Sirico on How the Separation of Powers Doctrine Shaped the Executive

How the Separation of Powers Doctrine Shaped the Executive is a new paper by Louis J. Sirico Jr., Villanova University School of Law. Here's the abstract:

This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates.

At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for second term, removing the Executive, devising the Executive veto, requiring legislative advice and consent for executive appointments, authorizing the Executive to grant reprieves and pardons, and making the Vice President the President of the Senate.

The Article demonstrates that much of the discussion centered on allocating power between the Legislative and Executive branches and thus really amounted to a struggle over defining the nascent office of the Executive. It thus offers the historical background for today's debates over separation of powers. For the Founders, separation of powers served not as a rigid rule, but as a functional guide, designed to help construct a working constitution with a workable executive branch.

Words, Pictures, and a Connection

Mark Hildesly, a seventeenth-century English barrister, left behind a manuscript full of religious exhortations and overstuffed poetry celebrating the sober character “jurisprudent.” Asking himself whether “exerting of books or babies are best becoming a jurisprudent,” he came down in favor of books. Hildesly also doodled in the margins—a ship and a woman in profile. The doodles made Hildesly more real than the “jurisprudent” poems soberly singing of babies forgone. The poems made Hildesly seem like a source, the doodles like a man.

Wuerth, An Originalism for Foreign Affairs?

An Originalism for Foreign Affairs? is a new article by Ingrid B. Wuerth, Vanderbilt University Law School. It is forthcoming in the St. Louis University Law Journal. Here's the abstract:

Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short article describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it comes to many of constitutional issues that arise in the foreign affairs area. Originalists could clarify and strengthen their normative arguments if they focused greater attention on foreign affairs, particularly non-judicial constitutional interpretation, the relationship between executive and congressional power, and consequentialist problems that arise in this context. For foreign relations scholars, particularly those focused on history, this contribution is meant to encourage greater engagement with the methodology of contemporary constitutional interpretation.

Policy History Conference & Law and Society

I am off to the Policy History Conference in St. Louis, and then on to Law and Society in Montreal. I don't expect to have much time to blog about the meetings, unfortunately. But if you're there and you're a reader, please say hello!

Desegregation as a Cold War Imperative, now on SSRN

When Desegregation as a Cold War Imperative was first published in November 1988 in the Stanford Law Review, a graduate student I met at a conference asked why on earth I had published it somewhere that made it so difficult to find! I was told that grad students, without access to legal research tools, passed dog-eared copies to each other. The article has since been anthologized, and of course I've done more work in the area, but many outside the law school world never came across the article.

Inspired by Paul Finkelman, Kurt Lash and others, I've decided it's time to try to make my SSRN listing more comprehensive by posting earlier articles. This seems particularly important for interdisciplinary scholars whose work appears in different sorts of indexes (law and humanities). Putting it on-line means that researchers across the divide can find it in one place. I did not post this earlier because I didn't have permission to do so, but was able to get permission to do it now.

Here's the abstract:

Desegregation as a Cold War Imperative by Mary L. Dudziak, University of Southern California Law School, Stanford Law Review (1988).

At the height of the McCarthy era, when Congressional committees were exposing "communist infiltration" in many areas of American life, the Supreme Court was upholding loyalty oath requirements, and the executive branch was ferreting out alleged communists in government, the U.S. Attorney General filed a pro-civil rights brief in what would become one of the most celebrated civil rights cases in American history: Brown v. Board of Education. Although seemingly at odds with the restrictive approach to individual rights in other contexts, the U.S. government's participation in the desegregation cases during the McCarthy era was no anomaly. Rather, by the early 1950s, American leaders had come to believe that civil rights reform was crucial to the more central U.S. mission of fighting world communism. Based in part on diplomatic research in State Department archives, this article demonstrates that Cold War motives influenced the U.S. government's involvement in Brown and other cases.

Originally published in 1988 in the Stanford Law Review, this article was the first publication to use State Department records to examine the relationship between Cold War foreign relations and civil rights in the United States. Diplomatic records illustrate the growing concern among American diplomats and political leaders after World War II about the impact of race discrimination on the U.S. image around the world, and the global critique that the United States could not be an effective "leader of the free world" as long as the nation blatantly denied rights to its own peoples. This research confirmed the suspicions of Derrick Bell and others who argued before these records were opened that foreign affairs affected U.S. government civil rights policies, and it helped illuminate the world-wide impact of the civil rights movement. This research was expanded upon in Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton University Press, 2000), and in books and articles by other scholars. The larger body of work on race and foreign relations is an important aspect of efforts by historians to internationalize the study of American history.

Thanks to the Stanford Law Review, the article is now available on SSRN so that it will be easily accessible on-line.

McQueen on Corporations Law in the Colonies

The Flowers of Progress: Corporations Law in the Colonies is a new article by Rob McQueen, Griffith University. It is forthcoming in the Griffith Law Review (2009). Here's the abstract:

In the British colonies from the latter part of the nineteenth century one of the major indicia of whether a colonized economy was 'modernized' was the presence of company laws modelled on the English Companies Act. This paper examines the manner in which during the colonial period companies legislation in a number of colonial locales was often highly politicised rather than being 'apolitical' in nature. It is little noted in histories of company's law that in the colonies the legislation often had 'special' provisions inserted to accommodate 'special' circumstances existing in particular colonies. The presumed apolitical nature of companies laws is belied by practices such as typing companies by race in South Africa and, due to a distrust amongst colonists of indigenous Indian directors the use of the managing agent system in Indian companies law up to the time of independence.

This paper also examines the responses of indigenous political and business leaders to companies at the time of decolonisation. Of particular interest are the attitudes of these leaders to the possible effects of this introduced legislative regime on traditional business structures and also their possible concerns as to the potential this legislation might hold for 'foreigners' being able to acquire significant influence locally through large shareholdings in local companies. In this respect the paper particularly focuses on Basutoland/Lesotho and the manner in which the introduction of 'modern' companies laws was discussed at the moment of decolonisation. The paper then traces the manner in which those laws have influenced subsequent economic developments in Lesotho and the salience or otherwise in hindsight of local leaders comments on the legislation at the point of decolonisation.

New Book: Fletcher, American Indian Education

American Indian Education: Counternarratives in Racism, Struggle, and the Law by Matthew L.M. Fletcher, Michigan State University College of Law has just been published by Routledge. The author has posted the Introduction and Table of Contents on SSRN. Here's the book description:

America Indian culture and traditions have survived an unusual amount of oppressive federal and state educational policies intended to assimilate Indian people and destroy their cultures and languages. Yet, Indian culture, traditions, and people often continue to be treated as objects in the classroom and in the curriculum. Using a critical race theory framework and a unique "counternarrative" methodology, American Indian Education explores a host of modern educational issues facing American Indian peoples¿from the impact of Indian sports mascots on students and communities, to the uses and abuses of law that often never reach a courtroom, and the intergenerational impacts of American Indian education policy on Indian children today. By interweaving empirical research with accessible composite narratives, Matthew Fletcher breaches the gap between solid educational policy and the on-the-ground reality of Indian students, highlighting the challenges faced by American Indian students and paving the way for an honest discussion about solutions.

New book: Wittern-Keller, Freedom of the Screen: Legal Challenges to State Film Censorship, 1915-1981

"This fascinating study helps us to understand the way American society evolved from general acceptance of movie censorship to a strong rejection of it," writes Robert Brent Toplin about the new book FREEDOM OF THE SCREEN: Legal Challenges to State Film Censorship, 1915-1981 by Laura Wittern-Keller. Toplin, author of History by Hollywood: The Use and Abuse of the American Past, continues:

The author shows how Americans began to recognize that filmmakers, like the creators of books and newspapers, ought to enjoy the right of free speech under terms of the First Amendment. Wittern-Keller's well-researched investigation of the fight against censorship makes an important contribution to U. S. social, legal, and political history.

In the area of freedom of expression, we often focus on battles in the Supreme Court. This book covers important Supreme Court cases, but also brings the struggle down to the state level, illuminating battles over film censorship carried on in the states. Here's the University Press of Kentucky book description:

Between 1907 and 1980, many state and local governments empowered motion picture censor boards with the legal authority to keep any movie they considered obscene, indecent, or harmful from being shown. Although the mainstream American film industry accepted the form of censorship known as "prior restraint," independent distributors and exhibitors challenged the government censors in court.

