Blue on 33 Quaint and/or Appalling Trials from the New Haven Colony

Jon C. Blue has published The Case of the Piglet's Paternity: Trials from the New Haven Colony, 1639–1663, with Weslyean University Press:

In the middle of the seventeenth century, judges in the short-lived New Haven Colony presided over a remarkable series of trials ranging from murder and bestiality, to drunken sailors, frisky couples, faulty shoes, and shipwrecks. The cases were reported in an unusually vivid manner, allowing readers to witness the twists and turns of fortune as the participants battled with life and liberty at stake. When the records were eventually published in the 1850s, they were both difficult to read and heavily edited to delete sexual matters. Rendered here in modernized English and with insightful commentary by eminent Judge Jon C. Blue, the New Haven trials allow readers to immerse themselves in the exciting legal battles of America’s earliest days.

The Case of the Piglet’s Paternity assembles thirty-three of the most significant and intriguing trials of the period. As a book that examines a distinctive judicial system from a modern legal perspective, it is sure to be of interest to readers in law and legal history. For less litigious readers, Blue offers a worm’s eye view of the full spectrum of early colonial society—political leaders and religious dissidents, farmhands and apprentices, women and children.

Here are two endorsements:

“Only a trial judge could have written this book—and only a trial judge with a love of history. Jon Blue has chronicled the legal life of the New Haven Colony during the years from 1638 to 1665, when the Colony was absorbed into the Connecticut Colony. The cast of characters is fascinating, including privateers, Indians, and Quakers, among others . . . hardly the monotonic collection you might expect of 17th century New England. And the legal issues they generated are amazing varied, including the usual (witchcraft) and the unusual (bestiality). This was also an unexpectedly sexually-charged populace. Judge Blue brings these forgotten decades to life with a judicial twinkle in his eye and a graceful, engaging writing style.”—Eugene R. Fidell, Senior Research Scholar in Law and Florence Rogatz Visiting Lecturer in Law, Yale Law School

“Judge Blue has done a favor to anyone interested in the origins of trial by law in colonial New England. The records of the court in New Haven Colony in the mid-seventeenth century were published (in part) more than one hundred and fifty years ago, but they are neither widely known nor properly understood. This volume brings some of the most interesting cases back to life in a lively and well-informed manner. If you have ever wondered why a man might have been judicially murdered on the charge of fathering a deformed piglet, this is the book for you, and Judge Blue is the right guide!”—Stanley N. Katz, professor, Woodrow Wilson School, Princeton University

TOC here.

Mayeri on Marital Supremacy and the Constitution of the Nonmarital Family

Serena Mayeri, University of Pennsylvania Law School, has posted Marital Supremacy and the Constitution of the Nonmarital Family, which appears in the California Law Review 103 (2015): 1277-1352:    

Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy — the legal privileging of marriage — through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their parents. By reaffirming the legitimacy of governmental objectives such as discouraging illicit sex and promoting traditional marriage, courts obscured the ways in which marital supremacy injured adults as well as children, reinforcing racial, gender, and economic inequality and circumscribing sexual and reproductive freedom.

Using court documents and archival sources, this Essay uncovers alternative visions of the harm of illegitimacy penalties offered by advocates and activists who framed these laws and practices as centrally connected to poverty, systemic racial oppression, and the subordination of women. Civil rights and poverty lawyers spotlighted the disparate impact of illegitimacy penalties on poor families of color, especially African Americans in the South. Feminists emphasized how these laws disproportionately burdened women — who often bore primary responsibility for nonmarital children’s care and support — curtailing their sexual, reproductive, and economic freedom. The failure of these broader accounts of the harms of illegitimacy penalties to influence judicial opinions impoverished our constitutional politics in ways that reverberate today. In a world where marriage is both a privileged status and a status of the privileged, marriage equality that rests upon non-marriage’s ignominy risks reinforcing the many other status inequalities that taint the legacy of marital supremacy.

Privacy and Freedom of Speech

At the same time American courts were recognizing a right to one's image -- a "right to privacy" -- that made embarrassing or distressing media representations legally actionable, they were acknowledging another kind of image right: the right of publishers, writers, and filmmakers to depict people's likenesses and life stories, and the public's right to consume them -- rights of freedom of speech and press. As I describe in Chapter Seven of Laws of Image: Privacy and Publicity in America, the tension between the right to one's image and the freedom to make images of others came to a head in the important 1940 Second Circuit case Sidis v. FR Publishing.

William James Sidis (credit)

In the years before World War I, William James Sidis was a famous child prodigy. Sidis attended Harvard at eleven, spoke several languages, and was a mathematical genius. Between 1910 and 1920, he was publicized around the world, renowned for his intellectual feats. Yet as an adult, Sidis's life took a different turn. He neglected his mathematical talents and retreated from public life. By the age of twenty, Sidis had become a recluse. At thirty-nine, he was an adding machine operator living alone in a shabby Boston rooming house. The New Yorker magazine tracked him down, interviewed him, and wrote up his story in 1937.

"William James Sidis lives today at the age of 39 in a hall bedroom of Boston's shabby South End." Sidis was a "large, heavy man, with a prominent jaw, thickish neck, and a reddish mustache. He seems to have difficulty in finding the right words to express himself, but when he does, he speaks rapidly, nodding his head jerkily to emphasize his points, gesturing with his left hand, uttering occasionally a curious, gasping laugh....His visitor found in him a certain childlike charm."

Humiliated, Sidis sued the New Yorker for invasion of privacy, for injuries to his feelings caused by the publication of the embarrassing article.
Read more »

A Published Roundtable on Griswold v. Connecticut

We learn, via Barbara Sicherman, Trinity College, that “a roundtable on Griswold v. Connecticut, originally presented at the American Association for the History of Medicine meeting last April on the occasion of the fiftieth anniversary of the decision, will be published in the fall issue of [the] Connecticut History Review.”  Contributors included Reva Siegel, Linda Greenhouse, Rosemary Stevens (“a witness in the case and a distinguished medical historian”), Judy Tabar (“head of Planned Parenthood of Southern New England”), and Heather Munro Prescott (“historian of women’s health and adolescent medicine”). 

The organizers have arranged for off-prints.  To order, contact Cecilia Bucki, the editor of CHR, by November 1.  Her address is cthistory@fairfield.edu  The per-unit cost will depend on the total number of orders.  At present, the most likely estimate is about $1.10 per offprint.  For further information, contract Professor Sicherman at barbara.sicherman@mail.trincoll.edu.

SHFG to Host Roundtable on 1965 Immigration Act

[We're moving this up, as the lecture is this Thursday.]  
[Via H-Law, we have the following announcement.]

The Society for History in the Federal Government announces the Annual Richard G. Hewlett Lecture and Reception: “Legacies of the Immigration and Naturalization Act of 1965”

The Society’s annual Richard G. Hewlett Lecture will be held at the Woodrow Wilson Center, Washington, DC, on Thursday, October 22. A meet and greet reception will begin at 6 p.m., followed by a roundtable discussion on the Immigration Act of 1965 at 7 p.m.

Signed into law by President Lyndon B. Johnson on October 3, 1965, this act significantly reformed the United States' immigration procedures by eliminating national origins quotas as defined by the Immigration Act of 1924 and replacing the quotas with overall hemispheric caps on visas issued to applicants. Fifty years after the Immigration Act's implementation, the Hewlett Lecture panelists will briefly discuss the legacies of the Immigration Act, then will engage the audience in a question-and-answer session.

