Hardeman reviews Mintz and Stauffer, The Problem of Evil: Slavery, Freedom, and the Ambiguities of American Reform

Steven Mintz and John Stauffer, eds., The Problem of Evil: Slavery, Freedom, and the Ambiguities of American Reform (University of Massachusetts Press, 2007) is reviewed on H-Law by Martin J. Hardeman, Department of History, Eastern Illinois University. Hardeman writes, in part:

The Problem of Evil: Slavery, Freedom, and the Ambiguities of American Reform edited by Steven Mintz and John Stauffer...situates its twenty-two essays within a specific chronological and geographic context--for the most part. After a general introduction by Mintz, the book is divided into four parts (each with its own introduction): "Slavery and Freedom as Moral Problems," "The Antislavery Impulse," "Imagining Emancipation," and "Post-Emancipation America." " This volume," Mintz writes, "represents an effort to confront certain fundamental moral issues raised by American history, above all, the problem of slavery and its legacies of racism, racial exclusion, and racial inequality." And, again, for the most part, the essays confront moral issues within a specifically American context.

The first and longest essay, however, "The Ancient and Medieval Origins of Modern Freedom" by Orlando Patterson, is an exception. Tracing the origins of the West's concept of freedom to Greco-Roman philosophy and the precepts of Christianity, Patterson vehemently argues that these concepts preceded capitalism by twenty-two hundred years and that by at least the thirteenth century, liberty and freedom had acquired essentially their modern meanings.The last essay, Jack M. Holl's "Dwight D. Eisenhower: Religion, Politics, and the Evils of Communism," is also something of an exception. Holl closely examines the thirty-fourth president's view that a belief in God was fundamental to the concept of democracy. "Our form of government," Eisenhower stated in a 1952 address to the Freedom Foundation, "has no sense unless it is grounded in a deeply felt religious faith, and I don't care what it is." For him, faith and democracy were inextricably bound together.

The remaining twenty essays vary widely in length, depth, and subject matter. Ira Berlin's "The Transformation of Slavery in the United States, 1800-1863" and Paul Finkelman's "The Significance and Persistence of Proslavery Thought"are merely well-written summaries of much longer works. Others--Stanley L. Engerman and David Eltis's "Slavery and Evil," Randolph Roth's "Twin Evils? Slavery and Homicide in Early America," Peter Hinks's "Timothy Dwight, Congregationalism, and Early Antislavery," David Waldstreicher's "Benjamin Franklin, Religion, and Early Antislavery," Paula Kane's "The Supernatural and Slavery: Catholics, Power, and Oppression," and Jonathan A. Glickstein's "The Specter of White Chatellization: William Goodell's Abolitionist Thought"--are interesting, but seem somehow incomplete. Still other essays, by Catherine Clinton, Iver Bernstein, Sharon Hartman Strom, Laura Mitchell, Richard Wightman Fox and Ellen Dwyer, added specific insights and information to already established interpretations.

The remaining six essays each present unfamiliar aspects of important issues. For example, Robert E. Bonner's essay, "Confederate Racialism and the Anticipation of Nazi Evil," discusses Confederate leaders' growing reluctance to publicly declare that their new state would be an Herrenvolk republic. It would take sixty years, Bonner concludes, and Adolph Hitler to fully explicate Confederate racial ideology. Margaret M. R. Kellow's article, "The Oriental Imaginary: Constructions of Female Bondage in Women's Antislavery Discourse,"explores the relationship between white female abolitionists and the imagery of white Christian women enslaved by despotic and sexually depraved Moslem masters. And, in his essay "Bankruptcy and Bondage: The Ambiguities of Economic Freedom in the Civil War Era," Edward Balleisen performs a miracle of prestidigitation. He makes a close analysis of the federal Bankruptcy Act of 1867 interesting by examining its racial and class ramifications.

"Icarus Unbound: Ambition and Sin in Anglo-American Culture, 1560-1776" by William Casey King (similar to the essays by Engerman and Eltis, and by Margaret Keller) has discourse at its center. King investigates the changing definition of "ambition" over time and how its social, intellectual and moral transformation affected the institutional foundations of Anglo-American society. Finally, the essays of Michael Fellman ("The Transferability of Otherness: American Expansionists Greet the Filipinos, 1898-1902") and Leslie Butler ("Liberal Victorians and War in the Age of Empire") have a great deal in common. Although Butler's piece is broader in scope, both discuss how and why the articulate classes in the United States and Britain accepted or rejected overseas expansion at the turn of the twentieth century. Generally applying an exceptionalist model, Fellman views the United States' encounter with the Filipinos as an extension of 250 years of Indian fighting, on the one hand, and the suppression of subordinate races on the other. But, Butler points out that for Anglo-American liberals the choices they confronted were more that just "Benevolent Assimilation," racial suppression, or extermination. Their attitude depended on specific cases and there was not always uniform agreement about those cases. Only the goal of a universal liberal society remained constant; the ways and means of achieving that goal were for liberals always a matter of contention.

Mintz and Stauffer's The Problem of Evil is an interesting book. Its essays are uniformly thoughtful and well-written. They will be a useful starting point for students investigating the subjects with which they deal. The publishers have conveniently placed endnotes at the conclusion of each essay.(For example, Orlando Patterson's piece is followed by 106 such notes.) Yet,the editorial staff did allow an unreasonable number of typos and minor grammatical errors to slip pass them. Despite the volume's obvious virtues, I am still uneasy about its title. I detect just a whiff of presentism in several of its essays. However, I strongly recommend The Problem of Evil as a resource for academic libraries.

The full review is here.

Congleton on Rational Choice and Constitutional Democracy in America

Roger D. Congleton, George Mason University, has posted a new paper, Constitutional Exchange, Ideology, and Democracy in America, bringing rational choice to the development of constitutional democracy in the United States. Whether democratization in the United States has really occurred "peacefully and lawfully" and whether "no revolutions or revolutionary threats were necessary or evident," would seem to be questioned by much of the literature on the history of race and civil rights in the U.S., most of which is not cited in the paper. Many such works have been noted on the Legal History Blog, for example this and this. And on the under-studied nature of violence in American history, see this. For another, broader, take on the history of democratization, see Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History. Here's Congleton's abstract:

Constitutional democracy in the United States emerged very gradually through a long series of constitutional bargains. A theory of constitutional exchange grounded in rational choice models provides a good explanation for the distinctive features of American constitutional history, as it does for much of the West, although it does less well at explaining the timing of some of changes. No revolutions or revolutionary threats were necessary or evident during most of the three century–long transition to constitutional democracy in America. As in Europe, wealth-based suffrage laws were gradually eliminated, the secret ballot was introduced, and the power of elected officials increased. For the most part, this occurred peacefully and lawfully, with few instances of open warfare or revolutionary threats.

Call for Papers: Rupture, Repression, and Uprising: Raced and Gendered Violence Along the Color Line

Rupture, Repression, and Uprising
Raced and Gendered Violence Along the Color Line

APRIL 3-5, 2008
Conference sponsored by the
African American Studies & Research Program
University of Illinois at Urbana-Champaign

By marking the anniversaries of the 1908 Springfield, Illinois riot, and the cataclysmic events of 1968, this conference (re)investigates their legacies for a dawning new century. This commemoration also provides a powerful point of entry into larger scholarly conversations about the history of riots, other organized violence against racialized bodies (including sexual and state violence), rebellions and resistance, and their reverberations across time and
space.

Indeed, the violence in Springfield was but an episode in a broader pattern of white mob actions that encompassed Wilmington, North Carolina (1898), Atlanta (1905), East St. Louis, Illinois (1917), the “Red Summer” of 1919, and Tulsa, Oklahoma (1921). These urban racial pogroms, often backed by white police and governmental authority, were part of a long-term project of black subjugation, one that paralleled the emergence of the United States as a white supremacist empire in the Western Hemisphere and Pacific through the Spanish-American War (1898), as well as the continuing brutality of European colonialism in Asia and Africa.

