The Law Are an Ass

Minor Myers, Brooklyn Law School, has posted Supreme Court Usage and the Making of an 'Is' It originally appeared in the Green Bag, 2d ser. 11 (Summer 2008): 457. Here's the abstract:

This survey examines use of the phrases “United States is” and “United States are” in opinions of the United States Supreme Court from 1790 to 1919. The familiar claim, popularized by Shelby Foote in the Ken Burns Civil War documentary, is that the Civil War marked a shift in usage from plural to singular. This survey demonstrates that in the Supreme Court this account of the timing of the change is not accurate. Although patterns of usage changed abruptly in the 1860s, justices continued to use the plural form through the end of the nineteenth century. Indeed, the plural usage was the predominant usage in the 1870s, 1880s, and 1890s. Only in the beginning of the twentieth century did the singular usage achieve preeminence and the plural usage disappear almost entirely.

Here are some responses by well-informed Green Bag readers.

Image credit.

Morag-Levine 's Long View on Agency Statutory Interpretation

Noga Morag-Levine, Michigan State University College of Law, has posted Agency Statutory Interpretation and the Rule of Common Law, which is forthcoming in Michigan State Law Review (2009). Here is the abstract:

American administrative theory and law have long treated as an axiom the notion that agencies are subordinate to the statutes that govern their mandates, and that statutory interpretation is central to the implementation of these mandates. And yet, as recent discussions among administrative law scholars have made evident, statutory interpretation is frequently a poor descriptor of administrative practices that more closely resemble direct policy making. This article argues that the explanation for this dissonance is to be found in the process through which British and later American administrative law came to construct the mandate of agencies through the language of statutory interpretation. Central to this process were long-standing divisions in England over the compatibility of continental-styled royal law-making prerogative with British constitutional principles. The victory of Parliament and the common lawyers at the end of the 17th century formally deprived the executive of prerogative authority in domestic matters, subordinating instead the scope of executive regulatory authority to the terms of statutory mandates. But this formula soon served to disguise unresolved disagreements on whether and when administrators were entitled to make, rather than strictly interpret law. Following England’s lead, the American administrative state evolved over the course of the 19th century through protracted conflict over the legitimacy of continental administrative paradigms and the supremacy of common law principles. I argue that as was the case in England, the view of agencies as interpreters of statutory mandates offered a workable compromise between those who viewed administrative power as incompatible with common law constitutionalism and those who argued for the necessity and legitimacy of agency autonomy in the modern administrative state. The compromise proved resilient largely due to the ambiguous scope of the pertinent interpretive mandate and the broad range of administrative activities that could arguably fit under its expansive umbrella. In the process, longstanding divisions over executive lawmaking were recast as administrative law debates over the degree of deference to be accorded to agency interpretation. The relevance of the historical conflict over prerogative lawmaking to contemporary controversies regarding the nature of administrative power has largely receded from view. On occasion, however, unresolved tensions at the core of the compromise resurface, as in the recent disagreement between Professor Mashaw and Pierce over the existence of a distinct agency policymaking authority. The core values at stake in current discussions of agency statutory interpretation become easier to recognize when viewed in the context of deep-seated historical disagreement over the legitimacy of executive law making within the common law world.

Image credit: A.V. Dicey

SHFG Prizes

[Here's an announcement from the Society for History in the Federal Government:]

The Society for History in the Federal Government awards two prizes each year for outstanding scholarship in a published article or essay related to the history of the federal government. We are inviting submissions for the 2010 prizes, for articles or essays published during calendar year 2009. (The deadline for submissions is December 1, 2009.)

1. The James Madison This annual award is given for excellence in an article or essay that deals with any aspect of the federal government's history.

2. The Charles Thomson Prize is awarded for the best article or essay on a topic in federal history. The nominated article or essay must have been prepared by a federal historian or for a federal history program, including history offices in the federal agencies and history- related programs in other federal entities.

An entry for either prize should consist of a copy of the published article and a letter indicating the significance and merits of the article (a cover letter from the journal's editor is preferred, although a letter from the author is acceptable). For articles published late in the year, the Committee will accept photocopies of the galleys in lieu of the final published article. A copy of the submission should be sent separately to each of three members of the Prize Committee:

Larry DeWitt, Social Security Administration Historian's Office, Rm. 1532 OPS, Baltimore, MD. 21235. (larry.dewitt@ssa.gov)

Michele Lyons, 875 Hunting Lake Drive, Huntingtown, MD 20639 (lyonsm@mail.nih.gov)

Darrell Lemke, 9207 Chanute Drive, Bethesda, MD, 20814 lemke trautman@rcn.com)

The Madison Prize commemorates the nation's fourth President and the principal author of The Federalist Papers. The Thomson prize commemorates the nation's first federal archivist. Both prizes are awarded at the Society's annual conference in February.

Confronting/Imagining Legal Justice & Injustice: at Harvard tomorrow

Tomorrow at Harvard:

Confronting Legal Injustice/Imagining Legal Justice Friday, November 06, 2009

9:30 AM

Ames Courtroom, Austin Hall

Harvard Law School

Cambridge, MA 02138

This day-long conference will bring together authors from two recent books co-edited by Professors Charles Ogletree and Austin Sarat. Please join us as we discuss the various ways we confront the law’s failures as well as imagine a nation without capital punishment.

9:30 AM - Welcome and Opening Remarks
Professor Austin Sarat, Amherst College
Professor Charles Ogletree, Harvard Law School

10:00 AM - When Law Fails: Making Sense of Miscarriages of Justice
Professor Douglas Berman, Ohio State University, Moritz College of Law
Professor Mary Dudziak, University of Southern California
Professor Linda Meyer, Quinnipiac University School of Law
Discussant: Professor Charles Ogletree, Harvard Law School

12:00 - 1:30 PM - Lunch and Keynote
Stephen Bright, President and Senior Counsel, Southern Center for Human Rights

1:45 PM - The Road to Abolition?: The Future of Capital Punishment
Professor Simon Cole, University of California at Irvine
Professor Deborah Denno, Fordham University School of Law
Professor Bernard Harcourt, University of Chicago
Professor Robin Wagner-Pacifici, Swarthmore College
Discussant: Professor Randall Kennedy, Harvard Law School

3:45 - 4:00 PM - Closing Discussion: Austin Sarat and Charles Ogletree

Co-sponsored by: Charles Hamilton Houston Institute for Race and Justice, Amherst College’s Charles Hamilton Houston Forum on Law and Social Justice, NYU Press.

(I will be in town only long enough for my panel, so apologies to readers and Boston-area friends -- there will be no time for anything else.)

November at the Miller Center

The Governing American in a Global Era Colloquium of the Miller Center of Public Affairs at the University of Virginia has a number of interesting sessions this month. Further about webcasts and attending in person is here.

Friday, November 6
Cell Blocks and Red Ink: Mass Incarceration, the Economic Crisis, and Penal Reform
Marie Gottschalk, Political Science, University of Pennsylvania

Friday, November 13
The Conservative Insurgency and Presidential Power
Stephen Skowronek, Political Science, Yale University

Friday, November 20, 2009
Rethinking the Kitchen Debate: U.S. Supermarkets and the Cold War Farms Race
Shane Hamilton, History, University of Georgia.

Johns on Julius Stone

Fleur E. Johns, Sydney Law School, has posted The Gift of Realism: Julius Stone and the International Legal Academy in Australia, which is forthcoming in Julius Stone: A Study of Influence, eds. H. Irving, J. Mowbray & K. Walton (Sydney: Federation Press). Here is the abstract:

This chapter contributes to a series of studies seeking to gauge what has been made of the work of international lawyer and legal theorist Julius Stone. Among Stone’s possible intellectual progeny, this chapter focuses on an obstreperous and, at times, ungrateful brood: scholars and teachers of international law in Australia. Focusing on a forty year period from the 1954 publication of Stone’s first book-length work in international law, Legal Controls of International Conflict, this chapter begins an assessment of the influences - direct and indirect - of Stone’s work upon international legal scholarship in Australia. In so doing, this chapter uses Stone’s role and impact in international legal scholarship in Australia as a way of reflecting on two, broader sets of questions. First, to what extent or in what ways might the Australian legal academy be understood to have ‘received’ American legal realism? If, as Neil Duxbury would have it, American legal realism was more a ‘mood’ than a coherent movement, how has that mood featured in the affective, performative and constative repertoire of legal scholarship in Australia? Second, what might the life or lifelessness of American legal realism in the Australian academy (traced through a single capillary: the impact of Julius Stone’s version in international law), suggest about the vagaries and the stakes of legal transfer in the scholarly domain? What questions might this account pose for students of legal transfer working with the rubrics of ‘transplant’ (Watson), or ‘palace wars’ (Dezalay and Garth)?

