Baker reviews Killenbeck, M'Culloch v. Maryland: Securing a Nation

Mark R. Killenbeck, M'Culloch v. Maryland: Securing a Nation (University Press of Kansas, 2006) is reviewed for H-Law by H. Robert Baker, Georgia State University. Baker begins:

Along with John F. A. Sanford (of Dred Scott fame), James W. McCulloh must stand as the most famous man to lend his misspelled name to the Supreme Court canon. His case, McCulloch v. Maryland, put the Supreme Court's stamp of approval upon Congress's power to incorporate banks and on a Hamiltonian interpretation of the Constitution. The import of the decision was far greater than this, and it is doubtless one of Chief Justice John Marshall's gems. In his new survey of the case, Mark R. Killenbeck's examines the particulars of the opinion of the court and the storied newspaper exchange between Marshall and Spencer Roane (pseudonymous, of course) over merits of the decision. He also reveals the human side of the story in the shady dealings of James McCulloh as cashier of the Baltimore branch of the Bank of the United States and his quest for personal redemption.

As a survey designed to introduce readers to the case, this book has significant strengths. Killenbeck grounds his study in the familiar story of the constitutional controversy over the creation of the national bank in 1791. Hamilton and Jefferson's arguments are carefully reproduced, as are the debates in Congress. The narrative then follows the bank's life and eventual death in1811, and the creation of the second Bank of the United States in 1816.

This is, of course, the standard narrative leading up to the Supreme Court's handling of McCulloch v. Maryland. More impressively, Killenbeck takes seriously the range of constitutional arguments presented outside the Court. He gives ample time to the 1794 Senate debate of a constitutional amendment limiting the power of Congress to incorporate banks. He links this, albeit indirectly, with the controversial Alien and Sedition Acts, the Virginia and Kentucky resolutions, and the constitutional crisis they engendered before the election of 1800. This is a welcome contextualization of the bank controversy as one battle among many in a long constitutional war, and Killenbeck does a great service in recreating the political climate of the early republic.

He also demystifies the Supreme Court's role in the process. The bank controversy was not a three-decade dispute seeking judicial resolution, but an ongoing constitutional disagreement that involved every branch of the government. Implicit in Killenbeck's narrative is the understanding that the Supreme Court was in no position to weigh in authoritatively on the subject during the 1790s. Things were different by 1819, but only because of the conscious workings of the Court's chief justice since 1801, John Marshall. In a valuable chapter, Killenbeck describes Marshall's efforts to transform the Supreme Court into a coequal branch of government that might speak with some authority on serious constitutional controversies. Coverage is given to Marshall's strong opinions in Marbury v. Madison (1803), Fletcher v. Peck (1810), as well as the trio of decisions of which McCulloch (1819) was a part(along with Dartmouth College and Sturges v. Crowninshield, both decided in1819). But this is not just intellectual history. Readers will encounter the boardinghouse in which all justices lived, the galleys of the Supreme Court packed to hear oral arguments by Daniel Webster, and snippets of the Washington social scene. These elements are not added just to color to the narrative. As Killenbeck makes clear, such matters impinged directly on Marshall's ability to mold the Court to his liking and upon the country's reception of the Court's decisions.

To continue reading (recommened -- more to come), click here.

Tate on Christianity and the Legal Status of Abandoned Children in the Later Roman Empire

Joshua C. Tate, Southern Methodist University, Dedman School of Law (Visiting at the Univ. of Pennsylvania), has another new piece, Christianity and the Legal Status of Abandoned Children in the Later Roman Empire. It is forthcoming in the Journal of Law and Religion. Here's the abstract:

Late Roman imperial legislation relating to abandoned or exposed children has been the subject of much debate. Some have argued that the constitutions of Constantine relating to abandoned children marked a new Christian influence, and that the years between Constantine and Justinian merely refined and explained Constantine's legislation.

This paper argues that the legislation of Constantine was not distinctly Christian in content, but that some Christian influence can be seen in the rhetoric of imperial constitutions beginning in the fifth century, and that Christian ideas seem to have affected both the substance and the rhetoric of Justinian's legislation. The paper examines ideas relating to adoption in the New Testament and the writings of the church fathers, and considers the extent to which these ideas may have made an impact on the constitutions of the late Roman emperors. Particular emphasis is given to the use of the word misericordia in a constitution of Honorius to refer to the actions of the collector of abandoned children, as well as the notion, in Justinian's legislation, that adoption entails freedom. The paper concludes that the religious discourse of late antique Christianity shaped the theory, if not the practical effect, of imperial legislation relating to abandoned children.

Chen, Clash of Empires in the Realm of Law and History: A Case Study of the Sino-British Legal Dispute in 1784

Li Chen, Columbia, has posted a new paper, Clash of Empires in the Realm of Law and History: A Case Study of the Sino-British Legal Dispute in 1784. Here's the abstract:

Chinese law, Chinese sovereignty, and Chinese history are inseparably intertwined with one another in the issue of Western extraterritoriality. Pre-1840 Sino-British/Western legal disputes have been cited by numerous commentators and historians to explain or defend Western extraterritoriality in China from 1842 to 1943 as well as Western resistance to Chinese law and jurisdiction before that. Spearheading this enterprise, the British had primarily relied upon the Lady Hughes case in Canton in 1784 to argue that Chinese law was too arbitrary, sanguinary, and barbaric to govern Westerners in China. This discourse acquired such a hegemonic, epistemic status that scholars over the next two centuries have rarely questioned it. Utilizing both original English and Chinese records, this paper for the first time provided a detailed, critical reexamination of this landmark international dispute and its far-reaching historiographic impact. It argues that the centuries-long discourse of Chinese injustice and legal barbarity was largely constructed to retrospectively justify the British request for extraterritoriality in China. Unlike the traditional, simplistic narratives, this case study as a micro-history sheds fresh light on the complex process of negotiations and contestations between two empires and their respective agents in South China, with conflicting claims for sovereignty and imperial honor. It illustrates how much such power politics shaped our inherited knowledge of Chinese legal and political traditions and of early modern Sino-Western relations.

Esquirol on law in Latin America and the role of Alejandro Alvarez: A Question of Identity

Jorge Luis Esquirol, Florida International University, has posted an abstract for a new paper, Alejandro Alvarez: A Question of Identity. The paper is not posted, but the author can be reached through his SSRN page. Here's the abstract:

Alejandro Alvarez is the grand architect of Latin American International Law. His work asserts the separate identity of law in Latin America. More than just a style or an approach, Alvarez's Latin American law consists of specific rules and doctrines which he characterized as particularly salient, if not exclusive, to Latin Americans. His identity project remains of great relevance to progressives today. This is especially so to those working in the field of comparative law and Latin America specifically. Identity projects have elicited much debate in recent years, and many scholars are still drawn to them.

With respect to Latin American law, however, most progressives reject the category's emancipatory potential and most others deploy it solely as a foil to suggest better, more efficient laws. Indeed, the notion of Latin American law since Alvarez has taken a beating. It has been re-encryted with meanings of deficiency, obsolescence, incompatible Europeanism, inefficiency and corruption. If anything, the identity marked by Latin American law as received by us today signals backwardness and oppression. Rather than a tool for empowerment, the mention of Latin Americanness produces the opposite - a call for reform. Alvarez's innovative and challenging appeal to greater autonomy and positively-valenced specifity of Latin American law has given way to images of deficiency and decay.

This piece focuses on the elements of Latin American specificity that Alvarez deploys to construct his vision of a Latin American legal identity. Many scholars working in the field today are grappling with exactly this problem. How does one employ Latin legal identity in progressive projects in light of its overwhelmingly negative associations affirmed by both the right and the left? This is a question that would not have been unfamiliar to Alvarez. He himself was working against the backdrop of Latin America as not clearly within the realm of civilized nations and its nations as not fully members of the international community.

