Cohen-Eliya and Porat on the Historical Origins of American Balancing and German Proportionality

American Balancing and German Proportionality: The Historical Origins is a new paper by Moshe Cohen-Eliya, Academic Center of Law and Business (Israel) and Iddo Porat, Academic Center of Law and Business and University of San Diego School of Law. Here's the abstract:

American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed as based on American isolationalism and unilateralism. In this article we suggest an original, and often overlooked, explanation to the difference between balancing and proportionality - the historical origins of the two concepts.

We examine the ways in which proportionality developed in Germany and balancing in the United States and show that the origins of both concepts were very different. For instance, proportionality was originally developed in administrative law, and was only tangentially (if at all) related to private law, whereas balancing arose in private law and was only later extended to public law; proportionality was created as part of an attempt to protect individual rights, whereas balancing was created for the exact opposite purpose - to check overzealous protection of rights by the Supreme Court during the Lochner era. We suggest that these differences may go a long way in explaining current disparities in attitudes and current barriers to dialogue and convergence between these two concepts.

Entin on Parents Involved and the Meaning of Brown

Jonathan L. Entin, Case Western Reserve University, has a new essay, Parents Involved and the Meaning of Brown: An Old Debate Renewed. It will appear in a symposium issue of the Seattle University Law Review (2008). The first two paragraphs describe the essay more fully than its brief abstract:

The debate over the meaning of Brown v. Board of Education in Parents Involved in Community Schools v. Seattle School District No. 12 exemplifies the long-running disagreement over the meaning of racial discrimination under the Constitution. One approach, reflected in the Parents Involved majority opinion by Chief Justice Roberts and in the concurring opinion by Justice Thomas, endorses colorblindness: the view that race is virtually always and everywhere irrelevant to public policy. Another approach, reflected in the dissenting opinions of Justices Stevens and Breyer, appears to embrace anti-subordination: the view that promoting interracial association is desirable as a matter of principle because it seeks to overcome the stigma that has long attached to people of color in the United States.

This Article examines some of the jurisprudential roots of the racial discrimination debate, tracing the issue back to Brown and its immediate aftermath but finding the seeds of the disagreement in the ambiguities of the first Justice Harlan’s celebrated dissenting opinion in Plessy v. Ferguson. The tensions between the two approaches did not matter in Plessy because segregation was impermissible under either theory, but the two approaches pointed in opposite directions in Parents Involved. Part II offers an overview of the Seattle and Louisville policies that were struck down in Parents Involved. Part III examines the various opinions in Parents Involved to illuminate the basic theoretical differences that divided the Court. Part IV examines the iconic decision in Brown and explores the aftermath of that ruling as lower courts struggled to determine how to remedy unconstitutional school segregation with little guidance from the Supreme Court, which did not grapple with remedial complexities for more than a dozen years after handing down its landmark ruling. Finally, Part V examines the complexities of Justice Harlan’s Plessy dissent and how those complexities continue to reverberate in the contemporary debate about racial discrimination.

Conference on 40 Years of the Indian Civil Rights Act: History, Tribal Law, and Modern Challenges

The Indigenous Law and Policy Center at Michigan State University College of Law, directed by Matthew L.M. Fletcher, is hosting a number of legal history-related events this year, including an upcoming conference on the 40th anniversary of the Indian Civil Rights Act. Here are the details:

5th Annual MSU Indigenous Law Conference
October 10-11, 2008 @ MSU Law College
Forty Years of the Indian Civil Rights Act – History, Tribal Law,

and Modern Challenges

The Indian Civil Rights Act will be 40 years old in 2008 – and Santa Clara Pueblo v. Martinez will be 30. We have decided to dedicate our 5th annual conference to the Act and to Martinez. Confirmed speakers already include Kristen Carpenter, Trent Crable, Marty Curry, Gordon Henry, Sonia Katyal, Elizabeth Kronk, Stacy Leeds, Dan Lewerenz, Catharine MacKinnon, Rebecca Miles, Eva Petoskey, Frank Pommersheim, Angela Riley, Mark Rosen, Wenona Singel, Paul Spruhan, Rina Swentzell, Melissa Tatum, Gerald Torres, Ann Tweedy, Gloria Valencia-Weber, Rose Cuison Villazor, and others.

We are pleased to announce that Lawrence Baca will be the keynote speaker for this conference.

Our vision for this year’s conference is to solicit papers that cover a specific provision in the Indian Civil Rights Act, e.g., free speech, freedom of religion, due process, equal protection, and so on. We want academics, practitioners, tribal judges, tribal leaders – anyone that has something important to say about this very important statute. We will collect the best of these papers into an edited collection for publication with a major university press, co-edited by Kristen A. Carpenter, Matthew L.M. Fletcher, and Angela R. Riley.

A picture of our postcard, with artwork by Sam English, is on our MSU website. Registration for this event is now available online here.

Here is the tentative agenda:

Friday, October 10, 2008
9 AM — Keynote
Lawrence Baca

10 AM to Noon — Indigenous Women Assess the Indian Civil Rights Act
Moderator: Sheena Oxendine
Rebecca Miles
Eva Petoskey
Rina Swentzell
Gloria Valencia-Weber

LUNCH, Food provided by Pi’ilani

1 PM to 2 PM — Commentary on the Indian Civil Rights Act
Moderator: Matthew L.M. Fletcher
Catharine MacKinnon

2 PM to 3 PM — Sex and Gender
Moderator: Mae Kuykendall
Angela Riley
Ann Tweedy

3:30 PM to 5 PM — Race, Representation, and Theory
Moderator: Kristi Bowman
Mark Rosen
Sonia Katyal
Gerald Torres

DINNER–All Seasons Bistro
Literary Event–All Seasons Bistro
Frank Pommersheim
Gordon Henry
Matthew L.M. Fletcher

Saturday, October 11, 2008
9 AM to 10:30 AM — Tribal Courts & Due Process
Moderator: Kate Fort
Stacy Leeds
Frank Pommersheim
Paul Spruhan

10:45 AM to 11:45 AM — Property and Community
Moderator: TBD
Wenona Singel
Melissa Tatum
Rose Cuison Villazor

LUNCH

1 PM to 2:30 PM — Free Speech and Religion
Moderator: Frank Ravitch
Marty Curry
Dan Lewerenz
Kristen Carpenter

2:30 PM to 3:30 PM — Criminal Procedure
Moderator: Zeke Fletcher
Trent Crable
Elizabeth Kronk

More information is here.

Coleman on Rethinking the Structure of Federal Civil Rulemaking

Recovering Access: Rethinking the Structure of Federal Civil Rulemaking is a new paper by Brooke D. Coleman, Stanford Law School. Here's the abstract:

Access to the justice system, which I broadly define as the opportunity to resolve the merits of a legal claim, is declining. One source of this decline is the Civil Rules. In this article, I examine how the institutional failings of the civil rulemaking process have allowed for the production of rules that diminish access. Rule 1 of the Federal Rules of Civil Procedure provides that the Civil Rules should facilitate the "just, speedy, and inexpensive resolution" of legal claims. While the Civil Rules Committee considers this timeworn mandate when drafting the rules, there is no agreement about how to interpret this three-part directive. I argue that one interpretive principle should be access to the justice system. Examining the history, I demonstrate that proponents of the Rules Enabling Act and court-based rulemaking envisioned and designed the rules with access firmly in mind. Indeed, although access was not the only concern, it was on equal footing with competing concerns, such as systemic efficiency. Over time, as the perception of a litigation explosion has created political pressure to reduce access to the justice system, rulemakers have responded by creating rules that do just that. I argue that access should be restored to its original status as a co-equal principle of civil rulemaking and that one way to do so is to modify the structure of the rulemaking process. Under the current institutional structure, the rulemaking body is more attuned to a view of litigation intent on reducing access. I offer a spectrum of structural reforms that have the potential to reduce this bias. These proposals include modifying the Committee's composition to be more representative of litigants and passing legislation that mandates access will be considered in the rulemaking process.

