Friday, November 30, 2007

Graber reviews Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party

Mark Graber discusses Paul Frymer's new book, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton University Press) at Balkinization. According to Graber, Black and Blue
is an exceptional study of the relationships between the civil rights and labor movements during the second half of the twentieth century. Professor Frymer of the University of California, Santa Cruz, challenges both the common view in political science that courts cannot bring about social change, and the common view in law that courts are desirable agents for social change. The result is a far more nuanced understanding of the role of courts in American political and constitutional development. Judicial decisions matter, but they matter for reasons that confound scholars and policy activists. The book also tackles important problems in the politics of race. Race matters Professor Frymer concludes (not exactly a surprise so far), but race matters as a political phenomenon intertwined with constitutional institutions, and not simply as bad thoughts. Some institutions are structured in ways that privilege racism, others in ways that promote liberal equality. The American labor regime, alas, too often had the former characteristics.
Professor Frymer’s story begins with African-Americans seeking entry to labor unions. Entry is desirable because in the early to mid-New Deal Order, labor unions promised members both economic security and political power. Entry was also problematic because whereas previous labor struggles had pitted liberals against conservatives, efforts to integrate labor unions pit racial liberals against economic liberals. The challenge was how to achieve the goals of both so that each would remain a pillar of liberal political power. This challenge was not successfully hurdled. Black and Blue highlights how labor and civil rights had, in effect, established separate governing regimes during the 1930s and 1960s. The result was that when civil rights decisions were made consistent with the regime set up by the Civil Rights Act of 1964, those rulings frequently weakened the labor friendly regime set up by the Wagner Act of 1936.
Litigating civil rights had far more ambiguous results than inherited wisdom proclaims, whether that wisdom celebrates or bashes courts. On the one hand, Frymer documents a liberal success story. Contrary to Gerald Rosenberg and others, courts were able to produce substantial integration. For reasons often unrelated to civil rights struggles, trial lawyers and judges during the middle of the twentieth century facilitated lawsuits as a means of vindicating legal wrongs. Courts could not reshape institutions on their own, but they could order large damages (notice the important riff on the autonomy of law here). These large damages attracted lawyers to civil rights causes and threatened to bankrupt racist unions. The result was a good deal of litigation, a good deal of success, and a good deal more integration as a result of that success than existing models claimed was possible. Controversial judicial decisions do get implemented when, for various reasons, judicial losers cannot rally sufficient political support and those decisions impose substantial financial burdens on the losers. Nevertheless, these victories came with unanticipated costs. The immediate problem with going through the courts was that judicial winner-take all decrees increased antagonisms between two vital democratic constituencies, thus weakening the power of liberals to make policy in general. Faced with liberal politicians unwilling to take clear sides between African-Americans and labor, many union members turned to more conservative politicians. Second, labor unions could be integrated only by means that weakened the economic and political capacity of unions. Thus, while unions are presently integrated and some are now almost completely non-white, unions no longer exercise the power than made them politically attractive to liberals during the late 1960s. Judicial decisions weakened seniority systems and independent labor government. Significantly, Frymer points out, much civil rights litigation on these matters was financed by corporate lawyers and law firms, who had little interest in unionization. In short, courts were able to facilitate black entry into labor unions only by weakening labor unions as a vehicle for black economic and political power.
There is substantial grist in this mill for students of American constitutionalism, American politics, and American political development. Professor Frymer is particularly effective when demonstrating how institutional strategies Democrats employed to consolidated power during the New Deal created a political clash that destroyed liberal power during the Great Society. The Roosevelt coalition moved along two institutional paths. On the one hand, that coalition sought to take labor policy away from hostile courts and vest authority in more friendly legislatures and administrative agencies. On the other hand, prominent New Dealers sought to take race policy away from conservative southern Democrats in Congress and vest that policy in the more liberal justices staffing the federal judiciary, particular the northern circuits. Much has been written on how the latter policy increased tensions between the northern and southern wings of the Democratic Party during the 1940s and 1950s, eventually resulting in the destruction of the solid South in 1964. What Frymer demonstrates is that the same institutional choices had a similarly destructive outcome in the north, as racial liberals who identified with courts did battle with economic liberals who identified with elected officials. His study of the particular details of this struggle, as well as the institutional circumstances that guided the struggle will be discussed for years to come.

Gerteis reviews Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and Confederacy during the Civil War

Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War (University of Chicago Press, 2007) is reviewed for H-CivWar by Louis S. Gerteis, Department of History, University of Missouri-St. Louis. Gerteis writes, in part:

On the topic of wartime confiscation Abraham Lincoln insisted that the Constitution governed the issue for Congress. The Constitution gave Congress full authority to determine the punishment for treason, but Article III, section 3 stipulated that "no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained." In this insightful and illuminating new study, Daniel Hamilton acknowledges that Lincoln succeeded in linking the issue of confiscation to treason and imposing the life estate limit on confiscation. But Hamilton locates his study within a wider analysis of the development of property rights theory. Hamilton begins with an examination of the widespread confiscation of Tory property carried out by states during the American Revolution. Here he identifies a republican view of property rights linked to loyalty to a sovereign power. This community based sense of property rights held that disloyalty to a sovereign power caused property rights to be extinguished.

As Hamilton demonstrates, some Republicans invoked this older view of property rights when they argued in favor of widespread confiscation and land redistribution during the Civil War. Former slaves similarly hoped that their loyalty to the Union might bring them "Forty Acres and a Mule" in freedom. It is the central thesis of Hamilton's work that widespread confiscation failed during the Civil War because a newer doctrine of individual property rights overcame the older association of property rights with loyalty to a sovereign. During the first half of the nineteenth century, writes Hamilton, "an individualized, rights-oriented conception of property gained increasing dominance in American law and in constitutional interpretation." In the postwar years, the Supreme Court, often led by Justice Stephen Field, reinforced the liberal theory of property rights and thoroughly rejected the older "conception of property ultimately held at the sufferance of the sovereign" (p. 9)....

Legislative confiscation is the central focus of Hamilton's work. The widespread use of confiscation by state legislatures during the American Revolution to seize the property of disloyal persons expressed a republican view of property rights that linked them to community stability and wellbeing. Federalists responded to what they viewed as an excess of republican zeal in this regard by drafting a Constitution that prohibited state and federal bills of attainder. Furthermore, the Fifth Amendment linked confiscation to judicial processes and significantly curtailed the Revolutionary era tradition. In the early decades of the nineteenth century, Chief Justice John Marshall built on these constitutional foundations to advance the doctrine of vested rights in property. "At the heart of the vested rights doctrine," writes Hamilton, "was the notion that the lines between legislative and judicial authority over property must be tightly drawn" (p. 46). Marshall's rigid interpretation of the Constitution's "obligations of contracts" clause drew precisely that distinction. The vested rights doctrine steadily gained authority in the first half of the nineteenth century and, during the Civil War debates over confiscation, most Republicans (with Lincoln at the forefront) embraced the"strict sanctity of private property" (p. 47). Nevertheless, a minority of Republicans held fast to elements of the older ideology.