In Freedom of the Screen, Laura Wittern-Keller tells the story of those who fought prior restraint on movies. By drawing attention to this inequity--film was the only medium so constricted by the 1950s--the distributors pushed a reluctant judiciary to square its interpretation of movie expression with the rights of other media. As these legal interpretations gradually became more sympathetic to artistic freedom--largely because of the independent distributors' lawsuits--Hollywood was free to discard its outmoded restraints and deliver provocative, relevant movies to American audiences.

Laura Wittern-Keller is visiting assistant professor of history and public policy at the University at Albany (SUNY) and the recipient of the New York State Archives Researcher of the Year award.

And here's a second endorsement:

The author's research is prodigious and fills a significant gap in the field. All who are engaged in this field will have to incorporate her findings into their stories of movie censorship. . . . This reference is needed and will be much appreciated by historians, film studies specialists, and legal scholars for decades to come. A heroic effort.

--Francis G. Couvares, author of Movie Censorship and American Culture

The press has a nice website for the book, with links to descriptions of Major Court Cases Involving Film Censorship and to three interviews with the author. A press release is here. And this is the first example I've seen in which the press website offers a steeper discount on a new book than the usual on-line sources, making the new hardback affordable. The only production draw-back is that, most unfortunately, the press did not include photographs inside the book. Your library may have overlooked this one, in spite of its award-winning research, and simply because the press is not particularly high-profile, so send a link to your favorite librarian.

Attaway on the 7th Circuit, the history of banking and state regulation of federal thrifts

Cracking the Door to State Recovery from Federal Thrifts is a recent essay by Daniel M. Attaway, who receives his J.D. this month from Chicago-Kent College of Law. It appears in the Seventh Circuit Review (2007). There is much history in this piece, as signaled by my favorite part -- the title to Part II: THE COMPLETE HISTORY OF U.S. FEDERAL BANKS (ABRIDGED). Here's the abstract:

In the midst of the Great Depression, Congress created the Office of Thrift Supervision ("OTS") to oversee and regulate the federally chartered thrift industry. Congress granted the OTS the power to create regulations to examine thrifts, ensure they were sound, and to preempt state laws affecting their operations, but not the power to provide remedies to a thrift's customers. Over the next 70 years, the courts consistently interpreted Congress' grant of regulatory authority as plenary - preempting almost any state law that affected, even minimally, the operation of a federal thrift. The Seventh Circuit, in In re Ocwen Loan Servicing, LLC Mortgage Servicing Litigation, reinterpreted the regulations governing when a state law may incidentally affect thrift operations. More importantly, the court went further than other courts in opening the door to state regulation. While nominally applying the same precedent, the court fluidly interprets the meaning of what it means to "incidentally affect" lending operations of a federal thrift. The court's analysis allows it to nominally follow precedent while increasing court and state oversight of federal thrifts. The court effectively cracks the door to a more active role for the states in ensuring consumers are protected and that banks are ultimately held accountable when they fail to uphold fair business ethics.

Just published: Bank, Stark and Thorndike, War and Taxes

War and Taxes, by Steven A. Bank, Kirk J. Stark, and Joseph J. Thorndike has just been published by the Urban Institute Press. I haven't seen this book yet, but it is on my summer reading list. A book on this topic is welcome, since tax policy is one way that war-related statebuilding is accomplished.

Here's the book description:

"The history of America’s tax system can be written largely as a history of America’s wars.”

During World War II, Americans were urged to ration food, raise money, and accept higher taxes. After September 11, we were given tax cuts and asked to shop. Has the United States broken a noble tradition of fiscal sacrifice with the current, unprecedented wartime tax cuts, or are they the mark of new economic, and social forces at work? War and Taxes weighs the question by considering six conflicts that span the American Revolution to the present war in Iraq.

And the blurbs:

“War and Taxes complicates the U.S. mythology of shared sacrifice during war. Rich in history, lucid in style, War and Taxes reveals that national leaders have asked Americans to shoulder heavier wartime fiscal burdens from the Revolutionary War to the war in Iraq. The book also reveals, however, a strong historical undercurrent of resistance to wartime taxation. Thus, while it is fair to criticize the Bush administration for prosecuting the war in Iraq with borrowed money and by shifting the huge price tag to future generations, War and Taxes shows that previous generations of Americans also had a penchant for shifting fiscal burdens forward in time.”
—Dennis J. Ventry Jr., Assistant Professor of Law, American University, Washington College of Law

“Rarely does a work of history illuminate the present as much as War and Taxes. This fascinating account of the politics of American wartime taxation from the Revolution through the Iraq conflict shows that the Bush administration’s policy of cutting taxes while waging war marks an abrupt departure from the strong, but often fiercely contested, American tradition of fiscal sacrifice. It’s a must-read for those interested in taxation, war, and how each shapes the other.”
—Joel Slemrod, Paul W. McCracken Collegiate Professor of Business Economics and Public Policy and Director, Office of Tax Policy Research, University of Michigan

The Table of Contents is here. Read the introduction here.

Nelson on the History of Judicial Review of Legislative Purpose

Caleb Nelson, University of Virginia, has a new article, Judicial Review of Legislative Purpose. It is forthcoming in the New York University Law Review (December 2008). Here's the abstract:

When modern American courts assess the constitutionality of a statute, they often investigate the possibility that the enacting legislature had hidden purposes that make the statute invalid. For most of our history, though, courts shied away from such inquiries--not because the Constitution was thought to impose no purpose-based restrictions on legislative power, but because those restrictions were not thought to lend themselves to much judicial enforcement. This Article provides a comprehensive history of changes over time in judicial review of legislative purpose. Given the increasing prominence of purpose tests in modern constitutional adjudication, this history is important in its own right. But it also sheds light on other topics of interest to modern lawyers, including the proper interpretation of various seminal precedents, the famously murky doctrine of "unconstitutional conditions," and the ways in which uncodified norms of judicial practice can affect the glosses that courts put on the Constitution's text.

The Death of the Critic?

In yet another round of the print-vs-blog debate, Salon features a discussion of the state of book critics, including Ronan McDonald's views on the subject in the new book The Death of the Critic. Salon's discussion between Louis Bayard and Laura Miller, paralleling McDonald's book jacket, opens with a photograph of a man face down at his desk, surrounded by piles of books, a knife in his back. Who dealt this blow? Was it bloggers, or was it another contemporary bugaboo, cultural studies?

McDonald argues that it is the latter. As Bayard, summarizing McDonald, puts it, "By treating literature as an impersonal text from which any manner of political meaning can be wrung, cultural studies professors have robbed criticism of its proper evaluative function -- the right to say this is good, this isn't, and here's why." But the trashing of the idea of a canon "has created a kind of inverse reaction: People are now hungering to be told what's good."

Miller and Bayard take up the question of whether the "democratization" of criticism -- on blogs and elsewhere -- has downgraded it. For Miller, there is "no real causal connection between the blogosphere and the withering away of newspaper criticism, actually. It has more to do with the economics of newspaper publishing and management and editors feeling that criticism is disposable because it's not reporting, which they see as a newspaper's core product."

Ultimately Miller and Bayard take up whether the real problem is "the death of the reader," and whether academics are, in part, at fault in that. But with Publishers Weekly reporting that book sales in the United States have risen in 2008, those dead readers seem to be buying a lot of books!

The Death of the Critic is also reviewed in the Boston Globe and the Times Literary Supplement.

Zelden on Why We Need to Take the 2000 Election and the Ruling in Bush v. Gore Seriously

The Case that Must Not Be Named: Why We Need to Take the 2000 Presidential Election and the Ruling in Bush V. Gore Seriously is a recent article by Charles L. Zelden, Farquhar College of Arts and Sciences. It appears in the Oklahoma City University Law Review (2007). Here's the abstract:

Bush v Gore. Just whisper the name of the case that ended the 2000 presidential election and you are likely to get one of three responses: A yawn of active indifference (not that again), teeth-grinding anger at the Supreme Court and the presidency of George W. Bush (let me tell you . . .), or an eye-roll of frustration (Get over it already, Bush won!). Two things tie these disparate responses together - their shared disdain for the event and their tendency to treat the case in only the most superficial, dismissive, and unwelcoming ways.