Specifically, my Essay focuses on Alejandro Álvarez's seminal article, Latin America and International Law, published in 1909 in the American Journal of International Law. Offering an in-depth analysis of the text, it foregrounds the strategic meaning of Álvarez's work in light of the international politics of his day. It posits that, more than simply a diplomatic history of Latin American particularity, Álvarez presents the case for a different hemispheric international order, based on an "American International Law" extending to the United States. He draws primarily on Latin American precedents -- based on historical and stituational commonalities -- to argue for a common public law. He then engrafts an idiosyncratic interpretation of the Monroe Doctrine as the U.S.'s main contribution to this common law, as well as the fact of U.S. sponsorship of various Americas-wide conferences resulting in the ratification of regional treaties. Notably, and this is one of the main points of this Essay, Álvarez elevates certain Latin American states as leaders in regional international law and capable agents of its enforcement across the hemisphere. In short, this Essay advances the claim that Álvarez's project of pan-American law in effect entreats the United States to share its hegemony and wield its power in the region, jointly, with Latin America's "better constituted" states.

Kubben, A Narrative on Dwarfs and Giants: The Batavian Republic and the Franco-Anglo Peace

Raymond Kubben, Tilburg University, has posted a new essay, A Narrative on Dwarfs and Giants. The Batavian Republic and the Franco-Anglo Peace. It will appear in IN THE EMBRACE OF FRANCE. THE LAW OF NATIONS AND CONSTITUTIONAL LAW IN THE FRENCH SATELLITE STATES OF THE REVOLUTIONARY AND NAPOLEONIC AGE (1789-1815), R.C.H. Lesaffer, R.M.H. Kubben and B.C.M. van Erp-Jacobs, Baden-Baden: Nomos Verlag, 2007. Here's the abstract:

The ideal of legal equality, firmly based in natural law, stands as a cornerstone of eighteenth century thought on the law of nations and Revolutionary ideology. And yet, in the years after the thermidor coup d'état the French Republic reached a hegemonic position. The advance of the French Revolutionary armies caused the creation of sister republics in the Netherlands, Italy and Switzerland. Politically, at least, their regimes were dependent on the French government. However, the factual inequality in power and influence, does not give a conclusive indication of the sister republics' legal position. So the question remains whether the French hegemony, despite the ideological stress on equality, translated into unequal juridical status and forms? To find a beginning of an answer to this question this paper focuses on a heyday of the modern law of nations: the conclusion of a treaty. The involvement of the Batavian Republic in the Franco-Anglo peace negotiations leading to the Treaty of Amiens of March 1802 is analysed. To answer the question whether the Batavian Republic did have legislative equality in this peace settlement, four aspects of the Treaty of Amiens and its formation are being discussed: 1) the formation of the preliminary articles of peace of London; 2) the admittance of the Batavian representative to the conferences in Amiens; 3) his part in the negotiations; and 4) the text of the treaty. The analysis will show that the principle of consent was formally upheld and that the treaty text shows hardly a sign of inequality, whereas the Batavian Republic's representative clearly played a secondary role during the negotiations and the Batavian Republic thus did not participate on equal terms in the formation of the treaty. Although France clearly dominated the peace conference in accordance with its leading role in the revolutionary alliance, at least in public, appearances were still being kept up.

Guerra-Pujol on The Problem of Judicial Decrepitude: An Empirical View

For your Monday morning: F.E. Guerra-Pujol, Catholic University of Puerto Rico, has posted a new paper, The Problem of Judicial Decrepitude: An Empirical View. The essay quarrels with David Garrow's article: Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 University of Chicago Law Review 995 (2000). The definition of "decrepitude," relied on for the sake of argument by Guerra-Pujol, seems problematic, even if the question of judicial competence is a valid one. And a better title might be "The Problem of Judicial Decrepitude: A Critique," since there is no new empirical data here. The author instead assumes the accuracy of Garrow's data, but offers a critique of the way he evaluated it. Here's the abstract:

Building on the work of historian David Garrow, this paper attempts to measure the true extent of the problem of judicial decrepitude among the members of the U.S. Supreme Court since the high court's inception in 1789. After presenting the relevant data, the author concludes (contra Garrow and others) that the incidence of judicial decrepitude is relatively infrequent and rare.

Kittrie compares the 1930s with the present in Progress in Enforcing International Law Against Rogue States?

Orde F. Kittrie, Arizona State, has posted a new essay, Progress in Enforcing International Law Against Rogue States?: Comparing the 1930's With the Current Age of Nuclear Proliferation. It is forthcoming in PROGRESS IN INTERNATIONAL ORGANIZATION, Rebecca Bratspies and Russell Miller, eds., Spring 2008. Here's the abstract:

This essay is a chapter in a forthcoming book, Progress in International Organization, which updates Professor Manley O. Hudson's 1932 book of the same title. In the introduction to his book, Hudson predicted that “when the history of our times comes to be written . . . our generation will be distinguished, above all else . . . for the progress which we have made in organizing the world for co-operation and peace.” Yet Hudson's interwar generation is today best known to history for its naïve appeasement of Axis aggression.

The chapter first reviews how and why Hudson's generation failed to enforce international law during the 1930s against Nazi Germany, the Empire of Japan, and Mussolini's Italy, and how this failure contributed to the outbreak of World War II. Then it turns to one of the greatest security challenges of our time – the proliferation of nuclear weapons – and examines how and why the international community is again failing to take the enforcement measures necessary to prevent a major calamity.

The chapter posits that while great progress has been made in many areas of international organization since Hudson's book was published in 1932, there has been relatively little progress on an issue pivotal to organizing the world for peace and security: enforcing international law against dangerous rogue states.

Efforts to dissuade today's most dangerous rogue states – Iran and North Korea – from developing nuclear arsenals are often as toothless as were the efforts to dissuade the Axis powers from aggression prior to World War II. The results coming out of the Security Council today are sometimes practically indistinguishable from the results that emerged from the League of Nations during the interwar period.

While the interwar generation was blinded in considerable part by naïve ideology, the Security Council today is being rendered ineffectual by avarice. The international community's hesitation to firmly enforce international law against Germany, Italy and Japan contributed to World War II's 60 million deaths in six years. War in this atomic age could be even deadlier. The fruits of progress in other areas of international organization once again risk being spoiled by a failure to firmly enforce international law against rogue states.

Muir reviews MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire

Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576-1640 (Cambridge University Press, 2006) is reviewed for H-Law by James Muir, Faculty of Law and Department of History and Classics, University of Alberta. Muir writes:

A European monarch's claim to sovereignty over lands overseas in the fifteenth and sixteenth centuries was aimed at several audiences: her or his own subjects, those being colonized, and imperial rivals. In Sovereignty and Possession in the English New World, Ken MacMillan is particularly interested in the third of these, and he offers several interesting arguments about the ways sovereignty was asserted by Elizabeth I, James I, Charles I, and their subordinates. His key premise is that the legal foundations for the claims to American colonies lay in Roman law, not the local and (for Europe) peculiar common law of England. To demonstrate this he draws attention to legal documents, such as letters patent, and apparently non-legal things, such as maps. MacMillan presents his often fascinating and largely persuasive argument in this short, well-presented book.

MacMillan begins the substantive part of his book with the assertion that legal pluralism characterized English law in the Tudor-Stuart era. This is not a surprising claim, but his emphasis is different from that of other legal historians of empire. He is not interested in the legal pluralism of colonies as Lauren Benton was in Law and Colonial Cultures (2002). Drawing attention to legal pluralism in England, he seeks to overturn the pride of place given to the common law in the legal history of empire formation. By contrast, he asserts, "new found lands were outside of the realm of England and, therefore,outside the jurisdiction of the common law and the ordinary prerogative....Another legal system was, therefore, required to legitimize and oversee[colonization], one that would enable the crown to govern its foreign territories in a manner consistent with natural laws and liberties, and that would also enable it to gain the recognition of the supranational community"(p. 33). The last part is particularly important: England's claims had to be made to and legitimated before their European Imperial rivals. The Spanish crown, even if it rejected the claim, could at least understand one based on Roman law, while it would neither understand nor accept a common law argument.Tied to Roman law but separate was the royal prerogative. The monarch's prerogative powers were limited domestically, but were absolute in areas where the common law was silent or where foreign affairs were involved. For MacMillan, Roman law and the royal prerogative were parts of English legal pluralism central to the creation of empire.

