Tuesday, August 7, 2007

Was the Industrial Revolution caused by Evolution?

Were we naturally selected to be capitalists? "Gregory Clark, an economic historian at the University of California, Davis, believes that the Industrial Revolution — the surge in economic growth that occurred first in England around 1800 — occurred because of a change in the nature of the human population," Nicholas Wade writes in today's New York Times. Hat tip.
The change was one in which people gradually developed the strange new behaviors required to make a modern economy work. The middle-class values of nonviolence, literacy, long working hours and a willingness to save emerged only recently in human history, Dr. Clark argues. Because they grew more common in the centuries before 1800, whether by cultural transmission or evolutionary adaptation, the English population at last became productive enough to escape from poverty, followed quickly by other countries with the same long agrarian past.

Dr. Clark’s ideas have been circulating in articles and manuscripts for several years and are to be published as a book next month, “A Farewell to Alms” (Princeton University Press). Economic historians have high praise for his thesis, though many disagree with parts of it.

“This is a great book and deserves attention,” said Philip Hoffman, a historian at the California Institute of Technology. He described it as “delightfully provocative” and a “real challenge” to the prevailing school of thought that it is institutions that shape economic history....

The basis of Dr. Clark’s work is his recovery of data from which he can reconstruct many features of the English economy from 1200 to 1800. From this data, he shows, far more clearly than has been possible before, that the economy was locked in a Malthusian trap _ — each time new technology increased the efficiency of production a little, the population grew, the extra mouths ate up the surplus, and average income fell back to its former level.
Clark wondered whether the escape of the Malthusian trap had come about through natural selection. His data caused him to reject the idea that evolution toward disease resistance provided the answer. Instead, an analysis of English wills showed that:

Generation after generation, the rich had more surviving children than the poor.... That meant there must have been constant downward social mobility as the poor failed to reproduce themselves and the progeny of the rich took over their occupations. “The modern population of the English is largely descended from the economic upper classes of the Middle Ages,” he concluded.

As the progeny of the rich pervaded all levels of society, Dr. Clark considered, the behaviors that made for wealth could have spread with them. He has documented that several aspects of what might now be called middle-class values changed significantly from the days of hunter gatherer societies to 1800. Work hours increased, literacy and numeracy rose, and the level of interpersonal violence dropped.

Hmmm. Continue reading this interesting Science Times article here (or page D1 of your NYT).
We can easily imagine holes in the newspaper article version of this argument, but of course we haven't seen the book, which promises to be important and provocative, whether wrong or right. Keep an eye out for reviews, in this space and your favorite papers, appearing with the book next month.

Monday, August 6, 2007

Madeira on Bowers, Lawrence and the Mismeasure of Homosexual Historiography

Jody Lyneé Madeira, Indiana University -- Bloomington, has posted an article that speaks both to constructions and uses of "homosexual historiography," and to the broader question of such great current interest: uses of history by courts. Rebuilding the Closet: Bowers v. Hardwick, Lawrence v. Texas, and the Mismeasure of Homosexual Historiography appeared in the Richmond Journal of Law and Public Interest. Here's the abstract:
In an effort to engage in such specification, this paper will first address the mischaracterization of history in Bowers, which portrays the historic legal and ecclesiastical penalties of what the Court labels as "homosexual activities" as a continuous, unitary narrative extending from the halls of the Emperors Theodosius and Justinian to the legislative assembly rooms of Georgia and Texas. This illusory perspective portrays the criminalization of sodomy (and therefore the identity of homosexuality itself) as an impossible cultural continuum. The impossibility of this continuum lies not only in its implicit assumption that states and other lawmaking entities throughout history shared the same cultural, moral, religious, and legal principles, but also in its unqualified adoption of the secular state as the successor to religious authority and the seamless secular synthesizing of penitential prohibitions against sexual sin into secular prohibition against sexual crime. This paper will not only demonstrate that the Bowers conception of history as a continuum is in reality a series of discrete communal units, but will also show that the confines of this continuum emphasize only the horizontal progression of time, quashing significant differences in the authority of the entities who enact the laws and more importantly in the laws themselves. This paper will then elaborate upon other broader difficulties with the Bowers decision - difficulties that are characteristic of many homosexual historiographies. The first of these conundrums, the erroneous assumption that sodomy statutes of past centuries were a former species of anti-homosexual legislation, arises from the historic implications of the Court's conflation of homosexual status with the act of sodomy. The second and third of these topics, the collapse of morality into legality and the subsequent collapse of the legal into the social, also necessarily follow from the Court's collapse of status into act. Each of these three conflated concepts will be addressed in the context of the prior historical discussion of legislation prohibiting same-sex activity from Republican Rome to modern America. The paper will then describe how Bowers' faulty historiography was not merely a series of uninformed generalizations but a conscious strategy dictated by the Court's originalist platform that was developed to uphold the majority's interpretation of Georgia's anti-sodomy statute. Finally, the paper will conclude by explicating what impact the language of Lawrence v. Texas will have on future constructions of homosexuality and its histories.

Civil Rights Pioneer Oliver Hill dies at 100

"Oliver W. Hill, 100, a Virginia lawyer who helped overturn legal segregation in his native state and was one of the country's foremost civil rights defenders during a six-decade career, died yesterday at his home in Richmond. He had a heart ailment," writes Adam Bernstein in today's Washington Post.

Hill was an instrumental member of an NAACP-affiliated legal team that persistently attacked segregation. He also was a lead lawyer on a Virginia case later incorporated into Brown v. Board of Education, the 1954 case in which the U.S. Supreme Court declared segregated schools unlawful....
Hill, who was raised in Washington and graduated from Dunbar High School, spent his public life in Richmond, where he first won widespread attention in 1948 as the first black person elected to the City Council in 50 years. Although his term in office was short, his civil rights legacy proved far more enduring because of his role as a lead lawyer in Davis v. County School Board of Prince Edward County, Va., one of the five cases the U.S. Supreme Court combined into its landmark Brown v. Board of Education ruling. [Thurgood] Marshall was the lead lawyer in the high court case.

