Law Day at 52

May 1 is not only an international day of celebration for the labor movement, it is officially “Law Day, U.S.A.” President Dwight D. Eisenhower established the holiday in early 1958, just months after sending federal troops to Little Rock and shortly after the Soviet Union launched Sputnik into orbit. Both civil rights and the Cold War were clearly on his mind. “[T]he principle of guaranteed fundamental rights of individuals under the law is the heart and sinew of our Nation,” Eisenhower declared in his Law Day Proclamation. It distinguishes the U.S. "from the type of government that rules by might alone”; it makes the country “an inspiration and a beacon of light for oppressed peoples of the world.” Eisenhower invited citizens to use Law Day as “an opportunity to better understand and appreciate the manifold virtues” of a government ruled by law, “and to focus the attention of the world upon them.” The American Bar Association, which proposed the idea to Eisenhower, took the lead in planning commemorative events and programs.

Although Law Day is not well known, every president since Eisenhower has issued a Law Day Proclamation. (You can view them all on the Library of Congress website.) Taken together, they exemplify the malleability of the discourse of rights and law. For example, Eisenhower’s 1959 Proclamation, issued amidst “massive resistance” to desegregation, departs from the previous year’s in stressing that the rule of law must be recognized as supreme (“[A] free people can assure the blessings of liberty . . . only if they recognize the necessity that the rule of law shall be supreme”). Other elements remain the same, but receive more emphasis, such as the idea that adherence to the rule of law (combined here with a “system of free enterprise”) sets the U.S. apart from the non-democratic powers “enslav[ing] . . . one-third of the world.” The next year’s Proclamation (1960) strikes a more conciliatory tone (“[T]his Nation seeks only fairness and justice in its relations with other nations”), but by the time John F. Kennedy takes office, the country once again appears embroiled in a fight for survival. Kennedy’s 1962 Proclamation portrays an embattled nation, relying on the rule of law as a “vital bulwark[]” in its “struggle” to defend its way of life.

Subsequent years would witness an escalation of the fight against communist forces in Vietnam, yet President Lyndon Johnson’s Proclamations look inward rather than outward. The lawlessness they decry is not that of America’s foreign enemies, but of its own citizens, especially youth. Johnson’s 1964 Proclamation, for example, aspires to bring “to all citizens, and particularly to young Americans” a “fuller awareness” of the importance of “[r]espect for law.” The following year’s Proclamation hits the same notes, and frowns on those who demonstrate “apathy” and obstructionism (Americans must “support[] and aid[] the agencies of law enforcement” and -- an unusually specific mandate -- “giv[e] testimony in court when called”).

This message grows increasingly urgent over the following years, as riots, assassinations, and public violence color the news – and call into question the legitimacy of the legal system. Johnson's 1968 Proclamation begs Americans to recognize that the law “is not the mere exercise of power” nor “just a device to enforce the status quo,” but a “system that permits existing rights to be protected, injustices to be remedied, and disputes to be resolved, without recourse to self-defeating violence.” The 1968 Proclamation also stands out for its suggestion – to some, its promise – that law responds to society: “Law is a process of continuous growth that allows the creation of new rights . . . through a deliberative, democratic process”; the legal system can yet become “more just, more effective, and more responsive to our people’s needs.”

President Nixon’s Law Day Proclamations are what one might expect. He conveys openness to legal change, but emphasizes “orderly process.” He honors the law and the lawgivers, but “above all those citizens who keep the law,” the Silent Majority that swept him into office. Nixon’s 1974 Proclamation is particularly ironic: It notes that “the law retains its value and force because every person knows that no man or woman is above” its requirements.

Ronald Reagan, another famous advocate of “law and order,” returns to Eisenhower’s “beacon of light” rhetoric in his 1982 Proclamation (Reagan uses “beacon of liberty”). The United States, in this telling, is a “model of representative democracy” for “oppressed peoples around the globe,” the proverbial City on a Hill. Reagan also states outright what other presidents left unsaid: that “Law Day U.S.A. stands in sharp contrast to ‘May Day’ observances conducted in the Communist world.” Like Christmas, Law Day is a celebration deliberately superimposed on a powerful alternative tradition.

As we begin to write the history of our own times, the Law Day Proclamations will be valuable sources, for they identify the major issues that previous administrations associated with Law. President George H. W. Bush’s 1990 Proclamation, for example, mentions the HIV epidemic and crack babies. His 1992 Proclamation alludes to the acquittal of the four police officers accused of beating Rodney King, a decision that sparked the Los Angeles Riots. (The statement recognizes that “a large number of Americans” viewed the verdict as “indefensible,” but insists that “we must pursue peaceful, orderly means of resolving such concerns.”) President Clinton’s Proclamations discuss drive-by shootings (1994), the “information superhighway” (1995), and discrimination against homosexuals (1999). Interestingly, George W. Bush’s Proclamations say nothing of the fight against terrorism, the hallmark of his years in office. His 2001 Proclamation emphasizes the rights of crime victims; in 2002 and 2003 (after Senate Democrats blocked a number of his judicial nominees), he focuses on judges; his 2006 Proclamation is an ode to “Separate Branches” and “Balanced Powers.” President Obama’s first Law Day Proclamation (2009) may be one of the least “legal” of all: it celebrates the nation’s commitment to “the rule of law” and “equality under the law,” but its theme is the role of government in a country based on union. The U.S. government exists, according to this Proclamation, to pursue the common good, to do what we, in our individual capacities, cannot do for ourselves.

My favorite Law Day Proclamation, however, is from 1966. It not only includes a catchy marketing phrase (“Respect the Law – It Respects You”!), it captures both the importance and the limits of the Law Day initiative. “Liberty lies in the hearts of men and women,” the Proclamation opens, borrowing the words of the great Learned Hand. “[W]hen it dies there, no constitution, no law, no court can save it.”

Keep an eye out for more on this topic. I’m working with Anders Walker (who touched on Law Day in his recent article on Justice Lewis F. Powell, Jr.) on a fuller piece.

Image credits: scale/flag, May Day cover

Welcome to Guest Blogger Karen Tani

The Legal History Blog welcomes Karen Tani as a guest blogger for the month of May. Karen will be familiar to readers for her great posts on panels at American Society for Legal History meetings, here, here, here, and here.