Having established this thesis, he then proffers several related but distinct examples of the confluence of Roman law and the prerogative: the writings of John Dee, letters patent, fortifying and protecting settlements in the colonies, and maps of the world and North America. He concludes with an analysis of how these helped in negotiations with Spain and France in the 1600s over English claims to North American colonies. Interestingly, most of these topics appear, at first glance, to have little to do with legal history. The one obviously legal topic, the letters patent, explains how they were written,by whom, and how they were enforced internationally. It is a nice study of pre-Westphalian international law and builds particularly on the combination of the royal prerogative, exercised in the issuing of the letters, and Roman law, as the letters were typically drafted by civilian-trained lawyers at court.

One of the key figures in MacMillan's analysis is John Dee (1527-1608). Between 1577 and 1578, Dee produced a four-part manuscript, Brytanici Imperii Limites or The Limits of the British Empire that provided a geographical, historical,and legal analysis of the North Atlantic world and England's claim to it. The merging of historical and geographical knowledge with legal arguments reflected Dee's own broad interests and were a precursor to the later, more famous writings of Richard Hakluyt. MacMillan discusses Dee's use of contemporary English histories that described the empires established out of England by Brutus, King Arthur, and others. Using these and the rules of discovery and possession in Justinian's Digests, Dee asserted English claims for much of the North Atlantic. More influential, especially for Hakluyt, was Dee's argument about the Iberian misreading and failure to meet the requirements of the Papal Bull on which the Spanish and Portugese founded their claim to all of the Americas.

The focus on Roman law and the extensive analysis of John Dee do offer some new perspectives on the relationship between law and empire formation in England. To this point MacMillan's book is solid but not exciting. The chapter on fortifications, while related to the Roman law requirements of possession,seems almost out of place within the rest of the book, focusing, as the chapter does,on the experience in North America. The real innovation in the book begins with MacMillan's chapter on maps and empire. Describing in detail both manuscript and published maps, he shows the extent of geographical knowledge in England in the sixteenth and seventeenth centuries. He shows how the published maps were constructed deliberately to support the English crown's assertions of possession over the territories and to minimize the claims of its European counterparts. The languages of text; the orientation of the maps; the design and location of the cartouche; and the placement of other images on the map,among other aspects, are analyzed by MacMillan in relation to the ideological and legal arguments they could make. He underscores this argument by contrasting the published and manuscript maps drawn for broad and limited consumption.

MacMillan's discussion of maps, and his book as a whole, make a nice pairing with Brian Lockey's Law and Empire in English Renaissance Literature (2006). Both MacMillan and Lockey make convincing arguments for texts and documents not directly associated to law as being of significant importance in prompting and supporting the legal arguments upon which the empire had to be built, both at home and in relation to the other courts of Europe.

Ken MacMillan is a good writer: his arguments are clear, even while he engages and debates with an extensive historiography. The book as a whole often feels like a set of linked essays on a particular theme. The argument builds throughout, but individual chapters can often be read profitably on their own once the basic outlines of his thesis are understood. This book will be of use to those interested in the early political, intellectual, and legal history of the British Empire and provocative for those looking to expand the sources and framework of legal history research.

The original review is here.

Two reviews of Stephen Carter, New England White

The hot new book reviewed this weekend is not a history book, but New England White, a new novel by Stephen L. Carter, Yale Law School. Christopher Bentley in the New York Times calls the book "stylishly written" and finds the plot "sufficiently expansive to allow room for some serious thinking about the progress of 'the darker nation' at a time when neither political party has much time for the intractable challenges of race and poverty, and when 'as far as white America knew, nobody black ever had money or education before, say, affirmative action.'" But the review not to miss is by the Washington Post's thoughtful deputy Book World editor Jabari Asim. Asim writes:

No matter how our ancestors got here -- in the holds of slave ships, through the gates of Ellis Island, via a long trek across the Bering Straits or thanks to a nifty gift of land from the British crown -- on these shores we can all become, for better or worse, something else entirely, at least for a while. In this sense, the United States is the ultimate land of make-believe, and the proud black strivers who populate Stephen L. Carter's new novel are among its most fervent pretenders. As members of the elite vanguard whom W.E.B. DuBois famously called the Talented Tenth, they convince themselves from time to time that our nation's once rock-solid color lines are now paper-thin abstractions that anyone can surmount. Well, anyone with good breeding, a capacious intellect and a briefcase brimming with postgraduate degrees.

And yet Carter's ambitious black achievers are constantly running up against the limits their skin imposes. In the lily-white 'burbs where his characters scheme and toil, African American homeowners are denied access to residents-only beaches, stranded motorists are refused assistance from their suspicious white neighbors, and even law professors harbor "the secret fear of false arrest that every black male in America nurtures somewhere deep within." Little embers of injustice and dissatisfaction are ever present, occasionally erupting into flames. What are we to make of Carter's parade of bonfires and vanities?...

[Asim includes a basic plot summary, but notes that] the author is only partly concerned with whodunit; he'd rather ponder why any of us does the things we do -- especially the bad things....Human weakness is troubling, fascinating stuff, and Carter has spent much of his career plumbing its depths....It's perversely pleasurable, then, to find that his fictional creations are reliably rude, dishonest and deliciously sinful....

Like a modern-day version of sociologist E. Franklin Frazier, Carter casts a critical light on the lifestyles of the black and privileged. In his novels, as in real life, they must demonstrate a voluminous knowledge of mainstream culture -- its history, politics, neuroses, etc. -- while serving tirelessly as spokespersons for and guardians of their own embattled slice of marginalia. Little wonder, then, as Carter dryly notes, "black Americans at the top of their professions seemed to feel the need from time to time to slough off the personas that brought success in the wider, white world -- and to escape the small whispers and slights whose existence they secretly feared -- and hang out instead with the successful of their own nation."...

But dismissing these hardworking professionals as pampered sell-outs would be far too simple, so Carter wisely endows them with an extra layer of complexity. He reveals that they haven't really turned their backs on pursuing justice; they've simply brought it over to the "dark" side.

To continue reading, click here.

Brophy on Considering Reparations for the Dred Scott Case

Alfred L. Brophy, University of Alabama, has posted a new essay, Considering Reparations for the Dred Scott Case. It is forthcoming in DRED SCOTT, Christopher Bracy, David Konig, and Paul Finkelman, eds., 2008. Here's the abstract:

Considering Reparations for the Dred Scott Case, which was prepared for a volume reassessing Dred Scott on its 150th anniversary, asks how the case might fit into discussion of reparations for slavery. Is some reparative action advisable for that case standing by itself? Or might Dred Scott be used as part of a larger discussion. The brief essay begins with a brief assessment of where the movement for reparations for slavery is right now; then it turns to the case and asks what the Supreme Court's culpability might be and what, if any, harm the opinion causes today. The paper then turns to what reparations models might fit Dred Scott today, including a truth commission, apology, or reconstructed doctrine surrounding the Reconstruction Amendments.

Cairns reviews Streib, The Fairer Death: Executing Women in Ohio

Victor L. Streib, The Fairer Death: Executing Women in Ohio (University of Ohio Press, 2006) is reviewed for H-Law by Kathleen A. Cairns, Department of History, Cal Poly San Luis Obispo. Cairns writes:

Trying to figure out why some killers are condemned and executed, while others committing similar crimes manage to evade the ultimate penalty, is akin to attempting to thread a needle with a blade of grass. That is to say, it's well nigh impossible. Comparing condemned women to their more fortunate "sisters"appears, on its face, to be a somewhat easier task. Women are, after all, executed in far fewer numbers than men. A total of 568 women have been hanged, gassed, electrocuted, and injected since 1632, representing less than 3 percent of all the executions in America. Since 1900, the percentage has dropped even further, to less than 1 percent of all executed inmates.

