Au Revoir, Emily Kadens!

It's the end of the month and the conclusion of Emily Kadens's stint as guest blogger. I know that many readers are as grateful as Mary and I are for her posts, which have given us an engaging and informative look at her research and teaching. Thanks, Emily!

History of Bankruptcy Discharge

Having disposed of Justice de Grey,  I can now happily return to work on a piece on the origin of bankruptcy discharge in eighteenth-century England.  The Act of 4 & 5 Anne which included the first discharge provision was passed in mid-March 1706, though the literature often lists it as 1705.  Until 1752, England used Easter dating, where March 25 was the first day of the new year, so an act officially dated March 1705, actually--as far as we would date things--happened in March 1706.  Unfortunately, most of the main events in the story of this Act occurred in the first part of the year, and to complicate matters, some newspapers did not use Easter dating, so putting together a chronology of the documents has been a bit of a hassle.  I just want to mention a few intriguing aspects of the Act.  The impetus for it was the truly spectacular scam of a certain wholesale clothier named Thomas Pitkin.  Along with some accomplices, Pitkin gathered a lot (some sources say £70,000, others say £100,000) of cloth and other merchandise on credit, then hid it and absconded.  I've located some letters obligatory that he drew very shortly before fleeing, so I suspect he was gathering in cash, as well.  In any event, his fraud fell apart within days after he disappeared (or maybe it didn't.  There is a complaint in the manuscript journal of the House of Lords a year later that Pitkin's main partner in crime, Thomas Brerewood, was riding around town in his coach claiming that the creditors were the ones who were dishonest.  Also Pitkin appears to have gotten off scot free).  Pitkin's creditors petitioned Parliament for a statute condemning him and trying to get them their money back.  Parliament passed this law in March 1705.  In the debates in the House of Lords, one member proposed adding a more general clause addressed to fraudulent bankruptcy, but it was rejected.  (This is not apparent in the printed journal but only in the manuscript committee minutes.)   The House then ordered the common law judges to draw up a bill based on the rejected clause, and two days later an Act to prevent frauds frequently committed by bankrupts was read for the first time.  The House of Lords passed it, and sent it to the House of Commons, which had not read it the requisite number of times before Parliament was prorogued on March 14.  Virtually the same bill was re-introduced and read once in the House of Lords in November 1705 but was then dropped in favor of a longer version raised in the House of Commons in early 1706.  That version eventually became law in March 1706.

Fraudulent bankruptcy, it should be noted, had nothing to do with how the debtor became a bankrupt.  Thomas Pitkin could have pulled off his scam and yet still not been a fraudulent bankrupt, because fraudulent bankruptcy was committed if, after the creditors put the debtor into bankruptcy (it was not a voluntary procedure), the debtor did not follow the statutes to the letter in turning over his assets and books, submitting to be examined, and otherwise fully cooperating with the bankruptcy commissioners.

What is interesting about the 1706 bankruptcy bill, besides the fact that it arose somewhat accidentally, is that, first, it included not only discharge but also a provision making fraudulent bankruptcy a capital crime for the first time.  The interconnection between the carrot of discharge and the stick of the death penalty has not been given much attention.  The second interesting thing, related to the first, is that the original draft of the bill, from March 1705, had neither discharge nor capital punishment.  The Lords amended the judges' version--which had provided for life imprisonment and regular pillorying--to make fraudulent bankruptcy a felony without benefit of clergy (i.e., a capital crime).  That punishment provision actually fell out of the November 1705 draft, but it was replaced in the House bill.  Discharge appeared toward the end of the  legislative process, though because the House of Commons papers from the period are gone, it's not clear exactly when.  What is clear is that there was a certain amount of resistance to the concept.  As one merchant said in his testimony before the Lords in opposition to the discharge provision, "on his [the debtor's] oath swearing he delivers up all, he is discharged.  The debtor is here made judge, jury and all by his own oath." It's also clear that it was not a new idea.  Bankruptcy advocates had been talking about discharge since at least the late 17th century.  Discharge proved so unpopular that the following year the Act was amended to make it significantly harder to obtain.  For the next century or so, there was the phenomenon of the undischarged bankrupt: the debtor who had given over all his assets to the creditors, made a full disclosure, and still did not get his discharge.  Finally, the Act was written with a sunset provision.  That was one of the two original amendments put into the March 1705 Lords version, and the clause remained in the final bill.  Discharge (and the death penalty) were meant to be temporary, and at one point they were allowed to lapse.  But they were reinstated in 1718.  Between 1712 and 1813, four men were hanged for fraudulent bankruptcy.  Capital punishment was finally abolished in 1820, when punishment was made transportation for life or imprisonment at hard labor for up to seven years.  Discharge became a cornerstone of modern bankruptcy law. 

And now, my month of guest blogging being up, I will discharge my duty of thanking Mary and Dan for this opportunity.  It has been fun.

Louis Auchincloss: The Swaim Tape

Today's email brought a link to the "Wired for Books" website, which posts interviews by the radio broadcaster Don Swaim of a host of late twentieth-century writers, including Norman Mailer, John Updike, and Calvin Trillin (the subject of six interviews). All are available as downloadable MP3 files. I mention the collection on a Legal History Blog because it includes an interview of Louis Auchincloss, the literary chronicler of Manhattan's professional elite. The interview is of course no substitute for the novels and short stories, but it is a very interesting encounter with a participant observer of the patrician members of the "City Bar" of New York.

Image credit (and another appreciation).

Yu on old and new agendas in the history of development

A Tale of Two Development Agendas is a new article by Peter K. Yu, Drake University Law School. It appears in the Ohio North University Law Review (2009). Here's the abstract:

In October 2004, Argentina and Brazil introduced a proposal to establish the WIPO Development Agenda. Although scholars have focused primarily on this agenda, as well as the WTO Doha Development Agenda, development agendas have also been established at other international fora, such as those governing public health, human rights, biological diversity, food and agriculture, and information and communications. Interestingly, these development agendas bear strong resemblances to another set of development agendas less developed countries advanced in the 1960s and 1970s. Bringing together these two sets of development agendas, this Article examines whether the present agenda can avoid the path of its ill-fated predecessor.

The article begins by tracing the development of the Old Agenda. It discusses the drafting of the Stockholm Protocol, the formation of WIPO as a U.N. specialized agency, the establishment of the draft International Code of Conduct on the Transfer of Technology, and the revision of the Paris Convention. The Article then examines the different development agendas recently established at the WTO, WIPO, and other international fora. The Article concludes with six brief observations concerning the similarities and differences between the Old and New Development Agendas--with a focus on the various players, fora, and issues involved in the two agendas, the changing political environment surrounding the development of the New Development Agenda, the growing public awareness of intellectual property issues in the past decade, and the emergence of new ideas, concepts, and rhetorical frames that have been used to boost the New Agenda.

This Article suggests that the significant differences between the Old and New Development Agendas may provide hope for greater economic, social, cultural, and technological development in the less developed world. It nevertheless cautions that, if this hope is to be realized, less developed countries and their supporters need to take the New Development Agenda seriously and mobilize before they lose their momentum.

