Tamanaha on The Dark Side of the Relationship between the Rule of Law and Liberalism

Brian Z. Tamanaha, St. Johns University School of Law, has posted a new essay, The Dark Side of the Relationship between the Rule of Law and Liberalism. It is forthcoming in the NYU Journal of Law and Liberty. I would read this along with David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism. Here's the abstract:

Liberalism, democracy, and the rule of law are often thought to constitute a seamless unity, reflected in contemporary Western liberal democracies. That understanding, while not incorrect, does not tell the whole story. This article traces out a long historical pattern in which liberalism and the rule of law have combined to restrict the exercise of democracy. This pattern will be exposed by elaborating on four contexts: the shift in political theory from classical liberalism to modern social welfare liberalism; the shift from the common law to legislation as the primary source of law; resort to the rule of law by liberals from the eighteenth century to the present; and the contemporary implementation of neoliberal reforms in developing countries around the world. The article will argue that liberalism has enjoyed an opportunistic relationship with the rule of law, a relationship which has taken different forms over time, though repeatedly evincing an anti-democratic tendency on behalf of property rights.

This relationship is a source of skepticism about the rule of law, and harbors the potential to discredit the rule of law in the eyes of many around the world. This article lays out this "dark side" of their relationship in an effort to separate what the rule of law requires from what liberalism wants.

Musacchio on Legal Origins, Shareholer Protections, and Ownership Concentration in Brazil, 1890-1950

Aldo Musacchio, Harvard Business School, has posted a new paper, Laws vs. Contracts: Legal Origins, Shareholder Protections, and Ownership Concentration in Brazil, 1890-1950. Here's the abstract:

The early development of large multidivisional corporations in Latin America required much more than capable managers, new technologies, and large markets. Behind such corporations was a market for capital in which entrepreneurs had to attract investors to buy either debt or equity. This paper examines the investor protections included in corporate bylaws that enabled corporations in Brazil to attract investors in large numbers, thus generating a relatively low concentration of ownership and control in large firms before 1910. Archival evidence such as company statutes and shareholder lists document that in many Brazilian corporations voting rights provisions, in particular, maximum vote provisions and graduated voting scales (that provided for less than proportional votes as shareholdings increase), balanced the relative voting power of small and large investors. In companies with such provisions the concentration of ownership and control is shown to have been significantly lower than in the average company. Overall, from the sample of Brazilian companies studied it seems like the concentration of control was significantly lower before 1910 than what it is today.

Olivas on Hernandez v. Texas, a Litigation History

Michael A. Olivas, University of Houston Law Center, has posted a new essay, Hernandez v. Texas, a Litigation History. It appeared in Colored Men and Hombres Aqui, Hernandez v. Texas and the Emergence of Mexican American Lawyering, Michael A. Olivas, ed. (2006). Here's the abstract:

An important case was decided by a unanimous United State Supreme Court in May, 1954, in an opinion written by Chief Justice Warren. It invoked race, which had been employed by the State in a way to marginalize a discrete racial group, and formulated Equal Protection. The term "Colored Men" figured in it. Brown v. Board of Education? No¿the case was Hernandez v. Texas, written at the same time as Brown, by the same Court, and was published in the 1954 Supreme Court Reports just before Brown. This criminal law companion to Brown involved all white juries in Mexican-Jim Crow Texas, and has been all-but-forgotten in the bright light accorded Brown. But its anti-subordination language, small town sociology, and bathroom signage (the men's room sign, invoked by Justice Warren, read "Colored Men" and "Hombres Aqui" (Men Here). The case was also the first case argued by Mexican American lawyers before the Supreme Court. This study draws upon previously-unexamined archival materials and newspaper accounts, as well as information from the lawyers who tried the 1954 case.

Quinn on the Nation's First Criminal Domestic Violence Court

Mae C. Quinn, University of Tennessee, has posted a new article, Anna Moscowitz Kross and the Home Term Part: A Second Look at the Nation's First Criminal Domestic Violence Court. It is forthcoming in the Akron Law Review, in a symposium issue on The New Face of Women’s Legal History. Here's the abstract:

Many proclaim that criminal domestic violence courts -- specialized court parts that focus on intimate violence cases and utilize a particularized approach in such prosecutions to prevent further violence -- are a recent innovation within our criminal justice system. Most observers point to the Quincy District Court in Massachusetts, which opened in 1987, as the first venue in this country to offer specialized processing of criminal domestic abuse prosecutions. In the two decades since the Quincy court opened its doors, other jurisdictions have developed similar models using similar specialized approaches. For example, court planners in New York assert its first criminal domestic violence court, building on the Quincy model, was established in Brooklyn in 1996.

These contemporary accounts of judicial innovation fail to acknowledge, however, that a somewhat similar experiment in specially adjudicating domestic violence prosecutions was undertaken more than fifty years ago in New York. In 1946, Judge Anna Moscowitz Kross established New York State's first criminal domestic violence court within New York City's Magistrate's Court system. The Home Term Part, as Kross's court was called, was a groundbreaking experiment in criminal justice that sought to employ a particularized approach in domestic violence cases to address charges of assault, harassment, disorderly conduct and other abuses. Nevertheless, Kross, one of New York's first women judges, and her early attempts at judicial innovation like the Home Term Part, have been largely forgotten by legal historians and court reformers alike.

This paper seeks to inform current conversations about dedicated domestic violence courts by shedding light on Kross's remarkable early efforts to treat domestic violence prosecutions differently from other criminal matters and handle them in a designated court part. The story of Kross's Home Term Part - the first specialized criminal domestic violence court in New York and probably the United States -- is an important chapter in the history of intimate violence policies in this country. Its recognition is crucial to any complete account and understanding of our criminal justice system's renewed efforts at judicial innovation through specialized problem-solving courts. And although many features of Home Term would be viewed as objectionable by modern standards, it may also provide important insights to contemporary court reformers as they consider the future of domestic violence prosecutions.

Photo credit.

Super Crunchers and Antebellum Legal History

On the heels of the post on the relationship between Kyra Sedgwick and an 1830 novel featuring the auction of a landscape painting, here's something else that you wouldn't think would go together: Ian Ayers' Super Crunchers and the study of antebellum legal history.

I've been saying for years (this prediction goes back to about 1989) that full text databases of antebellum case reports will revolutionize how we think about antebellum legal history. It's been about a decade since westlaw and lexis have had the antebellum state reports on-line and so far, we're still waiting to realize their full promise. Part of this may be because legal historians have gone in so many different directions of late that we're no longer as concerned with antebellum legal history as we were in the days when Horwitz' Transformation of American Law, 1780-1860 was published. I think one of the many attractions of Horwitz was that he brought the insights of law and economics to bear on antebellum jurisprudence. Horwitz and Posner did not share a political agenda, but they shared an intellectual agenda: talking about how, throughout American legal history, economic considerations were important to judges. We're now talking more about nationality, civil rights, criminal law, women, slavery and Jim Crow, all sorts of areas that were not so hot in the 1970s and 1980s. But that's a discussion for another time.

Still, I think there are important insights--low hanging fruit to use the common phrase--to be mined from the hundreds of volumes ready for full text searching. And that's where Super Crunchers comes in, with its contagious enthusiasm for looking at large datasets.

