ed. Dennis J. Baker and Jeremy Horder (Cambridge University Press, 2013),  Here is the abstract:  

In this chapter I argue that the famous "lifeboat" case of Dudley and Stephens was wrongly decided because Lord Coleridge failed to distinguish between the criminal law defense concepts of justification and excuse; and Professor Glanville Williams, in his critique of the case, also failed to focus on this important distinction.

New Release: Weil, "The Sovereign Citizen"

New from Penn Press: Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic. It is part of the Democracy, Citizenship, and Constitutionalism Series, edited by Rogers M. Smith and Mary Dudziak.

Here's a description, cribbed from the Press's website:

Present-day Americans feel secure in their citizenship: they are free to speak up for any cause, oppose their government, marry a person of any background, and live where they choose—at home or abroad. Denaturalization and denationalization are more often associated with twentieth-century authoritarian regimes. But there was a time when American-born and naturalized foreign-born individuals in the United States could be deprived of their citizenship and its associated rights. Patrick Weil examines the twentieth-century legal procedures, causes, and enforcement of denaturalization to illuminate an important but neglected dimension of Americans' understanding of sovereignty and federal authority: a citizen is defined, in part, by the parameters that could be used to revoke that same citizenship.

The Sovereign Citizen begins with the Naturalization Act of 1906, which was intended to prevent realization of citizenship through fraudulent or illegal means. Denaturalization—a process provided for by one clause of the act—became the main instrument for the transfer of naturalization authority from states and local courts to the federal government. Alongside the federalization of naturalization, a conditionality of citizenship emerged: for the first half of the twentieth century, naturalized individuals could be stripped of their citizenship not only for fraud but also for affiliations with activities or organizations that were perceived as un-American. (Emma Goldman's case was the first and perhaps best-known denaturalization on political grounds, in 1909.) By midcentury the Supreme Court was fiercely debating cases and challenged the constitutionality of denaturalization and denationalization. This internal battle lasted almost thirty years. The Warren Court's eventual decision to uphold the sovereignty of the citizen—not the state—secures our national order to this day. Weil's account of this transformation, and the political battles fought by its advocates and critics, reshapes our understanding of American citizenship.

And a few blurbs:

"One of the world's leading experts on nationality brilliantly explores past campaigns to strip Americans of their citizenship. Patrick Weil reveals how both bureaucratic rigor and national security zeal threatened citizenship rights, and points to important lessons for twenty-first century debates."—Gerald Neuman

"In this masterful and timely book, Patrick Weil plunges deep into rarely used archives to write a new history of the shaping of American identity in the twentieth century, all the more important as we now debate the reform of immigration law. This story of belonging and exile has its heroes —defenders of civil liberties who deserve to be better known—and its scoundrels. Unlike many histories, it has a heartening conclusion." —Linda K. Kerber

The TOC is available here. 

H.L.A. Hart in Conversation with David Sugarman

[We have the following announcement of a fascinating oral history of H.L.A. Hart.]

Oxford University Press has digitalised the audio version of David Sugarman's (Lancaster University Law School, UK) interview with H.L.A. Hart of 1988 and posted it on the Web as part of the 50th anniversary celebrations marking the publication of Hart's Concept of Law and a new (third, 2012) edition.  

The interview delineates the particulars of Hart's life and work: his background, early education, and undergraduate studies; learning law, practising at the Bar, and journalism; working in military intelligence; the early years as a philosophy don and the principal philosophical influences that shaped his work; and the state of Oxford jurisprudence in the 1940s and 1950s. It then addresses Hart's work and ideas between 1945 and the 1980's: his appointment to the Chair of Jurisprudence at Oxford; the Hart-Fuller Debate and his year at Harvard; the writing of Causation in the Law and The Concept of Law; the 1950's, the Cold War, and the 1960's; "The Hart-Devlin Debate"; and what Hart called, "the Thatcher world". The interview also illuminates Hart's work beyond legal and political philosophy - the seminars to Labour Party groups on closing loopholes in the tax law; and the duties he undertook for the Monopolies Commission (1967-73) and the Oxford University Committee on Staff-Student Relations (the "Hart Report", 1968-69). The interview includes Hart's assessment of Bentham, Nozick and Dworkin, a general discussion of the virtues and limitations of sociology, sociological jurisprudence and analytical jurisprudence, of legal education, and the relationship between university legal education and the legal profession. A succinct summary of Hart's contribution to legal philosophy brings the interview to a close. 