Allan C. Hutchinson’s contribution to the volume, on Stone’s essay “The Province of
Jurisprudence Redetermined” (1944), is here.

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Historians & others on Obama

From Ralph Luker:

A year after his election, historians assess President Obama: Walter Isaacson, Michael Kazin, Rick Perlstein, Ted Widmer, and Garry Wills, Daily Beast, 2 November; and Doris Kearns Goodwin, Huffington Post, 3 November.

And in the New York Times, reporters assess the Obama presidency.

Fudge and Tucker on Picketing Before the British Columbia Court of Appeals

'Everybody Knows What a Picket Line Means': Picketing Before the British Columbia Court of Appeal has just been posted by Judy Fudge, University of Victoria Faculty of Law and Eric Tucker, York University Osgoode Hall Law School. It appeared in BC Studies, No. 162, pp. 53-79, Summer 2009. Here's the abstract:

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a procedural mechanism for acquiring collective bargaining rights and imposed a duty on employers to recognize and bargain in good faith with certified unions. At the end of the war, all provinces, including British Columbia, enacted collective bargaining legislation based on this model. The law, however, did not alter the judicially created common law rules governing collective action. As a result, important questions about the interaction between the statutory regime and the common law were unresolved. As trade union membership grew and labour militancy increased, the British Columbia Court of Appeal was soon given the opportunity to address these issues and in a series of decisions handed down through the 1950s and 1960s it narrowly limited the ambit for lawful workers’ collective action. The Social Credit government largely supported the court’s approach but when the first NDP government in British Columbia was elected in 1972 it stripped the court of its power to regulate picketing and transferred it to an administrative board. This chapter will examine the court’s work during this period and investigate the reasons for the court’s approach, taking into account the economic, social and political context of British Columbia as well as considering the backgrounds and attitudes of the members of the court during this period.

Mashaw on Administrative Law in the Gilded Age

Jerry Mashaw, Yale Law School, has posted the latest installment in his history of administrative law avant la lettre, Federal Administration and Administrative Law in the Gilded Age. Here is the abstract:

This article has a simple message. The standard history of the development of American Administrative Law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named.

In order to see administrative law in an era that mostly denies its existence, my inquiry is structured around three very general issues of governmental organization. Following the lead of Frank Goodnow [right], I see administrative officers as operating within three overlapping accountability regimes: political accountability to elected officials; hierarchical or managerial accountability to administrative superiors; and legal accountability to individuals and firms through judicial review. The distinctive characteristics of administration and administrative law in particular periods depend upon the relative importance of these regimes in structuring and checking administrative discretion and the particular mechanisms that political, administrative and legal actors deploy. Both the forms of and the balance among regimes shift over time. Indeed, it is the distinctive form and balance among these accountability regimes in the organization of 19th century national administration that has made administrative law invisible. But in every era there is a law of administration. To ignore that “administrative law” prior to the Interstate Commerce Act, in what I now tend to think of as “the lost 100 years of American administrative law,” is to ignore much of how American administrative institutions have been built, maintained and constrained. And, in my view, it is to ignore the incremental and pragmatic processes by which American public law usually develops.

This article treats the Gilded Age incarnation of each of these three accountability regimes in turn. It first describes developments in the political control of administration in Post-Bellum America and the emergence of the “apolitical” civil service ideal, partially embodied in the Pendleton Act of 1883. As in all periods of American history, political control of administration in this period features both organizational changes in the political branches and the continuing struggle between presidents and congresses for dominance. The defining feature of this era might be said to be the migration of the provision of secure tenure in office from a congressional strategy to weaken presidential control over high-level administrators to an institutionalized protection for lower level officials that, in practical effect, constrained congressional power.

The article next looks at developments in judicial review. Prior to 1860 judicial review of administrative action by federal courts had, to modern eyes, a peculiar structure. Review by mandamus or injunction was extremely limited and statutes providing for appeals to federal courts from administrative decisions were virtually non-existent. On the other hand, officers sued as individuals for damages were in effect subjected to de novo review for any error of law or fact. In the post-Bellum world this structure began to weaken, but it would take many years to morph into the almost directly contradictory structure that we know today

Finally, the article depicts the processes and structures of managerial or bureaucratic accountability. This is where 19th century administrative law mostly developed. In many ways the second half of the nineteenth century might be called an age of administrative adjudication. While we now think of mass administrative adjudication as an artifact of the mid-twentieth century welfare state, these practices in fact have a much longer history. Tens of thousands of claims were adjudicated, not just by the Court of Claims in suits against the United States, but also by the United States Patent Office, the Revenue and Accounting Officers in the Treasury’s Division of the Controller, the district and general land offices of the Department of the Interior and the Bureau of Pensions. Notwithstanding the relatively casual attention to administrative procedure in both Congress and the courts, those charged with adjudicating these claims developed highly structured and often quite formal processes of decisionmaking. As we shall see, these processes were not entirely free from congressional or judicial oversight, but important substantive, and virtually all procedural, norms for administrative adjudication were constructed by the agencies themselves.

Moreover, the normative structure of that law, unlike the late 19th century external law of judicial review, is deeply familiar to contemporary administrative lawyers. With scant direction from Congress, and none from the courts, agencies built systems of adjudication that featured transparent procedures and precedents, internal separation of functions, professionalization of adjudicatory personnel, safeguards against personal and political bias and robust opportunities for documentary or oral hearings. From this perspective we might understand the so-called “rights revolution” of the 1960s and 1970s, in part, as a consolidation in constitutional doctrine of administrative practices that represent a continuous, but seldom acknowledged, administrative law tradition.

Image credit.

Jackson and Resnik's Federal Courts Stories

One doesn't generally expect to find first-rate scholarship in works intended as supplements to law school casebooks. This is true even for the intelligently conceived "Law Stories" series, published by Foundation Press, which "tell the stories behind the leading cases in important areas of law." Its thirty or so volumes have performed the pedagogically useful function of making accessible information that would otherwise remain buried in a case's unpublished record or severely compressed in a casebook note. Although I certainly can't speak to the whole series, my guess is that Ajay Mehrotra's verdict on Tax Stories, published in the Journal of Legal Education, might well apply more broadly. That volume did a better job at using the "vividness of storytelling to attract student interest in some of the landmark Supreme Court cases at the center of the introductory tax course," Mehrotra wrote, than in capturing "the interpretive power of historical analysis," that is, showing how the past matters in any rich understanding of today's doctrines and institutions of taxation.

On the chance that other historians have had a similar reaction, I write to encourage readers to take a fresh look at the just published Federal Courts Stories, edited by Vicki C. Jackson, Georgetown University Law Center, and Judith Resnik, Yale Law School. The editors introduce the volume with a capacious and succinct account of the history of federal courts as a law school course and scholarly field. Leading teachers and scholars of Federal Jurisdiction contribute, including Daniel Meltzer (on Ex parte McCardle) James Pfander (on Bivens), Lauren Robel (on Railroad Commission of Texas v. Pullman Co.), David Shapiro (on Lincoln Mills), and Carlos Vázquez (on Ex parte Quirin). Especially striking is the presence of first-rate constitutional and legal historians among the contributors, including Barry Friedman (on Ex parte Young), Edward A. Purcell, Jr. (on Michigan v. Long), William Michael Treanor (on Marbury, previously noted here), and Ann Woolhandler (on Tarble's Case, with her coauthor Michael Collins, previously noted here).