Narrowing the study to a single state would seem to bring the topic into microscopic focus. Nineteen states have executed women....Even the most "death-friendly" state for women--New York--has only executed seven women in its entire history; eight if you count Ethel Rosenberg, electrocuted at Sing Sing by the federal government for espionage in June 1953.

How hard can it be to compare such a small sampling of women? Difficult, as Victor Streib discovered after closely examining the cases of four women executed in Ohio and eleven other women who were condemned but not executed. Nine of the eleven had their death sentences overturned and two currently reside on Death Row.

In his new book, The Fairer Death: Executing Women in Ohio, Streib struggles mightily to come up with common denominators that link all of the cases. He concludes that race plays a significant role. Other than ethnicity, the circumstances of the crimes, time periods, and personalities of the defendants are too diverse to allow for firm conclusions. Nonetheless, Streib's work is a valuable addition to the rich body of work on the death penalty in America.

Streib is a law professor at Ohio Northern University, as well as a prolific author and an attorney who has represented female death row inmates, though regretfully he does not reveal which ones. Despite his background, The Fairer Death is not a work of advocacy, he states, but an effort, "based on academic research," to "explore an interesting topic" (p. xi). Recognizing that the lopsided percentage of men on death rows across the United States reveals inherent inequities in the legal system, Streib set out to examine the underpinnings of this discrepancy, what it demonstrates about society's ideas on gender and how these expectations play out in criminal cases involving women and capital punishment....

Death penalty statutes themselves are not to blame for the vast over-representation of condemned men, Streib asserts, because they contain no overt gender bias. But deeply ingrained gender ideology does play a significant role in how the laws are applied....

In this observation, Streib reinforces work done by other scholars, such as Ann Jones in Women Who Kill (1996) and Vicki Jensen in Why Women Kill: Homicide and Gender Ideology (2001), who argue that men and women in general possess different motivations for murder.


For the rest, click here.

Cairns is the author of a related book: The Enigma Woman: The Death Sentence of Nellie May Madison (Univ. of Nebraska Press) on the first woman on death row in California.

From the Editors: What makes a good Author Blog?

I was a little sheepish about mentioning to anyone at my press that I have a blog. I was afraid the reaction might be like that of my 16-year-old daughter, who, upon hearing that I like to blog first thing in the morning, said: "Well, you could be writing your book!"

But apparently blogs are recommended. Or at least recommended when the book is written. The Penguin Blog offered some advice recently. And they break it down to four basic guidelines. (Hat tip to OUP Blog.)

1) It should be personal - but not mundane.

2) The author should write about their work as well as their interests.

3) They should be entertaining company.

4) Posts should be regular and frequent.

Well, the Legal History Blog fails on at least one criteria: it is not "personal." I don't want it to be "personal." And frankly, not all readers want it to be "personal." Hopefully there can be a corner, even in the blogosphere, for a refuge from the cult of personality. So my advice to academic author bloggers: unless that sort of blogging appeals to you, I think (hope) you can engage a readership without needing to abandon your privacy.

On the question of whether blogging disrupts writing, for some writers that is surely the case. But not for everyone. What writers do is...write. A blog gives you a place for some of that, and keeps you writing even when there's a snag in the book research or some other delay. Before I had a blog, I would write op-eds, which sometimes were published, but like most op-ed writers, most often they were not. With a blog, the ideas just go out, without the frustrating process of trying to place them in a paper while the news cycle quickly expires. And, with a blog like this one, many posts (e.g. SSRN papers) can be done very quickly, even when I am facing a deadline. So my take is that whether you should blog while finishing that book depends on what sort of writer you are, and what sort of blogging you might do.

Here's more from Penguin:

What makes a good author blog?

The World Wide Web was made for finding things out. It's the first place I turn whenever I've got an enquiry, whether it's to find a plumber quickly or discover what Dickens' character I am. But sadly, the interweb cannot always help us. Sometimes when we type in a search term to the Google gods nothing relevant comes back despite scouring page after page of results. This is rare and annoying, but hardly surprising. The World Wide Web is not a mirror held up to the world. It more resembles something you'd find in an old fairground hall of mirrors: the silver backing flaking off and leaving black spots of nothing, the glass scratched and misted, the familiar no longer so distinct if not bent entirely out of shape, the multiple reflections and distortions giving you a headache.

If you're an author, however, especially a new one, you're pretty much expected - by your agent and your publisher - to have a presence in this strange mirror world. If people want to know about you or your work, the web is the first place they'll look. If there's nothing there to find, so the wisdom runs, that's a potential reader lost, a word-of-mouth champion who'll never say your name out loud. Unfortunately, for most authors, your agent and publisher aren't likely to put up the money for your own website. So what is an author to do? Well, these days most are advised to have a blog.

But that just creates a whole host of problems for the author. What should an author blog about? How often should they post? Should they post for their readers or themselves? Might it interfere with their other writing? In short, what makes a good author blog?

Clearly, the answers to these questions are as numerous as there are readers and writers, and therefore so riddled with contradictions as to be almost meaningless. However, it seems to me that a good author blog is simply a platform and, behaving a bit like any well-made table, requires four sturdy legs upon which to stand:

1) It should be personal - but not mundane. 2) The author should write about their work as well as their interests. 3) They should be entertaining company. 4) Posts should be regular and frequent.

Unsurprisingly, few author blogs manage all four. Most writers have more pressing matters to attend to.

However, for any author intending to blog, I would suggest they visit Neil Gaiman's journal.

More recommended blogs and more advice from Penguin is here.

Mack, Which Side is Brown On?

UPDATE: Be sure to read Ken Mack's response in the comments following this post.

Ken Mack, Harvard Law School, who is writing a greatly anticipated history of civil rights lawyers, had this to say in the Los Angeles Times on Wednesday:

AS THE Supreme Court wrestled with race-conscious school assignments in Seattle and Louisville, Ky., last week, the justices drew historical figures into the debate. In the most heated bits from the various opinions, each side accused the other of contradicting the objectives of the individuals who laid the groundwork for Brown vs. Board of Education.

In his opinion, Chief Justice John G. Roberts Jr. quoted Robert L. Carter — the black plaintiffs' attorney in Brown — to support the proposition that the Constitution prohibits school districts from taking race into account in student assignment. Justices John Paul Stevens and Stephen G. Breyer, on the other hand, argued that the principles of racial integration expressed in Brown required the high court to uphold the school districts' use of race.

Roberts' argument carried the day. But the justices' disagreement illustrates a problem well known to generations of law school students: When trying to decide a hard case, you can find two valid, established legal principles that will lead to two diametrically opposing conclusions. This observation was first articulated by an early 20th century group of reformers called "legal realists." The hardest cases, they noted, are the products of long-standing, unresolved societal conflicts — so precedents often support both sides. As one phrased it, legal principles "are in the habit of hunting in pairs."

The same problem plagues historical interpretations. But that doesn't prevent supporters and opponents of race-consciousness from buttressing their stances with references to the principles held by famous civil rights figures. "History will be heard," asserted Roberts. But if history speaks on this subject, it does so in two voices....

Mack uses Justice John Marshall Harlan, author of the famous dissent in Plessy v. Ferguson, and Charles Hamilton Houston, the initial architect of the legal strategy leading to Brown as two examples. Then he continues:

Even Carter, invoked to great effect by Roberts, presents a similar historical problem. Carter, 90, is a federal judge in New York, and he recently published an autobiography. One cannot read it without concluding that he followed a set of lifelong moral principles that were utterly opposed to racial segregation. When Brown was wending its way through the courts, it was certainly possible to find him arguing that any use of race in school assignment is constitutionally suspect.

Yet Carter later admitted that his efforts in Brown were focused on overturning Plessy's separate-but-equal doctrine, not at formulating a legal rule to guide future attempts to create racial equality. Indeed, within a decade of the Brown decision, he confessed to having mixed feelings about the use of race-conscious remedies to achieve integration, though he eventually firmly endorsed them....

History has a lot to tell us, but it rarely provides a clear signpost. In hard cases, historical precedents, just like legal ones, are in the habit of hunting in pairs.

