Samito on "Constitution and Law" during the Civil War

Christian G. Samito, a lecturer in law at the Boston University School of Law, has posted Constitution and Law, an entry in A Companion to the U.S. Civil War (John Wiley & Sons, Inc., 2014).

This essay examines various aspects of legal development during the Civil War, which went beyond affirming the perpetuity of the Union and resolving the fate of slavery to involve an expansion of the borders and mechanics of state coercion during a time of crisis, a more robust role for the federal government in promoting economic development, and the formulation of a better defined understanding of national citizenship. Many of these events were unforeseen as of April 1861 and all of them were shaped by wartime circumstances, highlighting how legal development is influenced by politics, society, and other factors in ways that are not predetermined. An overarching theme emerges in Civil War legal development, even when specific components seem unrelated: the strengthening of the U.S. as a nation-state (meaning here something beyond maintenance of the territorial integrity of the U.S., critical though that was). The Civil War removed the one issue in U.S. history – slavery – so politically divisive it could rend the Union. Structural initiatives, such as railroad construction and banks, helped link markets and improve communications nationwide, while the end of slavery placed the entire reunified U.S. within the free labor ideology. While federalism remained important during the 1860s and remains so to this day, the federal government that emerged from the Civil War could play a greater role in shaping economic development (shifting the pendulum from the paradigm of the Jeffersonians and Jacksonian Democrats to the model of the Hamiltonians and Whigs) and safeguarding rights newly associated with national citizenship (in contrast to citizenship in the antebellum period, when states had much broader prerogatives to determine rights for people within their borders).

Iron Age Warrior Lived with Arrowhead in Spine

Read the rest here.

Saavedra on the Human Rights Network and the Chilean Coup

Manuel Bastias Saavedra, Universidad Austral de Chile, has posted The Unintended Legacy of September 11, 1973: Transnational Activism and the Human Rights Movement in Latin America, which appeared in Iberoamericana 13 (2013): 87-103:

The following article focuses on the impact of the September 11, 1973 coup in Chile on the formation of a transnational human rights network in Latin America. The article discusses the exemplary character of the human rights operations in Chile for other Latin American countries, but focuses on the formation of a transnational infrastructure that stimulated and accompanied the organization of human rights organizations across Latin America. The work of the Latin American churches and their international partners were at the center of the growth of the Latin American human rights movement that began in the 1970s.

Nice Try, Abe!

President Lyndon Johnson, December 11, 1963 (LC)

The other day I had some time on my hands at the National Archives and, as is my wont, started browsing some of its on-line databases.  That's when I finally realized that, thanks to the Miller Center on Public Affairs, I could listen in as erstwhile New Deal lawyers gave President Lyndon Baines Johnson a call.  Here, for example, for example, is Tom Corcoran telling LBJ how much better a recent speech was than anything JFK ever delivered.  But two conversations, from December 11 and 13, 1963, were not only fun but also pedagogically useful.

The last six weeks of my survey course on American Legal History treat the emergence of the New Deal political regime and its "consolidation" in the late 1940s and 1950s.  The last class–entitled, in an homage to a classic article by Richard L. McCormick,“The Discovery that Business Corrupts Administration”–is devoted to how the high hopes for New Deal agencies had in the 1950s run to ground in delay, corruption and incompetence, terrain recently surveyed by Joanna L. Grisinger in The Unwieldy American State.

After reviewing the symptoms and various diagnoses of administrative malaise in the 1950s and early 1960s, I have the class consider various remedies.  Although after the rise of the Consumer Movement the judiciary would become a powerful instrument of reform, they overwhelmingly deferred to the commissions.  I tell the students about Bernard Schwartz's tragicomic experience as Chief Counsel of House Legislative Oversight subcommittee, including his firing after he started investigating his congressional masters, to suggest the limits of the reform impulse within Congress circa the late 1950s.  What about the executive?  At first, JFK's appointments, such as Manuel Cohen, Philip Elman, Newton Minow, and Joseph Swidler, and his commissioning of James Landis to report on the regulatory commissions suggested that rule by the Best Men might be back.  His successor, however, viewed regulatory commissions less as Landis's Fourth Branch of Government than as a political resource to be bent to his will.

Oren Harris (credit)

Abe Fortas (LC)

To illustrate this last point, I recount how LBJ gave Elman "the Johnson Treatment" in a receiving line after Elman publicly criticized FTC Chairman Paul Rand Dixon for not aggressively regulating, thereby outraging Dixon's congressional sponsors.  (Elman tells the story in his oral history, in which he also runs down his fellow commissioners, in a passage I ssign my students.)  But I now realize I should have my students listen to this phone call.  As readers of Laura Kalman's biography of Abe Fortas know, Johnson respected and needed Fortas too much to be dismissive when the Washington lawyer urged the president to create something like the ABA's Standing Committee on the Federal Judiciary to review nominees to the federal regulatory commissions.  He even tried out the proposal on Congressman Oren Harris (D-Ark.), who approved.  But, in his conversation with Harris, LBJ seemed intrigued not because a review committee would remove politics from the appointment process but because a ranking of "qualified" might "clean . . . up" nominees chosen for political reasons.  (h/t LK.)

CFP: Law as Culture at Medieval Studies 2016

[We have the following announcement from Sasha Volokh, Emory Law.]

Every year, I run a legal history panel ("Law as Culture") at the International Congress on Medieval Studies in Kalamazoo, Michigan. Next year's meeting is May 12-15, 2016. Please let me know if you have any medieval legal history papers! Here's a somewhat more specific description of the panel. The description is very general on purpose -- a more specific subject may emerge depending on what sorts of submissions I get. I would really like to get some law-and-economics or institutional economics contributions!

Law as Culture XVII: Substance, Procedure, and Institutions in the Middle Ages

The "Law as Culture" series has been ongoing at Kalamazoo most years since 1994. In the past, organizers have included Richard Kaeuper and Paul Hyams. The Selden Society—the premier scholarly society for English legal history—has sponsored the series since 2000. Past sessions have explored notions of violence, sexuality, time, narrative, and vengeance in the law.

This panel, the seventeenth in the series, will explore the interaction between substance and procedure, with an emphasis on the development of the institutions of government, in the Middle Ages. We welcome submissions from any area, e.g. English, Celtic, Continental, Roman, Canon, and from any period within the Middle Ages. We are especially enthusiastic about interdisciplinary work, merging legal history with, e.g., economics, political science, literature, anthropology, etc. We also welcome submissions from junior scholars and graduate students.

Please send me any suitable abstracts at svolokh at gmail dot com by September 15, 2015.

