Feminism and Smoking in the 20th Century

On September 16, 2009, Sharon Cook (Education, University of Ottawa) will be speaking at the Ottawa Historical Association meeting at the Library and Archives Canada in Ottawa. Her topic is "Constructing the Modern Canadian Woman Smoker, 1970-1990." Here's a short description of her talk:

In previous eras and coupled with other social forces, smoking had given women an air of authority, even insouciance. In the “Age of Aquarius” it served a similar purpose of offering liberated modern women the visual means to telegraph similar types of authority. The alignment of smoking with the women’s movement became a staple of visual culture. Produced about and by feminists, it took hold so firmly in popular cultural products like women’s magazines, advertisements, television and film representations that the dangers of smoking were masked by the powerful cultural messages culminating in the second wave of feminism. Using many of the same techniques that had been honed by the end of World War Two, advertisers and other cultural architects added to the stock-in-trade approaches by presenting the liberated woman smoker as an iconic image for the modern age. This paper explores ways in which feminism became closely linked with smoking between 1968 and 1990.

Dr. Cook's webpage is here.

I remember clearly the Virginia Slims "You've come a long way, baby" ads. The suggestion that women's progress meant freedom to smoke was hardly subtle. Virginia Slims was one of the early corporate sponsors of women's professional tennis, too. Martina Navratilova's first #1 ranking came in 1978 after she won the Virginia Slims tournament (she won Wimbledon that year, too).

Who Will Write the History of the Women's Court?

As Mary mentioned, I coedit, with Thomas Green of the University of Michigan Law School, Studies in Legal History, a book series sponsored by the American Society for Legal History and published by the University of North Carolina Press. The appearance of Kelly Mitchell’s paper, “To Hell With Women Magistrates": An Examination of Women Magistrates and the Woman’s Court in Alberta, Canada, 1917-1932" in Mary’s post on this year’s Berkshire Conference on the History of Women reminds me that the women’s court in the United States and Canada would be a terrific topic for a book. I know of Amanda Glasbeek’s dissertation, “A Justice of Their Own: The Toronto Women's Court, 1913-1934" (York University, 2003), and article, “Maternalism Meets the Criminal Law: The Case of the Toronto Women's Court,” 10 Canadian Journal of Women and the Law 480 (1998), student papers on Georgia Bullock, who presided over Los Angeles’s women’s court, in the Stanford Women’s Legal History Biography Project, and a discussion in Virginia Drachman’s article on “New Woman” lawyers in the Indiana Law Review (1995). I’m sure I’m missing other treatments--apologies in advance to their authors--but, even so, isn’t this a topic that would repay further study at book length, especially if undertaken comparatively?

After all, the “socialized courts” of the Progressive Era are back, in the guise of Domestic Violence Courts, Drug Courts, and Mental Health Courts. Michael Willrich’s prize-winning study of Chicago’s Municipal Court and a host of works on juvenile courts (my favorite is David Tanenhaus's Juvenile Justice in the Making) have put the histories of those institutions before today’s “judicial statebuilders.” Surely the history of the women’s court would be no less instructive.

"Warehouses: Who Knew?"

Thus did Gautham Rao, a doctoral candidate in the University of Chicago’s history department, begin his presentation at a session on “Political Economy in Nineteenth-Century America” at last weekend’s Policy History Conference in Clayton, Missouri. I’m not a regular at this meeting, but I gather that specialists on earlier eras often protest, with varying degrees of equanimity, that the program tilts too heavily to the latter half of the twentieth century. (The joke at the plenary, “How Does the Nineteenth Century Matter?” was that the word "How" had been omitted in the original title for the session.)

For all that, a respectable crowd assembled for the 8:30 A.M. session, which consisted of a paper by Sharon Ann Murphy (Providence College) on antebellum regulation of life insurance through New York’s chancellor, Joshua Salzman (University of Illinois at Chicago) on the great public trust case of Illinois Central v. Illinois, and two papers on the Warehousing Act of 1846, one by Rao and one by Phillip W. Magness, a graduate student in public policy at George Mason. Robin Einhorn (UC-Berkeley) provided a penetrating comment; Mark W. Summers (University Kentucky) presided.

