Monday, December 31, 2012

An Early Sighting of the In-House Counsel III

[This is the third and final post in a series serializing Arthur Sears Henning, “What a Legal Department Does,” American Business Man 1 (October 1907): 185-88.  The series begins here.]

At a more pretentious desk near the entrance sat the chief of the department, issuing instructions like a general of the forces.  Before him lay a mass of correspondence which he was busy assigning to his aides.

            “I just received your communication about that trouble at the new warehouse,” said the chief lawyer to the head of the business.  Mr. Smith will attend to it at once.”

           It turned out that the trouble was a complication over the terms of the purchase of a new warehouse.  The man to whom the matter was referred for adjustment formerly was an assistant to the superintendent of the store building.  Later he was given charge of the firm’s real estate and renting deals, and when he was graduated into the law was an expert on titles and conveyances. 

            Then the merchant drew his chief legal aide into a discourse on his branch of the business.

            “Last year we handled litigation over property valued at more than $2,000,000,” he said.  “We did it with a force of twelve attorneys and three investigators.  The records show that before the organization of the department fifteen lawyers were retained on different cases by the house in a single year, though the volume of litigation was much less than now.

            “Every man in the department was trained up in the business.  The attorney for the collection department started as a salesman at a linen counter.  He is the most successful man we ever have had in handling litigation over bad accounts.  The attorney who looks after the personal injury suits brought against us was at one time the engineer of the store.  What he doesn’t know about the ways a person can and cannot be injured by our engines, elevators, wagons, etc., isn’t worth knowing.

            “Then we have a lot of adjustments and sometimes litigation between ourselves and the railroads over the shipping of goods.  The man who handles that sort of diplomacy worked up from a bundle-wrapper to superintendent of one of the warehouses.  He knows all the railroad officials, all the railroad excuses for wrong shipments, damaged goods, etc.  He makes satisfactory settlements with the carriers and, once or twice, he has succeeded in forcing a surrender from the powerful legal department of an entire railroad system.”

            It came out during the talk that the principal policy of the modern legal department is that of settlement—quiet compromise wherever possible.  Litigation is about the most expensive pursuit that may be indulged in, even with a trained and economical law department.  The mills and the railroads and the big stores have come to that realization.  Law departments nowadays are instructed to keep their firms out of the litigation into which they once were plunged by reckless and self-seeking attorneys.

            “Yes, we settle wherever we can,” said the chief of the legal staff with a smile at his employer.  “It’s cheaper in the long run.  Legal triumphs are alluring to the young lawyer who doesn’t have to foot the bills, but they are not exactly appreciated by the president of the Company when he looks over the monthly reports of receipts and expenses.  So we settle as quickly and as cheaply as we can.

            “We handle several hundred thousands of dollars worth of business for the credit department, but you would be surprised how few cases ever get before a jury.  Last year we collected some 350 odd bad accounts, and out of these only two were collected on judgments.  Our policy in collecting bad debts is always conciliatory and reasonable.  We lose no time in getting into action as soon as an account is turned over to us, but we go at it in a diplomatic way.  If a man is hard up and frankly says so we agree to give him all the time he wants to square up his account.  We even assist him in his business in every way we can.  We keep on good terms with him, and in the end we win him.  In nine cases out of ten this policy succeeds and we get our money with nothing expended but our time.  Of course some fellows refuse out and out to pay a cent, and with these more strenuous measures must be taken.

            “It’s the same way with the personal injury claims against us.  If a person is injured in our store or by one of our wagons, we investigate thoroughly and, if the claim is justified, we come to an agreement at once on the amount of damages.  But if the claim is fraudulent—and we have had several—we fight it out to the last ditch.

            “A high order of legal ability is called for by litigation involving deeds and leases to property and dealings with the city government.  Three of our most expert attorneys attend to all of these matters on the principle of quiet settlement instead of expensive lawsuits.”


Sunday, December 30, 2012

An Early Sighting of the In-House Counsel II

[This is the second post in a series serializing Arthur Sears Henning, “What a Legal Department Does,” American Business Man 1 (October 1907): 185-88.  The series begins here.]

No fact more significant of the cause of this trend in the development of modern legal guidance could be deduced than the source from which the working force of the department is obtained and constantly recruited.  No longer are the legal experts drawn from the big law firms of the city.  In these days the lawyers of a big commercial house or industrial concern are drafted from the ranks of the employees in other departments of the business.  They step out of the companies of clerks, salesmen, mechanics, foremen, etc.  For the most part they are young men—self-made men who have toiled at humble occupations in the great concern by day and attended law school at night till finally, winning admission to the bar, they have been chosen to remain with their employers in a new capacity.

            Such is the history of hundreds of lawyers now identified with the legal departments of big Chicago corporations. The chief patent lawyer of one of the largest harvester companies once was a $1.50-a-day mechanic.  Now he has a salary of $25,000 a year and handles the far-reaching litigation and negotiations relating to patent rights in which the corporation is interested.  The head of the legal department of a certain big retail store started as a cash-boy twenty years ago.  He worked up to salesman, then to department head, and all the time he was reading law outside of business hours.  When he was admitted to the bar he was promoted to the legal department of the company where, by successive stages, he rose to become its directing officer.

            These legal experts who have risen from the ranks are experts in every sense of the term.  They know their business—the business with all its peculiar ins and outs which they are called upon to handle.  Unlike the outside lawyer, retained by a strange client to handle a strange case, the “house attorney” has no unfamiliar ground to acquaint himself with before he finds his bearings.  He knows every peculiarity of the conduct of the business and the conduct of the competitor’s business—it is a part of him, for he was brought up in it.