The roundtable will feature Tom Gjelten, Correspondent for Religion and Belief on the National Desk at NPR; Marian L. Smith, former Chief Historian for the U.S. Citizenship and Immigration Services; Ruth Wasem, currently a Kluge Fellow at the Library of Congress; Phil Wolgin, Center for American Progress, For more information and registration, [here.]

Fernández-Villaverde on Magna Carta, the Rule of Law, and the Limits on Government

Jesus Fernández-Villaverde, Department of Economics, University of Pennsylvania, has posted Magna Carta, the Rule of Law, and the Limits on Government.  Cribbing from the introduction:

[W]hat is exactly the “rule of law”? This question is pertinent because, while jurists and politicians nearly unanimously praise this legal principle as a prerequisite for democracy and prosperity, scholars vehemently disagree about the actual content of this rule. As German lawyers love to say, law is full of indeterminate legal concepts (unbestimmte Rechtsbegri). And few concepts seem more indeterminate than the “rule of law.”

Fraley on the History of Waste Law

Jill Fraley, Washington and Lee University School of Law, has posted Waste Law:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

George on the Sex Research and the Decriminalization of Sodomy

Marie-Amelie George, Associate in Law, Columbia University Law School, and ABD Yale University, has posted The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States, which appears in the Journal of the History of Sexuality 24 (2015): 225-61.

Sexual psychopath statutes, under which courts committed individuals charged with or convicted of certain crimes, typically sex offenses, to psychiatric institutions, proliferated in the United States between the late 1930s and early 1960s. Twenty-nine states and the District of Columbia enacted versions of these statutes in response to a sex-crime panic that swept the nation after a wave of publicity about violent sex crimes committed against children. While the statutes varied widely in terms of the crimes that triggered the laws’ application and in their definitions of sexual psychopathy, they were almost always applied to men convicted of consensual sodomy and were used to commit homosexual men to institutions. However, in 1955 -- only four years after the rush to enact sexual psychopath laws ended -- the American Law Institute (ALI) voted to exclude consensual sodomy from its Model Penal Code (MPC), indicating that consensual sodomy was not a criminal matter. Therefore, in a very short period, a group of influential legal thinkers had moved consensual homosexual activity from a sign of possible pathology to a legally benign, albeit still immoral, practice. The MPC, a model criminal statute aimed at stimulating penal law reform throughout the United States, became highly influential in legislative efforts to revise state criminal codes, leading twenty-two states to repeal their sodomy statutes by 1978.

This article explains how American law evolved from the widespread implementation of sexual psychopath statutes to the decriminalization of sodomy, arguing that this shift emerged out of debates around sexual psychopath laws and Alfred Kinsey’s reports on male and female sexual behavior, which questioned many of the assumptions underlying both sexual psychopath statutes and criminal code provisions on consensual sodomy. State commissions evaluating sexual psychopath laws relied on Kinsey’s data to argue that the statutory schemes were not based on scientific evidence and therefore needed to be amended or repealed. The majority of their reports commented on the inappropriateness of including consensual sodomy under the umbrella of psychopathy, thereby separating homosexuality not just from pedophilia but also from violence. Several commissions also questioned whether consensual sodomy should be criminalized at all. The sexual psychopath commission reports influenced the ALI’s decision to decriminalize sodomy, presaging and contributing to a significant change in American criminal law, as members of the MPC committee drew upon the commission debates in their arguments for the decriminalization of consensual sodomy. The state commission reports, by providing a forum for politicians and lawyers to develop and express a reformist viewpoint, created a discourse in favor of changing criminal laws on consensual sodomy. This thus article identifies the missing link between a legal regime that characterized homosexuality as psychopathy and one that adjudicated consensual homosexual sodomy as noncriminal conduct.

Weekend Roundup

• It was a pleasure to see Catherine Fisk, University California Irvine School of Law, workshop some draft chapters from her forthcoming book Authors at Work: Writing for Hire in Twentieth Century Film, Television, and Advertising, in the Law and Public Affairs (LAPA) Seminar at Princeton University last Monday.  Think Dalton Trumbo meets Don Draper! 

• While we're mentioning LAPA events, the program hosts a book talk by Sophia Lee, Penn Law, on The Workplace Constitution from the New Deal to the New Right (Cambridge University Press, 2014) on Monday, October 26, at 12:15, and a workshop presentation by my fellow LAPA Fellow Sherally Munshi on Immigration, Imperialism, and the Legacies of Indian Exclusion.  DRE 

• Welcome to the Blogosphere: The Historical Society of the New York Courts has a blog! 

• Duke U. Observes 100th Birthday of John Hope Franklin: We missed the Oct. 15 lecture by Thomas C. Holt, “John Hope Franklin and the Black Intellectuals of The Greatest Generation,” but other events (including a symposium featuring Harvard's Drew Faust) are upcoming.

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

The 1991 Plan to Turn Space Shuttle Columbia Into a Low-Cost Space Station

This NASA artwork from 1972 portrays the sheer volume of the Skylab Orbital Workshop, the first U.S. space station.

The first U.S. space station was Skylab, which NASA carefully dubbed an "Orbital Workshop" in order to distinguish it from the "real" space station it hoped to launch into low-Earth orbit by the mid-1970s. Skylab - a converted Saturn S-IVB rocket stage with a pressurized volume of more than 12,500 cubic feet - was launched on the last Saturn V heavy-lift rocket to fly. Three three-man crews lived and worked on board the 22-foot-diameter single-launch station for a total of 171 days between 26 May 1973 and 8 February 1974.

Nearly three years earlier, budget cuts had halted Saturn V production, so NASA had been forced to abandon plans for a single-launch, 33-foot-diameter core station. The Space Shuttle, originally intended as a cost-saving fully reusable space station crew and cargo transport, was subsequently tapped to serve also as the sole launch vehicle for a multi-modular space station built up over the course of many flights. This meant that the Shuttle Orbiter's payload bay dimensions (15 feet in diameter by 60 feet long) and maximum payload mass (in theory, up to 32.5 tons) would dictate the size and mass of station modules and other components.

NASA's single-launch core station (left) would throughout its life receive independently maneuverable add-on modules delivered by fully reusable Shuttle Orbiters. This 1970 illustration depicts one such module outfitted to transport astronauts and cargo from the Shuttle payload bay to the core station main docking port and back. The modules would also be outfitted as special-purpose labs that would link up with round ports scattered over the station's hull. Image credit: McDonnell Douglas

Launching the space station in the Shuttle payload bay meant also that NASA could not begin to assemble it until after Space Shuttle development and flight testing were completed. When the last crew left Skylab, the Shuttle's orbital maiden flight was officially set for early 1978. Operational flights were to start by 1980. Some hoped that an early Shuttle flight might boost Skylab to a higher orbit, postponing its eventual reentry and perhaps permitting it to be outfitted as a temporary interim space station in the early 1980s.

In the event, the first mission of the partially reusable Shuttle, STS-1, did not lift off until 12 April 1981, nearly two years after Skylab reentered and broke up over Australia (11 July 1979). The Orbiter Columbia remained aloft for two days before gliding to a landing on the dry lake-bed at Edwards Air Force Base (EAFB), California.

By then, engineers at NASA's Johnson Space Center had been at work for more than two years on a design for a Shuttle-launched station they dubbed the Space Operations Center (SOC). The SOC included a laboratory for experiments in microgravity, but was conceived mainly as a construction site for large structures, a servicing center for satellites, and a home port for a small fleet of space tugs. It was intended, in fact, to serve as a space shipyard, where would be assembled spacecraft for voyages beyond low-Earth orbit and large space structures such as Solar Power Satellites.