Karen is the Sharswood Fellow in Law and History at the University of Pennsylvania, where she earned her J.D. and is a Ph.D. candidate. She is interested in twentieth-century legal history, with a focus on social welfare programs, welfare rights, and the rise of the administrative state. Her Ph.D. dissertation is "Securing a Right to Welfare: Public Assistance Administration and the Rule of Law, 1938-1960." Her article Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of "New Property" appeared in the Law and History Review.

Karen is a Member of the Board of the American Society for Legal History. At Penn, she received a Dean's Scholar award from the School of Arts and Sciences in recognition of her academic performance and intellectual promise.

Welcome to Karen!

Rakove and Patterson on (Respectively) Judicial Independence and the Idea of Freedom

New on the Gilder Lehrman's website are two downloadable podcasts.

The first is Establishing an Independent Judiciary in the Founding Era, by Jack Rakove, Professor of Political Science and Law at Stanford University. The lecture was originally delivered at Stanford University on August 19, 2008. According to the website, Professor Rakove “discusses the eighteenth century origins of judicial independence. He outlines the progression of judicial power from its English origins, as an extension of royal authority, to its current formulation as an independent and coequal branch of government.”

In the second, The Idea of Freedom in America: Key Moments, which was originally delivered on July 25, 2008, Orlando Patterson, John Cowles Professor of Sociology at Harvard University, "discusses the way in which the concept of freedom has shifted throughout American history. He talks about traditional public freedoms, like civil liberties, and how they are seen as separate from a highly privatized conception and experience of freedom in everyday life."

The downloads are free, although registration on the Gilder Lehrman’s website (also free) is required.

Brandeis on Free Speech: The Ruthenberg Dissent

New among the digital collections of the Harvard Law School Library is the case file in the Louis Brandeis Papers for the justice’s unpublished Supreme Court dissent in Ruthenberg v. Michigan (1927). According to a recent post on the library’s blog, Et Seq., by Edwin Moloy, Curator of Modern Manuscripts and Archives:

Louis Dembitz Brandeis (1856-1941) is well known for his support of an individual’s right to privacy and free speech. His concurring opinion in Whitney v. California (1927) is considered by many to be one of the greatest defenses of freedom of speech ever written. What is less well known, however, is his dissenting opinion in Ruthenberg v. Michigan, a case that was dismissed when the petitioner, Charles Ruthenberg died. It was at that point that the companion case, Whitney v. California, became the focus and was tried before the United States Supreme Court. A review of Brandeis’ Ruthenberg dissent rewards the reader with a deeper knowledge of his thinking about these cases.

The collections page for the file includes an introduction to the case by Ronald Collins, University of Washington Law School, and David Skover, Seattle University School of Law. Collins and Skover have previously published the “Curious Concurrence: Justice Brandeis’ Vote in Whitney v. California," 2005 Supreme Court Review 333.

Reece on Aucoin's "Rift in the Clouds"

Reconstruction's Children is an H-Law Review by Lewie Reece, Anderson University, of Brent J. Aucoin's A Rift in the Clouds: Race and the Southern Federal Judiciary 1900-1910 (Fayetteville: University of Arkansas Press, 2007). It commences:

Reconstruction ushered in a tremendous social, political, and constitutional revolution that profoundly reshaped American society and culture. Nevertheless, within a generation the American people proved unwilling to sustain a commitment to racial equality. Through the tactics of violence, force, and fraud, Southern Democrats returned to power, and it appeared that Reconstruction's gains were illusory at best. While throughout the 1880s Republicans attempted to stem the racist tide, in the end, their efforts failed. By 1900, southern states were completing the racial and class-based disfranchisement of both African Americans and poor whites.

That was bad enough, but American society in the early 1900s was also deeply committed to the guiding principles of white supremacy. This was in no stretch of the imagination limited to the South. Americans as a society firmly approved of disfranchisement as well as lynching and the segregated racial order. Not only was the Reconstruction effort to craft constitutional racial equality considered a critical error, but in many ways efforts at emancipation itself were deemed erroneous too. The justification of white supremacy was propounded for an enthusiastic audience in a vast array of social scientific literature, law review articles, magazines, and newspapers.

In such an environment, those who dissented from the dominant racial milieu were marginal figures. Yet the fact is that an alternative critique of race relations not only survived those years but also created new legal and social institutions to combat racism. It was this very era that saw the creation of such groups as the Constitution League, the National Association for the Advancement of Colored People (NAACP), the National Urban League, and later the Association of Southern Women for the Prevention of Lynching. The triumph of the civil rights movement was far into the future, but in many ways the seedtime of the freedom struggle was not the 1930s but the racist climate of the Progressive Era. In many ways, historians have failed to see the continuities of action by civil rights activists that saw a century of struggle.

Brent J. Aucoin's brief book thus tells an important, and one could even argue a central, event in the history of the civil rights movement. His focus is on three southern judges who served on the federal district bench: Jacob Treiber, Emory Speer, and Thomas Jones. As a group, they offer an interesting insight into the world of nineteenth-century southern white dissent.

More.

The Law & Politics Book Review, by Dante Gatmaytan-Magno, University of the Philippines College of Law, is here.

Caron on Warren Burger's Will

Paul L. Caron, University of Cincinnati College of Law, has posted Chief Justice Burger: A Better Tax Lawyer Than His Critics, which originally appeared in Tax Notes 69,(1995): 1020-21. Here is the abstract:

Media reports of Warren Burger's homemade three-sentence will crowed about the former Chief Justice's lack of legal acumen in drafting the will. A local attorney alleged that Burger's $1.6 million estate would incur a $450,000 federal and state estate tax liability that could have been entirely avoided by elementary estate planning, noting that "the shoemaker's children are the last ones to get shoes."

It was a great story - if only it were true. This article examines the estate tax consequences of the Burger will and concludes that it is the critics, not the Chief Justice, who do not understand basic estate planning.

Misc. appearances in the midwest

For Ohio and Michigan readers, I can be found in the next week at the following places:

Law, War, and the History of Time, Ohio Legal History Seminar, Ohio State University, Friday, April 30, at noon.

Exporting American Dreams: Thurgood Marshall's African Journey, Flint Public Library (Main Branch), Flint, Michigan (open to the public), Monday, May 3, 7:00 p.m.

Cold War Civil Rights: Race and the Image of American Democracy, Teaching American History program, Flint Community Schools, Tuesday, May 4 (this program is only open to K-12 teachers signed up for it). For anyone who has an opportunity to participate in Teaching American History programs - in which historians talk about their work and about teaching particular subject areas with K-12 teachers - I highly recommend it. This is my second, with more to come.

