All posts by Kelsey Salvesen

An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson

Studies in Legal History (SLH) is pleased to share with our readers an exchange between Robert W. Gordon and William Nelson on critical legal studies. This exchange, of interest to legal historians, was not included in SLH’s publication of Gordon’s collected essays because of its nature as a dialogue between the two scholars, rather than a free-standing work by Gordon. However, we recognized the import of this interchange as it intersects with Gordon’s work and issues of great moment to the field, so we are making it available here (click the link below to read the exchange as a PDF). You can also read more about Gordon’s recent publication with the series, Taming the Past: Essays on Law and History and History in Law (Cambridge University Press, 2017) here.

Gordon-Nelson Exchange-1

 

Impeachment: The Constitutional Problems: Who Said That a 44 Year-Old Monograph Can’t Be Relevant?

R. B. Bernstein, City College of New York

In today’s atmosphere of constitutional sturm und drang, many are revisiting the 1972-1974 Watergate crisis, which forced President Richard M. Nixon to resign. The Studies in Legal History series played a supporting role in that crisis by publishing Raoul Berger’s Impeachment: The Constitutional Problems (1973). Impeachment made Berger a major figure in the impeachment debates. His stature as a leading constitutional scholar and a progenitor of originalist jurisprudence was evident then, and only grew over time.

Born in 1901 in the Ukraine, Berger came to the United States with his family in 1904. After a career as a violinist, he graduated from the University of Cincinnati and the Northwestern University School of Law, earning his LL.M. from the Harvard Law School. Following a legal career in government service and private practice, he taught at the University of California, Berkeley, Law School and became Harvard’s Charles Warren Senior Fellow in Legal History.

In the 1960s, Berger launched a second career as a constitutional historian. In his first book, Congress vs. the Supreme Court: An Exercise in Dialectic (1969), he analyzed the nature of congressional power over the Court’s jurisdiction. In his next book, Berger worked to develop law-review articles on impeachment that he had published in the 1960s into a book. Working closely with Stanley N. Katz, the first editor of Studies in Legal History, Berger crafted a formidable study focusing on impeachment in early modern England, which he identified as the key influence on the Constitution’s framers. The 1968-1970 controversies over Republican efforts (secretly backed by President Nixon) to impeach Justices William O. Douglas and Abe Fortas drove Berger’s interest. So, too, did the James Madison biographer Irving Brant, who responded to the Douglas and Fortas controversies by publishing Impeachment: Trials and Errors (1972).

Berger’s book dwarfed Brant’s in its scholarship, but they also differed on three substantive points. First, Berger maintained that impeachable offenses were not limited to indictable felonies but also included violations of the constitutional system’s central principles. Second, Berger claimed, an impeachment proceeding could be subject to judicial review. Third, he insisted, those concerned with judicial misconduct, incompetence, or corruption could forgo the unwieldy mechanism of impeachment and use instead the common-law writ of scire facias to remove federal judges – a remedy more legitimate than manipulation of courts’ dockets to keep cases away from judges deemed incompetent or unfit.

Berger’s argument for a broader understanding of impeachable offenses shaped the core of the controversy over impeaching Nixon. Rep. Peter J. Rodino (D-NJ), who chaired the House Judiciary Committee, reportedly was so fearful of fanning speculation about impeachment that he removed the jacket of Berger’s book while reading it, so that others would not see what he was reading.

Berger’s scholarship fueled the impeachment inquiry against Nixon in other ways. The House Judiciary Committee published an anthology, Impeachment: Selected Materials (1973), featuring Berger’s law-review article on impeachable offenses, the most influential argument of his Studies in Legal History volume. Also, Bantam issued mass-market paperback editions of Congress vs. the Supreme Court, Impeachment: The Constitutional Problems; and Executive Privilege: A Constitutional Myth (1974), a trilogy that Garry Wills praised as “one of the scholarly landmarks of our time.”