Sadly, such has become the norm when Bush v. Gore is discussed - if it is discussed at all. In many ways and on many levels, Bush v. Gore has become - as Adam Cohen of the NYT put it - the case that must not be spoken of. The anger and frustration over the Supreme Court's ruling (and/or over the reactions to this ruling) lie too deep for the sort of sober reflection a case of this importance deserves. So most of us just ignore the whole event as a bad memory.

Such willful historical amnesia about a pivotal electoral and constitutional crisis resolved by an unprecedented and controversial Supreme Court decision is a mistake, however. The events of 2000 were, to use Thomas Jefferson's famous description of the controversy over slavery, a firebell in the night - a warning that bad things were happening and that, if not faced and responded to, would produce catastrophic results. The content of this warning, however, was not about an out of control Supreme Court or the hubris of judicial overreach. Rather, at its core, the lessons of Bush v. Gore are about a broken electoral system and the dangers this poses to American democracy.

This article, based on a speech given at the Oklahoma City University Law School, explores some of the lessons we should be drawing from the events of November and December 2000. It sets out the problems exposed by events in Florida and shows how these problems have continued uncorrected to the present and ends with a discussion of potential reforms to fix what is broken.

In the year after the 2000 election, there was much written about it, but this was all eclipsed in the aftermath of September 11, 2001 -- just as a spate of Bush v. Gore books and articles was coming out. Perhaps the juxtaposition of these historical moments explains some of the absence of discussion that Professor Zelden experiences. My favorite works in that early literature, though not on Zelden's important point about electoral reform, are Howard Gillman, The Votes that Counted: How the Court Decided the 2000 Election (Univ. of Chicago Press, Oct. 2001), and Mark Tushnet, Renormalizing Bush v. Gore: An Anticipatory Intellectual History, Georgetown Law Journal (Nov. 2002).

Vladeck on The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia

The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia is a new essay by Stepehn I. Vladeck, American University Washington College of Law. It will appear in Green Bag 2d (Summer 2008). Here's the abstract:

In his dissent in INS v. St. Cyr, Justice Scalia raised what remains perhaps the most perplexing question concerning Congress's power over the habeas corpus jurisdiction of the federal courts: if Congress never had to create a statutory cause of action for habeas corpus in the first place, how could a statute purporting to divest the federal courts of jurisdiction over certain habeas petitions violate the Constitution's Suspension Clause? As Scalia suggested, "[i]f . . . the writ could not be suspended within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet."

In drawing parallels between the Supreme Court's mandamus and habeas jurisprudence, this short essay explains how Justice Scalia's one-way ratchet is actually a misnomer, and is instead the result of a trap Congress unknowingly set for itself. To give away the punch-line, a series of early nineteenth-century cases concerning the common-law writ of mandamus illustrates a point lost on conventional courts and commentators alike: the constitutional problem raised by habeas-stripping statutes does not arise from their constriction of the jurisdiction of the Article III courts. The problem is that a separate (and completely neglected) Act of Congress constrains the power of the one court that would otherwise be left to hear a federal detainee's habeas petition absent Article III review: the Superior Court of the District of Columbia. And although the analysis contained herein might strike the reader as pedantic (if not entirely semantic), such a conclusion has significant implications for sorting out the competing viewpoints in the continuing debate over Congress's power to restrict access to the writ of habeas corpus.

Moyn on Jacques Maritain, Christian New Order, and the Birth of Human Rights

Samuel Moyn, Columbia University, has posted a new paper, Jacques Maritain, Christian New Order, and the Birth of Human Rights. Here's the abstract:

This paper traces some changes in Catholic political theory eventually taken up and extended during World War II by Jacques Maritain, who became the foremost philosophical exponent of the idea of "human rights" on the postwar scene. I show that the invention of the idea of the "dignity of the human person" as embedded in the Universal Declaration of Human Rights occurred not in biblical or other longstanding traditions, but instead in very recent and contingent history. In conclusion, I speculate on what the restoration of Maritain's route to human rights to its proper contexts might suggest about the cultural meaning the idea had in postwar Continental Europe, which became its homeland.

Moyn elaborates in the paper's introduction:

Jacques Maritain, the Catholic philosopher and publicist, was the highest profile thinker to defend the concept of human rights in the immediate postwar period, the era of their framing in the Universal Declaration and embedding in European identity. What I would like to analyze in this essay is how this once reactionary critic of rights transformed into their champion. The basic argument is that this shift has to be correlated with overall ideological change in Catholicism, in which dominant old political options disappeared and new ones were needed. They were created, not simply adopted from elsewhere: Maritain – who castigated the language of rights through the late 1930s – changed them through his turn to them as much as they changed him. And his personalist and communitarian recasting of the language as a new option for Christianity helps explain why commitments to human dignity and human rights could become as prominent as they did in the postwar European order.

For we must give up once and for all the idea that the history of human rights is a story in which a static liberal doctrine rises slowly over time, its degree of external acceptance (and the failure of external alternatives to it) the main story unconnected to any sense of its internal plasticity and ideological reinvention. In a recent book, Jay Winter has proposed that the Universal Declaration of Human Rights be seen as a “utopia,” albeit in a minor key. If so, what matters is whose utopia it was, and with what content, at the moment of its formulation and at different stages of its reception. I will try to argue that, in terms of the cultural meanings that the concept had in the beginning, human rights reflected most centrally the ideology of "personalist humanism.”

This ideology, the intellectual backbone of the larger postwar European politics of human dignity, not only cannot be left out when pondering the original meaning of human rights, but was arguably their most determining constituent.

The Roberts Court and Thurgood Marshall's Legacy

This op-ed appeared on History News Network and in the Los Angeles Daily Journal. It is cross-posted at Balkinization.

The recent anniversary of Brown v. Board of Education falls nearly 100 years since the 20th century's greatest civil rights lawyer, Thurgood Marshall, was born (July 2, 1908). Brown was a milestone in the nation's civil rights history; the case also christened Marshall, the plaintiff's lead attorney, as "Mr. Civil Rights." Not long after, Marshall would be eclipsed by a new generation of civil rights leaders. His greatest disappointment, however, was to see the court that decided Brown turn away from his legacy.

The Supreme Court's dismantling of Brown has been on display most recently in a ruling last year involving school districts that adopted voluntary plans designed to maintain racial diversity in their schools. In Parents Involved in Community Schools v. Seattle School District last June, the court reviewed such a plan under its most stringent constitutional test: strict scrutiny. The efforts of a school board to keep schools integrated were scrutinized in the same way as the efforts of past school boards to keep schools segregated, as if they were the same. Facing this steep hurdle, the plan was struck down.

The court's approach was not inevitable, but a path in this direction was laid years earlier, when Marshall was on the court. Regents of the University of California v. Bakke, the court's first affirmative action case, took up the question of whether racial classifications intended to remedy discrimination should be measured by the same standard as racial classifications meant to harm racial minorities. The University of California's program was faulty, but in Bakke and later cases, the court's increasingly broad use of strict scrutiny meant that the court, and not the political branches, would set the terms of efforts to undo decades of discrimination. In many contexts, it became illegal to take race into account even in efforts remedy discrimination.

The Bakke decision prompted a bitter dissent from Marshall, the nation's first African-American justice. "Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery," he wrote. "The slave was deprived of all legal rights," and "the system of slavery brutalized and dehumanized both master and slave." The Civil War changed things but, Marshall argued, freedom did not bring African-Americans equality. Instead, "slavery was replaced by a system of laws which imposed upon the colored race onerous disabilities and burdens ... to such an extent that their freedom was of little value." Tracing the long and difficult history of race discrimination, Marshall concluded that in 1978, the position of African-Americans was "the tragic but inevitable consequence of centuries of unequal treatment." Meaningful equality remained "a distant dream."

For Marshall, this context mattered when the court took up government efforts to remedy race discrimination. "In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order," he argued. "To fail to do so is to ensure that America will forever remain a divided society." Taking race into account to remedy discrimination was not suspect. Instead it was an imperative.

Marshall's argument in Bakke belies the current court's efforts to wrap its very different vision in Brown's legacy. Chief Justice John Roberts argued last spring that he and Marshall were on the same page, that the plaintiff's attorneys in Brown supported the idea that all racial classifications should be equally suspect. This prompted a response from Robert Carter, Marshall's co-counsel and now a retired federal judge, who the chief justice had quoted in his opinion: "All that race was used for" at the time of Brown "was to deny equal opportunity to black people," he said. "It's to stand that argument on its head" for the court "to use race the way they use it now."

