Thursday, April 30, 2009

Have You Read John Brown's Constitution?

I am working on a book-length project on forgotten and failed constitutions in the American tradition, which will give greater attention to these instances and through which I hope to theorize a broader set of reasons why citizens are moved to write political liberation documents. It turns out that Americans write even when there is little hope that their creations will become the authoritative texts of the nation.

This seems true of the John Brown group, which led a failed assault on Harper's Ferry in 1859. Well before this ill-fated escapade, Brown authored texts to govern his volunteer force, including an analogue to the Declaration of Independence. A year or so before the raid, Brown convened a convention in Chatham, Canada, and ratified a Provisional Constitution. He believed in separation of powers, racial equality, and the humane treatment of prisoners. Despite Brown's attacks on Dred Scott, the document endorsed judicial review, albeit implemented by a 5-member Supreme Court. It lacked a separate Bill of Rights, though certain principles, institutions, and practices were to be respected. All persons agreed to put themselves "under obligation to labor" and the community believed in gun rights as long as arms were carried openly (certain high officials excepted). Read the entire Constitution for yourself here.

Every so often, members of the group would pull out the document and read it aloud. They would ritually recommit to its principles, as they did before setting off for Harper's Ferry. Once Brown was captured and tried by the Commonwealth of Virginia, he declined opportunities to disavow the Provisional Constitution, notably, by resisting his lawyers' advice to point to the document in a bid to demonstrate insanity.

I explore John Brown's turn to written constitutionalism in my paper, John Brown's Constitution. Comments welcome!


Richards on Lawrence Friedman and Privacy and the Limits of History

Privacy and the Limits of History is a review essay by Neil M. Richards, Washington University School of Law. It appears in the Yale Journal of Law and the Humanities (2009). Here's the abstract:
A short review essay of Lawrence Friedman's "Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic - a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.

Kreitner on Fault at the Contract-Tort Interface

Fault at the Contract-Tort Interface is a new paper by Roy Kreitner, Tel Aviv University, Buchmann Faculty of Law, a recent winner of the the Cromwell Book Prize for Calculating Promises: The Emergence of Modern American Contract Doctrine (Stanford University Press, 2006). The new paper will appear in the Michigan Law Review (2009). Here's the abstract:
The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of “no liability without fault,” while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account for the different character of state involvement in enforcing private law rights: tort law governs liabilities imposed by law on nonconsenting members of society (and thus, it should limit itself to fault-based conduct), while contract law governs bargained-for duties and liabilities of parties who exercise freedom of contract (and thus, liability voluntarily undertaken need not consider fault). These theories are problematic, especially because they cannot offer a complete account of contract or tort. Tort retains too much strict liability to be thought of as a regime of no liability without fault, and contract has too many fault-based rules to be conceived of through strict liability. While these justifications for the distinction between contract and tort were questioned in ensuing generations, they still structure much of the debate over the current boundary between contract and tort.

Wednesday, April 29, 2009

Vandervelde on The Legal Ways of Seduction

The Legal Ways of Seduction has just been posted on SSRN by Lea S. VanderVelde, University of Iowa College of Law. It appeared in the Stanford Law Review (1995-1996). Here's the abstract:
Rape, coerced sex, and abandonment when pregnant are quintessentially gendered grievances that generations of young women have experienced. The law, however, has not always responded to these grievances by providing a tradition by which women could receive monetary damages for these kinds of sexual predation. This article situates the nineteenth century American seduction cases at the cusp of the transition from violent retributive sanctions for sexual assault to civil actions for money damages. The seduction cases tell the story of the move from patriarchal violence to "rationally" created rules of law. In the nineteenth century, courts provided fathers with a cause of action when their daughters were subjected to sexual coercion while they worked outside the confines of their father's home. As the state assumed more of a monopoly on violence in these situations, it replaced the traditional domination exercised by the patriarch by copying its distributional pattern rather than by recognizing new rights in the parties most harmed. The extension of rights under this ancient tort was, in fact, antithetical to single women's independence because it reinforced the patriarchal order and defeated acts of emancipation on the woman's part. In a study of more than two hundred cases, Professor VanderVelde first makes the case that there was no tradition of monetary redress for one of a woman's greatest fears, sexual assault. The article demonstrates the doctrines and cultural precepts which inhibited the development of an action that the woman herself could bring. Second, the article examines the terms on which the tort of seduction operated. Finally, the article demonstrates how a minor change in standing adopted virtually without notice changed the cast of seduction disputes in some states. Through this means in some eleven states, servant girls at last were able to sue masters who coerced them into engaging in sex.

Beyond the First Hundred Days: Securities Regulation

We are rapidly approaching the seventy-fifth anniversary of the creation of Securities and Exchange Commission. Its organic statute, signed into law by Franklin D. Roosevelt on June 6 as the Securities Exchange Act of 1934, had a longer and more difficult birth than the Securities Act of 1933. The 1933 act had passed rapidly into law from the pens of three proteges of the Harvard law professor Felix Frankfurter, thanks to the mediation of a presidential advisor, (Ray Moley); the championing of the politically astute, powerful and populist chairman of the House Interstate Commerce Committee (Sam Rayburn); fumbling by a Senate committee as it attempted to translate the revelations of its investigator, Ferdinand Pecora, into legislation; the absenteeism of the Treasury Department under an infirm nonentity; the incompetent opposition mounted by Sullivan & Cromwell’s John Foster Dulles; the near-protestation of finance capitalism; and the crisis atmosphere of the First Hundred Days. In 1934, in contrast, investment bankers, New York stock exchanges, and publicly traded corporations had regained their footing; their lawyers had assembled into a more potent phalanx; Treasury officials had demanded and won a say in the process; the Federal Reserve more aggressively defended its prerogatives; and the Senate more effectively asserted its authority. At the end of the process, most of the rivals declared victory–in part because they could see their influence in the act, in part because Congress refused to legislate beyond its reach, leaving important but poorly understood matters (such as the control of the over-the-counter market) to the SEC to investigate and regulate.