Page on the Gary Dinners

William H. Page, University of Florida College of Law, has posted a paper on an important chapter in the history of antitrust in the United States, The Gary Dinners and the Meaning of Concerted Action, forthcoming in the SMU Law Review. Here is the abstract:

Between 1907 and 1911, executives of American steel manufacturers gathered in a series of social events and meetings that became known as the Gary dinners. Their founder, Judge Elbert H. Gary, chairman of the board of the United States Steel Corporation, believed the dinners were a lawful way to stabilize steel prices by fostering information-sharing and an ethos of cooperation among manufacturers. The government agreed that the dinners stabilized prices, but took a different view of their legality. It brought suit in 1911, pointing to the dinners as one of the reasons why the court should dissolve U.S. Steel as an illegal monopoly. In 1915, a trial court composed of four members of the Third Circuit held that the dinners amounted to price fixing, but that U.S. Steel's resort to them only proved that it could not control steel prices on its own and therefore could not have monopolized the industry. In 1920, the Supreme Court affirmed.

Commentators have long questioned the Court's result on the issue of monopolization. In this essay, however, I focus on the intermediate conclusion that the dinners were concerted action, even though the participants avoided forming any verbal agreements about prices. I first describe the legal and historical circumstances in which the dinners occurred and what happened at them. I then examine the court's analysis of the dinners and extract some lessons that might help modern courts clarify the boundaries of the agreement requirement.

Image credit.

Tirres on Lawyers and Legal Borderlands

Lawyers and Legal Borderlands is a terrific new paper by Allison Brownell Tirres, DePaul University College of Law. Here's the abstract:

This article explores the role of the legal profession in urban development along the U.S.-Mexico border in the nineteenth century. It argues that lawyers, through their tripartite roles as land brokers, boosters, and social engineers, were one of the primary forces in social and legal transformation during this period. Drawing from research on one particular border town, that of El Paso, Texas, this article counters prior scholarship that has largely either underplayed the role of lawyers in western development all together, or treated them merely as instruments of capitalists and cattle ranchers. Lawyers in El Paso had a direct role in the conversion of El Paso from an isolated, frontier community to a burgeoning border metropolis. A key part of this change was the shift from a cooperative multiethnic community - where Anglo Americans, Mexican Americans, and Tigua Indians shared in the governance of the county and the disposition of the law - to one that was dominated by Anglo Americans only. This article demonstrates that as El Paso became more connected to other metropolitan areas, to state and federal governments, and to transnational commercial networks, it simultaneously became profoundly more stratified by race and national identity. By looking to El Paso's legal history and the changes in its legal culture during this time of transition, we can see how deeply involved were local lawyers not just in economic growth but also in racial and cultural boundary-drawing. These findings have repercussions for how we understand both the role of the legal profession and the mechanics of urban growth and development during the nineteenth century.

Image: Three men on a park bench, El Paso, 1906.

Another Judicial Fillip for Austrialian Legal History

Last month I noted Justice Michael Kirby's call for a greater place for legal history in the curriculum of Australian law faculties. Now comes another endorsement of the study of legal history by Sir Francis Gerard Brennan, a former Chief Justice of Australia. Especially notable is his assumption that legal historians should not set out to write consensual accounts--which made his own, school-boy encounter with the Australian history "dull and uninspiring"--but be alert to conflict. "Today our history is a matter not only of interest but of controversy," he explained. "At least the history wars have contributed to popular interest in the subject. Legal history must be part of it." More here.

Image credit.

History and Economic Regulation: The Tobin Project

The Tobin Project is, according to its mission statement, “an alliance of the nation’s leading academics united by a belief in the power of ideas and a shared commitment to using ideas to improve the lives of their fellow citizens. . . . [It] seeks to influence public debate by reaching both outward to connect with the policy community and inward to shape debate within the academic community.”

Several scholars in and around the field of legal history contributed working papers to a conference held in February 2008 on "Government and Markets: Toward a New Theory of Regulation.” Here are abstracts and links to several of those papers.

Mary O. Furner, University of California, Santa Barbara, From “State Interference” to the “Return of the Market”: The Rhetoric of Economic Regulation from the Old Gilded Age to the New

Words and ideas matter! Challenging progressive and pluralist interpretations of regulation policy, this paper explores the influence of economic theory and professional discourse in creating the contexts in which American policy makers and citizens considered relations between the state and the market. Rather than a compressed survey of the history of expert thinking about economic regulation, this paper identifies key “rhetorical moments” that launched a shift in the discourses of regulation and signaled a new policy era. I look at such moments between the opening of the “new liberal” era in the First Gilded Age and the “return to the market” in the late twentieth century. This paper relates shifts in expert and elite thinking on the role of regulation to the ideas and positions expressed in popular movements.

Jessica Leight, MIT, Public Choice: A Critical Reassessment

Over the last several decades, public choice has become one of the most influential schools of academic thought that seeks to analyze the relationship between private interest groups and economic policy-making, spawning an abundance of both theoretical and empirical work. Despite its apparent dominance, however, public choice suffers from several serious flaws in both the way it theorizes the policy-making process and the way in which it marshals empirical evidence to support its analytical claims. Accordingly, developing rigorous theories of the policymaking process and testing them adequately remains a central unfinished research agenda for social scientists.

Edward Balleisen, Duke University, Prospects for Economic “Self-Regulation” in the United States: An Historian’s View from the Early Twenty-First Century

Drawing on the profusion of studies about business self-regulation across the social sciences, this paper: places the recent appeal of self-regulation in historical context; reviews the primary intellectual justifications offered by its proponents (flexibility, cost-effectiveness, enhancement of civic obligation) and the contexts where it seems to work well (especially heterogeneous business environments characterized by large firms); considers the shortcomings of self-regulation identified by its critics (lack of sustained regulatory commitment, as well as fully democratic participation), and the contexts in where it falls short of furthering fundamental regulatory purposes; identifies general best practices for governmental monitoring of private regulation (especially the prerequisites for effective “meta-regulation”); and sketches a research agenda that might deepen understandings of this increasingly significant regulatory strategy, by scholars and policy-makers alike. Its chief argument is that a strategy of co-regulation among governments, affected businesses, and third parties offers the possibility of smarter regulation, but not necessarily less complex or costly regulation.

Tony Freyer, University of Alabama, Deregulation Theories in Litigious Society: American Antitrust and Tort

Steven K. Vogel has shown that the practical results of deregulation since the 1970s have been paradoxical. A theory aimed at reducing regulation actually fostered it; a theory driven by internationalized markets facilitated national regulatory distinctiveness; and a theory premised on limiting governmental control of private business conduct depended on the government itself. In the United States, Pietro S. Nivola declared, the economy has become "singularly unfettered," but because "private litigants do much of the enforcing in the US . . . we wind up with smaller government but millions of civil suits. This paper examines Vogel's paradox and Nivola's assessment in light of antitrust and mass tort private actions within the Tobin Project program developed by the contributors to this volume.

UPDATE: The papers are no longer available online. You may find them in this published volume.