            The patent attorney who once baked the moulds of the castings that go to make up the machine has, as the company’s patent attorney, nothing to learn of the intrinsic merits of the device, the infringement on which he is called upon to assail.  The credit attorney who once sold goods over the counter has no need to educate himself on the methods of modern mechanizing and accounting.

            It falls out, therefore, that the new way scores in the matter both of efficiency and economy in the long run.  In having at its command attorneys who are thoroughly familiar with every angle of the business the firm saves just what it would cost an outside attorney to educate himself in the business before going into action.  The greater efficiency has been demonstrated by experience.  Attorneys who have grown up with the house are more loyal to its interests, more careful in the advisement of grave measures, more desirous of bringing about ultimate results that will be more beneficial than temporary victories. 

            “The time has arrived when every one of our responsible representatives will be educated under our own roof,” said the head of a big retail store, in discussing the question.  “Even our lawyers without an exception are men who have grown up in our employ.  They know our business; they know what we want and how to get it at the minimum of cost and endeavor.  I woke up to these facts about ten years ago.  I saw the railroads and the big factories maintaining expensive legal departments.  Our own litigation was increasing, and I came to the conclusion that the origination of a law department for our own needs would be the logical conclusion of the trend of things.  I decided that the sooner it was organized the greater would be the economy.

            “I ordered a canvass made of our employees to ascertain if there were any among them with the qualifications of an attorney.  The general manager reported the names of three young men who were studying law at night school.  One of them was about to take the bar examination.  As soon as he was admitted I sent him to the credit department with instructions to take charge of all litigation growing out of that department.  A few months later the other two young men became his assistants.

            “These men kept in touch with the working force and on the lookout for others who were inclined toward the law, with the result that the department grew to its present proportions.

            “The result is that last year I relieved one big law firm of the last piece of litigation that it or any outside attorneys ever will handle for us.  Our legal department now is so well organized that we are able to cope with every difficult situation under our own roof.

            “When I recall the big fees we have paid outside law firms in big cases, and the countless stream of small fees that flowed out in small cases, I am confident that we are saving full $25,000 a year on litigation alone.  And our lawyers are well paid, too.

            “When you reckon in the efficiency of the work performed you can figure that we are saving several hundred thousand dollars a year over the old policy.  The outside attorneys had a habit of getting us mixed up with long-drawn-out and expensive litigation.  Nowadays the cases are settled or cleared up in one way or another with incredible dispatch.”

            The merchant, as he concluded his exposition, led the way to the elevator which transported us to the office of the legal department.  In a spacious room, where typewriters were clicking and boys scurrying hither and thither with baskets of documents, a dozen men were seated in a hollow square before as many roll-top desks.  They were the attorneys for the mercantile institution.

            No department of the great store could boast of more animation than was exhibited here.  Some of the attorneys were engaged in dictating letters to stenographers, some were holding long conversations over the telephone, some consulting the law books which were being brought to them from the adjoining library.


Morality and Warfare, the Rule of Law, and More: This Week in the Book Pages

"It is hard not to be moved," Charles Fried writes in The New Republic, by John Witt's "account of the inflexible prohibitions against torture, the use of poisons, the mistreatment of prisoners of war, and acts of treachery such as the misuse of flags of truce...[adopted] in the darkest days of the Civil War."  Fried reviews Witt's Lincoln's Code: The Laws of War in American History (Free Press), which the New York Times named one of the 100 Notable Books of 2012. "It would be a mistake," he insists to take from "this important book," "the lesson that if only we draft good laws and enforce obedience to them, if only we could find a Francis Lieber for our time, the moral dilemmas of the wars against terrorists and insurgents would somehow be resolved."  You can read the full review here.

Foreign Affairs has G. John Ikenberry's picks for the best books on political and legal subjects in 2012 including Rachel Kleinfeld's Advancing the Rule of Law Abroad: Next Generation Reform (Carnegie), William J. Dobson's The Dictator's Learning Curve: Inside the Global Battle for Democracy (Doubleday), and Paul Bracken's The Second Nuclear Age: Strategy, Danger, and the New Power Politics (Times Books).

In the Washington Post, Keith Lowe reviews Six Months in 1945: FDR, Stalin, Churchill, and Truman- from World War to Cold War (Knopf) by Michael Dobbs.

Joyce E. Chaplin's Round About the Earth: Circumnavigation From Magellen to Orbit (Simon & Schuster), continues to make the rounds. The New York Times this week has Bruce Barcott's review.  Also in the New York Times, a review of Sheila Hale's Titian: His Life (Harper), and an interesting piece by Andrew D. Scrimgeour, dean of libraries at Drew University, about the personal libraries that scholars leave behind.

Saturday, December 29, 2012

An Early Sighting of the In-House Counsel I

[Every year, I assign to my legal history students an article that appeared in a long-defunct business magazine from the first decade of the twentieth century, Arthur Sears Henning, “What a Legal Department Does,” American Business Man 1 (October 1907): 185-88.  It should be read with some skepticism, as the author is, in effect, selling a product here, and his biggest selling point for business executives is the prospect of acquiring needed professional expertise without the inconvenience of professional autonomy.  Still, I know of no other reportage of the emergence of in-house counsel comparable to that on the contemporaneous rise of the corporate law firm.  While your Legal History Bloggers take an end-of-the-year break, I'll serialize the article today and the next two days.]

“Referred to the legal department.”

            So runs the cryptic legend that spells the way of modern business.  It threads the maze of operations between department and department of the great corporation, it broods over the relations between competitors, between employer and employee, between seller and buyer, between the governing people and the company governed. It is the meat in the courteous letter of reply you receive in relation to your complaint; it is the burden of the newspaper interview in which the magnate comments on a policy that has been called in question. 

