2004 annual meeting, austin, texas



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2004 ANNUAL MEETING, AUSTIN, TEXAS
The Society’s thirty-fourth annual meeting will be held Thursday-Saturday, October 28-30, in Austin, Texas. Registration materials and the draft program for the meeting are bound in the center of this newsletter. Be sure to return the registration forms by the dates indicated.

The chair of the local arrangements committee is Roy Mersky, University of Texas ; the chair of the program committee is Vicky Woeste, American Bar Foundation . Additional, and updated, information about the annual meeting is available on the web .


The local arrangements committee has additional information available on the web . The committee calls special attention to two events occurring the weekend of the annual meeting:

1. The Ninth Annual Texas Book Festival, October 28-31, 2004. See the festival’s website at for details.

2. Halloween (October 31) evening when 6th Street is closed off and a huge crowd (some years as many as 70,000) fills the street to party. It’s something of a “mini Mardi Gras”. Some ASLH attendees might want to stick around, others might want to flee. The Driskill is on 6th Street. Those heading for the airport on Sunday may want to plan accordingly, to avoid the congestion.
INFORMATION ABOUT LOCAL ARRANGEMENTS
Blocks of rooms are reserved for the Society’s meeting at the Driskill Hotel and the Stephen F. Austin hotel. The hotels are a block apart. Room rates at the same at both hotels – $145 single/double, plus 15% tax.
If you do not want to participate in the room-share program, you must make your own reservations directly with either the Driskill Hotel (512-474-5911 or 800-252-9367) or the Stephen F. Austin (512-457-8800) , no later than September 28th.

BALLOT
The ballot, bound at the center of this newsletter, seeks votes the President-Elect, for members of the Society’s Board of Directors, and for the Nominating Committee. Many thanks to this year’s nominating committee for their conscientious work.

NOMINEES FOR BOARD OF DIRECTORS
R. B. Bernstein is adjunct professor of law at New York Law School, where he has taught since 1991. He was educated at Amherst College, receiving his B.A. in American Studies in 1977; in 1980, he received the J.D. degree from Harvard Law School. After three years of practice, he returned to academia, specializing in the constitutional history of the early American republic with extensive work in public history during the bicentennials of the Constitution, the federal government, and the Bill of Rights. From 1984 to 1997 he was on the staff of The Papers of John Jay at Columbia University. From 1984 to 1987, he was research curator of the Constitution Bicentennial Project of The New York Public Library, Astor, Lenox, and Tilden Foundations. From 1987 through 1989 he was historian for the New York City Commission on the Bicentennial of the U.S. Constitution, and from 1989 through 1990 he was research director for the New York State Commission on the Bicentennial of the U.S. Constitution. From 1997 to 2004 he was a book review editor for H-LAW, and he continues as a member of H-LAW’s editorial board.

His many books on aspects of the legal and constitutional history of the early American republic include Are We to Be a Nation? The Making of the Constitution (with Kym S. Rice) (Harvard University Press, 1987); Contexts of the Bill of Rights (coedited, with Stephen L. Schechter, NY State Comm’n, 1990); Roots of the Republic: American Founding Documents Interpreted (contributor and co-editor, with Stephen L. Schechter and Donald S. Lutz, Madison House, 1990); Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (Times Books/Random House, 1993; Univ. Press of Kansas, 1995); Thomas Jefferson and Bolling v. Bolling: Law and the Legal Profession in Pre-revolutionary America (Huntington Library/NYU Law School, 1997) (coedited, with Barbara Wilcie Kern and the late Bernard Schwartz); and Thomas Jefferson (Oxford University Press, 2003). Books-in-progress include To the People: The Federalist and the American Experiment; Debts, Loyalty, and Federalism: Rutgers v. Waddington and Chisholm v. Georgia; John Adams and the Divine Science of Politicks; and “Conven’d in Firm Debate”: the First Congress as an Experiment in Government.