A leading voice in this minority was Illinois Senator Lyman Trumbull. We are reminded by Michael Vorenberg's recent work on the Thirteenth Amendment and again in Hamilton's study that Trumbull deserves closer scholarly attention. Trumbull led the effort to secure broad legislative confiscation during the Civil War and doggedly resisted Lincoln's efforts to restrict confiscation by tying it to individual treason trials and limit its reach to life estates....

Trumbull's plan failed. Most Republicans embraced the vested rights doctrine and shrank from legislative confiscation. Historians have noted for many years that central government powers expanded significantly after the Civil War. But, in this area, as Hamilton notes, congress imposed new limits on its powers. What emerged as the Second Confiscation Act followed Lincoln's view that confiscation must be linked to treason trials and limited to life estates. The only sweeping passage of the Second Confiscation Act was its provision for the immediate liberation of slaves of disloyal masters....The doctrine of vested property rights overwhelmed Trumbull's confiscation efforts and it continued to gain strength in the post war Supreme Court.

Historians of Reconstruction have long noted that Radical Republicans forged a postwar consensus supporting equal rights and universal male suffrage at the same time that they debated but never embraced a plan for land confiscation and redistribution in the defeated South. Discussions of land reform died out as Republicans retreated from Reconstruction and as southern white Redeemers, emboldened by Andrew Johnson's leniency, seized control of southern states. Hamilton suggests that this familiar Reconstruction narrative is misleading. Republicans came to power in 1861 not simply to vanquish the Slave Power but to advance a liberal legal agenda that placed the uncompensated confiscation of private property beyond the reach of legislatures.

The rest is here.

Thursday, November 29, 2007

Oz-Salzberger and Salzberger on The Secret German Sources of the Israel Supreme Court

Fania Oz-Salzberger and Eli Salzberber, both of the University of Haifa, have posted a new essay, The Secret German Sources of the Israel Supreme Court. It appeared in Israel Studies. Here's the abstract:
This paper analyzes the effects of the German background and legal education of about one half of Israel's supreme court judges during the state's first three decades. After presenting the basic statistics and biographical sketches of the first-generation "German" judges of Israel's supreme court, the authors explore the significance of this collective biographical profile. Several significant court decisions are analyzed, in respect to the uses of German history, including the Nazi rise to power and the covert impact of the German legal and juridical tradition. It is suggested that the German-born and German-educated judges, despite their differences, brought a particular liberal approach to Israel's judicial branch. They were able to stand up to Ben Gurion's government from a very early stage, thus affording the young state a true and solid separation of powers. Their experience with Weimar and Nazi Germany affected their views of civil liberty, freedom of speech and the defense of democracy. They enriched Israeli public discourse by German-inspired concepts, including "a state governed by law [Rechtsstaat]" and "the enlightened public". Also discussed is the interplay of this German tradition with the Anglo-American sources of Israel's judiciary.

Webb reviews Elliott, Empires of the Atlantic World: Britain and Spain in America, 1492-1830

J. H. Elliott, Empires of the Atlantic World: Britain and Spain in America, 1492-1830 (Yale University Press, 2006) is reviewed by Todd Webb, Department of History, Laurentian University on H-Canada. Webb writes, in part:
J. H. Elliott sets himself a daunting task in Empires of the Atlantic World: Britain and Spain in America, 1492-1830. Comparing two empires, focusing on the individual, local, regional, and transatlantic contexts of European expansion, he aims to counter the "black legend" of Spanish imperialism. Elliott does not deny that the Spanish process of conquest could be, and often was, brutal. He argues, however, that the viciousness and chaos of initial contact were followed by something other than centuries of inept imperial management. According to Elliott, the Spanish empire in the Americas constituted a highly complex society governed by a generally effective colonial system. It was that very complexity and stability, he attempts to demonstrate, that made the Latin American wars of independence so destructive. In this, and in many other ways, the history of Spanish America differed from the history of British America; but that does not mean that the British were better empire builders. In comparison to Spain, Britain was often utterly hapless in its dealings with the settlers of New England, Virginia, and the Middle Colonies. That Elliott goes far towards making this case, while providing a detailed survey of the rise and fall of two European powers in the Americas, is a testament to the magnitude of his achievement.

Empires of the Atlantic World is divided into three parts, each focusing on a discrete phase of the settler experience in the Americas: occupation, consolidation, and emancipation. In the first part--occupation--Elliott begins by outlining the mindset and motivation of two archetypal adventurers, the Spanish conquistador Hernan Cortes and the English captain Christopher Newport. In Elliott's reading, these two men possessed a similar mentality of conquest and both were motivated by the same zeal for wealth. Indeed, tales of Spanish success in the New World did much to whet the collective appetite of the founders of Jamestown, though, of course, their hopes of finding their own Aztec empire to overthrow and pillage were doomed to disappointment. Still, Elliott's main point is clear enough: in the beginning, the Spanish and British empires in the Americas were similar. Such differences as did exist between them--and Elliott is careful to point these out--had more to do with the varying contexts of Spanish and British settlement than with any hard-and-fast distinction between empires of conquest and commerce. This is an argument that Elliott drives home in his discussion of the impact of Spanish and British settlement on the geography, indigenous people, and resources of the Americas.
In part 2, Elliott deals with the consolidation of the European presence in North and South America. He concentrates on those political, social, and religious factors that tended to pull the two colonial societies apart, including the "relatively slow and haphazard British moves towards the imposition of empire" and Spain's incorporation of its overseas territories "within an effective imperial framework" (p. 119)....The final part of Empires of the Atlantic World concentrates on the breakdown of British and Spanish imperial authority in the Americas. Elliott's contention that the colonies were shaped by "a host of personal choices and the unpredictable consequences of unforeseen events" (p. 411) comes most clearly into play in this section.

There is much to praise in Empires of the Atlantic World. It serves as a model of how Atlantic history should be done. Drawing on a vast array of secondary material, Elliott more than meets the goal he sets for himself in the introduction: a comparative study of British and Spanish settlement that deals, in equal measure, with similarities and differences and that provides explanations and analysis calculated to do justice to both. And, though concentrating on the British and Spanish settler societies in North and South America, Elliott also effectively integrates Native American groups into his narrative.

The rest, including the quibbles, is here.

Wednesday, November 28, 2007

Augustine-Adams, Making Mexico: Legal Nationality, Chinese Race, and the 1930 Mexican Census

Kif Augustine-Adams, Brigham Young University, has posted a new article, Making Mexico: Legal Nationality, Chinese Race, and the 1930 Population Census. It is forthcoming in the Law & History Review (2009). Here's the abstract:
“Take the census; make the country. Let's do both together!” cajoled one bold, bright poster in the days before May 15, 1930 when census takers dispersed across Mexico to count its inhabitants. In government propaganda, the 1930 census made Mexico and drew its inhabitants into the national fold, an ongoing, delicate project after the fratricide of the 1910 Revolution.
In its nation-building effort, the 1930 Mexican census purported to count individuals by legal nationality not by race. Data taken directly from census ballots for Sonora, the state which hosted the largest Chinese population, nonetheless demonstrate powerful social constructs of identity in contest with the census ballot's elision of race. The census ballot in turn contests constructions of the Mexican nation found in the legal categories of nationality and marital status. Analysis of the count of Chinese in Sonora demonstrates the difficulties individuals, census enumerators, and civil service employees had in agreeing on what made someone Mexican. Although it purports not to, by referencing and reifying race rather than strictly counting by nationality, the 1930 census transforms some Mexicans into Chinese, and thus challenges both the power of law to make citizens and the ease with which race can be officially discounted in government-sponsored, nation-building endeavors.