The 1982 Space Operations Center design became the point of departure for NASA station studies after the creation of the Space Station Task Force. Visible is a skeletal "false Shuttle payload bay" for satellite servicing and a hexagonal space tug hangar. Image credit: NASA

On 20 May 1982, a little more than a year after STS-1 and a little more than a month before STS-4 (27 June-4 July 1982), NASA Administrator James Beggs established the NASA-wide Space Station Task Force. President Ronald Reagan was on hand at EAFB Runway 22 that U.S. Independence Day to welcome home the STS-4 crew. Some within NASA hoped that he would use the occasion to declare his support for a permanent Earth-orbiting space station, "the next logical step" after the Shuttle. Instead, Reagan declared that STS-4 was the final Shuttle test flight. With its next flight, STS-5, the Space Shuttle would be considered operational.

Reagan withheld his support for a further 18 months, until the beginning of the 1984 election year, when endorsing a space station - which was bound to create thousands of jobs - could provide maximum political advantage. During his 25 January 1984 State of the Union Address, he echoed President John F. Kennedy's May 1961 "Urgent National Needs" speech by calling on the U.S. civilian space agency "to develop a permanently manned space station and to do it within a decade." Reagan made mention only of the station's role as a laboratory. The station would, he said, "permit quantum leaps in our research in science, communications and in metals and life-saving medicines that can only be manufactured in space."

The Reagan White House disdained a space shipyard for two reasons. First, it was a relatively complicated design that could not be built for $8 billion spent over 10 years, the maximum price Administration budget watchdogs were willing to pay for a space station. The second reason was related to the first: a shipyard in space implied that things would be built there, and that in turn implied a commitment to new expenditures in the future.

Despite this clear message, NASA did not abandon its plans for a shipyard in orbit. In August 1984, the space agency released a "reference configuration" intended to guide aerospace companies bidding on Space Station Program contracts. Called the "Power Tower," it included a 400-foot-long single main truss where SOC-type space construction equipment might eventually be mounted. In NASA artwork depicting the station, featureless boxes stood in for unspecified large user payloads and hoped-for shipyard elements.

The August 1984 Power Tower station configuration was the Space Operations Center with trusses added. The small spacecraft with twin solar arrays at upper right is a self-propelled free-flyer bearing experiments likely to be interfered with by other station activities (for example, astronaut movement). Image credit: NASA

NASA envisioned that spacewalking astronauts would bolt together the Power Tower truss in orbit piece by piece. During Shuttle mission STS-61B (26 November-3 December 1985), in fact, spacewalkers successfully tested two truss-assembly methods in the payload bay of the Orbiter Atlantis.

From the Power Tower evolved the "Dual Keel" in late 1985. In May 1986, NASA released its Space Station "Baseline Configuration," a Dual-Keel station measuring 503 feet wide and 361 feet tall. The new design included about twice as many truss elements as the Power Tower, providing ample room for both space-facing and Earth-facing user payloads and eventual addition of space construction facilities. Assembly in orbit was to begin in 1992 and to be completed by Reagan's 1994 deadline.

The Baseline Configuration was dead on arrival, however, because of the 28 January 1986 loss of the Shuttle Orbiter Challenger and its seven-member crew. By March 1986, NASA and its contractors had begun to scale back the station. At first it shrank but retained its Dual-Keel shape. After that, in the "revised baseline configuration" of 1987, it lost its keel trusses, becoming only a single truss with solar arrays at either end and laboratory and habitat modules at its center. NASA made sure, however, that the design included "hooks" and "scars" that would enable eventual expansion to the Dual-Keel design.

NASA's ambitious Dual-Keel Baseline Configuration of May 1986 was dead on arrival. Image credit: NASA

President Reagan christened the Space Station Freedom in 1988; a gesture which for some rang hollow (they had hoped he might support a moon and Mars program that would give Freedom a long-term direction). The following year, with the Station expected to be over-budget, over-weight, under-powered, and too demanding to build, NASA entirely abandoned the Dual Keel configuration. At the same time, planners proposed that NASA make plans to build an advanced "transportation node" space station in the early 21st century. This proposed separation of functions was an acknowledgment that the jolts and vibrations one could expect on board an orbital ship-yard would wreak havoc with microgravity laboratory experiments.

The year 1990 saw new problems. Persistent hydrogen fuel leaks grounded the three-orbiter Shuttle fleet for nearly half the year, renewing doubts about the Shuttle's ability to reliably launch, assemble, resupply, and staff Freedom. Against this background, news emerged of a dispute within NASA over estimates of the number of spacewalks required to build and maintain the Space Station. The row triggered congressional hearings in May 1990.

In a report released on 20 July 1990, former astronaut and spacewalker William Fisher and JSC robotics engineer Charles Price, co-chairs of the Space Station Freedom External Maintenance Task Team, declared that Freedom would need four two-man spacewalks per week during its assembly and 6,000 hours of maintenance spacewalks per year after its completion. This amounted to 75% more spacewalks than the official NASA estimate, which was already considered excessive. Fisher called the spacewalk requirement "the greatest challenge facing the Space Station."

In November 1990, with new budget cuts in the offing, NASA began yet another Freedom redesign. At about the same time, Space Industries Incorporated (SII), a small engineering firm for which Maxime Faget, co-designer of the Mercury capsule, worked as Technical Advisor, began to examine a radical new approach to solving Freedom's persistent problems. SII performed its Orbiter-Derived Station (ODS) study on contract to Rockwell International, prime contractor for the Shuttle Orbiter.

SII noted that the U.S. House of Representatives Committee on Science, Space, and Technology wanted a "permanently manned Space Station, that meets our International Agreements, retains a capability for evolution, and has minimum annual and aggregate cost." At the same time, it explained, scientists and engineers of the space technology development and microgravity and life sciences research communities wanted NASA to provide an orbiting laboratory "without spending the entire available budget on the laboratory rather than on the experiments."

To satisfy these needs, SII proposed to draw upon Space Shuttle design heritage and operational experience. Specifically, the company proposed that NASA launch in 1996 an unmanned "stripped-down" Orbiter – one without wings, tail, landing gear, body flap, forward reaction control thrusters, and reentry thermal protection – to serve as Freedom's largest single element.

Orbiter Derived Station in Man Tended Configuration after Mission Build-1. Image credit: SII/NASA

Removing systems with a total mass of 45,600 pounds would boost the Orbiter's payload capacity to 81,930 pounds, permitting it to transport a 56.5-foot-long pressurized module permanently mounted in its payload bay and four pairs of rolled-up 120-foot-long solar arrays under streamlined housings along its sides. The pressurized module would include a single docking port on top and a short tunnel linking it to the stripped-down Orbiter's two-deck crew compartment. In effect, SII's ODS launch approach would briefly restore the heavy-lift capability lost when the U.S. abandoned the Saturn V rocket.

What follows is a synthesis of information from two SII documents concerning the ODS. The first, a set of presentation slides, is not dated, though individual slides in the presentation carry July 1991 dates. The second document is SII's final report to Rockwell International dated September 1991. When the documents differ in significant ways, this is noted.

Copying NASA parlance, SII referred to the launch of the stripped-down Orbiter as Mission Build-1 (MB-1). Upon achieving a 220-nautical-mile-high orbit inclined 28.5° relative to Earth's equator, the ODS would turn its payload bay doors toward Earth, open them to expose the pressurized module and door-mounted radiators, and unroll its solar arrays to generate up to 120 kilowatts of electricity. At that point, the ODS would achieve Man-Tended Configuration (MTC). MTC meant that the station could be staffed while a Shuttle Orbiter was docked with it. According to SII, NASA's Freedom would not achieve MTC until MB-6, and its solar arrays would not generate 120 kilowatts of electrical power until MB-10.

