Compromise and Marital-Status Discrimination

At the heart of After Roe is a story about when and why conflict about abortion and gender escalated. Before writing the book, I believed that the Roe decision itself inevitably led to the culture wars we face now. As Gene Burns, Linda Greenhouse, and Reva Siegel have shown, compromise on the abortion issue itself seemed impossible well before the Court intervened. By raising the salience of the abortion issue, however, the Court drew attention to a question that hopelessly divided Americans. In responding to Roe, the antiabortion movement got bigger and more sophisticated. As historian Daniel K. Williams argues in a forthcoming book, abortion opponents also responded to the decision by prioritizing a constitutional amendment. Movement members ended up supporting whichever political party endorsed their constitutional agenda. When Ronald Reagan made the Republican Party the “party of life,” he strengthened an alliance between pro-lifers and the political Right.

Just the same, as I document in After Roe, the Court’s 1973 decision did not immediately or inevitably eliminate compromises on other important gender issues. Indeed, in the decade after Roe, influential activists on either side of the debate viewed common-ground solutions as more important than ever, particularly on the issues of pregnancy discrimination, welfare for adolescent mothers, and even the regulation of fetal research. I argue that the polarization of these issues came later and for reasons beyond the Court’s decision, including the rise of the New Right and Religious Right and political party realignment.
         
The book left me wondering about other areas of possible cooperation. At times in the 1970s, some pro-lifers pushed for laws banning marital-status discrimination, particularly at the local and state level. For certain movement leaders, these laws promised to reduce abortion rates by removing the stigma of illegitimacy and unwed motherhood. In the same period, as part of the early push for civil-rights ordinances, gay, lesbian, bisexual, and transgender activists also called for bans on discrimination on the basis of both sexual preference and marital status. For these advocates, ending marital-status discrimination would protect gays and lesbians who could not marry while undermining the legitimacy of state regulation of sexuality more broadly.
         
Agreeing with gay, lesbian, bisexual, or transgender activists would, I imagine, have exposed another fault line in the antiabortion movement. Some movement members saw sexual irresponsibility, not abortion, as the core problem in American society. While praising marital, procreative sexuality, others argued against laws that punished what they considered transgressive sex, seeing these regulations as harmful to children and mothers and coercive of abortion.

Serena Mayeri’s forthcoming work on the rise of marital supremacy in the 1970s will illuminate an important part of the story about challenges to the sexual status quo in the decade after Roe. A surprisingly diverse group of activists called for protection of the non-marital family. In order to understand the consequences and history of the marriage equality struggle, we should turn our attention to the legal history of that effort and its ultimate decline.

Michigan’s Legal History Workshop, Fall 2015

Here’s the Fall 2005 lineup for the Legal History Workshop jointly sponsored by the University of Michigan Law School and University of Michigan Department of History.  Sessions meet in 0220 South Hall (Law School) unless otherwise noted.  Guests can obtain the readings via email from Dara Faris (dfaris@umich.edu.)

September 9. (Wednesday.)  C
laire Lemercier. CNRS and Sciences Po (Paris.)
"How do Businessmen Like Their Courts? Evidence from Mid-19th Century France,     England, and New York City."  Special Session Co-Sponsored by the Law & Economics Workshop.  OTE: This session held in Hutchins Hall Room 132.

September 22.   Eric Foner. Columbia University.
Gateway to Freedom: The Hidden History of the Underground Railroad. With guest     commentator, Tiya Miles, University of Michigan.

September 29. Sara Mayeux. University of Pennsylvania Law School.
"The ‘Progressive' Public Defender (and Its Alternatives) in Los Angeles, 1914-1949"

October 6. Rebecca J. Scott. University of Michigan.
"'Acts of Ownership and Authority': The Enslavement of Eulalie Oliveau"

October 13. Tom Romero. Strum College of Law, University of Denver.
"Water, Water Everywhere…and No Where: Bridging the Confluence of Water and     Immigration Law"

October 27. Charlotte Walker-Said. John Jay College, CUNY.
"Faith, Power, and Family: Law and Christianity in Interwar Cameroon"