Dudziak on Tushnet on Thurgood Marshall

Mark Tushnet's Thurgood Marshall and the Rule of Law is an essay recently posted on SSRN by yours truly, Mary L. Dudziak, University of Southern California Law School. It appeared in a symposium issue of the Quinnipiac Law Review (2008) on the work of Mark Tushnet. Here's the abstract:

This essay, written for a symposium issue of the Quinnipiac Law Review on the work of Mark Tushnet, takes up Tushnet's writings on Thurgood Marshall. Tushnet's body of scholarship on Marshall includes two books, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991; an edited collection: Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences; and many articles and essays. Tushnet follows Marshall from his early career as a civil rights lawyer through his service on the United States Supreme Court, focusing more than other biographers on Thurgood Marshall as a lawyer, and paying particular attention to Marshall's conception of the rule of law.

The essay explores Marshall's understanding of the rule of law, bringing in the example of Marshall's confrontation with Kenya's first president, Jomo Kenyatta, in 1963, and the tension between Marshall's embrace of Kenya's new leaders, with whom he worked on Kenya's independence constitution, and his concern about their failure to protect the rights of Kenya's Asian minority. In this episode, the rule of law appears as more than fairness and consistent application of legal principles, but also as a form of politics. This ties Marshall's work in Africa in with the conception of law in Tushnet's broader body of work.

Pound under Pressure

[The following is the seventh in a series of posts on Roscoe Pound and the administrative state. The series starts here.]

Unnoticed in the initial round of correspondence between Arthur Vanderbilt and Roscoe Pound was a basic disagreement over the committee’s mission. Although eager to have a learned and “objective” report to immunize the ABA from charges of partisanship, Vanderbilt also wanted Pound’s “gilded endorsement”--the phrase is George Shepherd’s--for a bill that would preserve the judiciary’s suzerainty over the New Deal. Pound took a longer view of the job before him. He sought to awaken the nation’s common lawyers to the danger “the jurists of the left” posed not just to judicial supremacy, but to the very idea of law as the “subjection of force to reason.” Once they understood their peril, they could be counted upon to do their duty and come up with a bill on their own.

Shortly after his appointment, Pound explained to Vanderbilt that he intended to write a comprehensive survey of the administrative process in the federal government, the states, and common-law countries outside of the United States and an expensive statement of “the future of our common-law doctrine of supremacy of law in relationship to the development of administrative agencies.” Although Pound neglected to mention that he would be drawing up a bill embodying the vote of the House of Delegates, Vanderbilt let the matter passed, perhaps because he knew that a member of Pound’s committee would make the point. For although Vanderbilt ousted McGuire from the chairmanship, he felt obliged to continue the Colonel on the committee, perhaps because of his ties to Senator Logan.

Pound attempted to conciliate McGuire with a show of deference. “I am afraid I shall have to rely on you a good deal, as it will take much study on my part to catch up,” the most learned jurist of his generation wrote to the government lawyer. He also asked for forbearance. “I can see that we ought to be starting the work as soon as possible, but I am just entering upon a new job as University Professor and shall have to ask the Committee to be patient with me a bit until I get more settled,” he explained.

Patience was not Colonel McGuire’s long suit. “With the exception of Monte Appel of Minneapolis I had a fighting Committee last year,” McGuire complained to Newton D. Baker, a member of the ABA’s Board of Governors, in November. “This year the Committee was entirely reconstituted by leaving off all of the members except me and the Committee was given a new Chairman in the person of Dean Pound. While a great lawyer, or rather law student, I know of no particular accomplishments of his in the field of administrative law.” The committee still had not met, McGuire complained, when by now it ought to have “placed the finishing touches on the bill and turned it over to the Board of Governors for approval. . . . . The situation is rather discouraging.”

McGuire’s importuning at last forced Pound to question his understanding of his mission. Was he correct in thinking that his report was to address the fundamental questions of administrative law? he asked Vanderbilt in late November. “I put this to you in this way because I . . . am receiving a good deal of pressure to hurry up reports on pending legislation which seems to me from such study as I have been able to make of it involves a question of administrative organization rather than of administrative law.”

In reply, Vanderbilt, who also had endured “the fulminations of the disagreeable Colonel McGuire,” politely insisted that a scholarly study was not sufficient. “I do not believe we can stop there at this time, when the reorganization of the Executive Departments is pending in Washington, and when the report of the previous Committee, as voted on by the House of Delegates in Kansas City, must be regarded as a mandate to the Committee, even though the vote was a very close one.”

Now it was Pound’s turn to be discouraged. “I am a good deal troubled about the Committee on Administrative Law,” he confided to a former student.

There seems to be a desire to push me into an immediate report of some sort on a matter which seems to me to require very thorough preparation. One of the best jobs I ever did was in the report on reform of legal procedure to the American Bar Association in 1909. Nearly everything which I urged then in the face of much opposition has now become generally recognized and is largely put into effect, or is being put into effect. I should like to make a thoroughgoing report of the same kind as to administrative law, but that cannot be done if I am to rush into print with something about current propositions.

In January he offered to resign, “in view of the evident demand to do a good deal at once which I do not see how to do without an amount of immediate study that I cannot possibly give to it. . . . If you think that more rapid progress ought to be made,” he wrote to Vanderbilt, “do not hesitate in saying so and relieving me of the Chairmanship.”

Vanderbilt blinked. He urged Pound to stay on and, by way of commiseration, said of McGuire, “I hate to dignify him by calling him a pest, but I think that is the proper designation.” Reassured, Pound turned to his task. “From now on I am devoting one day each week to the report on administrative law until my work is complete,” he explained to the ABA’s secretary. More frustration awaited him, however, as McGuire and another committee member, the lawyer and political scientist Walter F. Dodd, refused to rubberstamp a draft of his report. “I wish devoutly I had never undertaken to have anything to do with the Committee on Administrative Law, which has harassed me beyond belief,” he confessed in April 1937, with the deadline for the final draft looming. “Colonel McGuire and Mr. Dodd are terribly persistent. The one seems to want a court set up so he can be Chief Justice. The other is firmly set for administrative absolutism and wants the Committee to do nothing so that the administrative absolutist program can go on.”

Reluctantly Pound agreed to convened the committee in Washington to work out their differences and then hurried to produce a draft embodying the resulting compromises. Still more provoking was the Board of Governors insistence that Pound produce a bill. Evidently, Pound thought that to keep him as chairman, Vanderbilt had agreed to task a committee of the Board of Governors with drawing up legislation, but “at the last minute, a board member insisted that it was the Special Committee’s job. When Pound refused to commit to “any detailed specific measure,” McGuire, in his own capacity, sent a slightly revised version of the previous year’s legislation to the Board of Governors. “Without the consent or knowledge” of the Special Committee, the board revised McGuire’s handiwork, appended it to Pound’s report, and inserted a reference to the bill in the committee report. Pound struck this out and would later protest, privately, that his committee “had nothing to do with that bill”; still the natural inference one would draw from the ABA’s conference program and annual report was that the former dean of the Harvard Law School had endorsed the measure that became the Walter-Logan bill.

In fact, Pound disapproved of the legislation, but he did not want to alienate the allies he counted on to resist “the general march of absolutism all over the world” with an unambiguous disavowal. Pound’s objections and his defense in his report not just of judicial supremacy, but the very idea of law as the “subjection of force to reason” will be the subjects of a future post.