Because political historians might miss it in a collection of essays on federal courts, I especially want to single out Mark Tushnet's essay "The Story of Crowell: Grounding the Administrative State." I've struggled a bit myself with Crowell v. Benson (1932), in which Charles Evans Hughes, near the start of his chief justiceship, warned federal administrators not to stray beyond the jurisdictional limits set for them by Congress and the Constitution. Tushnet's essay is revealing on the underlying facts, illuminating and penetrating on the doctrinal issues, and thought-provoking on the case's significance for legal "progressives." The essay is essential reading for historians of administrative law and the administrative state.

Image credit: Jasper Johns, "Map"

Shawhan on Lyman Trumbell on Birthright Citizenship

Mark Shawhan, Yale Law School, has posted Domicile and Birthright Citizenship, which is a student comment forthcoming in the Yale Law Journal. Here is the abstract:

This Comment argues that the contemporary debate on the meaning of the Citizenship Clause of the Fourteenth Amendment has overlooked a significant piece of historical evidence. Scholars such as Peter Schuck, Rogers Smith, and John Eastman have argued that the “subject to the jurisdiction” requirement of the Clause should, as a historical matter be read broadly, to, for example, exclude children born here of illegal immigrant parents from constitutional birthright citizenship. In doing so they lean significantly on the statements of Sen. Lyman Trumbull, who drafted the precursor citizenship language of the Civil Rights Act of 1866 and was an influential player in the debates over the Fourteenth Amendment.

Yet Trumbull actually held quite different views. In a previously-unconsidered 1866 letter he wrote to President Andrew Johnson summarizing the Civil Rights Act, Trumbull said that birthright citizenship for children born in the United States turned on whether the parents of those were living permanently, “domiciled,” here. In emphasizing domicile, which at that time turned merely on whether an individual was living permanently in a particular place, Trumbull rejected the consensualist position that a child’s citizenship depended on the political status of that child’s parents within the state, and the presence of a mutual consensual relationship between the parents and the sovereign. This Comment thus suggests that it is no longer tenable for consensualist scholars to rely on Sen. Trumbull’s statements as evidence for their views on the contours of birthright citizenship.

Image credit: Lyman Trumbull

Nackenoff and Sullivan on Women Lawyers and Progressive-Era Governance

Carol Nackenoff, Swarthmore College, and Kathleen Sullivan, Ohio University, have posted Women Lawyers and Governance in the Progressive Era, which they presented at the Annual Meeting of the American Political Science Association in September. Here’s the abstract:

Progressive Era court reform led to creation of new courts that had both formal and informal positions, some of which were filled by women lawyers and representatives of women's organizations. The Juvenile Court in Chicago, the Chicago Morals Court, and the New York Night Court (subsequently Women's Court) differed in the network of activists promoting their creation, and therefore also differed in the amount of influence organized women and women lawyers wielded in these institutions.

Right: Judge Mary Bartelme, Chicago Juvenile Court

Gudridge on Lash's Ninth Amendment in Jotwell

Other Rights, is a summary and appreciation of Kurt Lash's recent Stanford Law Review article on the Ninth Amendment, contributed by Patrick Gudridge, University of Miami School of Law, to the new on-line journal Jotwell. Gudgridge concludes, "It is the great virtue of Lash’s analysis that it is provocative not only in its immediate conclusions, but in the glimpse it affords of its variants – it is itself irreducibly multiple."

Moore on the Osgoode Society at 30

A report by Christopher Moore, "a Toronto-based writer, blogger and commentator," on Friday's conference of the Osgoode Society for Canadian Legal History is here.

Image credit: William Osgoode

The Newberry Seminar on Early Modern Legal History

This year's Symposium on Comparative Early Modern Legal History at the Newberry Library in Chicago (left), with funding by the University of Illinois College of Law, is "New Perspectives on Legal Pluralism." Organized by Lauren Benton, New York University, and Richard Ross, University of Illinois at Urbana-Champaign, it will be held from 9:00 a.m. to 5:00 p.m. Friday, April 23, 2010, at the Newberry.

Colonialism enhanced legal pluralism. European, African, Asian, and American polities relied on layered and multi-centric systems of law, and their encounters generated new and often repeating patterns of jurisdictional politics. This widespread legal pluralism at times contributed to regional integration by making substantively different legal systems intelligible to travelers and merchants. It also posed challenges to imperial administration as subordinate authorities sought to establish, expand, or protect prerogatives to act independently of metropolitan sovereigns and courts. With recent scholarship establishing clearly the benefits of framing colonial law as jurisdictionally complex and unstable, opportunities are now in sight to push this perspective further in a number of directions.

One interesting set of problems involves questions about how conflicts over the prerogatives of delegated legal authorities to discipline and control subordinate or dependent populations related to the changing contours of imperial constitutions or ideologies of rule. Conference participants may explore the ways in which such figures as garrison commanders, plantation owners, ship captains, Company officials, missionaries, and others with some measure of legal authority positioned themselves in relation to both metropolitan and colonial law. Did they make innovative legal claims or exert influence on regional patterns? We invite investigations of the conditions under which such actors deferred to imperial authority, the sources they drew upon to defend their legal prerogatives, and the nature of their interactions with various courts. Other studies might consider the degree to which the politics of making and defending claims to semi-autonomous legal authority informed broader, even regional, political processes. As we bring such connections into sight, it may be possible to refine comparisons of the politics of legal pluralism in different parts of a colonial regime, or between the Atlantic, Mediterranean, and Indian Ocean worlds.

A related theme focuses on the legal strategies of subordinate groups. Taking into account a framework of legal pluralism, scholars can move beyond the study of “resistance” to ask questions about the legal participation of formally subordinate groups—even some that were seemingly powerless before the law. Forum shopping, petitions for mercy, violence against magistrates, new genres of legal writing, maneuvers to escape indebtedness—these and other strategies had immediate and sometimes far-reaching institutional effects. In addition to tracing such connections, we might probe the formative influences on legal strategies. How did knowledge about law circulate? To what extent did information or stories about of the effectiveness of particular legal strategies carry across social strata, imperial divides, and oceans? How did legal actors imagine and describe plural legal orders? With attention to these and other, related topics, the conference seeks to open the study of legal pluralism to new approaches and insights.

More information, including presenters and commentators, here.

Image credit. Hat tip.

"You were always on my mind..."

We are always thinking of you, dear reader, even when your faithful bloggers are spending too much time in various airports, attempting to meet too many deadlines, or are otherwise occupied.

Apologies for sparse blogging over the next week. And if you're out of legal history links, perhaps you'll find some solace here.

Sunday Book Round-up

Ayn Rand and the World She Made by Anne C. Heller is taken up today in the New York Times and the San Francisco Chronicle.

Also in the NY Times, James McPherson reviews THE AMERICAN CIVIL WAR: A Military History by John Keegan.

An interview with Mark Mazower, author of No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations, appears in the Boston Globe.

Children of Armenia: A Forgotten Genocide and the Century-Long Struggle for Justice by Michael Bobelian is reviewed in the Washington Post.

Worse Than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity by Daniel Jonah Goldhagen is reviewed in the San Francisco Chronicle.

1688: The First Modern Revolution by Steve Pincus is discussed by Bernard Bailyn in the New York Review of Books.

Also in the New York Review, Double Exile: Migrations of Jewish-Hungarian Professionals Through Germany to the United States, 1919–1945 by Tibor Frank and Enemies of the People: My Family's Journey to America by Kati Marton are taken up by István Deák.

Johathan Rabban discusses Dorothea Lange: A Life Beyond Limits by Linda Gordon and Daring to Look: Dorothea Lange's Photographs and Reports from the Field by Anne Whiston Spirn in the New York Review of Books, and David Cole discusses American prisons.

H1N1 Halloween

In case you are having an H1N1 Halloween, I thought this reprisal of Frank's Halloween 2007 might be, um, well not comforting, but somehow fitting....

Happy Halloween from the Legal History Blog.