Apologies for sparse posting while I'm on the road.

Image: Flint Central High School.

Vladek on Justice Jackson, Internment, and the Rule of Law After the Bush Administration

Justice Jackson, Internment, and the Rule of Law after the Bush Administration has just been posted by Stephen I. Vladeck, American University - Washington College of Law. It appears in WHEN GOVERNMENTS BREAK THE LAW: THE RULE OF LAW AND THE PROSECUTION OF THE BUSH ADMINISTRATION, Austin Sarat, Nasser Hussain, eds. (2010). Here's the abstract:

The contemporary debate over whether senior Bush Administration officials should be investigated (and potentially prosecuted) for their role in the U.S. government's torture of individuals detained as "enemy combatants" during the war on terrorism has been curiously indifferent to American history. Even the most modest perusal of that history reveals - perhaps surprisingly - little precedent for holding personally to account those senior government officials most responsible for our gravest civil liberties and human rights abuses. Perhaps the most prominent example comes from one of the darkest civil liberties chapters in American history, the exclusion from the West Coast and internment of over 120,000 Japanese nationals and U.S. citizens of Japanese descent during World War II, and the implicit but unequivocal legal sanction given to these measures by the Supreme Court in a trio of rulings culminating with Korematsu v. United States in December 1944.

As this chapter argues, more than just a temporal bookend, both Korematsu's holding and its history provide illuminating lenses through which to situate these contemporary debates. In particular, the future Justice Jackson warned about in his enigmatic dissent never materialized; and the moral judgments to which he referred have been, at least over time, rather unkind. Korematsu's reasoning has been soundly discredited (and never again invoked as authoritative); Fred Korematsu's conviction has been vacated; and the internment camps in general are today almost universally condemned as one of the darkest civil liberties chapters in modern American history - so much so that Congress formally apologized for the camps in 1988.

Moreover, and critically, this consensus narrative discrediting internment in general and Korematsu in particular has emerged even though no one was ever held personally liable for the policies that led to the camps. No military or executive branch official was prosecuted or sued for violating the internees' rights; no government lawyer was disbarred - despite proof that the Justice Department affirmatively misled the courts as to the gravity of the military threat posed by Japan, especially in the second round of briefing before the Supreme Court in Korematsu. In short, we have come to accept the wrongfulness of internment, even without clarity as to the specific legal violation that internment represented or the personal liability of individual government officials for its commission. Somehow, the conclusion seems inescapable today that the rule of law in the United States eventually survived the damage wrought by Korematsu, notwithstanding (or perhaps thanks to) Justice Jackson's fear that it might not.

The question - and the central focus of this chapter - is whether Jackson's understanding of the relationship between internment and the rule of law, and the subsequent creation of internment's historical memory, might help us to assess the stakes of today's debate. Put another way, if, like the majority opinion in Korematsu, the OLC opinions - and not the acts of torture themselves - pose the real danger to the rule of law going forward, are there lessons that we can learn from the creation of internment's historical narrative (at the expense of Korematsu) that will help us undo whatever damage the OLC opinions have caused, and perhaps without individual criminal liability?

Photo credit.

Harvard Law School: "Incubator of Greatness"

Not my characterization--believe me--but that of Henry Luce's Life Magazine, in one of the articles on the Harvard Law School that David Warrington, Special Collections Librarian at the Harvard Law Library, has turned up in the Google Books' digitization of the periodical. As Warrington explains over at Et Seq.:

LIFE was the leading twentieth-century magazine of photo-journalism, appearing weekly from 1936 until 1972. With its familiar logo displaying the title in white sans-serif type against a red rectangular background, the magazine dominated its market with a circulation that eventually reached 13.5 million copies a week. In 2008 Google Books digitized the complete file, and it is now a simple matter to obtain hundreds of images of the Harvard Law School, its students and faculty from this period.

The earliest photo spread Warrington found, from November 1937, treated the start of the deanship of James M. Landis. It included this photograph on the new dean, which I'm delighted to have just in time for a class on Donald A. Ritchie's "Reforming the Regulatory Process: Why James Landis Changed His Mind," Business History Review 54 (Autumn 1980): 283-302. I also like the shot of the New-Dealer-in-training, Edward Prichard, sticking out his tongue at an unfortunate advocate in a moot court competition.

CFP: Hidden Histories: Untold Stories of War Crimes Trials

UNTOLD STORIES:
HIDDEN HISTORIES OF WAR CRIMES TRIALS
A two-day international symposium to uncover and explore some of the less well-known
war crimes trials, both international and domestic.
Melbourne Law School
15th and 16th October 2010
Presented by The Asia Pacific Centre for Military Law, Melbourne Law School,
and supported by an Australian Research Council Discovery Project Grant

Organizers: Gerry Simpson, Tim McCormack, Kevin Heller, Jennifer Balint

CALL FOR PAPERS
Deadline for Abstracts: 30th May 2010

As international criminal law matures, there has been a return to history. Intriguing research agendas have focused on the origins of international criminal law in the repression of piracy or slave-trading and on the institutional innovations found at Versailles and The Hague. Meanwhile, familiar landmarks are being revisited in order to clarify ongoing doctrinal debates (aggression at Nuremberg, conspiracy at Tokyo, and so on). Alongside all of this is increased interest in less familiar war crimes trials, both international and domestic.

The idea behind this symposium is to uncover and explore some of the less well-known – perhaps even obscure – war crimes trials. As an example, Kevin Heller, one of the organizers, will be presenting a paper on the twelve Nuremberg Military Tribunals held under Control Council Law No. 10. There will also likely be papers on the war crimes trials held in Bangladesh after the secession, on the recent genocide trial in Ethiopia, and on the post-war trials under Australian jurisdiction in the Far East.

The symposium will be held over two days. We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided. A speakers’ dinner will be held on the evening of the 15th and an informal dinner on the 16th for those who remain in town.

In addition to the organizers, confirmed participants in the symposium include Mark Drumbl and Larry May. The organizers intend to publish the papers presented at the symposium as an edited book; Oxford University Press has indicated preliminary interest.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 30th May 2010 to Gerry Simpson c/o Cathy Hutton, Administrator, APCML (c.hutton@unimelb.edu.au). Doctoral students are welcome to submit abstracts.