Hill's involvement in the Davis case began through his affiliation with the NAACP Legal Defense and Educational Fund, and he worked closely with a team that included Marshall; Howard Law School Dean Charles Hamilton Houston, who had been a mentor to Marshall and Hill; and Spottswood W. Robinson III, a future Howard law dean and chief judge on the U.S. Court of Appeals for the D.C. Circuit.

Their goal was to challenge more than the existing "separate but equal" system of public facilities that had been created with the U.S. Supreme Court's 1896 decision in Plessy v. Ferguson.

In 1951, Hill and Robinson took up the cause of students at an all-black high school in Farmville, Va., who had gone on a two-week strike to protest the leaky roof and other substandard conditions of the tar-paper building. This became the Davis case.

During and after the Brown decision, Hill remained an instrumental force in developing legal strategies during Virginia's "massive resistance" to desegregation, in which many public schools closed rather than admit blacks....


He told the publication Human Rights in 1994: "I can't understand why Americans are willing to send their children -- black and white -- to foreign lands to fight, and sometimes die, to preserve the American concepts of freedom, democracy and civil rights, when at the same time these same Americans are unwilling to undergo an occasional inconvenience or suffer a slight financial loss to help break down racial barriers and racial discrimination in this country."

The full story is here. An interview with Hill is here. A link to his Presidential Medal of Freedom webpage is here. Information about the Oliver Hill Foundation is here. A slideshow is here. The Wall Street Journal law blog has other good Richmond Times-Dispatch links here.
Image credit:
Spottswood W. Robinson III, George Leakes, Elaine Bowen, and Oliver Hill. 1950s. NAACP Papers, Library of Congress. LC-USZ62-118180

Sunday, August 5, 2007

Reviewed: Martelle, Blood Passion: The Ludlow Massacre and Class War in the American West

"The right to bargain collectively has been enshrined in federal law for decades," Michael O'Donnell writes in a review of a new book in today's San Francisco Chronicle. "But the Ludlow Massacre nevertheless serves as a cautionary tale about unregulated labor markets, not to mention an intense and dramatic moment in American history."

O'Donnell reviews Blood Passion: The Ludlow Massacre and Class War in the American West (Rutgers University Press) by Scott Martelle. He writes, in part:

The photograph shows two straight lines of mourners marching over fresh snow, snaking back through the rugged company town toward the mountains. The picture was taken almost 100 years ago, but you can still see the cold: The gray sky moves by hugely overhead, and chimneys blow smoke; the men - they are almost all men - wear hats and slump at the shoulders, and the horses' glistening flanks give off steam. The mourners follow a carriage bearing the body of Louis Tikas, a Greek union organizer who helped lead coal miners on a failed 15-month strike against the Colorado Fuel and Iron Co. in 1913 and 1914. Tikas was captured by company thugs during a gunbattle, disarmed, cracked in the skull with a rifle butt and shot in the back three times....
The Colorado miners had more to avenge than one fallen rabble-rouser. For seven months they had been on strike and in a state of more or less open insurrection. Kicked out of their company homes when they walked off the job, they built a tent colony for themselves and their families. But after months of guerrilla war and shootouts with the Baldwin-Felts detectives hired to protect the mines and the strikebreakers, the miners were rousted from their camp. Company men machine-gunned the tents and then set the place ablaze. Two women and 11 children who had been hiding underneath a tent in a foxhole that doubled as a birthing parlor suffocated as the fire overhead sucked up all the oxygen. Tikas was killed later that day....

More than 75 people died during the coal strike in Colorado (more than half of them company guards), making it one of the most violent episodes in American labor history. Too frequently, events surrounding the Ludlow Massacre have been the subject of one-dimensional folklore rather than serious analysis. Howard Zinn, for instance, wrote admiringly of "the undeterred spirit of rebellion among working people" who rose up against their oppressors and fought hard against the company. To Scott Martelle, a reporter for the Los Angeles Times, the miners seemed anything but valiant as they mobbed in their hundreds around a strikebreaker's wife, throwing rocks and screaming imprecations. Or when they assassinated company men at point-blank range....
If Martelle's book, "Blood Passion," refuses to give a free pass to the Ludlow strikers, it is by no means a shill for management. The company hired hundreds of unsavory men who baited the strikers, searched their tents without warrants and tortured prisoners held without charge. Colorado Fuel and Iron was a Rockefeller concern, and the absolute refusal to recognize the union or hold negotiations came from the top.

To continue reading, click here. A review of another recent book on Ludow is noted here, with photos and links.

Saturday, August 4, 2007

Overcoming Women's Wiki-Invisibility

It's not just that Wikipedia needs your help, with incomplete law-related entries, as previously noted. IntLawGrrls points out that women's Wiki-Invisibility -- the absence of coverage of women in the law on the web -- reinforces women's invisibility. IntLawGrrls posts on the issue of women in international law, specifically the absence of information on women serving on the Inter-American Court of Human Rights. But clearly this is an important issue affecting the visibility of women and the law more generally, including women's legal history.

There are superb resources, especially Barbara Babcock's Women's Legal History Biography website. But as Diane Marie Amann suggests, it would be a great project for enterprising law students to take up improving and expanding the number of entries related to women's legal history on Wikipedia. Just one example, there is an entry for Judge Florence E. Allen of the Sixth Circuit Court of Appeals, the first woman to be appointed to an Article III court, but it is "a stub," and much less interesting than Allen's life story.

To get started, try going to History WikiProjects, and follow the links from there.