Sixty years after the events of Springfield, the National Advisory Commission on Civil Disorders, headed by Illinois governor Otto Kerner, issued an influential report on a wave of urban conflagrations that peaked that year following the assassination of Martin Luther King, Jr. Detailing a web of U.S. racial stratification, the Kerner Commission report, and the urban revolts it addressed, came in the midst of a domestic and international sea change – radical U.S. popular struggles and reactionary countermovements; anti-colonial and anti-imperialist struggles in southern Africa, the Caribbean, and Latin America; the Tet Offensive in Southeast Asia; and the short-lived takeover of the streets by Parisian students and workers.

“Rupture, Repression, and Uprising” seeks domestic, comparative, and international/transnational explorations of varied forms of violence that cross disciplinary lines.

We welcome papers and organized panels on topics including, but not limited to, the following:

Racialized communities, structured, and state sponsored violence
1968, urban revolts, and Black Power
Interpreting the recent rebellions in the suburbs of Paris, France, and Sydney, Australia, and their parallels.
(Re)assessing the Moynihan Report, Kerner Commission, and constructions of the "underclass"
Teaching courses in racialized violence
Race riots in the U.S. and abroad
Prison revolt, the prison-industrial complex, and questions of state violence
Sexualized racial violence and feminisms
Violence and intersections of race, gender, and sexualities
Environmental racism as violence
Violence within urban racialized communities
Truth and reconciliation: social movement or state enterprise
Rebellion, "law and order," and the new revanchism
Red Scare and Red Summer

Deadline for panel and paper abstracts is November 1, 2007.
Submissions should be mailed electronically, to aasrp@uiuc.edu.
For general questions or information, please contact Jennifer Hamer or Lou Turner at aasrp@uiuc.edu or 217.333.7781. You may also visit the website.

Economists weigh in on "From Brown to Busing"

From Brown to Busing is a new paper posted by Elizabeth Cascio, University of California, Davis - Department of Economics; Institute for the Study of Labor (IZA); National Bureau of Economic Research (NBER), Nora Gordon, (affiliation unknown) and Ethan G. Lewis, Dartmouth College - Department of Economics. You have to pay to download the paper itself, but check with your library -- perhaps they have a subscription. Here's the abstract:

An extensive literature debates the causes and consequences of the desegregation of American schools in the twentieth century. Despite the social importance of desegregation and the magnitude of the literature, we have lacked a comprehensive accounting of the basic facts of school desegregation. This paper uses newly assembled data to document when and how Southern school districts desegregated as well as the extent of court involvement in the desegregation process over the two full decades after Brown. We also examine heterogeneity in the path to desegregation by district characteristics. The results suggest that the existing quantitative literature, which generally either begins in 1968 and focuses on the role of federal courts in larger urban districts or relies on highly aggregated data, often tells an incomplete story of desegregation.

Symposium Issue: Federalism Past, Federalism Future

Federalism Past, Federalism Future: A Constitutional Law Symposium is featured in the Spring 2007 St. John's Journal of Legal Commentary. Here's the table of contents, with links:

ARTICLES

The Supreme Court’s Federalism Revival And Reinvigorating The “Federalism Deal”
Preeta D. Bansal

How Congress Paved The Way For The Rehnquist Court’s Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban
Neal Devins

Facts On The Ground And Federalism In The Air: The Solicitor General’s Effort To Defend Federal Statutes During The Federalism Revival
Barbara Underwood

The “Federalism Five” As Supreme Court Nominees, 1971-1991
John Q. Barrett

Whose Ox Is Being Gored? When Attitudinalism Meets Federalism
Michael C. Dorf

Stop Federalism Before It Kills Again: Reflections On Hurricane Katrina
Stephen M. Griffin

Active Sovereignty
Timothy Zick

Gellman reviews Wolf, Race and Liberty in the New Nation: Emancipation in Virginia from the Revolution to Nat Turner's Rebellion

More on the subject of slavery and the founding: Eva Sheppard Wolf, Race and Liberty in the New Nation: Emancipation in Virginia from the Revolution to Nat Turner's Rebellion (Louisiana University Press, 2006) is reviewed on H-Law by David N. Gellman, Department of History, DePauw University. Gellman writes, in part:

Some slaveholders had their faith in slavery shaken by the spirit of liberty,but the American Revolution failed to shake white Virginians’ commitment to slavery. Eva Sheppard Wolf’s book Race and Liberty in the New Nation would seem to be telling us what we should already know in charting Virginia’s commitment to its fundamental source of white wealth and status. But Americans,with good reason, continue to be disturbed by the paradox of slaveholding founding fathers like Jefferson and Washington enacting a radical experiment in republican liberty. Thus we treat the story of slavery in the new republic as one of tragic contingency (if only they had acted on their principles!), tragic in evitability (try though they did, what choice did they really have?), or an unstable mix of both. Wolf offers a tremendous service by providing a ground-level view of emancipation in Virginia that walks the reader chronologically through the law and practice of emancipation from 1776 to 1832. This approach provides readers with a clear view of the self-limiting nature of liberty in the new nation’s most important state. Virginia’s commitment to slavery was recurrently contested and debated; but the contest always ended the same way,with the refusal by white Virginians to embrace collectively a racially egalitarian future. This result had less to do with the hypocrisy of its Olympian political leaders than a more widespread “failure of imagination” (p.87) born of interest, fear, and racism. If there was a struggle for Virginia’s “and America’s soul, it was never fought on a level field. Virginia clung as a state to the institution that had defined it as a colony.

Wolf's narrative takes place under a tent held up by three poles, the Revolutionary War, Gabriel's Rebellion, and Nat Turner's Rebellion. She devotes only minimal space to describing these events--even though each represents a dramatic moment of violent black resistance that forced whites, powerful politicians and ordinary citizens alike, to think carefully about the place of slaves in Virginia society. Wolf is more interested in the deliberations that emerge from crises than the crises themselves. Her approach is sensible and efficient, given the existence of extensive scholarship on these events. Moreover, Wolf proceeds on the assumption that through the more ordinary process of drawing up manumission papers and drafting laws we see white and, to a lesser degree, black ideas about race and slavery most clearly revealed.

The impact of a disruptive war and its egalitarian ideology on slavery was limited but also highly revealing. The Revolution simultaneously stimulated "liberal" inclinations and "conservative reflexes" (p. xi). Thus,Virginia's small Quaker population put natural rights rhetoric into practice, encouraging and ultimately insisting upon manumission within their sect, and pushing judicial and legislative authorities to legitimize their emancipations. Methodists, officially establishing themselves as a church in1784, initially demanded that their members make plans to free their slaves. Some Baptists also expressed opposition to slavery. Virginia's political leaders banned the slave trade, although Wolf casts this measure in exclusively self-interested terms. Thomas Jefferson toyed with ideas for gradual emancipation laws, but brought no such measure before the provincial or state legislature. Slaves themselves, meanwhile, availed themselves in large numbers of the offer of Virginia’s last royal governor of freedom to runaways from patriot masters. But in Wolf's account, the signal accomplishment of the era was the 1782 "act to authorize the manumission of slaves." This law, which remained on the books until 1806, was a sharp departure from the laws that preceded it and those that would follow: masters wishing to free female slaves between eighteen and forty-five and males between twenty-one and forty-five could do so, without seeking individual approval by the legislature. Significantly, the law contained no provision demanding that freed former slaves leave the state. Yet the law did not attempt a systematic, state-sponsored program of emancipation, channeling emancipation exclusively through private individuals under certain defined conditions.

The law's limitations notwithstanding, the 1782 manumission law allowed whites to free their slaves and blacks to buy their freedom, thus fostering the emergence of much larger free black communities than existed in the colonial period. In the cleverest analysis in the book, Wolf investigates how, for whom, and to what extent the 1782 law reshaped behavior. While Wolf estimates that ten thousand African Americans gained their freedom through the aegis of this law, this is significantly less than other estimates. More importantly, she suggests that the breadth and ideological significance of the emancipations during this period has been overestimated by previous historians. Wolf samples manumission documents in eight counties in various regions to reach the conclusion that only in the first decade after the law went into effect can it be concluded that most masters freed their slaves out of a principled renunciation of slaveholding....After the mid-1790s, however, manumission assumed a different, and, to historians of ancient and modern slavery outside of North America, quite familiar pattern whereby individual slaves gained their freedom for special considerations or as a means of securing loyalty. This pattern was compatible with strengthening slavery, manumission being used by masters to create individual incentives for loyalty or performance....