In addition to his scholarly activities, Bernstein is director of online operations at Heights Books, Inc., in Brooklyn, New York, where he has lived since early 1981. Bernstein has been a lifetime member of the American Society for Legal History since 1989.
Paul Finkelman is the Chapman Distinguished Professor of Law at the University of Tulsa College of Law. Before coming to Tulsa, he held the John F. Seiberling Chair in Constitutional Law at the University of Akron and taught at a number of other law schools and in a number of history departments including Washington University in St. Louis, the University of Texas at Austin, and Virginia Tech. He received his B.A. in American Studies from Syracuse University (1971) and his M.A. and Ph.D. in U.S. History from Chicago (1972, 1976) and was a fellow in law and humanities at Harvard Law School (1982-83). He is the author or editor of more than fifteen books on legal history and especially the law of slavery. His book An Imperfect Union: Slavery, Federalism, and Comity (North Carolina, 1981, reprinted 2001) appeared in the Society’s series Studies in Legal History. His most recent books include Defending Slavery (Bedford, 2003); Landmark Decisions of the United States Supreme Court (co-authored) (CQ Press, 2003); and the co-authored Library of Congress Desk Reference to the Civil War (Simon and Schuster, 2002). He is also the co-author of three text books: American Legal History: Cases and Materials (Oxford, 3rd ed. 2004); A March of Liberty: A Constitutional History of the United States (Oxford, 2002); and Constitutional Law in Context (Carolina Academic Press, 2003). He has written more than one hundred scholarly articles and book chapters. He is the editor of the series Law, Society, and Politics in the Midwest with Ohio University Press, and the co-editor of Studies in the Legal History of the South at the University of Georgia Press. He has held fellowships from the National Endowment for the Humanities, the American Philosophical Society, the American Bar Foundation, and the Japan Society of the Promotion of Science. He was an expert witness in the lawsuit over who owned Barry Bonds’ 73rd home run ball and in the Alabama Ten Commandments monument case. He has previously served as chair of the Membership Committee and of the Nominating Committee of the ASLH.
Thomas P. Gallanis is Professor of Law, Professor of History, and Director of the Center for Law and History at Washington and Lee University. He has been active in the ASLH for many years, chairing panels and presenting papers at several annual meetings. He has served as chair of the Nominating Committee and as chair of the Sutherland Prize Committee, and has been appointed co-chair of the Program Committee for the 2005 annual meeting in Cincinnati. He is also a member of the Selden Society, which awarded him the David Yale Prize for his article on “The Rise of Modern Evidence Law,” 84 Iowa Law Review 499 (1999). He received a B.A. with Distinction in History from Yale, a J.D. from the University of Chicago, where he was a Bradley Fellow in Legal History, and LL.M. and Ph.D. degrees from Cambridge University. At Cambridge, he was awarded the Hamson Prize in Comparative Law, the Wright and Hughes Prizes for academic excellence, and the Mansergh Prize for best historical essay. He has been a professor at Ohio State University, a visiting professor at the University of Michigan, and a Mellon Fellow at the Institute for Advanced Study, Princeton. He teaches and writes in the areas of English and European legal history, property, trusts and estates, and elder law. A recent article reflecting one intersection of his historical and modern concerns is “The Future of Future Interests,” 60 Washington and Lee Law Review 513 (2003).
Bill Jones is the Nagel Professor Emeritus of International and Comparative Law at the Washington University School of Law in St. Louis. He received his undergraduate degree from Yale, and his law degree from Harvard. He did graduate work at the University of Chicago
Law School from which he received the S.J.D degree. The title of his dissertation was “The Settlement of Mercantile Disputes by Merchants: An Approach to the History of Commercial Law.” He has taught most of the private law curriculum , as well as legal history, comparative law, and Introduction to Law, in the United States. In Europe (mostly at the International Association for the Teaching of Comparative Law) and in China (at National Taiwan University, Wuhan University, the Chinese University of Political Science and Law, Jiao Tong, Shanghai University, and the Hopkins-Nanjing Center), he has also taught public law courses such as constitutional law. He spent a year in Japan at Tokyo University and the Institute for Developing Economies. Since 1966, his primary interest has been Chinese law. He has studied both traditional and contemporary Chinese law, and published in both areas. His principal work on traditional law is The Great Qing Code (Oxford U.P., 1994). His most recent publication is a chapter: “Chinese Law and Liberty in Comparative Historical Perspective” in William C. Kirby, ed., Realms of Freedom in Modern China (Stanford U.P., 2004). His current research is on the way in which modern Chinese tort law, which is supposedly governed by a German-style civil code, is influenced by traditional Chinese concepts. He began this work with the Ritholz lecture at the Harvard Law School in 1999. The title was “Chinese Civil Law: The Pandektenwissenschaft with Chinese Characteristics?”.
Joyce Malcolm is Professor of Early Modern English and Colonial American Legal and Constitutional History at Bentley College, Senior Advisor at the MIT Security Studies Program and Fellow of the Royal Historical Society. This past year she was James Madison Fellow and Visiting Professor at Princeton University. Malcolm is author of six books including To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard University Press), Guns and Violence: The English Experience (Harvard University Press), editor of the two-volume collection, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts (Liberty Classics) and has written some forty articles for law reviews, historical journals and the press. She is presently at work on two books, Stepchild of the Revolution: A Slave Child in Revolutionary America (forthcoming from Yale University Press) and Null and Void: The Origins of American Judicial Review. She has received fellowships and grants from, among others, Harvard Law School, the National Endowment for the Humanities, the Huntington Library, the Radcliffe Institute, and the American Bar Foundation. She is a long-time member of the ASLH and has served on the Program and Nominating Committees.
Jim Oldham is St. Thomas More Professor of Law and Legal History at Georgetown University Law Center in Washington, D.C., where he has taught since 1970. For many years, his principal scholarly work has been devoted to 18th-century English legal history. During 1987-88, he was the Samuel I. Golieb Senior Fellow in Legal History at New York University Law School. In 1992, his two-volume work, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, was published by UNC Press as part of the Society’s Studies in Legal History series. In June 2004 his revised single-volume abridgement of the two-volume work was also published in the Society’s series, entitled English Common Law in the Age of Mansfield. Other published work includes articles on aspects of the history of the jury. Revised versions of these articles, plus new writing on juries and determinations of damages, will be published in 2005 by NYU Press under the title, Trial by Jury: Anglo-American Legal History and the Seventh Amendment. Also in progress is his volume covering the years of the reign of George III in the series edited by Sir J.H. Baker, The Oxford History of the Laws of England.