Questions about the symposium can be directed to Kevin Heller (kheller@unimelb.edu.au)

Justice in Atlantic History

We have, via H-Law, the following announcement:

The aims of the International Seminar on the History of the Atlantic World are to advance the scholarship of young historians of many nations interested in aspects of Atlantic history in the formative years; to help create an international community of scholars familiar with approaches, archives, and intellectual traditions different from their own and who understand America's historical involvement in the Atlantic world; and ultimately to further international understanding.

The theme of the 2010 meeting is Justice: Europe in America, 1500-1825; applicants' work should be related to this topic. The Seminar will meet in early August at Harvard University in Cambridge, Massachusetts. The exact length of the Seminar will be dependent to some extent on the number of participants, but the probable duration is about 8-10 days. In the course of the Seminar, discussion and workshops will focus on papers, work in progress, and prospects for future work; sessions will be chaired by invited commentators.

The Fellows of the Seminar will generally be scholars who are recent recipients of the Ph.D. or its equivalent or advanced doctoral students. There will be about 20-25 places available in the Seminar, with non-U.S. scholars making up a sizable portion of the group. Fellows will have their primary travel and conference expenses paid by the Seminar (except some meals), though it is hoped that some of the expenses of the participants will be defrayed by their own institutions. A few more established scholars who are engaged in research on topics that are particularly appropriate for the Seminar may also be included, but they will be asked to provide their own funding whenever possible.

Fellows will present an original paper embodying work in progress related to the topic of the Seminar. The papers, written in English, will be distributed in advance of the sessions, so that the meetings themselves will involve discussion of the research and insights rather than reading of the papers. This means that participants must be able to provide such a paper by early-July 2010. The papers, after final corrections, will be included in the Seminar's Working Paper serie, which will be distributed to interested parties upon request and will eventually be posted on the Seminar's Web site.

Completed applications are due by May 3, 2010; we hope to notify applicants of the results by the end of May.

To apply for the 2010 Seminar please download the application and the recommendation form (both are available as a Word document or as a PDF). Applicants will need to submit the application along with a current cv and two letters of recommendation. All applications and recommendation letters should be sent to:

Emily LeBaron
Administrative Director
Atlantic History Seminar
Harvard University
Cambridge, MA 02138
phone: 617-496-3066
email: elebaron@fas.harvard.edu

McKinley on Cultural Defenses in Asylum Cases

Cultural Culprits is a new article by Michelle McKinley, University of Oregon School of Law, placing cultural defenses in asylum adjudication in a historical perspective. It is forthcoming in the Berkeley Journal of Gender, Law & Justice. Here's the abstract:

This Article examines the way that questions of agency, victimization, and cultural essentialism are framed and acted upon in U.S. asylum adjudication and cultural defense cases specifically, and in international human rights law more broadly. I explore the adjudication of asylum claims based on "cultural persecution" that encode a racialized view of culture. I describe the historical trajectory of contemporary FGC claims through a detailed analysis of colonial anti-excision campaigns. I portray "maternal imperialism" as a means of imposing medicalized orders and controlling reproductive sexuality. I compare the early period of anti-excision campaigns with contemporary maternalism, as international law, UN and international financial institutions became more responsive to feminist concerns about eradicating FGC. Who is dominating the legal, normative, and political arguments determining the classification of "culture"? How does victimization hide behind and reproduce power when it is associated with culture? Are cultural claims activating latent concepts of pathology, repugnance, or savagery? Where are these discourses being produced and consumed, and what are the relationships between the colonial past and the post-colonial present? In the particular case of FGC, do the respective limitations of universalism, medicalization, and criminalization also demarcate the problems of post-structuralist deference, laissez-faire liberalism, and relativism?

Newdow on Scalia on History and the Establishment Clause

Mike Newdow (yes, the Mike Newdow), has posted a new paper, Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics? Though an advocacy piece, the author engages historical sources that might be of interest to readers. The article is forthcoming in the Capital University Law Review. Here's the abstract:

In June 2005, Justice Antonin Scalia contended that 'the Establishment Clause...permits the disregard of devout atheists.' This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. Thus, where individuals had previously been treated as less than equal on the basis of race (e.g., Dred Scott v. Sandford), gender (e.g., Bradwell v. State) and national origin (e.g., Korematsu v. United States), those odious decisions are no longer good law. In his McCreary dissent, it seems that Justice Scalia sought motion in the opposite direction: toward overturning equality, in the one constitutional arena where the Supreme Court had not previously proclaimed such a manifest animus toward minorities: religion.

This article takes three approaches in considering the Justice’s argument. First, recognizing that Justice Scalia prides himself on being a 'textualist,' it considers the Establishment Clause’s text ('Congress shall make no law respecting an establishment of religion'). Next, because Justice Scalia, in McCreary, used specific historical events to support his thesis, those events are analyzed to see if they were selected in a fair manner, and if they really stand for the proposition he claims.

Finally, in Part III, Justice Scalia’s brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.

Terrorism, War, The Publisher, and more in the book pages

In the Name of God and Country: Reconsidering Terrorism in American History by Michael Fellman is reviewed in The New Republic by Michael Kazin. Kazin writes that the book

surveys only the fifty or so years that began with John Brown’s raids in Kansas and Harpers Ferry in the 1850s and ended with the U.S. Army’s defeat of the Philippine independence movement at the dawn of the twentieth century.

Still, the collective bloodshed during that period surpassed that of any similar span in American history: 600,000 combined deaths in the Civil War, followed by hundreds of murders committed by the Ku Klux Klan and other white vigilantes during Reconstruction, multiple assaults by police and state militias to squelch labor uprisings, the military’s crushing of resistance by Indian tribes on the Great Plains, and then the brutal war across the Pacific to secure America’s first overseas colony. Fellman’s grisly narrative, stuffed with self-justifying statements by the perpetrators, certainly establishes a record of inhumanity that most celebrators of American liberty and progress minimize or ignore.

But was all or even most of this violence “terrorism”?

Kazin doesn't think so. Continue reading here.

THE WAR LOVERS: Roosevelt, Lodge, Hearst, and the Rush to Empire, 1898, by Evan Thomas, and THE IMPERIAL CRUISE: A Secret History of Empire and War, by James Bradley are reviewed today in the New York Times.

The Publisher: Henry Luce and His American Century, by Alan Brinkley is taken up in the Washington Post and the New York Times.

Finally, a book on archival research hoarding: STUFF: Compulsive Hoarding and the Meaning of Things, by Randy O. Frost and Gail Steketee, is reviewed in the New York Times.