Tuesday, November 27, 2007

Droege on The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict

Cordula Droege, Legal Adviser, Legal Division of the International Committee of the Red Cross, has posted a new essay, The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict. It is forthcoming in the Israel Law Review. Here's the abstract:
International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.
This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.

One year, 100,000+ visits

The Legal History Blog is one year old today. And yesterday, LHB had its 100,000th visitor. Thank you for stopping by!

Sunday, November 25, 2007

Morag-Levine on Common Law, Civil Law, and the Administrative State

Noga Morag-Levine, Michigan State University College of Law, has posted a new article, Common Law, Civil Law, and the Administrative State: Early-Modern England to the Lochner Era. It is forthcoming in Constitutional Commentary. Here's the abstract:
Police power jurisprudence during the 19th century revolved around the choice between two administrative models. The first subordinated regulatory power to the common law, while the second granted legislators and governmental agencies greater freedom to determine the appropriate limits of regulatory authority. The meaning of this distinction has been reopened by a body of scholarship collectively termed "Lochner revisionism" that by and large rejected earlier equations between common law and laissez faire. While there has developed a reasonable consensus regarding what common law was not, we are left without a clear picture of what it stood for in fact within these debates. Put differently, what was the antithetical regulatory model against which defenders of the common law mobilized?
This article finds this antithesis in continental civil law generally, and cameralist continental police institutions, more particularly. The compatibility of this foreign model with American constitutionalism was the central question on the table in late 19th-century police power debates, this article argues. The same question, in one form or another, has been at the heart of the history of common law from its inception in early modern England.
The idea that the common law conferred distinctive rights on English subjects was already put forth in opposition to 14th and 15th century English monarchs who sought to emulate the mercantilist policies of their French counterparts, as the writings of Sir John Fortesque attest. Substantive protections to liberty and property were one element of these rights. But what was said to distinguish the common law first and foremost was its placement of decisionmaking authority regarding the circumstances justifying interference with these substantive rights in the hands of judges and juries, rather than the king and his officials.
Civil law administrative models, by contrast, conferred broad regulatory discretion upon the state's executive power. In the context of 19th-century police power debates in England and the United States, defenders of the common law model insisted that due process required that judges and juries retain final authority over the reasonableness of regulatory interventions, in accordance with nuisance law. This procedural guarantee ensured in turn that the state not invoke public safety and health as a pretext for legislation driven by socialist and other reform agendas. Opponents disputed the equation between due process and nuisance law and argued that American constitutionalism was similarly consistent with regulatory and legislative discretion along the lines of the continental model. Across a number of key decisions, dealing both with criminal procedure and work-hour legislation, the Supreme Court rejected the argument that due process entailed common law process. In Lochner the tables turned, and the Court aligned with the view that due process gave judges a final say on the reasonableness of regulation, in accordance with common law. By the end of the New Deal - effectively the next round in this ongoing debate - proponents of European-inspired administrative reforms moved ahead.
The tension between civil and common law models of administration received scant attention in post-New-Deal legal and constitutional history. Instead, the constructed dichotomy between "laissez-faire" and "the welfare state" came to replace the common law/civil law axis. This narrative obscured the dichotomy that had dominated American regulatory law and politics for nearly a century - and over which English lawyers and judges had struggled for much longer. Once this historical debate has been recaptured, its imprint can be recognized in contemporary American divisions over the transplantation of continental-modeled regulatory instruments and constitutional principles.

Leiter on Leiter (and the rankings)

Brian Leiter was kind enough to respond to my post on his latest set of rankings. My posts (here and here) speak for themselves, so I will just respond to a few issues Professor Leiter raises. Leiter defends the rankings by emphasizing his purpose: to inform law students about law schools, and he has rightly suggested that his data may be more illuminating than the rankings supplied by US News and World Report. But of course, once out, his rankings are open to being used by others for various other purposes. This happened right after his listing of the top 10 on each law school faculty, when another blogger (who I will not link to so as not to embarrass him) mentioned himself as among the faculty at his school with the greatest scholarly impact. I suspect many of the top ranked will note their status in annual reports to their Dean about their scholarly progress.

A central concern raised on this blog is about how rankings like this may be used by Deans and by other administrators. Administrators like data. Numbers are great because they purport to be measures of something. If there is a ranking, that can enable a Dean or Provost to gauge how a school or a faculty member is doing based on how high they rank, and whether their rankings go up or down.

Professor Leiter takes issue with my comment that: "Brian Leiter's rankings are not a true measure of 'scholarly impact,'" since after all he was only trying to measure "scholarly impact in legal scholarship." Because Leiter's rankings don't include scholarly impact outside the Westlaw JLR database, there is a risk that incentives will be created by administrators concerned about rankings. My first post on this put it this way:

Once something is seen as "countable," and both law schools and individual faculty are identified based on how their numbers line up...you’ve seen the next step before. Law schools decide they need to move up the rankings. Perhaps they reward faculty based on how far up their numbers are. All of a sudden, that leading, peer-reviewed journal, outside the Westlaw JLR database, is no longer a great prize on your C.V. Your efforts on that were a waste of your law school’s resources.


I pointed out that leading legal historians are not included in the rankings because they do not have full-time appointments in a law school, and I also noted the way the rankings skew in favor of larger sub-fields (like American legal history as compared to medievalists and European or Asian legal history). This point would not matter if Professor Leiter was only ranking schools. Once he turns to rankings within fields, it is important to emphasize the incompleteness of the lists. Appointments committees interested in a major hire in legal history, for example, would miss Christopher Tomlins at the American Bar Association and Henrik Hartog in the History Department at Princeton, and also leading legal historians at law schools in fields other than American legal history. Again, Leiter's lists will be used for purposes other than informing law students, especially rankings of individual faculty members.

Professor Leiter and I appear to differ on the kind of scholarly impact law professors should aspire to. I do think that we all should aspire to be leaders on our campuses not just in our own schools, in the academy not just the legal academy, and in the world not just in the United States.

The comments were not open on his blog, which is why one needs to turn to some unlikely places to start a conversation. Much attention will be paid to Professor Leiter's rankings, so it is important to discuss them. Others have taken up the topic here and here.
Update: Brian Tamanaha weighs in, with a post on the nature of citation practices in U.S. law reviews.
Another update
: The discussion continues here and here. An earlier post I'd missed, raising questions, is here. Building on Leiter's data is a post by Paul Butler on Blackprof, regarding highly cited minority scholars, and Jack Chin.
And more
: Rankings are like crack and we're addicted, says Daniel Solove.

He Likes Ike: Nichols, A Matter of Justice: Eisenhower and the Beginning of the Civil Rights Revolution

A Matter of Justice: Eisenhower and the Beginning of the Civil Rights Revolution by David A. Nichols (Simon & Schuster) is reviewed in the Boston Globe by James A. Miller, George Washington University.