Professor Oldham has long been active in the affairs of the Society, having previously served on the board of directors and its executive committee. He was Program Chairman for the meeting in Charleston in 1988. He has delivered papers and served as commentator and panel chair at many Society meetings, and will do so again at the Fall 2004 meeting in Austin. He also serves currently as a member of the Board of Editors of the Society’s Law and History Review.



Another subject area that Prof. Oldham has researched is the history of arbitration, and for most of his academic career he has served from time to time as a labor arbitrator. Recently he was named as the grievance arbitrator for the National Hockey League and the NHL Players’ Association.
Reva Siegel is Nicholas deB. Katzenbach Professor of Law and Professor of American Studies at Yale University, where she teaches constitutional law, antidiscrimination law, and legal history. Her writing analyzes law’s role in challenging and preserving status inequality, in areas including the regulation of reproduction, family, work, and suffrage in the nineteenth and twentieth centuries. Relevant publications include “A Short History of Sexual Harassment,” her introduction to Directions in Sexual Harassment Law (co-edited with Catharine A. MacKinnon) (Yale Press, 2004); “Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown,” Harvard Law Review (2004); “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review (2002); “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action” Stanford Law Review (1997); and “‘The Rule of Love: Wife Beating as Prerogative and Privacy,” Yale Law Journal (1996). Much of her recent work draws on the civil rights conflicts of the 1960s and 1970s to examine the life of the Constitution outside the courts–including a series of articles on the legislative enforcement of the Fourteenth Amendment with Robert Post (e.g. “Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act,” Yale Law Journal (2003)), and works in progress on the role of social movements in constitutional change. She is a board member of Law and History Review and of the National Constitution Center, and, as faculty chair of Yale’s chapter of the American Constitution Society, has been working on a variety of projects concerning the Constitution in 2020.
Victor Uribe-Uran is Associate Professor in the Department of History and the College of Law at Florida International University, Miami. He holds a law degree, a master’s in political science, and a Ph.D in history. His books include ‘Honorable Lives.’ Lawyers, Family and Politics in Colombia, 1780-1850 (University of Pittsburgh Press, 2000); State and Society in Latin America During the Age of Revolution (Scholarly Resources, 2001); and Naciones, gentes y territorios. Ensayos de historia comparada de America Latina y El Caribe (Universidad de Antioquia, 2000). His essays pertaining to the social history of lawyers and the law have appeared in the Journal of Latin American Studies, The Americas, the Latin American Research Review, and Comparative Studies in Society and History, and the Journal of Social. His most recent article appeared in Historia y Sociedad (Spring, 2003). He has been a Fulbright scholar, received two Andrew Mellon Fellowships and one of his articles was recently awarded the Antonine Tibezar Prize. Recently he spent a sabbatical year in Seville, Spain, funded by an NEH fellowship to finish research for a book on the social and legal history of domestic violence in Mexico, Colombia and Spain from 1750 to 1850. He has been a member of the board of editors of the Law and History Review, co-chair of the ‘Law and Society’ section of LASA, the Latin American Studies Association, and track chair of the Law and Jurisprudence section within the LASA International Conference of 2004.