The two concluding chapters of Wolf's study make clear that it was not the plight of people like Samuel Johnson that a developing cohort of antislavery politicians had in mind when, during the late 1820s, they began to question the role of slavery in Virginia. Rather, eastern elites themselves introduced slavery into the debate over a new state constitution in 1829 in order to counter western impatience with the disproportionate political power of the Tidewater. Easterners feared western efforts to expand the franchise by eliminating property holding requirements, so that far more white men in the west could vote. They also feared plans to reapportion the legislature to reflect white populations, which would have deprived the eastern regions of Virginia of the population advantage gained from its large number of slaves.Wolf indicates that conservatives beat back the call for electoral reform by raising the specter of abolition and by asserting that the egalitarian rhetoric of westerners, taken to its logical ends, would enfranchise free blacks, as well as women. Thus, according to Wolf, the defense of slavery forced eastern conservatives to refashion the ideals of the American Revolution as dedicated to the preservation of property rather than the extension of liberty. The two-fold effect of this ideological retrenchment was to blunt the western constitutional agenda and to inspire amongst many westerners an incipient free-soil philosophy that made them even more hostile to slaveholder interests.

Nat Turner's Rebellion delivered one more shock to Virginia's body politic that in 1831 and 1832 provided a final opportunity for Virginians to consider whether emancipation might reshape the state's future. Predictably, the problem of what the state should do with its current population of free blacks and the future increase that emancipation threatened, framed the debate and ultimately short-circuited it. Few white Virginia politicians saw the natural rights of black people as a major consideration. Legislators divided largely on sectional lines as to whether a gradual emancipation scheme freeing the offspring of current slaves violated the property rights of slaveholders. Western critics of slavery emphasized that the institution harmed economic and political development, preventing Virginia from realizing its full potential as a dynamic and virtuous society dominated by free white farmers. Ironically, a debate centered on slavery as a practical, not a moral, problem produced nothing but impractical plans that would have stretched out the emancipation process as late as 1910 and was undermined by the consensus of pro- and antislavery legislators that free blacks should be deported. A pervasive consensus on race thus ensured even the contemplation of conservative reform would produce complete inaction. In the thick of the age of Jackson, the eastern elite's colonial commitment to race-based slavery won the day in Virginia.

By taking into consideration a half-century sweep, from 1776 to 1832, and by viewing it as a period of prolonged transition, Wolf's work on slavery in Virginia would seem to mirror the project of Richard S. Newman and others who view the same period as a transformative one in the history of northern abolitionism. Defenders of slavery and critics, whites and blacks, worked out their ideas and strategies in real time, in reaction to unfolding events,interests, and political structures, not simply in response to a clear set of identified, albeit problematic, Revolutionary principles. In Wolf's case,ironically, she has to make this argument by repeatedly making reference to Revolutionary principles, measuring words and actions by the presence or absence of egalitarian and libertarian language. While she does show us Virginians responding to external events such as the War of 1812 and the Missouri Crisis, her argument might be stronger, and her portrait more textured, if she more frequently looked beyond the boundaries of conventional politics and expanded the range of voices that reflected on the meaning of race or recorded the presence of blacks, slave and free, in the Old Dominion. As it is, the Revolution is the measuring stick for ideology, despite Wolf's efforts to provide a story more deeply grounded in a changing social landscape.

Still, Wolf mounts an intriguing challenge to historians who have claimed that the Revolution had a powerful impact on thinking about race and slavery. Here emphasis on conservatism provides nuance to works by William Shade, Dickson Bruce, and Robert McColley. Wolf locates slavery and race closer to the heart of political conservatism in Virginia than does Bruce. In building on these previous perspectives, she interrogates claims by historians such as William Freehling, Gary B. Nash, and Duncan Macleod regarding the relative intensity of revolutionary liberalism, as well as casting doubt on whether oppressive ideas about race were really a response to the inability of the Revolutionary generation in the South to dismantle slavery. Colonial era habits of mind remained a crucial instrument of power in Wolf's account, merely tuned up for a new era. Throughout the half century that she examines, the persistent refusal by whites to accept the possibility of large numbers of free blacks and free whites living amongst one another, even on unequal terms,vanquished even the most cautious antislavery arguments....

Read the full (detailed and interesting) review here.

Hilyerd on Lawyers in American Comic Books, 1910-2007

Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007. This is a new paper by William A. Hilyerd, Louis D. Brandeis School of Law at the University of Louisville. Here's the abstract:

Since comic books were first introduced in the 1930s, they have provided entertainment for children and adults alike. Most American males (and a significant portion of American females) have read comic books at some point in their lives, most when they were in grade school. In addition to providing young adults with their first glimpse of costumed heroes, comic books have also provided these same young adults with their first look at the legal profession. From the earliest days of comic books and strips through the present, attorneys have been prominently featured in American comic books.

The article begins with a discussion of the history of illustrated artwork and how that artwork evolved first into newspaper comic strips then into comic books. Next, comic strip and comic book attorneys from the early part of the 20th Century are identified and discussed. The introduction of Superman touched off the Golden Age of comic books. Part four discusses attorney characters which appeared during this Golden Age (1938-1946) and provides some background information on many of these characters. Part five discusses the decline of the reputation of comic books during the 1940s and 1950s and socio/legal attacks on comic books during the period.

By the middle of the 1950s, comic book publishers switched back to superheroes from the horror and suspense books. The switch back to superheroes brought with it a new crop of attorneys. Part six of the article identifies all of the recurring attorneys who appeared during this resurgence of interest in comic books, known as the Silver Age (1956-1969). Part seven provides discusses all of the attorney characters who appeared from 1970 through 1985. Part eight finishes the history of attorneys in comic books by identifying all of the attorneys who have had recurring roles in comic books since 1985.

Image credit: Harvey Dent, former Gotham District Attorney, in Batman.

Limerick reviews Pfaelzer, Driven Out: The Forgotten War Against Chinese Americans

Leading historian of the American west, Patricia Nelson Limerick, University of Colorado, reviews DRIVEN OUT: The Forgotten War Against Chinese Americans by Jean Pfaelzer in this Sunday's New York Times. "Thinking realistically about the history of the American West," Limerick writes, "easily lands on the list of this nation’s top 10 least favorite pastimes." She finds Pfaelzer's book a corrective. The book

tells the story of the “thousands of Chinese people who were violently herded onto railroad cars, steamers or logging rafts, marched out of town or killed,” from the Pacific coast to the Rocky Mountains. Despite the forceful adjective of Pfaelzer’s subtitle, this burdensome history has not been entirely “forgotten.” Scholars have written comprehensively and memorably about it. But it is surely accurate to say that a majority of Americans live without a recognition of the degree, scale and extent of these chilling undertakings.

Most know even less about the extraordinary record of the Chinese people’s responding to persecution with boycotts, petitions, lawsuits and demands for reparations. In Wing Hing v. City of Eureka, 53 Chinese men and women joined together in asserting that the Northern California city had a duty to protect its residents and in demanding reparations and financial compensation for the violence that drove them out in 1885. Confronted with the requirement, in the Geary Act of 1892, that Chinese immigrants carry an identity card proving they were in the country legally or else face deportation, thousands refused to submit to what they called the “Dog Tag Law,” thus undertaking what Pfaelzer says was “perhaps the largest organized act of civil disobedience in the United States.”

Altogether, Chinese immigrants filed more than 7,000 lawsuits in the decade after the Chinese Exclusion Act of 1882, “and they won the vast majority of them,” Pfaelzer writes. In truth, these efforts to claim the protection of American law should require historians to come up with a whole new understanding — in geography, chronology and cast of characters — of the civil rights movement.