It was a surprise that a topic as obscure as the warehousing act could be so illuminating. As Magness lucidly explained, the statute allowed importers to delay payment of customs for as long as a year by storing their goods in warehouses. They could take their time in finding the best deal; they could also re-export the goods to Canada or Latin America without paying the import duty. Previously, merchants had to pay at once, and most took out loans from the Bank of the United States or, after its demise, private lenders. After the passage of the 1846 act, the United States, in effect (and in Rao’s words), “subsidized time.”

Magness called the act an early and overlooked example of a public policy promoting economic markets. He stressed the role of Polk’s Treasury Secretary Robert J. Walker (pictured at left) as a “policy entrepreneur” in implementing the act. Rao related the measure to the argument of his forthcoming dissertation on the “mercantile state,” a thoroughly researched, intellectually ambitious, and vividly illustrated work-in-progress that will complement Richard John’s and William Novak’s on-going quarrel with the description of the American polity of the nineteenth century as a state of courts and parties. Although proponents of the warehousing act were savvy enough to justify it in Jacksonian terms as a boon to the “younger and more numerous” members of the mercantile class, in fact it led to the concentration of commerce in major ports and merchant houses and remade the urban landscape, as massive warehouses suddenly appeared near the wharves. The contemporary significance of a measure that was justified on the grounds of “national security and national welfare" but also favored powerful economic actors was not lost on the audience.

In her comment, Einhorn, in effect, asked, “Warehouses: Why Now?” Until recently a panel on nineteenth-century political economy would have centered on railroads, those great domestic engines of economic growth and the subject of a marvelous book by the chair of the session. But although a railroad figured in Salzman’s paper and Murphy discussed another domestic force, the insurance industry, ports and the shaping influence of international trade dominated the session. Historians of nineteenth-century public policy, it seems, are joining such scholars of American political development as Ira Katznelson and Martin Shefter in taking the transnational turn.

On "Cashing Out" and the spread of Econo-Speak

You've heard it over and over: the result of a legal argument is described as the way something is "cashed out." This sort of language appears in law workshops and papers that have nothing to do with cash registers, cash itself, or even economic analysis. I've heard this kind of argument made by legal historians taking about basic historical questions.

Lawrence Solom offers an example, in an interesting new paper just noted here. The abstract makes a common move, although it is unclear whether the cash analogy originates from Steven D. Smith, whose work he describes, or from Solom: "Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors. This essay examines that claim in depth and argues that Smith's view is mistaken" (emphasis added).

Perhaps the desire to speak of cashing things out simply illustrates the way that in law school environments, which are inherently multidisciplinary, non-economists pay attention to the work of their economist colleagues, and end up picking up their way of speaking. Sort of the way a child might pick up a regional accent while at summer camp, but without losing his own cultural identity. Or perhaps it suggests something more, that thinking and speaking in economic terms has increasingly become a mode of discourse within the legal academy. A worldview. A conceptual universe, so that only those problems that fit, or are discernible, within that universe are seen as important. If it doesn't "cash out" in a positive way, why are you talking about it?

It seems at least worth reflecting on this, and whether or not it is a good thing. If anyone is tracking, and writing about, the ubiquity of econo-speak in recent legal scholarship, I would be interested to know about it.

Hayward on Gordon Wood's Republicanism

Stephen Hayward has an essay, "The Liberal Republicanism of Gordon Wood," in the Winter 2006 issue of the Claremont Review of Books. He begins:

Gordon Wood is the favorite historian of America's liberal establishment. His essays appear regularly in the New York Review of Books and the New Republic, and liberalism's leading intellectuals—from Michael Sandel to Morton Horwitz to Bruce Ackerman to Cass Sunstein—regularly cite him with approbation. What virtues do they see in his work? In Wood's books, particularly his Creation of the American Republic, 1776-1787, they see a hammer with which to bash American individualism and capitalism, and to support an ever-growing administrative state.