Purcell on Federalism and Originalism, Basson on Race Mixing, new books on the Bush Administration, Executive Orders, and more

A number of interesting reviews have appeared recently in the Law and Politics Book Review. Here's a round-up:

Edward A. Purcell, Jr., Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry is reviewed by Justin Crowe, Department of Politics, Pomona College, who finds it "a provocative and erudite analysis of the historical roots and developmental trajectory of American federalism." Crowe writes:

Edward Purcell offers a “historical inquiry” into the original meaning (or lack thereof) and consequences of federalism as a structural feature of American constitutionalism. Weaving together meticulous historical research, deft analysis of political thought, and wide-ranging exploration of political development, Purcell demonstrates – in clear and methodical prose – how the Constitution “neither gave the federal structure any proper shape as an operating system of government nor mandated any particular and timeless balance among its components” (p.7). Far from having a fixed balance that must be politically recovered and jurisprudentially protected, federalism, Purcell contends, is instead characterized by an “elasticity and dynamism” (p.6) that belies any attempt to articulate the “true,” “proper,” or “original” understanding of the balance between state and national power.

The book does "more than simply illuminate both the theory and practice of federalism," but challenges "the application of a leading constitutional theory and fundamentally reinterpret[s] the meaning and history of a core structural pillar of American government."

Purcell's book

provides for federalism, often misunderstood (especially by students!) as fixed and archaic, something akin to what Richard Neustadt’s famous aphorism – that American government was one of “separated institutions sharing powers” (Neustadt 1990) – provided for the separation of powers: a call for understanding structural features of American government as contested, dynamic, and perpetually evolving. In this way, the book suggests that the relationship between state governments and the national government is characterized by the same type of rich and volatile politics as the relationship between branches of the national government itself.

Second, as befitting historical work that seeks to inform current political and legal practice, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE is simultaneously bursting with primary sources and embedded within secondary literature from a range of academic disciplines.

Third, Purcell's book is

explicit about what it is doing and what it is not doing, even if what it is doing grows dense at points. Purcell cogently and concisely walks the reader through his argument, unpacking the complexities surrounding his subject, bringing new evidence and analysis to bear on those complexities, and helping his audience to gain a more comprehensive perspective on the ideas and debates he analyzes....Given that federalism is a subject many find difficult and dry, attempting to write an accessible and lively book on it is no small task, and succeeding (as Purcell does) no small accomplishment.

Continue reading here.

Daniel Lipson, Department of Political Science, SUNY New Paltz, reviews WHITE ENOUGH TO BE AMERICAN? RACE MIXING, INDIGENOUS PEOPLE, AND THE BOUNDARIES OF STATE AND NATION by Lauren L. Basson (The University of North Carolina Press, 2008), finding it to be "a rich, in-depth analysis of racism in the American nation and state." Lipson writes:

At a moment in United States history when Barack Obama is inspiring millions in his presidential bid, the reality of mixed-race Americans is becoming increasingly salient in a nation long obsessed with dichotomous black and white racial categories. With the population of people of color in the United States accelerating at rates unmatched by any other country in the world, racial discourse in the US has gradually come to accommodate the full cast of official minorities, moving beyond the limited focus on blacks and whites. Yet the historical precedent in the United States has been to leave little space for mixed-raced Americans, instead preserving the racial order by forcing them into monoracial categories. As Lauren Basson explains in WHITE ENOUGH TO BE AMERICAN? RACE MIXING, INDIGENOUS PEOPLE, AND THE BOUNDARIES OF STATE AND NATION, the turn of the 20th century proved to be a highly dynamic period that left a major imprint on the distinctive American model of racial categorizations.

Basson’s book conducts a microanalysis of mixed-race indigenous Americans during the period from 1885 to 1905, showing how conflicts over racial identity at the “margins” reveal central dynamics about the US nation and state – in particular, the shifting forms of white supremacy – during this volatile period of United States history....

While the first three chapters focus on how policymakers and the press decided mixed-race individuals’ claims of being American, the fourth and final chapter examines allegations of un-American activity by mixed-race Americans. This chapter highlights Lucy Parsons, a leading anarchist activist who described
her ancestry as Indian and Mexican (but not African). Parsons identified herself as an indigenous American, claiming that the “white capitalists” were the true foreigners. But US officials along with the mainstream media portrayed Parsons and other anarchists as non-white foreigners who threatened American ideology and territorial integrity. Despite Parson’s denial, reporters labeled her as being a Negro, which was part of a concerted effort to further marginalize anarchist activism.

Of theoretical interest is the book’s challenge to Rogers Smith’s “multiple traditions” approach to American political culture. Whereas Smith suggests that racism has been rooted in a discrete, ascriptive/ethnonational tradition that has existed throughout US history alongside liberalism and republicanism, Basson argues that “racism was inherent in the full range of political discourses in the United States at the turn of
the twentieth century” (p.180).

Continue reading here.

Power Play: The Bush Presidency and the Constitution by James P. Pfiffner (Brookings Institution Press, 2008) is reviewed by Graham G. Dodds, Department of Political Science, Concordia University. According to Dodds, the author "argues that Bush has not just pushed the limits of executive power but has transgressed them, threatening the very foundations of American government. For Pfiffner, Bush’s actions have challenged and undermined fundamental rights, the balance among the three branches, the possibility of republican government, and even the rule of law."

The book "covers a lot of ground,"

from various background considerations about executive power to four cases of alleged overreaching. This is controversial stuff, and Pfiffner’s account invites a number of criticisms, most of which he seems to anticipate. For example, one might ask whether Pfiffner unfairly singles out Bush. After all, other presidents have engaged in some of these actions, too. Pfiffner concedes that during the twentieth century, most presidents have dominated Congress, but he claims that “this domination reached a peak under the presidency of George W. Bush” (p.57). For Pfiffner, Bush simply went much further than his predecessors.

Ultimately, Power Play "is an accessible account of some the ways in which the Bush Administration has advanced controversial claims about executive power and why their actions are constitutionally dangerous. The book should appeal to scholars of American politics, the presidency, and public law."

Read the rest here.

The Preeminence of Politics: Executive Orders from Eisenhower to Clinton by Ricardo Jose Pereira Rodrigues (LFB Scholarly Publishing, 2007) is reviewed by David Dehnel, Department of Political Science, Augustana College. "According to Richard Neustadt’s classic study, the essence of presidential power is the power to persuade, not command," Dehnel writes.

Yet, through executive orders and other vehicles, presidents often adopt the posture of command. In THE PREEMINENCE OF POLITICS, Ricardo Jose Pereira Rodrigues argues that in practice executive orders confirm Neustadt’s thesis. Executive orders are shaped by the president’s political environment, and their effectiveness is constrained by actors inside and outside the government. Rodrigues concludes that the active use of executive orders by modern presidents does not signify a dangerous expansion of executive power.

In this study, Rodrigues is concerned with political checks on presidential power, and, for the most part, sets aside legal considerations. Accordingly, the interaction of law and politics is not much explored in this book, rendering the study less interesting to scholars of public law than, for example, Phillip Cooper’s excellent BY ORDER OF THE PRESIDENT....For Rodrigues, it does not matter whether an executive order has any foundation in statutory or constitutional law, the president is simply exercising power (executive or legislative) that is shared with Congress. As I will argue below, this approach necessitates that the book’s upbeat conclusions be qualified.

Continue reading here.

Also reviewed: Peter J. Spiro, Beyond Citizenship: American Identity After Globalization; Kyndra Miller Rotunda, Honor Bound: Inside the Guantanamo Trials; Barry Vaughan and Shane Kilcommins, Terrorism, Rights and the Rule of Law: Negotiating Justice in Ireland; and Lawrence M. Friedman, Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy.