Linda Gordon and Kevin Starr win LA Times Book Prizes

The LA Times Book Prizes were handed out this weekend at the Los Angeles Times Festival of Books. Winners included:

For biography:
Linda Gordon, Dorothea Lange: A Life Beyond Limits (W.W. Norton & Co.)

For history:
Kevin Starr, Golden Dreams: California in an Age of Abundance 1950 – 1963 (Oxford University Press)

Fear, Gratitude and Clients

On Tuesday I'll be teaching Allan J. Lichtman's “Tommy the Cork: The Secret World of Washington’s First Modern Lobbyist,” Washington Monthly (February 1987): 41-49. Lichtman wrote the article from the wiretaps Harry Truman ordered on Thomas Corcoran, the New Dealer turned Washington lawyer, which survive in Truman's presidential library. Among the unattractive aspects of Corcoran's personality the transcripts revealed was an eagerness to impress his fellow lawyers with his hard-boiled attitude toward his clients--in particular, his eagerness to exploit their fear and "just take the pants off them." He characterized one potential client to Abe Fortas as "a rich man who's scared as I never knew one who's scared. . . . . I think you can get $100,000 down this morning." He described another matter "as a case of people who are awfully scared and they might pay you desperately well."

Corcoran became something of a negative reference for later Washington lawyers. (One of them once described him to me as "just a lobbyist.") Yet even in the more genteel world of the the elite Wall Street bar the same emotional dynamic was acknowledged and, it seems, exploited. At least that's the conclusion I draw from Learned Hand's remark, in a letter written in 1925 to Frederic Coudert that survives in Hand's papers at the Harvard Law School Library. "I always assured you that you were sure to win that case," Hand (right), a great federal judge, wrote to Coudert, a great corporation lawyer. "It is not often that I feel as certain as I did then. But I will keep my opinion dark from your clients. I am pleased to know that they regarded themselves as in very grave danger. Their gratitude ought to be commensurate with their fears."

Image credits: Corcoran; Hand

Gerhardt on Whig Presidencies and the Unitary Executive Thesis

Michael J. Gerhardt, University of North Carolina School of Law, has posted Constitutional Construction and Departmentalism: A Case Study of the Demise of the Whig Presidency, which also appears as University of Pennsylvania Journal of Constitutional Law 12 (2010 ). Here is the abstract:

In this contribution to a symposium on Steven G. Calabresi’s and Christopher S. Yoo’s The Unitary Executive: Presidential Power from Washington to Bush, Professor Gerhardt uses the case study of the demise of the Whigs’ conception of presidential power to demonstrate that the development of presidential power is more complex than Calabresi and Yoo suggest in their study. They provide readers with the instances in which presidents and the other branches have sided with the theory that presidents should control the exercises of all executive power, but their survey is incomplete. In fact, presidential power develops through the intricate interaction between the president and the other branches and between presidents and other presidents over time and presidents and their subordinates. The demise of the Whig conception of the presidency illustrates this development in practice. The Whigs maintained that the presidency should be subservient to the will of Congress, but this view quickly collapsed from the lack of support from a series of presidents and the failures of the Congress to counter-act strong assertions of power by presidents over the span of a couple decades. The Calabresi-Yoo account of the unitary theory of the executive requires support from the other branches, which has been notably absent over the course of American history.

Image credit: John Tyler.

More on Those Time Capsules

In an earlier post, I mentioned the opening of two time capsules (from 1903 and 1958) at the University of Chicago Law School. The Law Library's website on them is now up and running, here, with more links to documents to be added over time. Nine rows down, and three columns over, is a three-page statement by Learned Hand that will interest anyone who regularly teaches his opinion in Universal Camera (as I did yesterday) or knows of his Holmes lectures. The very first item in the exhibit is an arresting image of Ernst Freund:

According to the web exhibit:

On May 28, 1958, the Law School celebrated the groundbreaking of its new building on 60th Street with a ceremony and the laying of a cornerstone. This new building, designed by famed architect Eero Saarinen, was only the second permanent home of the Law School, which had been in Stuart Hall on the main University quad since 1904.

Inside the cornerstone were laid two copper boxes. The first contained the items present in the cornerstone of the original Law School building. These included photographs of President Theodore Roosevelt and of the Law Faculty of 1902, a copy of the minutes of the first meeting of that faculty, the first catalog of the Law School, and a large variety of University publications.

In the second box was a variety of new items, including statements from several leaders of that time telling people 50 years hence what we should know about 1958. These were received sealed and unread, with the understanding that the cornerstone would be opened on May 28, 2008, and the statements would then be read. The boxes were then, apparently, promptly forgotten.

In early 2009, during the research for an article on the 50th anniversary of the opening of the building, a writer discovered the existence of the boxes in a 1958 issue of the alumni magazine. In August 2009, University stone masons managed, with great effort, to open the cornerstone and remove the two copper boxes.

The boxes were soldered shut. One was labeled "Old 1903" (containing the contents of the 1903 Stuart Hall cornerstone which had been reinterred in 1958) and one was labeled "New 1958" (containing the items newly placed). The 1958 alumni magazine listed the contents, so we knew what we would find inside. We did not know what condition it would be in, and were pleasantly surprised to find everything nearly damage-free. Every item was carefully cataloged and stored and will be added to the University of Chicago Library in the Special Collections department.***

Included in this web exhibit are the letters, photographs, and a few documents from the first year of the Law School that were contained in the 1903 and 1958 time capsules.

More.

Image credit.

Hoffer, A Nation of Laws: America's Imperfect Pursuit of Justice

Peter Charles Hoffer's latest book, A Nation of Laws: America's Imperfect Pursuit of Justice, is just out from the University Press of Kansas. It is a short and elegant overview of American legal history. Here's the book description:

America's founders extolled a nation of laws, for they knew that only a fairly enforced legal system could protect liberty and property against corruption and tyranny. Nearly two and a half centuries later, that system remains the ultimate safeguard for us all. With concise but penetrating and provocative insights, the eminent Peter Charles Hoffer recaptures the spirit of this grand enterprise while never losing sight of its human face.

The distillation of four decades of stellar writing, Hoffer's book is a wise and illuminating meditation on the key concepts, history, evolution, and importance of American law. He brings the law to life through brief narratives and portraits drawn from the pages of our nation's history. He takes his readers on a tumultuous journey from the Salem witchcraft trials through the divisive debates over slavery; the long struggles for equality and civil rights; the moral and culture wars over abortion, gay rights, and the teaching of evolution; and recent controversies concerning the rule of law in wartime.