Farber on the Declaration, the Consitution and the Interpreter's Dilemma

Daniel A. Farber, University of California, Berkeley School of Law, has posted The Declaration, the Constitution, and the Interpreter's Dilemma: An Essay on Historical and Iconic Meaning:

The Declaration of Independence is one of the paradigm texts in American history. It was originally written for a time-specific purpose. But it also has spoken to a broader audience across time, as an icon representing American ideals. After describing how the Declaration has been given both historical and iconic meaning by judges, presidents, and public figures, this Essay considers the relevance of these two forms of meaning to current debates over constitutional interpretation. Originalists generally privilege the historical meaning of texts.

Yet originalist Justices on the Court have acknowledged that iconic meaning also exists and can sometimes be more relevant. In Pleasant Grove City v. Summum, 555 U.S. 460 (2009), these originalist Justices turned to iconic meaning over historical meaning, endorsing dynamic interpretation of monuments -- even those containing texts. Ironically, then, they found fluidity in the meaning of texts that are literally carved in stone.

The Essay closes with a discussion of the interpreter’s dilemma: the tension between fidelity to the past (served by historical meaning) and affirmation in the present (served by iconic meaning).

H/t: Legal Theory Blog

Koziol Reviews the Hyams Festschrift

Law's  Dominion in the Middle Ages: Essays for Paul Hyams, a special issue of Reading Medieval Studies, is reviewed by Geoffrey Koziol, University of California, Berkeley, in The Medieval Review.  H/t Michael Widener.

Sunday Book Roundup

With recent events in mind, The New York Times has put together an annotated reading list for "Reading About the Confederacy." On H-Net, there is a review of Caroline E. Janney's Remembering the Civil War: Reunion and the Limits of Reconciliation (UNC Press).

"When analyzing the Union Cause and the Lost Cause, Janney argues, quite correctly in the mind of this reviewer, that the period from 1865 to 1880 was not a period of hibernation or incubation in Civil War memory. Both sides cultivated, advanced, and protected their own interpretations of the Civil War. Union veterans may have regarded the preservation of the Union as preeminent, but they did not overlook the centrality of slavery to the war. Black and white Union veterans “agreed that Union and emancipation served as the dual legacy of their victory” (p. 105). By so doing, they assured that a reconciliationist interpretation of the war would not come to dominate the landscape of Civil War memory. In the South, the Lost Cause fostered “the extension of Confederate nationalism that would encourage resistance and defiance for years to come” (p. 134), and rebels angrily refuted northern claims about emancipation. Both sides, Janney asserts, could embrace reunion, but not reconciliation, and “the battleground of Civil War memory remained contested” (p. 132)."

In the Washington Independent Review of Books, there is a review of Days of Rage: America's Radical Underground, the FBI, and the Forgotten Age of Revolutionary Violence (Penguin) by Bryan Burrough.

Yearning to read about Nixon? There's a two-book review in The New York Times covering Tim Weiner's One Man Against the World: The Tragedy of Richard Nixon (Henry Holt) and Evan Thomas's Being Nixon: A Man Divided (Random House).

Kevin Kruse's One Nation Under God: How Corporate America Invented Christian America is glowingly reviewed on H-Net.

"Once in a blue moon a monograph comes along that both contributes decisively to an ongoing scholarly conversation and introduces its readers to a plethora of little-known documents, archives, organizations, and individuals."

There are several interesting interviews from the New Books series. For example, they talk with Andrew Hartman about his book, A War for the Soul of America: A History of the Culture Wars (University of Chicago Press).

Another is an interview with Claire Virginia Eby, covering her work, Until Choice Do Us Part: Marriage Reform in the Progressive Era (University of Chicago Press).

From New Books in American Studies is an interview with Madeline Y. Hsu, whose new book is The Good Immigrants: How the Yellow Peril Became the Model Minority (Princeton University Press).

And yet still one more is an interview with Ted Smith, which discusses his book, Weird John Brown: Divine Violence and the Limits of Ethics (Stanford University Press).

I want to particularly highlight We Will Shoot Back: Armed Resistance in the Mississippi Freedom Movement (NYU Press) by Akinyele Omowale Umoja, as I have found his writings to be particular useful in some of my own research. The interview on New Books in History can be found here.

From The New Rambler is a review of Jeb Barnes and Thomas Burke's How Policy Shapes Politics: Rights, Courts, Litigation and the Struggle over Injury Compensation (Oxford).

Also up is a review of Brandon L. Garrett's Too Big to Jail: How Prosecutors Compromise with Corporations (Harvard University Press).

EMPIRE Building: Ford Aeronutronic's 1962 Plan for Piloted Mars/Venus Flybys

Wernher von Braun in his NASA Marshall Space Flight Center office. Image credit: NASA

At the 7th International Astronautical Congress, held in Rome in September 1956, Italian aviation and rocketry pioneer Gaetano Crocco described a manned space mission in which a spacecraft would conduct a reconnaissance flyby of Mars, swing past Venus to bend its course toward Earth, and, one year to the day after departing Earth orbit, reenter Earth's atmosphere. After Earth-orbit departure, the spacecraft would need no additional propulsion. Crocco told the assembled delegates that an opportunity to commence such a mission would next occur in June 1971.

A little less than six years later, in May 1962, the Future Projects Office (FPO) at NASA's Marshall Space Flight Center (MSFC) in Huntsville, Alabama, awarded manned Mars mission study contracts worth $250,000 each to General Dynamics, Lockheed, and the Aeronutronic Division of Ford Motor Company. General Dynamics was instructed to study Mars orbital missions, Lockheed to look at Mars flyby and orbital missions, and Aeronutronic to study dual-planet (Mars-Venus) flybys. The combined study effort was known as EMPIRE, an evocative (if somewhat tortured) acronym that stood for Early Manned Planetary-Interplanetary Roundtrip Expeditions.

EMPIRE took place against the backdrop of the Apollo lunar program. One year before its start, in a speech before a special joint session of Congress, President John F. Kennedy had put NASA on course for the moon. He had given the U.S. civilian space agency, which had been founded less three years earlier, until the end of the 1960s to achieve his goal. It was hoped, however, that an American could land on the moon as early as 1967, during Kennedy's second term in office.

As EMPIRE began, NASA had nearly completed the contentious 14-month process of choosing the fastest, most reliable, and cheapest way of placing men on the moon. The Lunar Orbit Rendezvous mode, which would rely on MSFC's Saturn C-5 rocket, was selected in July 1962, before EMPIRE reached its conclusion. C-5 was soon renamed Saturn V.