The Roberts court abstracted Brown from its painful historical context, a context that Marshall pressed on the court in Bakke.

At a time when political pundits suggest that the Barack Obama candidacy portends a post-racial America, Brown's recent anniversary date, May 17, should be a time to remember that, in moving forward, the nation cannot escape its past. This year, for Marshall's 100th birthday, on Brown's anniversary we should reflect on Marshall's admonition: "It must be remembered," he wrote in Bakke, "that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier."

Mary L. Dudziak is Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at USC. Her newest book is "Exporting American Dreams: Thurgood Marshall's African Journey."

Henning on the History of the Mail Fraud Statute

Peter J. Henning, Wayne State University Law School, has posted an article, Maybe it Should Just Be Called Federal Fraud: The Changing Nature of the Mail Fraud Statute. It appeared in the Boston College Law Review (1995). Here's the abstract:

This Article reviews the history of the mail fraud statute and the provisions early relationship to protecting the mails from misuse. It then analyzes the Supreme Court's contradictory opinions that have sought to explain the relationship between the fraudulent scheme and the mailing. The Article evaluates the effect of Congress's two most recent amendments to the statute: first, a new statute that in large part overturned the Supreme Court's restrictive interpretation in McNally of the scheme to defraud element by the adoption the right of honest services provision; second, a 1994 amendment that sheds the last vestige of limitation on the mail fraud statute to protect the integrity of the mails. The Article addresses important interpretive issues that courts should consider in determining how far Congress intended to extend federal jurisdiction over fraudulent schemes. I recommend the proper scope of federal jurisdiction for fraudulent schemes involving the use of interstate carriers that comports with the language chosen by Congress in expanding the statute. I conclude that Congress has effectively enacted the Federal Fraud Statute without debate or even consideration of the need for such a provision.

Spivack, The Woman Will be Out: A New Look at the Law in Shakespeare's Hamlet

The Woman Will be Out: A New Look at the Law in Shakespeare's Hamlet is a new article by Carla Spivack, Oklahoma City University School of Law. It is forthcoming in the Yale Journal of Law and the Humanities. Here's the abstract:

Many readers have noted the abundant references to law in Shakespeare's Hamlet. Indeed, a whole sub-genre of criticism has developed around the question of whether Shakespeare's knowledge of law, as reflected in this play and others, is detailed and extensive enough to indicate legal training. These critics, however, have so far lacked scholarly backgrounds in Early Modern English literature and culture, and thus fail to connect the legal language and themes of the play to its other concerns about gender and rule. By the same token, literature scholars writing about the play have lacked backgrounds in English legal history. Bringing both perspectives to bear, I show that the play's legal allusions are closely related to its other concerns about gender, and that these themes in turn partake of changes in the broader culture, namely, the end of the forty-year reign of Elizabeth, a woman ruler, and an ensuing backlash against female political power. In sum, I will show that placing the play's legal references in context reveals that they are part of a process of ejecting the feminine from the political realm.

Image credit.

Hutchinson on Racial Exhaustion

Racial Exhaustion by Darren Lenard Hutchinson, American University, Washington College of Law takes up the important issue of the impact of politics and culture on law. The article is forthcoming in the Washington University Law Review (2008-2009). Here's the abstract:

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme Court have all taken a skeptical stance towards claims of racial injustice by persons of color and have resisted demands for tougher civil rights laws and race-based remedies. They have viewed these policies as: (1) unnecessary, given the eradication of racism and the prior implementation of formal equality measures; (2) excessive in terms of substance or duration; (3) futile because the law cannot alter racial inequality; (4) misguided because nonracial factors explain racial disparities; and (5) unfair to whites and a special benefit for persons of color. Adhering to these beliefs, a majority of the public has reached a point of racial exhaustion.

This Article argues that the public's racial exhaustion did not recently emerge, and it is a product of a hard-fought and successful battle against racial subjugation. Instead, throughout history, opponents of racial justice measures have invoked this discourse to contest equality measures and to portray the United States as a post-racist society, even when efforts to combat racial hierarchy were in an embryonic state and persons of color lived in extremely vulnerable political, social and economic conditions. To elaborate this claim, this Article examines political resistance to civil rights legislation and remedies immediately following the Civil War and during Reconstruction, after World War II and through the Cold War era, and in contemporary political and legal discourse in order to demonstrate the persistence of racial exhaustion rhetoric. This Article then considers how social movement actors, civil rights lawyers and theorists, and scholars interested in the interaction of law and rhetoric could respond to the persistent portrayal of racial egalitarianism as redundant and unfair by dissecting the premise of these claims, placing them in an historical context, and, if necessary, by strategically modifying their arguments to focus on class and other structural barriers that correlate or intersect with racial inequality. Despite the presumptive constitutionality of class-based remedies, political opposition to social welfare policies and the depiction of these programs as handouts to undeserving individuals - including persons of color - might limit the efficacy of economic approaches to racial inequality. Moreover, the intersection of race and poverty suggests that class-based remedies alone might not adequately address racially identifiable material inequity.

Special Issue on The Constitution and Public Policy in U.S. History

The Winter 2008 Special Issue of the Journal of Policy History is out, but it seems not to be available on-line. The topic is The Constitution and Public Policy in U.S. History, and co-editors are Julian Zelizer, Princeton, and Bruce Schulman, Boston University. I participated in the superb conference where these papers were presented, and I think readers will find this to be an interesting and high-quality collection.

Here's the table of contents:

Introduction - Bruce Schulman and Julian Zelizer

Idea or Practice: A Brief Historiography of Judicial Review - Mary Bilder (recently posted on SSRN)

From Blood to Profit: Making Money in the Practice and Imagery of Early America - Christine Desan

Necessities of State: Police, Sovereignty, and the Constitution - Christopher Tomlins

Constitutional Revision and the City: The Enforcement Acts and Urban America, 1870-1894 - David Quigley

"The Least Vaccinated of Any Civilized Country": Personal Liberty and Public Health in the Progressive Era - Michael Willrich

Forging Fiscal Reform: Constitutional Change, Public Policy, and the Creation of Administrative Capacity in Wisconsin, 1880-1920 - Ajay Mehrotra

Woodrow Wilson and a World Governed by Evolving Law - John A. Thompson

The South Confronts the Court: The Southern Manifesto of 1956 - Anthony Badger

State Constitutionalism and the Death Penalty - Alan Rogers

The Equal Rights Amendment Reconsidered: Politics, Policy, and Social Mobilization in a Democracy - Donald T. Critchlow and Cynthia L. Stachecki

Governance and Democracy: Public Policy in Modern America - Morton Keller

The Historical Society conference, June 5-7 in Baltimore

The Historical Society's 2008 conference is coming up June 5-7 in Baltimore, Maryland. The theme this year is Migration, Diaspora, Ethnicity, & Nationalism in History. Many conference papers are available at the links below, with more in the full program. The next meeting is in 2010.

Highlights include:

THE CHRISTOPHER LASCH LECTURE
Richard Salvucci, Trinity University
“Pricing Peace, Property, and Friendship: Mexico, the United States, and the Treaty of Guadalupe-Hidalgo, 1848”

NEW SCHOLARSHIP ON THE POST-CIVIL WAR ERA
Moderator: Peter Coclanis, University of North Carolina, Chapel Hill
Michael W. Fitzgerald, St. Olaf College, “Reconstruction Revisited: African-American Politics in Modern Context”
Susan O’Donovan, Harvard University, “Women, Work, and Reconstruction: Questions of Gender in a Free-Labor System”
Michael A. Ross, Loyola University, New Orleans, “The Supreme Court and the Retreat from Reconstruction: An Assessment of Twenty Years of Scholarship”

AFRICAN AMERICANS IN THE ERA OF THE GREAT WAR
Moderator: Melvyn Dubofsky, SUNY Binghamton
Steven Reich, James Madison University, “The Great Migration and Literary Imagination”
Chad Williams, Hamilton College, “African-American Soldiers and the First World War: Class, Citizenship, and the Meanings of Military Service”
Robert H. Zieger, University of Florida, “‘Grudgingly, Unwillingly, Almost Insultingly’: Racial Progress in the Era of the Great War”
Comment: Melvyn Dubofsky, SUNY Binghamton