            It becomes at once the apotheosis of modern business caution, of modern business sagacity and economy and foresightedness.

            The general manager of the great industrial or commercial concern inscribes the notation on the documentary exhibits of a big transaction, dictates a letter explaining the situation with which he is confronted and dispatches the whole matter to the department of law experts.  In due course of time the documents return to the desk of the general manager with one more paper attached—an opinion defining the rights of all the parties concerned, laying down the law and advising the policy that may with good judgment be pursued.

            In the complex state of twentieth-century commercial operations no transaction is too insignificant to receive, at some stage of its history, the attention of the law department; no new step too sure and confident to be taken without the support and guidance of the preceptors of legal rights and usage.

            The statistics compiled by the Chicago Bar Association show that about 1,000 attorneys in this city alone are attached to the law department of big mercantile and manufacturing concerns. More than one hundred business houses have fully organized legal bureaus that handle all litigation and legal negotiations from colossal contracts down to garnishment proceedings.

            A law department is as necessary to a properly organized business to-day as is its credit department or its army of foreign buyers.  The volume of business that passes through its hands is proportioned to the volume of business of the house. Transactions valued at millions of dollars in the year’s aggregate stand or fall on the decisions that are called forth by: “Referred to the legal department.”

            The rise and development of the legal department as a recognized entity in the conduct of a concern is a chapter in the history of the systematic specialization of up-to-date business.  Time was when it sufficed a merchant or a manufacturer to consult a general practitioner of the law for the cure of his legal troubles—a general practitioner who, at the same time, served many merchants and manufacturers and other individuals.

            But the times have changed.  Now, instead of the lawyer who serves the many clients, it is the one client served by the many lawyers.  And, by the same token, are the lawyers no longer the general practitioners of old, but highly specialized experts, each in one particular field relating to the needs of the concern by which he is employed.  Likewise are legal fees passing out of the dealings of the commercial world.  Nowadays a lawyer is on the pay-roll of a company at the regular salary, working for his raise and promotion like each of the other employees.


Friday, December 28, 2012

Kar on "Western Legal Prehistory"

Robin Bradley Kar (University of Illinois College of Law) has posted "Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization," University of Illinois Law Review, Vol. 2012, No. 5 (2012). Here's the abstract:
Western legal prehistory aims to reconstruct some of the earliest proto-legal and cultural developments that gave rise to Western legal systems and the rule of law. So construed, our understanding of Western legal prehistory is currently highly undeveloped. One reason for this fact is methodological: without the aid of written sources, reconstructions of human prehistory can prove difficult. Recent advances in a broad range of cognate fields have, however, accumulated past a critical tipping point, and we are now in a secure enough position to begin to reconstruct important aspects of Western legal prehistory.

This Article draws upon and develops these contemporary findings to reconstruct the most plausible genealogical shape of Western legal prehistory. In the process, it reaches a somewhat surprising conclusion.

Abortion, Legal History, and Common Ground

This post ends my time on Legal History Blog. It’s been a pleasure. I wanted to end my posts by considering what might be the central historical question surrounding Roe—whether the opinion made it impossible for opposing activists to identify common ground on abortion or on any other issue involving sex equality or reproductive health. Recently, Gene Burns, Linda Greenhouse, and Reva Siegel have shown that polarization often attributed to Roe began before the decision.

My current project shows that opportunities to find common ground remained available in the decade after Roe. In the 1970s, those on opposing sides worked together on legislation involving pregnancy discrimination, publicly funded childcare, and contraceptive access for adolescents. When collaboration of this kind became politically difficult, Roe alone was not to blame. Political party realignment, the mobilization of the New Right and the Religious Right, and the strengthening of feminist consensus on abortion rights led to an alliance between the antiabortion movement and social conservatism. Those who had fought for common ground found themselves marginalized or forced to set aside other political commitments to advance antiabortion goals. One member of Feminists for Life put it particularly poignantly in 1979:

The best description of what it’s like to be a feminist for life is something like this: You walk into a lovely walled garden . . ., and you take a deep breath and go at the wall full gallop! And you do the same thing tomorrow, bashing your head against anything available that isn’t soft, in your determination to continue to walk that painful, frustrating road that bridges the right to life movement and the left.

In the research for my project, I came upon a common ground meeting held in 1979. Perhaps unsurprisingly, the meeting ended in failure, as antiabortion activists interrupted a press conference to display two dead fetuses. Many of those with whom I conducted oral history interviews remembered the meeting, but as they so often reminded me, these activists were not getting any younger. One went so far as to ask me for a copy of a newspaper article about the meeting. Younger activists, she said, could no longer believe that such a meeting had taken place.

As this story reminded me, the lost world of abortion politics in the 1970s looks very different from the clash of absolutes that is now so familiar to us. Studying this history makes clear that there was nothing inevitable about the way in which abortion law and politics evolved. This messiness, this fluidity and unpredictability—as one activist put it—are part of what makes these stories so deserving of study.