Reviewed: Kluger, Seizing Destiny: How America Grew from Sea to Shining Sea

SEIZING DESTINY: How America Grew from Sea to Shining Sea, by Richard Kluger, is reviewed this week in the Washington Post and the New York Sun. Patrick Griffin's review for the Sun is more satisfying, setting the book in its needed context: the Turner thesis. Griffin writes, in part:
When did America's mythic push West get under way? When did we become an imperial nation?...
Equally challenging is the question of why expansion happened. We have all sorts of explanations for this question. At one extreme, some argue, as did the historian Frederick Jackson Turner more than a century ago, that the nature of the frontier spurred expansion. Pushing forward a line separating savagery and civility created a democratic ethos and the compulsion to spread civility further. At the other end of the spectrum, others argue that some essential European trait such as restlessness, the desire to be free, greed, or racism -- what historians once characterized as a European "germ" that could overpower the American environment -- explains why Americans would look to the West....
Richard Kluger, a Pulitzer Prize winner and author of a marvelous book on the history of Brown v. Board of Education, now enters the fray with "Seizing Destiny: How America Grew from Sea to Shining Sea" (Knopf, 672 pages, $35). This is a massive tome, offering a reading, or better a litany, of the events, pressures, and dynamics that led Americans to seize a continent, and even to dream of super-continental conquest. Mr. Kluger boils down a complex set of processes to this: Europeans, particularly Englishmen and women, freed by the Reformation and the Enlightenment from feudal strictures to think of themselves as individuals became storm troopers for British imperial, and later American national territorial expansion.

For Mr. Kluger, this impulse of personal independence impelled westward movement, and great proponents of expansion, such as Benjamin Franklin and Jefferson, amplified the inevitable. The availability of land, and the willingness to ignore Indian claims to it, allowed this sensibility to flourish. From the earliest Elizabethan sea dogs like Walter Raleigh, and the poor men that sailed with them, to the troops sent down to topple Manuel Noriega, and all points in between, Americans felt justified in becoming lords of all they surveyed....
Expansion for Mr. Kluger has an irresistible quality....America's common conquistadores and grand visionaries such as Jefferson, Franklin, and Theodore Roosevelt conquered and settled a continent because of the seeming limitlessness of land and their belief that they had a divine mandate to do so.

In some ways, Mr. Kluger's answers to the critical questions of expansion appear much like Frederick Jackson Turner's. The frontier created Americans. On the other hand, he embraces the merits of the germ thesis as well. The ready temptation of land allowed these New World people to become what the Old World had prepared them to be: grasping conquerors. This sense of inevitability does not make for a novel or sophisticated interpretation, and the book does not pause over contingencies. But in fairness, Mr. Kluger does not take a triumphalist tone while covering an impressive amount of historical ground. While we don't find new answers to critical questions in "Seizing Destiny," the questions themselves are the right ones to ask.
The full review is here.

Friday, August 3, 2007

J. Willard Hurst Prize to Nancy MacLean for Freedom is Not Enough

Nancy MacLean, Department of History, Northwestern University, is the 2007 winner of the J. Willard Hurst Prize for the best book in American Legal History, awarded by the Law and Society Association. Her book is Freedom is Not Enough: The Opening Up of the American Workplace (Harvard University Press).

Michael Grossberg, Indiana University, chaired this year's committee. Committee members were: Elizabeth Dale, University of Florida; Lawrence Friedman, Stanford University; Joanna Grossman, Hofstra University; David Konig, Washington University; and Sanford Levinson, University of Texas.

The committee called Freedom Is Not Enough "a rich and convincing tale about the centrality of workplace rights in the post World War II quest for civil rights in the United States. Taking her title from lines in a 1965 speech by Lyndon Johnson’s 1965 at Howard University, MacLean has written a fascinating narrative of grassroots struggles for workers’ rights that illuminates the links between gender, race, ethnicity, and political movements. Her stories, drawn from substantial archival research, are filled with telling examples of individual struggles by African-Americans, women, and Mexican-Americans against what she terms the ‘culture of exclusion.’ Through these stories she chronicles the efforts to implement path-breaking civil rights legislation and judicial decisions on the shop floor, construction site, and farm field as well as in the streets and the courts. At the same time, she insightfully weaves into her chronicle the conservative counterattacks that arose in response to each campaign for workplace diversity. She shows how this increasingly effective backlash combined with ineffective efforts to enforce antidiscrimination laws to limit drives for workplace equity and shift the public debate from affirmative action to reverse discrimination and quotas. MacLean places these intertwined stories in a broad political, cultural, and economic context that makes a significant contribution to our understanding of the interplay between law and society in the recent past. In doing so, Freedom Is Not Enough simultaneously illuminates and complicates our understanding of contemporary clashes over civil rights in America.”

The Hurst Prize Committee also recognized Université Laval historian Donald Fyson for his book Magistrates, Police, and People, Everyday Criminal Justice in Quebec and Lower Canada, 1764-1837 (University of Toronto Press), with an Honorable Mention. The citation reads: “Magistrates, Police, and People is a deeply researched and theoretically ambitious local study of criminal justice under shifting colonial regimes. Championing a revisionist social history, Fyson argues persuasively that everyday legal experiences are critical to understanding the nature of the legal process in any particular place and time. Through telling examples and compelling analyses, he demonstrates how local history can illuminate a broad legal landscape.”

Wikipedia wants your help

Well...history blogger Ralph Luker notes that since Wikipedia plays such an important role in history education, some historians are working to improve it, playing important roles in Wikiprojects in particular fields of history. It turns out, there are also Wikipedia projects in law that seek to improve Wikipedia's law-related listings.

Some of the difficulties in the writing/editing process have been noted elsewhere. And I am not departing from my views about judges and legal scholars citing to Wikipedia in published works.

But those having an interest in improving law and legal history-related Wikipedia entries would be doing a service.

Here's where you're needed:

WikiProject Law

WikiProject International Law

Wikiproject Australian Law
(This is the only Wikiproject related to the law of a particular nation. Perhaps others are needed?)