One More Word on Justice de Grey

Having on Monday sent off to law reviews the paper on Chief Justice de Grey and his judicial self-education that I blogged about earlier, I now get to relish receiving rejection emails for the next four months.  While I wait, I wanted to comment on one last element of the paper that I came to in the final round of revisions and which significantly altered the focus of the paper.  To recap briefly, the paper arose from a fortuitous find in de Grey's archives of evidence of the books he bought and used to teach himself how to be a judge upon being named Chief Justice of Common Pleas in 1771.   As a means to try to make better sense of what I was looking at, I went in search of modern scholarship on judicial education.  There is almost none.  It is as if the fact that judges don't come to the bench pre-prepared is this great secret that no one particularly wants to disturb.  But interestingly, what little scholarship there is suggests that judges today use the same basic mechanisms of self-education that judges used in the 18th century--reading books, conferring with colleagues, learning on the fly in the courtroom, and relying on prior training.  I spoke to a couple district court judges and they recognized completely the methods of training that de Grey appeared to have used.  I suppose this should not be terribly surprising, since there are a finite number of ways a new judge could learn his or her job.  What is rather interesting, however, is that despite the fact that judges have not come to the bench trained for over two hundred years, and, I argue in the paper, probably not since some time in the sixteenth century, common law systems still cling to this myth that our judges take the bench knowing what they are doing.  The insistence of this assumption has changed somewhat in the last 50 years with the advent of baby judges schools at both the state and federal levels, but those are often voluntary and limited in the scope of the training they can offer.  I do not comment on whether our system is better or worse than a civil law system in which judges are trained.  I note merely that this is an issue that both legal historian and modern scholars have largely passed over and perhaps it deserves further study.

20th Century British History Essay Prize

Oxford Journals is pleased to invite entries to Twentieth Century British History's annual Essay Prize. The aim of the TCBH Essay Prize is to encourage a high standard of scholarship amongst postgraduate research students. The competition is open to anyone currently registered for a higher research degree, or who completed one no earlier than October 2008.

The author of the winning essay will receive:
* Publication of the winning essay in Twentieth Century British History
* A cash prize of £300
* £200 worth of OUP books
* One year's free subscription to Twentieth Century British History

The closing date for submissions is 15 October 2009. Word limit: maximum of 10,000 words. The entry must not be under consideration for publication elsewhere.

Full details and an Essay Prize entry form can be located here. Hat tip: H-Diplo.

Eyal-Cohen on small businesses, the tax code, and politics in the 1950s

This seems to be a big week for tax history. The latest SSRN posting is a recent article by UCLA Law School SJD Candidate Mirit Eyal-Cohen, When American Small Business Hit the Jackpot: Taxes, Politics and the History of Organizational Choice in the 1950s. The article appeared in the Pittsburgh Tax Review (2008). Here's the abstract:

While many political developments affected American small businesses during the twentieth century, the enactment of Subchapter S of the Internal Revenue Code was of particular significance. For the first time Congress was inclined to, at least partially, eliminate the double tax burden. Following the S Corporation, state legislatures formed other hybrid entities and gradually reduced the barriers to limited liability and other non-tax characteristics of organizational choice. Today, we observe a steady increase in the number of hybrid entities, which indicates that people favor the pass-through approach for taxation. At the same time, it is apparent that the existence of different federal tax regimes still plays a significant role in investors' choice of action. This article begins with the question: How did the American small business community achieve political victory where large organizations had failed? Put differently, how was it that the "little fellow" accomplished the almost impossible--the elimination of double taxation and permission to essentially choose his tax treatment--when, for years, the business community was unsuccessful in its attempts to integrate corporate and individual taxation? By laying out the untold story behind the enactment of Subchapter S, this article argues that three major factors paved the way for the creation of the S Corporation: a genuine economic need to aid small business entrepreneurs in times of recession, strong political pressure from the business sector, and political elite- such as Wilbur Mills, who thought the moment was right to aid small concerns. The story of enacting Subchapter S in 1958 is more than adding another organizational tax choice. It serves as an example of Congress's way of thinking about tax policy as instrumental in implementing social and economic goals. It elucidates a more complex picture of how tax policy evolved in the postwar period. It also reveals one way in which political interest groups affected the process of legislative decision making.

Image: Wilber Mills.

Law and History Review 27:1 Now Online

Volume 21, Issue 1 (Spring 2009) of Law and History Review, earlier shipped out to subscribers in print, is now accessible on-line via the History Cooperative. A bonus is the transcript of the judgment roll, discovered by Angela Fernandez, in the favorite chestnut of American Property teachers, Pierson v. Post. It supplements the forum "Pierson v. Post: Capturing New Facts about the Fox."

Possible Topics for Graduate Students in 18th-Century English Legal History

If there are any grad students out there looking for MA or PhD thesis topics, 18th-century English legal history is a wide open field. The sources are comparatively abundant and easy to use. A lot of the printed material is online. Many of the assumptions in the secondary literature are inaccurate because the research hasn’t been done. As I've worked, I've collected a list of topics that seem to need exploration, though I have not researched some of them to see what is out there, nor do I know that they are all plausible topics. What I do know is that a lot of work needs to be done on the period.
POSSIBLE TOPICS: jury instructions by judges (a lot of information in the newspapers—which are now largely online—printed trials reports, but not much talked about in the treatises); opinions of counsel (barristers’ opinions on case stated; tons of manuscripts and printed compilations); the status of serjeants in the last years of the order (serjeants were supposedly lazy and unspectacular barristers by the 18th century, but the late 18th and early 19th centuries saw a number appointed to the bench and leading their circuits—what was up?); the style and use of case briefs (the de Grey archives at the Norfolk Record Office has a bunch, as does Lincoln’s Inn, but we don’t know much about the genre of the case brief prepared for en banc sittings or about how much the judges knew before hearing the case. We also don't know how much they knew about a case before they heard the trial on assize); the advice of judges to the House of Lords sitting as a court of last resort and advice concerning proposed bills (discussed in the newspapers, in the House of Lords Journals, perhaps manuscript material in the Parliamentary Archives); the library of Serjeant George Hill (a late 18th-early 19th century barrister, Hill had a huge and very impressive library collection, the MS catalogue of which is in the British Library, and many of his books are at Lincoln’s Inn. The books have a very unique set of marginalia so other copies should be identifiable); 18th-century legal publishers and publishing; the jurisprudence of Common Pleas and Exchequer (only King’s Bench has been studied at all, and it is time to test the assumption that KB represented common law orthodoxy); counsel letters of the attorneys general (this is especially interesting given that the AG was asked to comment on events surrounding the American Revolution). A nice MA paper would be to study the Introduction to Law Relative to Trials at Nisi Prius. A dispute remains about the authorship (between Henry Bathurst and Francis Buller). What appears to be Bathurst’s autograph MS is in the Parliamentary Archives, in the Truro Collection—Bathurst notebooks. Another possibly early manuscript is at Middle Temple. Then there are the later printed editions with lots of marginalia (often interleaved copies—three of them are in the Anthony Taussig collection) of lawyers demonstrating how the text was used. The reports of settlement cases are interesting studies of the poor laws. A few interesting judges to study might be: John Willes (CJ CP); Francis Yates (KB); Francis Buller (KB, CP); John Eardley Wilmot (KB, CJ CP); Michael Foster (KB). I think they all have some papers in archives and libraries.