An edited version of the interview was published as: "Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman", (2005) 32 Journal of Law and Society pp. 267-293.  The audio version of the interview, and a blog about the interview, can be accessed here.

The Rise of Pro-Life Incrementalism

As Roe’s fortieth anniversary approaches, scholars have offered new perspectives on the efficacy of pro-life incrementalism. As framed by the movement, incrementalism involves a focus on small victories—legislation restricting but not banning abortion. Incrementalists themselves claim to be making significant headway, pointing to the proliferation of restrictions on abortion in the states, several of which the Supreme Court has upheld. By contrast, in a forthcoming piece, by contrast, Caitlin Borgmann argues that incrementalism has failed to deliver on its promise to change hearts and minds.

Whether incrementalism is succeeding, of course, depends on what its proponents have set out to achieve. In my current project, I explore the roots and rise of antiabortion incrementalism as an overarching strategy in the 1970s. Early incremental efforts came primarily in the courts, as organizations like Americans United for Life argued that new restrictions on abortion did not violate the right set out in Roe. In the late 1970s, activists like James Bopp, Jr. and Sandra Faucher saw great potential in an incremental approach. Bopp, a Catholic attorney from Indiana, told me about his instinctual aversion to abortion as an overarching philosophy for the movement. Faucher, a liberal Democrat from Maine, described her natural discomfort with Phyllis Schlafly. In spite of their differences, the two played an important part in making incrementalism a philosophy, a strategy, and a battle cry. Small victories could energize a movement disillusioned by the continuing failure of the human life amendment and could dramatically limit access to abortion. As importantly, incrementalism could make Roe hollow and incoherent—protecting an abortion right that guaranteed little access to abortion. Between 1973 and 1983, the antiabortion movement had worked to create a right to live that would reach beyond the abortion context. Incrementalism defined a much more modest goal—the overruling of Roe.

Measuring the efficacy of incrementalism is a delicate business, for even in the 1970s, proponents disagreed about what the incrementalist project entailed. Incrementalists adopted different substantive aims and rhetorical strategies. Even as an overarching strategy, incrementalism sent conflicting messages. Its proponents often adopted the rhetoric of new movement allies in the Religious Right and New Right while urging movement members to focus primarily on compromise solutions that would limit abortion without banning it entirely. The complexity of incrementalism points out some of the challenges in measuring whether there was indeed a backlash to Roe and whether reaction to the decision was particularly costly to the abortion-rights movement. Those incrementalists from whom I took oral histories never tired of reminding me of how they defied easy categorization, and they were right.

ASLH Calls for Nominations: Honorary Fellows

Via H-Law, we have the following announcement from the American Society for Legal History:

Call for nominations - Honorary Fellows of the American Society for Legal History

The ASLH Honors Committee invites members of the society to submit the names of persons whom they consider appropriate for election as Honorary Fellows of the society.  Names should be accompanied by brief (200 word) statements of support. Member nominations should be submitted confidentially to the Chair of the Honors Committee, Chris Tomlins.  They must be received no later than March 31st 2013.

Following the close of nominations the Honors Committee will consider all member nominees, along with nominations proffered by members of the Honors Committee itself.  Following the close of deliberations the Committee will proceed to prepare and submit up to three fully documented recommendations for approval by the Board of Directors during the summer months.  Elected fellows will be inducted at the Society's annual meeting.

Honorary Fellows are elected by the ASLH Board of Directors on the recommendation of the Society's Honors Committee.  The Honors Committee considers as eligible nominees all those scholars who should be honored for their scholarship and contribution to the field of legal history whatever their affiliation and wherever situated world-wide.  The only limitation is that no more than three Honorary Fellows may be elected in any given year.

Further information about the Society's Honorary Fellows can be found on the ASLH web page.