Along with Alexander Saxton, Pfaelzer sees "the disappointment and disillusion that afflicted many seekers of fortune in the American West," as a motivating factor behind anti-Chinese violence. But Pfaelzer recasts it: “Whites saw in Chinese workers precisely what they hated about their own lives: hard and underpaid work, long hours, poor living conditions and a dearth of women.”

Limerick's incisive review finds much insight in Pfaelzer's book, but points to weaknesses as well. It is often tiresome to hear penetrating scholarship criticized for lacking a narrative flair, but Limerick makes a connection between what she sees as flaws in the book's execution, and the author's message.

Uneven quality of the writing has consequence. It gives the reader an unintended relief from an otherwise unrelenting confrontation with human cruelty. One more round of revisions, with sharper phrasing, clearer narrative and more thorough analysis, and Pfaelzer could have sealed off the reader’s route of emotional escape.

It looks as if an important book has met its match with a world class reviewer. Read the review here, and buy the the book at your local independent bookstore, or here.

2007 "Best of the Best" from the University Presses, on Book TV Saturday

You can find out what's on librarians' lists for the "2007 Best of the Best From the University Presses" on C-Span2 Book TV, Saturday, July 28, at 12:00 PM (Eastern time, US). (You can always view archived programs on the Book TV website later on.)

It is a broadcast of a program from this year's American Library Association Conference.

Just one of my favorites is John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American Law (Harvard University Press, 2007). This is an interesting book to think about for course adoption, especially for an American legal history survey, since the scope of the book takes you from law at the founding to 20th century tort law and the administrative state, always with an eye on the relationship between law and national identity. If you haven't yet revamped your teaching materials to "globalize" your American legal history course, this book will help with that. Witt takes up just four broad-ranging stories, which could be taken up at various points during a semester. And it's an elegant read. An excerpt is here.

I would be so interested to know about your favorites.

Pue and McQueen on Law's Empire

Wesley Pue, University of British Columbia, and Rob McQueen, Griffith University, have posted an essay, Law's Empire, which introduces a forthcoming symposium issue of Social Identities. Here's the abstract:

Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding “Law's Empire” in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007.

The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network, in publications of Melbourne University’s Postcolonial Studies Institute, UBC Press’ Law & Society series and through special issues of Law Text Culture, Law in Context and The Journal of Social Justice and Global Development.

Here's the table of contents for the symposium issue:

Rob McQueen, `Speaking and listening to words is how we know who we are`: An Introduction to `Laws Empire’

Ian Duncanson `Identities in the Colony and the Family: tragedies of ascription and transgression in two Australian films’.

Renisa Mawani `Legalities of Nature: Law, Empire and Wilderness Landscapes in Canada’

David Williams, `Maori social identification and colonial extinguishments of customary rights in New Zealand’,

Emma Cunliffe `Anywhere But Here: Race and Empire in the Mabo Decision’

Chidi Oguamanam and W.Wesley Pue `Lawyers’ Professionalism, Colonialism, State Formation and National Life in Nigeria, 1900-1960: ‘the fighting brigade of the people’

Fatou Camara ‘Women and the Law – A Critique of the Senegalese Family Law’

Dianne Kirkby ‘Honorary Chinese? Women Citizens, Whiteness and Labour Legislation in the Early Australian Commonwealth’

Balkin: Originalism is for Progressives

On the topic of how lawyers, legal scholars and judges argue about history, Jack Balkin has a post at Balkinization, Originalism is for Progressives, picking up on a point he has made in recent scholarship.

Rich on The Rise, Fall and Revival of Pro-Slavery Federalism

William J. Rich, Washburn University, has posted an article, Lessons of Charleston Harbor: The Rise, Fall and Revival of Pro-Slavery Federalism. It appeared in the McGeorge Law Review. Here's the abstract:

Traces conceptions of sovereignty and federalism especially as shaped by events that took place in and around Charleston Harbor. Eighteenth century understanding of sovereignty drew sharp lines between state and national authority, and the Eleventh Amendment reflects that division. The belief that state sovereignty retains force even within the context of supreme federal authority did not exist when the Constitution was drafted, arose in part as a defense of slavery in the 1820s, and framed the classic debates in the 1830s between Massachusetts Senator Daniel Webster and South Carolina Senators John C. Calhoun and Robert Y. Hayne. Following the Civil War (which began when shots were fired in Charleston harbor), Congress adopted the Fourteenth Amendment Privileges or Immunities Clause to resolve prior debates and put to rest state claims of a right to resist federal authority. By focusing attention on the history of Charleston Harbor, the author explains why Congress sought to bury the pro-slavery conception of federalism, and how recent Supreme Court decisions (including the decision immunizing South Carolina from federal administrative proceedings involving ships that dock in Charleston Harbor) revived that conception. The author concludes by discussing how nineteenth century lessons apply to development of a credible twenty-first century framework for federalism.

Symposium: Law's History: How Law Understands the Past

Law's History: How Law Understands the Past
Friday, October 19th, 2007
The University of Alabama School of Law, Tuscaloosa, AL

Law in the modern era is one of the most important of our society's technologies for preserving memory. In helping to construct our memory in certain ways law participates in the writing of our collective history. It plays a crucial role in knitting together our past, present, and future. The purpose of this symposium is to examine law as an active participant in the process through which history is written and memory is constructed. Instead of seeing law as a "victim" of history, we want to treat law as an author of history, not just in the instrumental sense in which law can be said to make a difference in society, but in the ways that law constructs and uses history.

Law looks to the past as it speaks to present needs. In the production of judicial opinions—supposedly definitive statements of what the law is—judges reconstruct law's past, tracing out lines of legal precedent that arguably "compel" their decisions. Among the things we wish to explore are the varied ways law treats history, how history appears in legal decisions, and how the authority of history is used to authorize legal decisions.

Organized by Professor Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst and Justice Hugo L. Black Visiting Senior Faculty Scholar for the 2007-2008 academic year at the University of Alabama School of Law.

Speakers include:

Mary Dudziak, University of Southern California (paper abstract here)
Martin Flaherty, Fordham
Risa Goluboff, University of Virginia
Neal Katyal, Georgetown
William Novak, University of Chicago.

Registration information is here.

Achtenberg on Taking History Seriously: Municipal Liability Under Sec. 1983 and the Debate over Respondeat Superior

David Achtenberg, UMKC School of Law, has posted a recent article that contributes to the discussion of how to argue about history in contemporary legal analysis. His piece is Taking History Seriously: Municipal Liability Under 42 U.S.C. §1983 and the Debate over Respondeat Superior. It appeared in the Fordham Law Review. Here's the abstract:

The Monell doctrine - the most important obstacle to municipal § 1983 liability for constitutional wrongs - hangs by a thread. Four Justices of the United States Supreme Court have called for reexamination of Monell's conclusion that cities are exempt from respondeat superior liability for their employees' unconstitutional conduct. Plaintiffs' civil rights lawyers wait only for the right case and a single change in the Court's personnel before urging the Court to overturn Monell.

This Article is intended to provide those lawyers - and those who will oppose them - with a comprehensive, accurate examination of the relevant historical background, and an equally comprehensive description of new historical arguments for overruling Monell and for reaffirming it. This new work is needed because Monell relies on an historical analysis that is simply wrong, while Monell's critics rely on an analysis that is so incomplete that it is grossly misleading. Each side relies on history, but neither side has its history right.

The following pages attempt to correct and complete the historical record. Part I describes the current standards for municipal § 1983 liability under Monell: the rejection of respondeat superior and the creation of four categories of conduct for which cities can be held liable. It then discusses the idiosyncratically narrow nature of those four categories.

Part II shows that Monell's historical arguments for rejecting municipal respondeat superior are wrong. It explains that Monell ignored the actual nineteenth-century rationales for respondeat superior and as a result misinterpreted the rejection of a proposal (known as the Sherman Amendment) to make cities liable for injuries resulting from Ku Klux Klan depredations. It demonstrates that the rejection of that proposal not only was consistent with the nineteenth-century rationales for respondeat superior but also was compelled by those rationales.

