Weekend Roundup

• In an op-ed in the New York Times, historian Sean Wilentz (Princeton University) argues that by refusing to raise the debt limit, Congressional Republicans run afoul of the Fourteenth Amendment. The piece inspired comment from Jack Balkin (Yale Law School), here.

• From History News Network: "A Brief History of the Federal Debt Limit." 

• The Yale Law Library Rare Books Blog introduces “Built by Association: Books Once Owned by Notable Judges and Lawyers, from Bryan A. Garner’s Collection.” The exhibition, curated by Bryan A. Garner with Mike Widener, is on display until December 16, 2013, at the Lillian Goldman Law Library. 

• From the Baltimore Afro-American: "Baltimore-Born Woman Joins Harvard Law Faculty as Islamic Law Scholar"

• Jeffrey Rosen interviews Gerard N. Magliocca on his biography of John Bingham, American Founding Son, for the National Constitution Center.

• Via H-Law: "FASPE (Fellowships at Auschwitz for the Study of Professional Ethics) is now accepting applications for a fellowship that uses the conduct of lawyers and judges in Nazi Germany as a launching point for an intensive two-week early summer program about contemporary legal ethics." More information here.

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

A Retrospective on the Church Committee

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

The organizers explain:

This is a crucially important time for the United States—a number of foreign intelligence gathering programs using new technologies have recently been unveiled, and the public, the media, and scholars are just beginning to address their implications. Part one of this three-part discussion series will focus on the 1975-76 Church Committee (formally known as the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities), which exposed government surveillance abuses and played a key role in the creation of the Foreign Intelligence Surveillance Act. Following the keynote address by Senator Leahy, an esteemed panel of former Church Committee members and top staff will discuss this turning point in American history.

The keynote and panel will take place on Tuesday, September 24, 2013, from 9:45 a.m. to 12:00 p.m., in the Hart Auditorium, McDonough Hall, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, D.C. 20001.

Update

Green, "Loyal Denominatorism and the Fourteenth Amendment: Reconstruction History."

Christopher R. Green (University of Mississippi - School of Law) has posted "Loyal Denominatorism and the Fourteenth Amendment: Reconstruction History." Here's the abstract:

The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises two problems for the Fourteenth Amendment’s legitimacy: Congress (a) proposed the Amendment while excluding Southern representatives in 1866, and (b) required Southern states to ratify as a condition for readmission in 1867. Scholars like Bruce Ackerman, John Harrison, Akhil Amar, and most recently Thomas Colby have proposed a wide variety of conflicting ways to handle these problems. Ackerman explains the Amendment’s legitimacy on the basis of President Johnson’s 1868 capitulation to a non-Article-V process, confirmed by the Supreme Court in 1873. Harrison relies instead on the unreviewable finality of congressional membership decisions and pressured state ratifications, Amar on congressional power to republicanize Southern states with black suffrage, and Colby on the normative desirability of an intergenerationally-authored Fourteenth Amendment including cases like Brown and Roe.

Read more »

Richardson on Private Acts of Parliament

Ivor Richardson, Victoria University of Wellington Law, has posted "Private Acts of Parliament,” which originally appeared in Victoria University of Wellington Law Review 41 (2010): 653.  Here is the abstract:

The article explains the role that Private Acts of Parliament have played and still play. It does so by recounting their historical development and then discussing some 70 Bills and their progress through the Parliamentary processes. The narrative follows a broad subject-matter classification of Private Bills which are promoted by private individuals, local institutions, companies, particular charities, associations and other corporate bodies for their own benefit, whereas Public Bills and Local Bills are directed to the functioning of Central Government and Local Government respectively.

Cummings's "Democracy of Sound"

Alex Sayf Cummings, an assistant professor in the Department of History at Georgia State University, has recently published Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century (Oxford University Press).  Saith the Press:

It was a time when music fans copied and traded recordings without permission. An outraged music industry pushed Congress to pass anti-piracy legislation. Yes, that time is now; it was also the era of Napster in the 1990s, of cassette tapes in the 1970s, of reel-to-reel tapes in the 1950s, even the phonograph epoch of the 1930s. Piracy, it turns out, is as old as recorded music itself.