Also, I've noticed that Thurgood Marshall's Wikipedia entry begins with this note:
"This article does not cite any references or sources. Please help improve this article by adding citations to reliable sources. (help, get involved!) Unverifiable material may be challenged and removed. This article has been tagged since May 2007."

There are many terrific, easy to find, sources on Marshall -- some linked to from this blog (just do a search) -- but some on-line bios are inaccurate.

If you know of other specific law/legal-history related Wiki-entries in need of help, please post a comment.

Ransband and Garrett rethink Public Land Policy

James R. Ransband and Megan Garrett, both of Brigham Young University, have posted a new paoer, A New Era in Public Land Policy? The Shift Toward Reacquisition of Land and Natural Resources. Here's the abstract:
Traditionally, the history of public land law has been divided into periods of acquisition, disposition, a shift to retention, and then a period of management. The paper reviews these historical demarcations of public land law and then asks whether we have entered a new period of public land policy that might be termed a period of reacquisition. The paper considers the 19.8 million acre increase in the public land base (outside Alaska) since the 1964 passage of the Land and Water Conservation Fund and the Wilderness Act. It details this federal acquisition under the Land and Water Conservation Fund, by way of land exchanges, and under a variety of other statutes. The paper also suggests that the 37 million acres of land protected under the land trust and conservation easement movement can also be understood as part of this shift to reacquisition because of substantial federal tax expenditures in the form of deductions for conservation easements. Finally, the paper considers whether federal regulation can be characterized as a form of public reacquisition, even if the underlying fee is retained in private ownership, because the regulation shifts control over land and natural resources away from private parties and to the public. The paper, for example, considers whether Section 404 of the Clean Water Act might be understood as akin to a reverse of the federal Swamp Lands Grant Acts of the Nineteenth Century.

Thursday, August 2, 2007

Senkewicz reviews Mullen, Dangerous Strangers: Minority Newcomers and Criminal Violence in the Urban West, 1850-2000

Kevin J. Mullen, Dangerous Strangers: Minority Newcomers and Criminal Violence in the Urban West, 1850-2000 (Palgrave Macmillan, 2005) is reviewed for H-Urban by Robert M. Senkewicz, Department of History, Santa Clara University. Hat tip. Senkewicz writes:
Over the past decade and a half, a number of historians have been writing about violence in the West, especially in California. It would be too much to call them a formal group, for their concerns, focus, and interpretations do not always agree. But the works of these scholars, including John Boessenecker, William Secrest, and Clare McKanna, Jr., have served to elevate the quality of writings on California violence, and to impart greater quantitative precision and conceptual clarity to this easily caricatured subject. Kevin Mullen, the author of an important book on the San Francisco Committee of Vigilance of 1851, is one of these writers.

Much of this writing has examined the nineteenth century. But in Dangerous Strangers: Minority Newcomers and Criminal Violence in the Urban West, 1850-2000, Mullen dramatically expands the chronological sweep and looks at criminal violence in San Francisco from the time of its origin as an American city until the dawn of the new millennium.

The most impressive achievement of this volume is the primary research that went into it. Mullen has constructed his own database of "the almost 7000 criminal homicides that occurred in San Francisco from 1849 to 2000" (p. 146). He does this, as he carefully explains, because he agrees with many criminal justice researchers that homicide is "an index of the amount of criminal violence generally" (p. 2). Since many of the public records of San Francisco were destroyed in the fire that followed the 1906 earthquake, the creation of this database was not an easy task. Mullen exhaustively read the daily newspapers for the 1850s. He perused the municipal reports that began in the 1860s, waded through various coroners' tallies, combed the statistics in the city health department summary reports, and supplemented all this with this further readings in the city's newspapers. Mullen reports that this unique database has been archived at Ohio State University's Criminal Justice Research Center, where it is available to other researchers. The database can be accessed here, where it is marked as "Data Set 4." There one can find details on 6974 criminal homicides in San Francisco, from June 21, 1849 to December 19, 2003.

In this book, Mullen focuses on a series of what he terms "minority newcomers," and examines their contributions to criminal violence in San Francisco. He looks at Australians in the early days of the gold rush, at Latinos in the 1850s, at the Irish in the nineteenth century, at the Chinese between 1870 and 1930, at the Italians from the 1880s to the 1930s, and at African-Americans, generally in the post-World War II era. He finds that each group was overrepresented in the commission of criminal violence during the period he studies. He then poses two lines of inquiry. First, he seeks to examine "to what extent the criminal violence emanates from the culture of the group involved, as distinguished from that which is the result of the mistreatment of a minority group by the majority society." Second, he considers "the extent to which police practices influence levels of criminal violence." In short, he finds that "high rates of criminal violence can be attributed more to the group's culture than is generally believed." Also, "what police do--or do not do--affects the level of violence in a community" (p. 2)

There is much that is commendable in Mullen's work. The volume's broad sweep, for instance, allows him to offer suggestive comparisons between various groups, such as between the Chinese and the Italian immigrant experience in San Francisco and to draw interesting and important contrasts between the Italian experiences in San Francisco and Chicago. Mullen is sensitive to the ways in which changes in the structure of Irish society affected the social conditions and experiences of those who emigrated from there to the United States in the later nineteenth century. Most importantly, his own background as a San Francisco police officer allows him to write with clarity and verve about the changing policies of the city's police chiefs and the evolving procedures of the police department as it struggled to find ever more effective ways to combat crime and to keep abreast of the technologies, such as the automobile, which for a time gave a tremendous advantage to some of the city's criminals. These sections are some of the best in the book.

However, in my judgment the volume also suffers from a few deficiencies, which combine to weaken the overall quality of the work.