NOMINEES FOR BOARD OF DIRECTORS – GRADUATE STUDENT POSITION
Lyndsay Campbell is a Ph.D. candidate in the Jurisprudence and Social Policy Program at UC Berkeley. Her dissertation is on the regulation of speech, through legal and extra-legal means, in the early-to-mid-nineteenth century in Massachusetts and Nova Scotia. Libel law, church discipline, mob actions, and the decisions of newspaper editors loom large in this work. Lyndsay holds an LL.B. and an LL.M. from the University of British Columbia. The most glamorous part of her LL.M. thesis appears as “A Slub in the Cloth: R. v. St. Clair and the Pursuit of a Clean Theatre in Toronto, 1912-1913,” 15 CJLS/RCDS 187 (2000). Lyndsay clerked for the British Columbia Court of Appeal before being called to the BC bar. She has taught Australian and Canadian legal history and practiced human rights law. She has belonged to the ASLH for three years, and she gained some experience in lobbying for grad students as the student member of the board of the Canadian Law and Society Association in 2002-03.
Rebecca Rix is a Ph.D. candidate in U. S. history at Yale University, currently working on her dissertation, “Gender and Reconstitution: The Individual and Family Basis of Democracy Contested, 1880-1932.” Previously, as a Yale Law School Legal History Fellow, Ms. Rix organized and moderated the 2002-2003 Legal History Forum. She studied western European and American intellectual history, literature, and political science at Reed College (M.A.L.S.) and Portland State University (B.A.) and worked as a paralegal and law office manager in Portland, Oregon. Ms. Rix edited and co-authored Sexual Abuse Litigation: A Practical Resource for Attorneys, Clinicians, and Advocates (Haworth 2000) and has published and presented on topics related to the role of cultural narratives, including constructions of gender, in shaping social, legal, and political change. Her awards include the American Historical Association Littleton-Griswold Grant in Legal History; research fellowships from the Schlesinger Library on the History of Women, the Gilder-Lehrman Institute of American History, and the Massachusetts Historical Society; and the Robert M. Leylan Dissertation Fellowship.