Part III shows that Monell's opponents' current arguments are equally counter-historical. It explains that, while nineteenth-century common law did recognize municipal respondeat superior, the practical significance of that recognition was drastically diminished by a doctrine that treated a large and crucial group of city-paid workers as employees of the state rather than the city. As a result, incorporation of nineteenth-century common law rules would not, as Monell's opponents suggest, lead to restoration of meaningful municipal respondeat superior.

Part IV attempts to reframe the arguments on sound historical foundations. Part IV.A suggests that the Court should treat § 1983 as implicitly incorporating substantive nineteenth-century common law doctrine. It then shows that the now-forgotten (but then well-known) public officer liability doctrine provides a solid historical foundation both for Monell's rejection of respondeat superior and for its four theories of municipal liability. Section B attacks the foundation of that approach and suggests that the enacting Congress would have expected courts to treat the common law not as a set of ironclad rules, but instead as a flexible decision-making process in which unchanging fundamental principles - in this case, the rationales for respondeat superior - were applied to a changing world. It then shows that application of that process to current municipal employment relations would lead to reinstating respondeat superior.

Pottow on The Maxwell Case in Bankruptcy Stories

John Pottow, University of Michigan, has posted a new essay, The Maxwell Case. It appears in BANKRUPTCY STORIES, R. Rasmussen, ed., (2007). Here's the abstract:

International bankruptcy scholars well know the Maxwell case as probably the most important litigation precedent in this fledgling jurisprudential field. What they tend to know less about is the “back story” of the redoubtable Robert Maxwell (born Jan Ludwick Hock). A towering, inspiring, and larger than life figure, Maxwell built an international publishing empire that spanned the globe before it came crashing down in scandal after his mysterious death. This book chapter (in a book devoted to the back stories of famous bankruptcy cases) explores Maxwell's life, business, fall from grace and, of course, posthumous bankruptcy. In so doing, it analyzes both the legal issues involved in the regulation of cross-border financial distress as well as certain eternal truths about the human condition (and, indeed, the corporate form).

Karayiannis and Hatzis on Morality, Social Norms and Rule of Law as Transaction Cost-Saving Devices: The Case of Ancient Athens

Anastassios Karayiannis, University of Piraeus, and Aristides N. Hatzis, University of Athens, have posted a new paper, Morality, Social Norms and Rule of Law as Transaction Cost-Saving Devices: The Case of Ancient Athens. Here's the abstract:

The importance of the institutional framework for economic development is widely accepted today and it is duly stressed in the economic literature. The protection of property rights, the enforcement of contracts and an efficient legal system are the pillars of the contemporary rule of law. However, formal institutions cannot function without being internalized by the citizens and without the backing of social norms. Morality and social norms are the major elements of the informal institutional structure, the social capital, which is also critical for social welfare and economic development. In this paper we will discuss both the formal and the informal institutional framework of Ancient Athens, which was a free market society with economic problems similar to contemporary market societies. Athenians developed a highly sophisticated legal framework for the protection of private property, the enforcement of contracts and the efficient resolution of disputes. Such an institutional framework functioned effectively, cultivating trust and protecting the security of transactions. This entire system however was based on social norms such as reciprocity, the value of reputation and business ethics. Conformity to social norms as well as moral behavior was fostered by social-sanction mechanisms (such as stigma) and moral education. The Athenian example is a further proof of the importance of morality and social norms as transaction cost-saving devices even in quite sophisticated legal systems. Their absence or decline leads inevitably to the need for more regulation, clear-cut rules, less judicial discretionary power and more litigation. Athenian law was pioneering in the development of rules and institutional mechanisms suitable for the reduction of transaction costs, many of them surviving in the most complex contemporary legal systems.

Ward Churchill fired

Cliopatria and Leiter's Law School Reports have helpful links.

Quigley reviews Douglas, Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954

Davison M. Douglas, Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954 (Cambridge University Press, 2005) is reviewed for H-Urban by David Quigley, Department of History, Boston College. Hat tip. Quigley writes:

May 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education. Attempts by politicians and the media to commemorate Brown proved to be more awkward than those associated with more typical historical anniversaries. Observers--from the left,right, and center--struggled to make sense of the degree to which the nation's schools had in fact been integrated over the past half century. Eric Foner and Randall Kennedy introduced a special commemorative issue of The Nation by reminding readers that "Brown's promise remains, to a considerable extent, unfulfilled. Jim Crow schooling is not a wrong inflicted in ancient times on people long since dead; it is an all too recent injustice that created unhealed wounds." Confronted with a public school system marked by enduring patterns of racial separation, Brown presents a particularly mixed legacy for scholars and citizens in the twenty-first century.

Davison M. Douglas's new book--Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954--explores the history of the public schools in the North in the century and a half before the Brown decision with particular attention to the complexities of race and public education. By pushing the story back well before 1954, and even before 1865 (the book's putative starting point) and by shifting his focus from the segregated South to the North, Douglas manages at once to remap the field of Brown scholarship and to make a strong case for the impact of northern precedents on the work of Thurgood Marshall and the postwar National Association for the Advancement of Colored People (NAACP). A law professor with a Ph.D. in American history, Douglas's approach to legal history skillfully brings together social, cultural,and political realms to make sense of the paradoxes of segregated public schools. This careful reconstruction of Brown's back story is a useful corrective to a good deal of the confusion articulated in May 2004.While Douglas's subtitle suggests the end of the Civil War as his starting point, his opening chapter on antebellum northern communities is in some ways the most powerful. Documenting the range of practices and innovations that emerged in the decades before the Civil War, the North is portrayed as a region wrestling with the implications of public schooling in an era of deepening sectional division. Douglas succeeds in undermining ideas of any unitary, "free" northern approach to the issue of race and schooling. The Roberts case in Massachusetts is read against the backdrop of a generation of legal and political disputes over African American access to the region's new schoolhouses. This study reminds us often just how difficult it is to generalize about atypical northern approach to race and schooling, whether in the early nineteenth century or in the aftermath of World War II.

Jim Crow Moves North retraces the state-by-state legislative embrace of school integration in the aftermath of the Civil War and then proceeds to narrate the history of how communities and states, slowly but steadily, undercut much of that progress in the years after 1900.Immediately after the Civil War and for several succeeding decades,northern African Americans scored significant victories in gaining access to integrated public schools. Many postbellum northerners--black and white--worked to remake the segregated system which had been erected before 1860. In time, though, such changes would be undone. The impact of the Supreme Court's decision in Plessy v. Ferguson, it seems, was not limited to the South; across the Northeast and Midwest, a generation of whites committed themselves to a separatist system of public education after 1896. Alongside J. Morgan Kousser's work on school litigation in the nineteenth-century North, Douglas's book helps to make sense of the struggle for black equality in the North between 1865 and the end of the century. The first four decades of the twentieth century witnessed a historical reversal, as Douglas writes, that where"African Americans had made substantial strides toward full inclusion in the public education systems of the North during the late nineteenth century, … the migration of hundreds of thousands of southern blacks into northern cities during the early twentieth century provoked renewed white insistence on racial separation in much of the North" (p. 166).This twentieth-century insistence on separation was not simply the result of residential segregation but the product of specific,intentional acts of public policy.

Douglas documents conflicting African American responses to the problem of segregated schools across the nineteenth century and well into the twentieth. Chapter 5, "Responding to the Spread of Northern School Segregation: Conflict within the Black Community, 1900-1940," highlights the era of the Great Migration as a period of particularly divisive debate within black communities. Groups like the Pennsylvania Association of Teachers of Colored Children provided ideological and organizational support for separate black schools. By taking such separatist voices seriously, Douglas both locates the origins of some more recent African American arguments for separate schools and provides a fuller context for the NAACP's embrace of school desegregation in the interwar years. Conflicts over race and northern public schools, Douglas argues, intensified in the decades leading up to Brown. This study of the politics of public schools offers a bracing, troubling account of"the role of law in accomplishing racial change" (p. 6). The prehistory of Brown alerts us to the limits of judicial power.