One phase of the legislative origins of the Securities and Exchange Act is particularly noteworthy today: far from taking the lead, Treasury officials could only react to proposals as they emerged from different parts of the administration. Wall Street had its greatest influence in a committee headed by Secretary of Commerce Daniel Roper. Its influence upon the reconstituted team that had drafted the 1933 act, was indirect and countered by the appointment of one of their number (James Landis, pictured at left) to the FTC, the continued support of Sam Rayburn, better relations with the Senate, and access to the “excess human capital” of the New Deal’s talented young lawyers. These drafters were hardly financial naifs–Thomas Corcoran (pictured at right) had worked in a major New York firm and was said to have won and lost a healthy sum on Wall Street; Benjamin Cohen was said to have won and kept another; Landis was a leading authority on “blue-sky” laws, the state-level precursors of federal securities regulation. In other circumstances, however, they could not have broken through the condescension of better credentialed industry insiders. As it was, they had to endure weeks of heated exchanges behind closed doors with Treasury, Federal Reserve, and Commerce officials, holding their own only because they outworked the opposition. They also were undeterred by Red-baiting, including the famous description of Corcoran and Cohen’s salon in upper Georgetown as “the Little Red House.”

In the end, the Frankfurter-Rayburn contingent of drafters prevailed. “[Presidential advisor] Ray Moley, [Senate committee counsel] Pecora, Sam Rayburn, and [Vice President and former House Speaker John Nance] Garner have been magnificent,” Benjamin Cohen reported to his mentor Frankfurter, dehors the combat in England. “Otherwise we kids have taken the beating alone. . . . That we’re getting the kind of bill we expect in the teeth of the kind of opposition we have to meet . . . is to me a miracle.”

Analogizing across a historical divide like the one separating us from 1934 is perilous and possibly foolhardy. Still, it’s hard not to find in the legislative history of the SEC reason to second Speaker Pelosi’s call for a new Pecora hearing. News reports of the deliberations before the release of the Torture Memos show President Obama acting on his pledge of open-minded consideration of multiple viewpoints, captured in his emulation of Lincoln’s appointment of a “Team of Rivals” to his cabinet. Right now, however, he seems to be leaving financial regulation to a “Team of Bankers."

Image credit: The First SEC (Seated: Ferdinand Pecora, Joseph Kennedy, James Landis; Standing: Robert Healey, George Matthews.)

Hulsebosch on Kent's Law Library

Daniel J. Hulsebosch, NYU School of Law, has posted An Empire of Law: Chancellor Kent and the Revolution in Books in the Early Republic, which is slated for Alabama Law Review 60 (2009): 377-424. Here is the abstract:
Drawing on James Kent's law library, this Essay illuminates one aspect of the post-colonial British influence on early American legal culture: a revolution in books in the Atlantic world that coincided with the American Revolution. This book revolution was a condition precedent for the way that leading jurists like Chancellor Kent of New York conceived of law and also shaped the media through which they communicated law. The book revolution had many causes and resulted in an explosion of English print that spread across the Atlantic through the copyright-free haven of Dublin. This transatlantic network of copyright arbitrageurs - they should not be called "pirates" because they did not violate British law - made it possible for James Kent and other young lawyers with no personal connections to Great Britain to fill their libraries with the latest English law books at discount prices. As Kent struggled to make sense of these books, he developed an unusually print-oriented vision of the ideal legal order. He then translated what he learned - the substance as well as the vision - into his own reports and his four-volume Commentaries on American Law (1826-1830), which were available everywhere in the Union throughout the nineteenth century. In sum, this revolution facilitated the development of a trans-jurisdictional conception of law that Federalist jurists like Kent used to promote a new kind of empire: an empire of law in which law was conceived as a set of legal principles that should operate everywhere in the Union.
Image credit.

Tuesday, April 28, 2009

The Global Lincoln: conference at Oxford

A conference with an all-star line-up will focus on The Global Lincoln at the Rothmere American Institute, University of Oxford, July 3-5, 2009. Here's the conference description:

After his death Abraham Lincoln became a global figure who spoke - and continues to speak - to peoples across the world. As the British Prime Minister David Lloyd George put it, Lincoln 'lost his nationality in death.' His political principles, his record of successful executive leadership in wartime, his role as the 'Great Emancipator', his resolute defence of popular government, and the perception of him as an exemplar of human brotherhood made him an international cult figure. Karl Marx judged him 'the single-minded son of the working class'; Cuban rebels invoked his name in support of their struggle for emancipation and self-government; Tolstoy reported his fame in the Caucasus; Tomas Masaryk, the first president of Czechoslovakia, drew strength as 'the Lincoln of Central Europe'; racially-mixed, republican 'Lincoln brigades' fought in the Spanish Civil War; more recently, Gordon Brown and Pervez Musharaf invoked Lincoln in support of their respective domestic agendas.
By 1900, works on Lincoln had been published in (sequentially) German, French, Dutch, Italian, Portuguese, Greek, Spanish, Danish, Welsh, Hebrew, Russian, Norwegian, Finnish, Turkish, Swedish, and Japanese; and over the next twenty-five years or so the list had extended to embrace lives in Polish, Chinese, Czech, Arabic, Hungarian, Persian, Slovak, Armenian and Korean. After the Second World War, Lincoln continued to enjoy an international reputation, winning admirers among statesmen and ordinary people across Asia, Africa and Latin America. During and after the collapse of communism, he provided a democratic model for the Poles, the Baltic states, and others in eastern Europe.
The traction that Lincoln has had in these disparate regions, nations and contexts reveals that the story of his legacy is a global one. Lincoln's own intellectual and political horizons stretched across the nineteenth-century world. His conception of the Union as the 'last, best hope of earth' revealed his belief that the American Civil War constituted something larger than simply an American problem. The story of 'the Global Lincoln,' however, is more than just an examination of his views on international questions.
At its heart this project will explore what made Lincoln such a significant figure in these differing nations, contexts and eras. Papers delivered by leading intellectuals and public figures will examine the meanings which individuals and groups drew from Lincoln. The presenters also will consider the political exploitation of Lincoln's image and legacy in the specific contexts in which they were invoked. These themes will be explored in a variety of ways: through biographies of Lincoln written in other languages; analysis of the views individuals and political groupings held of Lincoln; examination of the creation of memorials, societies and other tributes to Lincoln.
More details are here.

The history of the Law of Nations in U.S. Courts debated at the Columbia L. Rev. Sidebar

A debate is on at the Columbia Law Review over the role of the Law of Nations in the history of American federal courts. Anthony J. Bellia, Jr., Notre Dame Law School, and Bradford R. Clark, George Washington Law School, published an article in January on The Federal Common Law of Nations. Ernest A. Young, Duke Law School, questions their reading of history in a response just published at the law review's on-line publication, Sidebar. Here are synopses of the article and the response.

The Federal Common Law of Nations by Anthony J. Bellia Jr. & Bradford R. Clark

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.