MSFC was fertile ground for NASA's first major manned planetary mission study. The Huntsville Center's director was Wernher von Braun, a famous advocate of manned flight to the moon and Mars. Von Braun's efforts in the 1950s to popularize spaceflight had helped to prime the American public for the 1960s Space Race with the Soviet Union.

EMPIRE was, however, not merely the whim of a long-time moon and Mars fan; it was also part of a strategy to protect and promote MSFC. The Huntsville Center's specialty was rocket development. Its engineers hoped to develop rockets larger than the Saturn V, which they dubbed Nova and Supernova. Von Braun knew that, unless a post-Apollo program was in place as MSFC's Apollo responsibilities wound down in 1966 and 1967, his center would suffer deep staff and funding cuts, not develop new big rockets.

The Saturn family of rockets was expected to lead to larger Nova and Supernova rockets by the end of the 1960s. In the illustration above, dating from early 1962, the three-stage C-1 and four-stage C-5 are anemic predecessors to the Apollo Saturn IB and Saturn V designs. The Apollo-Saturn rockets later adopted features of the proposed (but never flown) Nova depicted; in particular, the Nova rocket’s 22-foot-diameter third stage. Image credit: NASA

Besides calling for a man on the moon, President Kennedy's May 1961 speech had requested new funding for nuclear propulsion. MSFC was involved in joint NASA/Atomic Energy Commission (AEC) nuclear rocket development through the Reactor In Flight Test (RIFT) program. The precise form the RIFT mission would take changed rapidly; for a time, it aimed to launch a 33-foot-diameter rocket stage with a NERVA nuclear engine on a Saturn V in 1967. Another goal of EMPIRE was, thus, to create a justification for NERVA and RIFT.

In the introduction to their December 1962 EMPIRE final report, Aeronutronic's engineers praised NASA for its "forward thinking approach." They added that

[b]y attacking the areas of interest at this early date[,] it will be possible to obtain a clearer picture of the requirements for early manned planetary and interplanetary flight. Thus the nation's resources, and the NASA and other United States space programs[,] can be oriented toward long range goals at an early date. [EMPIRE] represents an unusually early attack on this type of analysis.

Aeronutronic looked at two interplanetary trajectories for its dual-planet manned flyby mission. The first was dubbed the Crocco trajectory because it was based on the scenario in Crocco's 1956 paper. The second was the symmetric trajectory, which would see the flyby spacecraft swing around the Sun one-and-a-half times. It would fly past Mars halfway through its mission and would cross the orbit of Venus once before the Mars flyby and once after. It would swing past Venus during one of the orbit crossings.


Interplanetary trajectory types Ford Aeronutronic considered for its Mars/Venus flyby mission. Image credit: Ford Aeronutronic/NASA

Aeronutronic engineers found that Crocco had been mistaken when he wrote that an opportunity to start an Earth-Mars-Venus-Earth voyage would occur in June 1971. They determined that a dual-planet Crocco mission could depart Earth in mid-to-late August 1971. A symmetric Earth-departure opportunity would occur sooner: between 16 July and 19 August 1970.

The Crocco trajectory would require more propulsive energy than the symmetric trajectory, Aeronutronic found. The amount of energy required would depend on the moment during the launch opportunity that the spacecraft left Earth orbit. Aeronutronic, however, selected single representative values for preliminary design purposes.

Assuming a departure from a 300-kilometer-high circular Earth orbit, a Crocco spacecraft launched in August 1971 would need to increase its speed by 11.95 kilometers per second to achieve the desired dual-planet flyby trajectory. A symmetric mission launched in the July-August 1970 window would, by contrast, need a velocity increase of only 5.3 kilometers per second.

Low departure velocity meant reduced propellant requirements. In short, a symmetric mission would have a much lower mass than a Crocco mission. A low-mass spacecraft would need fewer launches to place its components and propellants into Earth orbit. Fewer launches would mean lower mission cost and less chance that a launch vehicle would fail and destroy its payload, perhaps placing the assembly campaign in Earth orbit in jeopardy. It would also mean less complex orbital assembly (or perhaps no assembly at all, if a Nova rocket were used), further trimming mission risk.

Aeronutronic found that no dual-planet Crocco mission could last only 365 days; for design purposes, the study team assumed that a mission launched in the August 1971 opportunity would last 396 days. Though longer than Crocco had estimated, this was much less than the 611-day representative duration Aeronutronic selected for the July-August 1970 symmetric opportunity.

Aeronutronic's engineers determined that radiation and meteoroid shielding and life support masses, which would increase with trip time, would not approach the mass of the propellant required to launch the Crocco mission out of Earth orbit; they thus accepted the symmetric mission's greater duration. The symmetric mission would have a low Earth-departure speed, but would pay for it by having a high Earth-atmosphere reentry speed.

As a general rule, the faster a spacecraft is moving as it plummets into Earth's atmosphere, the more reentry heating it will undergo. Greater heating calls for more massive thermal control systems; basically, active cooling employing coolant loops and radiators and a heat shield that ablates (that is, chars and erodes away, carrying away heat). The reentering spacecraft might also use a braking rocket to slow itself before reentry.

The Aeronutronic engineers did not consider the difference between the Crocco and symmetric Earth-atmosphere reentry speeds to be significant. For a symmetric mission launched between 16 July and 19 August 1970, reentry speed would top out at 15.8 kilometers per second; the corresponding figure for the August 1971 Crocco opportunity was 13.5 kilometers per second.

The propellant mass and Earth-to-orbit launch vehicles saved as a result of the Crocco mission's somewhat slower Earth atmosphere-reentry speed were minimal compared with the mass and launchers saved by the symmetric mission's dramatically reduced Earth-departure velocity.

Dual-planet flyby spacecraft size comparisons. Note comparison with Mercury-Atlas rocket and spacecraft (lower right). Mercury was the only piloted U.S. spacecraft that had flown at the time Ford Aeronutronic completed its study. Image credit: Ford Aeronutronic/NASA

Aeronutronic calculated that, based on the mission design values that it had selected, the nuclear Crocco dual-planet flyby spacecraft would have a fully assembled, fully fueled mass of 1121.5 tons, while an equivalent nuclear symmetric spacecraft would have a mass of only 188 tons. This would place the latter within the planned payload capacity of a single Nova rocket, eliminating Earth-orbit assembly entirely.

The Aeronutronic engineers did not bother to determine the mass of a chemical Crocco spacecraft because they knew that it would be even greater than that of the nuclear Crocco spacecraft. They calculated, however, that the chemical symmetric spacecraft would have a mass of 350.5 tons (nearly twice that of the nuclear symmetric spacecraft) or 929.5 tons (nearly as much as the nuclear Crocco spacecraft), depending on the thrust capability of its rocket motor. The company thus selected the nuclear symmetric mission for more detailed study.