November 3.  Kunal Parker. University of Miami School of Law.
"Making Foreigners: Immigration and Citizenship Law in America"

November 17.  Amanda Alexander. University of Michigan.
"'The Authorities Cannot Meet Demand': Prison Labor, Pass Laws, and Agricultural     Development in Apartheid South Africa"

November 24.  H. Timothy Lovelace, Indiana University Mauer School of Law.
"The World is on Our Side:  The U.S. Origins of the United Nation's Race Convention"

December 3 (Thursday.)  Tomiko Brown-Nagin, Harvard Law School.
"The Honorable Constance Baker Motley: The Honor and Burden of Being First"
 NOTE: Location is Hutchins Hall room 236.

Michigan’s Legal History Workshop, Fall 2015

Here’s the Fall 2005 lineup for the Legal History Workshop jointly sponsored by the University of Michigan Law School and University of Michigan Department of History.  Sessions meet in 0220 South Hall (Law School) unless otherwise noted.  Guests can obtain the readings via email from Dara Faris (dfaris@umich.edu.)

September 9. (Wednesday.)  C
laire Lemercier. CNRS and Sciences Po (Paris.)
"How do Businessmen Like Their Courts? Evidence from Mid-19th Century France,     England, and New York City."  Special Session Co-Sponsored by the Law & Economics Workshop.  OTE: This session held in Hutchins Hall Room 132.

September 22.   Eric Foner. Columbia University.
Gateway to Freedom: The Hidden History of the Underground Railroad. With guest     commentator, Tiya Miles, University of Michigan.

September 29. Sara Mayeux. University of Pennsylvania Law School.
"The ‘Progressive' Public Defender (and Its Alternatives) in Los Angeles, 1914-1949"

October 6. Rebecca J. Scott. University of Michigan.
"'Acts of Ownership and Authority': The Enslavement of Eulalie Oliveau"

October 13. Tom Romero. Strum College of Law, University of Denver.
"Water, Water Everywhere…and No Where: Bridging the Confluence of Water and     Immigration Law"

October 27. Charlotte Walker-Said. John Jay College, CUNY.
"Faith, Power, and Family: Law and Christianity in Interwar Cameroon"

November 3.  Kunal Parker. University of Miami School of Law.
"Making Foreigners: Immigration and Citizenship Law in America"

November 17.  Amanda Alexander. University of Michigan.
"'The Authorities Cannot Meet Demand': Prison Labor, Pass Laws, and Agricultural     Development in Apartheid South Africa"

November 24.  H. Timothy Lovelace, Indiana University Mauer School of Law.
"The World is on Our Side:  The U.S. Origins of the United Nation's Race Convention"

December 3 (Thursday.)  Tomiko Brown-Nagin, Harvard Law School.
"The Honorable Constance Baker Motley: The Honor and Burden of Being First"
 NOTE: Location is Hutchins Hall room 236.

Harder and Patten, "Patriation and Its Consequences: Constitution Making in Canada"

New from the University of British Columbia Press: Patriation and Its Consequences: Constitution Making in Canada (June 2015), by Lois Harder (University of Alberta) and Steven Patten (University of Alberta). A description from the Press:
Few moments in Canadian history are as intriguing as the "patriation" of Canada’s constitution from Britain. Over the years, the tale of the political battle between Prime Minister Pierre Trudeau and the "Gang of Eight" provincial premiers opposing his patriation plans has developed mythical status. Constitutional lore suggests Canadians would not have a patriated constitution or entrenched the Charter of Rights and Freedoms if not for some last-minute negotiations that took place in a hotel kitchen the night of 4 November 1981 – a night Quebec Premier René Lévesque famously described as the "Night of the Long Knives," when his seven provincial allies deserted him.

In an effort to look beyond this familiar narrative, Patriation and Its Consequences: Constitution Making in Canada revisits these negotiations and the personalities, visions, and struggles that shaped the resulting constitutional agreement. Offering fresh perspectives on the politics of this key moment in Canadian history, it focuses on the players behind the patriation process, including First Nations and feminist activists, who helped shape Canada’s new constitution.