For all of Douglas's success in making sense of the history of racial segregation in the North, it is misleading to argue, as does the book's title, that the story here is one of Jim Crow moving North. As David N. Gellman and I have argued elsewhere, northern politicians and ordinary citizens in the first half of the nineteenth century were responsible for crafting, maintaining, and defending a variety of practices which we have traditionally identified as constituting "Jim Crow." Much of Douglas's evidence supports the idea that the nineteenth-century North pioneered new forms of racial division in the very public schools that were central to democratic public life. Rather than Jim Crow being the exclusive province of any one region, Douglas's history suggests a recurring process of interregional borrowing and innovation across the nineteenth and twentieth centuries with white northerners and southerners learning from each others' experiences.

This leads to a final question about the relationship between two contemporary processes in the mid-nineteenth-century North: the emergence of public schools and the refinement of forms of racial separation. The rise of a northern culture of segregation--perhaps most prominent in many of the region's schoolhouses--might be interpreted as being inextricably linked to the creation of and support for an extensive system of public schooling in many parts of the North in the decades before the Civil War. Exclusions by race could thus be conceived of as not coincidental to the expansion of schooling for masses of American children but perhaps central to many Americans' understanding of public education. As in the case of racial limits on suffrage in the antebellum North, it seems that racial limits on "public" education came naturally to many white northerners.

The full review with notes is here.

Cunliffe explores visions of legal history on the Australian High Court

Emma Cunliffe, University of British Columbia, has posted an essay, Anywhere but Here: Race and Empire in the Mabo Decision. It takes up an Australian version of a question very much on the minds of American legal scholars in the wake of the recent PICS case: what happens to history in the hands of judges. The essay appeared in a Symposium Issue of Social Identities. Here's the abstract:

The High Court of Australia's decision in Mabo v. Queensland (No.2) is among the most widely known and controversial decisions the Court has yet delivered. In Mabo, a majority of the Court recognised a common law right to native title subject to certain criteria. In this article, I explore the competing visions of legal history that are implicit within Brennan J's leading judgment and Dawson J's dissent. In particular, I discuss the ways in which both of these judgments render an incomplete and contradictory documentary record more coherent than it really is. Suggesting that neither judgment manages to escape the traces of racism, I argue that the alternative approaches tell us more about the fault lines within contemporary Australian political discourse than they do about the Australian colonial past. I conclude that Brennan J's efforts to render contemporary justice for past wrongs against indigenous Australians deserve acknowledgement, though his judgment is ultimately constrained by the force at the heart of the Australian common law. Much more remains to be done before the Australian common law can be said to recognise indigenous Australian cultures as complex, changeable, and contemporary.

Kirchmeier on The Death Penalty Abolitionist Search for a Wrongful Execution

Jeffrey L. Kirchmeier, CUNY School of Law, draws from history to contribute to the innocence debate in a new article, Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution. The article has been published in the Tulsa Law Review. Here's the abstract:

This article examines the debate about whether or not an innocent person has been executed in the United States. The article begins by discussing several famous historical claims of wrongful execution, including Sacco & Vanzetti, the Rosenbergs, and Bruno Hauptmann. Then, the article addresses some recent claims of wrongful executions, including the case of Larry Griffin and the impact of a 2006 DNA test in the Roger Coleman case.

The article evaluates why some innocence claims attract more attention than others. By recognizing two obstacles in wrongful execution claims and by establishing five lessons for gaining media attention, the article uses its historical analysis to extract strategy lessons for death penalty abolitionists.

Finally, the article weighs arguments regarding the pros and cons of an abolitionist strategy that focuses on proving the innocence of executed individuals. The article concludes that wrongful execution claims provide an important argument for abolitionists, but such claims should not be presented as the main or only problem with the death penalty.

Burns on The Court of Chancery in the 19th Century

Fiona Burns, Sydney Law School, has posted an essay, The Court of Chancery in the 19th Century: A Paradox of Decline and Expansion. It appeared in the University of Queensland Law Journal. Here's the abstract:

This article considers the traditional argument that the Court of Chancery declined in the 19th century. It is argued that while the Court was beset by procedural problems, some of the most important and long-lasting doctrinal contributions to equity and the law generally occurred in the 19th century Court of Chancery. Areas which are discussed include: fraud and breach of confidence; fiduciary obligations; passing off; and restrictive covenants.

New data on PhD completion rates: are the humanities behind?

The Council of Graduate Schools has released a report on progress toward the PhD, across fields. Overall, 56.7% of those entering a U.S. doctoral program receive the PhD within 10 years. PhD completion rates within 10 years are highest in the sciences and mathematics. The tables are a bit hard to read, but in history the 10 year completion rate is 48%. In economics, the 10 year completion rate is just over 50%.

The American Historical Association's Blog reports that:

This completion rate is significantly lower than our own estimates, which are based on data submitted from the history departments annually. In 2006, history PhD programs estimated that an average of 59 percent of the students who matriculated into their program in 1996 had completed the degree. But one of the issues we confronted in our survey was precisely how to determine when a student actually entered the doctoral program, given that some enter as Master’s students or some other form of transitional status....

Unfortunately, the report does not offer specific information on attrition from history PhD programs. But for the humanities in general, they report that slightly more than 15 percent of doctoral students gave up by their third year in the program, and more than a third gave up by year 10. Almost 19 percent of humanities doctoral students were still counted on the books as continuing toward the degree in their tenth year.

The discrepancy in reporting is important to focus on. The AHA Blog goes on to conclude that the report gives "history a lower 10-year completion rate than almost all other disciplines."

Another way to look at the very same tables is to find that while it takes longer to complete a PhD in the humanities than mathematics or science (we knew that), at the end of the day, the 10 year rate for history is not far off from many fields, including economics, which has a 10 completion rate of just over 50%. The table that is supposed to show that history has a lower completion rate than "almost all other disciplines" actually shows that there is almost no difference between history and the overall category of "humanities." This suggests that if steps need to be taken to help graduate students complete the PhD more quickly, it is not necessarily a history-specific problem, but a difficulty that affects many parts of the academy.

The bottom line: if you want a quick PhD, the data is clear: be a civil engineer. It you're in econ, history, anthro or literature, you're in for a long haul, and it is in everyone's interest to determine ways to make progress toward the PhD, across fields, an education, and not a career.

UPDATE: PhDinHistory follows up with more helpful data, here, noting that only sixteen PhD granting history departments provided the date for the Council of Graduate Schools report, representing only 10% of North American history doctoral programs. A rather important limitation of the study!

Rotunda reflects on a personal history of Teaching Professional Responsibility and Ethics

Ronald D. Rotunda, George Mason, has posted an essay, Teaching Professional Responsibility and Ethics, which is appearing in the St. Louis University Law Journal. Here's the abstract:

This article discusses the development of teaching legal ethics in light of the changes in the ethics rules over the years. The thesis is that many ethics rules reflect the needs of a cartel (the legal profession) to protect itself, rather than the need to protect the clients of lawyers. The author uses stories and examples to illustrate this thesis.

Professor Rotunda sets legal ethics in a historical context, but the principal history for this article is personal, and so it provides reflections on ethics by this senior scholar from before his career began. He opens with this evocative story:

My first recollection of wanting to become a lawyer was in grade school, when the teacher told each of us to write a paper on what we wanted to be. I was probably in eighth grade. I decided that I wanted to be a lawyer. I do not know why I made that choice. I did not know any lawyers. My parents never had the opportunity to attend college; my mother never even attended high school. My father emphasized education, but it was up to me to decide on a career.

In order to collect information on lawyers for my grade school paper, I wrote the state bar in Illinois, where I lived. The bar sent me its code of professional responsibility. I remember one thing: that one of the rules of professional responsibility stated that it was unethical to charge less than a certain amount of money per hour. I do not remember the exact amount, for it was many years ago. Let us say it was fifty dollars per hour. I do remember that, whatever the hourly amount was, it was more than what my father earned in a good day.

Think about that. It would be unethical for a lawyer to charge less per hour than my father earned in a full day. He is retired now, but at the time, he was a skilled, self-employed, blue collar worker (a sign painter). He often worked ten hours a day. Yet, it would be unethical for a lawyer to charge less per hour than he would earn in a good day.