Berger’s subsequent work defined a new direction for constitutional scholarship. In a series of combative monographs, beginning with Government by Judiciary: The Transformation of the Fourteenth Amendment (1977), and including studies of federalism and the death penalty, Berger used originalist methodology to challenge much of modern constitutional jurisprudence’s orthodoxy. Many former admirers challenged him on methodological and substantive issues; Berger fired back in what seemed to his critics to be endless law-review articles. He died in 2000.

Impeachment: The Constitutional Problems has lasted the longest of his books – but it has not gone unchallenged. In Impeachment in America, 1635-1805 (1984), historians Peter Charles Hoffer and N.E.H. Hull paralleled Berger’s conclusions about the meaning of impeachable offenses but disputed Berger’s emphasis on English sources; insisting that historians seeking to understand the development of impeachment in America had to consider American colonial, revolutionary, and early national sources.

Still, as it did during the 1998-1999 controversy over impeaching President Bill Clinton, Raoul Berger’s landmark study is again finding readers, as the nation considers whether the words and deeds of another president merit impeachment. Not bad for a 44-year-old monograph in a scholarly book series devoted to legal history.

 

Picture of Raoul Berger sourced from Liberty Fund (http://oll.libertyfund.org/titles/berger-government-by-judiciary-the-transformation-of-the-fourteenth-amendment).

Secession on Trial: The Treason Prosecution of Jefferson Davis

Cynthia Nicoletti. Forthcoming from Cambridge University Press in August 2017. Pre-order now from Cambridge University Press or Amazon.

This book focuses on the post-Civil War treason prosecution of Confederate President Jefferson Davis, which was seen as a test case on the major question that animated the Civil War: the constitutionality of secession. The case never went to trial because it threatened to undercut the meaning and significance of Union victory. Cynthia Nicoletti describes the interactions of the lawyers who worked on both sides of the Davis case – who saw its potential to disrupt the verdict of the battlefield against secession. In the aftermath of the Civil War, Americans engaged in a wide-ranging debate over the legitimacy and effectiveness of war as a method of legal adjudication. Instead of risking the ‘wrong’ outcome in the highly volatile Davis case, the Supreme Court took the opportunity to pronounce secession unconstitutional in Texas v. White (1869).
Endorsements:

 

Advance praise: ‘The genius of Nicoletti’s work is that the Davis case provides a window into the persistent belief in American minds (even in the North) that secession was possible. That belief made the trial and execution of Davis that much more problematic than scholars have seen. Nicoletti backs up these claims with unsurpassed knowledge of legal proceedings and impressive research.’ William Blair, Director of Richard Civil War Era Center and Walter L. and Helen P. Ferree Professor, Penn State University, and author of With Malice Toward Some: Treason and Loyalty in the Civil War Era

Advance praise: ‘Cynthia Nicoletti tackles a hugely important topic: the post-Civil War resolution of the legal status of the Confederacy. The prosecution of Jefferson Davis squarely posed the question whether the Confederacy had become a separate country by seceding. If it had, southerners insisted there could be no treason. If it had not, many of the war powers asserted by the North would be called into question. Nicoletti brilliantly tracks the efforts of jurists and politicians to work through momentous questions about the American constitutional order.’ John Fabian Witt, Yale Law School, Connecticut, and author of Lincoln’s Code: The Laws of War in American History

Advance praise: ‘Nicoletti’s beautifully written book studies a crucially important trial that never happened. She situates Davis’s treason case in the wider context of public discussions about how to treat officials of the former Confederacy and what to do about secession. Law, as Nicoletti argues, was not separate from other aspects of life in this period; it was deeply implicated within them and, thus, inseparable from them.’ Laura Edwards, Peabody Family Professor of History, Duke University, North Carolina and author of A Legal History of the Civil War and Reconstruction: A Nation of Rights

Tax Law and Social Norms in Mandatory Palestine and Israel

Assaf Likhovski. Forthcoming from Cambridge University Press in summer 2017.