The Special Committee on Administrative Law

[The following is the sixth in a series of posts on Roscoe Pound and the administrative state. The series starts here.]

Louis G. Caldwell came to Washington in 1928 from the Chicago law firm of Kirkland & Ellis as the first general counsel of the Federal Radio Commission, with a mission to make the airwaves safe for commercial radio in general and WGN--a Kirkland & Ellis client--in particular. The task required only a few months, after which Caldwell resigned to become the Chicago firm’s first resident partner in Washington. Over the next years he watched with growing dismay as party politicians converted the radio commission into a vehicle of party competition. The award of a license had become “a form of patronage,” he complained. Under the prevailing, “substantial evidence” standard, judicial review was “a mere empty shell,” at least whenever an "administrative tribunal (through its attorneys) consciously frame[d] its findings of fact with an eye not so much to the evidence as to justify an a priori decision.”

In 1932, convinced that practitioners before other federal agencies shared his plight, Caldwell, who chaired the American Bar Association’s Committee on Radio Law, urged the ABA’s president to appoint a committee to address administrative law and procedure throughout the federal government. “To my surprise and dismay,” he recalled, “I was appointed chairman of the Committee, with the obligation to report to the next meeting of the Association.” FDR’s First Hundred Days intervened, so that when the “Special Committee on Administrative Law,” convened Caldwell found himself not with a relative modest project of law reform of little interest to most American lawyers, but at the center of New Deal politics.

Especially when compared to the polemics of the late 1930s, Caldwell’s reports for the special committee were remarkably cosmopolitan. Although he insisted on “a complete review on the facts as well as on the law,” he did not propose intrusive review by the federal judiciary, the American equivalent of A.V. Dicey’s “ordinary Courts of the land.” Rather, Caldwell looked to the Continent--in particular, French and German administrative courts, for inspiration. (In 1933 he even ventured that Italy’s and Russia’s “experiments afford[ed] interesting tests of the adequacy of certain methods of administration”!) Caldwell’s committee proposed that existing legislative courts (such as the Board of Tax Appeals and the Court of Customs and Patent Appeals) be combined into a single, multi-panel body as a kind of pilot for a more comprehensive administrative court.

The ABA never formally endorsed the administrative court bill, largely because of the objections of lawyers specializing in the work of existing agencies, who did not want to have to “begin at the beginning” with a new court. Caldwell was also plagued by a disruptive presence within his committee, Ollie Roscoe McGuire, counsel to the Comptroller General. (“Colonel” McGuire is pictured at right, in the garb of a major in the U.S. Army’s Finance Reserve Corps.) In some obscure capacity, McGuire had helped James Montgomery Beck, a Republican Solicitor General, write his anti-statist screed, Our Wonderland of Bureaucracy (1932). McGuire also cultivated ties to his fellow Kentuckian Mills Logan, a member of the Senate Judiciary Committee. McGuire produced a flood of wildly bombastic articles and speeches attacking administrative agencies; in private dealings he was impetuous and capable of stunning betrayals of confidences. At last he wore Caldwell down and claimed the chairmanship of the Special Committee when the radio lawyer surrendered it in the summer of 1935. In 1936 McGuire produced a more comprehensive administrative court bill, mostly, it was widely believed, so that he could become its chief justice.

Washington’s legal specialists continued to oppose any administrative court; moreover, McGuire faced an attack from a new, Diceyan quarter, in the guise of a dissenter within his committee, the Minnesota lawyer Monte Appel. While McGuire thought it obvious that generalist judges could not handle administrative appeals, Appel countered that he “believed in the well-rounded, well-seasoned, well-trained lawyer on the bench” and had “much more faith in him than in the so-called expert.” He considered the existing federal judiciary “the only reliable bulwark against the invasion of the rights of the citizen.”

McGuire bulled ahead, with unseemly explosions of anger at his opponents and poorly thought-out proposals that he sometimes neglected to bring to his committee. He and Appel publicly bickered at the ABA’s House of Delegates in January 1937. Charges and countercharges continued over the ensuing months as the drama of the Court-packing plan played itself out.

That summer McGuire proposed a wholly new approach, which would eventually become the notorious Walter-Logan bill of 1939 (on which see George B. Shepherd’s careful study in volume 90 of the Northwestern University Law Review.) Over Appel’s dissent, the special committee now proposed a series of review boards within each agency and department, with a generous grant of standing to “aggrieved” persons and strict requirements for written records and findings of fact. Review by federal courts of the internal boards was to be in line with existing, deferential law, but agencies’ rules and regulations were to be subjected to immediate, declaratory review in the Court of Claims. At its meeting in Kansas City in late September 1937, the Board of Delegates adopted McGuire’s proposals, but only as a “declaration of principle” and only after most “old-line” agencies, including the Bureau of Internal Revenue and the Interstate Commerce Commission, had been exempted from its provisions.

Arthur T. Vanderbilt, the ABA’s new president, voiced the leadership’s dismay at the situation when the Board of Governors met privately on October 2, 1937. “The Administrative Law Committee, now, as formerly, has been a one-man committee,” Vanderbilt explained. Although “there have been brilliant men on the Committee, they have shown a flare for breaking out at the wrong time.” Convinced that administrative law was “going to be our hottest spot during the present year, second only to the Supreme Court fight,” Vanderbilt decided, as he later put it, that “what was needed was a more objective approach.” Washington lawyers were clamoring for McGuire’s head and demanding that one of their number be appointed in his place, but Vanderbilt wanted to appoint “an outstanding man . . . who will look at the thing in a very broad way, and who will be prepared to give a large amount of time to it.” Three days later, just over a month since his return to Cambridge to take up a university professorship, Roscoe Pound became the chairman of the Special Committee on Administrative Law.

[The series continues here.]

Law & Humanities Junior Scholar Workshop call for papers

UCLA School of Law, Columbia Law School, University of Southern California Center for Law, History & Culture, and Georgetown University Law Center invite submissions for the sixth meeting of the Law & Humanities Junior Scholar Workshop to be held at Georgetown University Law Center, Washington, D.C. on June 7 & 8, 2009. Hat tip.

PAPER COMPETITION: The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, the Workshop welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinary itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible as long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.

Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 9, 2009, and should be sent by e-mail to:
Center for the Study of Law and Culture
culture@law.columbia.edu
Columbia Law School
435 W. 116th Street
New York, N.Y. 10027

Please be sure to include your contact information.

For more information: Tanisha Madrid, 212.854.0692 or culture@law.columbia.edu.

Tidmarsh and Figley on The Appropriations Power and Sovereign Immunity

The Appropriations Power and Sovereign Immunity is a new article by Jay Tidmarsh, Notre Dame Law School and Paul Figley, Washington College of Law, American University. It will appear in the Michigan Law Review (2009). Here's the abstract:

Historical discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence -- or non-existence -- of sovereign immunity begin with the English and American common-law doctrines of sovereign immunity, and ask whether the founding period altered that doctrine. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690-1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English common-law decisions on sovereign immunity. After (and in part because of) the Bankers' Case, settling claims against the Crown became a function for Parliament, swept up within its newly won powers over finance and appropriations. The principle of legislative supremacy over appropriations effectively replaced the principle of common-law sovereign immunity. Examining the salience of this thesis for the American colonies, the Confederation, and the formation of the Constitution, the article demonstrates that the Appropriations Clause of the Constitution embedded a principle of congressional supremacy over the handling of monetary claims against the United States. The view that the Appropriations Clause prevented judicial determination of monetary claims against the United States was shared in early cases and by early commentators, whose views have since disappeared in discussions over the scope of sovereign immunity.