Aeronutronic envisioned a 156-foot-long, 33-foot-wide symmetric dual-planet flyby spacecraft with a single 18,300-pound NERVA engine capable of generating 50,000 pounds of thrust. A tungsten shield at the front of the drum-shaped NERVA reactor would create a radiation shadow that would encompass the crew modules during Earth-orbit departure.

The engine would need to operate for nearly 48 minutes to boost the spacecraft’s speed by 5.3 kilometers per second and place it onto its symmetric trajectory. Aeronutronic identified the lengthy burn time as a possible show-stopper; available reactor materials, it explained, could not withstand such prolonged operation. Increasing thrust would reduce required burn time, but the company was not confident that a nuclear engine with more than 50,000 pounds of thrust could be developed in time for the July-August 1970 symmetric launch opportunity.

The nuclear symmetric spacecraft became Ford Aeronutronic’s dual-planet flyby mission baseline design. Image credit: Ford Aeronutronic/NASA

Two tank clusters would supply liquid hydrogen propellant to the NERVA engine. The first-stage cluster, which would contain 56.2 tons of propellant, would comprise a core propellant tank to which the NERVA engine would be mounted and six detachable "perimeter" tanks. After expending the first-stage propellant and discarding the perimeter tanks, the spacecraft would have a mass of 127.7 tons. Eight second-stage tanks would then supply a total of 38.3 tons of liquid hydrogen to the NERVA engine.

After it expended its second-stage propellant, the NERVA engine would detach along with the empty first-stage core tank. The empty second-stage tanks, with a total mass of 5.2 tons, would be retained to shield the Aeronutronic flyby spacecraft's cylindrical central core from meteoroids. After NERVA engine/first-stage propellant separation, the spacecraft would have a mass of 76.7 tons and would measure about 78 feet long.

From aft to front, the core would comprise twin SNAP-8 nuclear-powered electricity sources, the spacecraft's navigational stable platform, a small compartment for weightless experimentation, and a 20-ton command center/solar flare radiation shelter clad in 50 centimeters of polyethylene plastic. Four tanks containing a total of 10.9 tons of chemical trajectory-correction propellants would surround the command center/shelter, providing additional shielding. A two-stage reentry braking propulsion module (“retro-pack”) and the Earth-atmosphere reentry vehicle would be attached to the command center/shelter at the front of the spacecraft.

The nuclear symmetric spacecraft would undergo configuration changes as it carried out its mission, casting off parts that were no longer useful and deploying power, communications, and artificial-gravity systems. The spacecraft would spend most of the flight in the configuration labeled "on-orbit spacecraft." Image credit: Ford Aeronutronic/NASA

Earth-orbit departure completed, the six-man crew would reconfigure their spacecraft for the interplanetary voyage. The twin cylindrical living modules, each with an empty mass of 4.5 tons, would extend on hollow telescoping arms, and one SNAP-8 would deploy a radiator panel and begin generating electricity (the other would be held in reserve in case the first failed). The crew would then spin their spacecraft about its long axis at a rate of three revolutions per minute to create acceleration in the living modules, which they would feel as gravity.

Sixteen-meter-diameter dish antennas would unfurl from the aft end of both living modules to ensure continuous radio communication with Earth. Aeronutronic noted that, when the spacecraft was farthest from Earth, one-way radio-signal trip time would reach 22 minutes.

Based on experience with nuclear submarine crews, Aeronutronic allocated 750 cubic feet of living space to each astronaut, except inside the command center/radiation shelter, where it judged that 50 cubic feet per man would suffice. The twin living modules and command center/shelter would each have an independent life support system designed to recycle all air and water. The company estimated that life support mass would total 10.9 tons, of which food would make up nearly five tons.

The six-man crew would follow a complex schedule designed to combat boredom while providing adequate rest and recreation. Except for sleep, crew activities would occur in two-hour blocks. The crew would include a Commanding Officer, an Executive Officer, a Flight Surgeon, and three astronauts identified simply as "crew members."

All six would take it in turns to serve as duty officer in the command center/shelter, maintenance & repair crewmember, and scientific activity crewmember. The Commanding Officer and Flight Surgeon would not, however, take part in hazardous repairs (for example, those involving spacewalks).

Symmetric Mars-Venus piloted flyby trajectory: 1 = Earth launch; 2 = Venus orbit crossing (possible flyby); 2* = second Venus orbit crossing (possible flyby); 3 = Mars orbit crossing; 3* = second Mars orbit crossing; 4 = Mars flyby/Earth position during Mars flyby; 5 = Earth return. Image credit: Ford Aeronutronic/NASA

A symmetric dual-planet flyby mission departing Earth in the 16 July-19 August 1970 opportunity would fly first past Venus between 97 and 102 days after launch from Earth orbit. Departure at the start of the launch opportunity would yield the shortest trip time on each leg of the interplanetary voyage (and shortest total trip time – 611 days); departure at the end of the opportunity would yield the longest trip time on each leg (and longest total – 631 days). Earth-departure near the start of the opportunity would yield a Venus flyby distance of about 4890 miles; the corresponding figure for the end of the opportunity would be 7520 miles.

As the spacecraft approached Venus, the crew would fire the trajectory-correction motors, changing their speed by about 650 feet per second to ensure an on-target flyby. The spacecraft would carry enough course-correction propellants to change its velocity by a total of 2000 feet per second.

Citing a November 1961 report planetary astronomer Gérard de Vaucouleurs had prepared for the U.S. Air Force, Aeronutronic allotted 1000 pounds for scientific equipment for studying Venus and Mars. The company declined, however, to define a scientific payload for its spacecraft, arguing that the EMPIRE mission's science objectives at Mars and Venus would be shaped by results from NASA robotic spacecraft launched between 1962 and 1968.

The Mars flyby would occur between 191 and 199 days after the Venus flyby, at the mid-point of the symmetric mission. During Mars approach, the crew would perform a second trajectory-correction burn, changing their spacecraft's speed by 330 feet per second. Mars flyby distance would range from about 2740 miles for an Earth departure at the beginning of the July-August 1970 opportunity to 4220 miles for a departure at its end.

An EMPIRE ground rule was that the contractors should use Apollo hardware and techniques wherever feasible, though this was not strictly enforced. The conical Apollo Command Module (CM) with its bowl-shaped ablative heat shield was considered a prime candidate for use as EMPIRE's Earth-reentry vehicle, but Aeronutronic rejected it.