Thursday, December 27, 2012

The Lost History of Providers' Abortion Rights

Abortion law is made in clinics, as I suggested in a recent post. At the same time, abortion laws have dramatically changed how clinics do business. As Johanna Schoen studies in a forthcoming book Abortion After Legalization, 1970-2000 (Chapel Hill: University of North Carolina Press, forthcoming 2013), law has remade abortion practice. Since at least the 1990s, the vast majority of abortions take place in independent clinics, allowing many physicians and hospitals to distance themselves from the abortion struggle. At the same time, in the 1970s, providers’ place in abortion politics changed. In the lead-up to Roe, physicians played a visible role in the movement to legalize abortion. For organizations like NARAL, the involvement of physicians like Ed Keemer or Milan Vuitch made legal abortion appear to be more mainstream and respectable. In the decade after Roe, by contrast, the abortion-rights movement highlighted the importance of women to the cause and the value of the cause to women. NARAL Executive Director Karen Mulhauser highlighted her own experiences with rape in explaining the importance of access to abortion. Other movement members invoked the death of Rosie Jimenez, a woman who could not afford a legal abortion and who died after a botched illegal procedure.

As providers became less central to movement rhetoric, abortion opponents created powerful narratives about the nature of abortion and abortion providers. Organizations like the National Right to Life Committee argued that providers misinformed women and exploited them for money. In well-publicized slide shows, abortion opponents brought into the open a particular, morally charged, and violent image of abortion.

In the 1970s, the providers’ wing of the abortion movement had just started to mobilize, and after 1976, the mainstream movement generally presented legal abortion as something to be prevented. Providers, in this account, facilitated a necessary evil. The movement offered no direct answer to claims about what the abortion procedure involved or about how providers behaved.

The providers movement organized gradually, with the formation of the National Abortion Federation in the late 1970s and the founding of the National Coalition of Abortion Providers in the 1990s. These organizations at times offered a more nuanced narrative about the abortion experience. Highlighting prayers and burial ceremonies preferred by some patients, providers emphasized that some women grieved the loss of a fetus while having no regret about an abortion decision. Citing the stories of actual patients, providers called for a change in the abortion-rights movement’s argumentative strategy, urging activists to acknowledge that abortion involved killing while maintaining that society should trust the moral agency of women. The advocacy of these organizations has at times pointed to mostly unexplored new directions in the law and policy of abortion rights.

Wednesday, December 26, 2012

Interpreting Roe in the Abortion Clinic

Just as opposing activists reinterpreted Roe’s holding, abortion providers in the 1970s had to interpret an increasingly complex body of law. At clinics like Reproductive Health Services in St. Louis, a number of different stakeholders had to interpret both constitutional and statutory rules governing abortion. Attorneys representing the clinic worked primarily to guarantee that the clinic did not obviously run afoul of any valid law and to challenge any questionable law in court. Providers themselves had different goals in interpreting these laws. Those like Judith Widdicombe, the founder of Reproductive Health Services and a NARAL leader, wanted to convey to women what they could demand of the medical and legal establishment. Providers at Reproductive Health Services also interpreted abortion law with the intention of building political support for their practice. Patients received an explanation of what abortion rights ought to be, suggesting that the Constitution did not impose any meaningful limits on reproductive autonomy. The clinic also provided information about how to become involved in the movement to defend those rights. Finally, patients often had to make their own decisions about the legality and morality of their own decisions. The archived papers from Reproductive Health Services make clear that women often asked about the laws governing their decisions, folding questions of legality into an already complex moral decision.

As the experience of Reproductive Health Services in the 1970s suggests, lay people as well as lawyers forged the meaning of abortion laws outside the courtroom. Often, in the clinic, different stakeholders interpreted abortion laws in varying ways for different purposes. Attorneys representing the clinic exhibited consistent cautiousness, hewing closely to the courts’ articulations of abortion law. Providers, by contrast, were deeply skeptical about the courts and the rights they protected. For Widdicombe, Roe and its progeny served as symbols available to patients seeking reassurance, empowerment, or a reason to become politically active. For this reason, providers tended to stray quite far from what the Court had said, reinterpreting Roe and subsequent decisions to reflect rights that providers believed the Constitution ought to protect irrespective of what the Court said. In practice, providers often served as the primary interpreters of constitutional law in the clinic, informing staff, trainees, and patients about what the Constitution means. Something similar appears to have been true of the Birthright Clinic in St. Louis, founded in 1971.

Abortion providers, crisis-pregnancy counselors, attorneys, and patients helped to determine the  abortion law outside the courts. Certainly, formal law shaped these exchanges, as some form of judicial intervention always remained a possibility. Just the same,  in the 1970s, the clinics themselves created a substantial and largely understudied body of abortion law. 

Monday, December 24, 2012

Morag-Levine on the Continental Influences on the British Alkali Act

Noga Morag-Levine, Michigan State University College of Law, has posted Is Precautionary Regulation a Civil Law Instrument? Lessons from the History of the Alkali Act, which appeared in the Journal of Environmental Law 23 (2011): 1-43.  Here is the abstract:
Explanations for cross-national divergence in attitudes towards precautionary regulation have largely neglected the potential influence of legal traditions, notably the tension between precautionary tools and the common law’s reactive approach. This is partially due to the apparent clash between this thesis and the early emergence in Britain of precautionary regulation under the 1863 Alkali Act. Historical accounts of this development have focused entirely on domestic factors, entrenching in the process an understanding of the Alkali Act — and Britain more generally — as the origin of centralised precautionary environmental regulation. In contrast, this article argues that the Act was directly inspired by French and other continental regulatory models, and that the regime it spawned constituted a continental-common law hybrid. If the Alkali Act regime was partially transplanted from the Continent, it becomes easier to reconcile the civil law character of precautionary regulation with the evident presence of that instrument in Victorian Britain.