Orbiter Derived Station (top) and Shuttle Orbital Maneuvering System propulsion pod design differences. Image credit: SII/NASA

During a normal Space Shuttle mission, the twin 6,000-pound-thrust Orbital Maneuvering System (OMS) engines would ignite twice to complete orbital insertion after the Orbiter's three Space Shuttle Main Engines (SSMEs) shut down and and its External Tank separated. The OMS-1 burn would put the Orbiter into an elliptical orbit; then, at apogee (the high point of its orbit about the Earth), the OMS-2 burn would raise its perigee (the low point in its Earth orbit) to make its orbit circular. Subsequently, the OMS engines would be used to perform major maneuvers and would slow the Orbiter at the end of its mission so that it would reenter the atmosphere. The OMS engines would burn hypergolic (ignite-on-contact) hydrazine/nitric acid propellants.

SII proposed changes to the stripped-down Orbiter's OMS pods to increase reliability and enable long-duration use. A hydrazine monopropellant system would replace the baseline Orbiter bi-propellant system. The SSMEs would insert the stripped-down Orbiter directly into its initial elliptical orbit, then two sets of four 500-pound-thrust OMS engines – one set per OMS pod – would each draw on a pair of propellant tanks to perform the OMS-2 orbit-circularization burn at apogee. The roughly 13,000 pounds of propellant remaining after the OMS-2 burn would be sufficient to resist atmospheric drag and supply OMS pod attitude-control thrusters for two years.

SII suggested that the OMS tanks be refilled in orbit after they exhausted their initial load of hydrazine, but provided no details as to how this might be accomplished. Alternately, the company suggested, a new propulsion module might be docked with the ODS after the modified OMS pods ran out of propellant.

With MB-1 complete, SII's ODS would provide 11,000 cubic feet of pressurized volume containing 58 standardized payload racks. NASA’s Freedom, by comparison, would have no pressurized volume at all until the addition of the U.S. Lab during MB-6, and would not exceed 10,000 cubic feet of pressurized volume until MB-13. The U.S. Hab and Lab modules would together hold only 48 racks.

In SII's July 1991 ODS design, the large module launched in the stripped-down Orbiter payload bay on MB-1 included only Hab module functions, and MB-2 in 1997 would see a piloted Shuttle Orbiter deliver the U.S. Lab module. In its September 1991 final report, SII combined Lab and Hab in the stripped-down Orbiter payload bay and substituted a 47.5-foot-long "core module" for the Lab on MB-2. The cylindrical core would include eight docking ports on its sides and one at either end.

One of the core module end ports would be docked permanently with the port on the Hab/Lab module. Visiting Shuttle Orbiters would dock with the Earth-facing port at the core module's other end. Addition of the core module would increase ODS pressurized volume to 15,000 cubic feet. NASA's Freedom station would not exceed 15,000 cubic feet of volume until MB-16.

SII envisioned that ODS assembly flights would be interspersed with utilization flights beginning immediately after MB-1. The first ODS utilization mission would occur in 1996, and three would take place in 1997.

In addition to permitting early research on board the ODS, some utilization flights after MB-2 would deliver supplies and equipment in a drum-shaped Logistics/Life Support Module (LLSM). Astronauts would dock the LLSM to a core module side port using the visiting Orbiter's Canada-built Remote Manipulator System (RMS). Spent LLSMs would be returned to Earth for refurbishment and reuse. SII placed the ODS toilet and shower in the LLSM, arguing that servicing waste and water systems on the ground would be preferable to doing so in orbit.

SII noted that its Station would need very few assembly and maintenance spacewalks. It would, nevertheless, include a modified Shuttle Orbiter airlock attached to one of its core module side ports. The airlock would reach the ODS during an unspecified utilization flight after MB-2. Because ODS assembly would be relatively simple and assembly spacewalks minimal, SII assumed that the Station could do without its own Canada-built RMS. The company did not address how deletion of the Station RMS would affect U.S.-Canada relations.

The second assembly mission of 1997, MB-3, would see arrival of an Orbiter bearing in its payload bay an eight-man Assured Crew Return Vehicle (ACRV), a space station lifeboat. With the docking of the ACRV at a core module side port, the ODS could be staffed by eight astronauts with no Orbiter present. NASA called the ability to maintain a full crew with no Orbiter present "Permanent Manned Configuration" (PMC). NASA's Freedom Station would not achieve PMC until MB-16.

Orbiter Derived Station in Assembly Complete configuration after Mission Build-6 in late 1998. The image displays an RMS robot arm, though SII stated that the stripped-down Orbiter would not carry one. Image credit: SII/NASA

The year 1998 would see three assembly flights, all international in character. In his January 1984 State of the Union speech, Reagan had invited U.S. allies to lend a hand in building NASA's space station in exchange for opportunities to reap its rewards. In addition to Canada, Japan and Europe had answered the call.

MB-4 would see an Orbiter deliver the pressurized part of the Japanese Experiment Module (JEM). Astronauts would use the Orbiter's RMS to dock it to a core module side port. During MB-5, astronauts would use the visiting Orbiter RMS to add the European Space Agency's Columbus laboratory module. With that, the SII's ODS would achieve its maximum pressurized volume: 24,000 cubic feet, or about 8,000 cubic feet more than planned for NASA's Freedom Station. MB-6 would add Logistics and unpressurized Exposure components to complete the JEM.

SII recommended that the core module's Earth-facing port be designed to rotate so that visiting Orbiters could optimally position themselves for assembly missions. During MB-5, for example, the visiting Orbiter's nose would face in the ODS's direction of flight so that its RMS could place the Columbus module at its designated core module side port. During MB-4 and MB-6, it would face in the opposite direction so that JEM components could be added.

MB-6, which would take place near the end of 1998, would mark the end of ODS assembly. By then, SII's station would have hosted seven utilization flights. For comparison, NASA's Freedom Space Station would host no utilization flights until 1998, when three would take place. Freedom would not reach "Assembly Complete" until 2000.

SII proposed ways that the baseline ODS might be upgraded. The company noted that, beginning with MB-10, NASA's Freedom would provide experimenters with more electricity (180 kilowatts) than would the ODS. If this power level were judged to be necessary for ODS operations, then a 60-kilowatt "power kit" could be added during a utilization flight. The company suggested that the kit's rolled solar arrays be attached to a special port installed in the stripped-down Orbiter's nose behind a streamlined faring.

The ODS included no provision for space-facing experiments; all of its modules were expected to be mounted on its Earth-facing payload bay side. This reflected the science and technology community's desire for a microgravity lab and the fact that highly capable automated space-facing satellites (for example, the Hubble Space Telescope) were available. If, however, space-facing experiments were desired on board the ODS, then it could be launched with a docking port on the Orbiter's space-facing belly. A tunnel through the ODS payload bay floor would link the port to the Hab/Lab module.

Probably the company's most controversial proposal was to accelerate ODS assembly by stripping down Columbia, NASA's oldest Orbiter. SII noted that Columbia was the heaviest Orbiter, so had the least payload capacity. It assumed that NASA would want to replace Columbia with a new lighter Orbiter, increasing the Shuttle fleet's capability. SII called this "disposing of the worst and and replacing it with the best." Some components stripped from Columbia could, it suggested, be reused in the new Orbiter to save money.