Hagley Research Seminar Series

Here, belatedly, is the schedule for the Hagley Research Seminar Series for 2008-09. The series meets on Thursday evenings at 6 PM at the Hagley Museum and Library in Greenville, Delaware, about four miles from downtown Wilmington. Papers are works in progress circulated in advance to conference participants. For more information, contact Carol Lockman at clockman@hagley.org.

September 18, 2008
Janice Trafley, Bucknell University: "Courting Women Stockholders: Brokers' Marketing Practices in the 1950s and 1960s and the Democratization of the Stcok Market"

October 23, 2008
Mansel Blackford, Ohio State University: "Fishing and Over Fishing, 1976-2006: American Experiences in Global Perspective"

February 12, 2009
Shane Hamilton, University of Georgia: "Supermarkets, Monopsony Power, and the American Century"

March 12, 2009
Elizabeth and Ken Fones-Wolf, West Virginia University: "Shirtsleeve Religuon: Business and the Post-War Industrial Chaplain Movement"

April 16, 2009
Ross Thomson, University of Vermont: "The Continuity of Wartime Innovation: The Civil War Experience"

D.C. Area Legal History Roundtable: The Pod- and Webcasts

As heralded here, the D.C. Area Legal History Roundtable convened at Georgetown Law on Friday, September 19, to hear four papers and accompanying comments. Now the webcast and a downloadable podcast are available here.

Customs and Commerce in Antebellum America

Alexander Hamilton and the Problem of Revenue in the Age of the American Revolution.
Gautham Rao, University of Chicago

Policy Entrepreneurship and the Warehousing Act of 1846.
Phillip W. Magness, George Mason University

Comments by Lawrence Peskin and James May

Moderated by Adam Mossoff

Citizenship and Protest: Puerto Rican Workers and American Suffragettes

A Rightless Status for Puerto Ricans: The Twilight of U.S. Citizenship, 1909-1917.
Sam Erman, University of Michigan

Parades, Pickets, and Prison: Alice Paul and the Virtues of Unruly Constitutional Citizenship.
Lynda G. Dodd, Washington College of Law, American University

Comments by Robyn Muncy and Dan Ernst

Moderated by Tanya Hernandez

Walker on The Anti-Case Method: Recovering the Hidden History of Criminal Law

The Anti-Case Method: Recovering the Hidden History of Criminal Law is a new article by Anders Walker, Saint Louis University School of Law. It is forthcoming in the Ohio State Journal of Criminal Law. Here's the abstract:

This article is the first to recover the dramatic transformation in criminal law teaching away from the case method and towards a more open-ended philosophical approach in the 1930s. It makes three contributions. One, it shows how Columbia Law Professor Herbert Wechsler revolutionized the teaching of criminal law by de-emphasizing cases and including a variety of non-case related material in his 1940 text Criminal Law and Its Administration. Two, it reveals that at least part of Wechsler's intention behind transforming criminal law teaching was to undermine Langdell's case method, which he blamed for producing a "closed-system" view of the law that contributed to the destruction of the first half of the New Deal. Three, it shows that Wechsler's text inspired an entire generation of law teachers who believed that criminal law should be taught as a "liberal arts" course, precisely so that law students would not become criminal lawyers. The legal academy's disdain for criminal practice, this article concludes, allowed scholars like Wechsler to introduce innovations in criminal law teaching that became a subsequent model for law teaching generally in the United States during the latter half of the Twentieth Century.

Wriggins on Race, Remedies and Damages in Tort Litigation, 1865-2007

Damages in Tort Litigation: Thoughts on Race and Remedies, 1865-2007 is a recent article by Jennifer Wriggins, University of Maine School of Law. It appeared in Review of Litigation (2007). Wriggins is expanding this work in a forthcoming book with Martha Chamallas, THE MEASURE OF INJURY: RACE, GENDER, AND THE LAW OF TORTS (forthcoming 2008). To read more now, see related articles by Wriggins and Chamallas, cited in the first footnote of this article. Here's the abstract:

The relationship between remedies and race in U.S. tort law merits attention. This essay first challenges the boundary between civil rights and tort remedies by highlighting a stunning but previously overlooked 1959 Fifth Circuit case where an individual tort remedy served as a significant civil rights remedy in the integration of public transportation throughout the South. Second, the essay focuses on the relationship between race and damages from 1865 to the present. It argues that the torts system provided access to indigent plaintiffs of all races during periods when poor people were otherwise denied legal representation in every other context. Yet, the classic tort remedy, money, was less readily dispensed to black plaintiffs than to other tort plaintiffs. Recent information suggests that tort remedies are still affected by race in ways that merit more attention.

Fall legal history speakers at Boston University

Clark History Series

The Elizabeth Battelle Clark Legal History Series brings several distinguished historians of law to campus each year to lecture and talk with students and faculty. The BU community and the general public are all welcome to attend. For more information, please contact any of the following:
Kris Collins, collinsk@bu.edu
Gerry Leonard, gleonard@bu.edu
David Seipp, dseipp@bu.edu

Fall 2008 Speakers
Wednesday, September 24th at 4:30
Professor Bernadette Meyler, Cornell Law School, "Defoe and the Written Constitution"

Wednesday, October 8th at 4:30
Professor Kerry Abrams, University of Virginia School of Law, "Marriage, Immigration, and the Settlement of the West: The Case of the Mercer Girls"

Wednesday, October 15th at 4:30
Professor Daniel Sharfstein, Vanderbilt Law School, "Becoming White in Washington, D.C.: The Passing of the Wall Family,1870-1910"

Wednesday, October 29th at 4:30
Professor Diana Williams, Wellesley College, History Department, "Staging The Octoroon in Reconstruction New Orleans"

Wednesday, November 12th at 4:30
Professor Claire Priest, Northwestern Law School, "Understanding the End of Entail: Information, Institutions, and Slavery in the American Revolutionary Period"

Friday, November 21st at 2:30
Professor Kent Newmyer, University of Connecticut Law School, "The Treason Trial of Aaron Burr: Law, Politics, and the Character Wars of the New Nation"

Room 920

Boston University School of Law

Papers available upon request

Please contact Melinda Peterson (mapeters@bu.edu)

Refreshments will be served.

Berger on Racism and American Indians

Bethany Berger, University of Connecticut School of Law and Oneida Nation Visiting Professor of Indian Law, Harvard Law School, draws upon history in her new article, Red: Racism and American Indians. It will appear in the UCLA Law Review (2009). Here's the abstract:

How does racism work in American Indian law and policy? Scholarship on the subject has too often assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of White-Black racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-White interaction to argue that racism has been important in those interactions, but has worked in a distinctive way. North Americans were not primarily concerned with using Indian people as a source of labor, and therefore did not have to theorize Indians as inferior individuals to control that labor. Rather, the primary concern was to obtain tribal resources and use tribes as a flattering foil for American governments. Therefore it was necessary to theorize tribal societies as fatally and racially inferior, while emphasizing the ability of Indian individuals to leave their societies and join non-Indian ones. This theory addresses the odd paradox that the most unquestionably racist eras in Indian-White interaction emphasized and encouraged assimilation of Indian individuals. It contributes to the ongoing effort to understand the varying manifestations of racism in a multi-racial America. Most important, it provides a new perspective on efforts to curtail tribal sovereignty in the name of racial equality, revealing their connection to historic efforts to maintain the inferiority of Indian tribes by treating them as racial groups rather than political entities with governmental rights.