The volume also examines the long shadow of patriation, including the alienation of Quebec, the character of Canadian federalism, Indigenous constitutionalism and Aboriginal treaty rights, and the struggle to ensure gender equality rights in Canada. 
More information, including the TOC, is available here.

Harder and Patten, "Patriation and Its Consequences: Constitution Making in Canada"

New from the University of British Columbia Press: Patriation and Its Consequences: Constitution Making in Canada (June 2015), by Lois Harder (University of Alberta) and Steven Patten (University of Alberta). A description from the Press:
Few moments in Canadian history are as intriguing as the "patriation" of Canada’s constitution from Britain. Over the years, the tale of the political battle between Prime Minister Pierre Trudeau and the "Gang of Eight" provincial premiers opposing his patriation plans has developed mythical status. Constitutional lore suggests Canadians would not have a patriated constitution or entrenched the Charter of Rights and Freedoms if not for some last-minute negotiations that took place in a hotel kitchen the night of 4 November 1981 – a night Quebec Premier René Lévesque famously described as the "Night of the Long Knives," when his seven provincial allies deserted him.

In an effort to look beyond this familiar narrative, Patriation and Its Consequences: Constitution Making in Canada revisits these negotiations and the personalities, visions, and struggles that shaped the resulting constitutional agreement. Offering fresh perspectives on the politics of this key moment in Canadian history, it focuses on the players behind the patriation process, including First Nations and feminist activists, who helped shape Canada’s new constitution.

The volume also examines the long shadow of patriation, including the alienation of Quebec, the character of Canadian federalism, Indigenous constitutionalism and Aboriginal treaty rights, and the struggle to ensure gender equality rights in Canada. 
More information, including the TOC, is available here.

RFP: A History of the US Court of Appeals for Veterans Claims

[We have the follow Request for Proposals for a "book on the history of the creation and the first 25 years of the U.S. Court of Appeals for Veterans Claims."]

Content.  The U.S. Court of Appeals for Veterans Claims (USCAVC) seeks proposals for a scholarly book on the history of the creation and the first 25 years of the Court. If the Court determines to publish such a book, the book will describe judicial review of veterans appeals and the effect of the Court upon veterans' benefits and the Department of Veterans Affairs (VA) claims and appeals process. Possible topics could include:

· Efforts of veterans and organizations to obtain judicial review of veterans benefits decisions
· Legislative history and the process involved in the creation of the Court
· The Early Phase of the Court's History, including
· Interviews with original judges
· Creating a new body of law
· Administrative challenges in establishing a new court
· Later Phases of Court history, including significant events since inception
· Gardner v. Brown-first USCAVC decision subject of Supreme Court review
· The effect of the Veterans Claims Assistance Act on the Court
· The second wave of new judges
· Establishment of USCAVC Bar Association
· Temporary expansion of Court to nine judges
· Unique features of the Court and their impact
· Single-judge decision authority
· Representation of veterans by non-attorney practitioners
· Appellate review by an intermediate appellate court
· Court's place in the veterans appellate structure
· Significant decisions of the Court

Sources will include published records of the Court, other published accounts (such as journal articles, Congressional legislative records, and VA records), statistics, and oral histories.

Format.  The book will be a hard cover illustrated history of approximately 100-200 pages in length not including the table of contents, index and appendices. The book size is expected to be 6.75" x 10".

Terms of Service.  The Court will pay reasonable author's fees plus expenses.  The Court will not pay any fees incurred for the preparation of any bidder's response to this Request for Proposals.  There will be a series of deadlines for deliverables and drafts to the Court for review, with the ultimate time for the author(s) to complete the draft to be approximately one year from the signing of a contract.

Rights to the Work.  The Court will retain exclusive right to publish the materials. The author will be provided a specified number of copies for personal use and not for resale.

Selection Criteria. Selection is at the sole discretion of the Court but if a selection is made, it will be made based upon the Best Value.  Factors considered will include:
· author's proposed approach to the book, suggested deadlines, schedule, and budget
· author's overall experience
· quality of author's past publications
· author's familiarity with subject matter
· author's fee and estimated expenses

Selection and any resulting contract will be in compliance with the Court's procurement policy and all applicable federal laws. Award of a contract is contingent on the absence of, or the absence of appearance of, any conflicts of interest, as determined by the Court, between the bidder and the Court.

