Sunday Book Roundup

The Nation reviews Without Copyrights: Piracy, Publishing and the Public Domain (Oxford Univ. Press) by Robert Spoo.

"Sometimes, in the absence of copyright, publishers have paid authors and have abstained from reprinting the books of authors they haven’t paid. Ulysses, by James Joyce, considered by some the greatest novel of the twentieth century, lost its copyright protection in America on a technicality soon after it was published. But from the 1930s to the ’90s, Joyce and his estate were paid royalties from its publication in America anyway, thanks to exactly this kind of happy anarchy. In his new scholarly book Without Copyrights, the legal and literary historian Robert Spoo tells the remarkable tale, which Spoo doesn’t necessarily deem a pretty one. Spoo rather sympathizes, in fact, with the character many observers would consider the villain."

Salon publishes an excerpt of Thomas Jefferson's Qur'an: Islam and the Founders (Knopf) by Denise A Spellberg, and NPR reviews Jill Lepore's book about a Founding Father's sister, Book of Ages: The Life and Opinions of Jane Franklin (Knopf).

H-Net adds several works this week, including one of Wolfgang Knobl and Hans Joas's War in Social Thought: Hobbes to the Present (Princeton University Press), another of Robert Cassanello's To Render Invisible: Jim Crow and Public Life in New South Jacksonville (University Press of Florida) (audio interview in last week's post), a third of Nancy Kollmann's Crime and Punishment in Early Modern Russia (Cambridge), and a fourth of Judy Tzu-Chun Wu's Radicals on the Road: Internationalism, Orientalism, and Feminism during the Vietnam Era (Cornell University Press).

"As its title suggests, Radicals on the Road uses the transpacific journeys of anti-Vietnam War activists as a window into radical American and Vietnamese politics and culture in the 1960s. Its principal claim is as multipronged as its intended audience and intervention: in the 1960s American and Vietnamese antiwar activists created a transnational political community, beyond the confines of any nation-state or locality, based on a sustained critique of U.S. policy in Asia."

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Weekend Roundup

• The conversation on dissertation embargoes continues at the Chronicle of Higher Education: "Embargoes Can Go Only So Far to Help New Ph.D.'s Get Published, Experts Say." See also this post over at Historiann. (For earlier coverage of the topic, check out last Saturday's roundup.)  

• The Times Colonist recently published the story Royal B.C. Museum Protects Court Documents Full of History and Great Stories.  These include “60 boxes of bound volumes and other items . . . largely from the B.C. Court of Appeal, which first sat in 1910, but some are from its predecessor, the Supreme Court of B.C. — then also known as the Full Court.”  These include “a number of ‘cause’ books included in the material, heavy volumes that contain summaries of cases and were once toted from place to place by judges.” 

• We've previously noted the publication of Opening Statements: Law, Jurisprudence, and the Legacy of Dutch New York, edited by Albert M. and Julia C. Rosenblatt.  Here is an interview of the editors from the Poughkeepsie Journal.

• From the Junto: a post on "Teaching with Legal Sources: The Case of Ann Hibbens."

• R. B. Bernstein's appreciation of Edmund Morgan for H-law is here. Also worth a read: Roman Hoyos's thoughts on "Edmund Morgan . . . and Popular Constitutionalism," over at the Faculty Lounge.

• 

  David Beito (credit)

  From the National Review: The New Deal Witch Hunt. "Federal targeting and intimidation of conservatives is nothing new," writes David T. Beito (University of Alabama).

• "Why the Relentless Assault on Abortion in the United States?" Ruth Rosen (University of California, Davis) offers answers over at History News Network.

• Here's a headline you don't see every day: "Kenyan lawyer on quixotic quest to nullify trial of Jesus." (Hat tip: HNN)   

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

Dubrow Wins Mellon New Directions Fellowship

According to the North Adams Transcript, "Sara Dubow, associate professor of history at Williams College, has been awarded a New Directions Fellowship from the Andrew W. Mellon Foundation to develop research projects that focus on the legal history of reproductive and sexual politics."  More.

Ziegler's Legal History of "Originalism Talk"

Mary Ziegler, Florida State University College of Law, has posted Originalism Talk: A Legal History.  Here is the abstract:

Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles.

The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.

The Backhouse Backlist

[We're moving up this updated post.]