THE DILLINGHAM COMMISSION ON U.S. IMMIGRATION
Moderator: Robert Zeidel, University of Wisconsin, Stout
Yael Schacher, Harvard University, “Contrarian Expertise: Isaac Hourwich’s Immigration and Labor (1912)”
Melanie Shell-Weiss, Johns Hopkins University, “Workers and Citizens: The Debate over Black Immigrants and the Southern Economy”
Katie Benton-Cohen, Georgetown University, “The Ambivalence of Race: The Dillingham Commission and Mexican Immigrants”
John M. Lund, Keene State College, “Vermont Nativism: William Paul Dillingham and U.S. Immigration Legislation”

MOVING CIVIL RIGHTS HISTORY IN NEW DIRECTIONS
Moderator: Eric Arnesen, University of Illinois at Chicago
Risa Lauren Goluboff, University of Virginia School of Law“The Lost Promise of Civil Rights” Thomas J. Sugrue, University of Pennsylvania“Black Power, Civil Rights, and Conservatism: The Strange Origins of Community Economic Development”
Carol E. Anderson, University of Missouri, Columbia“Eyes Off The Prize: The NAACP and Political Liberation Movements in Africa and Asia”

THE POLITICS OF CIVIL RIGHTS HISTORY
Moderator: Randall Stephens, The Historical Society
David Chappell, University of Oklahoma“Waking from the Dream: The Battle over Martin Luther King’s Legacy”
Eric Arnesen, University of Illinois at Chicago“Periodizing and Politics in Civil Rights History: Reconsidering the ‘Long Civil Rights Movement’”
Daniel L. Letwin, Pennsylvania State University“‘A Nettle of Peculiar Sharpness’: The Social Equality Question in Black Political Thought”

THE FRAGMENTATION OF AUTHORITY IN THE ERA OF THE CIVIL WAR
Moderator: Donald Avery, Harford Community College
H. Robert Baker, Georgia State University, “Federalism and the Fugitive Slave Act: The Making and Unmaking of Constitutional Nationalism”
Owen Williams, Yale University, “The Fall of Slavery and the Rise of the Supreme Court”
Daniel W. Hamilton, Chicago Kent College of Law, “Human Property and the Constitution: Litigating Slavery After Emancipation”

Stern on Tom Jones and the Economies of Copyright

Tom Jones and the Economies of Copyright is an essay by Simon Stern, Faculty of Law, University of Toronto. It appeared in Eighteenth-Century Fiction (1997). Here's the abstract:

This essay explores the metaphorics of copyright, and the conceptual and practical consequences of these metaphorics, during the era between the passage of the Act of Anne in 1710 and the 1774 judgment in Donaldson v. Beckett, which held that the statute limited the term of copyright to a term of no more than 28 years. Commentators on the nature and meaning of literary property included Joseph Addison, who spoke of the author's estate in terms of its agricultural produce; William Blackstone, who described a published work as a key to the author's private grounds; the anonymous pamphleteers in the debate over copyright reform in the mid-1730s, who compared the literary marketplace alternatively to an ever-expanding Field of Knowledge and to a privately owned manor where newcomers could only hope to obtain a Right of Common in [its] Waste; and the counsel in Millar v. Kincaid, who likened literary property to Wild-fowl that might fly the coop at any moment.

These metaphors ultimately bespeak two contrasting views about the world in which literature is produced and circulates. On one view, the materials available to writers, and their potential buyers, are thought to be limited in number, so that all forms of copying, from piracy to imitation, are seen as means of depletion. This view accords with the metaphors of literary theft and borrowing, which imagine a taking that depletes the source (and with the metaphor of plagiarism, literally slave-stealing). On the other view, writers and readers are thought to be so various that no real risk of depletion ever arises, because even ostensibly similar books will turn out to involve different modes of expression and will please different readers. This view accords with Renaissance theories of authorship as amplification and with the etymology of the word author itself, from augere, augment, increase.

The two alternative perspectives on the literary economy represent extremes, with many commentators and writers falling somewhere in between. The essay focuses on Henry Fielding's Tom Jones (1749), written while Fielding's publisher, Andrew Millar, was involved in the Kincaid litigation, which involved three allegedly pirated works including Fielding's earlier novel, Joseph Andrews. Seen through the lens of the copyright debate, many of Fielding's pronouncements on authorship in Tom Jones become legible as ironic comments about authors' foolhardy beliefs in their originality and their ability to dictate how readers use and revise their writings. Similarly, the plot of Tom Jones, and particularly its handling of the birth-secret, may be seen to challenge the restrictive model of authorship that treats imitation as theft.

Next week: Policy History Conference in St. Louis

The Policy History Conference is coming up next week in St. Louis, Missouri. Many legal history luminaries will be on hand. This is a smaller conference, and so an especially good venue for graduate students. The next meeting will be in 2010 in Columbus, Ohio.

Highlights of this year's meeting include:

A Plenary: Does the 19th Century Matter in Policy History?
Chair/Commentator: Paula Baker, Ohio State University
Robin Einhorn, University of California, Berkeley
Richard Bensel, Cornell University
William J. Novak, University of Chicago

Law and the State in the Early Frontier
Chair/Commentator: PETER KASTOR, Washington University
ROMAN HOYOS, University of Chicago, Illinois "Pregnant with Danger": Constitutional Conventions and the Problem of Revolution in the Early Republic
HONOR SACHS, Yale University, From Colonial Backcountry to National Frontier: Race, Gender and State Formation in Eighteenth-Century Kentucky
STEFAN HEUMANN, University of Pennsylvania, Built in the West: Territorial Expansion and State- Building in the Antebellum U. S.

The Politics of Exclusion and U. S. Women’s Struggle for Inclusion: Historical Perspectives
Chair: LIETTE GIDLOW, Wayne State University
MEREDITH CLARK-WILTZ, Ohio State University, Reconstructing Constitutions and Citizenship: Women and Jury Service after the Reconstruction Amendments
SHEILA JONES, Bowling Green State University, The Economics of Sexual Harassment in the Workplace: Working Women and Citizenship Rights, 1975-1981
ERIN KEMPKER, Purdue University, Feminists and Conservatives at the Indiana International Women‟s Year Conference, 1977
Commentator: EILEEN MCDONAGH, Northeastern University

Civil Rights in the University
Chair/Commentator: MARIS VINOVSKIS, University of Michigan
SVEN H. DUBIE, John Carroll University, Civil Rights and the Ivory Tower: Academics, Lawyers, and the Transformation of Federal Civil Rights Enforcement Policies in the mid-20th Century
ANTHONY S. CHEN, University of Michigan and LISA M. STULBERG, New York University, Beyond Disruption: The Forgotten Origins of Affirmative Action in College and University Admissions, 1961-1969
CHRISTINE D. MYERS, Independent Scholar, Slipped in By the Side Door‟: The Acceptance & Education of Women at the University of Glasgow, 1868-1934

Who’s Capturing Whom? Rethinking Public and Private Power in the Postwar Administrative State
Chair: DANIEL ERNST, Georgetown University Law Center
ANNE KORNHAUSER, Columbia University, Groups Less Well Organized‟: Liberal Anxieties and the American Leviathan State
SOPHIA Z. LEE, Yale University, In and Out of Government: Public Interest Organizations and the Making of a Civil Rights State, 1968-1976
STEPHEN R. PORTER, University of Chicago, From Voluntary Agencies to State Sub-Contractors: Hybrid Governance and Cuban Exiles in the Cold War
Commentator: BRIAN BALOGH, University of Virginia

Defining Rights Outside the Courts in Cold War America
Chair: MARY L. DUDZIAK, University of Southern California Law School
JOANNA L. GRISINGER, Clemson University, Procedural Bulwarks and Subversive Threats: Internal Security Procedures in Cold War America
CHRISTOPHER W. SCHMIDT , American Bar Foundation, The Civil Rights Act of 1964 and Congressional Interpretation of the Fourteenth Amendment
H. TIMOTHY LOVELACE, JR., University of Virginia, South African Americans: SNCC, Atlanta Apartheid, and the Development of the United Nations‟ Race Convention
NEAL ALLEN, College of St. Benedict and St. John’s University, The Supreme Court, Backlash, and the Defense of White Supremacy: Judicial Decisions as Change Agents in American Political Development
Commentator: JAMES T. SPARROW, University of Chicago

Reproductive Justice: Policies, Politics, and Protest
Chair: EILEEN BORIS, University of California, Santa Barbara
LENA MCQUADE, University of California, Santa Barbara New Mexico‟s Reproductive Health Policies: Midwifery, Race, and Professionalism
LISA LEVENSTEIN, University of North Carolina, Greensboro Welfare Policy and Reproductive Justice in the United States
ANDREA SMITH, University of Michigan, Native Women‟s Organizing for Reproductive Justice RICKIE SOLINGER, Independent Scholar, The First Welfare Case: Challenging the Meaning of Marriage, the Meaning of Money, and the Meanings of History after the Voting Rights Movement in Selma, Alabama
Commentator: JOHANNA SCHOEN, University of Iowa

The full program is here.