What do I want to mine from antebellum cases? Well, lots of cool stuff to be done on webs of citations (which states are citing which states and when) and other stuff, too. But right now I'm thinking about it for a different purpose. I'm in the midst of a paper on antebellum landscape art and property law. It's tentatively titled "property and progress," with apologies to Henry George and Stephen Thernstrom, of course. Not surprisingly, Asher Durand's Progress (1853) (housed in the fabulous Warner-Westervelt Musuem in Tuscaloosa, Alabama and used as an illustration here) is a centerpiece of the talk. So I've been interested in how judges talk about progress and the even more popular nineteenth century term "Civilization." All of that led me to westlaw's old cases database, where there are nearly three hundred cases that use the word "civilization" before the Civil War. Not quite super-cruncher numbers, but perhaps enough instances to see the ways judges using the term. Seems to me we could create a pretty cool map of the terrain of judges' minds by studying such phrases. There are enough uses of the word that we can begin to see how judges use it and in what kinds of cases. There are probably a lot of other words and phrases that we might use, like sentiment, utility, expediency, feudalism.... Sort of like a small version of the amazon.com algorithm that tells me what books I should read, in light of the books I've already purchased. As Ayers' says, amazon knows more about my preferences than I do--and he's right.

Gale's Making of Modern Law series, which has more than 20,000 volumes on English and American law from 1800 to 1920 is another fabulous source. book.google.com has helped out in huge ways , too. One of the many insights here: I was interested in Bill Bojangles Robinson of late, because I was involved in a conversation with my favorite librarian about him. That led to me ask about the statue put up in Richmond back when I lived there to commemorate him. And that led me to learn that some people credited him with popularizing "copasetic" and that led me to a wikipedia entry that says copasetic was first used in 1919. But, ah, through the magic of book.google, there appears to be a use in 1914!

The difficult part, now that all this information is such much more easily available, of course, is to know what to do with it. The puts an even greater premium on interpretation, now that anyone with access to the internet can get at overwhelming amounts of text on the antebellum era. ...

Smythe and Bird on The Structure of American Legal Institutions and the Diffusion of Wrongful-Discharge Laws, 1978-99

Donald J. Smythe, California Western School of Law, and Robert C. Bird, University of Connecticut, have posted a new article, The Structure of American Legal Institutions and the Diffusion of Wrongful-Discharge Laws, 1978-99. It is forthcoming in the Law and Society Review. Here's the abstract:

This article evaluates how the social structure of American legal institutions influenced the diffusion of wrongful-discharge laws over the period from 1978-1999 and assesses whether economic or political variables influenced the diffusion process. The results are surprising and quite striking. Precedents by other courts within the same federal circuit region were generally more influential in the diffusion process than precedents by courts in neighboring states or by courts within the same census or West legal reporting region, even though the precedents were on matters of state law rather than federal law and the decisions were usually made by state courts rather than federal courts. There is some evidence that political variables may also have been a factor, but economic variables did not appear to be particularly important, even though the new employment laws may have had important economic consequences.

Schiller on The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law

The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administration Law by Reuel E. Schiller, UC Hastings, recently appeared in the Michigan Law Review. Here's the abstract:

The first two terms of Franklin Roosevelt’s presidency (1933–1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal–era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt’s appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a “prescriptive” vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century.

Barron and Lederman on The Commander in Chief at the Lowest Ebb

THE COMMANDER IN CHIEF AT THE LOWEST EBB — FRAMING THE PROBLEM, DOCTRINE, AND ORIGINAL UNDERSTANDING by David J. Barron, Harvard, and Martin S. Lederman , Georgetown, recently appeared in the Harvard Law Review. Here's the abstract:

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. In this Article, Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration’s response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.

This Article is the first of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. Professors Barron and Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little historical evidence supporting the notion that the conduct of military campaigns is beyond legislative control. Thus stripped of its assumed roots in a supposedly longstanding tradition, and considered in light of the long pattern of executive acceptance of constraining statutes, the Administration’s recent assertion of preclusive war powers is revealed as a radical attempt to remake the constitutional law of war powers.

This Article begins by explaining why the debate about the “lowest ebb” is now emerging as the primary constitutional war powers question, and by addressing the methodological missteps that have typically infected this debate. It then explores recent attempts to identify the preclusive prerogatives of the Commander in Chief and explains why the tests often deployed to cabin the scope of the presumed preclusive power are flawed. Finally, it reviews the relevant Supreme Court precedent, along with the constitutional text, the historical context in which the text was written, and the original understandings, and sets the stage for the post-Founding historical review contained in the next Article.

This is Not a Blog (re: NYRB)

An interesting picture of the blog world emerges from Sarah Boxer's essay "Blogs," in the February 14 issue of the New York Review of Books, now on-line and in your mailbox. What are blogs like? A characteristic feature is bloggy writing. According to Boxer, "Bloggers thrive on fragmented attention and dole it out too....And if they can't put quite the right inflection on a sentence, they'll often use an OMG (Oh my god!) or an emoticon, e.g., a smiley face :-) or a wink ;-) or a frown :-( instead of words." How do blogs operate? "The law of the blogosphere is Hobbesian: survival of the snarkiest." What are bloggers like? "Bloggers have fouler mouths, tougher hides, and cooler thesauruses than most of the people I've read in print." They are fixated on superheroes. Their writing is "grandiose, dreamy, private, free-associative, infantile, sexy, petty, dirty."

OMG! What am I doing wrong? (LOL).

There are, thankfully, many corners of the blogosphere. It doesn't paint an accurate picture to collapse us all into the sort of writing we may have enjoyed in 6th grade. To characterize the blog world this way is something like writing an essay on literature, but only taking up the romance novel. The kind of blogs Boxer writes about are an important cultural innovation (whether we like them or not), and there are common attributes across genres -- most importantly the issue of connection with sources in the rest of the web, something that has not yet effectively come to the on-line versions of traditional journalism. Even Boxer's essay lacks links to the blogs she mentions.

The blog world is also a place for writers who have things to say that won't make it into a newspaper, and sometimes things that need to be said more quickly than a print publication cycle would allow. Blogs like this really are blogs, not some second category of writers who don't have the hang of the genre yet.

Boxer's essay mentions, but does not really engage, a list of blog-related books, including Daniel Solove's important new work, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press). Others are: We've Got Blog: How Weblogs Are Changing Our Culture, ed. John Rodzvilla (Basic Books); Against the Machine: Being Human in the Age of the Electronic Mob by Lee Siegel (Spiegel and Grau); Republic.com 2.0 by Cass R. Sunstein (Princeton University Press); Blogwars by David D. Perlmutter (Oxford University Press); We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age by Scott Gant (Free Press); Blog: Understanding the Information Reformation That's Changing Your World by Hugh Hewitt (Nelson Books); The Cult of the Amateur: How Today's Internet Is Killing Our Culture by Andrew Keen (Doubleday/Currency); Naked Conversations: How Blogs Are Changing the Way Businesses Talk with Customers by Robert Scoble and Shel Israel (Wiley); Blog! How the Newest Media Revolution Is Changing Politics, Business, and Culture by David Kline and Dan Burstein.
[More links to follow later -- this blogger has an off-line deadline today! ;-)]

Jackson on the politics of MLK's "shattered dream"

Thomas F. Jackson, author of the prizewinning recent book From Civil Rights to Human Rights: Martin Luther King Jr. and the Struggle for Economic Justice, has a post on History News Network on the the political use of Martin Luther King, Jr.'s legacy. He begins:

Democratic candidates have recently been cherry-picking lessons from the civil rights and voting rights campaigns of the mid-1960s. President Lyndon Johnson's achievement in building a bipartisan congressional coalition to secure passage of the 1964 Civil Rights Act was indeed monumental.