For the full op-ed (recommended) click here.

The implications of the review seem to be that the question of whether Justice Roberts got the history of Brown right is so wide open, that it is not possible to answer the question. While Mack is right that questions of historical interpretation are not straightforward, and, by implication, the invocation of history by courts and lawyers is problematic, I disagree with Mack about whether the history of Brown was so muddled back in 1954.

Robert Carter himself was very clear about it when interviewed about Roberts' use of his Brown oral argument, after the opinion was released. As the New York Times reported, “All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”

The difference between Mack's take on the issue and Carter's may not be a failure of memory, although it is the case that historical figures remember the past differently as time continues to unfold. Perhaps it is in part a question of focus: on the right, or on the remedy. Judge Carter and his colleagues worked for an interpretation of the right -- 14th amendment equality -- that would invalidate laws that were a product of a history of racial subordination. They worked to overturn a system of discrimination informed by an ideology that one race (whites) was superior to others. As an initial remedy, they sought to have the bar to African American enrollment in white schools come down. Even this remedy was postponed, for most students -- even named plaintiffs -- for many years.

There was always a difference of opinion within communities and among leaders about what the world might look like when enforced segregation was a thing of the past. It was W.E.B. DuBois, for example, who angered his NAACP colleagues in the 1930s when he argued that what African American children needed was not integrated schools, but a good education. These questions legitimately arise in contemporary school cases once the barriers to entry are abolished, but the impact of unconstitutional racial subordination must be remedied.

But Roberts' opinion was not about how best to remedy racial subordination. His opinion was about the substance of the 14th amendment right. He used Carter's words to support an argument that Carter did not make in Brown: that when School Boards consider racial balance as part of their educational policies, having the goal of improving the education of everyone, they are engaging in the kind of behavior Carter sought to eradicate in Brown.

The equivocation that Mack finds in Carter's past words is equivocation about remedies. When it came to the meaning of the right itself, I'll take my cue from the chorus of Brown's surviving participants. “The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Jack Greenberg said. And from William T. Coleman: “to say that the people Brown was supposed to protect are the people it’s now not going to protect....It's dirty pool."

Shavar Jeffries at BlackProf offers his take on the Brown opinion itself here.

Looking Outward on the 4th, from Frederick Douglass to Robert Jackson to Jimi Hendrix

The Fourth of July should not be simply a day of "introspection, in an easy, comfortable sense of historical gratification," writes the New York Times in an editorial today. Instead it is a day to look outward, and to consider American ideas about rights and freedoms in the context of the world.

Thinking about America and the world requires both a conception of America, and a conception of what this world is that the nation, and its broader conception, is embedded in. As historians, we can see the relationship between America and the world reconfigured in different eras, as the nation and the global context, change. Perhaps we see continuities as well, though they are unlikely to be in any simple embrace, at home or abroad, of the ideas we would most like to imagine are central to the American core.

For Independence Day, here are links to three reflections on America in the world, at different moments of conflict. The first comes from Robert Jackson scholar John Barrett, who provides three episodes in legal history, via his Jackson List, including Jackson's 4th of July address in 1941, as the war closed in. At this link, Barrett writes of these moments:

Attorney General and then-pending Supreme Court nominee Robert H. Jackson’s Fourth of July address in Washington;

in that same year, the Independence Day activities of the newly-appointed Chief Justice of the United States, Harlan Fiske Stone, in Colorado, and of President Franklin Roosevelt in Hyde Park, New York; and

in 1945, in London, the work and the American holiday of Stone’s Supreme Court colleague Justice Jackson, who was serving by appointment of President Truman as United States chief of counsel for the prosecution of German war criminals. (Jackson would, only four days later, make his initial trip to inspect facilities in Nuremberg, in the U.S.-occupied land that had been Germany.)

Jackson's speech reflects on American democracy in a world torn by war. Another American reflected on the nature of American democracy before the outbreak of a different war, in an important 4th of July address. "What, to a slave, is your Fourth of July?" Frederick Douglass asked in 1852. He spoke with admiration about the nation's struggle for independence, but argued that the nation failed to live up to its own principles.

Would you have me argue that man is entitled to liberty? that he is the rightful owner of his own body? You have already declared it. Must I argue the wrongfulness of slavery? Is that a question for Republicans? Is it to be settled by the rules of logic and argumentation, as a matter beset with great difficulty, involving a doubtful application of the principle of justice, hard to be understood? How should I look to-day, in the presence of Americans, dividing, and subdividing a discourse, to show that men have a natural right to freedom? speaking of it relatively, and positively, negatively, and affirmatively. To do so, would be to make myself ridiculous, and to offer an insult to your understanding. There is not a man beneath the canopy of heaven, that does not know that slavery is wrong for him.

Douglass placed American slavery in a global context, and world developments gave him hope:

Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country. There are forces in operation, which must inevitably work The downfall of slavery. "The arm of the Lord is not shortened," and the doom of slavery is certain. I, therefore, leave off where I began, with hope. While drawing encouragement from the Declaration of Independence, the great principles it contains, and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world, and trot round in the same old path of its fathers without interference. The time was when such could be done. Long established customs of hurtful character could formerly fence themselves in, and do their evil work with social impunity. Knowledge was then confined and enjoyed by the privileged few, and the multitude walked on in mental darkness. But a change has now come over the affairs of mankind. Walled cities and empires have become unfashionable. The arm of commerce has borne away the gates of the strong city. Intelligence is penetrating the darkest corners of the globe. It makes its pathway over and under the sea, as well as on the earth. Wind, steam, and lightning are its chartered agents. Oceans no longer divide, but link nations together. From Boston to London is now a holiday excursion. Space is comparatively annihilated. Thoughts expressed on one side of the Atlantic are, distinctly heard on the other. The far off and almost fabulous Pacific rolls in grandeur at our feet. The Celestial Empire, the mystery of ages, is being solved. The fiat of the Almighty, "Let there be Light," has not yet spent its force. No abuse, no outrage whether in taste, sport or avarice, can now hide itself from the all-pervading light. The iron shoe, and crippled foot of China must be seen, in contrast with nature. Africa must rise and put on her yet unwoven garment. "Ethiopia shall stretch out her hand unto God." In the fervent aspirations of William Lloyd Garrison, I say, and let every heart join in saying it:

God speed the year of jubilee
The wide world o’er
When from their galling chains set free,
Th’ oppress’d shall vilely bend the knee,
And wear the yoke of tyranny
Like brutes no more.
That year will come, and freedom’s reign,
To man his plundered fights again
Restore....

Another engagement with America was seen on the stage near the end of Woodstock in August 1969, in an iconic performance from rock history. It is interesting that Jimi Hendrix, then 26-years-old, would take on the Star Spangled Banner. Although he later claimed that the performance was not intended to be political, we can hear in the chords that this image of America is America divided by war. Hendrix's performance was rejected by many, but spoke to countless numbers in a generation that hoped to end a war and give new meaning to American freedom.

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Photo credits: Robert Jackson, Frederick Douglass.

Witt on the Declaration of Independence and the Laws of War

From John Fabian Witt, author of Patriots and Cosmopolitans: Hidden Histories of American Law, in today's Washington Post:

We all know that the Declaration of Independence announced the United States' freedom from the British Empire. We all remember that it declared certain truths to be self-evident. But what you probably haven't heard is that the declaration also advanced an idea about war. The idea was that war ought to be governed by law.

In late June 1776, as the first detachments of what was to become a sizable British force were landing 90 miles away in New York, Thomas Jefferson and the Continental Congress in Philadelphia drew up charges denouncing King George III to the world. The accusations were to serve as the core of the declaration. The climactic final charges, for which the rest were prologue, indicted the king for war crimes.

Britain's navy, wrote Jefferson and the Congress, had "plundered our Seas," while its armies had "ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People." Jefferson accused the British of employing legions of foreign mercenaries to commit acts of death and desolation "scarcely paralleled in the most barbarous Ages," acts unworthy of civilized nations. He charged British forces with taking Americans hostage and compelling them to bear arms against their own country. He and the Congress concluded their litany of war crimes by condemning the king's two most fiendish offenses against the laws of war: inciting slave insurrections and encouraging attacks by "merciless Indian Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions."...