Bilder, A Brief Historiography of Judicial Review

Mary Sarah Bilder, Boston College Law School, has posted a new essay, Idea or Practice: A Brief Historiography of Judicial Review. It appears in the Journal of Policy History. Here's the abstract:

Judicial review may be the most publicly contested aspect of American constitutionalism. The conventional beliefs that judicial review should be understood as an idea and American constitutionalism studied as a new rationalistic, political science are largely due to the influential scholarship of Edward Corwin. This brief essay recovers the pre-Corwin discussion about the origins of judicial review to demonstrate the way in which the approach to judicial review as an idea has been, itself, historically constructed by scholarly inclination, disciplinary identification, and the availability of historical materials.

Lash on The Second Adoption of the Establishment Clause

Kurt T. Lash, Loyola Law School Los Angeles, has just posted The Second Adoption of the Establishment Clause: The Rise of the Non-Establishment Principle on SSRN. It appeared in the Arizona State Law Journal (1995). Here's the abstract:

In the 70 years since Gitlow first incorporated the First Amendment protections of speech and press against the states, the Establishment Clause has been a boon to incorporation's enemies and an embarrassment to its friends. Scholars who make the historical case for general incorporation either ignore, or carefully distinguish, the case of the Establishment Clause. Anti-incorporationists, on the other hand, use the case against incorporation of the Establishment Clause as their cause celebre. In fact, so wonderfully ambiguous is the history surrounding this opening line of the Bill of Rights that originalists use it to attack incorporation, and nonoriginalists use it to attack originalism. For example, at the time of the Founding, the vast majority of state governments supported and encouraged religious exercise in one form or another. Originalists cite this state of affairs as evidence that the Establishment Clause could not have been intended to apply against the states. Nonoriginalists, on the other hand, cite the sheer variety of the Founders' views regarding religious establishments as the primary example of why the search for a single "original intent" is fundamentally flawed.

These conflicting approaches are linked by a common assumption: The historical period surrounding the adoption of the original Establishment Clause is directly relevant to determining the intent behind the incorporated Establishment Clause. Such an assumption, however, places the Founding cart before the Incorporation horse. Incorporation doctrine assumes that, at some point, the people changed their collective mind about the role of federalism in the protection of individual liberties; what was once left to state discretion is now restricted by the Fourteenth Amendment. But if the people changed their mind about the role of federalism in the promotion of individual liberty, perhaps they also changed their mind about the role of the Establishment Clause. In fact, we are not the first generation since Madison wrote his Memorial and Remonstrance to question the melding of the scepter and the cross. Obscured in the search for the Founders' intent are the subsequent struggles over the meaning and value of the Establishment Clause. In the years following the adoption of the Bill of Rights, state after state grappled with the issue of civil power over the subject of religion. Slowly, through a long series of cases and controversies, the idea evolved that citizens ought to be free from government-imposed religious establishments.

Ross on The Career of Puritan Jurisprudence

The Career of Puritan Jurisprudence is a new article by Richard J. Ross, University of Illinois, and LHB guest blogger! It appears in the Law and History Review (2008). Here's the abstract:

This essay explores the long, complex history of an idea often taken for granted today: that early Massachusetts lived under something called Puritan jurisprudence, a distinctive legal order strongly shaped by Puritan religious commitments and social thought. While this notion is a commonplace in the historiography of early New England, the idea has not always been accepted. In particular, the Puritans themselves did not assume that they lived under a distinctive jurisprudence that could be termed Puritan. Given contemporary opinion, what intellectual and political commitments encouraged later interpreters to give credence to the notion of Puritan jurisprudence? The heart of this article explores the gradual acceptance between the seventeenth and nineteenth centuries of two presuppositions underlying the concept: first, that early Massachusetts had a legal order sufficiently distinctive to be styled a jurisprudence; and, second, that Puritan theology and social thought served as the central characteristic or essence of this jurisprudence. The mature synthesis of Puritan jurisprudence that crystallized in the twentieth century rested upon these assumptions. The central ambition of this essay is to explain how and why many scholars came to accept a concept that the Puritans, surveying their own law, would have found troubling. The essay adds a tincture of irony or poignancy to the notion of Puritan jurisprudence by revealing that those founders did not use the concept and that later generations only slowly came to accept it as a result of political and forensic maneuvers far removed from the concerns of the Puritans.

Blomquist (with your help) ranks "the 100 Most Creative Moments in American Law"

Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law, by Robert F. Blomquist, Valparaiso University Law School, a ranking of moments in legal history just posted on SSRN, strikes me as a very odd project, but perhaps I am in the minority. The author's database for his study was you, legal historians. The author describes it:

In September of 2005—relying upon the AALS Directory of Law Teachers-- I sent letters to approximately 426 American law professors listed as having taught the subject of legal history. I asked each professor, rather naïvely, but straightforwardly: “Given your background as a teacher and scholar of legal history .... What do you think are the most creative moments in Anglo-American law?” I also alerted each recipient of my epistle that I was contemplating writing an article (and eventually a book) on the topic and would, if I used their response, give academic credit for the thoughts.

If this study proves anything, it is that legal historians as a group are very helpful people. Blomquist continues:

Much to my surprise, I received numerous assorted responses to my query of the most creative moments in Anglo-American legal history—some by letter, some by e-mail and some by handwritten note.

The author goes on to detail these responses from various legal history luminaries, carefully citing to the letters and e-mails you wrote in.

Blomquist describes his project in this abstract:

In most cultural contexts creativity is viewed as an unalloyed virtue. Law is different: given the inherently conservative and slow-moving pace of legal evolution, innovation in the law is viewed by many observers as problematic. Yet American revolutionaries, constitutionalists, legislators, chief executives, judges, administrators, scholars and activists have creatively changed the law for over two centuries in mostly positive ways with some admittedly questionable innovations. This article makes a bold new proposal -- the articulation and ranking of America's most creative legal moments -- designed to energize and clarify our synoptic thinking about the nature of legal creativity.

Starting with the opinions of numerous eminent legal historians on the most creative moments in Anglo-American law, we will explore the meaning of creative moments in law, and advance to analytically compare legal creativity with other kinds of creativity (corporate, artistic, military and rhetorical). Then we will heuristically entertain a ranking of the top hundred moments in American law and a justification for the ranking.

I won't spoil the surprise by posting Blomquist's ranking, but first on the list is the Constitution of the United States and the ratification debates. Marbury v. Madison weighs in at #6. Richard Posner, Economic Analysis of Law (1973), at 54, and Hart & Sacks, The Legal Process (1958), at 55, outrank the creation of the United Nations, which comes in at 59. Earth Day is on the list. You can find the rest here.

Bodensteiner on The Supreme Court as the Major Barrier to Racial Equality

The Supreme Court as The Major Barrier to Racial Equality is a new paper by Ivan E. Bodensteiner, Valparaiso University - Law School. Here's the abstract:

This Article suggests that the U.S. Supreme Court, through its decisions in cases alleging race discrimination, stands as a major barrier to racial equality in the United States. There are several aspects of its decisions that lead to this result. Between 1868 and 1954, the Equal Protection Clause of the Fourteenth Amendment, while it had been interpreted to strike down a few blatant forms of de jure discrimination, allowed government to separate the races based on the separate but equal fiction. Beginning in 1954, Brown and a series of subsequent decisions attacked this fiction and for a period of nearly twenty years the Court was intent on eliminating the vestiges of segregation in the schools, approving broad remedial orders. This changed drastically beginning in 1974 when the Court began limiting the available remedies and relieving school systems of the burdens imposed by court orders. Around the same time, the Court decided that equal protection plaintiffs needed to show a discriminatory governmental purpose in order to trigger meaningful constitutional protection. This meant that facially neutral laws and practices with discriminatory effects were largely constitutional.

