Kaczorowski on Inherent National Sovereignty Constitutionalism

Robert J. Kaczorowski, Fordham University School of Law, has posted Inherent National Sovereignty Constitutionalism: An Original Understanding of the US Constitution, which appeared in the Minnesota Law Review 101 (2016):

This article is an original work of scholarship in several respects. As the title suggests, it presents a novel interpretation of the “original understanding” of the Constitution, which I call the inherent national sovereignty theory. This theory viewed the national government as a sovereign government and Congress as a sovereign legislature imbued with the countless legislative powers that sovereign legislatures possesses. The sources of this understanding are themselves original. The article is based in part on a systematic analysis of the political debates relating to politically defining actions of the federal government in this nation’s early history: the incorporation of the First Bank of the United States in 1791; the decision to allow the bank’s charter to expire in 1811; and the decision to incorporate the Second Bank of the United States in 1816. No one has previously engaged in a systematic constitutional analysis of these political debates. I have found that bank proponents asserted Congress’s inherent sovereign legislative power to explain Congress’s authority to incorporate the First and Second Banks.

Ely, Jr., "The Contract Clause: A Constitutional History"

New from the University Press of Kansas: The Contract Clause: A Constitutional History (Oct. 2016), by James W. Ely, Jr. (Vanderbilt University). A description from the Press:

Few provisions of the American Constitution have had such a tumultuous history as the contract clause. Prompted by efforts in a number of states to interfere with debtor-creditor relationships after the Revolution, the clause—Article I, Section 10—reads that no state shall “pass any. . . Law impairing the Obligation of Contracts.” Honoring contractual commitments, in the framers’ view, would serve the public interest to encourage commerce and economic growth. How the contract clause has fared, as chronicled in this book by James W. Ely, Jr., tells us a great deal about the shifting concerns and assumptions of Americans. Its history provides a window on matters central to American constitutional history, including the protection of economic rights, the growth of judicial review, and the role of federalism.

Under the leadership of Chief Justice John Marshall, the Supreme Court construed the provision expansively, and it rapidly became the primary vehicle for federal judicial review of state legislation before the adoption of the Fourteenth Amendment. Indeed, the contract clause was one of the most litigated provisions of the Constitution throughout the nineteenth century, and its history reflects the impact of wars, economic distress, and political currents on reading the Constitution. Ely shows how, over time, the courts carved out several malleable exceptions to the constitutional protection of contracts—most notably the notion of an inalienable police power—thus weakening the contract clause and enhancing state regulatory authority. His study documents the near-fatal blow dealt to the provision by New Deal constitutionalism, when the perceived need for governmental intervention in the economy superseded the economic rights of individuals.

Though the 1970s saw a modest revival of interest in the contract clause, the criteria for invoking it remain uncertain. And yet, as state and local governments try to trim the benefits of public sector employees, the provision has once again figured prominently in litigation. In this book, James Ely gives us a timely, analytical lens for understanding these contemporary challenges, as well as the critical historical significance of the contract clause.

A few blurbs:

"Students of the modern Constitution pay little attention to the Contract Clause, yet for more than 150 years it was one of the most litigated issues before American courts. James Ely has done a masterful job in not only analyzing the development of Contract Clause jurisprudence, but does so in a way that will be understandable by lay persons as well as scholars. This will be the definitive book on this subject for many years to come."—Melvin I. Urofsky

"Professor Ely has indeed written the ‘definitive history’ of the clause that once was the Constitution’s most prolific source of litigation. It will immediately become the indispensable text, superseding Benjamin F. Wright’s classic but outdated study. With his unrivaled mastery of case law and legal scholarship, Ely has crafted a work that in telling the particular story of the contract clause is also a probing examination of constitutional law’s elusive quest to draw the line between governmental regulation and the free pursuit of economic activity."—Charles F. Hobson

More information is available here.

Resnik on "Intellectual Heritages" in Federal Courts Jurisprudence

Judith Resnik, Yale Law School, has posted Revising Our "Common Intellectual Heritage": Federal and State Courts in Our Federal System, which is forthcoming in volume 91 of the Notre Dame Law Review:    

This Essay pays tribute to Daniel Meltzer’s insight that, to the extent “lawyers have a common intellectual heritage, the federal courts are its primary source.” I do so by analyzing how that heritage is made and remade, as political forces press Congress to deploy federal courts to protect a wide array of interests and state courts absorb the bulk of litigation.