First, the notion of the culture that the various immigrants brought with them tends to be simplistic. The basic procedure Mullen follows is to cite a few secondary sources that describe a violent aspect of a country or region (such as brigand gangs in northern Mexico in the late nineteenth century, the Triad gangs in southern China, the Black Hand in Italy, or violence in the American rural South), then quickly to conclude that the immigrants who actually came to San Francisco brought these types of violence with them, and that this phenomenon goes a considerable (but unspecified) distance toward explaining what he finds in the database. Such complicated assertions demand a much more complex series of arguments.

Second, the social and historical context is uniformly weak. The narrative appears generally unaffected by much recent historical scholarship on the history of San Francisco, especially in the late nineteenth and the twentieth centuries. One looks in vain in the bibliography for works by Robert Cherny, William Issel, Michael Kazin, William Bullough, or others. The result is that the minority newcomers are treated in an insular fashion, with little relation to or interaction with the social, cultural, economic, or political life of the city.

Third, the very concepts of "minority newcomers" and "host society" are extremely problematic in reference to the tumultuous and multicultural milieus that constituted both Gold Rush California as well as the instant city of San Francisco that was its commercial hub. Australians and Latinos, far from being newcomers to the gold rush, were in fact early arrivers. A considerable part of the resentment against them stemmed from the fact that when the Atlantic-based 49ers finally arrived in California in later 1849 and after, they found that people from the Pacific Rim, who did not have to come around the horn or endure a long overland trek, were already there. To call the later arrivals the "hosts" is to miss this reality and to impose on Gold Rush society a dynamic that was not there....

Fourth, the dichotomy that Mullen uses to structure his investigation is not one that he is able to sustain throughout the work. He tends to put the matter is stark "either-or" terms. Minority newcomers were criminals either because they were treated harshly by the host society, or because it was part of their culture. As he puts it, he is attempting to determine "to what extent the criminal violence can be credited to their treatment by the host community and how much can be traced to traits found in the immigrant community" (pp. 64-65). But, as the book goes on, Mullen finds himself adopting an explanation that uses neither pole of his dichotomy, but rather emphasizes the difficulties that second-generation immigrants had in adjusting to their society. He finds much of the violence in Irish, Italian, and African American communities to have been committed by the sons of the immigrants, and his explanation is social: "Some of the increase in violence in those eras can be traced to the second-generation hoodlums, those not fully assimilated into the new society but out of sorts with the values of the older members of their communities" (p. 116). This approach leaves behind the simple dichotomy around which Mullen organizes much of the book, and it is a pity that he did not attempt to develop it more fully.

But here we return to the great value of the book: the publicly available database. In August 2006, Mullen's book was the subject of a session at Pacific Coast Branch meeting of the American Historical Association. Three academic experts offered thoughtful and nuanced critiques of Mullen's work. Mullen responded well and reiterated the major points in the book. He then noted that, in freely posting his sources on line, he has provided other researchers with the very sources with which they can challenge his findings. He hoped that others would continue this research and advance the scholarship on the controversial and important topics highlighted by his book. This is a noble hope and it testified to the fundamental generosity of spirit that underlies this significant work.
The full review is here.

Sherwin on Law, Metaphysics and the New Iconoclasm

Richard K. Sherwin, New York Law School, has posted a new essay, Law, Metaphysics and the New Iconoclasm. It is forthcoming in the journal Law Text Culture. Here's the abstract:
Is seeing believing, or does the image deceive us? Must we look 'through' the image to get at unadulterated truth, or have we no choice but to make do with endless simulacra? Bruno Latour describes this uncertainty as “iconoclash.” We need the image, yet we fear it. We accept truth's dependence upon mediation, yet we yearn for meaning's unmediated purity.
In its yearning to discard imperfection, the iconoclastic impulse risks the twin dangers of nihilism on the one hand (“It's all constructed”) and fundamentalism on the other (“let transcendent truth shine through”).
Today's iconoclash is, at least in part, the offshoot of new digital communication technologies. These technologies have led to an unprecedented proliferation of images coupled with an equally unprecedented capacity to control the simulation of reality. Political and legal discourse has embraced these technologies together with the visual rhetorical strategies that they allow. As a result, law and politics have also inherited the same metaphysical anxieties that pervade society as a whole, for now they too must cope with concerns about our collective ability to distinguish truth and fiction, reality and fantasy, reason and desire.
Positivism, instrumentalism, and the ideology of the marketplace have failed to acknowledge, much less affirmatively respond to the challenges of iconoclash and the metaphysical impulses that underlie it. Given the growing uneasiness regarding the Liberal state's capacity to fulfill its own conventional standards for legitimacy, it is time to rethink the role of metaphysics in the quest for legitimating values.

Wednesday, August 1, 2007

Lamb and Nye on Presidential Leadership and Housing Segregation

Charles M. Lamb and Adam W. Nye, both of SUNY, Buffalo, Dept. of Political Science, have posted a new paper, Presidential Leadership and Housing Segregation. Here's the abstract:
This paper first presents a simple typology for comparing presidential leadership in federal housing segregation policy. Then, in separate sections, it surveys the development of housing segregation policy during the Truman, Eisenhower, and Kennedy administrations. Finally, in a short summary section, it integrates these findings with prior research from the Johnson through the Clinton administrations, using the presidential leadership typology presented earlier. It concludes that Truman and Kennedy exercised moderate liberal leadership in housing segregation policy while Eisenhower's administration was characterized by conservative nonleadership. By contrast, Lyndon Johnson exercised strong liberal leadership compared to the liberal nonleadership of Jimmy Carter and Bill Clinton. Like Eisenhower, Gerald Ford exhibited conservative nonleadership in this policy arena, Ronald Reagan and George H. W. Bush exhibited moderate conservative leadership, and Richard Nixon's fair housing policy qualified him as a strong conservative leader.

apologies, explanation, advice

If I am a little behind on following up on cross-posts, posting something you've sent me, responding to a tag or meme (always appreciated, though I'm not always sure how to respond to those!), or if you've noticed that I'm a little behind on blog maintenance...