Wood says that the American Revolution was a "republican" revolution. By that he means that it had intellectual roots ranging from ancient Greece and Rome to the English Commonwealth, and that it was more communal than capitalistic. "Ideally," he writes, "republicanism obliterated the individual." ...

For the rest, click here.

Thanks to Cliopatria for the tip.

Recent Scholarship in Legal and Constitutional History

The Journal of American History is no longer publishing lists of recent scholarship in each issue. Instead, recent scholarship is more easily available on-line. The Recent Scholarship page is here. For each issue, the list is broken down by subject area. The December list of recent scholarship in Legal and Constitutional History is here. Highlights include:

• Finkelman, Paul, “Thomas Jefferson, Original Intent, and the Shaping of American Law: Learning Constitutional Law from the Writings of Jefferson,” New York University Annual Survey of American Law, 62 (no. 1, 2006), 45–84.
• Harris, Angela P., “From Stonewall to the Suburbs? Toward a Political Economy of Sexuality,” William & Mary Bill of Rights Journal, 14 (April 2006), 1539–82.
• Hobson, Charles F., “Defining the Office: John Marshall as Chief Justice,” University of Pennsylvania Law Review, 154 (June 2006), 1421–61.
• Mashaw, Jerry L., “Recovering American Administrative Law: Federalist Foundations, 1787–1801,” Yale Law Journal, 115 (April 2006), 1256–1344.
• Wexler, Natalie, “In the Beginning: The First Three Chief Justices,” University of Pennsylvania Law Review, 154 (June 2006), 1373–1419.
• White, G. Edward, “The Internal Powers of the Chief Justice: The Nineteenth-Century Legacy,” University of Pennsylvania Law Review, 154 (June 2006), 1463–1510.
• Harrigan, James R., “The Legal Context for Revolution: Common, Constitutional, and Natural Law in the American Colonies, 1760–1776” (Claremont Graduate University, 2006). Order No. DA3192282.
• Birdnow, Brian E., Communism, Anti-Communism, and the Federal Courts in Missouri, 1952–1958: The Trial of the St. Louis Five. (Lewiston, N.Y.: Mellen, 2005. iv, 227 pp. $109.95, isbn 0-7734-6101-9.)
• Kahn, Ronald, and Ken I. Kersch, eds., The Supreme Court and American Political Development. (Lawrence: University Press of Kansas, 2006. x, 494 pp. Cloth, $45.00, isbn 0-7006-1438-9. Paper, $19.95, isbn 0-7006-1439-7.)
• Killenbeck, Mark R., M’Culloch v. Maryland: Securing a Nation. (Lawrence: University Press of Kansas, 2006. xii, 227 pp. Cloth, $35.00, isbn 0-7006-1472-9. Paper, $16.95, isbn 0-7006-1473-7.)
• Ritter, Gretchen, The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order. (Stanford: Stanford University Press, 2006. xiv, 381 pp. Cloth, $70.00, isbn 978-0-8047-5378-4. Paper, $29.95, isbn 978-0-8047-5438-5.)

Barrett on Jackson and the Holocaust Evidence

From John Barrett, the gifted biographer of Justice Robert Jackson, came this message today, to his Jackson List:

As we close a week that included the Iranian government’s historically and morally absurd conference purporting to examine whether there was a Holocaust, it is well to remember that undeniable knowledge of the Holocaust is rooted deeply in the work 61 years ago of Justice Robert H. Jackson and his United States and Allied colleagues at Nuremberg, Germany.