By the time SII submitted its final report, NASA's latest Freedom configuration had been public for three months. The new design included truss segments launched pre-assembled, smaller U.S. modules, and other changes meant to reduce the number of spacewalks and assembly flights required to build and maintain it. The station would, however, lose yet more capability (notably in the area of electrical power, which was reduced to about 60 kilowatts at PMC). The April 1991 redesign set the stage for Freedom's near-cancellation in June 1993 (it survived by a single vote in the U.S. House of Representatives) and, beginning later that year, its revival as the International Space Station.

This rendition of Space Station Freedom in its 1991 configuration contains several interesting features. The overall station design is obscured by shadows, denoting the uncertainty surrounding the station's future form. Only the international pressurized modules - the JEM and Columbus labs - are visible. Beginning with the the May 1986 Dual Keel, these modules changed very little in NASA artwork because the International Partners insisted that the U.S. adhere to its agreements. The U.S. modules, in the meantime, decreased in number and shrank to a fraction of their planned former size. A Shuttle Orbiter is displayed, but not attached to Freedom; placing it too close to the station would show plainly the 1991 station's small size relative to earlier designs. The moon and Mars are visible above Freedom; in 1991, NASA still sought to carry out President George H. W. Bush's abortive Space Exploration Initiative (SEI), which aimed to launch humans to those worlds. Freedom was meant to play a role in furthering SEI's goals, though the precise nature of that role was not clear. Image credit: NASA

Sources

The Space Shuttle at Work, NASA SP-432/EP-156, H. Allaway, NASA, 1979, pp. 64-72

Aboard the Space Shuttle, NASA EP-169, F. Steinberg, NASA, 1980

Space Station, NASA EP-211, D. Anderton, NASA, no date (1984)

Space Station: The Next Logical Step, NASA EP-213, W. Froehlich, NASA, no date (1985)

Space Station: Leadership for the Future, NASA PAM-509, F. Martin & T. Finn, NASA, August 1987

Space Station: A Step Into the Future, NASA PAM-510, A. Stofan, NASA, November 1987

Space Station Freedom Reference Guide, Boeing, 1988

Space Station Freedom: A Foothold on the Future, NASA NP-107, L. David, NASA, October 1988

"Freedom Spacewalks 'unacceptable': NASA," Flight International, 1-7 August 1990, p. 18

"Freedom failure threatens NASA's future," T. Furniss, Flight International, 29 May-4 June 1991, p. 34

"Operation Scale-Down," T. Furniss, Flight International, 29 May-4 June 1991, pp. 76-78

Shuttle Derived Space Station Freedom, Space Industries International, Inc./Rockwell International Space Systems Division, presentation materials, n.d. (July 1991)

Expanded Orbiter Missions Final Report: Orbiter Derived Space Station Freedom Concept, prepared by Space Industries, Inc. (SII), Webster, Texas, for Rockwell International, Inc., Downey, California, September 1991

"House Retains Space Station in a Close Vote," C. Krauss, International New York Times, 24 June 1993 (http://www.nytimes.com/1993/06/24/us/house-retains-space-station-in-a-close-vote.html - accessed 16 October 2015)

International Space Station, Boeing, May 1994

Related Posts

McDonnell Douglas Phase B Space Station (1970)

Where to Launch and Land the Space Shuttle? (1971-1972)

Skylab-Salyut Space Laboratory (1972)

Evolution vs. Revolution: The 1970s Battle for NASA's Future

NASA's 1992 Plan to Land Soyuz Space Station Lifeboats in Australia

CFP: Comparative Legal Profession Histories

[We have the following call for papers and/or panels.]  The Seventh International Legal Ethics Conference (ILEC VII) will take place at Fordham Law School in New York City from July 14 to 16, 2016.  Planners are currently seeking presentations for a panel on “Comparative Legal Profession Histories.”  Interested participants should send their CVs and paper/presentation abstracts to scarle@wcl.american.edu by Nov. 1, 2015.  

Christopher Waldrep: Scholarship, Teaching, and Professional Citizenship

Christopher Waldrep (SFSU)

Earlier this week, Charles Zelden, the lead editor of H-Law, noted the following announcement on the website of the American Society for Legal History, regarding the ASLH’s upcoming annual meeting in Washington, DC:

We are pleased to announce that arrangements have been made for Christopher Waldrep to attend the roundtable session in his honor [“Christopher Waldrep: Scholarship, Teaching, and Professional Citizenship”] during the 3:30-4:30 panel slot on Friday, October 30th. Chris was the founding editor of H-Law and wrote extensively on constitutional themes in the southern United States before a tragic accident compelled him to retire.

Professor Zelden notes that Professor Waldrep was H-Law’s founding editor and the lead editor for eighteen of H-Law’s twenty-two years.  “Without Chris, there would have been no H-Law,” Professor Zelden writes.  “ Everyone who is planning on attending this year’s ASLH is invited to attend this roundtable which will include commentary on Chris and the creation of H-Law, his scholarship and his teaching.”

Western New York Women Pioneers in the Law

[Here’s another event sponsored by the Historical Society of the New York Courts.]

Western New York Women Pioneers in the Law: A Celebration.  Presented by The Historical Society of the N.Y. Courts, SUNY Buffalo Law School, & Phillips Lytle LLP.  Thursday, November 5, 2015, 5:30-7:00 PM,SUNY Buffalo Law School, UB North Campus, John Lord O'Brian Hall, Rm. 106, Buffalo, NY 14260.

Post-Program Reception - Open to Everyone! Join us at the reception proceeding the program where you'll be able to mingle with program participants and invited guests. This reception is free and open to everyone.

Introductory remarks by Hon. Eugene F. Pigott, Jr., Associate Judge N.Y. Court of Appeals, Hon. Paula L. Feroleto, Administrative Judge, 8th Judicial District and James A. Gardner, Interim Dean, SUNY Buffalo Law School.

This program, moderated by Hon. Albert M. Rosenblatt (former Associate Judge NY Court of Appeals and President, The Historical Society of the New York Courts) will look at the contributions of women from western New York to our legal heritage and will highlight:

Belva Lockwood, 1915 (LC)

Belva B. Lockwood, First woman admitted to practice before the U.S. Supreme Court. Presented by Hon. Erin M. Peradotto, Associate Justice, Appellate Division, Fourth Judicial Department.

Kate Stoneman, First woman admitted to practice in New York. Presented by Michelle Henry, County Historian, Chautauqua County.

Helen Z.M. Rodgers, First woman graduate of Buffalo Law School. Presented by Bernadette Gargano, Lecturer in Law, Legal Analysis, Writing and Research, SUNY Buffalo Law School.

Charlotte Smallwood-Cook, First woman District Attorney in New York (Wyoming County, 1950-1953). Presented by Michael B. Powers, Clarence Town Justice, Partner at Phillips Lytle LLP.

Shirley St. Hill Chisholm, First African-American woman elected to the U.S. Congress (NY 12th District, 1969-1983). Presented by Brian Higgins, United States Congressman, 26th Congressional District of N.Y.

Women Attorney Trailblazers in New York State Exhibit.  You are invited to visit the display which will be set up nearby.  A display created by the NYS Bar Association’s Committee on Women in the Law will be available for viewing the evening of the program. This exhibit highlights 10 women lawyers who made significant contributions in the legal profession, after overcoming gender barriers and, in some cases, racial discrimination, paving the way for generations of women attorneys to come.

Roberts, CJ, to Lecture on Hughes, CJ

Charles Evans Hughes et al. (LC)

The Historical Society of the New York Courts announces Nominated from New York: Charles Evans Hughes: Chief Justice of the U.S., to take place on Friday, November 20, 2015, from 6:30-7:30 PM in the Tishman Auditorium.  “We are pleased to present a program featuring The Hon. John G. Roberts, Jr., Chief Justice of the U.S.," writes the Society.  "The Chief Justice will speak on Charles Evans Hughes and will be followed by an interview.”  