The declaration was the beginning of a remarkable but now little-remembered American tradition in the laws of war.

To continue reading, click here.

Goodman on The Transformation of Justice Ginsburg

Ellen Goodman had a column this week in the Boston Globe on "The Transformation of Justice Ginsburg." Hat tip. Goodman writes:

NOW, in the season of her discontent, it is well to remember that Ruth Bader Ginsburg was always called a moderate. The word dangled from her wrist like an ID bracelet. In fact, when she was nominated to be the second woman on the Supreme Court, there were feminists who added another adjective to that word: too moderate.

I always thought that was a bad rap. Ginsburg went to law school when textbooks still read: "Land, like woman, was meant to be possessed." Her dean asked the nine women in her class of 500 why they were taking a man's seat. She was accepted for a clerkship only after the judge found an understudy in case she couldn't hack it. It's not surprising that Ginsburg often refers to herself as a "way-paver."

At the same time, the legal strategy that she devised in the 1970s to upend the idea that men and women live in different legal spheres was a careful, incremental bit of roadwork. Her plaintiffs in a series of successful sex discrimination suits were often men -- such as a widowed father ineligible for Social Security -- chosen to appeal to male judges.

After her confirmation by a margin of 97-3, Ginsburg was still called "a partisan of judicial restraint."...But this year we are witnessing -- what shall we call it? -- the radicalization of Ruth Bader Ginsburg?

For the rest, click here.

Video of Federalist Society Bork Conference on-line

A recent Federalist Society conference on the work of judge and legal scholar Robert H. Bork is now posted on the Federalist Society website. Here's the announcement:

A Conference Discussing the Contributions of Judge Robert H. Bork

As part of our 25th Anniversary celebration the Federalist Society presented a full-day Conference honoring Judge Robert H. Bork and his contributions to the law. The conference featured a live conversation with Judge Bork, conducted by Judge Raymond Randolph, panel discussions on International Law, Law and Culture, Judicial Philosophy, and Antitrust Law, a luncheon and a closing reception. This event took place on June 26 at the Mayflower Hotel in Washington, DC.

The program and links to video of this event are here. Hat tip.

Unfortunately the Federalist Society was unable to include any women among the nineteen participants. Perhaps there weren't any qualified women, or maybe it's that women, for cultural reasons, choose not to pursue speaking engagements like this?

UPDATE: More of the same from Eric Muller. Maybe they just need help meeting girls. Here's a better source for that.

Another update: It looks as if the local chapters emulate the national. On Monday, you can hear an all-male panel in Seattle discuss the Seattle school case, or an all-male panel in New York discuss terrorism cases.

Peterson on The Mythology of American Usury Law

Christopher Lewis Peterson, University of Florida, has posted a new paper, The Mythology of American Usury Law. The paper includes an appendix with a summary of state-by-state empirical findings. Here's the abstract:

In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. Historically, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition. In order to understand the evolution of American usury law, this paper presents a systemic empirical analysis of all fifty state usury laws in two time periods: 1965 and the present. The highest permissible price of a typical payday loan authorized under each state's usury law was calculated. These prices were then translated into Annual Percentage Rate (APR) format following the federal Truth-in-Lending Act price disclosure regulations. Moreover, this Article also compares how each state legislature describes its most expensive permissible payday loan, with how that loan is characterized under federal price disclosure law. It does so by suggesting a new financial concept which I label: salience distortion. This analysis produces three findings: (1) usury law has become more lax; (2) usury law has become more polarized; and, (3) usury law has become more misleading. These findings suggest that the numeric language in current state usury statutes is not chosen because it helpfully describes some expectation of commercial behavior. Rather, legislatures have chosen the language of most current credit price caps because it sounds in an ancient moral tradition - a mythology of sorts - that roughly delineates popular perception of moral and immoral interest rates. Exploiting this normative tradition as well as common behavioral economic heuristics, many state legislatures use small, innocuous numbers in usury law because they are attempting to minimize the public and media outcry over their decision to legalize triple digit interest rate consumer loans.

Back in print: Ehle, The Free Men, on the civil rights movement in Chapel Hill

The Free Men by John Ehle has just been republished by Press 53. A local history of the civil rights movement in Chapel Hill, North Carolina, the book will be of interest to anyone interested in civil rights history and the role of the grassroots movement. Here's the book description:

For a brief moment in 1963 and 1964, the university town of Chapel Hill, North Carolina, became a central focal point in the Civil Rights movement. Through a mounting series of marches, sit-ins, and other nonviolent protests, a few brave young people protested the hypocrisy of their supposedly liberal town, where businesses claimed to be integrated but essentially ignored equal rights wherever they felt justified doing so. As the youth struggled to maintain nonviolence and press for human dignity, and as business owners demanded their own rights to serve who they chose, a conflict emerged that laid bare generational and class differences that many would have rather ignored. The struggles in Chapel Hill were indicative of the greater conflicts in the country at the time, but the outcomes were singular to the experience of this small university town.

In The Free Men, John Ehle presents an intensely emotional issue in astonishingly balanced prose. Out of print for four decades, it is now reprinted in order to shed light on an obscured portion of North Carolina’s, and America’s, history. The Free Men is a portrait of those men and women, both young and old, who were caught up in a struggle greater than any individual to achieve equal rights for all.

Hat tip to GreenSpace.

Olawuyi on the role of Soft Law in the Emergence of International Law on Chemicals

Damilola Sunday Olawuyi, University of Calgary, has posted a new paper, The Emergence of International Environmental Law on Chemicals - An Appraisal of the Role of Soft Law. Here's the abstract:

Since 1988 when the world first witnessed the menacing effects of the large scale dumping of toxic wastes in developing countries, several treaties, protocols and declarations have been released at regional and international levels to combat the effects of chemicals and their disposal across borders. This has led to a phenomenal growth in the body of laws governing the transboundary movement and disposal of hazardous chemicals. The important role of soft law in this evolution cannot be sidelined. This paper shows that soft law, though largely made up non binding declarations and pronouncements served as a useful tool, in establishing standards of behavior, in promoting sustainable policies and laying the proper foundation that ultimately led to the adoption different environmental treaties like the Basel Convention, Bamako Conventions, The Rotterdam (PIC) Convention and Stockholm (POPs) Convention amongst others. This paper offers an historical analysis of the international events that led to the development of International Environmental Law as it pertains to chemicals and the important roles of soft law in the evolution of these treaties and protocols.

Barrett on Actually Remembering Brown v. Board of Education

John Q. Barrett, legal historian at St. Johns School of Law and noted biographer of Supreme Court Justice Robert Jackson (the book is eagerly awaited), has just circulated the following message to his "Jackson List." It is posted here with permission.

On May 31, 1955, the Supreme Court announced its remedy-phase decision in Brown v. Board of Education. This decision, known popularly as “Brown II,” followed on the unanimous Court’s invalidation, a year earlier, of school segregation laws in Brown I.

In Brown II, the Court remanded the legal cases that had been brought on behalf of black children, who had been unconstitutionally barred from so-called white public schools, to the trial courts where the cases had begun. The Supreme Court ordered those trial courts to achieve the “admission” of those black students to the schools from which they had been excluded unconstitutionally, but in making that charge the Court also used the now-infamous phase “all deliberate speed.” Over many ensuing years, judicial and other anti-black racists and resisters to Brown tried to claim that phrase as their Supreme Court license for delay and inaction.

In 1955, the detailed future of school desegregation was of course unknowable, but the difficulty of the path ahead was foreseeable. When Justice Felix Frankfurter (who naively, for obscurely historical and personal reasons, had championed inclusion of “all deliberate speed” in the Brown II opinion) penned a private congratulatory note late on May 31, 1955, to Chief Justice Earl Warren, the leader of the Court and the author of Brown I and Brown II, for example, Frankfurter began with a prediction—maybe a very safe prediction—that undeniably has come true: “The harvest of today’s planting won’t be fully assessed for many a day.”