Callen, "Railroads and American Political Development: Infrastructure, Federalism, and State Building"

New from the University Press of Kansas: Railroads and American Political Development: Infrastructure, Federalism, and State Building (Sept. 2016), by Zachary Callen (Allegheny College). A description from the Press:

America’s founders envisioned a federal government of limited and enumerated powers. What they could not envision, of course, was the vast and complex infrastructure that the growing nation would demand—a demand that became ever clearer as the power and importance of railroads emerged. The requirements of a nationwide rail network, it also became clear, far exceeded the resources of state and local government and private industry. The consequences, as seen in this book, amounted to state building from the ground up. In Railroads and American Political Development Zachary Callen tells the story of the federal government’s role in developing a national rail system—and the rail system’s role in expanding the power of the federal government. The book reveals how state building, so often attributed to an aggressive national government, can also result from local governments making demands on the national state—a dynamic that can still be seen at work every time the US Congress takes up a transportation bill.

Though many states invested in their local railroads, and many quite successfully, others were less willing or less capable—so rail development necessarily became a federal concern. Railroads and American Political Development shows how this led to the Land Grant Act of 1850, a crucial piece of legislation in the building of both the nation’s infrastructure and the American state. Chronicling how this previously local issue migrated to the federal state, and how federal action then altered American rail planning, the book offers a new perspective on the exact nature of federalism. In the case of rail development, we see how state governments factor into the American state building process, and how, in turn, the separation of powers at the federal level shaped that process. The result is a fresh view of the development of the American rail system, as well as a clearer picture of the pressures and political logic that have altered and expanded the reach of American federalism.

A few blurbs:

“Zachary Callen deftly probes the interface between federalism and the emergence of the railroad system in the antebellum era. He carefully traces the gradual shift away from state-centered railroad policy, pointing out that difficulties in promoting and coordinating railroads were common and induced western states to take the lead in calling for federal assistance. This volume casts welcome light on the nascent movement for federal control of the rail network and raises far-reaching questions about the nature of federalism in the American constitutional order.” —James W. Ely Jr.

“In this thoughtful new book, Zachary Callen reveals the politics of space at the center of America's antebellum railroad saga. The political energy of railroads played out in state legislatures, in Congress, and the tensions within and between them. An innovative reading of early American federalism, its limits and its long-run reverberations in American industrialization and political development.” —Daniel Carpenter

More information is available here.

Gould on Wilson v. Hughes: "The First Modern Clash Over Federal Power"

New from the University Press of Kansas: The First Modern Clash over Federal Power: Wilson versus Hughes in the Presidential Election of 1916 (2016), by Lewis L. Gould (University of Texas). Here's a description from the Press:

Fully examined for the first time in this engrossing book by one of America’s preeminent presidential scholars, the election that pitted Woodrow Wilson against Charles Evan Hughes emerges as a clear template for the partisan differences of the modern era. The 1916 election dramatically enacted the two parties’ fast-evolving philosophies about the role and reach of federal power. Lewis Gould reveals how, even more than in the celebrated election of 1912, the parties divided along class-based lines in 1916, with the Wilson campaign in many respects anticipating the New Deal while the Republicans adopted the small government, anti-union, and anti-regulation positions they have embraced ever since. The Republicans dismissed Wilson’s 1912 win as a fluke, the result of Theodore Roosevelt’s “Progressive” apostasy splitting the party. But in US Supreme Court Justice Hughes, whose electoral prowess had been proven in two successful runs for governor of New York, the Republicans had anointed a flawed campaigner whose missteps in California sealed his fate very late in the election. Wilson’s strong performance as the head of a united Democratic government (for the first time since 1894), along with Americans’ uncertainty about the outbreak of war in Europe, led to victory.

Along with the ins and outs of the race itself, Gould’s book explores the election’s broader meaning—as, for the first time, the popular election of the Senate coincided with a presidential election, and the women’s suffrage movement gathered steam. The year 1916 also marked the restoration of a two-party competition for president and, as we see in this enlightening book, the beginning of the two-party battle for the hearts and minds of Americans that continues to this day.

There are a number of nice blurbs, but for our readers, this one jumps out:

"Few living historians know as much about the presidency during the Theodore Roosevelt, Taft and Wilson eras as Lew Gould. With this sprightly and absorbing book, he takes us back to an understudied election that proved pivotal for the future of democracy, the Democratic and Republican parties, the Executive Branch, and war and peace. Highly recommended!"—Laura Kalman

More information is available here.