NOMINEES FOR NOMINATING COMMITTEE
Daniel W. Hamilton is an Assistant Professor at Chicago-Kent College of Law, where he teaches courses in legal history and property. His main research interest is American property ideology and the legal and constitutional issues raised by the Civil War. He received a Ph.D. in American legal history form Harvard University, where he was a resident tutor in history and law at Harvard College. He received a J.D. from George Washington University and B.A. from Oberlin College. In 2003-2004 he was a Golieb Fellow in legal history at the New York University School of Law. His book, The Limits of Sovereignty: Legislative Confiscation in the Union and the Confederacy is forthcoming from the University of Chicago Press. He has a forthcoming article in the Journal of Supreme Court History for which he received the Hughes-Gossett prize from the Supreme Court Historical Society. He has written, or is writing, reviews and review essays for the Law and History Review, Law and Social Inquiry, the Journal of Interdisciplinary History, the Journal of National Security Law, H-LAW and H-SHEAR. Organizations offering him research support include the Littleton-Griswold Fund at the American Historical Association, the Huntington Library, the Giilder-Lehrman Institute for American History, the Mark DeWolfe Howe Fund, and the Boston Athenaeum. Research presentations include talks at the Law and Society Association, the University of Alabama Conference on Race and Place, the Society for History in the Federal Government, and several guest lectures at Harvard Law School. He has been a member of the ASLH since 1995 attending meetings faithfully, even rain-soaked San Diego, and has twice presented papers at the annual meetings.
Sanford Levinson is the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas Law School and rofessor of Government at the University of Texas. He is the author, most recently, of Wrestling With Diversity (Duke U. Press 2003) and the editor of Torture: A Collection (Oxford U. Press 2004).
Kenneth Mack is an Assistant Professor of Law at Harvard Law School, where he has taught since the 2000-2001 academic year. During the 2004-05 academic year he will be a Faculty Fellow at the Center for Ethics and the Professions, Harvard University. He is Co-Director of the Harvard Law School Legal History Colloquium. He is a member of the Board of Overseers of the Massachusetts Supreme Judicial Court Historical Society. His teaching fields are Property, American Legal History, and the History of the Legal Profession. His scholarly work focuses on the relationship between professionalization and civil rights lawyering in the early twentieth century United States. His work has been published in the Cornell Law Review, Law and Social Inquiry, and has been reprinted in several anthologies of interdisciplinary legal scholarship. He earned a B.S. in Electrical Engineering from Drexel University, a J.D. from Harvard Law School, and an M.A. in History from Princeton. He has held research fellowships from Harvard Law School, the Woodrow Wilson Foundation at Princeton University, and the Ford Foundation. In 1999, he served on the program committee for the ASLH annual meeting. In 2003, he delivered the annual Hugo L. Black Lecture at the University of Alabama Law School.
Wesley Pue is currently Associate Dean for Graduate Studies and Research, and Nemetz Professor of Legal History at the University of British Columbia’s Faculty of Law. He was educated at Oxford, Alberta, and York Universities and has held full-time teaching positions or visiting positions in Canada, the United Kingdom, the USA and Australia. His research and publications in the fields of English and Canadian legal history (with particular emphasis on histories of legal professions), law and geography, and constitutionalism, policing, politics, and the rule of law appear in U.S.A., Australian, British, and Canadian journals & books. Current enthusiasms include cultural histories of legal professions; lawyers, colonialism and state formation; geography and law; comparative legal history, and public law. Previous service to the ASLH include membership of the Law and History Review Advisory Board and service on the Surrency Prize Committee. A former President of the Canadian Law and Society Association/ Association canadienne droit et société and general editor of the University of British Columbia Press “Law and Society” book series (http://www.ubcpress.ca/books/series_law.html), he is committed to breaking down the disciplinary and national barriers that confine scholarship.

2003 ANNUAL MEETING, WASHINGTON, D.C.

The following report on a session at the 2003 annual meeting was omitted from the previous newsletter:


Author Meets Reader: John Langbein, The Origins of Adversary Criminal Trial
Thomas Green (University of Michigan, Law and History) chaired this panel on John Langbein’s recent pathbreaking book, The Origins of Adversary Criminal Trial.

Albert Alschuler (University of Chicago Law School) noted that much of the history of the criminal trial in England and America can be told in Langbein’s memorable terms “accused-speaks trial,” “lawyerization,” and “testing-the-prosecution trial.” He observed that the courts’ allowance of defense counsel and their development of protective rules of evidence in the eighteenth century were nearly simultaneous responses to the core defects of a justice system that still depended heavily on private policing and private prosecution. Ad hoc private and public adjustments to this rapidly failing system produced scandals and injustice. Ad hoc responses to the scandals and injustice ultimately deprived factfinders of the accused’s version of the events and defeated the truth in other ways. The tale is one of unintended consequences piled upon unintended consequences.