In a very compact space, Hoffer has a great deal to say about the role of law, lawmakers, law cases, lawyers, litigants, judges, law professors, and public opinion in creating and recreating the fabric that weaves all of these elements together. He pays particular attention to the criminal trial by looking at the legal proceedings against slave liberator John Brown, feminist Susan B. Anthony, and teacher of evolution John Scopes. He also explores what happens when the law is stretched to the breaking point by revisiting such events as the Stono Slave Rebellion, the Seneca Falls women's rights convention, and FDR's paradigm-shifting New Deal speech.

Throughout, Hoffer carefully weighs the promise and vitality of our laws against its flaws and historical failures, for our legal system has not reflected a strong linear progress from inequality and privilege toward perfected liberty and dignity for all. His crystal clear vision of our legal history reminds us of the ambiguities and contradictions, quarrels and confrontations, that mirror the struggles within American history itself and reinforce the central role of law in American life.

And the blurbs:

"Hoffer's concise and fluent study of the history of American law packs a lifetime of learning into a fresh and challenging interpretation of the national experience itself." Sean Wilentz, author of The Rise of American Democracy: Jefferson to Lincoln

"Beautifully written, this is the short book to read on American law - no one else has gotten it so right in so few words. Bravo!" Stanley N. Katz, editor of the Oxford International Encyclopedia of Legal History

"Brilliant and eclectic, short and highly readable.... A remarkable book." Alfred L. Brophy, author of Reconstructing the Dreamland: The Tulsa Riot of 1921, Race, Reparations, Reconciliation"

Winchester on The Taxation of Firm Profits in Historical Perspective

Corporations That Weren't: The Taxation of Firm Profits in Historical Perspective is a new article by Richard Winchester, Thomas Jefferson School of Law. It is forthcoming in the Southern California Interdisciplinary Law Journal (2010). Here's the abstract:

This article examines the nation's earliest income tax laws, focusing on the provisions that tax business profits in a way that disregards a firm's state law business form. Broadly speaking, this practice dates back to the Civil War era, when a firm's state law business form made no difference in how its profits were taxed. After the adoption of the Sixteenth Amendment, however, Congress decided to give partial tax relief to undistributed corporate profits, largely on the theory that the firm could and would reinvest those profits in its business. But Congress denied that tax relief to a corporation in certain instances, and it also extended the relief to certain unincorporated firms in a narrow range of situations. This study of those provisions reveals how these measures implicitly reaffirmed the Congressional justification for the partial tax relief on undistributed corporate profits. The study also considers the extent to which each of these measures served the larger interests of equity.

The Journal of the Civil War Era

There's a new home for article-length scholarship on the Reconstruction-era amendments and other constitutional and legal issues of the American Civil War and its aftermath, the Journal of the Civil War Era, published by the University of North Carolina Press. Here's the call for papers:

Manuscripts are being solicited for a new peer-review journal that incorporates a broad view of the Civil War era. Published in collaboration with The University of North Carolina Press and the George and Ann Richards Civil War Era Center at the Pennsylvania State University, The Journal of the Civil War Era will launch its inaugural issue in March 2011.

William Blair, of the Pennsylvania State University, serves as founding editor, and Anthony Kaye, of Penn State, and Aaron-Sheehan Dean, of the University of North Florida, are associate editors. The new journal will take advantage of the flowering of research on the many issues raised by the sectional crisis, war, Reconstruction, and memory of the conflict, while bringing fresh understanding to the struggles that defined the period, and by extension, the course of American history in the nineteenth century.

Besides offering fresh perspectives on military, political, and legal history of the era, articles, essays, and reviews will attend to such topics as slavery and antislavery, labor and capitalism, popular culture and intellectual history, expansionism and empire, as well as Native American, African American, and women’s history. The editors also intend The Journal of the Civil War Era to be a venue for scholars engaged in race, gender, transnational, and the full range of theoretical perspectives that animate historical practice.

Call for SHGAPE panels for AHA and OAH

Via H-Law:

The Society for Historians of the Gilded Age and Progressive Era (SHGAPE) sponsors its own panels at both the AHA and the OAH. The 2011 AHA meets in Boston, January 6-9, 2011; the OAH meets in Houston, Texas, March 17-20, 2011. For both the AHA and OAH, the deadline for proposing panels is May 15, 2010.

To propose independent SHGAPE panels as an affiliated society at the AHA and at the OAH send your panel to the SHGAPE program committee by the May 15 deadline. To have your panel considered as part of SHGAPE's program, send a complete copy of the proposal to the Program Committee at the address below, by e-mail with attachment.

Please contact:

Christopher Waldrep,
Chair SHGAPE Program Committee
cwaldrep@sfsu.edu
Department of History
San Francisco State University
1600 Holloway Avenue
San Francisco, California 94132

Bank, The Transformation of the Corporate Income Tax, 1861 to Present

Steven A. Bank, UCLA School of Law, has just posted the Introduction to his new book, From Sword to Shield: The Transformation of the Corporate Income Tax, 1861 to Present. The table of contents is here. Here's the book description:

The U.S. corporate income tax – and in particular the double taxation of corporate income – has long been one of the most criticized and the most stubbornly persistent aspects of the federal revenue system. Unlike in most other industrialized countries, corporate income is taxed twice, first at the entity level and a second time at the shareholder level when distributed as a dividend. The conventional wisdom has been that double taxation was part of the system’s original design over a century ago and it has survived despite withering opposition from business interests. In both cases, history tells another tale. Double taxation as we know it today did not appear until several decades after the corporate income tax was first adopted. Moreover, it was embraced by corporate representatives at the outset and in subsequent years businesses have been far more ambivalent about its existence than is popularly assumed. This excerpt is the introduction from a book entitled From Sword to Shield: The Transformation of the Corporate Income Tax, 1861 to Present (Oxford University Press 2010). The book – the first historical account of the evolution of the corporate income tax in America – helps to explain its origins and the political, economic, and social forces that transformed it from a sword against evasion of the individual income tax to a shield against government and shareholder interference with the management of corporate funds.