The company opted instead for a 14.75-ton lifting-body with a pointed nose and a two-stage chemical-propellant retro-pack. Aeronutronic had determined that the lifting-body shape was more tolerant of reentry errors – that is, that it would be less likely to burn up or skip off the atmosphere – than the Apollo capsule. The lifting-body would, Aeronutronic noted, also offer a broader choice of land landing or sea splashdown sites because of its improved ability to maneuver in the atmosphere.


Ford Aeronutronic’s preferred Earth-return reentry vehicle configuration. Image credit: Ford Aeronutronic/NASA

Landing/splashdown site flexibility would become especially useful if an abort during Earth departure became necessary. Aeronutronic found that the retro-pack, intended to slow the reentry vehicle as it neared Earth at the end of the mission, could return the crew to Earth no later than 16.7 hours after Earth-orbital launch provided that an abort was initiated before the flyby spacecraft passed beyond about 12,000 miles from Earth.

If, however, the mission unfolded as planned, the astronauts would return to Earth between 312 and 343 days after passing Mars. Prior to reentry, they would perform the final trajectory-correction burn of the mission, changing their spacecraft's speed by about 360 feet per second. Shortly thereafter, the astronauts would strap into the Earth-reentry lifting-body and fire small solid-propellant rocket motors to separate it from the flyby spacecraft. The abandoned flyby spacecraft would subsequently swing past Earth and enter orbit around the Sun.

After properly orienting the Earth-reentry vehicle, the crew would ignite the two stages of its nose-mounted retro-pack in succession, steering the lifting-body toward its reentry corridor and reducing its reentry velocity by 2.8 kilometers per second to 13 kilometers per second. The stages would detach in turn as they expended their propellants.

During reentry, the hottest part of the vehicle would be its small pointed nose, which Aeronutronic expected would be actively cooled to prevent melting. A blowtorch-like plume of superheated plasma would trail from the nose beneath the lifting-body, but would not contact its concave underside.

The astronauts, who would recline facing away from the nose, would experience deceleration equal to 10 Earth gravities, which they would feel across their backs. After deceleration and descent into the lower atmosphere, the lifting-body would deploy parachutes and descend more or less vertically.

Aeronutronic provided a detailed development schedule and cost estimate for its nuclear symmetric dual-planet flyby mission. The company placed the mission's cost at $12.6 billion, or about half the projected Apollo Program cost. Cost savings would be due in large part to experience gained and hardware developed during Apollo. Peak funding year, with expenditures totaling about $3.5 billion, would be 1966.

Aeronutronic estimated that development of a 50,000-pound-thrust NERVA engine capable operating continuously for 60 minutes would need to begin on 1 January 1963 (that is, 10 days after the company completed its final report for MSFC FPO), as would development of the Earth-reentry lifting body. NERVA engines would be tested at the Nuclear Rocket Development Station (NRDS) at Jackass Flats, Nevada, beginning in mid-1965. Earth-reentry vehicles would be drop-tested over the dry lake bed at Edwards Air Force Base in California beginning in mid-1966 and would be flight-tested unmanned and manned using Saturn C-1 boosters beginning a year after that.

Flyby spacecraft development would begin in early 1964, shortly before crew selection and the start of Nova development. Beginning in mid-1967, Saturn C-5 rockets would launch three symmetric dual-planet flyby spacecraft without Earth-reentry vehicles into Earth orbit for testing. A total of 13 Nova rockets would be required for ground and flight testing between mid-1966 and late 1969.

Of these, the first four would be Nova development flights and the last three would launch complete manned symmetric dual-planet flyby spacecraft into Earth orbit for testing and crew training. The fourteenth Nova, designated N9, would launch the mission spacecraft and crew into 300-kilometer-high Earth orbit on 15 July 1970, the day before the symmetric launch opportunity was set to begin.

In a paper presented 10 months after Ford Aeronutronic delivered its final report to MSFC FPO, Franklin Dixon declared that development of an improved NERVA engine should have begun no later than July 1963 if it was to become available in time for the 16 July-19 August 1970 symmetric dual-planet flyby launch opportunity. Dixon had not participated in EMPIRE; on 1 July 1963, Ford had placed Aeronutronic under its Philco division, and Dixon had become Philco Aeronutronic's Manager for Advanced Space Systems.

NERVA development lagged behind the schedule Dixon said was necessary in part because of Kiwi-B nuclear rocket engine failures in December 1961, September 1962, and November 1962. As the name implies, the Kiwi series engines were not meant for flight. In fact, though they each included a nozzle and blasted superhot hydrogen gas into the air, they were considered nuclear reactors, not nuclear rocket engines.


Cutaway illustration of NERVA nuclear-thermal rocket engine. Image credit: NASA

The three failures were similar in nature: liquid hydrogen moving through the hot reactor core caused vibration which broke and eroded the reactor's uranium fuel rods. Hot gaseous hydrogen exhaust then blew uranium fragments out through the engine nozzle. The melting fragments sparkled as they sprayed into the open air.

The Kiwi-B failures set off a duel between the President's Science Advisory Council and the Bureau of the Budget on the one hand and NASA and the Atomic Energy Commission, championed by New Mexico Senator Clinton Anderson, on the other. Democrat Anderson's state contained Los Alamos National Laboratory, which led the AEC side of the nuclear rocket program. President Kennedy visited the NRDS in early December 1962 to size up the situation. On 12 December 1962, two weeks before Ford Aeronutronic completed its EMPIRE study, he indefinitely postponed RIFT.

Citing fiscal restraint, Kennedy's successor, Lyndon Johnson, cancelled RIFT altogether in December 1963, and made NERVA a wholly ground-based research and development effort. In December 1967, the NRX-A6 NERVA ground-test engine operated for 60 minutes without a hitch; that is, for longer than would have been required to boost Aeronutronic's dual-planet flyby spacecraft out of Earth orbit and onto its symmetric trajectory. President Richard Nixon cancelled NERVA in 1972 after program expenditures totaling $1.4 billion.

The Nova rocket experienced a less protracted and costly demise. By June 1964, von Braun called publicly for manned planetary flyby missions using Saturn V rockets and Apollo-derived hardware, thus acknowledging that the Lunar Orbit Rendezvous decision of July 1962 had all but doomed large rockets like Nova.

Later in 1964, the Bureau of the Budget declared Nova rocket development to be of low priority, and called for NASA's post-Apollo program to be confined to Earth orbit and based on hardware developed for Apollo. The MSFC FPO would publish a feasibility study of an Apollo-derived piloted flyby mission in early 1965.