This book describes how a social-norms model of taxation rose and fell in British-ruled Palestine and the State of Israel in the mid-twentieth century. Such a model, in which non-legal means were used to foster compliance, appeared in the tax system created by the Jewish community in 1940s Palestine and was later adopted by the new Israeli state in the 1950s. It gradually disappeared in subsequent decades as law and its agents, lawyers and accountants, came to play a larger role in the process of taxation. By describing the historical interplay between formal and informal tools for creating compliance, Tax Law and Social Norms in Mandatory Palestine and Israel sheds new light on our understanding of the relationship between law and other methods of social control, and reveals the complex links between taxation and citizenship.
 Endorsements:

“Likhovski has written a fascinating account of the development of taxation in a region that has long struggled with shifting rulers and divided populations. This book is more than just the definitive history of taxation in Israel. It is a case study on the cultural and sociological underpinnings of tax law itself.”–Steve Bank, University of California, Los Angeles

 “This brilliant book tells the story of how tax law in Mandatory Palestine was transformed from an intimate institution relying on the voluntary cooperation of taxpayers to a formal system enforced by lawyers. It is a must-read for anyone interested in the nature of law and in how to make a legal system that necessarily depends on voluntary cooperation achieve its goals.”

— Reuven Avi-Yonah, Irwin I. Cohn Professor of Law, University of Michigan

“Once more, Assaf Likhovski has demonstrated his keen understanding of law and its social function in Ottoman and mandatory Palestine as well as the state of Israel. This volume solidifies Assaf Likhovski’s position as one of the most formidable and important scholars of the legal history of Israel.”

— Michael Stanislawski, Columbia University, New York

“Assaf Likhovksi has written an absolutely fascinating book. His exploration of the rise and fall of what he aptly calls the ‘intimate fiscal state’ uses taxation to provide a prism on the history of late Ottoman and British-ruled Palestine, as well Israel. Everyone interested in the relationship between law and society, the history of taxation, the subject of tax avoidance, and the history of Israel will want to read this brilliant work.”

–Laura Kalman, University of California, Santa Barbara

Sovereignty, International Law, and the French Revolution

Edward James Kolla. Forthcoming from Cambridge University Press in October 2017. Available to pre-order via Cambridge University Press and Amazon.

The advent of the principle of popular sovereignty during the French Revolution inspired an unintended but momentous change in international law. Edward James Kolla explains that between 1789 and 1799, the idea that peoples ought to determine their fates in international affairs, just as they were taking power domestically in France, inspired a series of new and interconnected claims to territory. Drawing on case studies from Avignon, Belgium, the Rhineland, the Netherlands, Switzerland, and Italy, Kolla traces how French revolutionary diplomats and leaders gradually applied principles derived from new domestic political philosophy and law to the international stage. Instead of obtaining land via dynastic inheritance or conquest in war, the will of the people would now determine the title and status of territory. However, the principle of popular sovereignty also opened up new justifications for aggressive conquest, and this history foreshadowed some of the most controversial questions in international relations today.
Endorsements:

When the right of peoples to self-determination creates an international law immediately to the advantage of the French Revolution and ultimately for our present world, a brilliant paradoxical book explaining how French Revolution was a key experiment for our modernity.
-Jean-Clément Martin, Université Paris 1 Sorbonne

Kolla’s bold and thought-provoking study transforms our view of the French Revolution’s importance for international law. Kolla persuasively argues for positive advances, rooted in the doctrine of popularity sovereignty, and for an indirect “ripple” effect which provided an important foundation for the decisive nineteenth-century advance in international law.
-Professor Hamish Scott, Oxford University

Kolla makes a major contribution towards the development of modern international law. By combining political narratives with legal analysis he sheds new light on the impact of revolutionary ideas, in particular with relation to popular sovereignty, on international relations and their legal organization.
-Randall C. H. Lessafer, Tilburg Law School

In this brilliant and thoughtful study of international law during the French Revolution, Kolla presents a fascinating history of the principle of national self-determination, as it developed over a century before Woodrow Wilson brought this idea to Versailles. Kolla’s book will be of great interest to historians of modern Europe, political theorists, and legal scholars.
-Dan Edelstein, Stanford University

Taming the Past: Essays on Law in History and History in Law

Robert W. Gordon (Cambridge University Press, June 2017). Available to order now via Cambridge University Press or Amazon. Listen here as Professor Gordon discusses his book.