Mirow on Mario Diaz Cruz and the Comparative Juridical Review

Comparative Law in Miami: Mario Diaz Cruz and the Comparative Juridical Review is a new essay by M. C. Mirow, Florida International University College of Law. It appear in French in Revue de droit international et de droit compare (2008). Here's the abstract:

This article discusses the work of the Cuban exile Mario Diaz Cruz, Jr., in the field of comparative law and his editing of the Comparative Juridical Review published in Miami from 1964 to 1994. With particular focus on Latin America, the bilingual Review was published through Diaz Cruz's small, independent institute of comparative law. In the 1990s, the institute sought to draft provisions for property reclamations in post-Castro Cuba.

Bilder on Colonial Constitutionalism and Constitutional Law

Colonial Constitutionalism and Constitutional Law is a new essay by Mary Sarah Bilder, Boston College Law School. It will appear in THE TRANSFORMATION IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF MORTON J. HORWITZ, Alfred L. Brophy, Daniel W. Hamilton, eds., Harvard University Press, 2008. Papers in this collection are being discussed at A Conference in Honor of Professor Morton Horwitz over the next two days, September 26 and 27, at Harvard Law School. Here's Bilder's abstract:

This essay reconsiders the transformation of colonial constitutionalism to Constitutional Law. The transformation of constitutional law does not map neatly onto the 1776 - 90 period. This essay argues that the transformation was less the result of the admittedly important invention of a written constitution than of three less apparent transformations. A first essential transformation in constitutionalism occurred long before 1776 when seventeenth-century colonists created a new conception of the written and published charter as the location of authority and liberties. A second essential transformation occurred only after 1790 when appeals in judicial cases began to be publicly reported in print, thereby creating a stable and analyzable body of law. A third essential transformation occurred in 1787 - but with implications not immediately appreciated. Privy Council review of colonial legislation ended and no similar review took its place, thus leaving the judiciary the sole arbiter of constitutional law. These three transformations created modern American constitutionalism - a law two centuries in the making.

Academic Freedom and Law

The Frederic Ewen Academic Freedom Center announces a symposium, "Academic Freedom and the Law," to be held at the Helen and Martin Kimmel Center, 60 Washington Square South, New York City, on November 13, 2008, from 2:00 to 5:00.

“The Constitutional Law of Academic Freedom”
Robert Post, Professor of Law, Yale University

Comment: Greg Lukianoff, President, Foundation for Individual Rights in Education

“Academic Freedom in the Wired Age”
Robert M. O’Neil, Professor Emeritus, University Virginia and Director of the Thomas Jefferson for the Protection of Free Expression

Comment: Rachel Levinson Waldman, Senior Counsel, American Association of University Professors

Norman Dorsen, Professor of Law, New York University, will chair the symposium.

For more information or to RSVP, contact zk3@nyu.edu

Hovenkamp on the Neoclassical Business Firm

The Law of Vertical Integration and the Neoclassical Business Firm: 1880-1960, is a recently posted paper by Herbert J. Hovenkamp, University of Iowa College of Law. Together with papers previously noted here and here, it will appear as a chapter in the projected book, The Marginalist Revolution in American Legal Thought. Here is the abstract:

Vertical integration occurs when a firm does something for itself that it could otherwise procure on the market. For example, a manufacturer that opens its own stores is said to be vertically integrated into distribution. One irony of history is that both classical political economy and neoclassicism saw vertical integration and vertical contractual arrangements as much less threatening to competition than cartels or other horizontal arrangements. Nevertheless, vertical integration has produced by far the greater amount of legislation at both federal and state levels and has motivated many more political action groups. Two things explain this phenomenon. First, while economists prior to the 1930s rarely saw a threat, neither did they understand why firms integrate or enter into long term contracts, except for fairly obvious savings in production costs. Second, vertical integration led to many bankruptcies of small family businesses unable or unwilling to take on the costs and associated risks of integrating vertically themselves. When that happened, politics inevitably triumphed over economics.

Both the common law and classical economists tended to view vertical integration favorably. The principal limitation on vertical integration by contract was common law rules limiting restraints on alienation. The managerial revolution in the United States in the nineteenth century occasioned the rise of significant vertical integration. At the same time, however marginalist, or neoclassical, economics first began to see significant competitive problems. The emergent legal policy toward vertical control by contract was developed first in intellectual property law's "first sale" doctrine, and later on in antitrust policy.

In his 1937 article on the "Nature of the Firm," Ronald H. Coase formulated a purely marginalist theory of vertical integration, but it was ignored by both economists and legal policy makers for nearly half a century. Economists continued to wrestle with theories that were far more myopic, and as a result much less satisfactory. The result was that vertical integration became much more vulnerable to special interest legislation than did competition policy generally. By the mid-twentieth century a set of aggressive antitrust policies had emerged that dealt harshly with both vertical integration by contract and ownership vertical integration.

Port on The Story of Article 9 of the Japanese Constitution

The Story of Article 9 of the Japanese Constitution is a paper by Kenneth L. Port, William Mitchell College of Law. Only the abstract is posted. I read an earlier paper by Professor Port on Article 9 some time ago, and one important aspect of his work is his use of Japanese language sources, which I suspect he draws upon in this paper as well. As with any SSRN posting without a full paper, those interested in more should contact the author. Here's the abstract:

Japan has been experiencing an odd constitutional challenge for over 60 years. In Article 9 of the Constitution, which Americans drafted after World War II, Japan renounces belligerent war. However, within the society, multiple meanings of Article 9 have developed. Each "story" of Article 9 seems as legitimate as the next because the Supreme Court has abdicated their responsibility to resolve this important constitutional issue by calling Article 9 a non-justiciable, political question. Therefore, the only entity that has been silent on what Article 9 means is the Supreme Court. As a result, there are many, many interpretations of what Article 9 stands for. On one extreme are Article 9 Society groups that claim that it stands for the proposition that Japan is a completely pacifist nation and may not possess any military for any purpose. On the other extreme, the Liberal Democratic Party that has ruled Japan for most of the post-WWII era feels Article 9 restrains the military somewhat but does not prevent it from becoming one of the largest militaries in the world by dollars spent.

This situation of not having a Supreme Court ruling on this important societal issue transforms this into a moral, ethical, or spiritual debate, not a legal or constitutional one. This debate has come to play the role in Japan that abortion has played as a rhetorical and political issue in the United States. However, because there is no Supreme Court ruling, it is a debate over Roe v. Wade without the Roe v. Wade.

Pound at Large and at Bay

[The following is the fifth in a series of posts on Roscoe Pound and the administrative state. The series starts here.]

Roscoe Pound maintained his tolerant view of the administrative state as long as he believed that most lawyers and legal scholars believed with him that common lawyers could and should subordinate the discretion of administrators to “justice according to law.” He perceived reassuring signs of their shared commitment into the 1930s, but by the middle of the decade--and as others have noted--he had to acknowledge that a “juristic left wing” had rejected his views and was ascendant in the legal academe and the New Deal.

Throughout the 1920s, Pound received many gratifying acknowledgments of his intellectual leadership in the guise of invitations to address bar associations. From Vermont to Utah, he used these as occasions to repeat charge common lawyers with the containment of the administrative state. As in his earlier articles, Pound adopted presented the challenge without alarm. He reminded Oklahoma’s solons that “the epoch-making achievements of legal history have resulted from infusions into the law from without rather than from professional creative activity from within.” He cautioned the bar against A.V. Dicey’s equation of the rule of law with the supremacy of common-law courts. “The administrative tribunals of France,” he lectured Utah’s lawyers in 1927, “are in spirit and in conduct . . . ordinary courts.” Dicey’s “confident distinctions” between England and the Continent had “at least [lost] their edge.” Again: although Magna Carta still had meaning for the United States in 1928, it was not the last word in governance. “Continental Europe has shown signs of moving in our direction as we have in theirs.” Even the First Hundred Days of Franklin D. Roosevelt’s administration did not immediately shatter Pound’s faith that the common law would absorb and contain administration. The “constant swinging back and forth from reliance mainly on rules to reliance chiefly on personal judgment and discretion” was surely evident, he declared at the University of Cincinnati's law school in June 1933, but “a new process of crystallizing will presently supervene.” “The new institutions will presently fall into a legal mode,” he prophesied, and “in the end we shall lose little that is significant in our inherited law.”