On October 6, 1945, Justice Jackson and his counterpart chief prosecutors from France, the Soviet Union and the United Kingdom signed at Berlin the indictment on which Nazi defendants soon were brought to trial at Nuremberg before the International Military Tribunal. The indictment charged twenty-four persons and six organizations with the principal crime of engaging in a common plan or conspiracy to commit crimes against peace, war crimes and crimes against humanity. The indictment also charged most defendants with specific crimes against peace, war crimes and crimes against humanity.

This indictment was the first governmental document to use the new word “genocide.” The indictment charged the Nazi “annihilation” of European Jewry in stark, numerical terms: “Of the 9,600,000 Jews who lived in parts of Europe under Nazi domination, it is conservatively estimated that 5,700,000 have disappeared, most of them deliberately put to death by Nazi conspirators. Only the remnants of the Jewish population of Europe remain.”

On November 21, 1945, Jackson delivered his opening statement before the IMT at Nuremberg. In a long section captioned "Crimes Against the Jews," Jackson described what the evidence would show:

The most savage and numerous crimes planned and committed by the Nazis were those against the Jews. Those in Germany in 1933 numbered about 500,000. In the aggregate, they had made for themselves positions which excited envy, and had accumulated properties which excited the avarice of the Nazis. They were few enough to be helpless and numerous enough to be held up as a menace.

Let there be no misunderstanding about the charge of persecuting Jews. What we charge against these defendants is not those arrogances and pretensions which frequently accompany the intermingling of different peoples and which are likely, despite the honest efforts of government, to produce regrettable crimes and convulsions. It is my purpose to show a plan and design, to which all Nazis were fanatically committed, to annihilate all Jewish people. These crimes were organized and promoted by the Party leadership, executed and protected by the Nazi officials, as we shall convince you by written orders of the Secret State Police itself.

The persecution of the Jews was a continuous and deliberate policy. It was a policy directed against other nations as well as against the Jews themselves. Anti-Semitism was promoted to divide and embitter the democratic peoples and to soften their resistance to the Nazi aggression. …

Anti-Semitism also has been aptly credited with being a "spearhead of terror." The ghetto was the laboratory for testing repressive measures. Jewish property was the first to be expropriated, but the custom grew and included similar measures against anti-Nazi Germans, Poles, Czechs, Frenchmen, and Belgians. Extermination of the Jews enabled the Nazis to bring a practiced hand to similar measures against Poles, Serbs, and Greeks. The plight of the Jew was a constant threat to opposition or discontent among other elements of Europe's population—pacifists, conservatives, Communists, Catholics, Protestants, Socialists. It was in fact, a threat to every dissenting opinion and to every non-Nazi's life.

The persecution policy against the Jews commenced with nonviolent measures, such as disfranchisement and discriminations against their religion, and the placing of impediments in the way of success in economic life. It moved rapidly to organized mass violence against them, physical isolation in ghettos, deportation, forced labor, mass starvation, and extermination. The Government, the Party formations indicted before you as criminal organizations, the Secret State Police, the Army, private and semi-public associations, and "spontaneous" mobs that were carefully inspired from official sources, were all agencies that were concerned in this persecution. Nor was it directed against individual Jews for personal bad citizenship or unpopularity. The avowed purpose was the destruction of the Jewish people as a whole, as an end in itself, as a measure of preparation for war, and as a discipline of conquered peoples.

The conspiracy or common plan to exterminate the Jew was so methodically and thoroughly pursued, that despite the German defeat and Nazi prostration this Nazi aim largely has succeeded. Only remnants of the European Jewish population remain in Germany, in the countries which Germany occupied, and in those which were her satellites or collaborators. Of the 9,600,000 Jews who lived in Nazi-dominated Europe, 60 percent are authoritatively estimated to have perished. Five million seven hundred thousand Jews are missing from the countries in which they formerly lived, and over 4,500,000 cannot be accounted for by the normal death rate nor by immigration; nor are they included among displaced persons. History does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty.