Dannin on Michigan's Married Women's Property Acts

Ellen Dannin, Pennsylvania State University Dickinson School of Law, has posted Marriage and Law Reform: Lessons from the Nineteenth Century Michigan Married Women's Property Acts. Here is the abstract:

Even though fought for as restoring to married women the property rights they had as single women, the early Married Women’s Property Acts more accurately created “a new era of quasi coverture”, that made incremental changes in married women’s status and rights. But if they did not give married women the rights of all free men and free single women, then why were they enacted? The two most common theories into the late 1970's was that they were enacted as (1) women's rights or protective legislation or (2) debtor relief, allowing an indebted husband to place his property beyond the reach of his creditors by conveying it to his wife.

This is the first empirical study to examine Michigan’s Married Women’s Property Acts. It attempts to shed light on the nature and effects of the Michigan MWPA by examining Washtenaw County, Michigan deeds from 1840 through 1865, a period that begins four years before the first Michigan MWPA was enacted and extended through the Civil War. The original purpose of the study was to test whether the law was feminist legislation or debtor protection. If the Act was feminist legislation, then conveyances to and from married women should be found after the MWPA was passed – but not before. If the MWPA was debtor relief, then not only should the number of married women grantees rise, but there should also be conveyances from husbands to wives in order to place property out of the reach of creditors, including, potentially, deeds with nominal consideration.

Those predictions were far from the mark. (1) Married women appeared as grantors throughout the study, including in the years before they had a legal right to own or convey property; (2) there were virtually no women grantees until the very last years of the study; and (3) there were no conveyances from husbands to wives; and (4) there were but minor changes in conveyancing patterns as to married women over the decades studied.

Knowing what a law does not do, however, does not explain why it was enacted. We can say with certainty that a law that changes fundamental relationships and rights is not passed without support and effort. It may be that the Michigan MWPA was intended to be debtor legislation but was not used for that purpose because people did not feel comfortable giving wives property. Unfortunately, it is now more than a century too late to do survey research on mid-nineteenth century opinions on using the MWPA. It may be that the best explanation is that any law that affects fundamental rights is the product of many motives. We should also not discount the effect judicial interpretation can have on laws, even, at times, wholly transforming the law in the process of adjudication.

This does not mean the answer is “all of the above”. This article examines the traditional explanations for the enactment of the Michigan Married Women’s Property Act and its operation (1) Debtor relief and (2) Women’s rights legislation, as well as other viable theories, including that the Michigan MWPA was (3) Progressive legislation enacted in a politically progressive state, (4) the fruit of already existing gender equality, and (5) affected by other contemporaneous law.

Forbath on Liberals, History and the Court

The legal historian William Forbath, University of Texas Law School, weighs in on the liberals, history and the Supreme Court in an op-ed, The Framers and Us: How Not to Use History to Argue about the Constitution and the Supreme Court, on the on-line Politico. He asks:

Why is it that conservatives are winning the national debate about the Supreme Court and the Constitution? And what can liberals do about it? Why can't liberal Supreme Court nominees, senators, and commentators make a stronger case for their vision of the Constitution and the role of judges in enforcing it? Part of the answer has to do with how each side uses history. Conservative judges use history to claim that when they strike down a law, they are merely applying the "original understanding" or "intentions" of the framers of the Constitution. This is bunk. But it is reassuring. It enables conservatives on and off the Court to claim that what liberal judges do is something different and illegitimate. Liberals are "judicial activists." When liberal judges strike down a law, they are "making up" new law. They are "betraying" the Founding Fathers. This is also bunk. Conservative and liberal judges alike bring their own present-day values and convictions to bear on interpreting and applying the Constitution. Conservatives are wrong to deny it. But they are right that appealing to history and "keeping faith with the past" is an indispensable part of our constitutional tradition - and one that helps mobilize popular support behind the constitutional commitments a judge, lawmaker, or citizen may prize. So, liberals need to get a better handle on the way to use history.

More.

Molone of Shesol on the Court-Packing Plan

Christopher Malone, Department of Political Science, Pace University, has posted a review of Jeff Shesol, Supreme Power (New York: W.W. Norton Press, 2009), on Law and Politics Review. Here's an excerpt:

Perhaps fittingly, the 2010 State of the Union controversy coincides with the publication of Jeff Shesol’s Supreme Power: Franklin Roosevelt vs. The Supreme Court. Shesol, a former speechwriter in the Clinton administration and author of Mutual Contempt, has provided us with the definitive work to date on certainly the most notorious conflict between a president and the Supreme Court – FDR’s failed effort to “pack” the Court in the spring of 1937. While the story of Roosevelt’s court packing plan is familiar to constitutional scholars and historians, it is most likely not widely known among the lay public. Which makes this book all the more important: Shesol has taken a buried piece of American history on a highly esoteric topic and transformed it into an easy-to-read tale that unfolds like a thrilling novel.

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Schor on Friedman, The Will of the People

Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution is reviewed by Miguel Schor at Concurring Opinions. Schor begins:

Barry Friedman’s The Will of the People, is a terrific account of the interplay between public opinion and the Supreme Court. The heart of the argument focuses on the Supreme Court’s doctrinal about-face in response to Franklin Roosevelt’s court packing plan. The standard explanation treats the Court’s doctrinal shift as an embarrassing anomaly. Generations of constitutional law teachers have told their students that Supreme Court decision-making is driven by the law, not public pressure, except, as occurred in the 1930s, in highly unusual circumstances. The Court, it is said, is designed to withstand the buffeting of popular winds.

In The Will of the People, however, the Court’s famous doctrinal shift in the 1930s is seen as the rule, not the exception. The standard story told by constitutional law professors to their students is bunk as (p. 9) “[h]istory makes clear that the classic complaint about judicial review—that it interferes with the will of the people to govern themselves—is radically overstated.” The Court changed course because it learned that it would not be permitted to (p. 4) “stray too far from what a majority of the people” want. Rather than check majorities as the framers envisioned, the Court engages in a dialogue with the public over the meaning of the Constitution.

Continue reading here.

Vladek on Common-Law Habeas and the Separation of Powers

Common-Law Habeas and the Separation of Powers has just been posted by Stephen I. Vladeck, American University - Washington College of Law. It is forthcoming in the Iowa Law Review Bulletin, an on-line forum of the Iowa Law Review. Here’s the abstract:

This short essay is a response to Professor Azmy's article on "Executive Detention, Boumediene, and the New Common Law of Habeas," which provides a comprehensive overview of the new procedural, evidentiary, and substantive rules that the D.C. district court has fashioned in Guantanamo habeas cases in the two years since the Supreme Court's decision in Boumediene.