Pound did not have to rely on the applause of practitioners for affirmation in the 1920s; it came in comforting quantities from many other sources. All hands traced the origins of the judicial council movement, which sought to professionalize judicial administration, to his St. Paul address. Students of the courts, such as the West Virginia law dean Thurman W. Arnold and the Yale law professor Charles E. Clark publicly--though, between themselves, mockingly--acknowledged their debt to the great man. In 1925 the University of Wisconsin offered him its presidency and a princely salary. (In the end, Pound refused to abandon his “life’s work,” legal education and legal research.) President Herbert Hoover appointed him to a commission, headed by the former attorney general George Wickersham, to investigate criminal law enforcement and Prohibition. Pound wrote the commission’s final report, published in 1931. As he completed it, he was widely mentioned for the seat on the World Court that Charles Evans Hughes vacated to become Chief Justice of the United States.

His celebrity in 1931 was the acme of his career. As Laura Kalman has detailed, since 1928 Harvard’s law faculty had grown increasingly restive under Pound’s suzerainty, until at last even Joseph Henry Beale was overheard complaining that the dean was growing “nuttier and nuttier.” Many on the faculty felt Pound should have fought harder when President Abbott Lawrence Lowell declined to appoint two proteges of Felix Frankfurter, Nathan Margold and Wilbur Katz. Others could not stand his refusal to delegate, his lengthy absences during the deliberations of the Wickersham Commission, and his growing irascibility. In 1934, Harvard’s new president, James Bryant Conant, alarmed by Pound’s “feuding with the faculty,” started attending its meetings and was distressed to find there “the most quarrelsome group of men I ever encountered.” At last in September 1935, Pound announced his retirement, effective a year hence, when he would conclude his twentieth year as dean.

Losing the respect of his faculty was bad enough; losing the mantle as the nation’s most progressive scholar of jurisprudence was even worse. During his long deanship, Pound made no discernible progress on his projected great work of sociological jurisprudence. As that project stagnated other scholars, especially at Columbia and Yale, brought more recent developments in empirical social science to the law. The impatience of these “legal realists” with Pound burst into view in 1930, in a dispute that N.E.H. Hull has aptly termed “perhaps the most famous controversy in the history of American jurisprudence.” In The Bramble Bush (1930), Karl N. Llewellyn declared that what officials “do about disputes is . . . the law itself” and, in a related article, accused Pound of outdated “precept-thinking.” “At times [his] work purports clearly to travel on the level of considered and buttressed scholarly discussion,” Llewellyn wrote, “at times on the level of bedtime stories for the tired bar; at times on an intermediate level, that of the thoughtful but unproved essay.” Still more provoking was Jerome Frank’s Law and the Modern Mind (1930), which accused jurists who insisted on certainty in the law of emotional immaturity. According to Frank, they sought an infallible substitute for their all-too-fallible fathers. Pound came in for a skewering, quite unfairly, he believed, for he was convinced that Frank had misquoted him. “I cannot afford to discuss anything with one who uses such tactics,” he lectured Llewellyn, “and should like to suggest to you whether you can afford to identify yourself with him.”

The quarrel played out in the law reviews in 1930-31 and has been most carefully studied by Hull. For present purposes, the most important aspect of the debate was its implications for the administrative state. If law were just what officials did, if it were just an artifact of the psyche, then “justice according to law” was a myth and politics an unchained monster. So closely did Llewellyn’s and Frank’s arguments stand in his thinking that he tended to conflate the two under the rubric of “give-it-up” philosophies. Both men, it seemed to Pound, had abandoned the search for law as something more than the threats of force against those deemed obnoxious by the politically powerful. Thus, he privately described Law and the Modern Mind as “a highly sensational book chiefly important as revealing the frame of mind of a group of men who believe that law is whatever those who administer it choose to do.”

Pound tried to contain the “juristic left wing” by relating their insights to his more comprehensive view of law. (Llewellyn and Frank had hold of a piece of the elephant, Pound implied; Pound saw the elephant whole.) That he might fail to do this became apparent on December 30, 1933, at a session the annual meeting of the American Association of Law Schools. Pound spoke first. He conceded that both sides in the controversy had “its eye on something significant.” The realists aptly noted that, in some sense, “everything that enters into or affects the judicial process is ‘law.’” Yet rather than attempt to appropriate the term law for what, in Pound’s schema, was just one of four meanings of the word, the realists should, in turn, conceded that legal precepts and principles were a distinct source of law. He concluded on a chivalrous note: “So, Mr. President, as one who has borne the heat of the day in jurisprudence for a generation, I can only say to those who are coming forward to do battle: ‘Venite fortior me post me.’”

Anyone who expected the next speaker to meet Pound in direct combat was to be disappointed. Since the preceding summer, Jerome Frank had been serving as General Counsel of the Agricultural Adjustment Administration (AAA), and he was too consumed with implementing one of the New Deal’s most ambitious regulatory schemes to engage in jurisprudential debate. To be sure, he repeated his dismissal of the notion of binding, a priori legal principles. “Principles are what principles do,” he famously declared. Yet he was far more interested in reporting on the pitched legal combats of the New Deal. His most memorable conceit was a contrast of two fictional government lawyers, “Mr. Absolute” and “Mr. Try-It.” Mr. Absolute indulged in “the Jovian fiction” that “the true, pertinent legal principles must prevail” whatever the consequences. In fact, because of a psychological predisposition, he was bound to arrive at the functionally desirable result, yet because he had to “attitudinize to himself,” he “wast[ed] time, proceed[ed] unnecessarily by indirection, and burn[t] up his energies needlessly.” Mr. Try-It’s point of departure, in contrast, was the desirability of a given program. He forthrightly looked for ways to justify it and generally succeeded in finding “satisfactory premises” that lead to his conclusion. “There are, so to speak, plenty of vacant premises which can be sufficiently repaired or remodeled,” Frank opined.

Pound could have scarcely encountered more galling evidence that the “give-it-up” theorists and their legion of Mr. Try-Its were running the New Deal while he was mired with a squabbling faculty in Cambridge. Frank’s dismissal from the AAA in the “purge” of 1935 must have been gratifying, but, if so, the realist’s return to Washington as a commissioner of the Securities and Exchange Commission (SEC) would have been alarming. By 1936, a militant tone, previously reserved for private communications, had crept into Pound’s public statements and publications. Pound did not suddenly convert to “mechanical jurisprudence”: Blaisdell and Nebbia, he wrote, were “not at all sudden and radical departures”; on the contrary, they were “in line with an established view of what is reasonable.” He did feel obliged to demonstrate the superiority of the courts to administration, however. In January 1936 he favorably contrasted equity courts’ powers of “visitation” over corporations with the free-wheeling authority of public service commissions and the SEC under the Public Utility Holding Company Act of 1935. “Much more danger of arbitrary action has arisen” under administrators, he warned, “than exercise of the visitatorial jurisdiction by the courts could possibly carry with it.” And at an international gathering of jurists held at Harvard a month shy of the end of his deanship, he warned that law--“the voluntary subjection of authority and power to reason,” a “traditional technique” of applying “principles drawn from recorded judicial experience”--was under attack around the world and “most aggressively in the United States.” (One feels compelled to object: more aggressively than Nazi Germany or Soviet Russia?) Earlier, Pound wrote as if the domination of administration by the common law was inevitable; in August 1936, he wrote as if it was very much in doubt.

Pound stepped down from the deanship in September 1936 and then onto a steamship for a round-the-world cruise on February 4, 1937. The next day President Roosevelt announced a plan to increase the size of the U.S. Supreme Court by appointing one justice for each sitting member over seventy and one half years of age. Pound could only look on from abroad, one assumes, with mounting frustration, as the great struggle for judicial supremacy raged. Although the battle won by the time he debarked in New York on August 31, 1937, he was still in a fighting mood. The Court-packing plan “was one of the most outrageous things that ever occurred in American legal history,” he fumed at dockside.

Until the Court-packing plan, Pound had always been willing to chide practitioners for their conservative attachments and to caution them against mounting an “obstinate, rear-guard action” against reform. In the fall of 1937 he was eager to stand shoulder-to-shoulder with them at the ramparts. As it happened, the chieftains of the American Bar Association was about to give him with the opportunity to do just that.

[The series continues here.]

Two by Honoré on Justinian's Digest

Tony Honoré, University of Oxford, Faculty of Law, has posted two SSRN papers on Justinian’s Digest. The first is Justinian's Digest: The Distribution of Authors and Works to the Three Committees:

This essay addresses a set of related problems about the compilation of Justinian's Digest. Suppose that, as scholars have long believed, Bluhme was right in detecting the existence of three separate masses of works to be read and excerpted by the Digest commissioners and of three separate committees (the Sabinian, the Papinian and the edictal) to read them. How, then, was it decided which works to allot to each mass, and which works should be read together? The allocation was crucial, because Tribonian could not personally supervise the selection of texts made by the committees, at any rate those on which he did not himself serve. How did he ensure that the best texts would be chosen?

The second is Duplicate Texts and the Compilation of the Digest:

Efforts to investigate the compilation of Justinian's Digest go back in one way or another to Friedrich Bluhme's 1820 article on the regular sequence of inscriptions in the Digest titles, a sequence that is especially visible in D 50.16 and 50.17. This includes the phenomenon of duplicate texts (leges geminae/geminatae), on which Bluhme also compiled, in the same year, a special study. Duplicate texts tell us something about how the Digest commissioners worked, and especially about the different attitudes of the three committees towards excerpting texts for the Digest.

Image credit.

Pritchard and Thompson on Securities Law in the New Deal

Securities Law and the New Deal Justices is an extremely timely post of a forthcoming paper by two first-rate and historically minded scholars of securities regulation, Adam C. Pritchard, University of Michigan Law School, and Robert B. Thompson, Vanderbilt University School of Law. The article, which treats such "Founding Fathers" of securities law as William O. Douglas, pictured at right as chairman of the Securities and Exchange Commission, is forthcoming in the Virginia Law Review 95 (2009). Here's the abstract:

Taming the power of Wall Street was a principal campaign theme for Franklin Delano Roosevelt in the 1932 election. Roosevelt's election bore fruit in the Securities Act of 1933, which regulated the public offering of securities, the Securities Exchange Act of 1934, which regulated stock markets and the securities traded in those markets, and the Public Utility Holding Company Act of 1935 (PUHCA), which legislated a wholesale reorganization of the utility industry. The reform effort was spearheaded by the newly created Securities and Exchange Commission, part of the new wave of experts brought to Washington to rein in business. PUHCA also marked the federal government's first significant incursion into corporate governance, with a corresponding reduction in the traditional role of investment bankers. The SEC's ascendance over the investment bankers was reinforced during FDR's second term by the Chandler Act of 1938, which provided the agency with a broad role in the bankruptcy reorganization of troubled companies.

Enacting those statutes was only the beginning, as the scope and effectiveness of the SEC's regulatory efforts depended critically on navigating these new statutes past an initially hostile Supreme Court. After substantial delay in the lower courts, the securities statutes eventually got a friendly hearing in the Supreme Court, where a number of Justices came to the Court after serving as the "Founding Fathers" of the federal securities laws. Roosevelt's Supreme Court nominees were involved in drafting the new legislation, securing its passage in Congress and implementing a litigation strategy that successfully stalled final determination of the constitutionality of the securities laws until New Deal appointed justices were in place. Felix Frankfurter played an important role in shaping the Securities Act and PUHCA, and was a key advisor on litigation strategy to the Roosevelt administration. Hugo Black led the legislative battle to enact PUHCA against the utility companies. Stanley Reed and Robert Jackson were key courtroom advocates arguing PUHCA's constitutionality. William O. Douglas headed the study of Protective Committees that led to the Chandler Act and was Chairman of the SEC.

Hat tip: Legal Theory Blog. For more on the history of the Securities and Exchange Commission, consult the SEC Historical Society's virtual museum and archive here.

Chen on Wickard v. Filburn

Jim Chen, Dean of the University of Louisville Brandeis School of Law, has posted his essay, The Story of Wickard V. Filburn: Agriculture, Aggregation, and Commerce, which appeares in CONSTITUTIONAL LAW STORIES, Michael C. Dorf, ed., 2d ed., Foundation Press (2008)( the 1st. ed. is here). There is much to agree with in this essay, which is a helpful explication of the confusing agricultural policy issues affecting this important case. Chen leaves just one thing out, and it is a very important thing: the impact of World War II on the Court's Commerce Power jurisprudence. This matter surfaced even in the facts of Wickard: Farmer Filburn was confused by a speech given by the Secretary of Agriculture Wickard. The title of the address? "Wheat Farmers and the Battle for Democracy." The importance to the war and national security of American farmers and of federal control over many aspects of the economy including agriculture, was an important issue well known to a Court that had geared up for the war, even if Justice Jackson didn't address it in his opinion.

Here's Chen's abstract:

This article tells the story of Wickard v. Filburn, 317 U.S. 111 (1942). After providing a survey of American agriculture and its regulation between the World Wars, this article describes the constitutional landmark that began as a controversy over Roscoe Filburn's 1941 wheat crop. Wickard v. Filburn represents a pivotal moment in the Supreme Court's effort to define Congress's power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Greater turmoil over commerce clause jurisprudence has breathed new life into Wickard v. Filburn.

Image credit.

USC Center for Law, History and Culture -- fall workshops

The fall schedule for workshops at the USC Center for Law, History and Culture can be found here.

September 4
Daphne Barak-Erez (Faculty of Law, Tel Aviv University)
Topic: "Symbolic Constitutionalism: On Sacred Cows and Abominable Pigs."
Professor Barak-Erez will also address her book entitled, "Outlawed Pigs: Law, Religion and Culture in Israel."

September 10
Hiroshi Motomura (UCLA School of Law)
Topic: "Immigration Outside the Law."

September 24
Hilary Schor (USC English Department, USC Law School)
Topic: "Maidens Choosing": George Eliot, Curiosity, and the Law.

October 22
Renee Romano (Oberlin College, History Department)
Topic: " Do It Cause It's Good for Business": The Edgar Ray Killien Trial, Heritage Tourism, and Packaging History in Neshoba County, Mississippi."

November 5
Karen Cunningham (UCLA, Department of English)
Topic: "The Inns of Court and Shakespearean Comedy."

November 19
Nahshon Perez (Visiting at UCLA Dept. of Political Science and Israel Studies)
Topic: tba.

Unless otherwise indicated, workshops are in room 118/120 of the Law School from 12:20 p.m. to 1:30 p.m.