Lawyers and judges often make arguments based on history – on the authority of precedent and original constitutional understandings. They argue both to preserve the inspirational, heroic past and to discard its darker pieces – such as feudalism and slavery, the tyranny of princes and priests, and the subordination of women. In doing so, lawyers tame the unruly, ugly, embarrassing elements of the past, smoothing them into reassuring tales of progress. In a series of essays and lectures written over forty years, Robert W. Gordon describes and analyses how lawyers approach the past and the strategies they use to recruit history for present use while erasing or keeping at bay its threatening or inconvenient aspects. Together, the corpus of work featured in Taming the Past offers an analysis of American law and society and its leading historians since 1900.

Endorsements:

“Robert W. Gordon has been one of the preeminent commentators on the rapid rise of American Legal History as a discipline. Each of these essays, written over the past forty years, constitutes an important example of his unequalled influence over the dramatic development of the field.”

–Morton Horwitz, Charles Warren Professor of American Legal History, Emeritus

“The sparkling essays of one of the preeminent legal historians of our era are now collected in one place, where they can talk with each other. Here we see the vintage apercus that make us laugh aloud at Gordon’s wit and nod our head at his wisdom. So, for example, we see Gordon discussing ‘Willard Hurst’s benign, if also rather insistent, influence;’ talking about how ‘dead paradigms … never really get killed off [in law], but hang around and Dracula-like, rise from their coffins to stalk the earth;’ observing that E. P. Thompson ‘almost never (save when exposing an opponent as an ignorant twit) showed off how hard he had been working;’ and pointing out that ‘history does not make a good domestic pet.’ This book is a real treat!”

–Laura Kalman

“Once an arcane backwater, mostly located in the backrooms of law schools, disconnected from the main themes of academic legal study, legal history has become a site of core controversies, ones that everyone involved with the study of law had to engage with. Legal history is where scholars from emerging fields of ‘non-legal’ history – including historical studies of gender, of race, and of market capitalism – found the scholarly perspectives that made possible exciting new work about law. The writings of Robert W. Gordon helped guide how it all happened. American scholarship owes him a debt of gratitude. And it is good that a new generation will be introduced to his analytic clarity, to his wisdom, and to his attractive voice, through this accessible edition.”

–Hendrik Hartog, Princeton University

“For four decades, Robert W. Gordon has provoked, inspired, and nourished the writing of critical legal histories. I can still recall the exhilaration of reading him as a student. This indispensable volume collects classics and little-known essays that will engage first-time and returning readers with unsettling questions about the ways we understand law’s history and authority.”

–Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School

McKinley Honored with Judy Ewell Award

It is with great pleasure that we announce that Professor Michelle McKinley has been awarded the 2017 Judy Ewell Award for the Best Publication in Women’s History, presented by the Rocky Mountain Council for Latin American Studies (RMCLAS). She received this honor for her recent publication with the Studies in Legal History series, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, 2016). The award will be presented at the RMCLAS banquet in Salt Lake City, Utah, in April. In the meantime, we congratulate Professor McKinley for the well-deserved recognition for Fractional Freedoms. Listen to Professor McKinley discuss her work in this recent interview or read more about Fractional Freedoms here.

Criminal Law in Liberal and Fascist Italy

Paul Garfinkel

December 2016. Cambridge University Press. Available to purchase via Cambridge University Press and Amazon.