Historical Practice and the Contemporary Debate Over Customary International Law by Ernest A. Young

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations,[1] demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where necessary to vindicate the "perfect rights" of foreign nations. In so doing, American courts have protected the prerogatives of the political branches to "recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace."[2] Although Professors Bellia and Clark disavow any attempt "to settle all questions of how customary international law interacts with the federal system,"[3] they do suggest that their approach represents a middle ground between proponents of the "modern position" that CIL simply is federal common law[4] and critics of that position, who insist that CIL may be applied by American courts only where it is incorporated into the domestic legal system through an affirmative act by the political branches.[5]
This response makes three points. First, I quibble with the historical account offered by Professors Bellia and Clark on two minor, yet at least somewhat significant, grounds: The debate over reception of the common law at the federal Constitutional Convention shows greater early skepticism about judge-made common law than Bellia and Clark suggest; also, the jurisdictional provisions of Article III covering cases implicating foreign affairs were not intended fully to centralize power over such cases in federal courts because they left concurrent jurisdiction in the state courts. Second, I question the extent to which the Founding Era history is directly relevant to contemporary debates about how to treat CIL. Finally, I contend that what does the real work in the Bellia and Clark approach is simply constitutionally-grounded concerns about the separation of powers in foreign affairs cases, not anything about CIL per se. Their position thus reduces to the largely uncontroversial claim that federal courts may make federal common law to protect these constitutionally-grounded federal interests, and they may sometimes draw the content of federal common law from international law.

"Uncivil Disobedience" Reviewed

While we are on the topic of popular constitutionalism, Uncivil Disobedience is definitely worth a read. Much of the book was written while the author, Jennet Kirkpatrick, University of Michigan, was in residence at the Institute for Advanced Study at Princeton. This study, while slim, packs a nice punch. Unlike many accounts of direct action, Kirkpatrick is willing to confront the darker implications of America's tradition of popular sovereignty. Highly recommended.

From Jon Goldberg-Hiller, University of Hawai'i, in the Law & Politics Book Review:

Jennet Kirkpatrick’s book provides an engaging examination of what she has calls “uncivil disobedients,” popular actors who practice and profess the value of “righteous violence.”

. . . .

UNCIVIL DISOBEDIENCE develops these sociolegal inquiries alongside fascinating accounts of vigilantes, Southern lynch mobs, and militant abolitionists. These histories confront the reader with the structures of popular violence reproduced within the American experience, dispelling dismissive notions of their aberration or their charismatic irruption.

. . . .

Kirkpatrick’s study is rich in history and suggestive in its pursuit of other models for thinking about law’s social meanings. She misses several opportunities, however, to invite further inquiry in this short book. We do not learn enough about the gendered nature of political violence, even though the lynch mobs are aggravated and motivated by concerns over sexual violation.
Read on.

Fritz, American Sovereigns, now in paperback & eBook

To follow up on Dan's post noting Christian Fritz's leadership of an Institute for Constitutional Studies summer workshop, LHB readers will be interested to know that Fritz's book, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, has just been released in paperback by Cambridge University Press. I complained about the book's pricing for the hardback when it was released, but the paperback makes it quite affordable. You can also download an eBook version at the CUP website -- but the pricing on this version ($64 USD) remains at an unfortunate level. I've only seen eBooks at $50 or more for works that are not available in print. So you are unlikely to be able to assign the green version in class, but now more legal historians will be able to assign (and purchase for themselves) the paperback.
John Dinan
, Department of Political Science, Wake Forest University found the book "painstakingly researched and richly rewarding," in a review on H-Law.

Summer Workshop on the Constitutional Legacy of the American Revolution

The Institute for Constitutional Studies announces an Interdisciplinary Summer Workshop for College Instructors, "The Constitutional Legacy of the American Revolution," sponsored by the Institute with the University of California, Santa Barbara, August 3-7, 2009. Leading the workshop will be Christian Fritz, Professor of Law at the University of New Mexico School of Law and the author of American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (2008) and Federal Justice in California: The Court of Ogden Hoffman, 1851-1891 (1991). The announcement commences:
Anyone who teaches the American Revolution, the formation of the federal Constitution (or early state constitution-making), or any of the many political controversies arising before the Civil War may find this workshop helpful. It will examine the life of an idea from the Revolution that continued to have an impact on America's history. In considering the people as the sovereign in America, a focus on issues of constitutionalism, rather than the usual focus on constitutional questions, can enrich our historical understanding. The old chestnuts of American history, such as the Shays, Whiskey and Dorr "rebellions" or difficult-to-understand moments, such as the Virginia and Kentucky Resolutions, the Hartford Convention, or the Nullification Crisis, can take on a new vitality. Our workshop hopes to draw upon the perspectives and insights of its participants to flesh out different iterations of the authority attributed to "the people."

The workshop explores America?s constitutionalism from its birth during the Revolution through its development into the 20th Century. Many constitutional studies assert that the federal Constitution's adoption should be the exclusive focus of any study of America's constitutionalism. They present the federal Constitution as the culmination of constitutional thought from which a straight line can be traced to the constitutionalism of today. Gordon Wood's The Creation of the American Republic, 1776-1787 (1969) is invoked to justify this approach even though Wood's analysis ends with the Constitution's ratification. Others have extrapolated Wood's findings far beyond the scope of his study, assuming that today's constitutional ideas were the same ones that "swept the field" in 1787.

In challenging this assumption, our workshop traces American views about constitutionalism both before and after the federal Constitution. It will explore how constitutional ideas that supposedly died in 1787 were not buried. In fact, those ideas retained their utility to Americans well into the 1840s and beyond. In addition, the state constitutions of the 1770s "under which Americans fought and defeated the powerful British Empire" were not mere "experiments." Americans continued to act on the ideas in those constitutions despite the different approach taken by the federal Constitution. In this light, the 1787 constitution was not a natural culmination, but a competing view of constitutionalism.
More (and H-Law hat tip).

Cohen on Historical American Perspectives on International Law

Harlan Grant Cohen, University of Georgia Law School, has posted Historical American Perspectives on International Law, which is forthcoming in ILSA Journal of International and Comparative Law. Here is the abstract:
The United States’ relationship with international law, although oft-discussed, is poorly understood. Depictions of the relationship are often little more than caricatures. Depending on when the caricature is drawn, the United States may be a longstanding “champion” of international law, an “exceptionalist” defender of American values, or a hypocritical opponent of international governance. Many traditional histories do little to complicate these views. Focused primarily on foreign affairs law and constitutional war powers, these histories highlight moments of tension between the United States and international law. Missing from these histories of American diplomacy and warcraft, foreign affairs caselaw and doctrinal development is the rich cultural and intellectual history of American engagement with international law and justice.