Henry Friendly Chooses Private Practice

Like Jerold Auerbach and perhaps others, I have long quoted an off-the-cuff remark of Judge Henry Jacob Friendly (1903-1986) at the 150th anniversary of the founding of the Harvard Law School, as a window into the calculations of soon-to-be graduates at the nation’s elite law schools in the 1920s. “Practically everyone thought there was only one career that was worth pursuing, namely private practice,” recalled Friendly, a member of the Class of 1927. Government work was for those who “didn’t have quite the grades to get the jobs they wanted in private firms, and thought they might do better later.” The well-informed among Friendly’s auditors would have assumed he spoke autobiographically. They would have known that he had been President of the Review, graduated with an astonishingly high grade point average, clerked for Justice Louis D. Brandeis, and had spent his career on Wall Street, first at Root, Clark, Buckner, Howland and Ballantine and then at Cleary, Friendly, Gottlieb & Steen, until his appointment to the Second Circuit in 1959.

I still think Friendly’s remark captures the received wisdom among elite law graduates in the 1920s. The research of Auerbach and his coauthor Eugene Bardach, published in the American Journal of Legal History in 1973, leaves no room for doubt. What is possibly misleading about the remark is the implication that Friendly never seriously considered a career in government service. In fact he did.

In April 1928, Friendly was contemplating the end of his service as Brandeis’s legal secretary. James Landis, who had returned to Cambridge when his own clerkship with Brandeis ended in 1926,had recently written Friendly about his experiences on the Harvard law faculty and about their mutual mentor, Felix Frankfurter. Friendly replied:

What you say about teaching makes me doubly glad that I’ve decided to get a touch of practice. I always had much the feeling that you seem to have now; namely, that if it weren’t for F.F. the Law School would be a pretty deadening place. What I wonder is whether it is wise to be so dependent on any single individual as I fear I’d become if I returned there. Sometimes I’ve thought seriously about the I.C.C. I’ve met one or two of the better examiners, and they seem to be highly competent men who have the joy of making important decisions. Of course, the pay is small, but if one gets fed up with it, a Railroad will generally pay more. However, I’m going to dutifully to Root, Clark, and a year from now I’ll be a wiser and, I hope, not a sadder man.

Three years later Friendly was convinced he made the right choice and passed up the chance to join Landis on the Harvard faculty. “My life, as you know, has always been a pretty soft and easy one,” he explained. “It’s only been since my coming to New York that I’ve had to battle people, to fight, sometimes to win and sometimes to lose. I think the experience has been a developing one and that I should be doing myself an injustice if I cut it too short.”

Even so, Friendly seems to have anguished over an offer, extended in February 1932, to join the legal division of the new Reconstruction Finance Corporation. Brandeis and Frankfurter strongly urged him to take the job, but their arguments were countered by those of, in Brandeis’s sarcastic phrase, “the wise men” of Root, Clark. Although Friendly claimed to have been “dreaming” of the job and was eager to come, he ultimately decided to stay at the firm. Brandeis reported to Frankfurter that, in an explanatory letter, Friendly had shown “more emotion than he had ever disclosed to me.”

After Friendly declined, the job went to another, quite different Frankfurter protégé, Thomas G. Corcoran. One wonders how the history of law and liberalism might have been different had Friendly, rather than Corcoran, been Felix Frankfurter’s man in Washington at the dawn of the New Deal.

Update: The two letters by Friendly I've quoted are in box 5 of the Landis Papers at the Library of Congress.

Dale on a Chinese Constitutional Movement

Elizabeth Dale, University of Florida College of Law, has posted Constitutional Movements: An Example from China, 1894-1924. Here is the abstract:

From 1894 to 1949 Chinese reformers, radicals, political theorists and party leaders [including Liang Qichao, left] pushed for the creation of a constitutional order in China. To that end, they borrowed (and often modified) constitutional principles, doctrines, and even history from other countries, using those tools first to craft different models of constitutions and then to persuade others to support their goals. The result was a complex, and international, exchange, one that involved the development of ideas and the deployment of social movements. My current research explores that history with the intent of tracing out the intellectual and social exchanges that occurred while the Chinese around the world debated their constitutional order. As I unpack China's rich constitutional history, I hope to add to our general understanding of how constitutional movements arise and function. This paper is an initial sketch of the project and my methodology.

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Pether on Constitutional Solipsism and the Article III Duties of Federal Courts

Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional has been posted by Penelope Pether, Villanova University School of Law. Professor Pether's body of related work recasts the history of late 20th century/early 21st c. U.S. courts. This piece appears in the William & Mary Bill of Rights Journal (2009). Here's the abstract:

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name.

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the
delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right.

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine.

The Straight State at the Wilson Center

The United States Studies Program of the Woodrow Wilson International Center for Scholars announces a discussion of The Straight State: Sexuality and Citizenship in Twentieth-Century America, with the author, Margot Canaday, Department of History, Princeton University. Thomas Sugrue, Department of History, University of Pennsylvania, and Siobhan Somersville, Department of English, University of Illinois at Urbana-Champaign, will comment.

According to the Wilson Center’s announcement:

The federal government has not always targeted homosexual identity explicitly. Yet, as Margot Canaday shows in this pathbreaking book, throughout the twentieth century, the government used its laws and regulations to identify and extend control over gay men and lesbians in three policy domains: immigration, the military, and welfare. Join us for an enlightening discussion of how the U.S. built "a straight state."

The discussion will take place on Thursday, November 5, from 3-5 p.m., in the Moynihan Board Room, 6th floor, Woodrow Wilson Center, 1300 Pennsylvania Avenue N.W., Washington, DC. A reception will follow. This is a free public event, but attendees are requested to contact usstudies@wilsoncenter.org.

A review of the book in The Nation, previously noted on LHB, is here.

Miller on The Corporate Law Background of the Necessary and Proper Clause

The Corporate Law Background of the Necessary and Proper Clause has just been posted by Geoffrey P. Miller, New York University School of Law. Here's the abstract:

This paper investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early federal period bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these corporate charters suggests that the Necessary and Proper Clause does not create independent lawmaking competence; does not confer general legislative power; does not grant Congress unilateral discretion to determine the scope of its authority; requires that there be a reasonably close connection between constitutionally recognized ends and the legislative means chosen to accomplish those ends; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others.

Historical Society of the D.C. Circuit Newsletter

I'm a big fan of the Historical Society of the District of Columbia Circuit and a former interviewer in its excellent oral history program. It has just published the first issue of an on-line newsletter, available here.

Truth and Reconciliation in History

The October issue of the American Historical Review features a forum on Truth and Reconciliation in History. From the AHA Blog:

The forum “Truth and Reconciliation in History” deals with a global experience that both calls history into question and calls upon the participation of historians. Especially since the creation of the Truth and Reconciliation Commission in South Africa in 1995, after the ending of apartheid, several nations and groups have attempted to confront and possibly come to terms with their fractious and traumatic pasts. This forum offers three examples of how historians have played a role in these attempts. Elazar Barkan introduces the forum with his essay, “Historians and Historical Reconciliation,” in which he surveys the role historians have played “to promote reconciliation through collaborative work to produce a shared history.” The following three articles offer case studies of this process at work. The Polish-Jewish experience during World War II is examined by David Engel, in “On Reconciling the Histories of Two Chosen Peoples.” In “Truth in Telling: Reconciling Realities in the Genocide of the Ottoman Armenians,” Ronald Grigor Suny delves into initiatives by Turkish, Armenian and other scholars to reach some common understanding of the ethnic conflicts in the early part of the 20th century. And Charles Ingrao’s “Confronting Yugoslav Controversies: The Scholars Initiative” gives an account of the ongoing efforts of a whole range of scholars, both from the Balkans and outside that region, to fashion a single narrative of the crimes and misdeeds committed in the former Yugoslavia. The comment is by James Campbell whose essay, “Settling Accounts? An Americanist Perspective on Historical Reconciliation,” not only reflects on these three cases but also offers a commentary on the reconciliation process from the perspective of someone with experience in American attempts to deal with its own problematic past. As Barkan notes in his introductory essay, the participation of historians in these kinds of projects is one example of how scholarship, often assumed to be irrelevant to social problems, relegated to the ivory tower, can play a crucial role on the public stage.