Class Notes

Yesterday's New York Times article about the once again feared imminent demise of humanities departments reminds me that I wanted to blog about the legal history course I am teaching this semester.  It is called Western Legal Tradition.  We start with the Twelve Tables of the Roman law, go through classical Roman law, Germanic law, feudal law, the medieval rediscovery of the Roman law, classical canon law, medieval customary law, then the early modern reception and eventual rejection of the Roman law, natural law, some English common law, and codification and the 1804 French Civil Code.  The readings are narrative (legal) histories of these periods with primary source translations of legal texts of all different sorts embedded.  I enjoy teaching contracts and feel that I am helping the students learn to be lawyers, but in this class I feel as though I am educating them, and it's pretty exciting.  We talk about big problems, such as how law is written, how it comes to be organized, what writing means about how societies think about law, where law comes from and what difference it makes whether it is derived bottom up from practice or top down from legislation, how custom functions as law, how lawyers think and reason about legal problems, how judges work, what role discretion plays in a legal system, how law interacts with economic, social, and political conditions, and many other issues that have seemed to get the students thinking about many of their assumptions.  We turn into problems things that in a modern law course we never even think to question.  It has been a tremendous amount of fun, and I am lucky to have excellent students.  I usually try to convince the students on the first day that the value of legal history is that it is a form of comparative law.  We get to see how other societies have solved similar legal problems.  But given the thought that my students are putting into the questions raised in the course, I am beginning to believe that there is also value in simply confronting them with the big issues and asking them not to take for granted the way our law operates.  

Bellia and Clark on The Federal Common Law of Nations

The Federal Common Law of Nations is a new article by Anthony J. Bellia Jr., Notre Dame Law School, and Bradford R. Clark, George Washington University Law School. It appears in the Columbia Law Review (2009). Here's the abstract:

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' "perfect rights" (or close analogues) under the law of nations as an incident of political branch recognition of foreign nations, and in order to restrain the judiciary and the states from giving other nations just cause for war against the United States. Rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, federal courts have instead applied rules derived from the law of nations as a way to implement the political branches' Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach best explains the most important federal cases involving the law of nations across American history. This Article does not attempt to settle all questions of how customary international law interacts with the federal system. It does aspire, however, to recover largely forgotten historical and structural context crucial to any proper resolution of such questions.

Howe on Slavery as Punishment and the Original Public Meaning of the 13th Amendment

Slavery as Punishment: Original Public Meaning, Cruel and Unusual Punishment and the Neglected Clause in the Thirteenth Amendment is a new paper by Scott Howe, Chapman University School of Law. Works on constitutional originalism are not always a good fit for the Legal History Blog, but this paper seriously engages the secondary historical literature, for example on forced labor after the Civil War. Here's the abstract:

Steadfast originalists agree that the original meaning of our constitution's language, once found, should be followed, even when it leads to unhappy outcomes. Yet, in a famous lecture in 1989, Justice Scalia, a leader in the modern originalist movement, cast doubt on the duty of fidelity to originalism. He asserted that the originalist judge can appropriately avoid outcomes that are "too bitter" either by deferring to precedent or by temporarily abandoning originalism. Ironically, libertarian and liberal originalists have been among the most dismissive of Justice Scalia's faint-heartedness. They contend that the problem is the narrow approach to originalism that Justice Scalia and many other conservative originalists employ. Libertarian and liberal originalists tend to conclude that an abstract clause in the constitution should be understood in a broad way that allows for its evolving application over time rather than narrowly, in accordance with the original expected application. On this view, they assert that originalism, properly employed, will not produce the kind of grossly objectionable results that caused Justice Scalia to be faint of heart. Building on this assumption, they have also offered a new kind of normative justification for steadfast originalism. They assert in essence that the system of government that our constitution created is legitimate, in that it adequately protects our rights, and that steadfast originalism is simply the best way to preserve the legitimacy-enchancing features of the document. However, this article challenges the assumption of the libertarian and liberal originalists by focusing on relatively specific constitutional language that courts and scholars have long neglected. That language appears in the thirteenth amendment, authorizing slavery as a punishment for crime. The article shows that the original public meaning of this clause, indeed, leads to abhorrent outcomes, including the emasculation of many modern protections grounded on the eighth amendment. The article thus reveals why the legitimacy-enchancing theory for steadfast originalism is ill-founded. It also reveals that the negative implications of Justice Scalia's comments for originalism as a coherent interpretive method cannot be dismissed simply by a move within originalism away from a focus on original expected applications to less confining measures of original meaning.

Revise & Resubmit?

Eric Rauchway at The Edge of the American West has some good advice about how to respond to a journal's revise and resubmit letter. Hat tip. Probably the most important advice is to actually revise and resubmit the piece. The first time I received an R&R letter, I misinterpreted it, as did someone in the Eric's comments, and assumed that the journal wouldn't accept my article. If I had not run into an editor at a conference who urged me to resubmit, since they were hoping to publish, I would have sent it elsewhere.

Editors send out the other kind of letter all the time, and if they really intend to signal that there's no chance the article will appear in the journal, they know how to reject your piece. An R&R is no guarantee, of course, but it is usually a good idea to revise the piece and try again.

Ventry on Equity and Efficiency in U.S. Tax History since World War II

Equity vs. Efficiency and the U.S. Tax System in Historical Perspective has just been posted by Dennis J. Ventry Jr., University of California, Davis - School of Law. It is a chapter in TAX JUSTICE: THE ONGOING DEBATE, Joseph J. Thorndike & Dennis J. Ventry, Jr., eds., (2002). Here's the abstract:

This chapter in TAX JUSTICE: THE ONGOING DEBATE examines tax justice in the American political tradition, focusing on tax policy and politics since World War II. The postwar period witnessed the decline of vertical equity as a serious topic of study among tax experts, especially economists. Beginning in the 1950s and accelerating in the 1970s, economists turned their attention away from vertical equity and toward efficiency and economic growth. To the extent economists considered questions of tax equity, they examined how deviations from horizontal equity influenced efficiency and growth, rather than how degrees of vertical equity effected prevailing norms of social and economic justice.

The turn away from progressive equity -- in combination with a sustained period of stagnant economic growth, inflation, and public cynicism toward government -- prompted the American public to support tax policies that emphasized efficiency rather than equity. This environment allowed tax-cutters to push through reforms that excluded equity considerations altogether, and it gave credence to the supply-side notion that taxes should be set with the primary purpose of minimizing distortions.

The chapter concludes by arguing that the abandonment of progressive tax equity as a policymaking construct has left tax experts out of touch with the American public, which continues to demonstrate a keen sensitivity to questions of fairness, justice, and progressivity. At a time of acute income and wealth inequalities -- the social ills that historically have motivated considerations of redistributive taxation in the United States -- we would do well to reconsider tax justice and its policymaking implications.

Mehrotra on Religion in Tax History

Ajay K. Mehrotra, University of Indiana-Bloomington Maurer School of Law, has posted Render Unto Caesar . . .": Religion/Ethics, Expertise, and the Historical Underpinnings of the Modern American Tax System, which is forthcoming in a symposium in the Loyola University Chicago Law Journal 40 (2009). Here is the abstract:

A variety of scholars and commentators have been recently exploring the connections between religion and current U.S. tax policy. The relationship between religion and American taxation, however, runs much deeper than our present period. Indeed, it is no coincidence that roughly a century ago the foundations of our current tax system were taking shape at the height of the religious and ethical fervor known as the Social Gospel movement. At that time, religious and ethical sentiments played a central, though ambivalent, role in fiscal reform. This Article investigates the influence of religious and ethical values on the tax reform struggles of the late nineteenth and early twentieth centuries. By examining the writings and actions of leading Progressive Era political economists, ministers, and moral leaders, this essay contends that a group of ethically inclined academic professionals, operating as pivotal intermediaries between state and society, ambivalently undermined the religious support for a new fiscal order by secularizing and domesticating tax reform. Though many of the key political economists behind tax reform were imbued with moral and ethical sentiments, they ultimately privileged science over religion. Consequently, these professional social scientists reoriented religious and ethical approaches toward tax reform, and in the process they set the boundaries of acceptable social analysis. In their cautious application of religiously-motivated ideas about public finance, they ultimately did as much to temper-as to advance-fiscal reform. This article was part of a conference on "Tax Law in a Liberal Democracy: Exploring the Relation between Taxation and Good Governance" sponsored by the Loyola University Chicago Law Journal.