We can’t say we're surprised.

Libel law and "image consciousness"

In my book Laws of Image: Privacy and Publicity in America, and in my posts on the Legal History Blog this month, I've described how an emerging cultural sensibility in the first half of the 20th century -- an "image conscious sensibility," concern with one's public image and self-presentation in public -- was reflected in the creation and development of tort privacy law in the U.S. "Image consciousness" also shaped the modern law of libel.

Traditionally, the tort of libel protected reputation -- one's good name among one's peers. A defamatory or libelous statement was one that seriously lowered a person's esteem in his community: it exposed a person to "hatred" or "contempt," "injured him in his profession or trade, [and] caused him to be shunned or avoided by his neighbors."

By 1930, some courts were broadening the definition of a defamatory publication to include statements that didn't necessarily lower a person's reputation, but nonetheless caused distress and embarrassment. A publication could be defamatory if it tarnished a person's image in his own eyes, causing emotional distress.

Stanislaus Zbyszko (credit)

In Zbyszko v. New York American, from 1929, the newspaper published an article on the theory of evolution. In one part of the article, the text read: "The Gorilla is probably closer to man, both in body and in brain, than any other species of ape now alive. The general physique of the Gorilla is closely similar to an athletic man of today, and the mind of a young gorilla is much like the mind of a human baby." Near that text appeared a photograph of the well-known wrestler Stanislaus Zbyszko, in a wrestling pose, and under it a caption: "Stanislaus Zbyszko, Not Fundamentally Different from the Gorilla in Physique." He sued the New York American for libel. Though it was unlikely that anyone would think worse of the wrestler for the article, a jury sympathized with his sense of affront and awarded him $25,000.

Legal scholars observed an "increasing tendency" among courts in defamation cases to go "beyond the traditional reaches" of the protection of reputation to protect plaintiffs against "personal humiliation and degradation." A reflection of the image-conscious sensibility, courts were expanding libel's domain from external, interpersonal relations to include self-perception and one's feelings about one's public image.

Thomas and Boisseau on the ERA as the "Next Logical Step"

Tracy A. Thomas, University of Akron School of Law, and Tracey Jean Boisseau, University of Akron, have posted After Suffrage Comes Equal Rights? ERA as the Next Logical Step, which is forthcoming in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism, ed. Lee Ann Banaszak and Holly McCammon (Oxford University Press, 2016):

Alice Paul, September 1920 (LC)

Almost a full century in the making, the campaign for an ERA far exceeded in longevity the campaign for woman suffrage, however much a “logical next step” women's equality seemed to some following the spectacular achievement of the Nineteenth Amendment. The history of the amendment reveals how resistant to the idea of equality between men and women a political system -- even one that includes women as voters -- can be. In this chapter, we re-examine the route taken by the ERA through its many permutations in the century since the passage of woman suffrage. Proposed by Alice Paul in 1923 and immediately opposed by social feminists advocating protective labor laws, the ERA wound itself in and out of feminist, conservative, and public favor before its final defeat in 1982, three states short of adoption. Woven into the Supreme Court's analysis of Lochner and substantive due process, and the later evolution of equal protection law, women's equality -- or difference -- has been the foundation of much of the development of modern constitutional doctrine.

Samito on Military Service, Citizenship and the Irish during the Civil War

Christian G. Samito has posted Thomas F. Meagher, Patrick R. Guiney, and the Meaning of the Civil War for Irish America: The Questions of Nationalism, Citizenship, and Human Rights, which appeared in So Conceived and So Dedicated: Intellectual Life in the Civil War-Era North, ed. Lorien Foote and Kanisorn Wongsrichanalai (Fordham University Press, 2015):

In this essay, I examine how two Irish American leaders considered, and helped to shape, several threads within the transformation of American nationalism that took place during the Civil War era. Both men went further than simply urging devotion to the Union; they interpreted military service to that cause as a way for Irish Americans to claim fuller inclusion in the American people. As I show, Meagher and Guiney point to a more nuanced possibility than is offered by most historians who debate whether Irish American service to the Union helped accelerate assimilation of their ethnic community into American society: fuller integration alongside maintenance of an ethnic and religious identity. As a part of this impulse, Meagher and Guiney envisioned a more robust and better defined concept of American national citizenship in law and practice, one that incorporated greater protection for naturalized citizens abroad and a stronger emphasis on human rights overall. Moreover, in the context of war, both men underwent a political transformation to espouse the ideals of the Republican Party regardless of the criticism aimed at them by some of their fellow Irish Americans for doing so. While Meagher died early in Reconstruction, Guiney revealed the depth to which he embraced Republican egalitarianism by serving as a vocal proponent of its principles during his postwar political career in Boston. Meagher and Guiney not only contributed to the Union by serving in its army but also by helping to interpret the ideological meaning of its victory.

Jus Gentium: A Journal of International Legal History

[Via H-Law, we have the following announcement.]

Talbot Publishing [an imprint of The Lawbook Exchange, Ltd.] is pleased to announce the publication of a new legal history journal. Jus Gentium Journal of International Legal History is the first dedicated journal in the United States to address the history of international law. Much of modern scholarship on the history of international law is preoccupied not with international law, but with international legal doctrine; the doctrinal writings of remarkably few individuals dominate the discourse while the rest remain unseen or overlooked. This journal will encourage further exploration in the archives, for new materials and confirmation of the accuracy of past uses, but welcoming the continued reassessment of international legal history in all of its dimensions.

Jus Gentium is a biannual interdisciplinary journal commencing January 2016. The journal welcomes, in addition to the classical learned article, biographical or historiographical materials on international lawyers, newly-discovered, newly-identified, or newly-translated primary and secondary sources of State practice or doctrinal gloss, analytical reviews of old or new literature, fragments of diplomatic or military history that inform the presence or absence of opinio juris, memoirs or recollections of international legal practitioners in the broadest sense of the word, inquiries into the lexicon of international law, materials that illuminate non-European contributions to the law of nations or that document the migration of international legal concepts from one part of the globe to another. The contributions of the auxiliary historical sciences (numismatics, bookplates, philately, archaeology, etc.) are as welcome as are those of our sister social sciences. Bibliographical essays and review articles are welcome, as are appropriate guides to other international legal materials that will benefit historians of international law. To the extent we are able to do so, we will notice publications in some of the lesser known languages and invite authors or publishers to bring these to our attention.

We are currently accepting submissions for papers, essays and book reviews. Submissions may be made by hard copy submitted through a courier or postal service or by e-mail attachment (web15@psu.edu) in Microsoft Word. These are subject to peer review; responses of acceptance or otherwise will be made as promptly as possible. Interested authors may see our website for instructions on submissions.