Whittington to Lead the ICH's Spring Seminar

The Institute for Constitutional History announces a seminar for Spring 2010, "Politics and History of Judicial Review in the United States." According to the ICH:

"This seminar will focus on the history of judicial review in the United States from the founding period to the present. The course will give particular attention to the U.S. Supreme Court and federal law, but will also take note of federal review of state statutes and judicial review by state courts. We will explore how courts have used and justified the power of judicial review over time, how the practice of judicial review has changed, and how "activist" courts have been. We will examine the growth in the significance of the power of judicial review over time and the supports for, and opposition to, judicial review in the political sphere. The seminar will make use of both primary and secondary readings."

The instructor is Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. The seminar will meet Thursday evenings, 6:00-8:00 p.m., February 25, March 4, 11, 18, 25, and April, 1, 2010, at The George Washington University Law School, 2000 H Street NW, Washington, DC.

The announcement explains:

It is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until December 15, 2009. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or e-mail icsgw@law.gwu.edu.

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Hoosier Suffragism for CLE Credit!

The Indiana Supreme Court will hold a free CLE event, My Place is in the Voting Booth: Hoosier Suffragette Helen M. Gougar, on Tuesday, November 3, 2009 from 3:00 - 4:30 pm.

The event is sponsored by the Indiana Supreme Court Legal History Lecture Series with support from the Indiana Commission for Continuing Legal Education. The lecture will highlight the work of Helen M. (Jackson) Gougar of Lafayette, Indiana. In 1897, Gougar became one of the first women to argue in front of the Indiana Supreme Court. The case, Gougar v. Timberlake, focused on the failure of the Tippecanoe County election board to allow Gougar to vote in an 1894 local election. In January 1895, Gougar was admitted to the bar in Tippecanoe County (the first woman to do so) and represented herself that same afternoon.

Seating is limited to the first 150 reservations. Email: shachey@courts.state.in.us

Conference this weekend: Law and Justice in the Middle Ages

Later this week in Cambridge, Massachusetts, Harvard University, Wellesley College, and Lesley University are sponsoring a conference: "Law and Justice in the Middle Ages" (The New England Medieval Conference). Here are the details:

Law and Justice in the Middle Ages
October 30-November 1, 2009
Harvard University
Cambridge, Massachusetts

Registration info is here.

The speakers are all on Saturday. Here's the schedule:

8:30-9:30: Registration, Barker Center

9:30-11:00 Anglo-Saxon England
Allen Frantzen, Loyola University: “Food Ways and the Law: Diet and Discipline in Anglo-Saxon England”
Kathleen Davis, University of Rhode Island: “‘Laws and Times’: Questions of Precedent and History in Old English Texts”

11:00-11:30 Coffee Break

11:30-1:00 Fourteenth-Century England
Kathryn Lynch, Wellesley College: “Law and Economic Justice in Chaucer’s Man of Law’s Tale”
Charles Donahue, Harvard University: “Did the Law Achieve Justice in Fourteenth-Century England? There Were Those Who Had Their Doubts”

1:00-2:00 Lunch, Barker Center

2:00-4:00 The High Middle Ages
Peter Fergusson, Wellesley College: “Canterbury Cathedral Priory: Forming a Sculpture and an Architecture for the Law”
Paul Hyams, Cornell University: “Orality and Literacy in the Age of the Angevin Law Reforms”
Matilda Bruckner, Boston College: “Violence, Peace and Justice in the Roman de Troie: Antique Romance Meets Feudal Practice”

4:00-4:30 Coffee break

4:30-6:00 The Later Middle Ages
Hugo van der Velden, Harvard University: “Gerard David’s ‘Judgment of Cambyses’”
Daniel Smail, Harvard University: “Violence and Predation in Late Medieval Europe”

6:00-7:00 Reception, Barker Center

Red Owl Redux: Scott Responds to Whitford and Macaulay

This summer we noted that William C. Whitford and Stewart Macaulay, University of Wisconsin Law School, had posted Hoffman v. Red Owl Stores: The Rest of The Story, on the landmark promissory estoppel decision. Now Robert E. Scott, Columbia Law School has responded with Hoffman v. Red Owl Stores and the Limits of the Legal Method. Here is the abstract:

According to the overwhelming majority view, promissory estoppel is not an appropriate ground for legally enforcing statements made during preliminary negotiations unless there is a “clear and unambiguous promise” on which the counterparty reasonably and foreseeably relies. Bill Whitford and Stewart Macaulay were among the first scholars to note the apparent absence of such a promise in the case of Hoffman v. Red Owl Stores. Several years ago, after studying the trial record, I concluded that the best explanation for the breakdown in negotiations was the fundamental misunderstanding between the parties as to the amount and nature of Hoffmann’s equity contribution to the franchise. After locating and interviewing Hoffmann, Whitford and Macaulay tell a different story. They view as insignificant the misunderstanding about the nature of Hoffmann’s equity contribution. Rather, they focus attention on additional statements urging Hoffmann to sell his bakery business and store. In these later statements, ignored by the Wisconsin Supreme Court, they find the “missing promise” that they challenged all of us to look for years ago. While I credit their account, I remain as unconvinced by their story as they are of mine. Thus, the important question is how scholars could draw such different inferences from the same basic facts. In this Essay, I speculate that the different stories are a product of our respective methodological commitments: their commitment to a law and society approach to legal issues and mine to law and economics modes of analysis. Those diverse approaches illustrate the tension between “context” and “theory” and the inherent paradox of legal analysis: without context no legal rule can be applied, but with nothing but context no legal rule can be found. For this reason, I conclude, it is important for legal academics of every stripe to appreciate the biases inherent in their methodology of choice and work to correct for them.

Image credit.

Studies in Legal History

The following announcement is just out on H-Law:

The American Society for Legal History invites scholars in American, English, British, and Continental European legal history to apply to succeed Thomas A. Green and Daniel R. Ernst as co-editors of Studies in Legal History–the book series published by University of North Carolina Press for the Society. Tom and Dan are stepping down after many years of exceptional–and exceptionally successful–service on behalf of all of us in legal history. Indeed, their success has been such that the Society recognizes that three or four co-editors may be necessary to maintain the breadth of the series.

The co-editorships offer no reward other than the opportunity to help shape the wide field of legal history through the books they bring to publication. Interested scholars are asked to contact the chair of the ASLH Publications Committee, Bruce H. Mann, at mann@law.harvard.edu for further information.

I'll add that another satisfaction of the job, particularly for a law-school-based professor who doesn't supervise doctoral candidates, is the chance to help junior scholars envision their dissertations as books.

Hat tip: H-Law

The Coase Centennial, with Coase!

The University of Chicago Law School will host the conference Markets, Firms and Property Rights: A Celebration of the Research of Ronald H. Coase on December 4 and 5, 2009, at the Law School. The event is open to the public; to attend, contact Marjorie Holme at mholme@uchicago.edu.

According to the announcement:

This event will bring together a group of scholars to honor the life and research of Ronald Coase. 2009 marks the 50th anniversary of the publication of Coase’s seminal paper on the Federal Communications Commission. 2010 marks the 50th anniversary of the publication of his paper on “The Problem of Social Cost,” and his 100th birthday.

Founders On-Line: The Rotunda Project

The National Historical Publications and Records Commission (NHPRC), the grant-making arm of the U.S. National Archives, in partnership with Documents Compass at the Virginia Foundation for the Humanities has issued a press release announcing that "5,000 previously unpublished documents from our nation's founders are now online through Rotunda, the digital imprint of The University of Virginia Press." The release continues:

The ROTUNDA Founders Early Access project makes available for the first time letters and other papers penned by important figures such as James Madison, John Adams, and Thomas Jefferson. The Founders Early Access portion of the site allows users to read, search, and browse the newly transcribed documents, and is available at no cost to users,

In 2008, Congress urged the National Archives to investigate ways to make the Founders Papers more readily available to historians, scholars, and the general public at no cost to researchers. As long-time funders of the print editions of the Founding Fathers documentary projects, the NHPRC worked with the editorial teams and supported a pilot demonstration project through Documents Compass, a nonprofit organization designed to assist in the digital production of historical documentary editions.