This short essay, an expanded version of a panel introduction at International Law Weekend 2008, highlights the work of a number of scholars who are beginning to fill this gap. It argues that a new focus on the cultural and intellectual history of American approaches to international law can, among other things, (1) enrich our historical picture of American relations to international law, (2) complicate the common stereotypes of that relationship that dominate current debates, and (3) facilitate study of various theories of international law, particularly constructivist ones. The United States’ relationship with international law, although oft-discussed, is poorly understood. Depictions of the relationship are often little more than caricatures. Depending on when the caricature is drawn, the United States may be a longstanding “champion” of international law, an “exceptionalist” defender of American values, or a hypocritical opponent of international governance. Many traditional histories do little to complicate these views. Focused primarily on foreign affairs law and constitutional war powers, these histories highlight moments of tension between the United States and international law. Missing from these histories of American diplomacy and warcraft, foreign affairs caselaw and doctrinal development is the rich cultural and intellectual history of American engagement with international law and justice.

This short essay, an expanded version of a panel introduction at International Law Weekend 2008, highlights the work of a number of scholars who are beginning to fill this gap. It argues that a new focus on the cultural and intellectual history of American approaches to international law can, among other things, (1) enrich our historical picture of American relations to international law, (2) complicate the common stereotypes of that relationship that dominate current debates, and (3) facilitate study of various theories of international law, particularly constructivist ones.

Monday, April 27, 2009

Banks on Thurgood Marshall as "Race Man" and "Pragmatic Feminist"

Justice Thurgood Marshall on the Bench: 'Race Man' and 'Pragmatic Feminist' is a new paper by Taunya Lovell Banks, University of Maryland School of Law. Here's the abstract:
Most people think of Thurgood Marshall as a champion of racial equality. Few legal scholars hail him as a great friend to women when he was on the United States Supreme Court. Yet between 1971, when the Court in Reed v. Reed invalidated a state law preferring men over women as administrators for estates on equal protection grounds, and 1991 when Marshall announced his retirement from the bench, he cast “pro-feminist” votes 92% of the time in gender employment discrimination cases, one percent more than Justice Brennan. ….This overwhelmingly pro-woman voting record might even cause some to call Marshall a feminist… a closer examination of the man, and his record, particularly three decisions, two of which he authored (Santa Clara Pueblo v. Martinez, Florida Star v. B.J.F and Alexander v. Louisiana) where he votes against women’s interests, discloses a more mixed picture…. Without question Thurgood Marshall was a race man, but this article asks whether a good race man can also be a good feminist….I conclude that Marshall, while a friend to women, was no feminist in the contemporary meaning of the word, and at best could be classified as a practical as opposed to an idealistic feminist.
Image: Marshall accepts Supreme Court nomination.

Kalman at the Miller Center on Politics in the 1970s

Laura Kalman, University of California, Santa Barbara, will be presenting at the Governing America in a Global Era (GAGE) program at the University of Virginia's Miller Center of Public Affairs on Friday, May 1, as part of the GAGE Colloquia Series on Politics and History. Kalman, a past president of the American Society for Legal History, will be discussing her book-in-progress, Right Star Rising: American Politics and the Limits of Leadership in the Seventies, 1974-1979. The paper she'll present is downloadable here.

The event is free and open to the public, although an RSVP is required by Wednesday, April 29, at or 434.924.4694. It will be webcasted live, accessible here.

Schafer on New Orleans's Antebellum Brothels

A new book by Judith Kelleher Schafer, Tulane University, Brothels, Depravity, and Abandoned Women: Illegal Sex in Antebellum New Orleans, is the subject of a story by Susan Larson in the Times-Picayune . (Although I'm linking to Amazon, feel free to request it at your local independent bookseller.)

The Times-Picayune story commences:
Tulane University history professor Judith Kelleher Schafer loves uncovering the truth, whether it be pleasant or not.

"I need history to tell me what to write," she said. "I couldn't make up this stuff. The truth is so wonderful."

Schafer's third book came about by happy accident. While researching archives of the First District Court of New Orleans and the Daily Picayune from 1846-1862 for her award-winning book, "Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862," she kept noticing charges for "keeping a brothel."

"And 99 percent of them were dropped before they went to trial," she said.

She began to keep track of these cases, taking notes as she went, thinking she had an idea for a book. The result is "Brothels, Depravity, and Abandoned Women: Illegal Sex in Antebellum New Orleans," a revelatory look stretching from the pre-Civil War period to the Union occupation.

Wilf on The Invention of Legal Primitivism

The Invention of Legal Primitivism is a new article by Steven Wilf, University of Connecticut School of Law. It is appears in Theoretical Inquiries in Law (2009). Here's the abstract:
This Article addresses a different sort of legal transplant - one in which outside legal doctrines are imported in order to be cabined, treated as normative counterpoints, and identified as the legal other. Legal primitivism is a kind of anti-transplant. It heightens the persistent differences between a dominant legal system and its understanding of primitive rules. An often ignored legal literature depicting legal primitivism emerged in the second half of the nineteenth century and in the early twentieth century. Mapping the differences between America’s modern legal system and its antecedents, this immense literature, which included works by Oliver Wendell Holmes, James Coolidge Carter, and John Henry Wigmore, described an archaic legalism which sometimes belonged to tribal societies, and sometimes was simply conjured out of thin air. The Article explores the project of constructing geographies of legal knowledge as a way of understanding American law in a period of change. What elements of primitive law were valorized? Which were seen as archaic or repugnant? And what was the purpose of constructing a legal doppelgänger? By examining these cultural negotiations, and holding legal primitivism up as a mirror to modern law, it is possible to uncover the anxieties of legal modernism.

Sunday, April 26, 2009


After much too long a winter.

The flowers: my garden. The bulbs: White Flower Farm.