In the ensuing, early days of the trial, the United States presented much of its evidence concerning the first and central count in the case, the common plan and conspiracy to commit crimes against peace, war crimes and crimes against humanity. The evidence consisted of voluminous Nazi documents that had been captured, translated, analyzed and organized by the Allies. The evidence was summarized in trial briefs that Jackson’s senior assistants read before the IMT, the defendants and, given the public nature of the trial, the world press corps.

On the afternoon of Thursday, November 29, 1945, which was the eighth trial day, Jackson’s assistant Sidney S. Alderman announced to the Tribunal that he would at that point present motion picture evidence. Thomas J. Dodd, another U.S. prosecutor, explained that the evidence, which had already been screened for defense attorneys, was

documentary film on concentration camps. This is by no means the entire proof which the prosecution will offer with respect to the subject of concentration camps, but this film which we offer represents in a brief and unforgettable form an explanation of what the words "concentration camp" imply.

Dodd then introduced his colleague Commander James B. Donovan (USNR). “The United States,” said Donovan,

now offers in evidence an official documentary motion picture report on Nazi concentration camps. This report has been compiled from motion pictures taken by Allied military photographers as the Allied armies in the West liberated the areas in which these camps were located. The accompanying narration is taken directly from the reports of the military photographers who filmed the camps. ...

After the courtroom lights were dimmed, U.S. personnel played one hour of film. It primarily depicted concentration camp conditions, including emaciated, brutalized survivors in the midst of many, many corpses, at the times of their liberation. It included movie footage of concentration camps at Leipzig, Pegnig, Ohrdruf, Hadamar, Breendonck, Hannover, Arnstadt, Mauthausen, Buchenwald, Dachau and Belsen. It also included German photographs that had been captured by the Soviets, including photographs of mutilated concentration camp prisoners, of executions and mutilations of Slovenian partisans, and of Auschwitz. The film also included French photographs of tortured prisoners, bodies and concentration camp conditions.

...A coincidence to consider, for today and for history, is that in 1945, November 29th on the Julian calendar was also, on the Jewish calendar, the 25th day of Kislev, the third month. It thus marked the first night of Chanukah, a holiday celebrating Jewish survival.

In the Nuremberg trial process, most participants were non-Jews. Many probably did not reflect on the coincidence, and frankly on the stark juxtaposition, of the showing of the concentration camp film evidence concluding as the sun set and Chanukah thus began. The film evidence also was, by itself, fully absorbing and deeply disturbing material for reflection—Lord Lawrence was so upset that after court he initially could not take his tea; the American judges, Francis Biddle and John Parker, spoke that evening about how the film had horrified every judge.

But some “Nurembergers” were attentive to direct connections between their trial work and the circumstances in which the surviving Jews of Europe—the “remnants”—now lived. Major Joseph Dainow, for example, a lawyer on Jackson’s staff who had assembled key parts of the documentary evidence that Alderman had presented to the Tribunal earlier in the week, was a Jew who was, alongside his legal work, doing what he could to assist Jewish survivors in the immediate area.

On that Thursday evening, Major Dainow went to services at the synagogue in Fürth, just two miles from the Palace of Justice where the trial was occurring and the prisoners were held, for the lighting of the first Chanukah candle. Dainow, a father away from his own young children, gave the man in charge a package for the children of congregation. The package was filled with candy rations and chocolate bars that Dainow had been saving for weeks. The man was grateful but also concerned to comply exactly with Dainow’s wishes. Children “up to what age?,” he asked. No limit, Dainow replied, and he told the man to use his own judgment.

Tonight Jews around the world, including in Fürth and in Nuremberg and in Iran, will light the first Chanukah candle. May their candles, and all human judgment, burn brightly.

For a link to other posts by Barrett on Robert Jackson, and information about the Jackson List, go here.

Down with Interdisciplinarity? Or Up with Legal History?

An article being discussed in the blogosphere (e.g. Leiter Reports) is Anthony D'Amato, The Interdisciplinary Turn in Legal Education. At a time when an increasing number of law school hires have Ph.D.s, D'Amato argues against interdisciplinarity.