I was put off by this book, which begins with the author's suggestion that other scholars critical of Eisenhower's civil rights record have relied on his public statements, rather than archival records. This does not comport with what I saw in Abilene, Kansas, at the Eisenhower Library, where scholars were not reading President Eisenhower's speeches, but pouring through the library's extensive archival holdings. As Miller suggests, Nichols' claim "seems to dismiss the considerable research and ink devoted to Eisenhower's record on civil rights, particularly over the past two decades." Perhaps it would have been better to simply note that the book draws upon the recently released papers of Eisenhower's chief White House aide on civil rights, Maxwell Rabb.

Nichols also seems to bend over backward to explain away some sources, such as Eisenhower's halting answers to media questions immediately after the Supreme Court's Brown decision, finding Eisenhower's later statements in his published memoir to be more convincing about the president's views about Brown than his contemporaneous statements. This is methodologically questionable, and makes it appear as if Nichols is picking and choosing among sources to support his thesis that Eisenhower's civil rights record is stronger than others have given him credit for. (This is my take, rather than Miller's).

But Miller finds contributions in spite of the book's limitations. As he points out,
Nichols's explanations for Eisenhower's rhetorical gaffes and stumbles about civil rights are not always persuasive, but he makes a strong case for Eisenhower's legislative achievements, within the givens of his historical and political circumstances - particularly when his record is held up against that of his successor, John F. Kennedy. These insights alone are likely to provoke precisely the reconsideration that Nichols hopes for.

Miller writes:

Although Eisenhower was a "nineteenth-century man, raised in an era of blatant white supremacy in American life," Nichols maintains that he brought to his presidency in 1953 a deep commitment to egalitarian values, nurtured by his heartland upbringing, and an abiding belief in the law of the land, as interpreted by the Supreme Court. It was Eisenhower who implemented Truman's Executive Order 9981, requiring equal opportunity for African-Americans in the US military, thereby achieving "in less than two years what President Truman had failed to accomplish in seven" - even though Truman is routinely credited for this achievement in American history textbooks. Most important, Nichols insists, to understand Eisenhower's legacy, you must pay close attention to the staffing appointments that made his achievements in civil rights possible, including the appointment of five justices to the Supreme Court, none of them Southerners, none of them segregationists - an enviable record by contemporary standards.

While Eisenhower's achievements in civil rights are certainly noteworthy, they have been overshadowed by the public pronouncement that would come to haunt Eisenhower long after the historic 1954 Supreme Court decision, Brown v. Board of Education, outlawing segregation in America's public schools: "The Supreme Court has spoken and I am sworn to uphold the constitutional processes in this country; and I will obey." Nichols blames the cold and detached formality of this statement on Eisenhower's "disdain for symbolic acts" and his preference for "action rather than public pronouncement," even as he acknowledges that "Eisenhower's aloof strategy collided with a growing public obsession with presidential rhetoric, especially on the question of race."

Most of all, however, Nichols sees the chief culprit behind Eisenhower's damaged public image - then and now - as Chief Justice Earl Warren. "No subsequent president has made a judicial appointment of greater consequence for civil rights," Nichols writes, but Warren also emerged as Eisenhower's political nemesis whose "iconic position . . . enabled him to largely define how Dwight Eisenhower's leadership on civil rights would be viewed by scholars and the media."

This point is particularly interesting, since Warren blamed Eisenhower for the rise of massive resistance to Brown, faulting his lack of public support for the decision and lack of leadership on the issue. New scholarship on the relationship between Warren and Eisenhower, in light of Nichols' assessment, would be most welcome.


Miller continues:

Nichols traces the trajectory of events that led to the passage of the Civil Rights Act of 1957, legislation for which, he argues, historians have given the then Senate majority leader, Lyndon B. Johnson, much more credit than he deserved. These events, however, are preliminary to arguably the most dramatic episode of Eisenhower's domestic policies: his decision to send federal troops into the South in support of federal policies for the first time since Reconstruction. This was indeed a watershed moment, and Nichols provides a fascinating account of the behind-the-scenes discussions and maneuvers, before and after the event.

The full review is here.
The photo is
Chief Justice Warren and President Eisenhower as Eisenhower takes the oath of office, 1957.

Wednesday, November 21, 2007

on the road...

Off to a location with no wireless. We will be back in a few days.

The limits of Leiter's new citation study

With new rankings based on citations making the rounds, it seems a good time to reiterate a point this blog raised earlier:

Brian Leiter's rankings are not a true measure of "scholarly impact," especially in a field like legal history. The study is confined to the Westlaw JLR database which only includes legal publications.

What does this miss? Leading scholars will have an impact that ranges beyond their fields and beyond their nations. But the Westlaw database cannot measure impact beyond the legal academy, and the important global reach of many American legal scholars is not measured. All but a very few journals in the database are U.S.-based.

The impact of interdisciplinary scholars, in particular, will be under-counted. For serious interdisciplinary scholars, especially J.D./Ph.D.s, the true measure of scholarly success is to be seen as leading figure both within the legal academy and within the Ph.D. field. To further one’s scholarship within the Ph.D. field, an interdisciplinary scholar will publish in the field’s leading peer-reviewed journals. If in the humanities and perhaps social sciences, they will publish books.

This leads to two under-counting problems. First, the Westlaw JLR database will miss citations to the scholar’s work in journals other than law reviews -- this includes journals in the Ph.D. field. For American legal historians, this would include citations in the Journal of American History, American Historical Review, and other history journals. Second, legal scholars often confine their research to the same Westlaw database, and so they don’t find and cite to relevant books and articles.

The limitations of this sort of study are not ameliorated by separating out a field like legal history. Using the Westlaw database will undercount those scholars who have a stronger impact across scholarly journals (beyond those in the legal database), and who do more publishing in books and peer reviewed history articles.

Even a more comprehensive citation study will skew in favor of scholars in larger sub-fields (e.g. American history as compared to medieval studies).
It is also important to point out that Leiter does not count legal historians with appointments outside of law schools. A number of leaders in the field have such appointments.

More on this, including the problem of unfortunate incentives created by lists like this, is here.

Treiger-Bar-Am on Defamation Law in a Changing Society: The Case of Yussoupoff v. Metro-Goldwyn Mayer (1934)

Leslie Kim Treiger-Bar-Am, Bar-Ilan University - Faculty of Law has posted the abstract for an article, Defamation Law in a Changing Society: The Case of Youssoupoff v Metro-Goldwyn Mayer. It appeared in Legal Studies (Vol. 20, p. 291, 2000). Here's the abstract:

Defamation law offers a unique view of society and the changes it undergoes. When a claim of reputational injury is made, the case exposes the prejudices alive in the particular society at hand. When the law deems a claim actionable, it recognizes and, at some level, lends credence to the prejudices held. The case of Youssoupoff v MGM is a case in point. The claim by Princess Youssoupoff in 1934 that an imputation of rape or seduction is libelous reveals underlying currents in English society at the time as to class, nation and gender. The judicial recognition of the claim, and the legal and extra-legal reactions to the claim at the time and since then, further raise for examination the relationship between law and morality. To be recognized as defamatory, must an allegation impute immorality to the plaintiff? Should the law of defamation recognize societal prejudices that are real, even if deemed by lawmakers and the judiciary to be invalid? Is it the function of the law to mirror the society in which it is produced or to carry it forward?