EDITOR

William E. Butler, John Edward Fowler Distinguished Professor of Law and International Affairs, Pennsylvania State University

EDITORIAL BOARD
Jean Allain, Queen's University, Belfast
Olga V. Butkevych, Kyiv Shevchenko National University
Volodymyr Butkevych, Sometime Judge, European Court of Human Rights
Chen Yifeng, Peking University Law School
Vincent Chetail, Graduate Institute of International and Development Studies, Geneva
Mark Janis, University of Connecticut School of Law; Visiting Fellow, University of Oxford
Arnulf Becker Lorca, Brown University
Peter Macalister-Smith, Ph.D., Max Planck Institute for Comparative Public Law and  International Law, Heidelberg, Germany
Oleksandr Merezhko, Andrzej Frycz Modrzewski Krakow University
Stephen Neff, University of Edinburgh
Alexander Orakhelashvili, University of Birmingham, England
Michael Palmer, University of London SOAS & IALS
Gennadii S. Starodubtsev, Russian University of Friendship of Peoples, Moscow
Alexander Vylegzhanin, Moscow State Institute of International Relations

Walter Muir Whitehill Prize in Early American History

The Colonial Society of Massachusetts announces the 2015 Walter Muir Whitehill Prize in Early American History.  This prize of $2500, established in memory of Walter Muir Whitehill, for many years Editor of Publications for the Colonial Society and the moving force behind the organization, will be awarded for a distinguished essay on early American history (up to 1825), not previously published, with preference being given to New England subjects. The Society hopes that the prize may be awarded annually.

A committee of eminent historians—Douglas Anderson of the University of Colorado, David Hall of the Harvard Divinity School, and Mary Beth Norton of Cornell University—will review the essays. Their decision in all cases will be final.

By arrangement with the editors of the New England Quarterly, the society will have the winning essay published in an appropriate issue of the Journal.  Essays are now being accepted for consideration. All manuscripts submitted for the 2015 prize must be postmarked no later than 31 December 2015. The Society expects to announce the winning candidate in the spring of 2016.  Entries submitted for consideration should be addressed to:

Whitehill Prize Committee
The New England Quarterly
Department Of History
University of Massachusetts, Boston
100 Morrissey Blvd.

A paper on legal history was a recent winner: Ian Saxine, "The Performance of Peace: Indians, Speculators, and the Politics of Property on the Maine Frontier, 1735-1737,” NEQ 87:3 (September 2014).  A complete list of past winners is here.

Spear injuries show worker life in ancient Egypt

Read the rest here.

Walker on Race and City-County Politics in St. Louis

Anders Walker, Saint Louis University School of Law, has posted House to House: Mergers, Annexations, & the Racial Implications of City-County Politics in St. Louis, which appeared in the St. Louis University Public Law Review 34 (2014):

According to most scholars, Jim Crow's death elevated African Americans even as white departures depressed them, condemning blacks to isolated neighborhoods, segregated schools, and crumbling urban cores. To counter such reversals, liberals endorsed the consolidation of urban and suburban zones, hoping that such moves might thwart flight, promote integration, and ameliorate the effects of what scholars began in the 1970s to term “institutional” or “structural” racism. Initially such efforts focused primarily on schools, but quickly expanded to include other types of consolidation as well, including the consolidation, or merger, of major metropolitan areas and surrounding counties. While the rubric of consolidation has tended to enjoy a progressive cast, certain aspects of metropolitan mergers bode ill for African Americans, particularly in the area of electoral influence. For example, St. Louis City boasts a comparative black majority of 47.9% (with whites totaling 46.4% and Asians 3.1%), while the adjoining county claims only 23.7% African American residents. As this essay shall demonstrate, full integration of the two entities would lead blacks to lose significant electoral clout, particularly over county positions like the prosecutor's office, leaving them politically weaker across the board.

CFP: Constitutional History: Comparative Perspectives

[Via Balkinization, we have the following announcement.  We're guessing it's a companion conference to this.]

Paper proposals are invited for the Second Annual Illinois-Bologna conference on Constitutional History: Comparative Perspectives.  The conference will be held in Chicago on April 12 & 13, 2016.  It is sponsored by University of Illinois College of Law, University of Bologna School of Law, Center for Constitutional Studies and Democratic Development, University of Illinois Law Review.   The conference keynote speaker will be Justice Rosalie Silberman Abella of the Supreme Court of Canada.

Accompanying the spread of constitutional government around the world has been a profound interest in the comparative aspects of constitutional law. Scholars have catalogued the differing features of national constitutions and examined how different constitutional systems resolve common legal issues. So, too, judges faced with legal questions have sought guidance in the decisions of constitutional courts of other nations. While comparative constitutional law is therefore a well-established field, less attention has been paid so far to the comparative dimensions of constitutional history. This international conference aims to address that shortcoming by energizing the study and analysis of constitutional history from comparative perspectives. The conference has several interrelated goals. It will provide a forum for presentation and discussion of current research on issues of constitutional history that crosses national boundaries. Relevant topics in this regard include such things as the origins of constitutional governments in different nations, changes in constitutional structures over time, comparative studies of the shifting roles of constitutional actors, the development of individual rights in different systems, and the legitimacy and longevity of constitutions in various nations. The conference will also bring together scholars who, at present, are working on constitutional histories of single jurisdictions—with the expectation that conversations among these scholars will allow for sharing of methodologies and point also to fresh areas of research that may transcend national boundaries. In addition, the conference has relevance to the task of judging. In some nations, notably the United States, constitutional history plays an important and sometimes decisive role in the resolution by courts of questions of constitutional law. The conference will take up the place of constitutional history in constitutional adjudication. By comparing the practices of courts around the world, the conference will trace the movement (or not) of constitutional history from the academy to the courthouse and examine the risks and benefits of modern practices.

Scholars interested in presenting a paper at the conference should e-mail a title and summary of the proposed paper along with a CV to Professor Jason Mazzone at mazzonej[@]illinois.edu. Proposals received by November 1, 2015 will receive priority. After that date, submitted proposals will be considered only if space remains.

Papers from the conference will be published in the University of Illinois Law Review.  Conference participants are responsible for their own travel and accommodation expenses.

Privacy and Public Image

By 1940, the tort action for invasion of privacy had been recognized in fifteen jurisdictions. The Restatement of Torts acknowledged it in 1939: "a person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other."

Most privacy lawsuits were brought against the media, and most did not involve publications that were especially "private." A number of privacy suits involved pictures of a person taken on the street and published without consent. In these cases, the law of privacy had little to do with "privacy." No exposure of private life had occurred. "Privacy" was about shielding people from publicity they found unfavorable, misrepresentative, or annoying -- that clashed with how they wanted to be known to others.

In Jones v. Herald Post (1929), Lillian Jones witnessed her husband assaulted and stabbed to death on the street, and she tried to fight back against the attackers. She sued for invasion of privacy when the Louisville Herald Post published her picture with a truthful account of her heroic efforts. She said that the publication was offensive to her.

The plaintiff in the 1931 case Blumenthal v. Picture Classics was an elderly woman, a street vendor, who sued over newsreel footage that depicted her on the streets of New York. The footage was candid and unaltered; she was in the film for six seconds. She complained that the portrayal was "foolish, unnatural, and undignified" and an invasion of privacy. In Sweenek v. Pathe, from 1936, a woman claimed that unauthorized newsreel footage taken of her in an exercise course for overweight women was an invasion of privacy because the footage was embarrassing.

As I argue in Laws of Image: Privacy and Publicity in America, it's only in a culture where people feel possessive and protective of their images that such representations, even if objectively benign, will be experienced as significant harms. Only in a culture that has invested great importance in images, that has freighted personal images with emotional and psychological weight, will the law recognize these kinds of harms and take them seriously. The law tracked American culture's focus on images; in recognizing these privacy claims as worthy of judicial attention, and monetary judgments in some cases, courts validated the "image-conscious sensibility" and the modern image-conscious self.

600-year-old Henry V warship found in Hampshire river

Read the rest here.

Goelzhauser on "Graveyard Dissents on the Burger Court"

In plenty of time for Halloween, Greg Goelzhauser, Utah State University, Political Science, has posted Graveyard Dissents on the Burger Court, which appeared in the Journal of Supreme Court History 40 (2015): 188-202.