Sources

EMPIRE: A Study of Early Manned Interplanetary Expeditions, NASA Contractor Report 51709, Aeronutronic Division, Ford Motor Company, 21 December 1962.

"The EMPIRE Dual Planet Flyby Mission," Franklin P. Dixon, Aeronutronic Division, Philco Corporation; paper presented at the Engineering Problems of Manned Interplanetary Exploration conference, 30 September-1 October 1963.

"EMPIRE: Early Manned Planetary-Interplanetary Roundtrip Expeditions Part I: Aeronutronic and General Dynamics Studies," Frederick I. Ordway III, Mitchell R. Sharpe, and Ronald C. Wakeford, Journal of the British Interplanetary Society, May 1993, pp. 179-190.

Weekend Roundup

• Twitterstorians have been hard at work on the #charlestonsyllabus, "a list of readings that educators can use to broach conversations in the classroom about the horrendous events that unfolded in Charleston, South Carolina on the evening of June 17, 2015." The list includes work by legal historians Sally Hadden, Dylan Penningroth, Christopher Waldrep, and others. Check it out here.  

• John Q. Barrett has announced on his “Jackson List” that Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard University, “will deliver Chautauqua Institution’s eleventh annual Robert H. Jackson Lecture on the Supreme Court of the United States.  Professor Tribe will give the Jackson Lecture on Wednesday, July 8, 2015, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.” 

• In light of the Chief Justice Roberts's opinion in King v. Burwell, I'm indulging in a reprise link to my posts on NFIB, which likened the Chief Justice to Charles Evans Hughes .  While I'm at it, I'll note, as someone who studies the role of lawyers within political institutions, that, in accounting for the ACA's "more than a few examples of inartful drafting," Chief Justice Roberts put the blame where it belongs, on the legislators, not the staffs of the House and Senate's legislative counsels.  DRE

• The “best place to bone up on Chicago’s legal history”?  The Chicago Reader says it’s the Cook County Clerk of the Circuit Court archives.  “I’ve seen authors write biographies of Chicagoans, and they never came in to look at the court records,” [archivist Phil] Costello says. “I’m thinking, ‘I know we’ve got a probate file on that guy.’” 

• Check out the Irish Legal History Society's spiffy new website.  H/t: @Law&HistoryReview

• The Franklin D. Roosevelt Presidential Library has announced “a special digitization project made possible through the support of AT&T” that will bring “together for the first time the President's Master Speech File and the FDR Speech Audio Recordings and makes them available through FRANKLIN, the Library's online digital repository hosted by Marist College.” 

• Mark Wayne Podvia, West Virginia University College of Law, has posted a history of the Legal History and Rare Books Special Interest Section of the American Association of Law Libraries, written on the occasion of its 25th Anniversary.

•  ICYMI: "The Man Who Lost the Gideon Case: An Interview with Bruce R. Jacob," on HNN.

• On October 23, 2015, the Baldy Center for Law and Social Policy will host a conference to mark the 30th anniversary of David Engel's The Oven Bird’s Song: Insiders, Outsiders, and Personal Injuries in an American Community.

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

The Purcell Backlist, Round 2

In a second round of posts to SSRN, Edward A. Purcell, Jr., New York Law School, has made available some of his more recent publications.
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Danner on Langdell and the Labratory Metaphor

Richard A. Danner, Duke University School of Law, has posted Law Libraries and Laboratories: The Legacies of Langdell and His Metaphor, which is forthcoming in the Law Library Journal 107 (2015):

Langdell Hall (LC)

Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.

CFP: Law Collecting and Law Collectors

We have the following Call for Papers:

CALL FOR PAPERS
LAW COLLECTING AND LAW COLLECTORS 

Hosted by the Scottish Council of Law Reporting with the University of Edinburgh 

APRIL 14TH & 15TH 2016 IN EDINBURGH 

CONVENOR: PROFESSOR JOHN CAIRNS, University of Edinburgh

A conference to address the broad topic of the history of law reporting and the collecting of legal decisions, primarily in Scotland but with the development of law reporting situated in its broader British, European and comparative context. The conference is intended to consider subjects such as how the role of precedent developed, in what form were the earliest records of judicial opinions or decisions, how the form of the modern law report emerged and related issues.

Confirmed keynote speakers include Professor Sir John Baker, Professor John Ford, Professor Thomas Rüfner, and Lord Woolman.

Proposals for papers (proposals should not be more than 400 words in length) should be submitted to secretary@sclr.scot no later than 30th September 2015.

The conference is open to all interested in this subject area. It is expected that the fee, to include meals and refreshments during the conference and a conference dinner (but not overnight accommodation) will be in the order of £150. Please email secretary@sclr.scot if you wish to be sent a booking form.

New Release: Richards, "Who Freed the Slaves? The Fight Over the Thirteenth Amendment"

New from the University of Chicago Press: Who Freed the Slaves? The Fight Over the Thirteenth Amendment (April 2015), by Leonard L. Richards (independent scholar). A description from the Press:

In the popular imagination, slavery in the United States ended with Abraham Lincoln’s Emancipation Proclamation. The Proclamation may have been limited—freeing only slaves within Confederate states who were able to make their way to Union lines—but it is nonetheless generally seen as the key moment, with Lincoln’s leadership setting into motion a train of inevitable events that culminated in the passage of an outright ban: the Thirteenth Amendment.

The real story, however, is much more complicated—and dramatic—than that. With Who Freed the Slaves?, distinguished historian Leonard L. Richards tells the little-known story of the battle over the Thirteenth Amendment, and of James Ashley, the unsung Ohio congressman who proposed the amendment and steered it to passage. Taking readers to the floor of Congress and the back rooms where deals were made, Richards brings to life the messy process of legislation—a process made all the more complicated by the bloody war and the deep-rooted fear of black emancipation. We watch as Ashley proposes, fine-tunes, and pushes the amendment even as Lincoln drags his feet, only coming aboard and providing crucial support at the last minute. Even as emancipation became the law of the land, Richards shows, its opponents were already regrouping, beginning what would become a decades-long—and largely successful—fight to limit the amendment’s impact.

Who Freed the Slaves? is a masterwork of American history, presenting a surprising, nuanced portrayal of a crucial moment for the nation, one whose effects are still being felt today.

Reviewer James McPherson says:

"This study of the political drive toward the complete abolition of slavery is most welcome. Leonard Richards has rescued from obscurity James Ashley, who managed the course of the Thirteenth Amendment through the House of Representatives. The reader will come away with greater appreciation for the courage and skill of those antislavery leaders who never gave up and eventually triumphed."

More information is available here.