Reviewed: Hodgson, The Myth of American Exceptionalism

Arguments that a practice reflects American exceptionalism are inherently comparative arguments, but are most often offered without comparative evidence. Instead sometimes American exceptionalism is suggested almost as a throw-away line, as if it is a commonly-held assumption that requires no examination. Because of this, I was pleased to learn of a new book by Godfrey Hodgson, associate fellow at the Rothermere American Institute, University of Oxford, The Myth of American Exceptionalism (Yale University Press). In the blurbs, Tom Bender calls the book an "independent-minded polemic" that "offers powerful evidence that a belief in American exceptionalism hinders clear thinking about the nation and the world." At 221 pages, the book is shorter on historical detail than on argument, leaving it to other historians (like Bender, Ian Tyrell and others) to fill in the texture of U.S. history set more firmly in the world.
Hodgson is reviewed by Roger Cohen in the New York Times. Although, for Hodgson, "the American Revolution created the world’s first large republic and 'replaced divine right, and hereditary right, and customary legitimacy, with the supreme authority of the people,'" for all their differences, "'19th-century America and 19th-century Europe were essentially two parts of the same progressive, liberal capitalist civilization.'" Rather than seeing the United States as a "city upon a Hill," Cohen writes,

Hodgson is unconvinced about America’s global mission. The United States, he writes, has become “just one great, but imperfect, country among others.” More than skeptical, he is angry, dismayed by what he sees as the religious, self-righteous and rightist manipulation of a once ennobling idea. Hodgson argues that “what has been essentially a liberating set of beliefs has been corrupted over the past 30 years or so by hubris and self-interest into what is now a dangerous basis for national policy and for the international system.”
Continue reading here.

Saturday, April 25, 2009

Lombardo on Disability, Eugenics, and the Culture Wars

Disability, Eugenics, and the Culture Wars is a new article by Paul A. Lombardo, Georgia State University College of Law, author of the book Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. The article will appear in the St. Louis Journal of Health Law & Policy (2009). Here's the abstract:
The eugenics movement provided the motive for dozens of laws that remained in force for more than a century in the United States, a significant number of which specifically targeted people with disabilities for legally sanctioned discrimination. Similar laws were adopted around the world, perhaps most notably as part of Hitler’s prelude to the Holocaust. Consequently, we tend to associate the word “eugenics” with all things evil. Yet the underlying message of eugenicists was popular for so long not solely because it denoted coercive legislation but more often because it signaled a hopeful future devoid of social problems. This paper describes how the word “eugenics” is now coming back into common use, and how it has been revived in the service of political objectives, divorced from the period in which it developed and the meaning it had within its earlier historical context. The resulting distortions - directly traceable to the ongoing “culture war” over reproductive rights - suggests that we should be careful when we play the “eugenics card” lest rhetorical zeal eliminate the possibility for honest debate.

What Would Lincoln Do?

[Usually we only post lectures and other events that are open to the public or some demonstrably interested subset thereof. That's not this one, but it landed in my inbox--I'm an (inactive) member of the Illinois bar--and I thought some readers would be interested in and/or amused by the program.]

Learn how Lincoln did it and earn 4 hours APPROVED PMCLE credit! Lessons in Professional Responsibility Learned from the Illinois Law Practice of Abraham Lincoln. Presented by the Illinois State Bar Association

Thursday, May 7th
Bloomington Normal – Illinois State University Alumni Center 8:30 a.m. - 1:00 p.m.

Friday, June 5th
Carbondale - Southern Illinois University School of Law 12:30 p.m. - 5:00 p.m. (Co-Sponsored by the Southern Illinois University School of Law)

Friday, June 26th
Fontana, WI - 133rd ISBA Annual Meeting at The Abbey Resort Time TBD

Learn about professional responsibility from the law practice of one of Illinois’ greatest lawyers, Abraham Lincoln. You will hear the words of Lincoln and his law partner, William Herndon, through re-enactments of their recollections of cases, letters, speeches and stories. The presentations are based upon historic research provided by John Lupton, Associate Director/Associate Editor of The Papers of Abraham Lincoln. The historic settings of the re-enactments, the Lincoln-Herndon Law Office and the Old State Capitol in Springfield, were provided courtesy of the Illinois Historic Preservation Agency.

After each recollection, you will also hear from some of the top bar leaders of today on how these issues impact the practice of law in the 21st century. Topics include reverence for the law; conflicts of interest & solicitation; fees & retainer agreements; pro bono legal work; sale of a practice/file management; managing client concerns and expectations; the lawyer as an advocate; the lawyer as peacemaker/frivolous lawsuits; zealous advocacy; the lawyer’s duty to the court; competency; mental health; mentoring; and diversity.

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Friday, April 24, 2009

What Comes Naturally

I just received my copy of What Comes Naturally: Miscegenation Law and the Making of Race in America by Peggy Pascoe, University of Oregon. The book recently won the Organization of American Historians' Ellis W. Hawley Prize for best book on the economy, politics, or institutions of the United States (from the Civil War to the present), and its Lawrence W. Levine Prize for best book in American cultural history.

I'm looking forward to giving the book a good read. In the meantime, Mark Kessler, Texas Woman's University, has some nice things to say about Peggy's book in his review.

Robert Jackson's Memo to FDR on Gobitis

On June 3, 1940, then-Attorney General Robert Jackson authored a memo to President Franklin Roosevelt, as was his practice, discussing the various Supreme Court decisions in which the United States had an interest. Jackson singled out Minersville School District v. Gobitis, even though the United States filed no brief in that case.

He wrote:
Among the decisions of the Court in non-Governemnt litigation the one of most interest was that in Minersville School District v. Gobitis. In this case, the Court, in an opinion by Mr. Justice Frankfurter, held that the School Board could constitutionally exact a salute to the flag, even though the child was a member of the sect which believed the salute to be idolatrous worship of a man-made object or institution. The Court paid eloquent service to the principle that "the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law." But, the Court said, "the mere possession of religious convictions * * * does not relieve the citizen from the discharge of political responsibilities." Salute to the flag the Court considered to be a relevant requirement to obtain that "national unity" which "is the basis of national security." Mr. Justice Stone dissented. He recognized the power of government to control conduct notwithstanding religious scruples but thought the guarantee of religious freedom forbade the legislature to "compel public affirmations which violate * * * religious conscience."
Although one must be careful not to read too much into a synopsis, it is interesting how Jackson characterized the outcome. First, he framed the Witnesses' claim in a charitable light. Second, Jackson never mentioned the overwhelming nature of the decision, which was 8-1. Third, he didn't endorse the determinative rationale, which he put strictly in the mouths of the Justices; instead, he praised only the ruling's "eloquent" affirmation of the idea that one's "convictions" reached in the pursuit of life's mysteries lie "beyond the reach of law." Fourth, he gave equal time to Stone's dissent, which stressed the importance of "religious conscience."