Last Thursday was one of those many days. The Supreme Court decisions in the Seattle and Louisville school cases (Parents Involved in Community Schools v. Seattle School District No. 1, et al.—click here for the full opinions), and the clashing opinions of today’s deeply divided Supreme Court Justices, show that we are still harvesting Brown (or not) and struggling to understand (or not) our historical, constitutional soil, seeds and growth.

The PICS opinions are filled with competing claims about Brown v. Board of Education. Much of that debate concerns Brown’s development and meaning over the past fifty-three years. But some of the debate concerns simply Brown and its companion cases themselves in their time at the Supreme Court, 1951-1955. On that, as important resources for anyone who seeks to sort out and evaluate today’s arguments and clashing perspectives, I commend the memories and careful thoughts of attorneys who were there, as captured in these Robert H. Jackson Center roundtable discussions:

John David Fassett, Earl E. Pollock, E. Barrett Prettyman, Jr., & Frank E.A. Sander, Supreme Court Law Clerks’ Recollections of Brown v. Board of Education, 78 St. John’s Law Review 515-567 (Summer 2004); and

Gordon B. Davidson, Daniel J. Meador, Earl E. Pollock & E. Barrett Prettyman, Jr., Supreme Court Law Clerks’ Recollections of Brown v. Board of Education II, 79 St. John’s Law Review 823-885 (Fall 2005).

I also commend the clear, accessible words of Chief Justice Warren—whose name, curiously, went unmentioned in all of last week’s PICS opinions—for the unanimous Supreme Courts of May 14, 1954, and May 31, 1955:

Brown v. Board of Education (1954);

Bolling v. Sharp (1954) [Brown’s companion case, involving the District of Columbia’s segregated schools] (1954); and

Brown v. Board of Education (1955).

Professor John Q. Barrett
St. John’s University School of Law

Elizabeth S. Lenna Fellow
Robert H. Jackson Center, Inc., Jamestown, NY

Archive of Jackson Email List postings

Call for Papers: Policy History Conference

This conference is great for political history. It tends to be interdisciplinary between history, political science and sociology. Many legal historians will find the Policy History Conference and the Journal of Policy History a great place for your work. Graduate students should not be shy about submitting an individual paper proposal for this conference. (Be sure that it's well-written and developed, has a thesis and makes clear what evidence will support the thesis, etc. Be sure to get comments from someone before submitting).

POLICY HISTORY CONFERENCE

DEADLINE FOR SUBMISSIONS
*Must be postmarked by December 3, 2007*

The Journal of Policy History is holding a Conference on Policy History at the Sheraton Clayton Plaza in St. Louis from May 29 to June 1, 2008. Program chairs are Edward Berkowitz and Robert C. Lieberman. The conference coordinator is Matthew C. Sherman.

All topics concerning the history, development and implementation of public policy, American political development, and comparative historical analysis will be considered. Complete sessions are encouraged, but individual paper proposals are welcome. The editors of the Journal of Policy History often encourage conference presenters to submit their papers for publication consideration.

The deadline for proposals is December 3, 2007. Proposals should include one (1) copy of the following materials to be considered:

1. Panel/Paper Description and Contact Information Page (template is available on our website).
2. A one (1) page summary of each paper
3. A one (1) page C.V. of each panelist

Please send the materials to Policy History Conference, Journal of Policy History, Saint Louis University, 3800 Lindell Blvd., P. O. Box 56907, St. Louis, MO 63156-0907. Incomplete proposals and e-mailed submissions will not be considered.

For questions concerning conference content or program information, please contact Edward Berkowitz at ber@gwu.edu or Robert C. Lieberman at rcl15@columbia.edu. Please direct general e-mail inquiries to Matthew C. Sherman, the conference coordinator, at policyhistoryconference@gmail.com.

To make reservations for the conference at the special conference rate of $109.00, please call the Sheraton Clayton Plaza Hotel at 314-863-0400 and mention the Policy History Conference.

New Paper: Law as Public History in the Seattle School Case

Here's my abstract for a new paper:

Law as Public History: How Supreme Court Opinions, Like Historical Monuments, Enable Visions of the Past to Shape the Future

"Public history" is variously defined, but it is the field of museum curators and designers of historic sites. It has been called "A process for making the public aware of the value, uses, and pleasures of history and to engage the public in historical activities." Interpretations of history are necessarily embodied in public history works, as is clear from the steps of the triumphalist World War II Memorial on the Washington Mall. Battles over historical interpretation affect public history, as in the controversy that erupted when a planned display at the National Air and Space Museum of the Enola Gay, the airplane that dropped an atomic bomb on Hiroshima, was to include information about the impact of the bomb on Hiroshima’s residents. The reason that public history is so often fraught with controversy is that all know that our understandings of the past (the goodness of wars, the greatness of our leaders) affects the way we think about present policies and politics.

When judges draw upon the past, law becomes a form of public history. Judges, like public historians, create monuments that embody an interpretation of the nation’s past. Some judicial opinions reinterpret the past as a way of justifying a new direction in law, or to present what appears as a doctrinal innovation as, instead, a continuity. Judges face interpretive challenges, needing to see the past in a way that fits current needs. While many public historians strive to present a range of interpretations, this is often lost in the magisterial public memorial, like the World War II Memorial, lacking the pathos of the Vietnam Memorial, or even the haunting quality of the memorial for the Korean War. History is often flattened this way when invoked to serve legal needs, as is illustrated most starkly in the 2007 Supreme Court case Parents Involved in Community Education v. Seattle School District. It would be conventional to reinterpret past precedent to make it appear consistent with a new doctrinal direction, but Chief Justice John Roberts took the extraordinary move of reinterpreting the civil rights struggle itself, giving new meaning to the words of its participants, meanings that they themselves rejected. That the Chief Justice would choose to do this helps us to see the importance of historical memory to law. It was not only past law, but the past itself, that must be recast to achieve the Court’s purposes. The politics of law becomes a politics of memory.

This is not yet written up, but I will discuss this paper at a symposium on "Law's History: How Law Understands the Past," organized by Austin Sarat, to be held at the University of Alabama Law School in October. I've not committed to publishing this anywhere, so anyone planning a relevant symposium issue is welcome to contact me.

Photo credits: World War II Memorial, Vietnam War Memorial, Korean War Memorial.

Kaapanda on Civilised Negros: Pan-African Petitions to the League of Nations

Mekondjo Kaapanda, University of Cambridge, has posted the abstract for a new paper, Civilised Negros: Pan-African Petitions to the League of Nations. The paper is not posted, but the author's contact information can be found here. Here's the abstract.

Between 1919 and 1928, two Pan-African organisations sent petitions to the League of Nations requesting, inter alia, seats on the Permanent Mandates Commission and, later, control over the mandate of South West Africa. The petitions formed part of the dynamic and complex international discourse of Pan-Africanism, a diasporic movement that constitutes an important antecedent of contemporary Third World engagements with the discipline of international law. This paper argues that similar to other examples or expressions of the Third World tradition in international law, the international discourse of the Pan-African Movement was characterised by a double consciousness, a term that refers to an ambivalent state of mind that desires and strives for seemingly conflicting or contradictory ideals and outcomes.

The double consciousness of Pan-Africanism manifested itself in impulses and strategies which alternated between radicalism and conservatism, revolution and reform, rejection and accommodation, autonomy and assimilation, rebellion and conformity, and idealism and pragmatism. On the one hand, Pan-Africanists attempted to change the world through radical and revolutionary means. Alienated, rejected and denied the opportunity to fully integrate into European and American societies, they turned their gaze towards Africa, refuted theories of racial superiority, demanded democracy, equality, cultural validation, and economic justice for people of African descent all over the world, and pursued a nationalistic politics that sought to attain self-government and independence for African colonies. On the other hand, however, Pan-Africanists desired assimilation into the world as it was and sought belonging, acceptance and recognition on the terms of that world. The desire to belong, be the same and, most importantly, be recognised as such was most apparent in the Pan-African Movement's use of the phrase ‘the civilised Negro'. The ‘civilised Negro' was the basis of a variety of equality and sameness claims, including representation on the Permanent Mandates Commission, and reflected the extent to which Pan-Africanists had internalised the ideology of the civilising mission and desired acceptance as equal partners in the imperial project. To this end, they fought to convince the colonial powers of their qualification to function alongside them as bearers of civilisation.