It's not just summer deadlines. What summer would be complete without a Very Exciting Trip to the emergency room for the Official Mid-Career Back Injury?

(Frank swears that the final precipitating moment was not his fault, which is mostly right, but...there will be one less canine at the Institute for Advanced Study this fall. Doctor's orders: he's being bumped in my one-pet allowance by a cat. No dog walking for a while.)
I will be back on track before long. In the meantime, if I fail to follow-up on something, please send a gentle reminder, in a few weeks if it can wait.
So here's the advice: There are probably a couple of heath issues that can affect historians. I never had allergies until doing research in very moldy, dusty archives. About your back: If you get a nagging, stabbing pain in your lower back when doing archival research, but of course you never want to take a break because there are only so many hours the archives are open on your trip -- don't ignore it. Step #1: find ways to take breaks anyway. Step #2: if it keeps up, call your doctor now for a referral to a physical therapist. Best to avoid trying to write your book in the ER.

Krishnan on perceptions of the Indian Supreme Court

Jayanth K. Krishnan, William Mitchell College of Law, has posted a new essay, Scholarly Discourse, Public Perceptions, and the Cementing of Norms: The Case of the Indian Supreme Court and a Plea for Research. It is forthcoming in the Journal of Appellate Process and Practice. Here's the abstract:
For economic and nuclear reasons, India has received considerable attention over the last decade from observers in the United States. But attuned Americans are well-aware of India's rich culture and status as a shining constitutional democracy for most of its post-1947 independent history. For all that India has accomplished, however, its public has long viewed its government officials with great disdain. At the same time, a fascinating norm exists in this society which holds one institution in exceedingly high regard – the Indian Supreme Court.
In this article, I seek to examine what accounts for this counter-intuitive norm. As opposed to other state institutions, the Indian Supreme Court is perceived as uncorrupted and as an aggressive protector of individual rights. As I argue, these affirmative sentiments towards the Court mainly appear within scholarly discourse. The Court's various landmark judgments over the years certainly have enabled participants in this discourse to promote its reputation. But because actual evidence is lacking, we simply do not know if this scholarly norm reflects the perceptions of the mass public. Indeed the reality is that most Indians never have any contact with the Court; interaction with the legal process is usually done at the lower court level which can be delay-ridden and expensive. Moreover, because there are legal and social sanctions that can result from criticizing the Court, it may well be that many within the general public individually reject the scholarly norm but are afraid to speak-out or believe that they are alone in their disagreement. That this social-psychological phenomenon of pluralistic ignorance, which I discuss in detail, may be occurring has important implications, including forcing us to reexamine the extent to which the Court is able – in the eyes of the Indian public – to protect and advance a substantive rights agenda.

Tuesday, July 31, 2007

Hardeman reviews Mintz and Stauffer, The Problem of Evil: Slavery, Freedom, and the Ambiguities of American Reform

Steven Mintz and John Stauffer, eds., The Problem of Evil: Slavery, Freedom, and the Ambiguities of American Reform (University of Massachusetts Press, 2007) is reviewed on H-Law by Martin J. Hardeman, Department of History, Eastern Illinois University. Hardeman writes, in part:

The Problem of Evil: Slavery, Freedom, and the Ambiguities of American Reform
edited by Steven Mintz and John Stauffer...situates its twenty-two essays within a specific chronological and geographic context--for the most part. After a general introduction by Mintz, the book is divided into four parts (each with its own introduction): "Slavery and Freedom as Moral Problems," "The Antislavery Impulse," "Imagining Emancipation," and "Post-Emancipation America." " This volume," Mintz writes, "represents an effort to confront certain fundamental moral issues raised by American history, above all, the problem of slavery and its legacies of racism, racial exclusion, and racial inequality." And, again, for the most part, the essays confront moral issues within a specifically American context.

The first and longest essay, however, "The Ancient and Medieval Origins of Modern Freedom" by Orlando Patterson, is an exception. Tracing the origins of the West's concept of freedom to Greco-Roman philosophy and the precepts of Christianity, Patterson vehemently argues that these concepts preceded capitalism by twenty-two hundred years and that by at least the thirteenth century, liberty and freedom had acquired essentially their modern meanings.The last essay, Jack M. Holl's "Dwight D. Eisenhower: Religion, Politics, and the Evils of Communism," is also something of an exception. Holl closely examines the thirty-fourth president's view that a belief in God was fundamental to the concept of democracy. "Our form of government," Eisenhower stated in a 1952 address to the Freedom Foundation, "has no sense unless it is grounded in a deeply felt religious faith, and I don't care what it is." For him, faith and democracy were inextricably bound together.

The remaining twenty essays vary widely in length, depth, and subject matter. Ira Berlin's "The Transformation of Slavery in the United States, 1800-1863" and Paul Finkelman's "The Significance and Persistence of Proslavery Thought"are merely well-written summaries of much longer works. Others--Stanley L. Engerman and David Eltis's "Slavery and Evil," Randolph Roth's "Twin Evils? Slavery and Homicide in Early America," Peter Hinks's "Timothy Dwight, Congregationalism, and Early Antislavery," David Waldstreicher's "Benjamin Franklin, Religion, and Early Antislavery," Paula Kane's "The Supernatural and Slavery: Catholics, Power, and Oppression," and Jonathan A. Glickstein's "The Specter of White Chatellization: William Goodell's Abolitionist Thought"--are interesting, but seem somehow incomplete. Still other essays, by Catherine Clinton, Iver Bernstein, Sharon Hartman Strom, Laura Mitchell, Richard Wightman Fox and Ellen Dwyer, added specific insights and information to already established interpretations.