Tuesday, November 20, 2007

Page on the politics of "emergency" in the State of Washington

Bryan Page has posted a new paper that is an unexpected example of the way the concept of an "emergency" can expand, so that the exception becomes the rule. The essay is State of Emergency: Washington's Use of Emergency Clauses and the People's Right to Referendum (the "Washington" here is the State of Washington). Page is an attorney in the Code Reviser's Office of the Washington State Legislature. Here's the abstract:
Before the referendum was adopted in Washington, legislative declarations of emergency were of little concern. The Legislature could freely legislate, and had discretion to put a law into effect immediately. However, that changed in 1912 when the people amended the constitution to provide for the initiative and referendum.
The people reserved to themselves the power of referendum over any act, bill, or law passed by the Legislature. Specific limitations on the types of laws that could be put into effect immediately and excluded from their power of popular referendum where included. Only bills that are “necessary for the immediate preservation of the public peace, health or safety, [or] support of the state government and its existing public institutions” may be exempt from referendum. The Legislature has fashioned emergency clauses parroting this constitutional language to mark bills that are excluded from referendum and take effect immediately. Over the years, the validity of theses emergency clauses have been challenged by citizens seeking to assert their right to referendum over bills they feel do not fit into the two enumerated exceptions to referendum.
Since the referendum was adopted, courts in Washington have been marred in confusion when deciding cases challenging the validity of emergency clauses. Courts have struggled to find a balance between the people's right to referendum and the Legislature's need for the ability to declare laws immediately effective. The people's general power of referendum serves as an important check on the legislative branch of government, enhances legislative accountability, and increases public participation in government. Any attempts to weaken the referendum process should be rejected, and steps should be taken to prevent the unwarranted intrusion upon the people's right to referendum.
This article discusses the history and current use of emergency clauses in Washington. It finds that the frequent use of emergency clauses at best leads to a perception of the improper use of emergency clauses, and at worst is evidence that the people's right to referendum is being frustrated. The referendum is a vital part of Washington's political system, providing a check on unrepresentative legislatures and allowing direct public participation on important policy matters. Therefore, reforms are needed to ensure the referendum process is not weakened by the Legislature's use of emergency clauses, including more stringent judicial review of such clauses, requiring facts making up the emergency to be included in bills, and requiring supermajority approval of bills containing emergency clauses.

Lipton on the History of Company Law in Colonial Australia

Phillip Lipton, Monash University, has posted a new paper, A History of Company Law in Colonial Australia: Legal Evolution and Economic Development. Here's the abstract:
The history of Australian company law has attracted remarkably little attention in academic literature, perhaps because it has been mainly seen as a copy of English law with few if any important features worthy of note. This paper seeks to point out several interesting and significant aspects of the evolution of Australian company law and to consider this evolution in the context of the economic development of colonial Australia. Australian company law represents an example of the transplant of English law. This raises the question whether this transplant of law was successful. The central contention of this paper is that the evolution of company law in colonial Australia was innovative and responsive to the economic needs of the society and in particular, it was instrumental in financing the development of the mining industry which played an important role in the economic success of colonial Australia.

Solum on Blogging and the Transformation of Legal Scholarship

Lawrence B. Solum, University of Illinois College of Law, has posted his paper Blogging and the Transformation of Legal Scholarship. It appears in the Washington Law Review. Hat tip. Here's the abstract:
Does blogging have anything to do with legal scholarship? Could blogging transform the legal academy? This paper suggests that these are the wrong questions. Blogs have plenty to do with legal scholarship - that's obvious. But what blogs have to do with legal scholarship isn't driven by anything special about blogs qua weblogs, qua collections of web pages that share the form of a journal or log. The relationship between blogging and the future of legal scholarship is a product of other forces - the emergence of the short form, the obsolesce of exclusive rights, and the trend towards the disintermediation of legal scholarship. Those forces and their relationship to blogging will be the primary focus of this paper.
The transition from the "long form" to the "short form" involves movement from very long law review articles and multivolume treatises to new forms of legal scholarship, including the blog post, the idea piece, and the use of collaborative online authoring environments such as wikis. The transition from exclusive rights to open source requires publication in formats that provide full text searchability and the use of copyright to insure that scholarship can be freely downloaded and duplicated. The trend toward disintermediation reflects the diminished role of traditional intermediaries such as student and peer editorial boards and the growing role of search engines such as Google.
These trends are the result of technology change and the fundamental forces that drive legal scholarship. Each of the three trends, the short form, open access, and disintermediation reduces search costs and access costs to legal scholarship. Reducing costs has other important implications, including the facilitation of the globalization of legal scholarship and the reduction of lag times between the production and full-scale dissemination of new scholarship.
Each of these important trends is facilitated by blogs and blogging, but the blog or weblog is only one form that these trends can take. Blogs express and facilitate the fundamental forces that are already transforming legal scholarship in fundamental ways.

Monday, November 19, 2007

AHA election results

Results are in for the American Historical Association 2007 election. Linda Kerber is a past president of the AHA, and Michael Grossberg was editor of the American Historical Review, but it is rare to see a legal historian even nominated for AHA or Organization of American Historians position. Here's the list:
President
Gabrielle M. Spiegel, Johns Hopkins University (medieval, with a special interest in historiography and linguistic analysis, medieval and contemporary)

President-elect (1-year term)
Laurel Thatcher Ulrich, Harvard University (U.S. to 1815, comparative gender history since 1600)

Vice-President, Professional Division (3-year term)
David J. Weber, Southern Methodist University (Borderlands, American West, Latin America)
Council (3-year terms)Slot 1
Trudy H. Peterson, Consulting Archivist (archives)

Slot 2
Prasenjit Duara, University of Chicago (modern Chinese social and cultural; nationalism, imperialism, and transnationalism; historiography and social theory)

Division Representatives (3-year terms)
Professional
Kristin L. Ahlberg, Office of the Historian, U. S. Department of State (U.S. diplomatic, presidency; foreign assistance policy; public)
Research
Mary Elizabeth Berry, University of California at Berkeley (medieval and early modern Japan, warfare and violence, urban history, print culture, economic thought and consumption)
Teaching
Timothy N. Thurber, Virginia Commonwealth University (20th century U.S., political, Civil Rights)
Committee on Committees (3-year term)
Christopher Leslie Brown, Columbia University (early British empire, comparative history of slavery and abolition)
Nominating Committee (3-year terms)Slot 1
Lisa Forman Cody, Claremont McKenna College (Britain 1500-1945, France 1700-1945, visual culture; women, gender, and sex roles; medicine and science)
Slot 2
David G. GutiƩrrez, University of California at San Diego (Chicano, American Southwest, comparative immigration, and ethnicity)
Slot 3
David Newbury, Smith College (Central and East Africa)

Klass on The Frontier of Eminent Domain

Alexandra B. Klass, University of Minnesota, has posted a new article, The Frontier of Eminent Domain. It is forthcoming in the University of Colorado Law Review. Here's the abstract:
The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state statutes to take private property to develop coal, oil, or other natural resources. In fact, the Supreme Court's deference to such “natural resource development takings” in the early part of the 20th century was the base upon which the Court built its decision in Kelo. This Article first explores the relationship between Kelo-type economic development takings and natural resource development takings and argues that the national reaction to Kelo has focused too narrowly on government takings and ignored the impact of private takings. It then uses recent property reforms in the Interior West to explore the broader implications of the role of eminent domain in reallocating property in society and proposes some additional reforms for natural resource development takings.