But Martin Luther King Jr. was no mere dreamer. As the civil rights revolution's most famous strategist and self-proclaimed "symbol," King stood at the forefront of a mass political movement with many leaders and agendas. Like Lincoln and the Emancipation Proclamation, African Americans and their white allies organized, protested, and voted, forcing politicians to make hard choices and progressive commitments.

While debating the relative achievements of King and Johnson, the candidates are ignoring King's unrealized dreams and strategies for expanding democracy. After 1964, King argued that the nation's leadership needed to address challenges more intransigent than legal desegregation: unemployment, income inequality, poverty, voter disaffection, and racial apartheid in housing and education. King's "shattered dreams" remain our own.

Continue reading here.

Emom on Constitutionalism in the Muslim World: History and Identity in Islamic Law

Anver M. Emon, University of Toronto, has posted a new essay, The Limits of Constitutionalism in the Muslim World: History and Identity in Islamic Law. It is forthcoming in Constitutional Design for Divided Societies: Integration or Accommodation? edited by Sujit Choudhry (Oxford University Press, May 2008). Here's the abstract:

Governance in the context of pluralism - e.g. ethnic, religious and otherwise - raises concerns about the long-term stability of states in the global arena. Political scientists and constitutional theorists offer various models designed to ensure peaceful governance amidst this pluralism, such as proportional representation in the national government, federalism (with varying degrees of provincial autonomy), and consociationalism. I will argue that in the context of Muslim states invoking Islamic law as part of their constitutional framework, debates on governance models that balance between state coercion and group protection prioritize statist discourses without sufficient attention to how contests about identity in the Muslim state can affect the scope of constitutional interpretation and rights distribution in society. In Muslim countries in which Islamic law is embedded in the rule of law system, protecting minorities (in particular religious minorities) involves more than theorizing about forms of state organization and models of integration or accommodation. To protect religious minorities in Muslim states requires attention to the underlying normative frameworks of Islamic law that inform the context in which constitutions are drafted, institutions of law operate, and Shari'a is defined and concretized. To accomplish this task, this essay preliminarily argues for a historicist jurisprudence of Islamic law to understand how the pre-modern Shari'a treatment of non-Muslims arose from an early context of Islamic universalism, but which creates dissonance in meaning - legal and otherwise - when implemented ahistorically in contemporary state legal systems.

Kyra Sedgwick, Catharine Sedgwick, and Landscape Art

Here's something to think about when you're watching Kyra Sedgwick in The Closer: she's related to Henry Dwight Sedgwick (author of an important late antebellum treatise on Constitutional law) and Catharine Sedgwick (author of Redwood and other novels that have made a huge comeback among literary scholars in recent years.) Pretty unusual, eh? Yup. You never know what things you'll learn at legalhistoryblog to impress your friends! (Years and years ago Alan Heimert suggested that I spend some quality time with Catharine Sedgwick because she was a nice mid-way point between James Fenimore Cooper and Stowe and Melville. I hope to talk about that some more at some point, though perhaps not on this visit to legalhistoryblog.)

This post, though, is about a fragment of one of her other novels: Clarence, which I've been reading for a paper on antebellum property (there's a will contest in the novel, which is capturing some of my attention these days). In Clarence, one of Thomas Cole's landscapes is sold at auction ... at what appears a high price ($50), but is in actuality a bargain. (Been looking at some of Cole's correspondence of late and that's about what they were going for at the time. Talk about a great investment....) After the sale, the buyer refuses the audience another look because "he paid an extraordinary price for the exclusive right to look at the picture." Pretty cool stuff here--a landscape is itself turned into a commodity and then sold and the only person who has the right to look at it is the buyer. Sort of turns Emerson's talk in Nature on its head:

The charming landscape which I saw this morning, is indubitably made up of some twenty or thirty farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them owns the landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts, that is, the poet. This is the best part of these men's farms, yet to this their warranty-deeds give no title.

Lots of stuff to make out of this, since Cole was concerned with the ways that nature was being subverted by America's economy and Sedgwick also wrote frequently about issues of law, individualism, and freedom.

I've illustrated this post with a Cole landscape from our friends at wikipedia. Back at propertyprof I spoke a little about Kyra Sedgwick and property law a few years ago.

Alfred L. Brophy

Musacchio, Do Legal Origins Have Persistent Effects Over Time?

Aldo Musacchio, Harvard Business School, has posted a new paper, Do Legal Origins Have Persistent Effects Over Time? A Look at Law and Finance Around the World C. 1900 . Here's the abstract:

How persistent are the effects of legal institutions adopted or inherited in the distant past? A substantial literature argues that legal origins have persistent effects that explain clear differences in investor protections and financial development around the world today (La Porta et al, 1998, 1999 and passim). This paper examines the persistence of the effects of legal origins by examining new estimates of different indicators of financial development in more than 20 countries in 1900 and 1913. The evidence presented does not yield robust results that can sustain the hypothesis of persistence effects of legal origin, but it is not powerful enough to reject it either. Then the paper examines if there were systematic differences in the extent of investor protections across countries, since that is the main channel through which legal origin affects financial development, and shows that all the evidence supports the idea of relative convergence in corporate governance practices across legal families circa 1900. The paper concludes that, if the evidence presented is representative, the variation observed in financial development around the world today is likely a product of events of the twentieth century rather than a consequence of long-term (and persistent) differences occasioned by legal traditions.

American Studies Association deadline this Friday!

The deadline for proposals for the American Studies Association annual meeting is this Friday, January 25! The call for papers is here.

The theme of the 2008 meeting is: "Back Down to the Crossroads: Integrative American Studies in Theory and Practice." It will be held October 16-19, 2008, in Albuquerque, NM. Proposals are welcome from "anyone having an interdisciplinary interest in the study of American cultures." It is a great conference for legal history scholarship. While the Law and Society Association is especially strong on law and social sciences, the American Studies Association is stronger in the humanities, and so is an especially good venue for legal history work that draws upon literature and cultural studies.

McDonald takes on Korematsu revisionism

James M. McDonald, a federal law clerk and recent University of Virginia Law School graduate, has posted his Virginia Law Review Note, Democratic Failure and Emergencies: Myth or Reality? To respond to Posner and Vermeule on democracy and emergencies, he weighs in on recent Korematsu revisionism, taken up recently here and here. The history McDonald covers, relying on works like Roger Daniels, Concentration Camps USA , is well known to historians, but as McDonald notes, is often neglected in current debates. Here's McDonald's abstract:

The long-running debate about the ability of a democratic government to respond to emergencies has assumed new significance as scholars, judges, and government officials develop new arguments to respond to the challenges presented by the twenty-first century and the "War on Terror."

Traditional emergency-politics theorists explain democratic government during emergency with the "democratic failure theory." But revisionists, led by Professors Eric Posner and Adrian Vermeule, recently have challenged the "democratic failure" theory, arguing that, because emergencies affect no systemic change in the structure of voting and representation, democratic government functions with equal facility during emergencies as during normal times.

This Note, while ambivalent about a broad application of the traditionalists' democratic failure theory, offers one counterpoint to Posner and Vermeule and their revisionist claim. Introducing primary source research and re-introducing forgotten or overlooked academic arguments, this Note presents a case study of the Japanese internment during World War II. The internment of individuals of Japanese descent was not merely the result, as revisionists argue, of a continuation of the peacetime baseline or of rational concerns for national security. National security concerns played a part in the decision, to be sure, but this Note argues that the primary impetus behind the internment came from an anti-Japanese West-Coast coalition's successful exploitation of the democratic failure caused by the emergency of World War II. The coalition had long sought to exclude individuals of Japanese descent (and the Chinese before them), but before World War II, those efforts lacked mainstream political appeal. World War II changed the political playing field, and the anti-Japanese coalition on the West Coast knew it. Capitalizing on the World War II democratic failure, the coalition harnessed the political support necessary to achieve its exclusionary goal.