Solum on Incorporation and Originalist Theory

Incorporation and Originalist Theory is a new paper by Lawrence B. Solum, University of Illinois College of Law. Here's the abstract:

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."

The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that "original meaning" is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase "privileges or immunities" was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the "privileges or immunities clause" instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.

The Brandeis Brief

I've only just realized that one of the landmarks of legal advocacy, the so-called "Brandeis Brief," filed in Muller v. Oregon (U.S. 1908), is available in its entirety on the web from the University of Louisville, which is home to a collection of the papers of the Supreme Court Justice Louis Brandeis. The brief is available here; below is the University of Louisville's description.

In 1907, Florence Kelley and Josephine Goldmark hired Louis D. Brandeis to represent the state of Oregon in Muller v. Oregon (208 US 412), a case before the US Supreme Court that involved the constitutionality of limiting hours for female laundry workers.

To support his argument that overwork was inimical to the workers' health, Brandeis (with the help of Goldmark, his sister-in-law) compiled a number of statistics from medical and sociological journals and listed citations to the articles in his brief. The brief was significant in that it was the first one submitted to the Supreme Court that relied primarily on extra-legal data to prove its argument.

Not only did the brief help Brandeis win the case but it also became a legal landmark in its own right. Briefs that cited non-legal data quickly became commonplace and became known as "Brandeis briefs." However, the brief for Muller v. Oregon is the original Brandeis Brief, and therefore we present it here in its entirety.

Hat tip.

More Metzger on Roman Law

Ernest Metzger, University of Glasgow School of Law, has posted two papers. The first is Obligations in Classical Procedure:

The civil law gave the praetor relatively few rules of procedure with which to manage a tribunal. Accordingly many rules of procedure were the product of the praetor's own active lawmaking. His lawmaking frequently took the form of actions and stipulations, which is to say, obligations. This essay describes a selection of law reforms where this was the case. The essay concludes with the suggestion that the praetor turned to more effective methods of enforcement, not because the older methods were poor, but because parties were more frequently turning to litigation for the adjudication of claims, and less frequently for simple arbitration.

The second paper, Actions, originally appeared in A Companion to Justinian's Institutes (London & Ithaca, 1998). It is

a brief explanation of what the Romans understood to be "The Law of Actions." It was intended to accompany book 4 of Justinian's Institutes, but goes into considerably more detail on issues such as real and personal actions, civil and praetorian actions, and reipersecutory and penal actions. It also explains more generally what an "action" is and how it developed, and appends a brief bibliography. Errata to the published version are included.

The Warsaw Ghetto, Vietnam-era war crimes and bombing Wall Street in the Sunday book reviews

Who Will Write Our History? Rediscovering a Hidden Archive From the Warsaw Ghetto by Samuel D. Kassow, is a "brilliant study" and "a heroic act of synthesis and contextualization," writes Louise Steinman for the Los Angeles Times. The book is based on Emanuel Ringelblum's efforts to document the experience in the Warsaw Ghetto. "In October 1940," Steinman writes,

when the Germans gave the order for Warsaw Jews to move into an overcrowded, cramped and sealed-off ghetto -- more than 400,000 would live there; 30% of Warsaw's population crowded into 2.4% of its area -- Ringelblum "stepped into his destiny." He began forming a secret "sacred society" he named "Oyneg Shabes" (literally, "Joy of the Sabbath," as members often met on Saturday). Its purpose was to create a comprehensive archive of life in the ghetto, "to meld thousands of individual testimonies into a collective portrait."...

No one knew what information would be important to historians after the war. "Collect everything and sort it out after the war," Ringelblum advised. And they did.

They recorded ugly stories of Jewish policemen and moral struggles among those who were starving. They collected information on labor camps, the behavior of the Judenrat (Jewish councils that acted as intermediaries with the Nazis), and social histories of the soup kitchens. They interviewed refugees from the provinces who brought eyewitness accounts of massacres. They documented the role of women in the ghetto and the plight of orphaned children.

Tin boxes containing parts of the Oyneg Shabes archive, buried in the rubble of the Warsaw Ghetto, were found in 1946. The archive reveals that "Ringelblum never succumbed to what he defined as the ultimate despair: the failure to record what one saw."

Continue reading here.

The War Behind Me: Vietnam Veterans Confront the Truth About U.S. War Crimes by Deborah Nelson is taken up by Steve Weinberg in the Philadelphia Inquirer. The review details another story of a forgotten archive, this time a cache of documents about Vietnam-era war crimes in the National Archives. After the revelations of the Mai Lai massacre, Weinberg writes, "in secret, the Army began a broader inquiry into other alleged war crimes throughout Southeast Asia. The inquiry lasted five years, resulting in a file of about 9,000 pages connecting American troops to atrocities. The inquiry led to no public accounting, no major prosecutions of the perpetrators." Nelson and military historian Nicholas Turse, "after reviewing the archival files carefully...began tracking down military veterans who had reported allegations of atrocities and those who allegedly had conducted the killing. Nelson, with a well-deserved reputation as a master interviewer, explains how she persuaded some of the frightened and resentful veterans to talk openly." Continue reading here.

THE DAY WALL STREET EXPLODED: A Story of America in Its First Age of Terror by Beverly Gage is reviewed by Kevin Baker in the New York Times. He writes that this "outstanding first book" takes up in detail a 1920 Wall Street bombing which killed 38, as well as "the hunt for the perpetrators, but Gage also does us the great good service of placing it in the wider history of industrial warfare that once proliferated in America....'Far from being an era of placid reform,' Gage writes, 'the turn of the century was a moment in which the entire structure of American institutions — from the government to the economy — seemed to be up for grabs, poised to be reshaped by new movements and ideas.'...Even now, as Gage writes, 'there remains a tendency to think of violence as an anomaly, something outside the American experience, rather than as one of the many ways that Americans have long carried out their political disputes.'" Read the rest here.

Photo credit: Emanuel Ringleblum.

Whisner on a Dictionary for the Ages

Mary Whisner, University of Washington School of Law, has posted Dictionaries Make Strange Bedfellows, which originally appeared in Language and the Law: Proceedings of a Conference, ed. Marlyn Robinson (Buffalo, N.Y.: William S. Hein & Co., 2003), 93-108. Here is the abstract:

Bouvier's Law Dictionary was very popular among U.S. lawyers for a century, from the publication of its first edition in 1839. It is useful today for historical researchers. And it is very highly regarded by a particular sort of legal researcher--tax protesters, Patriots, Freemen, and their ideological kin. This essay offers biographical information about John Bouvier and discusses its current use.

Image credit.

Symposium: Racial Formation in the 21st Century

Symposium: Racial Formation in the 21st Century

April 17-18, 2009

University of Oregon, Eugene, OR

The symposium is organized in anticipation of the upcoming 25th anniversary of the first publication of Omi and Winant’s landmark book Racial Formation in the United States.

Omi and Winant's work—influential to a generation of scholars across the social sciences and humanities—will serve as the point of departure for a series of panels and presentations exploring the past, present and future of racial formation.