Beginning with Bakke in 1978, the Court made it difficult, and eventually nearly impossible, for government to take affirmative steps designed to promote equality. A majority of the Court determined that invidious and benign racial classifications should be treated the same under the Equal Protection Clause, with both subjected to strict scrutiny. This completed the Court's interpretation of the Fourteenth Amendment in a manner that makes it a real barrier to racial equality: government is free to engage in invidious discrimination as long as it masks the real purpose, and affirmative steps designed by government to promote equality will be struck down as a violation of equal protection. Ironically, the constitutional amendment designed to promote freedom and equality for the newly-freed slaves now stands in the way of true freedom and equality.

In the Green Bag: Thurgood Marshall's Bill of Rights for Kenya

Thurgood Marshall's Bill of Rights for Kenya by Mary L. Dudziak, University of Southern California Law School appears in Green Bag 2d (Spring 2008), and is posted on SSRN. Here's the abstract:

In Thurgood Marshall’s office after his death, draped over an armchair in the morning sun, was a cloak made of monkey skin. The cloak was from Kenya, and was among the Justice’s most treasured possessions. For years, Marshall told his friends and his law clerks stories about Kenya. The cloak was a gift, he told them, from the time he was made an honorary tribal chief. But even those closest to Marshall knew little about the Kenya adventures he so keenly remembered.

This short essay illuminates Marshall’s work on a Bill of Rights for Kenya in the early 1960s as an exercise in constitutional borrowing. When Marshall went to Kenya he "looked over just about every constitution in the world just to see what was good," and he told an interviewer that the United States Constitution was "the best I’ve ever seen." But at a conference in London on the Kenya constitution, he offered a draft bill of rights for Kenya that had no American constitutional language in it. The rights Marshall embraced as ideal, at least for an emerging African country, drew most extensively from the Universal Declaration of Human Rights, and parts were based on the constitutions of two newly independent countries, Nigeria and Malaya. Marshall’s American sensibility appeared in his document most clearly in his assumption that independent courts would enforce the bill of rights, and his emphasis on equality, something he still hoped to realize in his own country.

The full story of Marshall’s work in Kenya is told in Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford University Press, 2008), which includes Marshall's bill of rights for Kenya in an appendix. The Introduction and Table of Contents are also posted on SSRN.

Conference: History of Legal Transplantations

On June 11-13, 2008, the University of Tel Aviv Law School and the Institute for Advanced Study of Hebrew University will present a conference, organized by Ron Harris and Assaf Likhovski, on "Histories of Legal Transplantations." A schedule with papers and abstracts can be found at: http://www.as.huji.ac.il/conferences/legal/program.pdf

Reviewed: Perlstein on Nixon and Wilentz on Reagan

Sean Wilentz, The Age of Reagan, and Rick Perlstein, Nixonland, get a round of reviews in the Los Angeles Times, Salon (Wilentz), San Francisco Chronicle (Perlstein) and other papers. Eric Arnesan finds Perlstein's book impressive, elegant and dramatic, in the Chicago Tribune. In “The Age of Reagan,” Douglas Brinkley writes for the New York Times, "-- a smart and accessible overview of the long shadow cast by our 40th president — Wilentz largely abandons partisanship in favor of professionalism. Thus, the supposedly inflexible Reagan emerges here as the pragmatic statesman who greatly reduced the world’s nuclear stockpiles."

Tyrell, What is Transnational History?

What is transnational history? asks Ian Tyrell, Scientia Professor of History at the University of New South Wales, Sydney, Australia, on his new blog. Drawing from his paper at Ecole des Hautes Etudes en Sciences Sociale, Paris, Tyrell suggests that discussions of transnational history sometimes suffer from "misconceptions of the subject, and methodological weakness in failing to consider the historiographical context of the term’s development, and the historical practice of its deployment."

"Transnational," Tyrell writes, "is a broader term, but it is less encompassing than either the deterministic and unidirectional juggernaut of globalisation, or the generalities of the terminology of 'trans-border' which might refer to borders within nation states, including municipalities. The purpose of the transnational label was in fact more precise: to focus on the relationship between nation and factors beyond the nation."

In American history, the importance of transnationalism as a method was signalled by a 1992 special issue of the Journal of American History devoted to "internationalizing" American history, The Nation and Beyond. A series of conferences, a report to the Organization of American History, and a collection edited by Thomas Bender, Rethinking American History in A Global Age (2002), continued the momentum. But the OAH internationalizing project occurred alongside of other developments. As Tyrell notes, "in 1989-1991 that the idea of a self-conscious agenda called transnational history first came into being, linked to a specific research program. Though closely associated with an article I wrote in the American Historical Review (1991), the idea had been suggested in a narrower form in 1989 by Akira Iriye who argued for an examination not just of nationalism but of “internationalism” and suggested the study of an explicitly “transnational cultural history” to complement purely national developments." And there were precursors earlier in the 20th century, although they were "seed cast upon stony ground." Today, "the field of transnational history (and related developments going on today in sociology and anthropology) has a prospect of transforming scholarship...precisely because it chimes in with perceived changes in the world economy and social order associated with globalisation."

Continue reading here. Tyrell's most recent book is Transnational Nation: United States History in Global Perspective since 1789.

Tamanaha on Grossman & Tamanaha

Brian Tamanaha weighs in on Lewis Grossman's comparison of their recent works (see posts that follow if you're just tuning in...):

There are indeed interesting points of overlap and difference between my "Bogus" article and Professor Grossman's article.

Although I will not directly address any of his points, I will add two additional comments. Another important difference between us is that, while he argues that Carter was a pre-realist thinker, Professor Grossman appears to to accept the standard "classical legal thinker" account of Langdell, which I reject as also a distortion. It is on this basis (and more) that I make sweeping claims about the "bogus" tale about formalism.

The second comment is that there is perhaps a closer overlap between our arguments in my companion article, "Understanding Legal Realism." In this second piece I identify the striking parallels between the historical jurists and the legal realists. Grossman focuses mainly on Carter, whereas I discuss other historical jurists as well. The main difference is that while he continues to privilege the legal realists (portraying Carter as a pre-realist), I infer from these strong parallels that "realism about judging" long predated the realists.

The different inferences we are willing to draw from this evidence might be a reflection of the fact that we work in different disciplines. Professor Grossman is a historian. I explore this historical material for its broader theoretical implications. This difference in perspective aside, I think the underlying historical material we are exposing has much in common.

What it all means is another matter.

From this point, I welcome both writers and others interested to continue this helpful discussion in the comments. [Please note: you no longer need a (free) Google account to comment -- you can also register with Open ID. And then you're able to post using a pseudonym, if that's what you prefer.]

More on Grossman and Tamanaha

It often seems to happen that more than one scholar turns to the same promising topic. Brian Tamanaha has a provocative new paper arguing that there wasn't so much formalism among the "legal formalists." Meanwhile Lewis Grossman has been working on parallel lines for some time, most recently in an article that appeared in the Yale Journal of Law and the Humanities, but more steadily since his Ph.D. dissertation, The Ideal and the Actual of James Coolidge Carter: Morality and Law in the Gilded Age, which won the George Washington Egleston Prize for the Best Dissertation in the Field of American History at Yale in 2005.

There are parallel arguments, but also differences between these authors. To guide readers, I asked Grossman to compare and contrast their works. He accomplishes this principally by laying their arguments about similar issues side-by-side. I invite Tamanaha (and others!) to weigh in. It's best to begin with the papers, noted here and here. Grossman's comparison follows:

The Realist Characteristics of the “Formalist Age”

Tamanaha p. 5: “Judges, lawyers and theorists did not widely think of judging as a mechanical or deductive process. The legal realists were not pioneers of realism about judging. Just about everything the realists said about judging was said decades earlier by individuals who have been identified as important formalist thinkers, as well as by many others in legal circles, including a number of accomplished judges. The US legal culture has swallowed whole a largely fictional tale about views of judging during the so-called ‘formalist age.’”

Grosssman p. 217: “The debates over codification described in this Article demonstrate that jurisprudential strands identified almost exclusively with twentieth-century legal realism were substantially present, if not necessarily dominant, during the late nineteenth century. I thus challenge the long-dominant mode of periodizing the history of American legal thought.”