Proposals and Deadline.  All proposals should include the following:
 · a curriculum vitae for each author
· a 1,000-1,500 word description of the proposed approach to the book
· complete contact information for each author
· suggested deadlines and schedule for deliverables
· suggested budget to include fees and expenses
· two references

Deadline for the submission of proposals is November 30, 2015.  Proposals should be sent as email attachments to:

Gregory O. Block
Clerk of the Court
United States Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, D.C. 20004
Email: contracting@uscourts.cavc.gov

Questions.  Questions should be directed to the Clerk of the Court care of the email address noted above.  Answers to questions will be sent by reply email, and all questions and answers submitted will be published for review on our Court website under "Employment" via the link titled "Court History Book Request for Proposals Q&A Summary."

RFP: A History of the US Court of Appeals for Veterans Claims

[We have the follow Request for Proposals for a "book on the history of the creation and the first 25 years of the U.S. Court of Appeals for Veterans Claims."]

Content.  The U.S. Court of Appeals for Veterans Claims (USCAVC) seeks proposals for a scholarly book on the history of the creation and the first 25 years of the Court. If the Court determines to publish such a book, the book will describe judicial review of veterans appeals and the effect of the Court upon veterans' benefits and the Department of Veterans Affairs (VA) claims and appeals process. Possible topics could include:

· Efforts of veterans and organizations to obtain judicial review of veterans benefits decisions
· Legislative history and the process involved in the creation of the Court
· The Early Phase of the Court's History, including
· Interviews with original judges
· Creating a new body of law
· Administrative challenges in establishing a new court
· Later Phases of Court history, including significant events since inception
· Gardner v. Brown-first USCAVC decision subject of Supreme Court review
· The effect of the Veterans Claims Assistance Act on the Court
· The second wave of new judges
· Establishment of USCAVC Bar Association
· Temporary expansion of Court to nine judges
· Unique features of the Court and their impact
· Single-judge decision authority
· Representation of veterans by non-attorney practitioners
· Appellate review by an intermediate appellate court
· Court's place in the veterans appellate structure
· Significant decisions of the Court

Sources will include published records of the Court, other published accounts (such as journal articles, Congressional legislative records, and VA records), statistics, and oral histories.

Format.  The book will be a hard cover illustrated history of approximately 100-200 pages in length not including the table of contents, index and appendices. The book size is expected to be 6.75" x 10".

Terms of Service.  The Court will pay reasonable author's fees plus expenses.  The Court will not pay any fees incurred for the preparation of any bidder's response to this Request for Proposals.  There will be a series of deadlines for deliverables and drafts to the Court for review, with the ultimate time for the author(s) to complete the draft to be approximately one year from the signing of a contract.

Rights to the Work.  The Court will retain exclusive right to publish the materials. The author will be provided a specified number of copies for personal use and not for resale.

Selection Criteria. Selection is at the sole discretion of the Court but if a selection is made, it will be made based upon the Best Value.  Factors considered will include:
· author's proposed approach to the book, suggested deadlines, schedule, and budget
· author's overall experience
· quality of author's past publications
· author's familiarity with subject matter
· author's fee and estimated expenses

Selection and any resulting contract will be in compliance with the Court's procurement policy and all applicable federal laws. Award of a contract is contingent on the absence of, or the absence of appearance of, any conflicts of interest, as determined by the Court, between the bidder and the Court.

Proposals and Deadline.  All proposals should include the following:
 · a curriculum vitae for each author
· a 1,000-1,500 word description of the proposed approach to the book
· complete contact information for each author
· suggested deadlines and schedule for deliverables
· suggested budget to include fees and expenses
· two references

Deadline for the submission of proposals is November 30, 2015.  Proposals should be sent as email attachments to:

Gregory O. Block
Clerk of the Court
United States Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, D.C. 20004
Email: contracting@uscourts.cavc.gov

Questions.  Questions should be directed to the Clerk of the Court care of the email address noted above.  Answers to questions will be sent by reply email, and all questions and answers submitted will be published for review on our Court website under "Employment" via the link titled "Court History Book Request for Proposals Q&A Summary."