What struck me at the time was that the legal profession said it was unethical to charge too little.

More stories are here.

American Society for Legal History: Registration Information for Annual Meeting

Conference registration is now open for the 2007 Annual Meeting of the American Society for Legal History. The meeting will be October 25-28 in Tempe, Arizona. Deadline: September 19.


Here are essential links:

• Registration Form (pdf).


• Hotel reservation information.


• Room-sharing form (if you'd like a roommate).


• Tempe Travel Links.


• Preliminary Program.

Photo credit.

Weinberg on Dred Scott and the Crisis of 1860

Louise Weinberg, University of Texas, has posted an essay, Dred Scott and the Crisis of 1860. It is appearing in a symposium issue of the Chicago-Kent Law Review on the 150th Anniversary of the Dred Scott Decision, edited by Paul Finkelman, Jack M. Balkin and Sanford Levinson. Here's Weinberg's abstract:

This article argues the centrality of the Dred Scott case in the election of Abraham Lincoln and to the national crisis of 1860. Taking the view that the struggle over the expansion of slavery into the territories was in essence a scramble for national political power, the economic, political, legal and social roots of the sectional dispute are traced, and the causal connections between Dred Scott and the coming of the Civil War, among other causes, are clarified

Reviewed: Weiner, Legacy of Ashes: The History of the CIA

LEGACY OF ASHES: The History of the CIA, by Tim Weiner is reviewed today in the Washington Post , the Boston Globe, and the New York Times. Evan Thomas writes in the NY Times:

Tim Weiner’s engrossing, comprehensive “Legacy of Ashes” is a litany of failure, from the C.I.A.’s early days, when hundreds of agents were dropped behind the Iron Curtain to be killed or doubled (almost without exception), to more recent humiliations, like George Tenet’s now infamous “slam dunk” line. Over the years, the agency threw around a lot of money and adopted a certain swagger. “We went all over the world and we did what we wanted,” said Al Ulmer, the C.I.A.’s Far East division chief in the 1950s. “God, we had fun.” But even their successes turned out to be failures. In 1963, the C.I.A. backed a coup to install the Baath Party in Iraq. “We came to power on a C.I.A. train,” said Ali Saleh Saadi, the Baath Party interior minister. One of the train’s passengers, Weiner notes, was a young assassin named Saddam Hussein. Weiner quotes Donald Gregg, a former C.I.A. station chief in South Korea, later the national security adviser to Vice President George H. W. Bush: “The record in Europe was bad. The record in Asia was bad. The agency had a terrible record in its early days — a great reputation and a terrible record.”

And yet the myth of the C.I.A. as an all-knowing, all-powerful spy agency persisted for years, not just in the minds of America’s enemies but in the imagination of many American television-watchers and moviegoers. Among those fooled, at least initially, were most modern presidents of the United States. The promise of a secret intelligence organization that could not only spy on America’s enemies but also influence events abroad, by sleight of hand and at relatively low cost, was just too alluring.

When presidents finally faced the reality that the agency was bumbling, they could be bitter. Reviewing the C.I.A.’s record after his two terms in office, Dwight Eisenhower told the director, Allen Dulles, “I have suffered an eight-year defeat on this.” He would “leave a legacy of ashes” for his successor.

The full review is here.

Pue on Police Powers, Trespass and Expressive Rights Under the Canadian Constitution

Wesley Pue, University of British Columbia, has posted a new paper, Police Powers, Trespass and Expressive Rights Under the Canadian Constitution. Here's the abstract:

This paper traces the history of the ancillary police powers doctrine in Canadian police law/ constitutional law over the past 40 years. It identifies a doctrine creep wherein a heading of police power which had modest origins has expanded massively. The expansion is spatial and conceptual and reached its reductio ad absurdum when the entire central area of Quebec city was zoned into no-go areas by police acting without legislative authority, claiming the right to erect barricades in public streets, to issue passes (or not) as necessarily ancillary to police powers. The paper includes the only English translation of the Tremblay case, in which this power was considered and an analysis of both Tremblay and other authorities on the matter. Other matters considered include the Emergencies Act, Riot Act, the notion of public forum, trespass law, anti-globalization protests and aboriginal land claims as giving colour of right to be present on lands.

Harrison on Ex Parte Young

John C. Harrison, University of Virginia, has posted a new paper, Ex Parte Young. The paper begins with, perhaps, a revealing sentence: "Each of us may hope that by our hundredth year much of our youth will have been forgotten." Whether or not each of us feels that way, Harrison's well-written paper continues, "That has happened with Ex parte Young, a central case with respect to sovereign immunity and constitutional remedies." Here's the abstract:

Ex parte Young does not represent an exception to ordinary principles of sovereign immunity, it does not employ a legal fiction, it does not imply a novel cause of action under the Constitution or other federal law, and it does not create a paradox by treating officers as state actors for one purpose and private persons for another. All those bits of conventional wisdom are wrong for the same reason: Young was about a traditional tool of equity, the injunction to restrain proceedings at law, or anti-suit injunction. By seeking an anti-suit injunction, a potential defendant at law can become a plaintiff in equity and present a defense in an affirmative posture. Asserting defenses against the government, like the railroads' constitutional defenses at issue in Young, does not offend sovereign immunity, so it does not require a fiction to cover up a violation of sovereign immunity. Anti-suit injunctions have long been a standard tool of equity and so in approving one the Court in Young did not recognize a novel cause of action applicable only to government officers, and for that reason did not encounter a paradox. This article elaborates on the argument just described, discusses the extent to which the opinion in Ex parte Young reflects the fact that it involved an anti-suit injunction, and briefly considers the contemporary implications of this way of understanding this foundational case.

"There is no such thing as 'bloglish'"

In case you were worried about the impact of blogs on the English language, the Telegraph reports that Oxford University Press lexicographers have found that "there is no such thing as 'bloglish'." If that's the good news, the other news is that "the top 15 most frequently used words are: blogger, blog, s---, oh, yeah, stupid, post, ok, stuff, lovely, myself, update, nice, me and my." Hat tip. Oh, my -- if this blog and blogger have not done our share of contributing to the supremacy of this lovely list of words, perhaps this stupid post will do a nice job of it. Ok? Update: don't blame me, but, yeah, this stuff reads like s---, if I must say so myself.

How to Get a Fellowship: Tips for Law Faculty

With the announcement of a new Guggenheim in Constitutional Studies, more law faculty may try their hand at applications for major national fellowships and grants. This would be a good thing. But special hurdles face many law professors because publishing expectations are different in law than in most fields. It is a good idea to anticipate this, and consider how your superb law c.v. will look to a non-law reviewer before preparing your application.

The issue is books, or lack thereof, for law faculty. Most of the scholars you'll be competing against are likely to have published scholarly books. It's true that some other fields tend to stress articles, rather than books. But in those fields often the articles are much shorter, and the number greater. And even those scholars will often publish books. If you have a substantial body of work, and it's published in law reviews, what do you do?

1. If the reason you are applying for fellowships is that you want to move from articles to a book, get an advance book contract before you apply for fellowships. This way, it's clear that a book will be produced from the work funded by the fellowship. You can approach presses with a proposal and a sample chapter, so you can do that first. (More on that elsewhere.)

2. Do something on your list of publications or c.v. to make clear that your body of work is substantial and has had an impact (especially if you are not a junior scholar). List first and last page numbers in your article citations, or the number of pages. Say something about the impact of a particularly important article (but not your SSRN download figures, or things like that).

3. If your proposal is not for a book...it's not likely to be successful. If you want try anyway, I'd recommend outlining a very concrete series of articles, making clear why publishing the work as articles will have more of an impact than publishing it as a book. Justify the genre.

4. Warning to JD/Ph.D.'s: It's great to have a JD/Ph.D. But if you have a JD/Ph.D. and no book already, fellowship evaluators are going to think that you're applying for their fellowship to turn your dissertation into a book. That will work for a PostDoc, and for many of the fellowships targeted toward junior scholars. For the major national fellowships, you are more likely to be successful on a proposal for book #2. If you apply for book #1, it will help to have a book contract in hand. This holds even if you are senior. To evaluators in other fields, when they look at your c.v., they'll ask where that dissertation book is.