February 1 deadline for ASLH proposals

The deadline for proposals for the 2008 American Society for Legal History conference is February 1! The meeting will be November 13-16, 2008, in Ottawa.

The call for papers is here. The ASLH meeting is, of course, the best place to go for serious discussion of legal history scholarship. Non-legal historians who are tip-toeing into legal topics should especially present papers there (just as legal historians should subject their work to scrutiny in other fields of history). And the meeting is smaller than most, making it an especially welcoming environment for graduate students and newer scholars.

If you can't be convinced based on the substance, the Program Committee has put together a helpful webpage about Ottawa, with a link to an NY Times Travel story 36 Hours in Ottawa. For more, the Local Arrangements Committee has assembled a Guide to Ottawa.

Photo credit.

Mikhail on Blumenthal: Mind of the Moral Agent

Georgetown University Law Professor John Mikhail has posted a paper, "Scottish Common Sense and Nineteenth-Century American Law: A Critical Appraisal," commenting on University of Minnesota Professor Susanna Blumenthal's "The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law." Both are forthcoming in the Law and History Review in spring 2008. And I think you'll enjoy them both.

Here is Mikhail's abstract:

In her insightful and stimulating article, The Mind of a Moral Agent, Professor Susanna Blumenthal traces the influence of Scottish Common Sense philosophy on early American law. Among other things, Blumenthal argues that the basic model of moral agency upon which early American jurists relied, which drew heavily from Common Sense philosophers like Thomas Reid, generated certain paradoxical conclusions about legal responsibility that later generations were forced to confront. "Having cast their lot with the Common Sense philosophers in the 'formative era' of American law," she explains, "early republican jurists thus bequeathed to future generations of lawyers a problem of responsibility of no small proportions."

In this invited comment for Law and History Review, I first argue that the problems of responsibility on which Blumenthal focuses our attention are not specific to Scottish Common Sense, but rather descend straight from the core of the Western legal and moral tradition. The same problems would arise if Common Sense philosophy had never existed. Second, even if it is true that Common Sense exerted a powerful influence on American academic life in the antebellum period, it still must be shown that this influence extended to specific features of American law, which remained at the time almost entirely the product of English common law. Blumenthal has not met this burden, however, because she does not identify any specific doctrines or judicial opinions that might support the conclusion that early American jurists "were steeped in Common Sense philosophy" or sought to construct "an indigenous legal tradition, built on the universalistic premises of Common Sense." Rather, her defense of this interesting claim is highly selective, resting mainly on the writings of Wilson and Hoffman. Third, although Blumenthal claims that there is something puzzling or paradoxical from a Common Sense perspective about the diversity of moral opinion, the existence of irrational or evil actors, or the fact that individuals often disregard the dictates of their moral sense, she does not adequately explain what exactly that paradox is, nor why Common Sense adherents should be troubled by it. Locke had made objections like these familiar as a result of his attack on innate practical principles in his Essay Concerning Human Understanding. Yet already by the eighteenth century, critics like Shaftesbury, Hutcheson, Reid, and their followers had rejected Locke's arguments as based on mere confusion and fallacy. Finally, a key point that Blumenthal neglects, as does John Witt in his elegant chapter on Wilson, is that Common Sense philosophers also supplied positive scientific arguments for innate moral knowledge, based on observation and induction rather than introspection, whose intellectual worth has proved remarkably durable. We risk misunderstanding Scottish Common Sense and its place in the history of ideas if we overlook contributions like these, or remain content to think of it merely as an unduly optimistic philosophy, which relied mainly on introspection to affirm the innate goodness of humankind, but which gave way to a more accurate theory of human nature as the nineteenth century unfolded. Certainly there is some truth to this description, but it is only part of the story, and a potentially misleading one.

I hope to talk more about this important topic at some point; however, in the interim I have one thought and one question. It seems to me as though antebellum Americans drew upon a number of intellectual traditions and applied them rather haphazardly. So it is not surprising that we see fragments of different traditions; and I suspect that as we look at different subjects within law, we are likely to see different traditions in varying degrees. (Not earth-shaking observation, but it may explain some of the differences in Mikhail and Blumenthal's findings.)

Now the question. Mikhail says at one point (170): "even if it is true that Scottish Common Sense exerted a powerful influence on American academic life in the antebellum period, it still must be shown that this influence extended to specific features or practices of American law, which after all remained at the time almost entirely the product of English common law." [emphasis in original]. So my question for legalhistoryblog readers: do we agree with the statement that American law remained in the antebellum period "almost entirely the product of the English common law?" Maybe this is where my comment in the previous paragraph is useful--perhaps it depends on one's perspective.

Lash on Barnett on Lash on the 9th Amentment

Kurt T. Lash, Loyola Law School Los Angeles, has posted a new essay, Federalism, Freedom, and the Founders' View of Retained Rights. The essay is a companion to Lash's article A Textual-Historical Theory of the Ninth Amendment, and responds to a critique of the article by Randy Barnett, Kurt Lash's Majoritarian Difficulty. Lash's and Barnett's pieces will appear in the Stanford Law Review. Here's the abstract:

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review (forthcoming 2008), I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits with the available historical evidence and reconciles the people of the Ninth with the people of the Tenth Amendment. At the invitation of the Stanford Law Review, Ninth Amendment scholar Professor Randy Barnett has now written a response to this piece. In his essay, Kurt Lash's Majoritarian Difficulty, Professor Barnett characterizes my approach to the Ninth Amendment as majoritarian and argues that the Ninth was intended to reflect the distinctly antimajoritarian views of Madison and the First Congress. Instead of protecting the collective rights of the people in the states, Barnett maintains that Ninth Amendment protects only individual rights and cites as critical support the opposition views of the antifederalist Virginia Senate and the majority opinion in Chisholm v. Georgia.

In this brief reply essay, I clarify the distinction between individual, majoritarian and collective rights and explain how all were likely among the rights retained by the people under the Ninth Amendment. This federalist (as opposed to majoritarian) reading of the Ninth Amendment was expressly embraced by participants in the drafting and ratification of the Ninth Amendment, in particular James Madison, the drafter of the Amendment. In a major speech which he delivered while the Ninth Amendment remained pending in the states (a speech which Barnett does not mention), Madison explained how the Ninth Amendment was drafted in response to concerns emanating from the state ratifying conventions and that both the Ninth and Tenth Amendments were intended to preserve the retained powers and rights of the people in the states. Although the Chisholm majority presented a distinctly non-federalist vision of the people, had this been the common reading of the Ninth and Tenth in 1791, this would have ensured the defeat of the Bill of Rights - an outcome Virginia antifederalists desperately but unsuccessfully sought to achieve.

Thurgood Marshall and Martin Luther King, Jr.

Martin Luther King, Jr., whose birthday is celebrated today, and civil rights litigator Thurgood Marshall, were rivals in the 1960s, and are often thought of through the lens of conflict within the civil rights community. But there were important moments when the two came together. It was not just that the NAACP and the Legal Defense Fund represented King, for example during the Montgomery Bus Boycott. In 1964, Marshall, who generally supported legal change rather than civil disobedience, himself demonstrated on behalf of King’s philosophy of social change.