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Heinze on Oppression and Resistance in Shakespeare's Comedy of Errors

Eric Heinze, Queen Mary University of London, School of Law, has posted 'Were it Not Against Our Laws': Oppression and Resistance in Shakespeare's Comedy of Errors. The essay is forthcoming in Legal Studies (2009). Here's the abstract:
The Comedy of Errors, always loved on the stage, has long been deemed less substantial than Shakespeare's 'mature' works. Its references to private and public law have certainly been noted: a trial, a breached contract, a stand-off between monarchical and parliamentary powers. Yet the play's legal elements are more than historical curios within an otherwise light-hearted venture. The play is pervasively structured by an array of socio-legal dualisms-master-servant, husband-wife, native-alien, parent-child, monarch-parliament, buyer-seller. All confront fraught transitions from pre-modern to early modern forms. Those fundamentally legal relationships fuel character and action, even where no conventionally legal norm or procedure is at issue. 'Errors' in the play serve constantly to highlight unstable and shifting relationships of dominance and submission. Law undergoes its own transition from feudal-aristocratic to commercial forms. Through a theatrical framing device, it thereby re-emerges to remind us that those dualisms, even in their new incarnations, will remain squarely within law's ambit.

Thursday, April 23, 2009

Ventry on Ownership as the Basis of Family Taxation

Saving Seaborn: Ownership as the Basis of Family Taxation is a new paper by Dennis J. Ventry Jr., University of California, Davis School of Law. Here's the abstract:
This Article examines the historical and jurisprudential development of the principle that ownership determines federal taxation of families. It traces the "ownership equals taxability" principle from the late nineteenth century to 1930; that is, from the decades leading up to ratification of the Sixteenth Amendment to the U.S. Supreme Court's landmark decisions in Poe v. Seaborn and Lucas v. Earl. It is a story of the early federal income tax and its administration; of tax avoidance opportunities for families; of the nature of spouses' legal interests as defined by state property laws; and of early tax enforcement efforts by the Treasury Department and Congress. It is also a story of how the Supreme Court sought to protect Congress' taxing power by articulating an expansive definition of ownership for purposes of determining taxability that relied on indicia of ownership such as control, management, dominion, beneficial interests, equitable interests, enjoyment, and even a "flow of satisfactions" concept that tracked consumption tax principles more closely than income tax principles.
In the end, the Article lays the groundwork for removing the modern-day false barometer of marriage between a man and a woman as the basis of family taxation. In place of marriage, it reestablishes ownership principles grounded in longstanding Supreme Court jurisprudence as the historically and legally accurate gauge for family taxation. In so doing, the Article presages an argument that will be articulated in a subsequent Article for taxing members of all state-recognized civil partnerships - marriage, domestic partnerships, civil unions, reciprocal beneficiary relationships - according to ownership interests as determined by state law.

Public Presidential Documents Online

The University of California, Santa Barbara has a website for The American Presidency Project with a nifty search engine if you are looking for public presidential documents online. The University of Virginia's Miller Center of Public Affairs has an ongoing multimedia project involving presidents. Its site contains several links to useful resources.

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Minnesota Legal History

Earlier posts have pointed to projects on the legal history of various American states, including Idaho and Connecticut. Here's another. The Minnesota Legal History Project describes itself as "an archive of original and previously published articles and essays on the legal history of Minnesota." It will "publish studies of subjects that relate in any way to the legal history of the State of Minnesota, including the state constitution, state courts, Indian treaties, tribal law and courts, significant litigation, the development of specific areas of the law, memoirs and biographical sketches of individual lawyers, judges and their support staffs, and law firm histories."

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Wednesday, April 22, 2009

Landmarks of Law Reporting at Yale

The Yale Law Library announces a new exhibit, Landmarks of Law Reporting: Case-Law Reporting in Anglo-American Common Law through Seven Centuries., April - October 2009, in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School. Here's the announcement:
Case reports are a fundamental source for the study and practice of law in the Anglo-American common law system. "Landmarks in Law Reporting," the latest exhibition from the Lillian Goldman Law Library's Rare Book Collection, illustrates the development of law reporting from the Middle Ages to modern times.

The exhibit begins with a manuscript collection of cases from the reign of Edward III, copied in about 1450. Also on display are first editions of the reports of Edmund Plowden (1571, considered the first modern-style reports) and Sir Edward Coke (1600, perhaps the most influential reports). Other "firsts" on display include the first American case reports (Ephraim Kirby's 1789 reports of Connecticut cases) and the first U.S. Supreme Court reports (Dallas' Reports, 1798).

Recurring themes in the exhibition include the gradual transformation from manuscript to print, the growth of legal publishing, the connections between law reporting and legal education, and the growing demands by lawyers for timely, well-organized reports.

The exhibition was curated by Mike Widener, Rare Book Librarian.

The Rare Books Exhibition Gallery is located in the lower level of the Lillian Goldman Law Library (Level L2), directly in front of the Paskus-Danziger Rare Book Reading Room. For those unable to visit the exhibit in person, it will appear in installments on the Yale Law Library Rare Books Blog
Hat tip: H-Law. Image credit.

Spagnola reviews Bilder, The Transatlantic Constitution

Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Harvard University Press, 2008), is reviewed by Linda Spagnola, North Carolina State, for H-Law . Spagnola writes:
As more attention is paid to the interconnectedness of the Atlantic world, more books such as The Transatlantic Constitution: Colonial Legal Culture and the Empire will surely be forthcoming to illuminate the still murky corners of the genre. Mary Sarah Bilder has nicely combined the interest in Atlantic history with the resurgence in constitutional legal history. Her examination of the"transatlantic constitution" seems to be a natural and interesting continuation of the work of the maestros of constitutionalism--Bernard Bailyn, Gordon Wood, and Jack P. Greene:"While the empire that created the transatlantic constitution faded with the American Revolution, its legal culture survived to construct the skeleton of federalism and mold early national constitutionalism in the United States" (p. 1).

In her new book, Bilder argues that the "repugnancy principle"controlled the legal structures between England and her colonies.Simply stated, this principle required that colonial laws could not contradict the laws of England. More importantly, the corollary to this principle was the acceptance of "divergence" where the local conditions warranted and justified non-conformity. This is a new way of looking into the Atlantic legal relationship and the constitutional inheritance of America. Bilder argues persuasively that Rhode Island was negotiating both the intersections and voids between the colony's legal system (such as it was) and English laws and customs.