December 2012 JAH is out

The December 2012 issue of the Journal of American History is out (subscribers may access content online). The issue includes:
  • Alice Kessler-Harris's recent Presidential Address, titled "Capitalism, Democracy, and the Emancipation of Belief."
  • "Moving beyond 'Rags to Riches': New York’s Irish Famine Immigrants and Their Surprising Savings Accounts," by Tyler Anbinder
  • "On a Temporary Basis: Immigration, Labor Unions, and the American Entertainment Industry, 1880s–1930s," by Krystyn Moon
  • A roundtable on Women’s and Gender History. Here's the journal's summary:
For decades, women’s and gender historians have sought to expand the boundaries of their field, interrogate its assumptions, and reshape standard narratives of U.S. history. Cornelia H. Dayton and Lisa Levenstein assess the state of the field, emphasizing how the scholarship of the past decade challenges U.S. historians to think in new ways about how they teach, synthesize, and design research. The field’s radical edge lives on in scholars’ ever-more-flexible understandings of gender and their new interpretations in areas such as state building, rights claiming, and empire. Following Dayton and Levenstein’s article, Natsuki Aruga, Crystal N. Feimster, Alice Kessler-Harris, Ana Elizabeth Rosas, and Elisabetta Vezzosi offer perspectives on the state of the field.
  • And as always, numerous reviews of exhibitions, books, films, and websites.

Nuisances, Snake Oil, and Jim Crow Banks at the Hagley

[This spring's Research Seminars at the Hagley Library and Museum are all of interest to legal historians.]

February 14, 2013
David Lucsko, Auburn University
"Not in My Neighbor’s Backyard, Either: Junkyards, Automobile Enthusiasts, and Property Owners, 1965-2010"
Comment: Alison Isenberg, Princeton University

March 14, 2013
Susan Strasser, University of Delaware
"Snake Oil Revisited"
Comment: Nancy Tomes, SUNY-Stony Brook

April 11, 2013
Shennette Garrett-Scott, Case Western Reserve University
"'All the Other Devils This Side of Hades': Jim Crow and State Regulation of Negro Banks in Mississippi during the Progressive Era"
Comment: TBA

Seminars are free and open to the public and are based on a paper that is circulated in advance. Those planning to attend are encouraged to read the paper before coming to the seminar. Copies may be obtained by contacting Carol Lockman at The seminars begin promptly at 6:30 p.m. in the Copeland Room of Hagley’s library building.

Sunday, December 23, 2012

The Unwritten Constitution, Boilerplate Contracts, the Second Amendment, and More: This Week in the Book Pages

This week in the New York Times, Robert P. George reviews America's Unwritten Constitution:The Precedents and Principles We Live By (Basic Books) by Akhil Reed Amar.  As George writes, Amar "contends that the written Constitution points to an unwritten one, and he argues that we can interpret with both intellectual honesty and analytical rigor."  Read on here.

Also in the New York Times this week, a review of Craig R. Whitney's Living With Guns: A Liberal's Case for the Second Amendment (PublicAffairs), and Richard Aldous reviews The Last Lion: Winston Spencer Churchill, Defender of the Realm 1940-1965 (Little, Brown & Company).

In the LA Times, Tony Perry reviews two books on the war in Afghanistan: Jake Tapper's The Outpost: An Untold Story of American Valor (Little, Brown), and Dakota Meyer and Bing West's Into the Fire: A Firsthand Account of the Most Extraordinary Battle in the Afghan War (Random House).  And in the Washington Post, H.W. Brands reviews Robert M. Utley's Geronimo (Yale).

In the Wall Street Journal this week, Robert F. Nagel reviews Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton) by Margaret Jane Radin.  As Nagel writes, Radin "effectively debunks legal abstractions designed to reconcile boilerplate with contract theory."

And in TNR: The Book this week, Geoffrey Kabaservice reviews Robert O. Self's All in the Family: the Realignment of American Democracy Since the 1960s (Hill and Wang): "Self argues that the 'explosive issues surrounding gender, sex, and family" were not peripheral "culture war" matters, but were central to the political struggles over power, equality, and economics during the past five decades."  The Book also has Linda Colley's review of Round About the Earth: Circumnavigation from Magellan to Orbit (Simon and Schuster) by Joyce E. Chaplin.  Round About the Earth, Colley writes, is "strikingly original and wonderfully researched."

Saturday, December 22, 2012

Holmes Goes Electric!

Hat tip to David Warrington to alerting me to the fact that, after years in the making, the Harvard Law School's Oliver Wendell Holmes Jr. Digital Suite went live last week.  The Harvard Gazette explains:
Library of Congress
On the website, a visitor can move from the erect soldier of 22 to the jurist in his prime at work behind a desk to the elderly Holmes, stooped as he walks beside Supreme Court colleague Louis Brandeis.

In a first for the library, the site aggregates multiple archival holdings into a single, hyperaccessible digital suite that anyone with a computer can search, browse, and tag. (The library uses the word “suite” to mean a collection of collections.) In the new suite, users can search and browse across five manuscript and three visual collections.

“We’re not making anything newly available through this. But the access is so greatly enhanced now. We’re making this convenient,” said Margaret Peachy, curator of digital collections at the library.

The new suite replaces and expands the library’s digital collection on Holmes. It not only aggregates manuscripts and images, but it offers simple and advanced searching, facilitates browsing, and offers links to like-minded searchers.

Who are the expected users? “Anybody with a computer who comes to this site,” said Stephen Chapman, project manager in the library’s digital lab.