The occasion was the 1964 triennial national convention of the Episcopal Church, held in St. Louis, Missouri. Marshall was the first African American delegate from the New York diocese to attend. The conference honored Martin Luther King Jr., who was about to leave for Norway to receive the Nobel Peace Prize. King addressed the convention, calling upon Episcopalians to help with the civil rights struggle in the South. Most applauded, but some white delegates refused either to stand for King or to applaud.

The trouble occurred afterward at the House of Deputies meeting, when a resolution was introduced that spoke to the principles of King’s philosophy of nonviolent civil disobedience. The resolution “recognized the right of persons to disobey segregation laws that are in ‘basic conflict with the concept of human dignity under God.’” Civil disobedience had to be nonviolent, done only after “earnestly seeking the will of God in prayer.” Many in the clergy supported the proposal, but a number of lay delegates opposed it. “This is the first time in all of the history of this church that we have been asked to take a position that recognizes the right of people to disobey the law,” a Minneapolis delegate complained. “This is the way to chaos.” Reverend Gordon E. Gilett of Illinois responded: “One of my ancestors picked up a musket at Lexington and fought the British and I am certain we agree that was one of the greatest acts of civil disobedience.” When the measure came to a vote, it had the support of a majority of the clergy but did not receive enough support from lay delegates. The resolution was rejected. In protest, Marshall walked out.

Marshall’s walkout made headlines in New York and St. Louis. The Right Reverend Horace W. B. Donegan, bishop of the Diocese of New York, was “distressed” over the “unfortunate” incident and urged Marshall to stay. But Marshall was upset and angry. Then, the St. Louis Globe-Democrat blasted Marshall for his walkout:

Here is a Federal judge, the very embodiment of our law, acting as though he had turned in his judicial robes for a pair of sneakers and a CORE sweatshirt. The spectacle is ludicrous and not a little hypocritical.

This is a man who sits upon the United States Circuit Court of Appeals asking his church to encourage followers who violate selected laws “for reasons of conscience.”

The terrible danger of such an official endorsement of civil disobedience is that it leaves to the individual to judge what laws to violate, and individuals have different
ideas of “human dignity under God.”

This endorsement would have been an invitation to anarchy!

George L. Cadigan, bishop of Missouri, defended Marshall and publicly apologized on behalf of his city and his diocese, the host of the conference. Cadigan thought the attack on Marshall in the Globe-Democrat was unfair and ignored Christian teachings. The departure of Marshall, “our distinguished brother in Christ” was “a judgment on us all.”

Marshall was very angry when he got home to New York. But after sparking this controversy, he refused to comment on it. Reached at home in Manhattan, he told a reporter, “I just came out of there, that’s all. There are no conclusions to be drawn from that.”

There were important differences within the civil rights movement, and between Marshall and King. But just as the civil rights era changed America, it changed its participants. Perhaps King's national holiday is an appropriate time to reflect on the way, across what we usually think of as a divide between the movement and the lawyers, one leader supported another's message.

This passage is taken from Mary L. Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press, forthcoming 2008). Cross-posted at Balkinization.

Photo credits: Martin Luther King, Jr.; Thurgood Marshall addresses an NAACP conference.

LaCroix, The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic

Alison L. LaCroix, University of Chicago Law School, has posted a new paper, The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic. It is forthcoming in the Supreme Court Review. Here's the abstract:

The years between 1787 and 1802 witnessed a transformation in American federal theory: from the focus on legislative authority that had occupied constitutional thinkers since the colonial period to a new emphasis on jurisdiction and a corresponding institutional preoccupation with courts. This shift is evident in the decades-long debate concerning the nature and scope of the federal judicial power, which saw repeated efforts by jurists and statecrafters to establish the proper jurisdictional arrangement to mediate between the multiple levels of government set forth in the Constitution. The fruits of these struggles to cement the practical and ideological meanings of federalism were the judiciary acts of 1789 and 1801. The two acts have received remarkably disparate treatment from scholars, with the 1789 act heralded as the basis of the federal judicial system and the 1801 act largely regarded as an embarrassment notable only for its role in the partisan conflict surrounding the election of 1800.

Instead of lionizing the 1789 act and attempting to excuse or dismiss the 1801 act, however, I read the two together to offer new insights into these crucial decades. In the 1801 act, Federalists sought to revive the colonial idea of subject-matter jurisdiction by establishing broad federal jurisdiction, including granting "arising under" jurisdiction to the federal courts and easing the requirements for removal of cases from state to federal court. The election of 1800 and the ensuing repeal of the 1801 act, however, spelled the demise of this idea of jurisdiction and a return to the type of concurrence and overlap among levels of government that had characterized the system set up by the 1789 act. As a chapter in my forthcoming book on the history of the American federal idea, this essay challenges the assumption underlying some modern federalism scholarship that nationalization through the federal judiciary is a relatively new, post-1937 phenomenon. My argument demonstrates the anachronistic nature of such assumptions by highlighting the centrality of the judiciary to early republican debates concerning the scope and extent of national power.

Reviewed: Rejali, Torture and Democracy

Torture and Democracy by Darius Rejali (Princeton University Press) is reviewed in the Los Angeles Times by Laurel Maury. The review is here.

Here's the book description from Princeton University Press:

This is the most comprehensive, and most comprehensively chilling, study of modern torture yet written. Darius Rejali, one of the world's leading experts on torture, takes the reader from the late nineteenth century to the aftermath of Abu Ghraib, from slavery and the electric chair to electrotorture in American inner cities, and from French and British colonial prison cells and the Spanish-American War to the fields of Vietnam, the wars of the Middle East, and the new democracies of Latin America and Europe.

As Rejali traces the development and application of one torture technique after another in these settings, he reaches startling conclusions. As the twentieth century progressed, he argues, democracies not only tortured, but set the international pace for torture. Dictatorships may have tortured more, and more indiscriminately, but the United States, Britain, and France pioneered and exported techniques that have become the lingua franca of modern torture: methods that leave no marks. Under the watchful eyes of reporters and human rights activists, low-level authorities in the world's oldest democracies were the first to learn that to scar a victim was to advertise iniquity and invite scandal. Long before the CIA even existed, police and soldiers turned instead to "clean" techniques, such as torture by electricity, ice, water, noise, drugs, and stress positions. As democracy and human rights spread after World War II, so too did these methods.

Rejali makes this troubling case in fluid, arresting prose and on the basis of unprecedented research--conducted in multiple languages and on several continents--begun years before most of us had ever heard of Osama bin Laden or Abu Ghraib. The author of a major study of Iranian torture, Rejali also tackles the controversial question of whether torture really works, answering the new apologists for torture point by point. A brave and disturbing book, this is the benchmark against which all future studies of modern torture will be measured.

Reviewed: Carr, The Big Switch: Rewiring the World, From Edison to Google

The Big Switch: Rewiring the World, From Edison to Google by Nicholas Carr (Norton) is reviewed in today's San Francisco Chronicle by Mary Eisenhart, taking up the question of whether the IT revolution will have an impact on society and culture similar to the electrification. Eisenhart writes:

Carr's core insight, which he develops in the first half of the book, is that the development of the computer and the Internet remarkably parallels that of the last radically disruptive technology, electricity. He traces the rapid morphing of electrification from an in-house competitive advantage to a ubiquitous utility, and how the business advantage rapidly shifted from the innovators and early adopters to corporate titans who made their fortune from controlling a commodity essential to everyday life.