Over the past ten months, the pilot has transcribed and completed basic transcription verification for roughly 5,000 documents. These transcriptions will be fully verified, and the editorial teams will provide explanatory annotation as they proceed with their work. Each completed volume of a documentary edition contains roughly 500 documents and provides notations that identify historical figures and events to shed light on the papers' meaning and significance.***

"There is much to discover here," said Penelope Kaiserlian, director of the Press. "Take a look, for example, at Thomas Jefferson's letter to James Madison on August 30, 1823, when the elderly Jefferson contests the memory of 88-year-old John Adams regarding the creation of the Declaration of Independence. Historians will already know this letter, but now anyone can easily find this readable version."

Hat tip: H-Law
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Report: Rankings pressure drives up law school costs, affects diversity

From today's Chronicle of Higher Education:

Critics have sometimes blamed the accreditation standards of the American Bar Association for driving up the cost of law school and making it more difficult for students of color to be admitted to those programs.

But a report released on Monday by the Government Accountability Office says that most law schools surveyed instead blamed competition for better rankings and a more hands-on approach to educating students for the increased price of a law degree. In addition, the federal watchdog agency reported that, over all, minorities are making up a larger share of law-school enrollments than in the past, although the percentage of African-American students in those programs is shrinking. The GAO attributed that decrease to lower undergraduate grade-point averages and scores on law-school admissions tests.

Continue reading here.

Update: Paul Caron has more on this.

Universal Disturber

[Because this documentary on William Kunstler will begin its theatrical run with openings in fourteen cities next month, I'm moving this post up from this summer.]

Since about 1960, I have spent a portion of every summer in the Grand Traverse Bay region of Northern Michigan. To the usual fare of beaches and cherry products was added five years ago an annual film festival, founded and still propelled quite vigorously along by the documentarian Michael Moore. “William Kunstler: Disturbing the Universe,” will not, I’m afraid, be my most memorable moment from this year’s festival. That honor will doubtless go to yesterday’s midnight screening of “Dead Snow.” (Official motto: “If You’re Going to See Only One Norwegian Nazi-Zombie Movie This Year, Why Not Make It ‘Dead Snow’?”) Still, the documentary of one of America’s most famous radical lawyers, directed by Sarah and Emily Kunstler, his two daughters from his second marriage, is well worth seeing during its theatrical release this fall or on PBS’s “POV” next year. For anyone like me, who has only seen iconic, shaggy haired images of the man, the home movies of a close-cropped Kunstler, clowning for the camera like any other suburban Dad, is worth the price of admission. I suspect even those who followed his career more closely would find revelations in the footage from inside Attica, the dramatically abrupt conclusion of one of his jury summations, or his dispassionate analysis of the ideological power of the word “legal,” from one of his public addresses.

For all the film’s strengths, it left me with more questions than answers about Kunstler’s radicalization. After the showing, Emily Kunstler spoke of radicalization, with reference to two lesser figures in the film, a juror from Chicago Seven trial and a prison guard grievously wounded at Attica, as a discrete and almost inelastic event: the undeniable reality of an injustice suddenly confronts a person at rest, who then careens in a radical direction. My recollection of the film–I attended without intent to blog and did not take notes–was that the film made much the same claim for Kunstler himself, with the moment of impact being the binding and gagging of Bobbie Seale in the Chicago Seven trial. I don’t doubt that Kunstler experienced it as a visceral revelation of the potential and the danger of treating the criminal justice system as political theatre and that his lawyering changed accordingly. But Kunstler himself elsewhere described his transformation “from a liberal into a radical” as a more extended process from the 1960s into the 1970s. What’s more, the film presents tantalizing suggestions that the young Kunstler had an emotional preexisting condition that would make radicalism, as practiced by the student left, irresistible. His love of poetry and a war story related in the film suggest a person who could not abide a prosaic life. The youth movement’s shattering of social conventions must have attracted him at least as much as the legal claims the activists generated. The Kunstler sisters do not hide this side of their father: to the contrary, they share with us their father’s awkward attempt to impress the woman who would become their mother by boasting of a quite unimpressive countercultural exploit. Admittedly, it’s difficult terrain for offspring to negotiate, but a fuller view of the emotional roots of Kunstler’s “greening” would help convey to a new generation why he was such a compelling--and disturbing--figure in American legal history.

Collins on Holmes -- Father of the Modern First Amendment

Prologue: Justice Holmes - Father of the Modern First Amendment is an essay by Ronald K. L. Collins, First Amendment Center. The prologue introduces 'The Fundamental Holmes: A Free Speech Chronicle & Reader' - Selections from the Opinions, Books, Articles, Speeches, Letters & Other Writings by & About Justice Oliver Wendell Holmes, Jr. (Cambridge University Press, 2010).

Collins' abstract consists only of the citation to the book, so here are the first two paragraphs:

Holmes’s footprint on the American law of free speech is gigantic. Like Atlas, he is a titan in that world. No one else quite casts a shadow so long. While James Madison is the grand pater of the historical First Amendment, its modern father figure is surely Justice Oliver Wendell Holmes, Jr. (1841-1935). His thought can be found in bold relief in many Supreme Court opinions on freedom of expression, in every contemporary history of the subject, in every casebook and textbook used in law schools and in colleges, and in every serious scholarly treatment of the matter. This is so because “Holmes laid the foundations . . . for the expansive modern view of free speech . . . .” Having done so, he then “left a profound imprint on the law of free speech." Without exaggeration, then, it would be impossible to have any serious discussion of modern free speech theory or law without some consideration of his views.

But from what well does Holmes’s fame spring? Does it derive mainly from three opinions – Schenck v. United States, Abrams v. United States, and Gitlow v. New York – issued late in the long-life span of this great jurist and scholar? If so, did the ideas for those landmark opinions jet out of his psyche with a singular thrust of insight, or were there some seeds that had been stirring in the soil of his mind for years or even decades before? As with so many other great figures in law, the answer is a combination of both, and yet other things, too.

Image credit.

Landsberg on the Kennedy Justice Department's Enforcement of Civil Rights

The Kennedy Justice Department’s Enforcement of Civil Rights: A View from the Trenches is a new paper by Brian K. Landsberg, University of the Pacific, McGeorge School of Law. Just the abstract is posted:

The Kennedy Justice Department faced challenges with no modern precedent: the Southern defiance of the Supreme Court’s decision in Brown v. Board of Education, the rise of non-violent protests on a massive scale, and the Administration’s desire to break a racial caste system that it did not fully understand. Reconstruction provided a precedent for federal action, but the President was, to some extent, a captive of the myth that federal intervention had been a colossal failure, leading only to misrule and racial division.

Much has been written about President Kennedy’s mixed record on civil rights - his philosophical commitment to equality, his ambiguous votes on civil rights bills as a Senator, his letter regarding Dr. Martin Luther King, Jr.’s prison term in Georgia, his decision not to make civil rights a priority at the beginning of his presidency, his appointment of racist federal judges in the South, his proposal of comprehensive civil rights legislation after two and a half years as President, and so on. In the 1960's and 1970's, several books and articles focused critically on the work of the Kennedy Department of Justice relating to civil rights.

Photo: President John F. Kennedy and Attorney General Robert Kennedy.

Gordon on Dorothea Lange, and more in the book reviews

DOROTHEA LANGE: A Life Beyond Limits by Linda Gordon is reviewed in the New York Times. David Oshinsky finds it "an absorbing, exhaustively researched and highly political biography of a transformative figure in the rise of modern photojournalism." I heard Gordon speak on this book as she was writing it, and have been waiting since then for a chance to read it. Highly recommended.