The bulk of the text is dedicated to careful, detailed analysis of various categories of case law in Rhode Island and their handling under Privy Council review. Bilder addresses first the issues associated with determining what the law actually stated and to whom it applied. English law was both formally codified and settled by usage and custom in particular areas. This characteristic simply exacerbated the issues presented to the Rhode Island colony which,spitefully, refused to present a codified version of its own laws to avoid English scrutiny. The transatlantic constitution seemed to be indefinite and in constant flux. A judgment of "repugnancy" versus"divergence" depended on the skill of legal argument: "If the English empire and Englishness required transatlantic uniformity, then some nonuniform colonial laws would be judged repugnant. If the colony could demonstrate that differences related to the nature of the colony and its people, then the colonial laws would be judged divergent" (p. 145). This uncertainty about where the line between divergence and repugnancy lay was the crux of the problem, and the dynamic thrill, artfully illustrated by the author.
Continue reading here.

Constitutional Borrowing

Nelson Tebbe, Brooklyn Law School, and I have posted Constitutional Borrowing, which is forthcoming in the Michigan Law Review. Our aim is primarily theoretical in nature: to define constitutional borrowing, present a typology describing its common forms, undertake a rule-of-law defense of the practice, and say a few words about how borrowing figures in modern constitutional theory. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation.

Even so, students of legal history might be interested in two aspects of the paper. First, we describe the efforts of jurists, activists, and academics during the last twenty years to import the language and doctrines of equality into matters of religion as a project of "displacement." Social conservatives, in particular, have been highly successful at coopting the terminology and experiences of the civil rights movement on behalf of the faithful (I flesh out this popular mobilization and institutional endorsement of constitutional language in Chapter Four of Eloquence and Reason).

Second, we endeavor to demonstrate that originalists are among the most avid borrowers, whose crucial choices involve not only which questions to ask of the past, but also whose history matters. These analytical moves are all too often hidden by the dominant manner of treating everything related to construing a constitution as "interpretation."

We would be very interested in your comments.

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White on the Charles Warren Fellowships

G. Edward White, University of Virginia Law School, has posted on bepress The Origins of Modern American Legal History, a paper on how the Harvard Law School's Charles Warren Fellowships in the late 1960s and early 1970s amounted to a defining moment in the academic discipline of American legal history. (The fellowships commenced after the unexpected death of the first occupant of the Charles Warren chair in American legal history, Mark De Wolfe Howe, picture at right.) White gave the paper at the conference in honor of Morton Horwitz, and it will appear as a chapter in the next volume of the festschrift from the Harvard University Press.) I broke into the biz in the Eighties and after being trained by several of the scholars White names, so I knew pieces of the story, but it was still illuminating to see how White has assembled them.

Image credit. Incidentally, this url has thumbnail photographs of other Buffalo law deans, including Christopher Tiedeman, Frank Shea, and Louis Jaffe.

Tuesday, April 21, 2009

Examining Archives in Presidential Libraries

I thought I'd follow up Emily Kadens's excellent posts on working in archives (for instance, here and here) with some thoughts about conducting archival research in presidential libraries. So far I have visited two--Franklin D. Roosevelt's in Hyde Park and Lyndon B. Johnson's in Austin. It definitely pays to plan ahead by examining online finding guides, especially if you are working under severe time constraints. Unlike the Library of Congress, the archives at presidential libraries tend not to be open on Saturday. The FDR finding aids and photo libraries are searchable. The LBJ library has an extensive oral history collection (you can listen to a few, but not all, of the recordings without visiting the library).

Before the staff lets you touch anything at the LBJ library, they sit you down with a specialist to go over the rules for handling the documents and how information is organized. This wasn't required by the FDR library, but I think a brief orientation is not a bad idea. From somewhere around the time of President Kennedy onward, the system for organizing presidential documents changed dramatically. For example, I discovered that "human rights" became an umbrella category "used for all material pertaining to human and civil rights, the promotion and denial of such rights, discrimination, or discriminatory practices, and matters relating to segregation, ideologies, and voting rights, including all complaints about such matters." So, after having just learned how things were cataloged at the FDR library, I had to learn a completely new archival system.

Both presidential libraries required researchers to identify the documents intended for copying, using fairly standard procedures. At the FDR library, one had to show each file to the librarian for examination, but copies could otherwise be made by the researcher. I enjoyed running my hands over the various drafts of Roosevelt's "Four Freedoms" speech, including the president's handwritten peroration with the memorable repeating line, "everywhere in the world," as well as finding proof that he was a card-carrying member of the American Legion. At the LBJ library, one could snap photos of the documents (you could even rent a camera), but copies had to be made by the library's copy service. It ended up taking a few months for my copies to arrive in the mail.

One of my happier discoveries was that some presidential libraries allow you to bring in a scanner. This appeared to be true of the FDR library (though just to be safe, I would call ahead to get confirmation because the research policy states that "computers" are allowed but makes no specific mention of scanners). I watched as an enterprising Georgetown student, working on her senior thesis, happily scanned document after document and uploaded them straight to her computer. I vowed then and there to become just as technologically savvy—hopefully, by the time I returned.

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Kessler Reviewed

Law & Politics Book Review has reviewed A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commerical Society in Eighteenth-Century France, by Amalia Kessler, Stanford University. From the review:
This thoroughly researched book deals with a topic that might seem exotic to many: the Parisian merchant court in the 18th century and the way it not only adapted to, but also contributed to shape “the rise of commercial society.” It should however attract readers well beyond specialists of France and/or economic history, for methodological as well as substantive reasons. It makes a convincing case for the use of archival material created by the daily workings of a (first degree) court.
. . . .

Such courts of lay judges still exist today: this interesting French peculiarity had however attracted little or no research before Amalia Kessler, who was the first to dive into the massive archives of a court that dealt with hundreds of cases each week. What she gives is however much more than an institutional monograph.
. . . .

A more obvious, but not less useful contribution of the book lies in its careful reconstitution of the day-to-day workings of the court, and especially in its reflections about the social and cultural significance of various aspects of procedure.
Read the review en francais!