Just so, he writes, the personal computer, the Internet and the World Wide Web may be largely the creation of visionaries and tech wizards and offered short-term advantages to early adopters, but we're already seeing the migration of those resources to a centralized utility in which it makes ever less sense for businesses or individuals to own their own technology; the value lies in the ability to connect to the system. As former Sun chairman Scott McNealy used to say back in the '80s, "The network is the computer."...

Carr devotes the second half of his book to the study of unintended (at least by the innovators and cheerleaders) consequences of the 20th century's technological breakthroughs and likely parallels in the 21st's. While ubiquitous electricity created widespread benefits, it hardly delivered the drudgery-free paradise its more over-the-top enthusiasts predicted - although, as the apotheosis of the Industrial Revolution, it did throw hordes of skilled and unskilled laborers out of work, amid plenty of other repercussions.

The advent of electric household appliances, for example, may have reduced the need for domestic servants, but it created corresponding pressure on the individual homemaker to maintain an impossible (and marketing-driven) standard of sparkling perfection - Carr notes, for example, that the electric iron made it socially unacceptable for even children to go about in wrinkled clothing. The net result was a world in which women were increasingly confined to their homes and deprived of adult conversation, just because running the home "efficiently" had become a full-time job: "The housewife, like the factory hand, had become an essential cog in the great technological machine that was producing a more advanced civilization."

Looking for similar dystopian developments in the present day, Carr finds many - driven, as with electricity, by the dual forces of profit and control. He points, for example, to the rapid erosion of his own field, journalism, by "user-generated content" and the increased unwillingness of the population to pay for content, be it music, video or investigative reporting - which, when combined with the growing ability of advertisers to quantify results and reluctance to pay for anything that doesn't help their bottom line, is fast rendering anything but product-pushing economically unsustainable. Similar disruptions are occurring across the board in occupations that have largely sustained the middle class, as knowledge and expertise are offloaded from the individual brain to the centralized machine - with dire social and economic consequences but great power and revenues for those who control the machine.

While technological innovation is largely the creation of idealistic geniuses spurred on by utopian visions, Carr points out, it is rapidly co-opted by the incumbent in power and turned to other purposes....Carr quotes former Wired editor and perennial hive-mind enthusiast Kevin Kelly, who proclaims: "The more we teach this megacomputer, the more it will assume responsibility for our knowing. It will become our memory. Then it will become our identity. In 2015 many people, when divorced from the Machine, won't feel like themselves - as if they'd had a lobotomy."

The rest is here.

Skeel on The Paths of Christian Legal Scholarship

University of Pennsylvania Professor David A. Skeel has posted "The Paths of Christian Legal Scholarship" on ssrn. His abstract reads:

The history of twentieth century Christian legal scholarship- really, the absence of Christian legal scholarship in America's elite law schools- can be told as a tale of two emblematic clashes: the first an intriguing historical footnote, the second a brief, explosive war of words. In the first, a tort action in Nebraska circa 1890,William Jennings Bryan and Roscoe Pound served as opposing counsel; the second was a war of words in the 1940s between a group of neo-Thomist scholars and defenders of Oliver Wendell Holmes. Using these two incidents to frame as a starting point, this essay briefly chronicles the disappearance of Christian legal scholarship from the elite law reviews for much of the twentieth century. In the past few years, however, there have been signs of a possible renaissance. The second half of the essay focuses on the signs of renewal. To organize the discussion, I address three very basic questions: What?, Who?, and How? - What are the most promising directions for Christian legal scholarship? Who is a Christian legal scholar? And how can Christian legal scholarship best be facilitated?

You may want to read this in conjunction with Skeel's "The Unbearable Lightness of Christian Legal Scholarship."

The illustration is Asher Durand's Beeches. How's that for a path?

Kutler on Huckabee and the Constitution

Stanley Kutler weighs in on Republican candidate Mike Huckabee's views on the constitution and immigrants, first in The Washington Independent, and picked up on History News Network. Kutler is a true legal history luminary, author, among other things, of “The Wars of Watergate: The Last Crisis of Richard Nixon,” and currently the E. Gordon Fox Emeritus Professor of American Institutions at the University of Wisconsin, and professor of law. Kutler begins:

Mike Huckabee is a master at using the clever quip to deflect tough questions.

He toys with criticisms of his “fair tax” policy; at times he ignores the Sixteenth Amendment which makes the income tax indisputably constitutional. He has also made a shambles of the Establishment Clause of the First Amendment, which the Framers of the Constitution intended as the means for ensuring separation of church and state, and social peace in a diversified nation. Now, Huckabee has weighed in another constitutional matter. Again he has demonstrated his fecklessness, if not his ignorance.

On CNN’s “The Situation Room” (Jan. 8), Huckabee finessed the allegation that he favored stripping American citizenship from children born in the United States to illegal immigrants. That ever-present “someone,” he said, had suggested to him that bestowing citizenship on such children “needed to be reviewed.” The status of children of illegal immigrants who had come for the purpose of giving birth, Huckabee added, might indeed might be reconsidered.

As he said, “I simply said that’s something the Supreme Court would have to rule on.” He maintained that rejecting citizenship “was only a conversation that someone had with me.” Again, that “someone.”

But why would – why should – the Supreme Court “reconsider” a constitutional amendment that has been clearly understood for more than 140 years? It could be that Huckabee betrays his “Old South” roots?

Continue reading here or here.

Photo credit.

Knaplund on The Evolution of Women's Rights in Interitance

Kristine S. Knaplund, Pepperdine, has posted the abstract of a new article, The Evolution of Women's Rights in Inheritance. The article will appear in the Hastings Women's Law Journal. Here's the abstract:

This article presents the research results of an extensive examination of 1893 Los Angeles County probate records, which are the earliest such records still remaining in the Los Angeles County Archives. This research was undertaken to determine what effect the 1861 California Married Women's Property Act, together with subsequent changes in California probate law that were implemented throughout the latter half of the 19th century, had on testate and intestate succession of women's property. The article first provides historical background information about Los Angeles as it was 1893 (including population figures, the racial and gender makeup of the inhabitants, issues related to communication, migration, and technology, and a snapshot of California probate law at the time). It then gives a brief factual overview of each of the decedents whose records were studied, followed by an analysis of testate distribution patterns (with particular attention to differences between male and female decedents). Finally, it provides additional information about so-called problem wills - those which gave rise to will contests and other litigation.

Wiecek on Epstein

Syracuse University Law Professor William Wiecek, author of many books, including most recently volume 12 in the Holmes Devise History of the Supreme Court, on the Supreme Court from 1941-53 (the Stone and Vinson Courts), reviewed Richard Epstein's How Progressives Rewrote the Constitution (Cato, 2007) in the fall 2007 Law and History Review.

Highlights from the review:

Epstein contends that in the late eighteenth century, and for most of the ensuing
century, our constitutional order was organized around "the classical liberal synthesis" (14). Its basis is "classical economics," especially "Adam Smith's happy conception of the 'invisible hand'" (4). Property and contract naturally play a central role in such a regime. The individual liberties agenda of this earlier order was concerned primarily with "economic liberties and property rights" (35). In its constitutional manifestations, classical liberalism was particularly concerned with two problems, federalism and economic liberty. But the federal Constitution was not originally charged with protecting individual rights directly, being tasked rather with identifying the boundaries of federal and state power vis-à-vis each other. Thus, most of the relevant achievements of "The Old Court" (19) (the United States Supreme Court before 1937) were to be found it its commerce-clause and dormant-commerce holdings.