Wagner reviews two books on Alberico Gentili's Theory of International Law

In the latest issue of the European Journal of International Law, Andreas Wagner (University of Hamburg) reviews Alberico Gentili, The Wars of the Romans. A Critical Edition and Translation of De Armis Romanis (edited by B. Kingsbury and B. Straumann: translated by D. Lupher) and B. Kingsbury and B. Straumann (eds), The Roman Foundations of the Law of Nations. Alberico Gentili and the Justice of Empire. Here's the abstract:

This review discusses two recent publications – a critical edition of a primary source and a collection of essays – around the Theory of International Law of Alberico Gentili (1552–1608). On the one hand it examines Gentili’s interest in ancient Rome and how he used it as a paradigmatic case of imperial order. But on the other, it questions our own interest in Gentili’s work. In line with Gentili’s own focus on questions of justice, it not only shows that Gentili presents us with his own complex blend of political responsibility and natural law, but highlights structural features and possible blind spots of his ‘natural/private law’ paradigm that might apply also to current suggestions of how to organize international law.

The full text is available here.

Hat tip: bookforum

Ringhand on Frankfurter's Confirmation Hearing

Lori A. Ringhand, University of Georgia School of Law, has posted Aliens on the Bench: Lessons in Identity, Race and Politics from the First 'Modern' Supreme Court, which originally appeared in Michigan State Law Review 2010: 795-835.  Here is the abstract:    

Every time a Supreme Court vacancy is announced, the media and the legal academy snap to attention. Even the general public takes note; in contrast to most of the decisions issued by the Court, a majority of Americans are aware of and have opinions about the men and women who are nominated to sit on it. Moreover, public opinion about the nominee has a strong influence on a senator's vote for or against the candidate. If the confirmation hearing held before the Senate Judiciary Committee is largely an empty ritual, why do so many people seem so enthralled by it? Obviously, who sits on the Court matters, but why is the hearing itself important? The premise of this Article is that the confirmation process-or, more precisely the confirmation process of nominees perceived as racial outsiders-matters in part because such confirmations provide a high profile arena in which we as Americans fight to constitute our national identity. While all Supreme Court confirmations provide a platform for our ongoing debates about constitutional values, confirmations of racial outsiders do more. They provide a forum in which a more fundamental, and certainly more visceral, question arises: just who are "we the people"? I open my examination of these issues by looking at the confirmation of Felix Frankfurter. Frankfurter's was our first truly modem confirmation hearing: it was the first at which both the nominee and the witnesses provided unrestricted testimony, in an open session, exposed to the full glare of a highly-interested media. It also, perhaps not coincidentally, involved a nominee who was perceived at the time as a racial outsider.

Pro-Lifers, Legal History, and Judicial Activism

Election seasons tend to prompt discussion not just about party realignment but also what would happen if Roe v. Wade were overruled. The central role played by Roe in federal judicial nominations has attracted more than its fair share of criticism, and the likely outcome of Roe’s overruling seems predictable enough. The Guttmacher Institute recently put out an explanation of what state abortion policy would dictate in the absence of Roe. All of this, however, tends to ignore what would happen if abortion opponents actually won, since the movement has long endorsed more than the overruling of Roe. As I explore in my current project, antiabortion constitutionalism in the decade after Roe was far more ambitious, proposing the recognition of a right to live rooted in natural law, in the Declaration of Independence, in international human rights principles, and even in pre-Roe substantive due process cases.

Now, we tend to associate antiabortion constitutionalism with the judicial politics of the Right—with commitments to originalism and judicial activism. In the aftermath of Roe, abortion opponents remained skeptical about the idea of originalism (as late as 1977, activist and Fordham Professor Robert Byrn explained that the movement did not need to take a position on the question of judicial activism). Antiabortion attorneys themselves were diverse. Some, like Kenneth Vanderhoef, a Seattle attorney who had represented a local Catholic diocese, believed their religious and professional obligations to be inextricably connected. Others defined themselves as liberals, Reform Jews, or human rights attorneys.

In spite of this diversity, movement members agreed on the broad outline of constitutional change that was strikingly similar to the one promoted by abortion-rights activists in the lead-up to Roe (see David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley: University of California, 1998)). Both constitutional agendas urged the courts to protect an unenumerated right from popular interference and contended that this right represented a logical extension of existing substantive due process law. Something changed, of course, with the advent of the Reagan Administration and the revival of attacks on judicial activism in the early 1980s. Largely for strategic reasons, abortion opponents began framing their own objections as concerns about judicial overreaching, but this shift came for strategic rather than for substantive reasons. Whether abortion opponents changed their ultimate goal or merely adopted a different approach in it, by 1980, incrementalism, a subject that I hope to address in a future post, was already on the rise.