In recent weeks and months, increasing criticisms have emerged questioning not only the results the D.C. District Court has reached in individual cases but also the practical feasibility and normative desirability of the entire post-Boumediene project. Even a Brookings Institution report purporting to offer a neutral analysis of the district court's jurisprudence in the post-Boumediene cases noted the report's authors' "significant concerns about the habeas process as a lawmaking device." To be sure, many of the criticisms have been directed at Congress and its purported irresponsibility in leaving such momentous questions of individual rights and national security for courts to pass upon in the first instance. But some critics have gone out of their way to question whether, even in the absence of legislative intervention, the courts have still overstepped their bounds, as typified by Judge Janice Rogers Brown's concurring opinion in al-Bihani v. Obama, which argues that the "new common law of habeas" that Professor Azmy so richly describes is in fact an inappropriate exercise of judicial power and one the courts should refrain from pursuing.

This essay aims to put Professor Azmy's descriptive work - with which I have no quarrel - on firmer prescriptive foundations. In particular, I argue that what he describes as the "new common law of habeas" is in fact just a new variation on an old theme: that, well into the twentieth century, the law of habeas corpus in the United States was, almost entirely, a set of judge-made substantive, procedural, and evidentiary rules. Indeed, even after the Supreme Court in Erie famously eschewed general federal common law, it continued to articulate judge-made principles to govern virtually every aspect of federal habeas litigation, only moving away from this trend in cases decided after 1948, when Congress first started to legislate more specifically in the habeas context.

More than just historical fortuity, this essay demonstrates that the effectively common-law nature of habeas corpus is a product of its unique constitutional status - protected except in the most extreme circumstances by the Suspension Clause, one of only two remedies guaranteed by the Constitution. Even though the federal courts all but depend on legislation for their existence, the writ does not. Mirroring the pre-revolutionary English experience, the Framers intended to provide a permanent constitutional protection for individual rights by protecting the role of the courts in detention cases - a protection that would be utterly meaningless if it turned in any way on popular will and/or legislative whim.

Roman Legal Tradition: A Call for Papers

[We have the following call for papers, via H-Law.]

The editors of Roman Legal Tradition welcome submissions in English for the forthcoming issue. Roman Legal Tradition is a peer-reviewed journal dedicated to the civilian tradition in ancient, medieval, and modern civil law. It is published by the Ames Foundation and the University of Glasgow School of Law.

The journal adheres to the principles of Open Access. Contents are available without charge, and may be freely reproduced and distributed for non-commercial purposes. Contributors are encouraged to distribute published submissions to colleagues and students, and to upload to electronic repositories.

Contents are distributed by HeinOnline, and available for download from the journal website.

Roman Legal Tradition is edited by Ernest Metzger (University of Glasgow School of Law) with the support of an international board of editors. [For more contact the editor at e.metzger@law.gla.ac.uk.]

McCurry on War, Slavery and Emancipation

New from the Gilder Lehrman Institute of American History is a podcast of Stephanie McCurry, Professor of History, University of Pennsylvania, on “The Impact of War on Slavery and Emancipation,” originally delivered July 8, 2009. According to the website, Professor McCurry ”discusses the impact that war and conscription have on the emancipation of slaves throughout the Western Hemisphere. Often, slaves have been able to exploit the conditions of war -- such as a lack of manpower -- to their advantage.”

Reynolds on Damrosch on Tocqueville, McWhorter on Patterson on Moynihan, and more in the book pages

TOCQUEVILLE’S DISCOVERY OF AMERICA by Leo Damrosch is reviewed by David S. Reynolds for the New York Times. Damrosch "reveals the man behind the sage," Reynolds writes, showing us

that 'Democracy in America' was the outcome of a nine-month tour of the United States that Tocqueville, a temperamental, randy 25-year-old French apprentice magistrate of aristocratic background, took in 1831-32 with his friend Gustave de Beaumont.

The French government commissioned the pair to report on American prisons. But Tocqueville confided that he wanted to examine “all the workings of that vast American society that everyone talks about and no one knows.”

Drawing from Tocqueville’s private writings, Damrosch presents the young traveler as insatiably curious. After landing in Newport, R.I., in May 1831, Tocqueville and Beaumont visited 17 of America’s 24 states and three of its sparsely settled territories. Writing down their impressions of the many Americans they met, including notables like John Quincy Adams and Sam Houston, they accumulated a huge store of information.

Continue reading here.

Freedom is Not Enough: The Moynihan Report and America's Struggle over Black Family Life--from LBJ to Obama by James T. Patterson is reviewed by James McWhorter in The New Republic. McWhorter writes:

Patterson’s book chronicles Moynihan’s composition of the report, its reception, and its cultural legacies. It’s an odd work, one part biographical sketch, one part historical chronicle of a crucial moment in America’s race debate, and finally, one part reportage on assorted race-related Issues of the Day since the 1970s. The book is most valuable for the second part, the historical chronicle. The controversy that The Negro Family stirred up was, in many ways, a national tragedy. I have always cringed at the thought of this controversy, and been thankful that I was too young to understand it or participate in it.

The spark for the furore was Moynihan’s claim—from what he thought of as the side of the angels—that black problems in 1965 were not due only to racism. Alarmed by the fact that nearly a quarter of black births were to single parents, and given that studies (bolstered by a great many since) were demonstrating fewer opportunities for such children, he argued that:

At the center of the tangle of pathology is the weakness of the family structure. Once or twice removed, it will be found to be the principal source of most of the aberrant, inadequate, or antisocial behavior that did not establish, but now serves to perpetuate the cycle of poverty and deprivation.

Specifically, Moynihan noted that the social problem, albeit rooted in a legacy of brutal discrimination, was now “feeding on itself” and demanded immediate address.

That this argument was too subtle for many is a stain on an era that was otherwise so unprecedently enlightened.

Continue reading here.

THE GREAT AMERICAN UNIVERSITY Its Rise To Preeminence, Its Indispensable National Role, Why It Must Be Protected by Jonathan R. Cole is "capacious, candid, and compelling," according to a Boston Globe Review.

THE BIG SHORT by Michael Lewis, and THE END OF WALL STREET by Roger Lowenstein are taken up in the New York Times.

In A Conscious Pariah: On Raul Hilberg, Nathaniel Popper takes up the life of this Holocaust scholar in The Nation.