The paper also argues that the discourse of the ‘civilised Negro' was born out of an ambivalence, which not only characterised the feelings of Pan-Africanists towards Europe and America but also featured in their relationship with Africa and Africans. Pan-Africanists prioritised Africa, idealised it as their spiritual homeland, and viewed it as an opportunity to resolve the internal conflict between their African and Western identities, escape persecution, gain economic opportunity and, most importantly, achieve and prove their capacity for self-government. At the same time, however, they embraced the evangelical civilising impulse of their day and with it many Eurocentric, paternalistic, imperialist attitudes towards colonised peoples. Believing Africa to be backward and themselves to be suitable agents of change, they pursued an alternative (albeit modified or reconfigured) civilisation mission, one that was to be led by civilised members of the African diaspora rather than Europeans.

Does the Court Matter?

Jeffrey Rosen takes up the question "Can a Law Change a Society?" in the New York Times today, in a discussion of the Seattle school case. He relies principally on Michael Klarman, author of From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, and he makes it seem as if the answer is reasonably clear, and that the categories (law and society) are separate rather than intersecting and overlapping. The article ends with the suggestion that courts matter very little:

“Brown pushed the country in a direction it was already going, and in the same sense, the large forces today are going to continue to operate regardless of what the Supreme Court just decided,” Professor Klarman said. “We’re headed toward an ambiguous place where we’re committed both to colorblindness and to diversity in public life. We might have a black president, but we’ll still have a society with very segregated neighborhoods and public schools. I don’t think the court decision will make much difference either way.”

The literature on this is, of course, more complex. Critiques of Klarman are here (Paul Finkelman in the Harvard Law Review) and here (my essay in the Chicago Law Review). And a more nuanced take on the way courts affect society can be found in the work of Michael McCann, e.g. his book Rights at Work.

American Society for Legal History: Preliminary Program for Annual Meeting now available

The Preliminary Program for the 2007 Annual Meeting of the American Society for Legal History is now available on H-Law. The meeting will be held October 25-28 in Tempe, Arizona. Meeting and registration information is here.

Program highlights include:

A panel on Governing American Sexuality with Chris Capozolla, Massachusetts Institute of Technology; Margot Canaday, Princeton; Mary Ann Case, University of Chicago; Colin Robert, Indiana University, Bloomington; and Hendrik Hartog, Princeton University.

A panel on Social Control in Ancient Societies: Norms, Contracts, and Fundamental Law with Adam Chodorow, Arizona State University; Pamela Barmash, Washington University; Adriaan Lanni, Harvard Law School; Geoff Miller, New York University; Steven Johnstone, University of Arizona.

A panel on Episodes in the History of Modern Territorialism with Kal Raustiala, UCLA School of Law; Ralf Michaels, Duke University School of Law; Teemu Ruskola, American University; Clyde Spillenger, UCLA School of Law; and Mathias Riemann, University of Michigan Law School.

A panel on Colonialism in South Asia: Property, Personhood, and the State of Exception with Elizabeth Kolsky, Villanova University; Karuna Mantena, Yale University; Anupama Rao, Barnard College; and Kunal Parker, Cleveland State University.

A panel on Religion and Activism in Twentieth-Century Law with Linda Przybyszewski, University of Notre Dame; Nathan Oman, William & Mary Law School; Victoria Saker Woeste, America Bar Foundation; Sarah Barringer Gordon, University of Pennsylvania Law School; and Philip Goff, Indiana University Purdue University Indianapolis.

A Plenary Session with Paul Brand, Oxford University, “Thirteenth-century English Royal Justices: What We Know and Do Not Know About What They Did.”

Multiple panels on "The Craft of Legal History," featuring many legal history luminaries.

And much more.

Reviewed: Gross and Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice

Law in Times of Crisis: Emergency Powers in Theory and Practice, by Oren Gross and Fionnuala Ní Aoláin (Cambridge University Press, 2006) is reviewed on the Law and Politics Book Review by Therese O’Donnell, Law School, Strathclyde University. O'Donnell begins:

“How to allow government sufficient discretion, flexibility, and powers to meet crises while maintaining limitations and control over governmental actions so as to prevent or at least minimize the danger that such powers would be abused? . . . How to balance security and liberty? These questions are as ancient as the Roman republic and as new as the realities wrought by the terrorist attacks on London’s public transportation system on July 7 and July 21, 2005.” (pp.1-2)

And so begins Oren Gross’ and Fionnuala Ní Aoláin’s impressive, richly sourced study of the responses of democratic states to violent emergencies. The book’s structure divides principally into two parts. The focus of Part I is upon the principal models dominating theory and practice concerning responses to acute national crises. Part II considers the relationship between international law and some of its specific legal regimes (e.g. international humanitarian law whereby non-state actors may be held accountable). The structure works well and any overlaps in content are unobtrusive. As Gross and Ní Aoláin comment, violent crises often precipitate a reaction urging that “legal niceties may be cast aside as luxuries to be enjoyed only in times of peace and tranquility” (p.7).

Part I opens with an analysis of the various models of accommodation by which a state may seek to manage a crisis. By acknowledging some element of accommodation, the State is best depicted as a tree bending in a storm; how far it yields will depend on which model it chooses to adopt. The main models posited by Gross and Ní Aoláin are those embodying classical accommodation, constitutional accommodation, legislative accommodation and interpretative accommodation. The assessment of the Roman model of dictatorship is fascinating, particularly when the authors consider Machiavelli’s conclusion that one of the crucial checks and balances in place was the innate incorruptibility of the citizens of Rome (comparing favourably to their Florentine counterparts) (p.24). As the authors note, Lord Acton focuses on absolute power’s impact on the ruler, while Machiavelli focused on the people. This is interesting, but to this cynical reader, a little precarious. The perfect example of the Roman model operating in practice is offered by way of Cincinnatus who, after enjoying awesome power during a siege and winning a significant victory, resigned as dictator....

The sheer flexibility of models of accommodation seems well captured in the discussion of the French state siege model. Originally intended to confront a military crisis, it morphed into ensnaring political crises. The impotence of the various attempts to rein in the ever-expanding use of the siege concept was finally captured in Article 13 of the French Constitution of 1946 which stingingly stated “The National Assembly alone may vote the laws. It may not delegate this right.” The possibility of constitutional accommodation of emergencies is also explored with a discussion of Lowenstein’s consideration of whether the concept of militant democracy can avoid the dangers of constitutional measures operating as Trojan horses. Gross and Ní Aoláin present an extensive survey of state constitutions, thus, as they acknowledge, revealing problems in the classification and categorization of emergencies and the dangers inherent in creating “scales” of emergencies which may permit states to easily “upgrade” to higher levels with presumably more draconian consequences (pp.45-46). The issue of “necessity” operating as a constitutional principle, making legal what might otherwise be illegal or unconstitutional, and its embodiment in inherent executive powers is considered....

Perhaps one of the most potent motifs running throughout this book is that associated with addiction – paranoia, dreams and ever increasing dosages. It is in relation to this last aspect that the authors comment on the “normalization of the exception.” A craving develops for new, more radical powers to fight impending crises, and the unthinkable develops into the thinkable with a consequent “tranquilizing effect on the public’s critical approach toward emergency regimes” (p.236), and thus to hidden revolution (p.242). As the authors later note, despite the common understanding of the word “emergency” as sudden, urgent and unforeseen, numerous examples testify to systematic entrenchment of the exception as the norm (p.304).

Part II focuses on the application of the various models in the field of international human rights law, with the authors concluding that there is a gap between theory and practice of emergency powers in international law.

The rest of this detailed review is here.