Podvia on Douglass at Carlisle

Mark Wayne Podvia, West Virginia University College of Law, has posted Frederick Douglass in Carlisle, which appeared in Unbound: An Annual Review of Legal History and Rare Books 5 (2012): 17.  The abstract reads, “Over the course of his lifetime Frederick Douglass is known to have made three visits to Carlisle, Pennsylvania. He nearly lost his life on one of those visits and was denied access to a hotel dining room on another visit. This paper details all three visits.”

Clemente's on the Execution of "Idiots" at Common Law

Michael A. Clemente has posted his student note, A Reassessment of Common Law Protections for “Idiots.” which appears in the Yale Law Journal 124 (2015): 2746-2803.

When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.” This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow. It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities. Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.

New Release: Conforti, "Lizzie Borden on Trial"

New from the University Press of Kansas: Lizzie Borden on Trial: Murder, Ethnicity, and Gender (June 2015), by Joseph A. Conforti (University of Southern Maine). The Press explains:

Most people could probably tell you that Lizzie Borden took an axe and gave her mother forty whacks, but few could say that, when tried, Lizzie Borden was acquitted, and fewer still, why. In Joseph A. Confortis engrossing retelling, the case of Lizzie Borden, sensational in itself, also opens a window on a time and place in American history and culture.

Surprising for how much it reveals about a legend so ostensibly familiar, Confortis account is also fascinating for what it tells us about the world that Lizzie Borden inhabited. As Conforti—himself a native of Fall River, the site of the infamous murders—introduces us to Lizzie and her father and step-mother, he shows us why who they were matters almost as much to the trials outcome as the actual events of August 4, 1892. Lizzie, for instance, was an unmarried woman of some privilege, a prominent religious woman who fit the profile of what some characterized as a Protestant nun. She was also part of a class of moneyed women emerging in the late 19th century who had the means but did not marry, choosing instead to pursue good works and at times careers in the helping professions. Many of her contemporaries, we learn, particularly those of her class, found it impossible to believe that a woman of her background could commit such a gruesome murder. 

As he relates the details, known and presumed, of the murder and the subsequent trial, Conforti also fills in that background. His vividly written account creates a complete picture of the Fall River of the time, as Yankee families like the Bordens, made wealthy by textile factories, began to feel the economic and cultural pressures of the teeming population of native and foreign-born who worked at the spindles and bobbins. Conforti situates Lizzies austere household, uneasily balanced between the well-to-do and the poor, within this social and cultural milieu—laying the groundwork for the murder and the trial, as well as the outsize reaction that reverberates to our day. As Peter C. Hoffer remarks in his preface, there are many popular and fictional accounts of this still-controversial case, but none so readable or so well-balanced as this.

More information is available here.

Legal History at SHAFR 2015

We hear that the annual meeting of the Society for Historians of American Foreign Relations starts tomorrow in Arlington, Virginia,, with several panels on legal history, including:

Panel 12: Roundtable: Humanitarianism and Human Rights: A State of the Field
Chair: Sarah B. Snyder, American University
Michael Barnett, George Washington University
Gary Bass, Princeton University
Elizabeth Borgwardt, Washington University in St Louis
Julia Irwin, University of South Florida
Amanda Moniz, National History Center of the American Historical Association

Panel 92: The Use of International Law to Mobilize, Demobilize, and Otherwise Shape Public Opinion in the Nineteenth and Twentieth Centuries

Chair: Susan Brewer, University of Wisconsin-Stevens Point

The Atlantic Slave Trade & International Law in the United States Marco Basile, Harvard University

Arbitration as Kabuki Dance: Rhetoric and Reality during the Roosevelt-Taft Era Andrei Mamolea, Graduate Institute, Geneva

A Mere Scrap of Paper? The 1882 United States-Korea Treaty, 1882-2007 David P. Fields, University of Wisconsin-Madison

Comment: Christopher Dietrich, Fordham University

Danner on Antebellum Reviews of American Law Reports

More than Appealing?  Richard A. Danner, Duke University School of Law, has posted More than Decisions: Reviews of American Law Reports in the Pre-West Era:

In the early nineteenth century, both general literary periodicals and the first American legal journals often featured reviews of new volumes of U.S. Supreme Court and state court opinions, suggesting their importance not only to lawyers seeking the latest cases, but to members of the public. The reviews contributed to public discourse through comments on issues raised in the cases and the quality of the reporting, and were valued as forums for commentary on the law and its role in American society, particularly during debates on codification and the future of the common law in the 1820s. James Kent saw the reports as worthy of study by scholars of taste and literature, or to be read for their drama and displays of great feeling. By the 1840s fewer lengthy reviews of reports were published in the journals, but shorter reviews continued in the years prior to and after the Civil War; they largely disappeared with the emergence of West’s National Reporter System and other privately published reporters in the 1880s. This paper examines role and influences of the reviews in earlier decades of the century.

Stern on "Fanny Hill" and Obscenity Law

Simon Stern, University of Toronto Faculty of Law, has posted Fanny Hill and the 'Laws of Decency': Investigating Obscenity in the Mid-Eighteenth Century, forthcoming in Eighteenth-Century Life 40 (2016):

This essay discusses John Cleland's novel The Memoirs of a Woman of Pleasure (1748/9, better known as Fanny Hill), in the context of eighteenth-century obscenity law and the law of search and seizure. To explain why obscenity could have been treated as a criminal offense at all, the essay discusses prosecutions against writers and actors from the later seventeenth century through Cleland's time, showing how the criminality of the offense was taken for granted (circa 1670-1700), then rejected (in 1708), and then rationalized (in 1727). Cleland's novel, notable for resorting to metaphorical and euphemistic language so as to avoid "rank words," was nevertheless easily covered by the rationale offered in Curll (1727), but his case was never brought to trial. While some have thought that this circumstance is mysterious and requires explanation, in fact obscene works were rarely prosecuted at this time, and the decision even to begin proceedings against Cleland is more notable than the decision not to go to trial. Cleland implied, in some of his letters, that he believed his circumlocutory language should have excused him from prosecution, but his stronger argument would have involved the process that led to his arrest: the investigation proceeded by means of a general warrant, a device that would be criticized in the litigation after the 1763 Wilkes prosecution, which in turn influenced the prohibition against unreasonable searches and seizures in the Fourth Amendment to the US Constitution. Along the way, the essay discusses several famous but inaccurate claims about the prosecution of Cleland and his publishers (e.g., that Cleland was paid to stop writing obscene novels, and that his publishers made a fortune from the book), and also includes a list of eighteenth-century editions of Fanny Hill.