One of D'Amato's claims is that disciplines are like sects.

"Disciplines and sects share the trait that their primary audiences are themselves. They proselytize their own initiates at great lengths before even thinking of proselytizing outsiders. Internal reiteration and refinement of the discipline’s core ideas always take priority." (18)

Hmmm. It seems to me that in history, if anything the current criticism is that historians are spending too much time speaking to outsiders. The question instead has been whether the pressures to write for a broader public undermine the careful practice of history.

But perhaps D'Amato is not talking about historians. As Dan Markel notes, D'Amato's own examples of what law teaching requires repeatedly invoke questions of legal history.

Here's D'Amato: "How many law teachers understand the origins of the jury system and the evolving bifurcation of facts and law (which remains an issue today in the phrase “a mixed question of fact and law”)? How many know that the early jurors asked questions of the parties and their attorneys, and were accustomed to going around the neighborhood interviewing citizens and poking into evidence? How many are aware of the self-protective reaction of the judges in turning to formalism?"

While he warns against "history for history’s sake," the bottom line is that his attack on the disciplines that inform legal scholarship turns out, instead, to be an embrace of just one: legal history.

Saul Cornell on HNN

There is a feature on Second Amendment scholar Saul Cornell, Ohio University, at History News Network, which profiles "Top Young Historians." (Middle-aged folks, at least to a point, get to be young again for HNN. So if youth is your goal, be a historian.) Cornell is the author of A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America and The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828.

Cornell commented: "No matter what aspect of the gun issue you work on you inevitably run into people with pretty strong feelings. I think it is safe to say that if I had written a history of the 3rd Amendment, I would not get angry e-mails from people with names like “glockboy@gunnet.com” or have bloggers with names like, “geek with an uzi” denounce me as part of some insidious conspiracy."

And here's one of the blurbs about his 2nd Amendment book: "Cornell is, with Jack Rakove, one of the two leading interpreters of the Second Amendment. Historian Saul Cornell, who declares that the originalist argument for the individual rights approach is based on a false reading of the legislative history and legal context. Cornell therefore might simply accept Rakove's modest view of the positive role of the Amendment. However, Cornell also temptingly suggests that some "new paradigm" of Second Amendment scholarship may emerge, one that views the right to bear arms as neither collective nor individual but rather as a "civic right," in the nature of a civic republican right to be exercised by those "capable of exercising it in a virtuous manner." There is something ironic about a key part of Cornell's thesis. In his deft and lawyerly arguments for the originalist collective rights view, Cornell underscores the later eruption of individual rights rhetoric in nineteenth-century state constitutions in order to stress the absence of any such view in 1791 -- Stanford Law Professor Robert Weissberg, Edwin Huddleston Professor of Law in a recent review of the state of the scholarly debate on the Second Amendment

For the rest, click here.

Fisher on Friedman: The Historian in the Cellar

"Get out of the light, Lawrence Friedman has told legions of legal historians, and go down to the cellar. Upstairs you'll find only the history of appellate law....But the law of society—the law as it’s lived—is not the law made by common law judges, or even elected lawmakers, who leave their tracks above ground. It is instead the shadow of that law, cast across the streets and shops and tenements of town. The stuff of the law, especially criminal law, concerns those dredged up from the bottom of society. And they leave their tracks in the cellar."

"So down he went."

And so begins George Fisher's marvelous essay, The Historian in the Cellar, on Lawrence Friedman and his work, available on-line in the current issue of the Stanford Law Review.

Bilder on the Origins of Judicial Review

Mary Sarah Bilder's important reinterpretation of early U.S. constitutional history, The Corporate Origins of Judicial Review, has been published in the Yale Law Journal and is available on-line here. Here's the abstract:

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to the Constitution—what is now referred to as judicial review. This history helps to resolve certain debates over the origins of judicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation must not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution.