Friday, December 31, 2010

Last thoughts on the last day of the year


I'm still buried in cite-checking and laboriously reacquainting myself with the new edition of the Chicago Manual of Style, but before the month and year end and my blogging privileges expire, I want to share some last thoughts about my forthcoming book and another project with which I'm connected.

Working on the history of antisemitic defamation drew me into the world of Jewish civil rights lawyers of the early 20th century. The central figures in the drama of Henry Ford and the Dearborn Independent, were Aaron Sapiro, the lawyer who sued Ford in 1925, and Louis Marshall, the lawyer who wrote Ford's apology for him in 1927 and thereby secured Ford's face-saving exit from the litigation. As I have come to understand the events of the trial and the negotiations that transpired after the declaration of a mistrial in April 1927, deep divisions among American Jews about whether or how to use law to address antisemitism percolated into the resolution of the Sapiro-Ford case. Personified by Marshall, who represented the very pinnacle of American-German Jewish acculturation and socio-economic upward mobility, the more established approach was to discourage overt confrontation in favor of discrete negotiation and more subtle corrective measures, including the use of "dynamic silence" in the face of antisemitic hate speech.

Aaron Sapiro's decision to bring Henry Ford before the law and force him to assume legal responsibility for the harm his newspaper inflicted on the individuals it libeled was courageous. It also flew in the face of the long-standing strategy of the national Jewish self-defense organizations (Marshall was the president of the American Jewish Committee, itself an embodiment of Jewish social status and wealth). Marshall's actions in assisting Ford have never been subjected to historical scrutiny, much less searching criticism, and in identifying the ethical grey areas of Marshall's situation, I have already incurred the indignation of those who believe he acted impeccably. An entire issue of American Jewish History (2008) contains articles from a symposium held on the occasion of the 150th anniversary of Marshall's birth, and most of them disagree, rather stridently, with my 2004 JAH piece, in which I first laid out my take on Marshall's role in the Ford case.

Willy Forbath's lovely essay on "Jews, Law, and Identity Politics in the Progressive Era," which he posted here, here, and here, takes up some of the themes my book addresses:
  • the relationship between Jewish identity and American civic identity;
  • how their Jewishness/Judaism affected the kind of lawyers these Americans wanted to be and became;
  • the importance of immigration reform to them politically, intellectually, and emotionally;
  • constitutionalism and republican democracy as fundamental jurisprudential values
I'm excited to see more of Willy's work on this project. He covers so many of the big names; I was pleased to see so many I recognized. And it is difficult--but so much fun--to combine legal history and biography in this way. He does it beautifully, effortlessly weaving together the intellectual and the actual. Makes it look easy.

As I pointed out to Willy in a comment, however, I found it curious that his vast catalog of Jewish lawyers did not include Marshall. Except for Louis Brandeis, Marshall is the most important Jewish lawyer of the 20th century. He argued more cases before the Supreme Court during his day than any other lawyer, Jewish or not, and his position as AJC president kept him close to every presidential administration from Taft to Hoover. Marshall was a classic 19th century economic conservative--no progressive like Brandeis--but on civil rights he charted a liberal path. True, his civil rights jurisprudence was couched in the assumptions of property and economic equality, but he did argue and win Nixon v. Herndon (1927), the Texas white primary case, and Pierce v. Society of Sisters (1925) in which the Court struck down a state law discriminating against parochial schools. He's also famously responsible for the case permitting ticket scalpers to impose surcharges free of state-imposed limits (Tyson Bros. v. Bantam [1927]), a victory of which he was extremely proud. Scholars have not begun to make sense of Marshall's career or to untangle the threads of his jurisprudential thought. What little biographical literature exists is entirely hagiography.

So one of the consequences of the appearance of Henry Ford's War, I hope, will be a more robust awareness of Marshall's impact on early 20th century law. I'm not arguing that he is as significant as Brandeis or Cardozo, but he's at least as relevant--and interesting--as any of the guys Willy discusses. And I'm still waiting to hear why Willy left him out.

Speaking of symposia, papers from the 2006 "Jews and the Law Conference" held at Cardozo Law School, organized by Suzanne Last Stone and Marc Galanter, will finally be published in 2011 by Quid Pro Books, an electronic and text publisher of books based out of Tulane Law School and founded by my Berkeley grad school colleague Alan Childress, who teaches at Tulane. Alan specializes in making available out-of-print classic and recent publications, both in hard copy and in e-formats for all platforms.
Shameless plug: I'm co-editing the JATL volume and contributing a paper (on Marshall) and as it so happened during my book research, Quid Pro's reprint of Jerold Auerbach's Rabbis and Lawyers: From Torah to Constitution, originally published by Indiana University Press in 1994. I actually like Rabbis and Lawyers and thought my research supported his argument (there's a bit of a showdown between a Detroit rabbi and Marshall in 1920 that Marshall wins, decidedly; and the rabbis' organizations are less of a force in standing up to Ford than the AJC). But the book met mixed reviews when it was first published and dropped off the radar fairly quickly. Any thoughts about that book? Have a look at the Quid Pro catalog and see if there's anything you need to have for quick reference on your Kindle. I like Holmes' The Common Law, among other idiosyncratic picks.
Happy New Year, everyone. It's been a fun time blogging, although truthfully I thought when I agreed to a December assignment that this would be far less busy than it turned out to be. Shout-out to Karl Shoemaker for helping me with my civ pro/evidence problem. The answer was Wigmore. When in doubt . . .

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