5. What goes in that proposal? Pay attention to the specifics instructions on the application, obviously, but generally, be sure to do this:

a. the proposal has a thesis (or hypothesis), clearly stated.
b. the proposal outlines research that will produce, or has produced, evidence to support or refute the thesis. Include a timeline for research.
c. the proposal makes clear that the researcher is qualified to accomplish this project, and has a track record of getting work like this done.
d. briefly describe the relevant literature, and explain why your project is original and what contribution you are making.
e. the proposal helps the non-specialist reader to see why this project is important, and why this foundation should want to fund it.
f. the proposal is well-written, so that the proposal itself demonstrates the researcher's skills at communicating her/his ideas.
g. request letters of recommendation from people who can speak to your talents and the impact of your work, but who are not your current colleagues.

6. This goes for everyone: don't expect to be successful the first time. Keep trying.

More fellowship advice is here.

New Guggenheim Fellowship in Constitutional Studies

The John Simon Guggenheim Memorial Foundation has announced a New Fellowship in the field of Constitutional Studies (hat tip: AHA Blog):

The John Simon Guggenheim Memorial Foundation will be offering a new Fellowship in the field of Constitutional Studies as part of our 2008 Fellowship competition. Application deadline for the U.S. and Canadian Fellowship competition is September 15, 2007. The deadline for Latin American and Caribbean Fellowship competition is December 1, 2007. Award will be made in Spring, 2008.This Fellowship has been made possible by the Dorothy Tapper Goldman Foundation.

It appears that the application for this fellowship is the same as the general application for Fellowships to Assist Research and Artistic Creation. Contact the Foundation with any questions.

Competition for Guggenheim Fellowships among legal scholars has been keen in the past, with only one awarded to a law professor this year, and two last year. This new fellowship is an obvious draw for legal scholars, and could put a Guggenheim more within reach for some. But political scientists, historians, and others will also compete for these. Tips for law facutly who want to be competetive for major national fellowships like this will follow in a separate post.

Lash on The Tenth Amendment, Popular Sovereignty, and "Expressly" Delegated Power

Kurt T. Lash, Loyola Law School, Los Angeles, has posted a new paper, The Puzzling Persistence of a Missing Word: The Tenth Amendment, Popular Sovereignty and “Expressly” Delegated Power. Here's the abstract:

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power, “was neither more nor less, than [an] attempt to foist into the text the word 'expressly'. Modern courts often cite to McCulloch's “omitted text” analysis of the Tenth Amendment in support of broad interpretations of federal power. In fact, Marshall's point regarding the significance of the missing word “expressly” is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is puzzling therefore to learn that courts and commentators during the early decades of the Constitution regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase, and numerous other members of the Founding generation insisted that Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing actually reflects the original understanding of the Tenth Amendment. Completely missed by generations of Tenth Amendment scholars, adding the phrase “or to the people” to the Tenth transformed the clause into a declaration of popular sovereignty. This declaration established what the Founders referred to as the principle of “expressly delegated powers,” meaning that Congress could utilize no other means except those necessarily incident to its enumerated responsibilities. Particularly when read in combination with the Ninth Amendment's declaration of the retained rights of the people, these twin assertions of popular sovereignty established a rule of strict construction - the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

Bravo on Exploring the Analogy between Modern Trafficking in Humans and the Trans-Atlantic Slave Trade

Karen E. Bravo, Indiana University, has posted an abstract for a new paper, Exploring the Analogy between Modern Trafficking in Humans and the Trans-Atlantic Slave Trade. The paper is not posted, but the author can be reached through her SSRN page. Here's the abstract:

In 2007 the United Kingdom celebrates the 200th anniversary of its abolition of the trans-Atlantic slave trade. In 2008 the U.S. will mark the 200th anniversary of its own prohibition of the trans-Atlantic trade.

Yet, according to various sources, 27 million people worldwide are enslaved, and each year thousands of people are trafficked into the U.S. The modern “re-emergence” of trafficking in human beings and of slavery is said to be linked to the deepening interconnection among countries in the global economy, overpopulation (with its consequent production of disposable people), and the economic and other vulnerabilities of the victims. In response to the reported increase, some academics have explored the potential applicability of the Thirteenth Amendment of the U.S. Constitution. Also, a significant number of academics and commentators highlight in their work the evolution of the attempts to deal with the phenomenon of modern trafficking in humans from the international and domestic U.S. reactions to the “white slavery” hysteria of the late nineteenth and early twentieth centuries and the international instruments formulated to combat it. In addition, references and analogies to the trans-Atlantic slave trade are also made in government policy statements, in the literature analyzing the modern phenomenon and in other fora.

Commentators analogize to the trans-Atlantic slave trade and slavery in order to emphasize the similarities in the phenomena and to urge that like-minded people rise up to end the appalling practice, much as was eventually done to end the trans-Atlantic trade. The content of the analogies varies with the intent of their users. Either “the old slavery” is compared to “the new slavery” with respect to, for example, the egregiousness of abusive treatment of the enslaved, the level of interconnection of the phenomenon with the global economy, or the race or ethnicity of the victims in order to distinguish the new slavery from the old. Sometimes, the implicit hypothesis is that modern slavery is more widespread and awful, and involves more victims and, by extension, more human degradation than did the trans-Atlantic slave trade. Still others invoke the trans-Atlantic slave trade and slavery to assume a mantle of self-righteousness, and distance themselves, their political and economic system, their state and its efforts, from the repugnant phenomenon.

Is the analogy to the trans-Atlantic slave trade and/or slavery relevant? Is it useful? Can it contribute to understanding of the phenomenon of modern trafficking in humans or lead to mechanisms to combat human trafficking in the Twenty-first Century? It is my hypothesis that those who have used the analogy have failed to explore it other than superficially, or to adequately map out the similarities and differences between the two phenomena. As a consequence, the ability to effectively combat the modern traffic in human beings (or indeed, to combat the slavery (or exploitative or forced labor) of the estimated 27 million people who are held in slavery within state borders but not trafficked) has been compromised both internationally and domestically. I argue that the analogy is underutilized as currently used because it does not illuminate the essential similarities or differences in the phenomena. Instead, use of the analogy too often appeals to emotions to serve particular ends of the user.

I examine uses of the analogy to the trans-Atlantic slave trade and their impact, and map out the characteristics that both underlie and distinguish the phenomena to determine whether the trans-Atlantic slave trade, more than the “white slavery” of the late nineteenth and early twentieth centuries offers lessons that may be used to combat modern trafficking in humans. The heritage of “white slavery” is more entrenched in the legal frameworks constructed in response to the modern traffic, but the analogy to the trans-Atlantic slave trade adds to a richer understanding of the modern phenomenon and illuminates a potentially more effective path to its eradication. While it is the trans-Atlantic slave trade analogy that is most frequently invoked, it is the mechanisms to combat the later “white slavery” that are the progenitors of the most dominant of the frameworks used to understand and combat the modern traffic.

I also expose the inherent contradictions of the competing (and complementary) invocation of analogies to trans-Atlantic slavery and the white slave trade: while the users of the analogy invoke the image of enslaved blacks to inspire the taking of action against the modern trafficking in humans, at the same time the subordination of blacks, blackness and the colored “other” is viewed as more “natural” than the enslavement of whites and whiteness. It is the enslavement of whiteness that, together with the threats to state borders (territory and authority) precipitated a coordinated international campaign against modern traffic in humans. And, ironically, the racism that arose from the phenomenon of the trans-Atlantic slave trade prevents users of the analogy from delving more deeply into the substantive meanings and similarities between the two phenomena.

The analogy to the trans-Atlantic slave trade can be relevant if explored more deeply – there are similarities not merely in individual plights but in the deeper structures of the world economic system and the factors that cause and foster the rise in the phenomena. Comparisons of the modern trafficking in humans, white slavery and the trans-Atlantic slave trade reveals the essential nature of the phenomena – at bottom, they all trade in human labor.