Sunday, November 18, 2007

"Today I Wrote Nothing," and other reviewed books

"Today I Wrote Nothing" by Daniil Kharms (Overlook press), edited by Matvei Yankelevich, is reviewed along with other works of Russian avant-garde poetry in the New York Sun.
And now, dear reader, I need to ensure that the book title is not a description of my day. This weekend I hope you will indulge a round-up of book review links, rather than more.
Reviewed in the New York Times today are AMERICA’S THREE REGIMES: A New Political History by Morton Keller (Oxford University Press), DAY OF EMPIRE: How Hyperpowers Rise to Global Dominance — and Why They Fall by Amy Chua (Doubleday) and THE CONSERVATIVE ASCENDANCY: How the GOP Right Made Political History, by Donald T. Critchlow (Harvard University Press). And there is another review of Bush books, this time by Emily Bazelon.
The LA Times headlines a review of Jesse Unruh and the Art of Power Politics by Bill Boyarsky (University of California Press).
At the Chicago Trib you can find a discussion of Head and Heart: American Christianities by Garry Wills (Penguin).
And for your Thanksgiving, the Washington Post features food history, with a review of MOVEABLE FEASTS From Ancient Rome to the 21st Century, The Incredible Journeys of the Food We Eat by Sarah Murray (St. Martin's).

Saturday, November 17, 2007

Pedersen, Back to the League of Nations, in the AHR

Susan Pedersen, Columbia University, has a review essay, Back to the League of Nations, in the most recent issue of the American Historical Review. Here's how editor Robert A. Schneider describes it:
Noting that the study of international networks and organizations has, with the rise of transnational and global history, experienced something of a renaissance, she explores how this scholarship has revised and expanded our appreciation of the significance of the League of Nations. Although founded as a security pact, the League was charged with many other tasks as well: to protect minority populations in many of the new or newly-established states in 1919; to oversee the administration of conquered Ottoman and German territories granted to the Allies under mandate; and to craft international agreements to combat or manage disease, refugees, drugs and other cross-boarder traffic or hazards. Pedersen surveys the extensive scholarly literature that deals with these varied efforts of the League, showing how they not only provided the foundation for later agreements but also inaugurated or strengthened many of the institutions and conventions that govern international society today. The international bureaucracies, transnational lobbies, petition processes, and publicity mechanisms operating in Geneva between the wars had a lasting imprint on future global institutions and practices.
And from Pedersen:
The works resulting from this research have enabled us to come to a better understanding of this much-misunderstood international organization. In contrast to a postwar historiography inclined to view the League from the standpoint of 1933 or 1939, the relevant question now is not “why the League failed” but rather the more properly historical question of what it did and meant over its twenty-five-year existence. We are now able to sketch out three different but not mutually exclusive narratives of the League, one still focused largely (if less pessimistically) on its contribution to peacekeeping, but the other two concerned more with its work delimiting, and to a degree managing, the shifting boundaries between state power and international authority in this period. If one considers its work in stabilizing new states and running the minorities protection and mandates systems, the League appears as a key agent in the transition from a world of formal empires to a world of formally sovereign states. By contrast, if one notes its efforts to regulate cross-border traffics or problems of all kinds, it emerges rather as a harbinger of global governance.
The essay is here.

Hesselink on the New European Legal Culture

Martijn W. Hesselink, Amsterdam Institute for Private Law and Centre for the Study of European Contract Law, has posted an entire short book on SSRN, THE NEW EUROPEAN PRIVATE LAW: ESSAYS ON THE FUTURE OF PRIVATE LAW IN EUROPE, Martijn W. Hesselink, ed. It was published in 2002 by Kluwer Law International. Here's the abstract:
Europe is currently facing a shift from a rather formal, dogmatic and positivistic to a more substance-oriented and pragmatic approach to private law. It would probably be exaggerated to speak of a European revolt against formalism. However, it is undeniable that as a result of Europeanisation private law is undergoing a major transformation. Unlike a century ago, in Europe legal culture is undergoing a radical change (at least as far as private law is concerned). The instrumentalist and impressionist approach of directives, the pragmatic style of the ECJ, the subversive role of comparative law with its functional method, the external economic, cultural and political perspectives given by academics, the success of soft law which is based on substantive authority rather than on formal enactment, and the depositivation of legal education as a result of the implementation of the Bologna Declaration together contribute to a new European legal culture that is significantly less formal, dogmatic and positivistic than national legal cultures in Europe have been. The emergence of this new European legal culture is a result of these separate but related developments, and of the Europeanisation of private law in general.
The emerging new European private law and the new European legal culture are definitely less formalist than the classical method of national legal cultures in Europe. Actors in European private law seem to share a much more moderate belief in the powers of abstraction and of concepts. Moreover, they seem to be less concerned with system, and, on the whole, their approach to the law is less dogmatic and less deductive. Private law is regarded more as instrumental to political, economic, social, cultural and other aims, and there is a pervasive use of the functional approach. More generally, the approach to the law is pragmatic: there is more attention to the consequences of rules and legal decisions. There is less belief in right answers and in integrity (making law means making choices, law is politics) and in the necessity and rationality of a given legal system, which is more considered as contingent (e.g. depending on decisions made by politicians in Brussels) and therefore also uncertain. The (external) perspective is frequently more critical. Moreover, there is less positivism and more pluralism: we recognise the relative importance of our national positive laws. There is also less focus on texts; especially on codes, and more on other legal formants, legal institutions, legal actors (lawmakers, 'men of law') and their strategies, in other words on law in action. Finally, European law is not very respectful of traditional boundaries between disciplines (between public and private law, between law and social sciences); it is largely interdisciplinary.

Friday, November 16, 2007

Grubbs, Hidden in Plain Sight: Expositi in the Community

Judith Evans Grubbs, Washington University, St. Louis, Dept. of Classics, has posted a new paper, Hidden in Plain Sight: Expositi in the Community. Here's the abstract:
Using legal, papyrological, and literary sources of the Roman imperial period, this paper looks at the fate of abandoned newborns (expositi) who were picked up and reared by someone other than a parent, usually for future use as slaves. Particular attention is given to the legal conflicts that ensued when, as sometimes happened, parents attempted to recover a child they had abandoned years before. The possibility of conflict was augmented by the peculiar characteristics of the Roman paternal power (patria potestas), which held that a paterfamilias (whether a birth father or a slavemaster) maintained legal power over children and slaves even after abandoning them.

Remembering Harold J. Berman

Harold J. Berman is being remembered by colleagues at Emory and Harvard law schools. He died on Tuesday at the age of 89.


Harold J. Berman did not go gentle into that good night.

At a time of life when many ease into a slow-moving old age, Berman, who spent six decades as a law professor at Emory and at Harvard, was always thinking ahead to his next law-oriented venture. As an octogenarian, he still taught classes, wrote books and, just last summer, embarked on a four-city lecture tour of China.

Though he’d been ill for several months, just last week Berman said he was planning to return to Emory to teach in the spring. On Tuesday, he died in New York City of pneumonia and other complications. He was 89.

“Hal was determined to work as long as he could,” said Aric Press, Berman’s son-in-law and the editor in chief of The American Lawyer magazine. “Years ago, he would recount tales of when he was a young Harvard Law School professor and the faculty was very small—a couple dozen or so—and he’d talk about how he would see coming into the law school some of the great legal minds of past times … Roscoe Pound, Samuel Williston. … These were men working into their 80s and 90s actively, vigorously. And as far as Hal was concerned, that was what he wanted to do, and he did.”

Known for his wide-ranging scholarship in law and religion, comparative legal history, Russian law and culture, legal philosophy and private international law, Berman wrote 25 books and more than 400 articles. He published his magnum opus, “Law and Revolution: The Formation of the Western Legal Tradition,” when he was in his 60s. The book has been translated into German, French, Chinese, Russian, Polish, Spanish, Italian and Lithuanian.

A second volume, “Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition,” was published in 2004. At the time of his death, Berman was working on a third volume that was to cover the American and French revolutions.

From Dean David Partlett, Emory Law School:

A humble giant in his field, Hal’s contributions to Emory and to legal scholarship were impressive and far-reaching. He had a special interest in world law and was considered one of the founders of the study of law and religion. At Emory, he was co-director of the World Law Institute, a Fellow of The Carter Center, and an integral part of the development of Emory’s Law and Religion Program, now the Center for the Study of Law and Religion (CSLR).

The work of Professor Berman was celebrated during the CSLR’s Oct. 24-26 silver anniversary conference, and an interview of him shown during that event is available in video and text on the Emory Law and CSLR websites.

Hal’s passing is a great loss to the Emory community, the legal profession, and the world. He will be deeply missed.

A public celebration and memorial of Professor Berman’s life and work will be held at Emory University early in the spring semester.

websites.

Update: Berman is remembered today (11/18) in the New York Times. According to the story:

Mr. Berman had planned a third volume in his Law and Revolution series, and was even planning a fourth. Speaking to the Fulton County newspaper, he was philosophical about the prospects of finishing.

“It’s up to God — if he wants to read it or not,” he said.

Arcila an the Misunderstood Common Law History of Suspicion & Probable Cause

Fabio Arcila, Jr., Touro College, has posted the abstract for a new article, In the Trenches: Searches and the Misunderstood Common Law History of Suspicion and Probable Cause. The article itself is not on SSRN, but it was recently published in the University of Pennsylvania Journal of Constitutional Law (Vol. 10, No. 1, 2007). Here's the abstract:
This article, the first of a two-part series, argues that during the Framers' era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.
The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment's restrictions. Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake to presume that the law was necessarily implemented in accordance with this elite guidance. This is because justices of the peace, the non-elite judges who actually issued search warrants, had reason to believe that judicial sentryship of probable cause was often optional. Evidence supporting this conclusion can be found in treatises, as well as manuals for justices of the peace, legal forms, civil search statutes, and case law, as well as the extended development of probable cause sentryship jurisprudence, which continued well past 1960. American justice of the peace manuals and legal forms play a particularly important role in this story, as it is likely they had a profound influence on search warrant procedure given the laxity in legal education and judicial training, as well as the limitations on legal research, during the Framers' era.

Thursday, November 15, 2007

Littleton-Griswold Prize to Tsuk Mitchell and other AHA prizes

The Littleton-Griswold Prize for the best book in American law and society will be awarded to Dalia Tsuk Mitchell for Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Cornell Univ. Press, 2006) at the annual meeting of the American Historical Association in January.

Other works of legal history will also be honored.

John K. Fairbank Prize in East Asian History
Eugenia Lean
, Public Passions: The Trial of Shi Jianqiao and the rise of Popular Sympathy in Republican China, Univ. of California Press, 2007

John E. O’Connor Film Award
Sacco and Vanzetti
(Willow Pond Films, 2007) director and producer: Peter Miller, editor and producer: Amy Carey Linton

Other AHA book prizes are listed here.

Weinberg reviews Symeonides in Theory Wars in the Conflict of Laws

Louise Weinberg, University of Texas, has posted a review essay, Theory Wars in the Conflict of Laws. She discusses THE AMERICAN CHOICE-OF-LAW REVOLUTION IN THE COURTS: TODAY AND TOMORROW by Symeon C. Symeonides (Martinus Nuhoff Publishers). The essay appeared in the Michigan Law Review. Here's the abstract:
This article reviews a brilliant new book of legal theory concerned with the problem of conflicting laws. The reviewer takes the occasion to trace the intellectual history of the mid-20th century modernist-realist revolution in American legal thought as it occurred in the field of the conflict of laws, when writers like Walter Wheeler Cook were using the example of the conflict of laws to make the legal-realist case. The article then clarifies the nature and power of the interest analytic legal theory that thereafter emerged in that field to supplant for a time the then-prevailing simplistic territorialist choice-of-law method, and permanently changed the terms of the debate. Using modernist interest analysis, the reviewer comes to grips with a deeply troubling case discussed in the book under review. While praising the book for its unique phenomenological investigation and its intriguing findings, the reviewer takes issue with the book's proposed approach to the choice-of-law problem. That approach seeks to elaborate detailed rules of choice derived from actual cases studied in large statistical samples, modifying those rules in light of the classical ideals of judicial process: neutrality, uniformity, and certainty. The reviewer, on the contrary, makes bold to argue that the classical ideals of neutrality, uniformity, and certainty in applying law are not only spurious in themselves, but tend inevitably to lead to outcomes that an interest analyst can convincingly evaluate as irrational or unjust. The tenacity of these spurious ideals in legal theory may account in some measure for the intractability of problems of unreason and injustice in the decision of conflicts cases.

National Book Award to Weiner, Legacy of Ashes: The History of the CIA

Tim Weiner, Legacy of Ashes: The History of the CIA (Doubleday) is this year's winner of the National Book Award for nonfiction. Interview

Other finalists for this year are:

Edwidge Danticat, Brother, I’m Dying (Alfred A. Knopf) - Interview

Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (Twelve/Hachette Book Group USA) - Interview

Woody Holton, Unruly Americans and the Origins of the Constitution (Hill and Wang/Farrar, Straus and Giroux) - Interview

Arnold Rampersad, Ralph Ellison: A Biography (Alfred A. Knopf) - Interview

Legal historians had a special interest in the awards this year, with Holton's work of U.S. constitutional history on the list. Here's a snippet from his interview:

JG: What was the hardest part of your book to write - and why was it so challenging?

WH: Unruly Americans devotes a lot of attention to the people who bought up the government securities that had financed the Revolutionary War. I argue that these bond speculators played a huge, albeit indirect, role in bringing about the adoption of the U.S. Constitution in 1787. Discussing this topic with friends, I quickly discovered that my enthusiasm for it was not infectious. You have to be pretty weird to get excited about government finance.

It occurred to me that I could make the topic a lot more appealing to readers if I could find a compelling story about a single bond speculator; then that one guy could stand in for all the rest. For years I searched in vain for a speculator who left sufficient documentation. Near the end of the writing-almost too late-I found my speculator. It is Abigail Adams. Twenty years before becoming First Lady, in June 1777, Adams discovered this incredibly lucrative investment. And she was still buying bonds in the 1790s, when her husband was vice president.

More from Holton is here.

Wednesday, November 14, 2007

Kendall on Madison and the Market Economy

Walter J. Kendall, John Marshall Law School, has published a short review essay, Madison and the Market Economy. It appeared in the Quinnipiac Law Review. Here's the abstract:
This is a review of James Madison and the Future of Limited Government, a CATO Institute publication, edited by John Samples. The thesis of the review is that Madison has been improperly presented as a believer in limited government. Rather his public and private writings indicate that he was suspicious of the market, and saw the need for positive government in order to regulate private economic power. He also believed that the meaning of words was dim and doubtful, requiring interpretation.

Oppong on Private International Law in Africa: Past, Present and Future

Richard Oppong, Lancaster Law School, has a new article, “Private International Law in Africa: Past, Present and Future” in the latest issue of the American Journal of Comparative Law ((2007) 55 AJCL 677-719.) Hat tip: Conflict of Laws blog. The journal is not open access, so you will need a journal subscription to read on-line. Try your library. Here's the abstract:
The development of private international law has stagnated in Africa for some time now. This is reflected in the neglected and undeveloped state of the subject, and the near absence of Africa in international processes, academic forums, writings, and institutions that have significance for the subject. This article explores the present and future state of the subject in Africa by situating it in a historical context. It challenges the often unarticulated assumption of writers on private international law in Africa that the subject and issues it addresses came to Africa only after the advent of colonization. It suggests that although the specific rules may be difficult to ascertain, conflict of laws problems existed in pre-colonial Africa and were, consistent with current theories on pre-modern societies, addressed by a mixture of practices and mechanisms that tended towards conflicts avoidance and lex forism. It notes that during the colonial period the subject developed without any clear theoretical underpinnings, was deployed to fulfil narrow political and commercial goals, and was largely insulated from international developments. The article argues that a new dawn is rising in which the subject will occupy a prominent place with regard to many issues in Africa. It examines how an emerging academic interest in the subject, current economic integration initiatives, harmonization of laws, drive to promote trade and investment, constitutionalism and human rights, and other developments will impact private international law in Africa.

Tuesday, November 13, 2007

Closures at National Archives of the UK (aka the PRO)


The National Archives of the United Kingdom in Kew, England (formerly known as the Public Records Office, or PRO), announces service disruptions due to construction. From the website:

Closure dates

During the building work there will be noise and disruption to our services. The National Archives, Kew will be closed to the public:

  • from Saturday 1 to Sunday 16 December 2007 inclusive
  • from Monday 21 to Sunday 27 January 2008 inclusive

Our online services will not be affected. We will publish more information as soon as it is available on our website, as well as at The National Archives, Kew and at the Family Records Centre. We apologise in advance for any inconvenience that these essential building works may cause you.

Reading Room Disruptions

Work has now begun on the reading rooms at Kew. To minimise the impact of the building work on your visit, the majority of work will be carried out between 12:00 and 22:00. Apart from our planned closure dates we will remain open to the public during this time. However the building work will affect your visit to our reading rooms until the end of March 2008. We will publish weekly updates on the progress of the work and the exact nature of the disruption on this page, so you should check our website for latest information before you visit.

The Family Records Centre will close on March 15, 2008, to be consolidated with the National Archives in Kew.

Visit this page for updates, or the main page of the National Archives. You may want to postpone a trip, if you can, until after March 2008.

Wright on the history of insurance in the U.S. since 1790

Robert E. Wright, NYU Stern School of Business, has posted a new paper, Insuring America: Market, Intermediated, and Government Risk Management Since 1790. Here's the abstract:
At first glance, American insurance history is Whiggish, the story of self-insured risks slowly becoming managed by intermediaries. A closer look reveals more complexity, many directions of change, and numerous questions of importance today. Why, for example, did mutual life insurers wax and then wane? Why did for-profit corporations supplant non-profit fraternal societies? Why did prepaid physician and hospital plans disappear? To answer those and similar questions, a thorough survey of both traditional branches of the U.S. insurance industry, income (life/health) and property (property, liability, and casualty) insurance, is necessary.
Typically, self-insured risks became predominantly intermediary-insured due to improvements in the technology of insurance - the nuts and bolts of setting premiums and selling policies, making appropriate investments, and paying claims - and increases in consumer confidence in insurer solvency and market competition. Competition helped to drive those technological improvements and also ensured provision of the best price and quality available at any given technology frontier. Extant companies, however, sometimes successfully resisted competition with cartels. Sometimes a certain type of intermediary or market dominated because it was the most economically efficient method of managing a particular set of risks. Sometimes, however, government regulation and taxation explain why friendly associations, mutuals, joint-stock companies, or markets dominated the provision of specific areas of risk management. Similarly, political rather than economic realities often best explain the emergence and expansion of government insurance programs.

Monday, November 12, 2007

Pether on The Prose and the Passion

Penelope Pether, Villanova, has posted a new essay, The Prose and the Passion. It appeared in Meanjin Australia's leading literary magazine, in an issue On Crime and the Law. Here's the abstract:

This essay takes the late Robert Cover's insight that “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning,” and thus that “For every constitution there is an epic” as the starting point for a reading of Australian legal and literary texts about the relationship of the nation and “outsiders,” as between constitutional subjects and texts. Ranging from “legal faction” texts Evil Angels (about the “Dingo Baby” case) and Dark Victory (about the Tampa incident) and The Castle, Rob Sitch's filmic satire on the Australian takings clause and the landmark Native Title Decision Mabo v. Queensland, No 2, to the recent High Court cases Al Kateb, Behrooz, Re Woolley, and Ruhan, it offers a critical account of recent Australian constitutional jurisprudence regarding asylum seekers and “sexually violent predators.” The essay argues that this recent High Court jurisprudence offers a radically circumscribed reading of Chapter III judicial power (analogous to Article III judicial power in the U.S. Constitutional context), and offers comparative constitutional law perspectives on problems in U.S. Constitutional hermeneutics.

Kanstroom historicizes deportation

Daniel Kanstroom, a leading immigration law scholar and lawyer at Boston College, places current immigration policy in a historical context in a post on History News Network:
Much current immigration debate seems based on two misconceptions: one factual, the other theoretical. As talk has increasingly turned from structured work programs with pathways to citizenship to border control and national security, one often gets the impression that virtually no enforcement is taking place. Quite the opposite is true: we are in the midst of a massive, decade-long deportation experiment that is exceptionally harsh by virtually any historical or comparative measure. Indeed, many millions of non-citizens, their families, and their communities have already felt the dreadful power of this system. A second misconception is more subtle, but perhaps more pernicious: it is the idea that the “rule of law” embodies only punishment for mis-deeds, rather than proportionality, procedural fairness, and the rejection of Draconian “one size fits all” solutions to complex social problems.

The rest is here.

For more from Kanstroom, see his new book, Deportation Nation: Outsiders in American History (Harvard University Press, 2007).
Here's what Mae Ngai, Columbia, had to say about it:
Kanstroom's legal and social history of deportation reveals the development of a second system within our immigration politics, one of exclusion and expulsion, in which few if any Constitutional protections exist. Kanstroom shows the connections between the deportation of aliens and other removal practices in American history; the warning out of the poor, native-Americans removal, and fugitive slave law-- and makes a powerful and unsettling argument about the uses and abuses of today's immigration system.