Antiformalist Views of Late 19th-Century Practitioners

Tamanaha p. 35-38 (from section titled “The View From Practice on Law as Science, and Judging as Deductive Logic”): “[T]he ‘law is a science’ phrase . . . was regularly invoked in the latter part of the nineteenth century, particularly by jurisprudence scholars. Throughout the formalist period, however, legal practitioners were openly skeptical. . . . An academic advocate of seeing law as science acknowledged (in 1895) the gaping divide on this issue . . . . The same gap in views [between academics and practitioners] is evident in connection with the notion that judging is a matter of mechanical or deductive logic.”

Grossman p. 197 (from section titled “Practitioners Jurisprudence”) : “The struggle against codification thus inspired an extraordinary flowering of literature in which attorneys defending the common law . . . thoughtfully examined their role, and that of judges, in the existing legal system. The vision of the common law they articulated in these writings was probably shaped in part by their experience as practitioners. Because litigators tend to focus on the facts of particular cases and on the flexibility of legal rules, they may have been particularly inclined to reject the conceptual formalism embodied by both complete codification and Langdellian classicism . . . .”

Grossman p. 200 (from same section): “At times . . . a controversy arises in the world of legal practice that requires members of the bar systematically to analyze the overall nature of the system within which they work. The codification dispute of the late nineteenth century was such a moment. And the resulting portrait of the common law painted by these lawyer-jurists was resoundingly different from that offered by Christopher Columbus Langdell. Instead, the anticodifiers’ vision of the common law foreshadowed, by several decades, the views of the aggressively anti-Langdellian legal realists.”

Stare Decisis

Tamanaha p. 74: “This discussion will close with yet another demonstration that leading ‘formalist’ thinkers were not guilty as charged—in this context with holding to the view that precedent must be strictly adhered to no matter what. Adherents of historical jurisprudence [Tamanaha earlier discusses Carter as a ‘historical jurist’] did not typically consider precedents inviolate, for their view was that law was an ongoing social production.”

Grossman p. 184-85: “Carter acknowledged that the doctrine of stare decisis sometimes denied common law judges the flexibility they needed to keep the law in line with changing social norms. . . . Nevertheless, if Carter had adopted a stringent version of stare decisis, he would have undermined his own primary argument for the superiority of the common law over a code—namely, that the former, unlike the latter, was capable of resolving each case according to the dictates of justice. . . . Consequently, Carter whittled away the doctrine into insignificance.”

Implications of Anticodification

There’s an interesting difference between Tamanaha and me here. Tamanaha focuses on the “realism” of the proponents of codification. I explore the realist characteristics of the anticodifiers.

Tamanaha p. 47: “[R]ealistic attitudes about law and judging were by no means the invention of the legal realists. Realistic observations can be found wherever there are critics of law or critics of judging, and the codification debate had both.”

Grossman p. 151-52 (from introduction): “This Article . . . suggest[s] that at least some late-nineteenth century jurists so devalued formal conceptual order, at least when it came into conflict with case-specific justice, that they can hardly be characterized as ‘classical’ at all. The anticodifiers, most notably James Coolidge Carter, their leading intellectual voice, explicitly minimized the role of formality and conceptual order in common law decision making. . . . Indeed, in trumpeting the advantages of the common law, Carter, an almost exact contemporary of Langdell, manifested a rule skepticism that foreshadowed that of the legal realists a half century later.”

Periodization

Both Tamanaha and I end our articles with critiques of the strict periodization of American legal history (including the portrait of a “formalist age”) by Llewellyn, Gilmore, Horwitz, Kennedy, and other scholars. Our proffered explanations for this phenomenon differ, however; I focus on general scholarly trends, including the rise of the Kuhnian paradigm-shifting model of intellectual history, whereas Tamanaha stresses the political motivations of leftist scholars “denigrat[ing] the vanquished opponents” of the welfare state.

Tamanaha also makes a more extreme overall claim than I do. As evidenced by the title of his piece, he wholly dismisses the standard story of late nineteenth-century formalism, calling it “a bogus tale.” My conclusion (p. 219) is a bit more modest:

I do not claim that James Coolidge Carter was himself the paradigmatic legal thinker of the Gilded Age. I do, however, reject the notion that Langdell’s brand of amoral legal science typified the period, and I also question the complete hegemony of “classicism” broadly defined. More generally, I intend my examination of the anticlassicism of the Gilded Age anticodifiers, and their commonalities with the realists, to promote a healthy wariness of sweeping characterizations of any era in American legal history.

Grossman on Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anti-Codification

Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anti-Codification is a recent article by Lewis A. Grossman, American University - Washington College of Law. It appeared in the Yale Journal of Law & the Humanities (2007). Grossman's work covers similar terrain as Brian Tamanaha's recent SSRN paper on formalism which has been discussed around the blogosphere. More on the two pieces will follow. Here's Grossman's abstract:

At the end of the nineteenth century, the American legal community engaged in an impassioned debate about whether the substantive common law should be codified. The American codifiers, like their civil law counterparts in Europe, sought to make the law largely judge proof by reducing the function of courts to the nondiscretionary application of clearly stated statutory principles and rules. By contrast, codification opponents, led by James Coolidge Carter, fought to preserve the centrality of courts in the American legal system. In light of the influential scholarship portraying Gilded Age law as dominated by Langdellian classical legal thought, one might think that these defenders of the common law valued judges' ability to construct a conceptually ordered legal structure and logically deduce the answers to cases from general principles. In fact, however, the leading codification opponents did not portray common law judging as a formal, mechanical, and amoral process, for these were the very characteristics of codification that they condemned. Instead, these practitioner-jurists praised the common law as a system that, unlike codification, permitted judges to decide each case fairly according to its particular facts. The anticodifiers' portrait of common law decision making thus bore little resemblance to the soulless deductive reasoning often thought to characterize the era. Anticodification literature depicted judging primarily as an exercise in ethics. Moreover, it stressed the indeterminacy of rules and the fact-specificity of justice in a way that anticipated legal realism. The article explores the heretofore unexamined similarity between late nineteenth-century anticodification jurisprudence and twentieth-century legal realist jurisprudence, and, finally, suggests that both reflected a practice-oriented ethos.

Spivack on The Cultural Context of Abortion Law in Early Modern England

To Bring Down the Flowers: The Cultural Context of Abortion Law in Early Modern England is a recent article by Carla Spivack, Oklahoma City University School of Law. It appeared in the William and Mary Journal of Women and the Law (2007), Here's the abstract:

This article takes issue with claims made by Joseph Dellapenna in his 2006 book, Dispelling the Myths of Abortion History, which claims to correct the distortions of the history of abortion law underlying Roe v. Wade, 410 U.S. 113 (1973). Dellapenna argues that, contrary to Justice Blackmun's historic analysis in Roe, abortion was considered a serious crime throughout most of European history and that courts did . . . punish abortions before quickening during the Middle Ages. This article shows that Dellapenna's argument relies on serious misreading of cases and ignorance of the relevant historical, medical and cultural context, and that pre-quickening or intra-marital self induced abortion was of little concern to the law.

Aubuchon, Rehabilitating Durkheim: Social Solidarity and Rehabilitation in Eastern State Penitentiary, 1829-1850

Rehabilitating Durkheim: Social Solidarity and Rehabilitation in Eastern State Penitentiary, 1829-1850 is a new paper by Ashley T. Aubuchon, University of California, Berkeley - Jurisprudence and Social Policy Program. Here's the abstract:

Durkheim famously postulated that crime tears at the moral fabric of society and that punishment was the means by which society strengthened its solidarity: by condemning the criminal and his criminal act, society reminds itself that there is still great consensus surrounding the values it holds dear, those values which it has enshrined in the criminal law. However, the more a society advanced, he argued, the less intense its punishments would become, and the more its punishments would become based solely on the privations of certain rights. But Durkheim did not speak to purposes of punishment (e.g., rehabilitation, incapacitation, deterrence) except retribution. This study describes the relationship between penal rehabilitation and Durkheim's concept of social solidarity by examining the writings of certain Pennsylvanians who were involved in the creation and maintenance of the Eastern State Penitentiary between 1829 and 1850. Specifically, it seeks to answer two questions: (1) How does rehabilitation affect (strengthen, weaken, or not affect) social solidarity? and (2) What circumstances lead a society to choose rehabilitation over other methods or purposes of punishment? This study argues that penal rehabilitation strengthens social solidarity through its negative and positive expressive statements and results in solidarity-generating and solidarity-enhancing effects. This study also offers a framework for what conditions lead a society to choose rehabilitation, conditions that lead a society to be "optimistic" instead of "pessimistic." It closes with suggestions for future work in this area.