Fishkin and Forbath on the Constitution of Opportunity

Joseph Fishkin and William E. Forbath, University of Texas at Austin School of Law, have posted Wealth, Commonwealth, & the Constitution of Opportunity: A Story of Two Traditions, which is forthcoming in NOMOS:

We live in a time of profound and justified anxiety about economic opportunity. The number of Americans facing poverty is growing, opportunities for middle-class livelihoods are shrinking, and economic clout is becoming concentrated at the top to a degree that recalls the last Gilded Age. For reformers throughout the nineteenth and early twentieth centuries, economic circumstances like these posed not just an economic, social, or political problem but a constitutional one. A society with a “moneyed aristocracy” or a “ruling class,” these reformers understood, was an oligarchy, not a republic. This understanding was rooted in a constitutional discourse we have largely forgotten — one that this essay suggests we ought to reclaim. From the beginning of the Republic through roughly the New Deal, Americans vividly understood that the guarantees of the Constitution are intertwined with the structure of our economic life. This understanding was the foundation of a powerful constitutional discourse that today, with important but limited exceptions, lies dormant: a discourse of constitutional political economy. A powerful tradition of arguments, from the founding era through the nineteenth and early twentieth centuries, sounded in this tradition: arguments that we we cannot keep our constitutional democracy — our “republican form of government” — without (a) constitutional restraints against oligarchy, and (b) a political economy that maintains a broad middle class, accessible to everyone. We call this the democracy of opportunity tradition.

Today, when we speak of “equal opportunity” and the Constitution, we usually think of a different tradition, more recognizable today as constitutional law: the inclusionary tradition, which has its roots in Reconstruction and animates arguments that the Constitution requires us to include, on equal terms, those who have previously been excluded from important opportunities on grounds such as race and sex. This essay, forthcoming in the journal NOMOS, tells the story of these two traditions and the relations between them, which have been fraught and often tragic. Generation after generation of white male champions of the older democracy of opportunity tradition refused to include women and racial others. Later, the great triumphs of the inclusionary tradition in the mid-twentieth century — the Civil Rights Revolution, the Great Society — were largely disconnected from the constitution of opportunity tradition. This was for a different reason: The Civil Rights Revolution and Great Society unfolded in an unprecedented moment of broadly shared prosperity; what remained to be done, it seemed, was to open the nation’s abundant middle-class opportunities to black America, women and other excluded “minorities.” Thus, the moment that marked the rebirth and greatest triumphs of the inclusionary tradition also signaled the eclipse of the democracy of opportunity tradition, and more generally of any constitutionalism not centered on the judiciary — an eclipse whose consequences have been far-reaching.

In this essay and in a larger book project, we aim to recover the idea that inequality and unequal opportunity, oligarchy and aristocracy, have a constitutional dimension. In the end, we argue that the inclusionary tradition and the democracy of opportunity tradition can only succeed together and intertwined. Here, we begin to sketch how a revived democracy of opportunity tradition, and a revived discourse of constitutional political economy, might matter both inside and outside the courts.

New Release: Mulcahy and Sugarman, "Legal Life-Writing: Marginalised Subjects and Sources"

New from Wiley-Blackwell: Legal Life-Writing: Marginalised Subjects and Sources (April 2015), by Linda Mulcahy (London School of Economics) and David Sugarman (Lancaster University). A description from the Press:

Legal Life-Writing provides the first sustained treatment of the implications of life-writing on legal biography, autobiography and the visual history of law in society through a focus on neglected sources, and on those usually marginalized or ignored in legal biography and legal history, such as women and minorities.

• Draws on a range of sources and disciplinary approaches including legal history, life-writing, sociology, history, art history, feminism and post-colonialism, seeking to build a bridge-head between them
• Challenges the methodologies employed in conventional accounts of legal lives
• Aims to ignite debate about the nature of the relationship between socio-legal studies and legal history
• Aims to enlarge the fields of legal biography, legal history, history and socio-legal studies, and to foster a closer and more inter-disciplinary dialogue between these disciplines 

More information is available here.

Hat tip: Mitra Sharafi

The Purcell Backlist

Edward A. Purcell, Jr. (credit)

Not too long ago, Edward A. Purcell, Jr., New York Law School, posted a number of items from his backlist.  If you missed some of these articles and book reviews by this masterful historian of federal courts and legal ideas, now is a good time to catch up.

Barry Friedman’s The Will of the People: Probing the Dynamics and Uncertainties of American Constitutionalism, Michigan State Law Review 2010: 663-95.

This essays examines Barry Friedman’s book, The Will of the People, and its thesis that, with lags and hesitations, the Supreme Court’s constitutional jurisprudence has increasingly adapted to the changing social and political attitudes of the American people. Noting the book’s close affinity with the work of recent scholars who argue that popular attitudes should and do have substantial influence in shaping constitutional law, the essay explores the lessons Friedman draws from his constitutional history and, in particular, the significance of four “critical periods”: the Federalist Era with its opposition to what seemed an overtly partisan Court, the first half of the nineteenth century with its widespread defiance of the federal judicial power, the long period from the Civil War to the New Deal when Americans sought to limit and control the judicial power, and the modern period that brought general acceptance of federal judicial power once it had learned to accommodate itself more closely to popular demands. The essay highlights the qualifications Friedman makes to his thesis, and it examines three particular historical issues -- the origins of the Judiciary Act of 1875, the Court’s alleged “formalism” in the late nineteenth century, and the relationship between the Court’s jurisprudence addressing racial and economic issues at the beginning of the twentieth century -- to extend and deepen Friedman’s analysis. The essay concludes by emphasizing the importance of history in enabling Americans to understand their constitutional system more realistically and thus, one hopes, to honor and maintain it more effectively.

Evolving Understandings of American Federalism: Some Shifting Parameters, New York Law School Law Review 50 (2006): 635-98:

This article examines the enduring question of the nature of the American federalism and its supposed role as a constitutional norm. It argues that federalism has not, and cannot, provide specific normative directions for resolving contested constitutional issues. The article stresses the fact that American understandings of the nation’s constitutional federalism were from the beginning sharply contested, and it explores the ways in which those understandings have remained sharply contested over the centuries. In particular, it traces changes that have occurred in ideas about the role of the Supreme Court, the “values” of federalism, the nature of federalism as a structure of government, and the very nature and meaning of the Constitution itself. The article concludes that “originalist” ideas misunderstand the nature of the federal system and that no “originalist” theory can either capture the reality of American constitutional federalism or provide specific normative direction to resolve the contemporary problems it confronts. Rather, American constitutional federalism must be understood as an evolving national enterprise guided generally by certain basic, if contested, values and principles and that those values and principles endure and give the system its true meaning.

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