But then the serpent slithered into this edenic garden. Beginning in the late nineteenth century, Progressivism assaulted the constitutional order of classical liberalism in all its premises, attacking both doctrine and results. The old order did not expire on the spot; in fact its greatest triumphs still lay in the future: Lochner v. New York (1905), Adair v. United States (1908), Coppage v. Kansas (1915), Hammer v. Dagenhart (1918), and Adkins v. Children's Hospital (1923). But for reasons Epstein does not explain, and perhaps does not understand, Progressivism inexorably triumphed over its classical rival, displacing traditional beliefs with modern, antagonist ones. The only explanation that Epstein offers for this is that "the older conceptual scheme [that is, classical liberalism] did not collapse of its own weight. All that really happened was that several justices lost faith in it, without being able to show where it broke down" (66). (He does not specify who the apostates were.)

....

[P]artly because historians have failed him and partly because he does not seem to have been interested in making a historical inquiry in the first place, Epstein has provided us with nothing more than a conflict of shadows. Classical liberalism was slain by the ghostly apparition of the vague abstraction "Progressivism." But no real Progressives inhabit these pages. Brandeis and Frankfurter appear in cameo a few times, Pound, Woodrow Wilson, and Ernst Freund once each, but otherwise "Progressives" flit through these pages like the disembodied souls Odysseus encountered in Hades, nothing more substantial than shadows and sighs.

Read the full review here.

Ben Tillman Statue in South Carolina

Ah, there's more monument law in the news.

Just in time for the South Carolina primaries is a controversy about a statue of South Carolina politician (a symbol of the worst of Jim Crow for many), which is on the state house grounds. The story, from the South Carolina's The State newspaper is here (thanks to a pointer from feminist law prof Ann Bartow and one of the leading scholars of monument law).

Some want the statue removed:

“I just don’t think his statue should be on State House grounds,” said Rep. Todd Rutherford, D-Richland, noting Tillman for years made speeches about killing African-Americans who sought their rights.

Others would like to see a plaque that puts the statue into perspective:

“A plaque would stand a better chance of passage because it simply tells the truth,” said Rep. Joe Neal, D-Richland. “History is what it is, and there’s an argument that you can’t change it (by removing a statue). But what you can do is tell the truth.”

Among the many interesting issues these kinds of discussions raise are what meaning did the statue served to the people who put it up? Our friends at answers.com provided the image of the Tillman statue. You might notice that the writing on the base shows it was put up in 1940 by the "legislature, the Democratic Party, and private citizens of the state of South Carolina." Inscriptions are sometimes as useful in interpreting a monument as the images on it.

Levitt and Fryer on the Second Klan: Hatred and Profits

So one of the things that I want to do on this visit to to talk about recent scholarship.

I thought I'd talk first about the engagingly titled "Hatred and Profits: Getting Under the Hood of the Ku Klux Klan" by Steven Levitt and Roland Fryer. You may have seen this adoring piece on it in 02138 or Levitt's entry about it over at that Freakonomics blog last September. The paper is here if you're coming from a domain with a NBER subscription. If not, you can purchase it from ssrn for $5. Hey, these guys are economists. You expect them to give stuff away?!

Levitt said of the paper at Freakonomics blog:

More effort went into this paper, I believe, than any other paper I have ever written. Roland and I started this project five years ago and I wouldn’t be surprised if 10,000 hours were invested in it since then.

Wow; that's a truck-load of time. What did they get for five years worth of their research assistants' and their time?

Their abstract reads:

The Ku Klux Klan reached its heyday in the mid-1920s, claiming millions of members. In this paper, we analyze the 1920s Klan, those who joined it, and the social and political impact that it had. We utilize a wide range of newly discovered data sources including information from Klan membership roles, applications, robe-order forms, an internal audit of the Klan by Ernst and Ernst, and a census that the Klan conducted after an internal scandal. Combining these sources with data from the 1920 and 1930 U.S. Censuses, we find that individuals who joined the Klan were better educated and more likely to hold professional jobs than the typical American. Surprisingly, we find few tangible social or political impacts of the Klan. There is little evidence that the Klan had an effect on black or foreign born residential mobility, or on lynching patterns. Historians have argued that the Klan was successful in getting candidates they favored elected. Statistical analysis, however, suggests that any direct impact of the Klan was likely to be small. Furthermore, those who were elected had little discernible effect on legislation passed. Rather than a terrorist organization, the 1920s Klan is best described as a social organization built through a wildly successful pyramid scheme fueled by an army of highly-incentivized sales agents selling hatred, religious intolerance, and fraternity in a time and place where there was tremendous demand.

I love great titles and I deeply respect people who take on tough topics and say controversial things. I wonder if they are a little zealous with this statement: "Rather than a terrorist organization, the 1920s Klan is best described as a social organization built through a wildly successful pyramid scheme fueled by an army of highly-incentivized sales agents selling hatred, religious intolerance, and fraternity in a time and place where there was tremendous demand."

"Best described as"? And "the Klan's true genius lay in its uncanny ability to raise revenue." Hmm, I prefer a more moderate statement: the 1920s Klan was about profits and terror. It's harder to make comparative statements--that the Klan was more about profits than terror. To make that convincing, we need to measure the terror more effectively than only looking at lynchings and the out-migration of African Americans and foreign born people from counties with Klan members. That is, lynchings aren't a good measure of the Klan's effect. (And I'm not sure that lynchings measure all murders. For instance, the murder of the murder of Father Coyle in Birmingham in 1921 is often attributed in part to the hostile climate towards Catholics that the Alabama Klan fostered. Yet, even that extreme episode of violence isn't typically counted as a lynching.) There was a lot of lesser, but still significant, violence. We also need to know more than changes (or lack of them) in votes for Republicans and we need to know more about the political impact than the failure to pass state-wide legislation.

To illustrate some of the problems with this, let's take Oklahoma in the 1920s. I do not attribute, as some do, the terrible 1921 Tulsa riot (through which even the most conservative estimates acknowledge that dozens of people died) to the Klan. My sense is that the riot predated a lot of the Klan's popularity in Oklahoma; however, the riot helped to foster the growth of the Klan. And even though there were no lynchings in Oklahoma after the riot (when the Klan was most powerful), there were a lot of beatings and mutilations; many people run out of their homes (popularly known as "negro drives"). The Oklahoma governor declared martial law in Oklahoma in 1923 as a way of wresting control of the state from the Klan, at the time when many people acknowledged that a number of local officials, from prosecutors to police officers, to judges (and sometimes jurors) were Klan members. The military tribunals set up under martial law collected hundreds of pages of testimony about the Klan's violence. Of course, such claims served some of the governor's political purposes as well. I think the most obvious effects of the Klan are likely to be found at the local level, below the places that Levitt and Fryer look.

One of Levitt and Fryer's findings is that lynchings are declining as Klan membership is growing (page 21). This warrants some extended discussion. I'd like to suggest one interpretation. It's entirely possible, indeed likely, that the Klan is growing in part because of a perceived need to maintain white supremacy. So at a time when white supremacy is declining (as evidenced by a decline in lynchings), that may be precisely the moment when people feel the need to join the Klan. There is some literature along these lines, which talks about the all sorts of status anxiety issues in the 1910s and 1920s.

Before we're in a position to say that the Klan was more about some silly men dressing up like laughable Halloween characters, we need to have a very good estimate of the violence that they supported. Levitt and Fryer looked primarily at Pennsylvania, Colorado, and Indiana, rather than southern and southwestern states. As the quantitative reconstruction of our past continues, I hope there will be more studies like Levitt and Fryer and I look forward to further investigations of the Klan's violence. Their paper inspires me to go back to reexamine Oklahoma elections in the 1910s and 1920s.