Denno, When Willie Francis Died

When Willie Francis Died: The 'Disturbing' Story Behind One of the Eighth Amendment's Most Enduring Standards of Risk is a new essay by Deborah W. Denno, Fordham University School of Law. It appears in DEATH PENALTY STORIES, John H. Blume & Jordan M. Steiker, eds., (Foundation Press, 2009). Here's the abstract:

On May 3, 1946, in the small town of St. Martinville, Louisiana, Willie Francis, a black youth of seventeen years, sat in the state's electric chair, strapped in, ready to die. Willie was just like many convicted murderers throughout the country awaiting their punishments - poor minority teenagers stuck in a criminal justice system offering few of the legal protections available today. Yet in a matter of minutes Willie would be plucked from the masses. He would survive the electrocution, taking him from the front of the execution line to front-page news. Time and again, Willie's experience would be called a "miracle," a "blessing from God," or "divine intervention" by layperson and lawyer alike.

This Chapter presents Willie's life narrative - often framed by the themes of race, risk, and religion. It begins with an exploration of 1940s St. Martinville and Willie's early childhood. These discussions are followed by examinations of Willie's alleged murder of Andrew Thomas, St. Martinville's popular white pharmacist; Willie's arrest and interrogation in connection with the murder; the deeply flawed trial that ended in Willie's conviction; and the state's failed first attempt to execute Willie using the electric chair. The story of the fruitless appeals to the Louisiana Supreme Court, the Louisiana Pardons Board, and the U.S. Supreme Court by Willie's attorneys, Bertrand de Blanc and J. Skelly Wright, is followed by the chilling re-telling of Willie's second electrocution on May 9, 1947, which finally took his young life.

This Chapter's discussion of Willie's life and death is based on correspondence, interviews, and accounts that have never been revealed elsewhere as well as past works. Particularly compelling are numerous letters that people from all over the country wrote Willie while he was waiting in jail. These writers discussed many topics, including their reflections on racial injustice in America and the need for religious redemption, not only for Willie but also for his judgers and this country. Yet a number of letters were deeper, more private. Willie, it seems, was not only an imprint of the social and legal times, but also a projected muse of sorts to whom individuals could confide their heartfelt thoughts and wishes - about God, death, health, hopes, family, even romance.

The Chapter's Epilogue begins with an account of the author's 2007 visit to St. Martinville, where, through interviews with current residents and remaining members of Willie's family, the lasting personal impact of the Willie Francis saga is pieced together. The Epilogue continues with a history of the rise and fall of the electric chair as a method of execution and the recent popularity of lethal injection. It ends with a critical analysis of the 2008 case of Baze v. Rees, where the Court's highly splintered plurality decision relied in part on Willie's 1947 Supreme Court case, Louisiana ex rel. Francis v. Resweber, in upholding the constitutionality of Kentucky's lethal injection protocol. This portion of the Epilogue argues that, in light of the passage of six decades, which heralded massive changes in criminal law and procedure, the use of Resweber as modern Eighth Amendment guidance - particularly in Baze - is troubling and inexcusable.

Dudziak Observed: Law, War and the History of Time

Mary has earlier posted on her paper Law, War and the History of Time. David Schraub, a student at the University of Chicago Law School, reports on her presentation of the paper to Chicago's American Legal History Workshop on the Chicago Law Faculty Blog, which is to say, here.

Monday, April 20, 2009

Charlie Rose's Interviews of Gordon-Reed

In light of Annette Gordon-Reed's tremendous accomplishments, LHB readers might be interested in these interviews of the professor of law and history by Charlie Rose.

Originalism is Bunk, Says Berman

Mitchell Berman, University of Texas, has published Originalism is Bunk, 84 New York University Law Review 1 (2009). The article endeavors to "catalogue and critically assess the varied arguments proferred in originalism's defense." From the abstract:
Originalism is “hard” when grounded on reasons that purport to render it (in some sense) inescapably true; it is “soft” when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches. That is, hard arguments seek to show that originalism reflects some sort of conceptual truth or follows logically from premises the interlocutor already can be expected to accept; soft arguments aim to persuade others to revise their judgments of value or their empirical or predictive assessments. The most common hard arguments contend that originalism is entailed either by intentionalism or by binding constitutionalism. Soft arguments claim that originalist interpretation best serves diverse values like democracy and the rule of law. I seek to show that the hard arguments for originalism are false and that the soft arguments are implausible.

The upshot is not that constitutional interpretation should disregard framers’ intentions, ratifiers’ understandings, or original public meanings. Of course we should care about these things. But originalism is a demanding thesis. We can take the original character of the Constitution seriously without treating it as dispositive. That original intents and meanings matter is not enough to render originalism true.

Zellmer on Boom and Bust on the Great Plains

Boom and Bust on the Great Plains: Déjà Vu All Over Again is a review essay by Sandra B. Zellmer, University of Nebraska at Lincoln College of Law. It appeared in the Creighton Law Review (2008). Here's the abstract:

Two important and timely books provide a portrait of the “boom and bust” cycles that have plagued the Great Plains since European settlement: Tim Egan, The Worst Hard Time: The Untold Story of Those Who Survived the Great American Dust Bowl, and William Ashworth, Ogallala Blue: Water and Life on the High Plains. This paper reviews the two books, situating their stories within the context of American law governing western settlement, agriculture, and soil and water management. In the wake of the Dust Bowl, federal, state, and local laws began to promote more sustainable farming practices to control soil erosion. However, the post-World War II reliance on groundwater pumping to irrigate bigger and better crops in the Great Plains region has begun to unravel some of these conservation gains, and the law has been slow to respond to the environmental and socio-economic problems posed by groundwater overdraft. The latest economic boom - ethanol production - may have dramatic implications for the Great Plains and its human and natural communities. The lessons detailed in these two books indicate that, absent an increased commitment to stewardship and sustainable practices, both at the pump and on the farm, the nation’s increased reliance on biofuels, particularly corn-based ethanol, may raise the specter of another “boom and bust” for Great Plains soil and water resources.

Treanor, Against Textualism

Against Textualism has just been posted by Dean William Michael Treanor, Fordham University School of Law. It is forthcoming in the Northwestern University Law Review, (2009). Here's the abstract:
Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This Article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers’ and drafters’ intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How did the Founding generation think the Constitution should be interpreted?"; rather, it should be: “How did the Founding generation think courts should interpret the Constitution?” The early caselaw shows that courts aggressively used the federal Constitution and state constitutions to protect the power and autonomy of courts and juries; federal courts also closely circumscribed state powers when they appeared to violate the federal Constitution or implicated federal powers or other states. Outside of these areas, courts were wholly deferential. This caselaw indicates, then, that, for a modern court, recovering original meaning necessitates a central focus on structural concerns - protecting juries, courts, and the national government - rather than text.