Weekend Roundup

  • In the wake of the Newtown tragedy, historians are claiming a place in national conversations about gun control, the right to bear arms, violence and American culture, and the duties of educators. Saul Cornell's recent piece in the Daily Beast is here. Jill Lepore's April 2012 New Yorker article ("Battleground America") remains relevant. Claire Potter (Tenured Radical) has posted some reflections here. History News Network is also compiling a round-up of commentary from historians.
  • Earlier this fall Maribel Morey (NYU law) gave a talk at the Hannah Arendt Center at Bard College, focusing on Gunnar Myrdal's An American Dilemma (1944) and Hannah Arendt’s “Reflections on Little Rock” (1959). The Arendt Center has now posted a written re-cap, as well as recording of the talk and ensuing discussion. (Hat tip: bookforum)   
  • Robert Bork's visit to Grove City College in 1988 is remembered here.
The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, December 21, 2012

CFP: ASLH 2013

[Via H-Law we have the Call for Papers for next year’s annual meeting of the American Society for Legal History.]

The 2013 meeting of the American Society for Legal History will take place in Miami, Florida, November 7-10, 2013. The ASLH invites proposals on any facet or period of legal history, anywhere in the world. In selecting presenters, the Program Committee will give preference to those who did not present at last year's meeting.

Travel grants will be available for presenters in need; these resources will nevertheless still be limited, and special priority will be given to presenters traveling from abroad, graduate students, post-docs, and independent scholars.

The Program Committee welcomes proposals for both full panels and individual papers, though please note that individual papers are less likely to be accepted. As concerns panels, the Program Committee encourages the submission of a variety of different types of proposals, including: traditional 3-paper panels (with a separate commentator and chair) incomplete 2-paper panels (with a separate commentator and chair), which the Committee will try to complete with at least 1 more paper; panels of 4 or more papers (with a separate commentator and chair); thematic panels that range across traditional chronological or geographical fields ; author-meets-reader panels; roundtable discussions.

All panel proposals should include the following:

A 300-word description of the panel;
A c.v. for each presenter (including complete contact info); In the case of paper-based panels only, a 300-word abstract of each paper .

Individual paper proposals should include:

A c.v. for each presenter (including complete contact info); A 300-word abstract of each paper

The deadline for submitting proposals is March 1, 2013. Proposals should be sent as email attachments to  Substantive questions should be directed to Christina Duffy Ponsa at or Karl Shoemaker at

Those unable to send proposals as email attachments may mail hard copies to:

2013 ASLH Program Committee
c/o Christina Duffy Ponsa
Columbia Law School
435 W. 116th Street, Rm. 913
New York, NY 10027

CFP: Law and Literature via Bentham

[The twelfth issue of the Revue d’Études Benthamiennes, to be published in autumn 2013, which is to be devoted to Law and Literature.  It will be coordinated by Claire Wrobel (Université Lille 2).  The full call is here.]

Bentham and his followers were undeniably interdisciplinary thinkers as their interests ranged from reforming the legal and political system to economic and colonial matters as well as language. They moved about diverse social circles and, even when they did not meet face to face, reformers and writers often discussed, albeit on different modes, the same issues.

The REB is seeking to publish papers relying on the methodology of “Law and Literature” studies to shed new light on the works and thinking of Bentham and his followers and, conversely, identify what Bentham's theory of fiction or evidence – for instance – may bring to the field.

John Wigmore (1863-1943) is usually regarded as the founding father of the “law and literature” movement. At the beginning of the twentieth century, he established lists of legal novels – meaning novels which included trial scenes or portraits of lawyers for example – which lawyers should read. Wigmore, like Bentham, analysed the common-law system of evidence (Treatise on the Anglo-American System of Evidence in Trials at Common Law, 4 vols, 1904-5). The fact that Bentham and Wigmore's theories of evidence should have been studied conjointly by William Twining is quite significant (Theories of Evidence: Bentham and Wigmore, Stanford, Calif.: Stanford University Press, 1985).

Wigmore's undertaking was supported and continued by some of his colleagues, including Benjamin Cardozo (whose essay on “Law and Literature” was published in the Yale Review in 1925 [vol.14, pp.699-718]) and Richard Posner (who took a critical stance in Law and Literature: a Misunderstood Relation, Harvard University Press, 1988).

The Legal Imagination (Chicago; London: University of Chicago Press, [1973] 1985), which James Boyd White, a Law Professor at the University of Michigan, devoted to Shakespeare, provided new impetus to the movement and the field has kept on developing in the United States, especially from the 1990s. Most American law schools now offer “Law and Literature” classes. Three academic reviews centre on the subject: the Yale Journal of Law and the Humanities, the Legal Studies Forum, and the Cardozo Studies in Law and Literature.

In France, two conferences were organised recently: in 2007 at the Cour de cassation (the French Court of Appeal) and in 2011 at the University of Paris Ouest-Nanterre. In France as in Anglo-Saxon countries, the interest in “Law and Literature” has emerged through law specialists but the field is by its very nature open to other disciplines. This CFP addresses specialists of Law, Literature, but also philosophy.

Contributions may address - but are not necessarily limited to – the axes which are already well-established: law in literature (the way literature reflects – in both senses of the word – the world of law and legal processes), law as literature (the literary properties of legal texts), the law of literature (the laws relating to literary production and intellectual property), legal and literary hermeneutics. Bentham's theories on fictions and evidence may prove particularly fruitful for hermeneutic issues.***

Please send proposals (in French or in English) of around 500 words and a short biography to Emmanuelle de Champs ( and Claire Wrobel ( by December 12th. [Note: we've just received this call here at LHB, so we assume that submissions are still being solicited.]  Acceptance of proposals will be signified in February. Completed articles will be due by June 1st 2013.

Update: The deadline for submissions is now January 20th.