While I'm on the topic of the Klan, I highly recommend Lisa Cardyn's excellent book-length study of the first Klan, which appeared in the Michigan Law Review in 2002. Here's a link to an excerpt. And I've written about the Klan in Oklahoma in the 1920s. Oklahoma, I think, gives us a sense of how the Klan’s members worked in conjunction with local law enforcement to create a macabre landscape that subjected African Americans, white women, immigrants, and even white men to threats of violence.

Al Brophy

Florestal, On the Origin of Fear in the World Trade System: Excavating the Roots of the Berlin Conference of 1884

Marjorie Florestal, McGeorge School of Law, has posted the abstract for a new article, On the Origin of Fear in the World Trade System: Excavating the Roots of the Berlin Conference of 1884. The article will appear in the 2007 Proceedings of the American Society of International Law. Here's the abstract:

Most experts trace the birth of international trade back to China's Old Silk Road, but Africa too has a long and rich history of commerce. Walk through any marketplace in Africa and evidence of the continent's commercial vibrancy and entrepreneurial spirit abounds. From a small village in Cameroon, to a miles-long bazaar in Côte d'Ivoire, African markets are alive with the shouts of merchants hoping to finalize a sale with a recalcitrant shopper. In Senegal, young boys roam the streets hawking cheap goods made in China to every pedestrian or unwary commuter stuck in one of Dakar's infernal traffic jams. And Benin's "Mama Benzes" keep the economy going while providing for their families in style.

Despite the many examples of its trade-focused and entrepreneurial spirit, however, Africa has failed to join the global economy in anything other than a consumer capacity. What accounts for Africa's failure to prosper from a globalization phenomenon that has brought benefits to countries as diverse as Costa Rica, India, China and Brazil? Some maintain Africans themselves are to blame, while others suggest Africa's woes can best be explained by a system that is inherently biased against it. While there is evidence to support both viewpoints, either taken alone represents at best only a partial truth. A full understanding of Africa's position in the modern economic order must also take into account the phenomenon of fear that permeates much of the continent's interaction with the world trade system.

Until very recently African countries were not a significant presence in the world trading system. What accounts for this hesitancy? "Africa does not want to develop," is the rather provocative response of African scholar Axelle Kabou. This rejection of development, according to Kabou, has its roots in sociological and psychological considerations. At least one of the "sociological and psychological" conditions to which Kabou refers, this article maintains, is fear.

The origin of the fear that dominates Africa and hampers its full engagement in the trade order has roots dating back to 1884. In November of that year, European, American and Australian leaders met to define Africa's role in the "community of nations". The Berlin West African Conference is remembered primarily for having drawn the map of modern Africa by carving up the continent into nation-states, but the conference has its true roots in economic rather than political history. The goal of the conference was to establish free trade as the guiding principle in large parts of the continent. Beyond establishing borders, it succeeded in legitimizing Africa's de facto position as a source of wealth to be exploited for the benefit of others. It is this single act that gave birth to modern Africa's fear and resistance to the globalization phenomenon. What elevates the Berlin Conference of 1884-1885 from a relic of history to a pathway towards understanding Africa's place in the world trade system is that the theoretical underpinnings of the conference to this day continue to animate the Western approach to African development.

Drawing on the rich but forgotten history of the Berlin Conference, as well as the emerging literature on law and emotion, this article re-conceptualizes Africa's place in the world trade order through a lens of fear first constructed by the conference. What is the shape, texture, depth and breadth of that fear? How might a full understanding of that fear help us adopt a new set of trade rules responsive to Africa's needs?

Burbank on The Class Action Fairness Act of 2005 in Historical Context

Stephen B. Burbank, University of Pensylvania, has posted a new article, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View. It is forthcoming in the University of Pennsylvania Law Review. Here's the abstract:

This article sets CAFA in the contexts of the history of federal diversity of citizenship litigation in general and, within that larger story, the history of diversity class actions in federal court. I consider whether changes in the litigation landscape since 1958, when Congress formally embraced corporate citizenship, might be thought to justify the changes in the balance of power in forum selection that CAFA brings about. Critical to my views in that regard are the failures of the Supreme Court effectively to police interstate forum shopping through constitutional control of personal jurisdiction or choice of law and the steroidal effect of the modern (post-1966) class action on the incentives that drive forum choice. I conclude that it was not unreasonable for Congress to assert a federal interest in regulating the process by which and the forums in which nationwide and multistate class action decisions are made. To be sure, the interest in question bears little relation to the historic account of diversity jurisdiction with which we are familiar. But, as Section IV demonstrates, it is consistent with the policy that the Supreme Court in fact pursued when umpiring ordinary diversity litigation in the late nineteenth and early twentieth centuries, and consistent as well with the policy that Congress pursued in its 1958 amendments to the diversity statute.

I reach a very different conclusion with respect to the numerous class actions within CAFA's reach that are not in any meaningful sense "multistate." The 1958 Congress left in place (if it did not enhance) the instruments of countervailing power for plaintiffs that had developed in the system and that made the fictions of corporate citizenship tolerable. The 2005 Congress dismantled those instruments in order to open federal courts to multistate class actions. It conveniently forgot them when it came time to fashion exceptions. In the process, Congress neglected the critical role they played in equilibrating not just plaintiffs' and defendants', but federal and state, interests. Ultimately, a combination of special interest overreaching, abetted by the fictions of corporate citizenship, and confusion about legislative aims, abetted by the institutional federal judiciary's schizophrenia regarding overlapping class actions, led Congress to lose sight of its duty, when fashioning CAFA's exceptions, to preserve the "happy relation of States to Nation."

Saul Cornell's The Second Amendment Goes to Court

The February 2008 issue Ohio State University's enewsletter, Origins, features Professor Saul Cornell's article "The Second Amendment Goes to Court." The editors of Origins observe:

For the first time in nearly three quarters of a century, the Supreme Court has agreed to hear arguments in a case involving gun control and the 2nd amendment. The case comes amidst swirling scholarly debates over the history and meaning of the 2nd amendment. In this month's essay, Constitutional historian Saul Cornell describes the shifting nature of 2nd amendment scholarship over the last several years, and grounds the 2nd amendment more fully in its historical context.

The article is here; and a podcast of Cornell's paper is here.

Berger-Howe Fellowship in Legal History at Harvard

Raoul Berger-Mark DeWolfe Howe Fellowship in Legal History, 2008-09
Harvard Law School

Deadline: February 1, 2008

Harvard Law School is seeking fellows who have a JD degree, who have completed the required coursework for their doctorate degree, or who have recently been awarded the doctorate degree. A JD is preferable, but is not required. We will also consider applicants who are beginning a teaching career in either law or history. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period. Fellows are expected to spend the majority of their time on their own research. They are also help to coordinate the Legal History Colloquium, which meets four times each semester. The Berger Fellow is invited to present their own work. Fellows will be required to be in residence at the Harvard Law School during the academic year (September through May).

Applications should include a cover letter, curriculum vitae, relevant transcripts, a research proposal (no more than five pages), and at least two academic recommendations. Writing samples are welcome.

Please address your application to Professor Jed Shugerman, Harvard Law School, Cambridge, MA, 02138. Applications by email are preferable. Please send them to Professor Shugerman's assistant Carol Igoe at cigoe@law.harvard.edu

Further information is here, or contact:
Carol Igoe
Harvard Law School
Griswold 4 North
Cambridge, MA 02138
617-495-4863
cigoe@law.harvard.edu