Hays on Andrew Jackson and Native-American Sovereignty

Joel Stanford Hays has posted Twisting the Law: Legal Inconsistencies in Andrew Jackson's Treatment of Native-American Sovereignty and State Sovereignty, which appeared in the Journal of Southern Legal History 21 (2013): 157-92:

Andrew Jackson (LC)

This article explores the legal history and development of federal Native-American law doctrine, focusing on the sovereignty of Native-American tribes as a basis of Native-American tribal power. Native-American sovereignty has been infringed upon by governmental policies, especially during the Andrew Jackson administration. Although Andrew Jackson was a supporter of state sovereignty, Jackson often ignored guaranteed protections of the federal government to the Native-American nations, intruding on the individual State’s prerogatives. The legal inconsistencies in Andrew Jackson’s treatment of Native-American sovereignty and State sovereignty is analyzed. The influence of Jacksonian administration policies on the subsequent development of Native-American law doctrine, governmental policies, and the judicial philosophy of individual Supreme Court Justices,  is traced through the twenty-first century.

On Federalism (Tani, States of Dependency, Post 4)

Ah, grading season is upon us – thus my lapse in blogging about States of Dependency. (My earlier posts are here, here, and here.) But I’m jumping back in now, lest I lose whatever momentum I still have! My last post was on rights, a topic that I always considered central to my project. This post is about a theme in my work that I've claimed more gingerly, and only in the last few years: federalism.

* * *

Historians who write about American poor relief often have a sense of déjà vu when reading the news. Around this time last year, the Washington Post covered a new Kansas law that bans welfare recipients from using their income support payments to visit swimming pools, see movies, or get tattoos. The mayor of Lewiston, Maine, recently proposed publishing the names and home addresses of everyone in the state who receives public assistance benefits. At a campaign event last fall, presidential hopeful and former governor Jeb Bush responded to a question about how to connect with black voters with a rambling comment about not giving out “free stuff.”

Such stories support a sad refrain in academic writing on poverty policy – a refrain of 'the more things change, the more they stay the same.' And, indeed, there are themes here that demand attention: an enduring impulse to separate the poor into racially coded categories of deserving and undeserving; an insistence that people who receive public support never be better off, or more free, than people who derive their income from paid labor; a suspicion that recipients will take advantage of public generosity unless constantly monitored and disciplined. Little wonder that so many people writing in this area describe an unbroken chain from the Elizabethan Poor Law to today.

I worry, though, that when we focus so much on continuity, we lose sight of change. American poor relief changed dramatically over the course of the twentieth century, in ways that mattered to American governance writ large. One change that I emphasize in States of Dependency is the shift in power from the local level to the state and federal levels, and a corresponding change in the nature of federal-state relationships. In other words, there is a federalism story here that is big and important -- one that might even change how we think about the "New Deal order."

Oxford Handbook of the Indian Constitution

The Oxford Handbook of the Indian Constitution (ed. Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta) is just out. From the publisher:

The Indian Constitution is one of the world's longest and most important political texts. Its birth, over six decades ago, signalled the arrival of the first major post-colonial constitution and the world's largest and arguably most daring democratic experiment. Apart from greater domestic focus on the Constitution and the institutional role of the Supreme Court within India's democratic framework, recent years have also witnessed enormous comparative interest in India's constitutional experiment.  

The Oxford Handbook of the Indian Constitution is a wide-ranging, analytical reflection on the major themes and debates that surround India's Constitution. The Handbook provides a comprehensive account of the developments and doctrinal features of India's Constitution, as well as articulating frameworks and methodological approaches through which studies of Indian constitutionalism, and constitutionalism more generally, might proceed. Its contributions range from rigorous, legal studies of provisions within the text to reflections upon historical trends and social practices. As such the Handbook is an essential reference point not merely for Indian and comparative constitutional scholars, but for students of Indian democracy more generally.

This volume covers a dizzying array of topics, with a section on legal history. Here is the Table of Contents: 

Tani's "States of Dependency"

I’m delighted to announce that States of Dependency: Welfare, Rights, and American Governance, 1935–1972, by my fellow LHB Blogger Karen M. Tani, University of California, Berkeley, Law, is out this month from the Cambridge University Press.  In appears in the book series Studies in Legal History, sponsored by the American Society for Legal History.

[UPDATE: The Introduction is now available for download here.]

Who bears responsibility for the poor, and who may exercise the power that comes with that responsibility? Amid the Great Depression, American reformers answered this question in new ways, with profound effects on long-standing practices of governance and entrenched understandings of citizenship. States of Dependency traces New Deal welfare programs over the span of four decades, asking what happened as money, expertise and ideas travelled from a federal administrative epicenter in Washington, DC, through state and local bureaucracies, and into diverse and divided communities. Drawing on a wealth of previously un-mined legal and archival sources, Karen Tani reveals how reformers attempted to build a more bureaucratic, centralized and uniform public welfare system; how traditions of localism, federalism and hostility toward the 'undeserving poor' affected their efforts; and how, along the way, more and more Americans came to speak of public income support in the powerful but limiting language of law and rights. The resulting account moves beyond attacking or defending Americans' reliance on the welfare state to explore the complex network of dependencies undergirding modern American governance.

Here are some endorsements:

“States of Dependency inverts the story of New Deal social benefits to provide a fresh perspective on the story of state-building. Tani explains how federal authorities relied on the language of rights to legitimize new programs, only to run afoul of local communities. This powerful book suggests how providing relief led to a stronger central government with the authority to scrutinize individual lives. I’m persuaded!”
— Alice Kessler-Harris, Columbia University, author of In Pursuit of Equity: Women, Men and the Quest for Economic Citizenship in Twentieth Century America.

“The publication of Karen Tani’s States of Dependency marks a new beginning in the history of the American welfare state. Deftly weaving together the techniques of social welfare history, legal history, the history of the state, and the history of administration, Tani offers an entirely new perspective on the persistence of poverty and the progress of social reform from the New Deal to the 1970s, from social security to the welfare rights movement. She tells the grand story of the rise (and fall?) of the American welfare state with expert attention both to complex matters of law and administration as well as to the everyday social struggles over issues of localism, needs, rights, race, gender, and inequality that basically define this important field of inquiry. This is bold and revisionist history in the traditions of Willard Hurst, Theda Skocpol, Michael Katz, and Jerry Mashaw.”
—William Novak, University of Michigan

“In this brilliant administrative history, Karen Tani traces the remaking of poor relief from the passage of the Social Security Act to the failure of a federally guaranteed minimum income. Centering our attention on the assumptions, commitments, and everyday actions of what might be thought of as the worker bees of the modern administrative state (the midlevel interpreters of statutes – here, lawyers, social workers, and other professionals who staffed the Social Security Administration and state and local level welfare offices) and the fulcrum of modern state power (federal matching grants which bound national, state, and local governments together in an uneasy embrace, a new fiscally-driven federalism), States of Dependency beautifully and powerfully captures the intricate web of dependencies, the mode of governance at the heart of the modern American state in the ‘age of statutes.’”
—Barbara Young Welke, University of Minnesota

TOC after the jump

Hoffer, Hull Hoffer & Hull's History of the Federal Courts

Out this month from the Oxford University Press is The Federal Courts: An Essential History, by Peter Charles Hoffer, Williamjames Hull Hoffer, and N. E. H. Hull

There are moments in American history when all eyes are focused on a federal court: when its bench speaks for millions of Americans, and when its decision changes the course of history. More often, the story of the federal judiciary is simply a tale of hard work: of finding order in the chaotic system of state and federal law, local custom, and contentious lawyering. The Federal Courts is a story of all of these courts and the judges and justices who served on them, of the case law they made, and of the acts of Congress and the administrative organs that shaped the courts. But, even more importantly, this is a story of the courts' development and their vital part in America's history.

Peter Charles Hoffer, Williamjames Hull Hoffer, and N. E. H. Hull's retelling of that history is framed the three key features that shape the federal courts' narrative: the separation of powers; the federal system, in which both the national and state governments are sovereign; and the widest circle: the democratic-republican framework of American self-government. The federal judiciary is not elective and its principal judges serve during good behavior rather than at the pleasure of Congress, the President, or the electorate. But the independence that lifetime tenure theoretically confers did not and does not isolate the judiciary from political currents, partisan quarrels, and public opinion. Many vital political issues came to the federal courts, and the courts' decisions in turn shaped American politics.

The federal courts, while the least democratic branch in theory, have proved in some ways and at various times to be the most democratic: open to ordinary people seeking redress, for example. Litigation in the federal courts reflects the changing aspirations and values of America's many peoples. The Federal Courts is an essential account of the branch that provides what Massachusetts Supreme Judicial Court Judge Oliver Wendell Homes Jr. called "a magic mirror, wherein we see reflected our own lives."

TOC after the jump.

Louk on the Federalism Decisions of the Burger Court

David Scott Louk, law clerk to the Honorable James E. Boasberg, United States District Court for the District of Columbia, has posted Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court, which is forthcoming in the Yale Law Journal 125 (2016): 682-728:    

Warren E. Burger (credit)

The text of a Supreme Court opinion rarely tells the full story of the debates, discussions, and disagreements that resulted in a particular decision. Drawing on previously unexamined archival papers of the Justices of the Burger Court, this Note tells the story of the Burger Court’s federalism jurisprudence between 1975 and 1985, famously bookended by a pair of rare and abrupt reversals of Supreme Court precedent. The Note documents the Justices’ deliberations for the first time, sheds new light on the institutional workings of the Court, and enriches our understanding of the foundations of modern federalism. In its federalism cases, the Burger Court grappled with the challenge of balancing the states’ autonomy against the rise of new national problems and an expanding federal government’s solutions to them. The Justices’ papers show that they were more attuned to policy outcomes and the real-world consequences of their decisions than may typically be assumed. Above all, the papers reveal the Burger Court’s deep struggle to articulate a sustainable federalism jurisprudence given the constraints of judicial craft. As the Note concludes, however, the Burger Court’s uneven federalism experiments nonetheless laid the groundwork for the Court’s subsequent attempts to fashion more workable doctrines. The Rehnquist and Roberts Courts have adjudicated federalism disputes more effectively by avoiding impracticable doctrines and remaining mindful of the institutional limitations of courts as federalism referees.

ASLH Panel Recap: "Crime, Punishment, and Federalism"

[This ASLH panel recap comes from Sara Mayeux, a Sharswood Fellow at the University of Pennsylvania Law School and Ph.D. candidate at Stanford University]

Crime, Punishment, and Federalism: The Curious Case of the Law Enforcement Assistance Administration

If some conference panels generate synergy by bringing together papers asking similar questions across disparate times and places, this panel took the opposite tack and brought together three papers investigating one short-lived federal agency: the Law Enforcement Assistance Administration (LEAA). Established by the Safe Streets Act of 1968, LEAA required states to develop “comprehensive plans” for criminal justice policy and awarded grants to supplement the budgets of local courts, corrections agencies, and police departments. LEAA was phased out in 1982, although it has various successor entities within the Department of Justice. 

LEAA is typically remembered as a flag-bearer of the punitive, “law-and-order” turn in American social policy, and in particular, as an early harbinger of police militarization. As panel chair and commentator Elizabeth Hinton has chronicled in a recent article (and in her forthcoming book), states used LEAA grants “to increase surveillance and patrols in already-targeted black urban neighborhoods,” to acquire “military-grade weapons” for police, and to cultivate “a climate of surveillance and intimidation” in inner cities that frequently erupted into “street warfare between police and residents.” However, LEAA funded far more than paramilitary gear (especially in its later years, and especially through the component of the program that made block grants available to states to use as they saw fit), pouring federal dollars into a dizzying variety of projects related to courts, jails, and prisons. As this panel demonstrated, taking a close look some of these projects may complicate our understanding of the agency’s legacy in some ways. Overall, though, the panel confirmed LEAA’s importance in laying down political, intellectual, and material foundations for the metastasizing “carceral state.” Further study of this somewhat opaque agency promises to generate new insights not only about criminal justice policy but also about the postwar American state and the dynamics of “cooperative federalism” more generally.

Hovenkamp's Note on Patent Exhaustion and Federalism

Herbert J. Hovenkamp, University of Iowa College of Law, has posted Patent Exhaustion and Federalism: A Historical Note, on Virginia Law Review Online 2015.

This essay, written as a response to John F. Duffy and Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, ___ VA. L. REV. ___ (2015), argues that the patent exhaustion (first sale) doctrine developed as a creature of federalism, intended to divide the line between the law of patents, which by that time had become exclusively federal, and the law of patented things, which were governed by the states. Late nineteenth and early twentieth century courts were explicit on the point, in decisions stretching from the 1850s well into the twentieth century.

By the second half of the nineteenth century it was clear that federal supremacy controlled patent law, including patent infringement suits. The problem with the post-sale licensing restrictions that the patent exhaustion doctrine precluded is that enforcement of such restrictions via patent infringement suits would have applied federal supremacy so as to protect a set of practices (resale price maintenance, tying, and exclusive dealing) that state antitrust laws were just beginning to engage and often condemn. For example, if a tying or RPM restriction could be enforced via a patent infringement suit, the result would have been to preempt inconsistent state law declaring such practices anticompetitive. That was precisely the outcome that the Supreme Court reached in its Henry v. A.B. Dick decision in 1912, and that provoked Congress’ almost immediate reaction in passage of the Clayton Act.

The Purcell Backlist, Round 2

In a second round of posts to SSRN, Edward A. Purcell, Jr., New York Law School, has made available some of his more recent publications.

The Purcell Backlist

Edward A. Purcell, Jr. (credit)

Not too long ago, Edward A. Purcell, Jr., New York Law School, posted a number of items from his backlist.  If you missed some of these articles and book reviews by this masterful historian of federal courts and legal ideas, now is a good time to catch up.

Barry Friedman’s The Will of the People: Probing the Dynamics and Uncertainties of American Constitutionalism, Michigan State Law Review 2010: 663-95.

This essays examines Barry Friedman’s book, The Will of the People, and its thesis that, with lags and hesitations, the Supreme Court’s constitutional jurisprudence has increasingly adapted to the changing social and political attitudes of the American people. Noting the book’s close affinity with the work of recent scholars who argue that popular attitudes should and do have substantial influence in shaping constitutional law, the essay explores the lessons Friedman draws from his constitutional history and, in particular, the significance of four “critical periods”: the Federalist Era with its opposition to what seemed an overtly partisan Court, the first half of the nineteenth century with its widespread defiance of the federal judicial power, the long period from the Civil War to the New Deal when Americans sought to limit and control the judicial power, and the modern period that brought general acceptance of federal judicial power once it had learned to accommodate itself more closely to popular demands. The essay highlights the qualifications Friedman makes to his thesis, and it examines three particular historical issues -- the origins of the Judiciary Act of 1875, the Court’s alleged “formalism” in the late nineteenth century, and the relationship between the Court’s jurisprudence addressing racial and economic issues at the beginning of the twentieth century -- to extend and deepen Friedman’s analysis. The essay concludes by emphasizing the importance of history in enabling Americans to understand their constitutional system more realistically and thus, one hopes, to honor and maintain it more effectively.

Evolving Understandings of American Federalism: Some Shifting Parameters, New York Law School Law Review 50 (2006): 635-98:

This article examines the enduring question of the nature of the American federalism and its supposed role as a constitutional norm. It argues that federalism has not, and cannot, provide specific normative directions for resolving contested constitutional issues. The article stresses the fact that American understandings of the nation’s constitutional federalism were from the beginning sharply contested, and it explores the ways in which those understandings have remained sharply contested over the centuries. In particular, it traces changes that have occurred in ideas about the role of the Supreme Court, the “values” of federalism, the nature of federalism as a structure of government, and the very nature and meaning of the Constitution itself. The article concludes that “originalist” ideas misunderstand the nature of the federal system and that no “originalist” theory can either capture the reality of American constitutional federalism or provide specific normative direction to resolve the contemporary problems it confronts. Rather, American constitutional federalism must be understood as an evolving national enterprise guided generally by certain basic, if contested, values and principles and that those values and principles endure and give the system its true meaning.

Barrett on Jackson on Federal Prosecution, 1940

Attorney General Jackson (LC)

John Q. Barrett’s posts on Robert H. Jackson are always interesting, but his latest, on Jackson’s “Federal Prosecutor” address of April 1, 1940, is especially so.  It provides a window into the politics of the Department of Justice in 1939-40 and, by reproducing a letter from Gordon Dean to Jackson and Jackson’s speech, explains when Main Justice would exercise “centralized control” over prosecution and suggests a new emphasis on respecting civil liberties in law enforcement.  “Those who are in office are apt to regard as ‘subversive’ the activities of any of those who would bring about a change of administration,” Jackson reminded the assembled US Attorneys.  “Some of our soundest constitutional doctrines were once punished as subversive.”

Sunday Book Roundup

This week there's a review of Who Cooked Adam Smith's Dinner? (Portobello Books) written by Katrine Marcal and translated by Saskia Vogel in the New Statesman.

Lucy Stone: An Unapologetic Life by Sally G. McMillen (Oxford University Press) is reviewed by Janet Napolitano in the Los Angeles Times.

"Elizabeth Cady Stanton, Lucretia Mott and Susan B. Anthony are memorialized as leading suffragists in a marble statue in the Rotunda in our nation's Capitol. In this thought-provoking new biography, Sally G. McMillen argues persuasively that one person is missing from that Mt. Rushmore of women: Lucy Stone."

Napolitano has another review in The Washington Post, "Higher education isn't in crisis," which reviews two books: Ryan Craig's College Disrupted: The Great Unbundling of Higher Education (Palsgrave) and Kevin Carey's The End of College: Creating the Future of Learning and the University of Everywhere (Riverhead).

Leonard L. Richards's Who Freed the Slaves? The Fight Over the Thirteenth Amendment (University of Chicago Press) is reviewed by the Washington Independent Review of Books.

In Salon there is an excerpt, "Religious Ignorance kills kids: How two Richard Nixon aides sneakily altered a law that still costs children's lives," from Bad Faith: When Religious Belief Undermines Modern Medicine (Basic) by Paul Offit.

There's a new issue of Common-Place up online here, with a review of Cornelia H. Dayton and Sharon V. Salinger's Robert Love's Warnings: Searching for Strangers in Colonia Boston (University of Pennsylvania Press).

"Historians have perceived warning, which was distinctive to New England, as an expression of the region's distaste for outsiders and stinginess with relief for the poor. Some scholars have interpreted the concept literally—as physical banishment of those who did not have legal habitancy in the towns from which they were being warned. Other scholars have recognized that warning did not require eviction, but they have nonetheless misunderstood its purpose, presuming that declarations like Love's were intended to inform sojourners that they were not legal inhabitants of the town and therefore could not receive poor relief. Dayton and Salinger, however, expose the limits of these conventional interpretations of warning. New Englanders were no xenophobic penny-pinchers, they argue; on the contrary, the region's warning system was integral to what was arguably the most generous welfare system in the British Empire."

Barney Frank's memoir, Frank: A Life in Politics From the Great Society to Same-Sex Marriage (Farrar, Straus and Giroux) is reviewed in The Washington Post.

Knapp on the Judicialization of Police

Aaron T. Knapp, a doctoral candidate in Boston University’s Department of History, has posted The Judicialization of Police, which is forthcoming in Critical Analysis of Law 2 (2015).  Here is the abstract:    

This article contends that the origins of judicial review under the United States Constitution lay not in the common law, nor in “judicial duty,” natural law, popular sovereignty, or written constitutions, but rather in police powers handed down from the monarchial tradition conceived as a constituted government’s inherent prerogative of self-preservation. Nationalists at the Federal Convention in 1787 wanted to give Congress such a prerogative in the form of an unqualified preemptive negative on state legislation. They did not succeed. Yet with the adoption of an independent supremacy clause, the superintending police powers originally embodied in the congressional negative devolved on the courts and, ultimately, the Supreme Court. Questions remained whether the Court could in fact exercise such powers consistent with Article III’s jurisdictional limitations and, later, the Eleventh Amendment’s bar on state suability. With these questions in mind, the analysis devotes special attention to the first case in which the Supreme Court struck down a state law under the Supremacy Clause: Ware v. Hylton (1796). The article concludes, however, that the judicialization of police at the American founding would find its most potent historical expression in the Court’s prospective remedial powers over state enforcement officials first reserved by the Marshall Court and later confirmed in Ex Parte Young (1908).

Sunday Book Roundup

Dissent has a review by Samuel Moyn titled, "Fantasies of Federalism," which reviews both Frederick Cooper's Citizenship between Empire and Nations: Remaking France and French Africa, 1945-1960 (Princeton University Press) and Gary Wilder's Freedom Time: Negritude, Decolonization, and the Future of the World (Duke University Press).

On Books & Ideas, Olivier Burtin reviews Let Us Fight as Free Men: Black Soldiers and Civil Rights by Christine Knauer (University of Pennsylvania Press).

"The greatest scholarly contribution of Let Us Fight as Free Men, its emphasis on discourse and textual analysis, is also the source of its greatest limitation. By focusing so much on what her actors said, Knauer often either forgets to provide the necessary contextual information—for instance when she mentions the first victory in Korea by an all-black unit in July 1950 (p. 175) without telling us exactly how this victory came about—or, inversely, dwells on topics that seem only loosely connected with the main theme of her story—as is the case with her lengthy discussion of how the black press fell victim to Orientalist clichés in its coverage of South Korean soldiers and women (pp. 153-159). The result is a book whose narrative thread may be difficult to follow for readers not already familiar with the details of this time period."

The Federal Lawyer has new reviews this week, including one of a volume edited by John Oberdiek, Philosophical Foundations of the Law of Torts (Oxford University Press) and another review of Sotirios Barber's The Fallacies of States' Rights (Harvard University Press). Both reviews are available here.

The Los Angeles Review of Books has a review of Robert P. Burns's Kafka's Law: The Trial and American Criminal Justice (University of Chicago Press).

"JUSTICE ANTHONY KENNEDY once famously suggested that the procedural nightmare depicted in Franz Kafka’s The Trial “is actually closer to reality than fantasy as far as the client’s perception” of our criminal justice system. In his short but dense work, Kafka’s Law: The Trial and American Criminal Justice, Robert P. Burns takes the comparison further, beyond the client’s perception to the realities of our system itself. This is a deeply pessimistic study about the way justice is meted out in this country. "

The New Books series has an interview with Keith Wailoo about his new book, Pain: A Political History (Johns Hopkins University Press) and another interview with Jan Lemnitzer about his book, Power, Law and the End of Privateering (Palgrave).

There are two reviews of Jill Leovy's Ghettoside: A True Story of Murder in America (Random House), one in the Los Angeles Times and a second in The New York Times. The former says of the book,

""Ghettoside" is her penetrating look at the Los Angeles Police Department — the title is taken from the nickname a Watts gang member gave to his neighborhood. A staff writer at the L.A. Times and the creator of a popular blog, Homicide Report, Leovy is not a newcomer to crime reporting. In "Ghettoside," she adopts an anthropologist's gaze to unravel the workings of this tribe. She tracks the daily movements of homicide detectives working cases that rarely attract the media spotlight. Think "Boyz N the Hood," not "Chinatown" and "L.A. Confidential." This is gritty reporting that matches the police work behind it."

On H-Net, Karen J. Alter's The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press) is reviewed.

"Karen J. Alter’s The New Terrain of International Law explores the immense contribution that international courts and tribunals provide in the development and strengthening of international law and international politics. In doing so, Alter, a professor of political science and law at Northwestern University, builds from an impressive amount of historical, political, and legal data. Alter starts from the observation that the proliferation of international courts and tribunals is a real paradigm changer for international law, and, importantly, she seeks to conceptualize how these new-style international courts affect domestic and international politics across different states, courts, cases, and issues."

Walsh on Supreme Court Review of State Criminal Prosecutions

Kevin C. Walsh, University of Richmond School of Law, has posted In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions.  Here is the abstract:

It seems so obvious that the Supreme Court needs to have appellate jurisdiction to review state criminal prosecutions that involve questions of federal law that everybody assumes the Court has always possessed this jurisdiction. But it was not always so. This article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that Section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions rejecting federal-law-based claims of right, immunities, or defenses.

Section 25 is one of the most important provisions of the original judiciary act that gave enduring institutional shape to a federal court system incompletely constructed by Article III. In the landmark 1821 case of Cohens v. Virginia, the Supreme Court held, as a constitutional matter, that the Supreme Court could engage in appellate review of state criminal prosecutions that fit within Article III’s extension of the federal judicial power to cases arising under federal law. The claim that the Court categorically lacked statutory jurisdiction over state criminal prosecutions under Section 25 was neither raised nor decided. And for almost two centuries nobody has thought to examine the issue despite the obvious importance of correctly understanding this key provision of the foundational statute for federal jurisdiction.

Building on commentaries by a contemporary critic of Cohens, the astute and once-eminent (but now obscure) Charles Hammond of Ohio, this article offers a combination of neglected arguments and newly discovered evidence tending to establish that Section 25 did not encompass Supreme Court appellate review of state criminal prosecutions. This article’s rediscovery of civil-only Section 25 and its recovery of Charles Hammond’s constitutional vision not only have immediate implications for ongoing scholarly debates over the extent of congressional control over federal jurisdiction, but also have potentially wide-ranging import for generating new insights into the liquidation of Article III and the constitutional construction of the federal judiciary.