Konefsky on Simon Greenleaf and the Stillborn Bowdoin Law School

Simon Greenleaf (credit)
You won’t see it on SSRN anytime soon, but that shouldn’t keep you from reading the latest from Alfred S. Konefsky, SUNY Buffalo Law School: “Piety and Profession: Simon Greenleaf and the Case of the Stillborn Bowdoin Law School, 1850-1861,” New England Quarterly 85 (December 2012): 695-734.  One wouldn’t think a failure would be all that interesting–after all, Bowdoin College never did get a law school–but this one is.  In part that is because Konefsky has brought to bear on a revealing cache of manuscripts his great understanding of the antebellum legal profession to give us a lively account of the attempt to create in Maine something like the legal adjuncts to the antebellum colleges in Cambridge and New Haven.  It helps, as well, that the articulate and thoughtful Simon Greenleaf (1783-1853), retired from his professorship at the Harvard Law School, was the principal advisor to Bowdoin’s president.  Greenleaf was not about to sever “my present pursuits & connexions, which are like pleasant and profitable,” to teach in distant Brunswick–although for a time he entertained a similar offer from Brown’s Francis Wayland.  Still he prepared a lengthy report, which in Konefsky’s hands, reveals much about the pedagogy, dubious business model, and ideological mission of the antebellum law school, as envisioned by a devout Whig, who, with Richard Hooker, said of law that “her seat is the bosom of God, her voice the harmony of the world.”  In his report and other correspondence with the Bowdoin president we can see how much Greenleaf counted on the instruction of “the sons of New England” in legal doctrine and a moral code to deliver the republic from “men without religion or moral principle, foes of all manner of legal restraint, mistaking licentiousness for liberty & having no just conception of the nature of free government.”  When he died in 1853, few remained to keep alive Greenleaf’s belief in “moral science as an animating force in legal education” and hope that a cadre of learned lawyers could contain the passions of a polyglot people.

Roe and the Changing Meaning of Conscientious Objection

Robin Elliott’s journey in the abortion rights movement brought him from England to Columbia University and finally into the front lines of the abortion wars. The director of public relations for Planned Parenthood, Elliott worked, after 1973, to create a new message for the abortion-rights movement. He urged Planned Parenthood to stress individual freedom of conscience. A person could oppose abortion but could not impose that belief on anyone else.

A similar idea found expression in the Church Amendment, a conscience-clause law passed with bipartisan support in 1973. As Sara Dubow argued recently at the American Society for Legal History Conference, conscience legislation in the 1970s was popular, uncontroversial, and widespread. In the decades to come, however, conscience laws took their place at the center of conflict about women’s health and religious liberty. 

Dubow attributes this shift to several larger changes in the political terrain. Bipartisan consensus on the importance of religious freedom, the desirability of guaranteed access to healthcare, and women's rights broke down over time. Legislators once willing to discuss conscience without mentioning abortion were no longer willing to do so.

This argument is as compelling as much of Dubow’s work (see Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (New York: Oxford University Press, 2010)). I think a few additional changes have fueled the conscience wars. First, in the decades since Roe came down, consensus on the value of conscience has obscured intense conflict about what choice or conscience means. Beginning in the mid-1970s, abortion opponents seized on the ideas of choice as a way of narrowing abortion rights. In this account, the Constitution recognized the importance of a woman’s freedom of conscience rather than access to abortion. As the Supreme Court expressed views of this kind in cases like Maher v. Roe, it became clear that agreement on the importance of freedom of conscience went only so far. Those on opposing sides of the abortion issue held dramatically different views on what that freedom involved.

Second, those claiming freedom of conscience have defined that freedom ever more broadly. The Church Amendment applied primarily to those who did not want to assist in abortions. Current religious liberty claims suggest that the legality of abortion or same-sex marriage itself represents a threat to freedom of conscience. Abortion opponents, among others, argue that making something legal creates a risk that believers will have to learn about, participate in, or approve of that practice. Defined in this way, freedom of conscience almost requires a ban on the challenged practice.

As early as 1973, participants in the conscience wars disagreed about who could speak for religious liberty and what that liberty entailed. Now, this conflict is more visible and intense, but it began as early as did Robin Elliott’s public-relations campaign.

Thursday, December 20, 2012

Robert Bork and the Right to Discriminate

Robert Bork, who died yesterday, left a legacy that includes leading roles in several major events in American legal history—among them, his failed nomination to the Supreme Court in 1987 and his role in Nixon’s “Saturday Night Massacre” as the Watergate scandal unfolded in 1973.  But Bork’s first turn in the national spotlight came in 1963, when he became a uniquely influential critic of what would become Civil Rights Act of 1964.  Bork, an expert in antitrust law, had only recently left private practice to teach at Yale Law School when he published an article in The New Republic attacking advocates of national public accommodations legislation for failing to appreciate its costs for individual freedom.  It was to this article that Senator Ted Kennedy referred when he announced, during Bork’s confirmation hearing, that “in Robert Bork's America, there is no room at the inn for blacks.” 

Kennedy was wrong to smear Bork as a segregationist.  Bork’s point was not to defend racial segregation.  Indeed, in the article he explicitly denounced the practice.  But Kennedy was not wrong to draw attention to Bork’s deeply problematic argument against the Civil Rights Act.  The kind of liberty-based critique of antidiscrimination policy that Bork was articulating is a topic I explore in a forthcoming essay titled “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement.”  It will be included in Signposts: New Directions in Southern Legal History, a collection of seventeen essays, expertly edited by Sally Hadden and Patti Minter, which the University of Georgia Press will publish this spring.

Bork’s New Republic article about the pending federal public accommodations bill has become probably the most famous defense of the “right to discriminate.”  Bork began by separating himself from segregationist opponents of civil rights policy.  He described the proposed legislation as based in “justifiable abhorrence of racial discrimination,” and he lamented that most critics of the law were “southern politicians who only a short while ago were defending laws that enforced racial segregation” and hence only opportunistic libertarians.  Yet, Bork insisted, one may stand opposed to racial discrimination and still see something amiss in a national public accommodations law.  “It is not whether racial prejudice or preference is a good thing but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them…. The trouble with freedom is that it will be used in ways we abhor.”  State enforced segregation was wrong, but so was state enforced integration in certain spheres of private relations.  The principle behind the proposed law, Bork explained in the most widely quoted lines of the article, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths.  This is itself a principle of unsurpassed ugliness.”

Predictably, the article became a favorite reference point for segregationists desperately looking for footholds from which to make their stand.  Bork’s argument also found fertile ground in the new wave of libertarianism spearheaded by Barry Goldwater and his 1964 presidential campaign.  Bork wrote a seventy-five page brief for Goldwater outlining the constitutional infirmities of the civil rights bill.  It likely was influential with Goldwater, who ultimately voted against the Civil Rights Act.

It is worth stopping for a moment to consider exactly why Bork’s argument has rightly earned the condemnation of history.  (When, in 2010, Rand Paul, the newly elected U.S. Senator from Kentucky, attempted to revive some version of Bork’s argument, even his conservative allies told him to find a new issue to talk about.)  It cannot be simply because judges have basically laughed such claims out of court whenever they appeared.  In upholding the public accommodations provision of the Civil Rights Act in Heart of Atlanta Motel v. U.S. (1964), the Supreme Court summarily slapped down an array of long-shot “right to discriminate” claims.  But just because a constitutional claim is not judicially cognizable does not mean that it is necessarily illegitimate in other institutional contexts.  Furthermore, Bork was not wrong to insist that there are certain realms of private life in which government should not tell individuals with whom they can associate—who one invites to a dinner party, for instance, or to a book group or perhaps even to join a private club.  Where Bork was wrong—where he was deeply, dangerously wrong—was in thinking that the operator of a restaurant or hotel or other privately owned public accommodations had some sort of liberty interest that outweighed the government interest in extinguishing the shameful practice of racial segregation from American society.  While the general principle was not wrong, the application surely was.

Thankfully, Bork lost this particular battle.  It is important to recognize, however, that the more general argument in favor of a right to discriminate survived the civil rights movement.  When employed in opposition to the desegregation of public accommodations, the argument failed to gain much adherence outside the Deep South.  Its logic was too tangled, its implications too sweeping, its assumptions about the line between personal associations and public life too implausible in modern American life.  Yet, by the late 1960s, when housing discrimination became a leading issue on the civil rights agenda, this rights claim, so improbable in its other applications, quickly became the argument of choice for open housing opponents throughout the nation.

It was at least partly by design that claims of a right to discriminate were eventually picked up outside the South.  Segregationists embraced the language of individual liberties because it provided a more politically acceptable way in which to resist civil rights, shifting the discussion of civil rights from a question of white supremacy versus equality toward a question of liberty versus equality.  To recognize this turn to the language of freedom and rights was often flagrantly opportunistic and disingenuous does not take away from its effectiveness.  For all the conspicuous failures of the libertarian challenge to civil rights it provided another way in which opponents of civil rights could effectively operate in a post-civil rights movement society.  It provided a language through which conservatives could accept much of what the civil rights movement had accomplished, but also to insist that there should be limits to antidiscrimination policy.  And these limits could be defended using the same tools that conservatives had been cultivating in other contexts: a commitment to limited government and a suspicion that excessive government regulation would lead the nation down a slippery slope to socialism, and a belief that the expansion of government power necessarily diminishes personal liberties. The argument that basic constitutional rights were at stake, that liberty must be championed alongside (or above) equality, opened the possibilities of creating alliances between defenders of segregation in the South and conservatives outside the South.  Although Bork and other proponents of the right to discriminate failed in their effort to block the Civil Rights Act, their libertarian critique provided a potent common ground that helped unite the segregationist cause with conservatives around the country.

Koppelman on Welch v. United States (1970)

Andrew Koppelman, Northwestern University School of Law, has posted The Story of Welsh v. United States: Elliott Welsh's Two Religious Tests, which appeared in First Amendment Stories, ed. Richard Garnett and Andrew Koppelman (Foundation Press, 2011).  Here is the abstract:
Welsh v. United States (1970) presented the Supreme Court with the problem of whether conscientious objector status had to be extended to a person who rejected participation in war as a matter of conscience, but who was an avowed atheist. When it ruled in Welsh’s favor, the Court offered the fullest answer it has yet given to a central constitutional problem: the definition of the “religion” which is protected by the First Amendment. This article, based on extensive interviews with Elliott Welsh, tells his story for the first time. It also sheds light on the perennial problem of discerning the boundaries of the free exercise clause.

Kent on Ex parte Quirin

Andrew Kent, Fordham University School of Law, has posted Judicial Review for Enemy Fighters: The Court's Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case, which will appear in Vanderbilt Law Review 66 (2013); 101.  Here is the abstract:    
Credit: Library of Congress
The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post-9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on a broader, more systemic basis, and to understand its application to future conflicts. A leading precedent ripe for reconsideration is Ex parte Quirin, a World War II-era case in which the Supreme Court held that saboteurs admittedly employed by an enemy nation’s military had a right to access civilian courts during wartime to challenge their trial before a military commission. Even though admitted members of an enemy nation’s military had never before accessed the civilian justice system during wartime, the Court in Quirin declined to explain why it reversed course in such a significant fashion. Since and because of Quirin, it has become accepted that literally any individual present in the United States has a constitutional right to habeas corpus.