Chief Justice Burger (LC)

A graveyard dissent occurs when a justice silently acquiesces to the majority disposition and opinion rather than writing separately despite continuing disagreement. Although graveyard dissents were common during the early period of the Court’s history, their continued use in the modern era is puzzling in light of the rise and ubiquity of separate opinion writing. Moreover, voting contrary to one’s sincere preference conflicts with legal and policy based explanations for judicial decision-making. Unfortunately, the systematic exploration of graveyard dissents has been limited by a difficult observational problem: by definition, explanations for this posture are not available in opinions and are otherwise scant in the existing literature. In this article, I leverage memoranda exchanged between justices during the Burger Court era to explain what motivates graveyard dissents. The archival evidence suggests that graveyard dissents are often motivated by institutional time constraints, perceptions of case importance, and the dissolution of minority coalitions. The results shed new light on a puzzling and persistent institutional norm while potentially helping to explain the recent increase in consensus on the contemporary Court.

H/t: Legal Theory Blog

Tomlins on Adelaide's Blackstone

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social PolicyProgram, has posted Adelaide's Blackstone, which is forthcoming in the Adelaide Law Review.

This essay is an extended commentary on the recently-published (2014) essay collection entitled Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts, edited by Wilfrid Prest. The collection is an important element in an ongoing multi-year project of engagement with Blackstone based at the University of Adelaide. It has staked out an ambitious interpretive terrain. In matters of interpretation, essayists move beyond legal analysis and legal history to literary criticism and art history. In assessing the Commentaries’ dissemination and impact, they pursue Blackstone beyond the usual concentration on the British Atlantic world into new, less familiar climes – the French Atlantic (Louisiana and Quebec) and Australasia. In charting the Commentaries’ influence, finally, Re-Interpreting Blackstone’s Commentaries is both enjoyable and instructive. Given the challenge of circumstance – an exceptionally familiar work written by a ‘conventionally dull’ man – this is no small achievement. The essay concludes with commentary on the place of Blackstone in the history of Australian settler-colonialism, with particular reference to the leading "native title" (indigenous land rights) cases of the past half century. It reflects on the place of history in native title litigation, and also on the meaning of resort to Blackstone by indigenous activists and their allies.
they move beyond the history of common law adjudication to the distinctly contemporary subject of American constitutional originalism and its genealogy. The essay finds that

[Update: The TOC of Reinterpreting Blackstone's Commentaries is here.]

Making Rocket Propellants from Martian Air (1978)

Water frost on Utopia Planitia as imaged by the Viking 2 lander. The horizon appears tilted because Viking 2 alighted with one of its three foot pads on a large rock. Image credit: NASA

In the late 1970s, through the initiative of its director, Bruce Murray, the Jet Propulsion Laboratory (JPL) studied a range of possible Mars missions, including Mars Sample Return (MSR). Murray and others at the Pasadena, California-based lab were aware that funds for new Mars missions would be hard to come by; the U.S. economy was under strain and NASA, JPL's main customer, was devoting most of its resources to developing the Space Shuttle.

In addition, equivocal data from the astrobiology experiments on the twin Vikings, the first successful Mars landers, had been interpreted as negative, helping to damp public enthusiasm for the Red Planet. Would-be Mars explorers reasoned that, if an MSR mission would stand a chance of being accepted, then they would need to find technologies and techniques that could dramatically cut its anticipated cost.

In July-August 1978, two years after the Vikings landed and looked for life on Mars, three engineers at JPL - Robert Ash, a visiting faculty fellow from Old Dominion University in Virginia, and JPL staffers William Dowler and Giulio Varsi - reported on a small study they had conducted of one such cost-saving technology: specifically, making MSR Earth-return rocket propellants from martian resources. Using Earth-return propellants made on Mars would greatly reduce the MSR spacecraft's mass at launch from Earth, permitting it to be launched on a small, relatively cheap launch vehicle.

Earlier researchers had proposed using Mars resources to make rocket propellants, but Ash, Dowler, and Varsi were the first to base their study on data collected on and in orbit of Mars. The Viking landers had confirmed that martian air is made up almost entirely of carbon dioxide, and had found that the planet's rusty red dirt contains an appreciable amount of water. The Viking 2 lander, at rest on the northern plain of Utopia Planitia, had imaged water frost on the surface in winter (image at top of post). In addition, the twin Viking orbiters had imaged water ice clouds high in the atmosphere and polygonal terrain resembling that found in near-polar permafrost regions on Earth.

Ash, Dowler, and Varsi examined three propellant combinations that would exploit resources the Vikings had found on Mars. The first, carbon monoxide fuel and oxygen oxidizer, could be produced by splitting ubiquitous martian atmospheric carbon dioxide. They rejected this combination, however; while easy to produce, it could yield only mediocre performance.

Hydrogen/oxygen, on the other hand, was a high-performance propellant combination containing more than three times the propulsive energy of carbon monoxide/oxygen. It could be produced by collecting and electrolyzing (splitting) martian water, but Ash, Dowler, and Varsi rejected the combination because a heavy, electricity-hungry cooling system would be needed to keep the hydrogen in usable liquid form. This requirement would, they estimated, negate the mass-savings of making Earth-return propellants on Mars.

The third combination they examined was methane/oxygen, which could be produced on Mars using a process discovered in 1897 by Nobel Prize-winning chemist Paul Sabatier. Combining a small amount of hydrogen brought from Earth with martian atmospheric carbon dioxide in the presence of a nickel or ruthenium catalyst would yield methane and water. The methane would be pumped to the MSR Earth-return rocket stage fuel tank and the water would be split using electricity to produce oxygen and hydrogen. The oxygen would be pumped to the MSR Earth-return oxidizer tank and the hydrogen would be reacted with more martian atmospheric carbon dioxide to produce more methane and water.

Ash, Dowler, and Varsi favored methane/oxygen because it would provide 80% of hydrogen/oxygen's propulsive energy, and because methane remains in liquid form at typical martian surface temperatures. They estimated that launching a one-kilogram Mars sample directly to Earth (that is, with no stop in Mars orbit to rendezvous with and transfer the sample to a Earth-fueled Earth Return Vehicle) would require manufacture of 3780 kilograms of methane/oxygen, and calculated that a Mars surface stay-time of at least 400 days would be necessary to allow sufficient time to manufacture adequate quantities of propellants.

The 1978 JPL study would inspire many other mission designers to tap resources the twin Vikings had confirmed exist on Mars. In 1982, for example, at the 1982 American Institute of Astronautics and Aeronautics/American Astronautical Society Astrodynamics conference Science Applications Incorporated engineers presented a paper on use of Mars resources in automated rocket-propelled ballistic hoppers and propeller-driven airplanes. The inhabited base scenario developed at the 2nd The Case for Mars Conference (1984) relied heavily on extraction of resources from the martian atmosphere for both life-support consumables and rocket propellants.

Conceptual design of a large system for extracting propellants and life-support consumables from martian air. Image credit: C. Emmart/Boulder Center for Science and Policy

Sources

"Feasibility of Rocket Propellant Production on Mars," R. L. Ash, W. L. Dowler, and G. Varsi, Acta Astronautica, Vol. 5, July-August 1978, pp. 705-724

"In Situ Propellant Production: The Key to Global Surface Exploration of Mars?" AIAA-82-1477, S. Hoffman, J. Niehoff, M. Stancati; paper presented at the AIAA/AAS Astrodynamics Conference in San Diego, California, 9-11 August 1982

The Case for Mars: Concept Development of a Mars Research Station, JPL Publication 86-28, NASA Jet Propulsion Laboratory, 15 April 1986

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