In Democracy of Sound, Alex Sayf Cummings uncovers the little-known history of music piracy and its sweeping effects on the definition of copyright in the United States. When copyright emerged, only visual material such as books and maps were thought to deserve protection; even musical compositions were not included until 1831. Once a performance could be captured on a wax cylinder or vinyl disc, profound questions arose over the meaning of intellectual property. Is only a written composition defined as a piece of art? If a singer performs a different interpretation of a song, is it a new and distinct work? Such questions have only grown more pressing with the rise of sampling and other forms of musical pastiche. Indeed, music has become the prime battleground between piracy and copyright. It is compact, making it easy to copy. And it is highly social, shared or traded through social networks--often networks that arise around music itself. But such networks also pose a counter-argument: as channels for copying and sharing sounds, they were instrumental in nourishing hip-hop and other new forms of music central to American culture today. Piracy is not always a bad thing.

An insightful and often entertaining look at the history of music piracy, Democracy of Sound offers invaluable background to one of the hot-button issues involving creativity and the law.

Here’s a blurb that matters:

"Beautifully crafted, intelligently researched, and cogently argued, Democracy of Sound offers readers a compelling analysis of the changing legal status of recorded music in the United States from the 1870s to the present. Many books have been written about intellectual property; few have done more to make its significance accessible to the general reader. It will appeal not only to specialists in American studies, music, and law, but also to anyone who cares about American popular culture, past and present." --Richard John, author of Network Nation

Magliocca on John Bingham and the Fourteenth Amendment

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted American Founding Son: John Bingham and the Invention of the Fourteenth Amendment, the Introduction and Chapter One from his book of the same name, “which will be published by NYU Press in September 2013.”

Hat tip: Legal Theory Blog

Lubben on the Bankruptcy Clause

Stephen J. Lubben, Seton Hall University School of Law, has posted The Bankruptcy Clause, which is forthcoming in volume 64 of the Case Western Reserve Law Review.  Here is the abstract:    

In the contest for least studied part of Article I, section 8, the Bankruptcy Clause certainly might win. We have lived with a permanent bankruptcy law since the end of the Nineteenth Century, yet efforts to understand the Clause typically extend little further than an assumption that the Clause is the bankruptcy counterpart to the much better-known Commerce Clause.

To the extent the Bankruptcy Clause is given any thought at all, the modern conception of the Clause is to assume it part of a larger Hamiltonian effort to federalize the economy: the Commerce Clause, the Bankruptcy Clause, and the Contracts Clause, combined perhaps with the Supremacy Clause and the Necessary and Proper Clause, working together to provide that the most important aspects of commerce are federalized, and kept from piecemeal regulation by the states. Indeed, this conception has probably been the most common understanding for almost a century.

That may have been the framers intentions, and it works well in explaining the recent past, particularly since the New Deal, but struggles as an explanation once we remember that Congress only rarely exercised its powers under the Bankruptcy Clause for almost a century after the Nation’s founding.

It also neglects the understanding of the Bankruptcy Clause that developed shortly after ratification: namely, that Congress’ powers with regard to insolvency were simply to impose uniformity, and that the states continued to enjoy full power to enact bankruptcy legislation that would apply to debtors within their realm.

The Supreme Court’s 1819 decision in Sturges v. Crowninshield, striking down a New York bankruptcy law under the Contracts Clause, upended this. But the issue remained contested – and thus the need for a national bankruptcy law debated – until the Gilded Age. By this time, relations between the states and the federal government had been hugely revamped by the Fourteenth Amendment, which made the original “Hamiltonian” project more consistent with the overall conception of the Constitution.

In this article I argue that the only way to really understand the Bankruptcy Clause is to relearn its history. Central to the new understanding of the Clause I suggest is understanding the ways in which American bankruptcy law as enacted by the colonies and the states diverged from that of England. This divergence was well-established by the revolution, and helps to explain why the federal 1800 Bankruptcy Act, which was heavily reflective of English bankruptcy practice, was so ill-received.