Constance B. Backhouse, a Distinguished University Professor on the University of Ottawa's Faculty of Law and an immediate Past President of the ASLH, has posted some of her backlist:

"Pleasing Appearance...Only Adds to the Danger": The 1930 Insanity Hearing of Violet Hypatia Bowyer, Canadian Journal of Women and the Law 17:1 (2005) 1-13

The state's legal authority to detain individuals within insane asylums in early twentieth-century Canada was deeply influenced by factors of gender, class, and race. Violet Hypatia Bowyer, a working-class, white woman who was just twenty-two years old in 1928, was initially incarcerated in Ontario for leading a 'dissolute' life. Wrongly diagnosed as 'insane' by prison officials, she tried valiantly, but failed, to secure her release through legal challenge. The expert testimony of the prison officials, the psychiatric 'experts,' and the decision of the court all testify to the terrifying coerciveness of law in Canadian history.

'Don't You Bully Me - Justice I Want If There is Justice to Be Had': The Rape of Mary Ann Burton, London, Ontario, 1907, in People and Place: Historical Influences on Legal Culture, ed. Jonathan Swainger and Constance Backhouse (Vancouver: University of British Columbia Press, 2003), 60-94.

In 1907, Mary Ann Burton launched a complaint of rape against Joseph Gray in London, Ontario. Judicial decisions and literature at the time claimed that rape was “an accusation easily to be made”, despite the common knowledge that rape was underreported. Mary Ann Burton's case sets no legal precedent; she was treated with suspicion and hostility, and the charges were ultimately dismissed by the court. Yet Mrs. Burton resisted the antagonism she experienced – namely tactics by defence counsel to attack her character, her image as a “worthy victim”, her credibility, and her recollection of every finite detail of the incident. She remained resolute in her testimony and her right to be protected from rape, in the face of pernicious commentary from acquaintances, and a courtroom that systematically discredited and ultimately dismissed her based largely on her gender and class.

The Doctrine of Corroboration in Sexual Assault Trials in Early Twentieth-Century Canada and Australia, Queen's Law Journal 26 (2001): 297-338.

The author compares two early twentieth century criminal cases, one Australian and one Canadian, involving carnal knowledge of a child. The cases illustrate the parallel development of the doctrine of corroboration in sexual assault cases in the two countries – a doctrine which was based on the belief that the testimony of women and girls in such cases was inherently suspect. By requiring that corroborating evidence be independent of the complainant's testimony, and by interpreting that requirement in an extremely rigid way to exclude particular items of evidence that strongly supported the complaints, the courts in both cases imposed unjustified obstacles to the conviction of men accused of sexual offences. This misuse of the doctrine of corroboration contradicted the ideals of evenhanded justice and gender equality in both Canada and Australia.

'I Was Unable to Identify with Topsy' - Carrie M. Best's Struggle Against Racial Segregation in Nova Scotia, 1942, Atlantis 22 (Spring 1998) 16-26.

This paper describes a court case that was buried in Canadian legal archives for fifty-six years. In 1942, Carrie Best brought a civil action for damages against a Nova Scotia theatre, claiming that the owners were enforcing a racially-segregated seating policy. The action was ultimately dismissed. Dr. Best, an African-Canadian who was a teacher, journalist, and founder of The Clarion (a newspaper that she began publishing in 1945) had been a long-time advocate for human rights and activist against racial discrimination and segregation in Nova Scotia. Carrie Best's decorated career as a journal and activist is public knowledge, but the history of her unsuccessful litigation calls for scrutiny. Such cases help us understand Canadian history to be deeply marked with racism. 

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Ziegler on the Price of Privacy

Mary Ziegler, Florida State University College of Law, has posted The Price of Privacy, 1973 to the Present.  Here is the abstract:

The legal academy has not been kind to the privacy rationale set forth in Roe v. Wade. Roe is seen to have promoted a single-issue agenda based on the importance of privacy and choice. Because Roe so quickly became vulnerable, its defense became a priority, and activists speaking out in favor of the opinion felt encouraged to defend it on its own terms. If the abortion issue were a matter of ordinary politics rather than constitutional law, the argument goes, activists would be free to develop more compelling arguments for reproductive rights and to pursue a broader reproductive-health program.

Other scholars have studied the social movement activists and attorneys who helped to shape pre-Roe advocacy and to influence the Court’s decision. This project is unique, however, in offering the first explanation of the emergence, ascendancy, and persistence of crucial post-Roe choice-based claims that have defined the law and politics of abortion in the past several decades. This history suggests that Roe alone was not responsible for the emergence or the staying power of the choice framework. Since 1973, abortion-rights activists prioritized choice arguments not only because of Roe but also because of the need to respond to antiabortion tactics and to changing political opportunities. Ordinary politics reinforced rather than undermined the choice framework.

Based on this history, the Article argues that de-constitutionalizing the abortion issue would do little to dismantle the choice-based frame. At a minimum, the abortion-rights movement will have to do more to make abortion, and the women who benefit from it, more visible and sympathetic to the public. Removing the Constitution from the equation will do little to change this basic dynamic.

The full article is available here, at SSRN.