Oshinsky continues:

Gordon expertly analyzes the political culture of Depression-era California, where the enormous power of big agriculture kept tens of thousands of landless workers in peonage and despair. She portrays Lange as an ambivalent radical, deeply sympathetic to the plight of the migrants yet uncomfortable with the chaos that social conflict inevitably produced. Early in the Depression, Lange had tried but failed to photograph the labor protests that shook San Francisco....

A portrait photographer at heart, Lange stressed the inner emotions of those facing injustice and deprivation. “Her documentary photography was portrait photography,” Gordon says. “What made it different was its subjects, and thereby its politics.” An individualist at heart, Lange provided an alternative to the photography of wretchedness, which centered on the misery of beaten-down victims, as well as to the Popular Front mythology, which showed earnest, well-muscled men and women laboring together in fields and factories to produce a Soviet-style paradise on earth. Lange saw America as a worthy work in progress, incomplete and capable of better. By portraying her subjects as nobler than their current conditions, she emphasized the strength and optimism of our national character. She became, in Gordon’s words, “America’s pre-eminent photographer of democracy.”

Linda Gordon delivered a lecture on the book at U.C. Berkeley, posted here.

Also reviewed in the New York Times is THE TYRANNY OF E-MAIL: The Four-Thousand-Year Journey to Your Inbox by John Freeman and THE FOURTH STAR: Four Generals and the Epic Struggle for the Future of the United States Army by David Cloud and Greg Jaffe.

Moral Panics and the Copyright Wars by William Patry is taken up in the Los Angeles Times; The Big Burn: Teddy Roosevelt and the Fire That Saved America by Timothy Egan is reviewed in the Philadelphia Inquirer.

Sherrilyn A. Ifill, Woman of Valor, Women's Review of Books, reviews Mia Bay, To Tell the Truth Freely: The Life of Ida B. Wells and Paula Giddings, Ida: A Sword Among Lions: Ida B. Wells and the Campaign against Lynching. Hat tip.

An Empirical Look at the "Switch in Time"

Among the papers to be presented at the Fourth Annual Conference on Empirical Legal Studies on November 20-21 is Did a Switch in Time Save Nine? by Daniel E. Ho, Stanford Law School, and Kevin M. Quinn, UC Berkeley School of Law. Here’s the abstract:

Franklin Delano Roosevelt's court-packing plan of 1937 and the "switch in time that saved nine" animate central questions of law, politics, and history. Did Supreme Court Justice Roberts [pictured at left, from 1924] abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts's transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from 1931-1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts's transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The shift appears sudden and temporary. The duration of Roberts's shift, however, is in many ways irrelevant, as the long-term transformation of the Court is overwhelmingly attributable to Roosevelt's appointees.

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Backhouse on the Tragic Murder of Rose Marie Roper

The on-line edition of the Regina Leader-Post has published a story by a reporter, Barb Pacholik, heralding an address by the ASLH's incoming president, Constance Backhouse, to the Law Foundation of Saskatchewan. Pacholik's story commences:

As a young aboriginal woman lay dying in the mud near a garbage dump, three white men who had abandoned her there were on their way to a party with her underpants waving from their car aerial like some sort of trophy.

Rose Roper’s disturbing death occurred more than four decades ago in interior British Columbia — but it will be recalled in Regina Friday evening as internationally-renowned legal scholar Constance Backhouse delivers the annual Law Foundation of Saskatchewan lecture. Her presentation is titled “The Lethal Combination of Sexism and Racism: The Tragic Murder of Rose Marie Roper.”

More.

Cramer, Johnson & Mocsary on the Public Meaning of the 2nd Amendment when the 14th Amendment Was Ratified

'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified has just been posted by Clayton E. Cramer, an independent scholar, Nicholas James Johnson, Fordham University School of Law, and George A. Mocsary, a judicial law clerk.

I'm posting this piece because it engages a variety of historical sources. The line between works of interest to legal historians and advocacy pieces is not always clear, but some readers are engaged in the "public meaning" turn of originalist scholarship, so I will occasionally post such pieces. What you will not see on this blog, however, are works that purport to engage in "original public meaning" analysis, but support their arguments only with a New York Times database search, or other limited engagement of sources. "Original public meaning" should be approached as a form of intellectual history, and practitioners of this form of scholarship should draw upon the conventions of the field of intellectual history. No intellectual historian would limit her/himself to one source. A reading of historical newspapers might inform an analysis of the history of the press. But for broader claims about what the "public" thought on a particular topic, deeper work is, of course, needed.

Here's the Clayton, Johnson and Mocsary abstract:

If the Fourteenth Amendment is found to incorporate the Second Amendment against the states, what meaning of the Second Amendment does it include? This paper examines judicial and popular understandings of the Second Amendment in the period between ratification of the Bill of Rights and the Fourteenth Amendment.

Pierson v. Post in the Green Bag

This summer I posted (starting here) an essay summarizing recent studies on the old chestnut of the first-year Property course, Pierson v. Post. The definitive version is now available on-line from the Green Bag, which is to say, here. Thanks to Ross Davies, Mary Dudziak, and Dan Hulsebosch.

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The Question of Rights

Here's a call for papers and proposals for "The Question of Rights," a conference to be hosted by San Francisco State University on September 16-17, 2010:

Rights, both individual and collective, have long been a theme in American society, often seen in conflict with state power. We welcome papers on assertions of rights by insurgent groups, resistance to rights claims, and governmental efforts to suppress or promote rights, in areas including but not limited to: civil liberties; disability rights; labor and economic rights; feminism and antiracism; immigration; environmental justice; access to healthcare; the prison industrial complex; sexual orientation; the stateless; and human rights.

Our goal is to bring together a wide variety of people from a range of academic, activist, legal, and community spaces to examine the place of rights within both the context of American society (as situated within a boarder global political community). To that end, we welcome participation from historians, both senior and junior scholars, graduate students, community advocates, archivists, and lawyers. We invite proposals for individual papers, panels, or roundtables.

The deadline for submission of proposals, consisting of an abstract of 300 words for individual presentations or 1000 words for panel and workshop proposals and a one-page CV for each participant, is March 15, 2010. Send your proposals to Christopher Waldrep, Department of History, San Francisco State University, San Francisco, California 94132 or via email to cwaldrep@sfsu.edu.

Hat tip and image credit: H-Law

Snyder on Taking Great Cases: Lessons from the Rosenberg Case

Taking Great Cases: Lessons from the Rosenberg Case is a new article by Brad Snyder, University of Wisconsin Law School. It is forthcoming in the Vanderbilt Law Review. Here's the abstract:

The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Brown and Rosenberg demonstrate the Court's different approaches toward taking "great cases." The Brown Court is often criticized for having done too much; the Rosenberg Court is criticized for not having done enough. Rosenberg divided the country and divided the Court, which repeatedly refused to take the case. Instead, Justice Douglas granted a last-minute stay of execution about whether they had been tried under the wrong federal statute. The Court quickly vacated the stay, and the Rosenbergs were executed the next day. Rosenberg was a Bush v. Gore moment that alienated people who held the Court in high institutional regard. Based on newly discovered documents and interviews with key participants, this Article explains why the Court refused to grant certiorari in the one of the most famous spy cases in!American history. It reorients legal scholarship about the case away from Douglas's stay and toward contemporaneous allegations of prosecutorial misconduct and perjury. And it argues that just because some great cases might make bad law does not mean the Court should refuse to take them. It explains the taking great cases theory, applies it to Rosenberg and Bush v. Gore, and contends that, especially in cases about separation of powers and minority rights, the Court should err on the side of granting certiorari in cases of great public interest.

Photo credit.

Omarova on How Derivatives Changed the 'Business of Banking'

The Quiet Metamorphosis: How Derivatives Changed the 'Business of Banking' is a new article by Saule T. Omarova, University of North Carolina at Chapel Hill School of Law. It is forthcoming in the University of Miami Law Review. Here's the abstract:

This Article uncovers and analyzes an important part of our recent regulatory history, one that provides a key to understanding some of the deeper, hidden causes of the recent financial crisis. It offers an in-depth analysis of an extensive body of regulatory decisions - interpretive letters issued by the Office of the Comptroller of the Currency (OCC), the primary regulator of federally chartered banks - that constitute the primary source of the U.S. commercial banks’ legal authority to trade and deal in a wide range of derivative instruments. In these letters, issued between the mid-1980s and the end of 2008, the OCC interpreted an ambiguously phrased central clause in the National Bank Act of 1863, which sets forth activities permissible for national banks, as authorizing derivatives transactions as part of the “business of banking.”