Langbein maintains that his historical tale illuminates two central defects of adversary criminal procedure — the combat effect and the wealth effect. Alschuler considered the virtues and dangers of drawing normative lessons from one’s own historical work, rejecting the claim that a “presentist” perspective almost inevitably poisons the history.

David Lemmings (University of Newcastle, Australia) considered the consequences of the criminal trial’s lawyerisation for the experience of government. Developing Langbein’s characterisation of the lawyer-free trial, he emphasized the role of citizen prosecutors and citizen defendants as ‘representative’ partners with jurors, in the sense that they argued for themselves as free subjects. Besides its decision-making function, the criminal trial was therefore a point of exchange between central government and the common people at a time when the institutions of representative government were hardly democratic. But by 1800 the intervention of lawyers was producing a more formalized trial, wherein even the jurors’ role was reduced, and the voices of victim and accused were controlled by professionals. Lemmings argued this shift was one element of a more general change in the cultures of British government between 1700 and 1830, whereby direct participation and agency were being replaced by professionalization and mere symbolic participation.

Allyson May (Toronto, Canada) supplemented Langbein’s critique of the ‘lawyerization’ of the criminal trial by examining the opinions of eighteenth and early-nineteenth-century Old Bailey counsel. Debate in the 1830s reveals that these counsel, and the bar as a whole, shared Langbein’s distrust of professional adversarialism in the criminal courts. Charles Phillips and other critics pointed precisely to the ‘two striking defects,’ the ‘combat effect’ and the ‘wealth effect,’ that Langbein identifies in adversary procedure (1). Why then did the bar not also recognize the alternative he suggests? ‘[L]awyerization of the trial,’ he writes, ‘was a response to the failure to understand that criminal investigation should be a public good’ (333). But making criminal investigation a public function means making it a state function, and the English have quite simply feared the state more than they have feared criminals. This fear explains why they were disinclined to believe that state-instigated pretrial inquiries would further truth or justice.

John Langbein (Yale Law School) thanked the Society for convening the program and the panelists for their kind remarks. He recounted the adventitious circumstances by which, in 1977, he found his way to the Old Bailey Sessions Papers, the criminal trial sources from which he drew much of the material for the book. He noted that the Sessions Papers have now been made available on line, and he suggested that a future ASLH panel might be devoted to the experience of other scholars in using that important new resource in teaching and research.

Langbein acknowledged Alschuler’s observations about the potential dangers of the path taken in the book, in which Langbein combines a normative critique of adversary criminal procedure with his historical account of its origins. Because the history so illumines the defects of the system, Langbein said, he found it compelling to make the linkage, but he hoped that the historical work would find favor even with supporters of adversary procedure.

Langbein agreed with Lemmings that the lawyerization of the Anglo-American criminal trial had suppressed the voices of laypersons (accused, witnesses, jurors). He cautioned, however, that this outcome was not an inevitable consequence of professionalization, but rather an attribute of the distinctively English adversary system of trial. Langbein pointed to the nonadversarial systems in Northern Europe, where the reformed trial procedures instituted in the nineteenth and twentieth centuries allow much larger roles to witnesses, accused, and lay jurors than in the English-derived systems. The grand discriminant, he emphasized, was not professionalism but adversary control of the gathering and production of evidence.

Responding to May, Langbein spoke of the importance of her new book on the Old Bailey bar. He resisted May’s claim that preoccupation with civil liberties adequately explains the English reluctance to institute professional policing and prosecution in time to head off the lawyers’ capture of the trial. All criminal justice systems strike a balance between safeguard and repression, he said, and the puzzle about early modern times was why England alone resisted developing (until the later nineteenth century) a workable system of state-funded and state-conducted investigation of crime. The privatized adversary system arose in consequence of that failure.

ANNOUNCEMENTS

SOCIETY’S ON-LINE MEMBERSHIP DIRECTORY
REMINDER: The Society now has an online membership directory. You can get a view of how the complete system works by going to

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