The remaining six essays each present unfamiliar aspects of important issues. For example, Robert E. Bonner's essay, "Confederate Racialism and the Anticipation of Nazi Evil," discusses Confederate leaders' growing reluctance to publicly declare that their new state would be an Herrenvolk republic. It would take sixty years, Bonner concludes, and Adolph Hitler to fully explicate Confederate racial ideology. Margaret M. R. Kellow's article, "The Oriental Imaginary: Constructions of Female Bondage in Women's Antislavery Discourse,"explores the relationship between white female abolitionists and the imagery of white Christian women enslaved by despotic and sexually depraved Moslem masters. And, in his essay "Bankruptcy and Bondage: The Ambiguities of Economic Freedom in the Civil War Era," Edward Balleisen performs a miracle of prestidigitation. He makes a close analysis of the federal Bankruptcy Act of 1867 interesting by examining its racial and class ramifications.

"Icarus Unbound: Ambition and Sin in Anglo-American Culture, 1560-1776" by William Casey King (similar to the essays by Engerman and Eltis, and by Margaret Keller) has discourse at its center. King investigates the changing definition of "ambition" over time and how its social, intellectual and moral transformation affected the institutional foundations of Anglo-American society. Finally, the essays of Michael Fellman ("The Transferability of Otherness: American Expansionists Greet the Filipinos, 1898-1902") and Leslie Butler ("Liberal Victorians and War in the Age of Empire") have a great deal in common. Although Butler's piece is broader in scope, both discuss how and why the articulate classes in the United States and Britain accepted or rejected overseas expansion at the turn of the twentieth century. Generally applying an exceptionalist model, Fellman views the United States' encounter with the Filipinos as an extension of 250 years of Indian fighting, on the one hand, and the suppression of subordinate races on the other. But, Butler points out that for Anglo-American liberals the choices they confronted were more that just "Benevolent Assimilation," racial suppression, or extermination. Their attitude depended on specific cases and there was not always uniform agreement about those cases. Only the goal of a universal liberal society remained constant; the ways and means of achieving that goal were for liberals always a matter of contention.

Mintz and Stauffer's The Problem of Evil is an interesting book. Its essays are uniformly thoughtful and well-written. They will be a useful starting point for students investigating the subjects with which they deal. The publishers have conveniently placed endnotes at the conclusion of each essay.(For example, Orlando Patterson's piece is followed by 106 such notes.) Yet,the editorial staff did allow an unreasonable number of typos and minor grammatical errors to slip pass them. Despite the volume's obvious virtues, I am still uneasy about its title. I detect just a whiff of presentism in several of its essays. However, I strongly recommend The Problem of Evil as a resource for academic libraries.
The full review is here.

Congleton on Rational Choice and Constitutional Democracy in America

Roger D. Congleton, George Mason University, has posted a new paper, Constitutional Exchange, Ideology, and Democracy in America, bringing rational choice to the development of constitutional democracy in the United States. Whether democratization in the United States has really occurred "peacefully and lawfully" and whether "no revolutions or revolutionary threats were necessary or evident," would seem to be questioned by much of the literature on the history of race and civil rights in the U.S., most of which is not cited in the paper. Many such works have been noted on the Legal History Blog, for example this and this. And on the under-studied nature of violence in American history, see this. For another, broader, take on the history of democratization, see Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History. Here's Congleton's abstract:
Constitutional democracy in the United States emerged very gradually through a long series of constitutional bargains. A theory of constitutional exchange grounded in rational choice models provides a good explanation for the distinctive features of American constitutional history, as it does for much of the West, although it does less well at explaining the timing of some of changes. No revolutions or revolutionary threats were necessary or evident during most of the three century–long transition to constitutional democracy in America. As in Europe, wealth-based suffrage laws were gradually eliminated, the secret ballot was introduced, and the power of elected officials increased. For the most part, this occurred peacefully and lawfully, with few instances of open warfare or revolutionary threats.

Monday, July 30, 2007

Call for Papers: Rupture, Repression, and Uprising: Raced and Gendered Violence Along the Color Line

Rupture, Repression, and Uprising
Raced and Gendered Violence Along the Color Line

APRIL 3-5, 2008
Conference sponsored by the
African American Studies & Research Program
University of Illinois at Urbana-Champaign

By marking the anniversaries of the 1908 Springfield, Illinois riot, and the cataclysmic events of 1968, this conference (re)investigates their legacies for a dawning new century. This commemoration also provides a powerful point of entry into larger scholarly conversations about the history of riots, other organized violence against racialized bodies (including sexual and state violence), rebellions and resistance, and their reverberations across time and
space.

Indeed, the violence in Springfield was but an episode in a broader pattern of white mob actions that encompassed Wilmington, North Carolina (1898), Atlanta (1905), East St. Louis, Illinois (1917), the “Red Summer” of 1919, and Tulsa, Oklahoma (1921). These urban racial pogroms, often backed by white police and governmental authority, were part of a long-term project of black subjugation, one that paralleled the emergence of the United States as a white supremacist empire in the Western Hemisphere and Pacific through the Spanish-American War (1898), as well as the continuing brutality of European colonialism in Asia and Africa.

Sixty years after the events of Springfield, the National Advisory Commission on Civil Disorders, headed by Illinois governor Otto Kerner, issued an influential report on a wave of urban conflagrations that peaked that year following the assassination of Martin Luther King, Jr. Detailing a web of U.S. racial stratification, the Kerner Commission report, and the urban revolts it addressed, came in the midst of a domestic and international sea change – radical U.S. popular struggles and reactionary countermovements; anti-colonial and anti-imperialist struggles in southern Africa, the Caribbean, and Latin America; the Tet Offensive in Southeast Asia; and the short-lived takeover of the streets by Parisian students and workers.

“Rupture, Repression, and Uprising” seeks domestic, comparative, and international/transnational explorations of varied forms of violence that cross disciplinary lines.