By extending the chronological parameters of existing scholarship, and by focusing on legal experts’ overriding and enduring concern with ‘“-dangerous-”’ forms of common crime, this book offers a major reinterpretation of criminal-law reform and legal culture in Italy from the Liberal (1861–1922) to the Fascist era (1922–1943). Paul Garfinkel argues that scholars have long overstated the influence of positivist criminology on Italian legal culture and that the kingdom’s penal-reform movement was driven not by the radical criminological theories of Cesare Lombroso, but instead by a growing body of statistics and legal research that related rising rates of crime to the instability of the Italian state. Drawing on a vast array of archival, legal and official sources, the author explains the sustained and wide-ranging interest in penal-law reform that defined this era in Italian legal history while analyzing the philosophical underpinnings of that reform and its relationship to contemporary penal-reform movements abroad.

Endorsements:

Professor Garfinkel’s book is one of those rare works of original scholarship that succeeds in covering both the Liberal and Fascist eras in Italian history at the national level. By concentrating on common crime rather than political crimes, he has developed an extremely original thesis that challenges the established interpretations of jurisprudence in the nineteenth and twentieth centuries.

-Anthony Cardoza, Loyola University Chicago

Paul Garfinkel’s vivid account of the development of Italian criminal justice from the perspective of prominent criminal law practitioners relies on a stunning array of sources to craft a convincing argument. An insightful contribution to the study of European law and society, the book offers an important counterpoint to prevailing historiography.

–Maura Hametz, Old Dominion University

Eloquently written, and with a welcome focus on the treatment of ordinary rather than political crime, Garfinkel’s ground-breaking book persuasively challenges scholarly understandings of the ideas and debates inspiring penal reform in Liberal Italy and the first decade of Mussolini’s fascist regime.

-Dr. Jonathan Dunnage, Swansea University

This elegantly written and widely researched study of criminal law in liberal and fascist Italy challenges the widely accepted view that Italy’s 1930 criminal law code was fascist, positivist and anti-liberal in inspiration. Engaging with the wider de- bates on the relationship between liberalism and fascism, Paul Garfinkel’s conclusions will attract the attention of scholars in many different fields.

-John Davis, University of Connecticut

SLH Welcomes Reuel Schiller to the Editorial Team

Studies in Legal History Editors Holly Brewer, Michael Lobban, and Sarah Barringer Gordon welcome Reuel Schiller to the ALH editorial team.

“I am deeply honored to become a co-editor of the Society’s Studies in Legal History series,” Schiller said. “The series’ list is a tremendous one, and its role in nurturing young legal historians is exceptionally important. Our field is growing, both in numbers and in the range of legal subjects that scholars are viewing through a historical prism. I appreciate the opportunity to advance the work of the series in this exciting time for our discipline.”

Reuel Schiller is The Honorable Roger J. Traynor Chair and Professor of Law at the University of California, Hastings College of the Law, where he teaches American legal history, administrative law, and labor and employment law. He is the recent recipient of the 2016 John Phillip Reid Book Award from the American Society for Legal History and has written extensively about the legal history of the American administrative state, and the historical development of labor law and employment discrimination law. He is the author of Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (Cambridge University Press, 2015), as well as numerous articles on the history of American labor law and administrative law in the twentieth century. In 2008, he was awarded the American Bar Association, Section on Administrative Law and Regulatory Practice Award for Scholarship in Administrative Law. Forging Rivals was awarded the 2016 John Phillip Reid Book Award from the American Society for Legal History  and received an honorable mention for the 2016 J. Willard Hurst Prize from the Law and Society Association.  His current research focuses on the development of administrative law and the regulatory state after the collapse of the New Deal order.

Reuel is particularly (though not exclusively) interested in working with authors writing about subjects in nineteenth and twentieth-century American legal history related to state-building, the employment relationship, constitutional law, public law, and the interaction of race and class in the legal system. Though his own work sits at the juncture of legal, political, and intellectual history, he is delighted to work with authors across a wide range of methodologies and subjects.

Michelle McKinley On Fractional Freedoms

Professor Michelle McKinley, the Bernard B. Kliks Associate Professor of Law at the University of Oregon School of Law, discusses her forthcoming book Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, September 2016). The book explores slavery and what Professor McKinley terms “fractional freedoms” in the context of colonial Peru.

Read more