Eaton on Spectral Evidence at Salem, 1692

Matteson's "Trial of George Jacobs" (LC)
Rebecca Eaton has posted her LL.B honors paper at the Victoria University of Wellington, written in 2013, The Legitimacy of Spectral Evidence During the Salem Witchcraft Trials:
This paper looks at the use of spectral evidence during the Salem witch trials and examines whether its use was legitimate and in accordance with the evidential standards of the time (1692). Ultimately this paper finds that the use of spectral evidence was legitimate as it followed the slim guidelines available at the time. The court followed a strong precedent and the limited statutory guidance and instructions that were available. However there was acknowledgement at the time that spectral evidence was limiting the rights of those accused and was leading to unjust convictions. As such these trials invoked an acknowledgement of more modern standards of evidence. Therefore spectral evidence was legitimately used given the guidelines of the time despite the unjust effect that it had.

Eaton on Spectral Evidence at Salem, 1692

Matteson's "Trial of George Jacobs" (LC)
Rebecca Eaton has posted her LL.B honors paper at the Victoria University of Wellington, written in 2013, The Legitimacy of Spectral Evidence During the Salem Witchcraft Trials:
This paper looks at the use of spectral evidence during the Salem witch trials and examines whether its use was legitimate and in accordance with the evidential standards of the time (1692). Ultimately this paper finds that the use of spectral evidence was legitimate as it followed the slim guidelines available at the time. The court followed a strong precedent and the limited statutory guidance and instructions that were available. However there was acknowledgement at the time that spectral evidence was limiting the rights of those accused and was leading to unjust convictions. As such these trials invoked an acknowledgement of more modern standards of evidence. Therefore spectral evidence was legitimately used given the guidelines of the time despite the unjust effect that it had.

Cohen on Judge Ginsburg’s Seg Academy Case

My Georgetown Law colleague Stephen B. Cohen has posted “Seg Academies,” Taxes, and Judge Ginsburg, which is forthcoming in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (Cambridge University Press, 2015):
This essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination.
Cambridge writes of the collection:
Ruth Bader Ginsburg is a legal icon. In more than four decades as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. This book chronicles and evaluates the remarkable achievements Ruth Bader Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg's career. Together, these perspectives document the impressive legacy of one of the most important figures in modern law.
 The TOC is here.

Cohen on Judge Ginsburg’s Seg Academy Case

My Georgetown Law colleague Stephen B. Cohen has posted “Seg Academies,” Taxes, and Judge Ginsburg, which is forthcoming in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (Cambridge University Press, 2015):
This essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination.
Cambridge writes of the collection:
Ruth Bader Ginsburg is a legal icon. In more than four decades as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. This book chronicles and evaluates the remarkable achievements Ruth Bader Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg's career. Together, these perspectives document the impressive legacy of one of the most important figures in modern law.
 The TOC is here.

Age of Lawyers: The Roots of American Law in Shakespeare’s Britain

Paster Reading Room (credit)
We have the following announcement of a new (and free) exhibit at the Folger, Age of Lawyers: The Roots of American Law in Shakespeare's Britain.  The curator is the Folger’s Caroline Duroselle-Melish.  The Academic Advisor is Erin Kidwell of the Georgetown Law Library.  (Georgetown is loaning Sir Edward Coke’s annotated copy of Bracton.)  The exhibit runs September 12, 2015 through January 3, 2016, so plan on viewing it when you’re in town for the ASLH meeting a few blocks away.  The exhibit is in memory of Dr. Christopher Brooks (1948–2014).
In the 800th anniversary year of the Magna Carta, Age of Lawyers will offer a close-up look at the rapid increase of lawyers and legal actions in Shakespeare's Britain, from the law's impact on daily life to major political and legal disputes—some invoking the Magna Carta—that still influence American politics and government.

Age of Lawyers will give visitors the chance to explore many of the Folger legal manuscripts on display in further depth through newly digitized images and translated transcripts produced by a current Folger project, Early Modern Manuscripts Online (EMMO).