While legal scholars have thoroughly examined the evolution of the statutory concept of the “business of banking” in the context of banks’ attempts to conduct securities, insurance, or real estate activities, to date, the far-reaching regulatory implications of the OCC’s interpretive efforts in the derivatives area have gone largely unnoticed. This Article develops a typology of methods the OCC used to interpret the statutory language as permitting banks to engage in an increasingly complex set of derivatives transactions. It argues that, in the course of issuing these interpretations, the OCC gradually formulated an excessively broad definition of the key statutory concept of the “business of banking” as encompassing all types of financial intermediation and dealing in all forms of financial risk. Through the seemingly routine and often non-transparent administrative actions, the agency effectively enabled large U.S. commercial banks to transform themselves from the traditionally conservative deposit-taking and lending institutions into a new breed of financial “super-intermediaries,” or wholesale dealers in pure financial risk. By indirectly removing most of the restrictions on activities of commercial banks, the OCC’s interpretive efforts had an ironic effect of prolonging the life of an obsolete statute and potentially impeding legislative reforms necessary to bring the regulatory framework in line with the changing business and risk profile of modern financial institutions. Understanding this process and its outcomes provides a more nuanced context for the ongoing debate on the future of financial sector regulation.

Ernst on Freund, Frankfurter and the American Rechstsstaat

The prepublication draft of my article Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894-1932 now appears on Georgetown Law's institutional website. The definitive version is available in print in Studies in American Political Development 23 (October 2009): 171-88. It also is available, for a fee, here. Here is the abstract:

From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund (left) developed an Americanized version of the Rechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter (right), a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund, Administrative Powers over Persons and Property (1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today the Rechtsstaat is largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.

You'll note, if you make it all the way through, that I close with Willard Hurst's appreciation of Ernst Freund in The Growth of American Law (1950). After the article went to press, I stumbled upon another, quite interesting assessment of Freund by Hurst here.

Image credit.

The Chicago Seven Trial: Forty Years On

The on-line version of the ABA Journal has posted the story 40 Years Later, ‘Chicago 7’ Trial Still an Iconic Event by Martha Neil. The story commences:

A perfect storm of political unrest, generational conflict and a biased judge set the stage for a 1969 trial that is still memorable 40 years later for its drama and iconic import, participants in an American Bar Association panel told a standing-room-only audience Tuesday.

Although the months-long Chicago Seven conspiracy trial ignited international debate—one searing image was of a bound and gagged Bobby Seale, originally the eighth defendant in U.S. v. Dellinger, et al..—panelists offered a behind-the-scenes glimpse of little-known aspects of the high-profile trial. Brought against activists who participated in anti-Vietnam War protests at the Democratic National Convention in 1968, the federal case offered an opportunity for defendants including Tom Hayden, Abbie Hoffman and Jerry Rubin to create a media circus and they took full advantage of it.

More here, including the news that a full broadcast of the ABA panel on the trial may be downloaded next week from this ABA web page.

Image credit.

Blog update

Attentive readers will notice a few tweaks to the LHB sidebar, adding some history blogs, deleting dormant ones, and more.

Under Law and History Links, you can find the Law and Politics Book Review, which often reviews legal history.

And under More Law and History Blogs, you can now find:

• American Creation, on the founding era
• The Historical Society Blog
• U.S. Intellectual History

The Constitution and the Economy: The Smith Seminar for Spring 2010

The Institute for Constitutional History announces the Robert H. Smith Seminar for Spring 2010, "The Constitution and the Economy," to be led by James Surowiecki and John Fabian Witt. Surowiecki is a staff writer at the New Yorker, where he writes the popular bi-weekly business column “The Financial Page.” He is the author of the The Wisdom of Crowds. Witt is a Professor of Law at Yale Law School and the author of Patriots and Cosmopolitans: Hidden Histories of American Law (Harvard Press, 2007) and The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Harvard Press, 2004).

According to the Institute's announcement:

The United States Constitution is the foundation of the American economy. It sustains the property rights on which American markets rest. It shapes government regulation of those markets, too. But can a two hundred and twenty year old document support a twenty-first century economy? This seminar takes up the relationship between the Constitution and economic life in American history. It investigates the economic controversies that have surrounded the Constitution from its start, from the economic crises of the 1780s, to nineteenth-century battles over slavery, banking, the railroads, and national infrastructure; from the income tax, the Federal Reserve, and the New Deal state in the twentieth century, to global trade agreements, eminent domain, and climate regulation in the twenty-first. In examining the ways in which the Constitution has shaped (and been shaped by) the transformations in the U.S. economy, we hope to glean answers to one of the most pressing questions of our time: How can that same Constitution successfully accommodate the economic challenges of our future?

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until December 1, 2009. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or e-mail icsgw@law.gwu.edu.

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own. Modest assistance with travel expenses from outside the New York metropolitan area will be available.

The seminar meets Tuesday afternoons, 2:00–4:00 p.m., January 19, 26, February 2, 16, 23, and March 2, 2010, at the New-York Historical Society, 170 Central Park West, New York City.

Gaylord Nelson and Earth Day at the Miller Center

The Governing America in a Global Era (GAGE) program at the University of Virginia's Miller Center of Public Affairs announces the latest event in its GAGE Colloquia Series on Politics and History, Earth Day 1970: Gaylord Nelson and the Making of the First Environmental Generation, by Adam Rome on Friday, October 23. Rome is an Associate Professor of History at Pennsylvania State University and the author of The Bulldozer in the Countryside: Suburban Sprawl and the Rise of American Environmentalism (Cambridge, 2001), which won the Organization of American Historians' Frederick Jackson Turner Award. According to the Miller Center, "Rome is currently finishing a book about the first Earth Day and has written about environmental reform in the Gilded Age and Progressive Era."

The colloquium will be start at 12:30 in the John and Rosemary Galbraith Forum Room at the Miller Center for Public Affairs, 2201 Old Ivy Road, Charlottesville, VA 22904. If you plan to attend, RSVP by the end of business today to gage@virginia.edu or 434.243.8726. The paper is not posted on the web, but the event will be webcasted live and archived here.

Image credit (and accompanying article): Gaylord Nelson at the Apostle Islands (State Historical Society of Wisconsin)

Chen on the Civil Law Tradition in China

Lei Chen, City University of Hong Kong School of Law, has posted The Historical Development of the Civil Law Tradition in China: A Private Law Perspective. Here is the abstract:

While Chinese law occupies a sui generis position according to the classification formulated by learned legal comparativists, namely, East Asian law, it is generally acknowledged that Chinese law comfortably wears the dress of civil-law. The Chinese civil law tradition finds its historical roots in the late Qing Dynasty (1902-1911). Long before Alan Watson’s magisterial book on the legal transplant, China experimented with importing foreign law. More to the point, the newly enacted Chinese Property Code, in effect for more than a year still has this feature. With closer scrutiny, the Chinese property code of 2007 is found to be based largely on civil law models, particularly the German and Swiss ones. This constitutes a solid step towards the finalization of a Chinese civil code. The formalization and entrenchment of individual property rights can scarcely be overestimated for not only it is of great interest to Chinese jurists but also it has attracted the attention of international lawyers with a comparative perspective. The new property code is an evolution rather than a revolution, since in bringing it up to date it is meeting new social and economic needs. That said, it is little more than an organic development of the existing law. Consequently, one would expect to find in the new legislation many traces of its past history. It is worth noting that any legal development is not a complete break with its past. Chinese law is no exception. A historical perspective exploring the origin of the traditions of civil law is both necessary and useful for it can shed light on the direction of the future development of Chinese private law.