The panels will examine a diverse set of locations and times: from the plantations of Colonial Virginia to the Rastafarian communities of Western Jamaica in the 1990s to the prisons of Abu Ghraib today. Speakers will explore the ways race is constructed, inhabited, and transformed and will discuss contemporary policy questions; such as conceptions of race in biomedical research. The panels will offer fresh perspectives on social movements, such as the diverse origins and membership of the United Farm Workers in the 1960s. And they will consider a range of provocative theoretical frameworks—Native studies, feminist theories, critical race studies--to depict the various ways that struggles over land, identity, bodies and nationhood articulate racial meaning and power.

The symposium is free and open to the public. No advance registration is required.

Featuring: Michael Omi, UC Berkeley and Howard Winant, UC Santa Barbara

Keynote Speakers: Devon Carbado, UCLA and Eduardo Bonilla-Silva, Duke University

Confirmed panelists:

Catherine Lee, Rutgers University

Sherene Razack, University of Toronto

Martin Summers, Boston College

John L. Jackson, Jr., University of Pennsylvania

Matt Garcia, Brown University

Neil Gotanda, Western State University

Michelle McKinley, University of Oregon

Gary Delgado, Applied Research Center

Laura Gomez, University of New Mexico

Priya Kandaswamy, Portland State University

Nikhil Singh, New York University & University of Washington

Tomas Almaguer, San Francisco State University

Denise Ferreira da Silva, University of California, San Diego

Andrea Smith, University of California, Riverside

Deborah A. Thomas, University of Pennsylvania

Organized by Daniel HoSang, University of Oregon, Laura Pulido, University of Southern California, and Oneka LaBennett, Fordham University.

The conference website with more information is here. The complete program is here.

Law and History Review 27:3

Pre-print drafts of the articles forthcoming in volume 27, issue 3 of Law and History Review are now up on its website. Here are the abstracts and links:

Barbara Young Welke, “Glimmers of Life”: A Conversation with Hendrik Hartog

In this interview, conducted by Barbara Welke at the 4th Biennial Hurst Summer Institute in Legal History (Madison, June 2007), Hendrik (Dirk) Hartog reflects on the influences which have shaped his career as a legal historian and on the development of the field of legal history since the 1970s. For Hartog, who entered legal and Ph.D. training in the 1970s, social history, critical legal studies, and feminist legal theory and the social movements which gave rise to them were especially important intellectual currents shaping his interest in law in everyday life. The interview also captures the importance of colleagues, academic and professional institutions, graduate students and service to the profession in shaping questions, argument, and meaning in Hartog’s research, teaching, and service. As a whole, the interview suggests something of the complex interplay of intellectual currents, institutional affiliations, political and social movements, and the personal in shaping a scholar’s career path, research questions and worldview.

John M. Lund, The Contested Will of “Goodman Penn”: Anglo-New England Politics, Culture, and Legalities, 1688-1716

This essay presents the complex history of the contested 1688 will of a prosperous Braintree, Massachusetts landowner named William Penn. This contested will case brings to life the turbulent years between 1690 and 1720 in New England. In particular, the case of Penn’s will spotlights a political struggle waged by ordinary townspeople, who were committed to a distinct puritan jurisprudence, against the Anglicization of Massachusetts and the effort to fashion a British Atlantic empire based on uniform property laws. Their efforts to overturn the probate administration provide an extraordinary glimpse of the complexity of colonial litigation in the decades following the Glorious Revolution, the reality of multiple visions of empire, and the relationship between law and politics and law and society in British North America.

Shannon McSheffrey, Sanctuary and the Legal Topography of Pre-Reformation London

Through an examination of St. Martin Le Grand, a privileged territory in the heart of late medieval London, Shannon McSheffrey argues that pre-Reformation English sanctuaries must be understood not only in the context of complex intertwinings of conceptions of kingship, justice, mercy, and Christian religion, but in the quotidian practice and observance of the sanctuary space by those who lived in and around the sanctuary. By 1400, a number of English religious houses had come to offer permanent sanctuary to accused criminals, political refugees, debtors, and aliens. These small territories, which exercised varying extents of juridical and political autonomy, considerably complicated the jurisdictional map of late medieval England. Determining and recognizing the boundaries of the sanctuary territory was difficult: the bounds of the precinct were marked in some places by walls and gates, but in other places by notional, and often disputed, lines in the middle of streets. The meaning of the sanctuary was constituted through claims, counter-claims, and royal confirmations; through precedent and custom; and through how particular kinds of individuals--those “privileged” of the sanctuary--inhabited and used the territory. Although the royal free chapel and sanctuary of St. Martin Le Grand, like other English sanctuaries, was felled along with a host of ecclesiastical institutions in the dissolutions of the English Reformation, McSheffrey argues that we cannot understand its late medieval and early Tudor history teleologically, through the hindsight of its dissolution. Sanctuary, and the sacrality that underpinned it, continued to function in the early sixteenth century, not as an obsolete relic of earlier conceptions of law, punishment, and the role of the church, but because it dovetailed closely with late medieval and early Tudor conceptions of law, kingship, and Christian charity.

Jennifer Heuer, The One Drop Rule in Reverse? Interracial Marriages in Napoleonic and Restoration France

In 1803, the French Minister of Justice outlawed marriages between blacks and whites. The decree, which has been almost completely forgotten, accompanied the re-establishment of slavery and was applied to metropolitan France, not the colonies. Although it appeared to re-instate a similar 1778 ban, the law introduced a new distinction. In contrast to “one drop” rule in the United States, in which anyone with black ancestry was prevented from marrying a white partner, the Napoleonic measure applied to blacks but not to those of mixed blood¬, whatever their actual skin color. This article examines the possible reasons behind this distinction and the ways in which the ban was actually applied. It explores how petitioners and authorities understood racial categories and balanced the relative importance of race against other factors, including religious devotion and the need to legitimate their children, the value of French citizenship, individual service to the state, and the conflicts between the ministerial circular and more fundamental French law. These negotiations suggest the stakes and limits of racial classifications in the aftermath of the French Revolution. Finally, both the institutionalization of the ban and its ultimate end in 1818 reveal hidden connections—and divergences—between metropolitan and colonial histories.

An Honorary Degree for the Honorable Morris Arnold

The University of Arkansas has announced that at its May commencement it will award an honorary degree to Judge Morris S. Arnold of the United States Court of Appeals for the Eighth Circuit. Judge Arnold is a past president and honorary fellow of the American Society for Legal History. The university's press release is here.

Teles Reviewed Yet Again

Legal History Blog has already noted Mark Tushnet's review of Steven Teles's Rise of the Conservative Legal Movement. Ilya Somin, George Mason University School of Law, has just posted another, Lessons from the Rise of Legal Conservatism, which is forthcoming in the Harvard Journal of Law and Public Policy. The abstract follows:

Steven Teles's The Rise of the Conservative Legal Movement is the best and most thorough attempt to document the spectacular growth of conservative efforts to influence the law since the 1970s. Both scholars and legal activists have much to learn from his careful account of this important episode in legal history.

Teles's most important finding is that effective institutionalization of legal change requires not only a demand for reform by voters or interest groups, but also a supply of trained advocates, public interest law firms, and judges willing and able to influence the law in the direction desired by an insurgent political movement. As Teles effectively demonstrates, public demand for legal change does not in itself generate the needed supply of institutional resources. Through his analysis of the growth of conservative and libertarian organizations such as the Federalist Society, the Institute for Justice, the Center for Individual Rights, and others, Teles chronicles the difficulties faced by the legal right in their attempts to create the cadre of lawyers and institutions they needed to challenge liberal dominance over the law. The successes and failures of this effort are instructive.

Part III also briefly discusses a few limitations of Teles's argument. Perhaps the most important shortcoming is his neglect of social conservatives' efforts at law reform. Most of Teles's account focuses on libertarian organizations that sought to use judicial review to limit the power of government. Social conservatives, by contrast, sought to undo judicial constraints on government power for the purpose of using the state to advance social conservative ends, most notably, banning abortion and pornography. Fuller consideration of the social conservative experience is needed to test the generalizability of Teles's conclusions.

Finally, Part IV shifts gears and addresses some of the lessons of Teles's account for libertarians and conservatives who wish to strengthen judicial limits on government intervention in the economy. To succeed, pro-market public interest organizations must keep their distance from business interests. In addition, Teles shows that pro-market legal activists have not done enough to promote follow-up litigation to exploit and enforce major precedential victories. On this point, as on others, legal activists of the right can learn from their left-of-center counterparts.

Hat tip.

Anderson on Houston and the Hollywood Ten

José F. Anderson, University of Baltimore School of Law, has posted the paper Freedom of Association, the Communist Party, and the Hollywood Ten: The Forgotten First Amendment Legacy of Charles Hamilton Houston, which is forthcoming in the McGeorge Law Review40 (2009). Here is the abstract:

Charles Hamilton Houston, the most important civil rights lawyer of the first half of the 20th century who developed the legal strategy in Brown v. Board of Education, ended his fabulous legal career representing a group of Hollywood screen writers known as the Hollywood Ten. See Lawson and Trumbo v. United States, 176 F.2d 49 (D.C. App.1949). In that case convictions and jail sentences were upheld for the defendants' failure to answer questions from the House Committee on Un-American Activities (HCUA) about their views on communism and whether or not each was members of the Communist Party. The matters in Congress led to "blacklisting" of certain persons from jobs in the film and entertainment industry who either were named as Communist or refused to provide names of others who might be.

This article suggests that Houston's "Theory of Freedom" combining various provisions of the Constitution to develop greater fundamental rights. An examination of the documents filed in the case reveal this "prophetic" approach to constitutional litigation that is the hallmark of what some have called "Houstonian Jurisprudence." Furthermore, a historical examination of Houston's long and interesting relationship with the Communist party in matters of litigation, while at the same time maintaining a steadfast belief in the principles of Democracy create an interesting tapestry of an important historical and legal period in the United States.

Image credits: Charles Hamilton Houston, Dalton Trumbo.

Delgado and Stefancic on California's Racial History

Richard Delgado and Jean Stefancic, Seattle University School of Law, have posted an article on SSRN: California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education. It appeared in the UCLA Law Review (2001). Here's the abstract:

Richard Delgado and Jean Stefancic examine the history of racial mistreatment of citizens of color in California. Beginning with incidents of racial brutality during the early Spanish colonial period and proceeding into the present, Delgado and Stefancic reveal that California has not been the egalitarian paradise many suppose. The authors write against a background of recent attacks on affirmative action in higher education which raise the prospect that the diversity rationale that universities had relied on to justify race-conscious admissions policies may no longer be constitutional. Recognizing this possibility, the authors offer remediation-making amends for past misbehavior--as an alternative basis for maintaining race-conscious programs in higher education. In particular, the authors argue that historical and recent racial discrimination in states such as California provides sufficient justification for adjusting admissions and hiring practices so that affected minority groups are placed in the status quo ante, that is, the position they would have been in had the discrimination not taken place.

Tales from the Classroom: The Rule of Law

As I mentioned in posts last summer (here and here), I’ve organized my legal history course in terms of the emergence and consolidation of political regimes in the United States from the late 1890s through the early 1960s. I’m teaching it again this semester and thought I’d describe a recent class, entitled “The Rule of Law.” I assign three main readings:

Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (1885; London: Macmillan, 1902), 182-83, 189, 191, 198-99, 322-49

Robert H. Jackson, “The Administrative Process,” Journal of Social Philosophy 5 (1940): 146-47

Louis Anthes, “Island of Duty: The Practice of Immigration Law on Ellis Island,” New York University Review of Law and Social Change 24 (1998): 563-66, 569-76, 580-83, 584-94

I start by reminding my students of an earlier class, in which we discussed the curriculum Ernst Freund unsuccessfully proposed in 1902 for the University of Chicago’s new law school, as well as the ideal of the Rechtsstaat, which informed Freund’s pedagogy. I’m then in a position to present Dicey’s famous account of the Rule of Law as a court-centered and Anglo-American variant of a more general ideal. When I focus on Dicey’s claim that in England no person was made to “suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land,” I have the great pleasure of introducing my students to the locus classicus for something they’ve heard expressed, in various ways, many times before. (Lately, the most common context for their “ah-ha moments” has been habeas corpus review of Guantanamo’s military tribunals.)

I say something about how Dicey’s deprecation of the droit administratif caricatures the administrative courts of the Continent (the Freund class helps here) and supplement Dicey’s reference to the common lawyers’ battle with prerogative courts under the Stuarts with my own (I’m afraid) cartoonish account of the Prohibitions del Roy. Before leaving Dicey I introduce a distinction I’ve been using in some articles on administrative law during the New Deal, between “institutional Diceyism,” which requires meaningful judicial review by courts of general jurisdiction (those "ordinary Courts of the land”) and “procedural Diceyism,” which is satisfied as long as the agencies themselves act in the “ordinary legal manner”–that is, with judicialized procedures. (For the articles, see here and here.)

Then comes the pivot of the class, as we turn from Dicey to an edited version of Louis Anthes’s account of lawyers and the exclusion of aliens at Ellis Island in the 1890s. Anthes nicely quotes a federal judge who rejected a habeas suit with the explanation: “If the Commissioners wish to order an alien drawn, quartered, and chucked overboard they could do so without interference.” (So much for institutional Diceyism.) That turns out to be only the beginning of our investigation of lawyers and the immigration bureaucracy, because Anthes provides case studies of several who represented aliens on Ellis Island. Those who usually appeared in the "ordinary Courts" of New York City complained loudly when the inspectors refused to permit cross-examination and violated the common law of evidence in their boards of special inquiry (such as the one pictured at left). Such lawyers usually lost, as the inspectors and the port commissioner felt no obligation to follow the “ordinary legal manner” of the courts. (At this point I refer to the Robert Jackson reading, in which he voices–sympathetically, but without really endorsing–the courtroom lawyer’s dim view of the administrative process.) One might think that lawyers have nothing to contribute to this American droit administratif, and as long as they insist on being “officers of the court,” they really don’t. But Anthes also shows us an experienced immigration lawyer, Henry Gottlieb, who gathers information and presents it in keeping with the inspectors’ own routines and informal guidelines. This “officer of the state” won the bulk of his cases.

The class ends with the students appreciating, in Diceyan terms, Peter Schuck’s observation that immigration was a “realm in which government authority is at its zenith, and individual entitlement is at the nadir.” Gottlieb prefigures the “Washington lawyers” they’ll encounter later in the course. More generally, they’ll understand the ideological stakes for landmark cases on the judicial review of administrative agencies (such as Ben Avon, Crowell v. Benson, and Morgan v. United States), the long legislative campaign that ultimately produced the Administrative Procedure Act, and–one hopes–their own role as lawyers with an administrative practice.

Dale on People v. Coughlin and Criticisms of the Criminal Jury in Late Nineteenth-Century Chicago

People v. Coughlin and Criticisms of the Criminal Jury in Late Nineteenth-Century Chicago is a new article by Elizabeth Dale, University of Florida. It appears in the North Illinois University Law Review (2008). Here's the abstract:

The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end. Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame. Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for the State. They are based on the assumption that the rise of plea bargains caused the decline of criminal juries. Yet this explanation does not appear to fit the case of late nineteenth-, early twentieth-century Chicago. In that period the felony courts in Chicago, like felony courts in Los Angeles, Philadelphia, and Boston, did make increasing use of plea bargains and jury trials declined, as well. But the data suggests that the greater use of pleas did not lead to the decline of criminal juries, so much as result from efforts to avoid jury trials. To explore this possibility, this article begins with a review of studies of plea bargaining in the Chicago and Cook County felony courts. The data in that scholarship suggests that the desire to avoid trials prompted the resort to plea agreements. Then, to consider why that might be so, this article explores the contemporary views of criminal juries by unpacking a trial from late nineteenth-century Chicago, People v. Coughlin, and the various objections to the jury that arose at different moments in that trial. These objections, made by new accounts, judges, lawyers, legal scholars and political figures, reveal the full range of ambivalence about criminal juries in Chicago at the end of the nineteenth century. Yet as deep as that unhappiness was, Illinois law failed to respond to those concerns, in part because they were challenges to fundamental aspects of the Anglo-American common law tradition. That resistance to reform may have reflected an abiding commitment to the ideal of the jury, but it made plea agreements an attractive alternative.

Tushnet on The Meritocratic Egalitarianism of Thurgood Marshall

Mark Tushnet, Harvard Law School, has a new essay, The Meritocratic Egalitarianism of Thurgood Marshall. Only the abstract is on SSRN, but the article will be accessible on-line once it appears in the Howard Law Journal later this year. Here's the abstract:

This Essay, forthcoming in the Howard Law Journal, describes Thurgood Marshall's meritocratic egalitarianism. Marshall was sensitive to the wide range of talents people actually had and was skeptical about claims that talents in any field were distributed in a steep pyramid, with many less talented at the base and only a few highly talented at the top. For him, there was a meritocratic pyramid, but it was flat rather than steep. All but the very best at most things were only slightly better and only somewhat less numerous than those who had ordinary ability in the field. Marshall was also extremely sensitive to the range of bad reasons people gave for perpetuating hierarchies ordered by ascriptive characteristics-race most obviously, but also gender, class, and disability. A real meritocracy required the elimination of all those bad reasons so that careers, broadly defined, really would be open to talent. Governments could not use ascriptive characteristics to perpetuate hierarchies that interfered with the prospect of a person pursuing a career suitable to his or her talents. And, conversely, policies aimed at eliminating the use of ascriptive characteristics to perpetuate such hierarchies-what has come to be known as affirmative action-were entirely proper. Taken as a whole, Marshall's meritocratic egalitarianism was strongly critical both of the distribution of social benefits and harms in the United States, which did not conform to meritocratic principles, and of the widespread ideas about meritocracy, which placed too much weight on differences that a real meritocrat would regard as minor. The Essay examines several of Justice Marshall's separate opinions-dissents and concurrences-to tease out of them indications of Marshall's meritocratic egalitarianism.

Working in Archives #5: digital cameras

Digital cameras have completely revolutionized archival research. Whereas before one had to sit in the archive, read each document, and copy them out by hand, now one could--in principle--breeze in, shoot a bunch of pictures, and leave, working on the results elsewhere. Putting on hold for a moment whether that is such a great idea, I want to share a little trick I use when taking pictures. Rather than depend on notes about what I shoot, labeling the image files later, or hoping I remember what they are, I insert a small tag into each picture identifying the archive, shelfmark, folio number, document date, or any other relevant information. I have posted two examples. In one, the tag is on the document, and in the other it is alongside the document. The biggest problem I have with putting the tags on the documents is that I have to be careful they don't cast a shadow that obscures text. The biggest problem with putting them under the document is that the camera angle might be such that the tag itself gets obscured, as you can see from the example. To prevent that inevitably means taking the picture from a greater distance. Also, because the tag has to be written in pencil--since I don't write them ahead of time--it sometimes doesn't show up as well in the photo. I've never actually had a situation where it was unreadable, but that is possible. This system lets me be lazy about labeling my image files, because I know that the label is built into the picture.

The other problems with digital cameras are technical. The Sonys I tried would always blur slightly around the edges. My current Lumix struggles with the anti-shake in low light. Here is what I have figured out through painful trial and error. First, the camera has to have image stabilization, unless you can use a tripod. Second, maybe this is purely personal, but I prefer a lighter camera. My hands get fatigued after shooting continuously for a few minutes, and the more they shake, the less the camera can compensate. For this reason, I have stayed away from top of the line SLR or SLR-like cameras. Third, the camera needs to be able to deal with low light situations without forcing one to use a high ISO and thereby increasing the noise. Fourth, the camera has to have good battery life. Always bring the charger or spare batteries with you to the archive. Fifth, take a representative kind of document along when buying a camera, shoot some pictures, and study the sharpness along the edges. If the text is already difficult to read, any additional distortion can be fatal. Sixth, no matter how reliable the camera, I've started taking at least two shots of every document. I can cull out the duplicates later. That is faster, and seems to use less battery power, than stopping after every shot and zooming in on the image. Of course, this also means that you need a large memory card. Finally, when shooting consecutive pages in a bound text, I like to get a piece of the opposite page in the frame. Sometimes the texts I see are only numbered on every other page or only on one side. Sometimes page numbers end up being hard to read. By getting a piece of the opposite page, I can match up pictures and be more sure which page is which or that I haven't skipped a page. I also pay attention to getting a shot with the page number in it. I might also take another close-up without. If the document is large, I take both a full page shot and a top-part and bottom-part shot, being sure that I overlap some lines in the middle.

Now to the policy of using cameras as Sitzfleisch substitutes. Sometimes it is the best use of one's time to shoot pictures and move on. In that case, I at least recommend uploading the pictures to your computer before leaving the archive to make sure you have good shots. I've done the quick-shoot thing, among other times, when all I wanted was some examples of the handwriting of a certain type of text that I planned to work on in the future. But at a minimum, I think it is a good idea to at least skim the document in situ. Not only does that prevent one from taking pictures of a lot of garbage, but if the document does end up being somewhat blurry, at least you know what the document was about, and that might help you figure out what it says. I also find it helpful to note down that I took pictures. So if I am taking notes about a document, and I take a picture of it, I add in my notes: "picture taken." Three other tips I've learned from bad experiences: before deleting photos from the camera, make sure they were all properly loaded onto the computer. When culling photos, make sure you delete the bad image, not the good one. And finally, take more pictures rather than less. I am endlessly kicking myself for not having taken that one additional picture. At the time, I thought it wasn't important. It then turns out that it was.

I am always looking for a better archive camera, and I've never found a discussion of the topic online. So if anyone has suggestions, I, for one, would be very happy to hear them.