We welcome papers and organized panels on topics including, but not limited to, the following:

Racialized communities, structured, and state sponsored violence
1968, urban revolts, and Black Power
Interpreting the recent rebellions in the suburbs of Paris, France, and Sydney, Australia, and their parallels.
(Re)assessing the Moynihan Report, Kerner Commission, and constructions of the "underclass"
Teaching courses in racialized violence
Race riots in the U.S. and abroad
Prison revolt, the prison-industrial complex, and questions of state violence
Sexualized racial violence and feminisms
Violence and intersections of race, gender, and sexualities
Environmental racism as violence
Violence within urban racialized communities
Truth and reconciliation: social movement or state enterprise
Rebellion, "law and order," and the new revanchism
Red Scare and Red Summer

Deadline for panel and paper abstracts is November 1, 2007.
Submissions should be mailed electronically, to aasrp@uiuc.edu.
For general questions or information, please contact Jennifer Hamer or Lou Turner at aasrp@uiuc.edu or 217.333.7781. You may also visit the website.

Economists weigh in on "From Brown to Busing"

From Brown to Busing is a new paper posted by Elizabeth Cascio, University of California, Davis - Department of Economics; Institute for the Study of Labor (IZA); National Bureau of Economic Research (NBER), Nora Gordon, (affiliation unknown) and Ethan G. Lewis, Dartmouth College - Department of Economics. You have to pay to download the paper itself, but check with your library -- perhaps they have a subscription. Here's the abstract:
An extensive literature debates the causes and consequences of the desegregation of American schools in the twentieth century. Despite the social importance of desegregation and the magnitude of the literature, we have lacked a comprehensive accounting of the basic facts of school desegregation. This paper uses newly assembled data to document when and how Southern school districts desegregated as well as the extent of court involvement in the desegregation process over the two full decades after Brown. We also examine heterogeneity in the path to desegregation by district characteristics. The results suggest that the existing quantitative literature, which generally either begins in 1968 and focuses on the role of federal courts in larger urban districts or relies on highly aggregated data, often tells an incomplete story of desegregation.

Symposium Issue: Federalism Past, Federalism Future

Federalism Past, Federalism Future: A Constitutional Law Symposium is featured in the Spring 2007 St. John's Journal of Legal Commentary. Here's the table of contents, with links:

ARTICLES

The Supreme Court’s Federalism Revival And Reinvigorating The “Federalism Deal”
Preeta D. Bansal

How Congress Paved The Way For The Rehnquist Court’s Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban
Neal Devins

Facts On The Ground And Federalism In The Air: The Solicitor General’s Effort To Defend Federal Statutes During The Federalism Revival
Barbara Underwood

The “Federalism Five” As Supreme Court Nominees, 1971-1991
John Q. Barrett

Whose Ox Is Being Gored? When Attitudinalism Meets Federalism
Michael C. Dorf

Stop Federalism Before It Kills Again: Reflections On Hurricane Katrina
Stephen M. Griffin

Active Sovereignty
Timothy Zick

Sunday, July 29, 2007

Gellman reviews Wolf, Race and Liberty in the New Nation: Emancipation in Virginia from the Revolution to Nat Turner's Rebellion

More on the subject of slavery and the founding: Eva Sheppard Wolf, Race and Liberty in the New Nation: Emancipation in Virginia from the Revolution to Nat Turner's Rebellion (Louisiana University Press, 2006) is reviewed on H-Law by David N. Gellman, Department of History, DePauw University. Gellman writes, in part:

Some slaveholders had their faith in slavery shaken by the spirit of liberty,but the American Revolution failed to shake white Virginians’ commitment to slavery. Eva Sheppard Wolf’s book Race and Liberty in the New Nation would seem to be telling us what we should already know in charting Virginia’s commitment to its fundamental source of white wealth and status. But Americans,with good reason, continue to be disturbed by the paradox of slaveholding founding fathers like Jefferson and Washington enacting a radical experiment in republican liberty. Thus we treat the story of slavery in the new republic as one of tragic contingency (if only they had acted on their principles!), tragic in evitability (try though they did, what choice did they really have?), or an unstable mix of both. Wolf offers a tremendous service by providing a ground-level view of emancipation in Virginia that walks the reader chronologically through the law and practice of emancipation from 1776 to 1832. This approach provides readers with a clear view of the self-limiting nature of liberty in the new nation’s most important state. Virginia’s commitment to slavery was recurrently contested and debated; but the contest always ended the same way,with the refusal by white Virginians to embrace collectively a racially egalitarian future. This result had less to do with the hypocrisy of its Olympian political leaders than a more widespread “failure of imagination” (p.87) born of interest, fear, and racism. If there was a struggle for Virginia’s “and America’s soul, it was never fought on a level field. Virginia clung as a state to the institution that had defined it as a colony.

Wolf's narrative takes place under a tent held up by three poles, the Revolutionary War, Gabriel's Rebellion, and Nat Turner's Rebellion. She devotes only minimal space to describing these events--even though each represents a dramatic moment of violent black resistance that forced whites, powerful politicians and ordinary citizens alike, to think carefully about the place of slaves in Virginia society. Wolf is more interested in the deliberations that emerge from crises than the crises themselves. Her approach is sensible and efficient, given the existence of extensive scholarship on these events. Moreover, Wolf proceeds on the assumption that through the more ordinary process of drawing up manumission papers and drafting laws we see white and, to a lesser degree, black ideas about race and slavery most clearly revealed.

The impact of a disruptive war and its egalitarian ideology on slavery was limited but also highly revealing. The Revolution simultaneously stimulated "liberal" inclinations and "conservative reflexes" (p. xi). Thus,Virginia's small Quaker population put natural rights rhetoric into practice, encouraging and ultimately insisting upon manumission within their sect, and pushing judicial and legislative authorities to legitimize their emancipations. Methodists, officially establishing themselves as a church in1784, initially demanded that their members make plans to free their slaves. Some Baptists also expressed opposition to slavery. Virginia's political leaders banned the slave trade, although Wolf casts this measure in exclusively self-interested terms. Thomas Jefferson toyed with ideas for gradual emancipation laws, but brought no such measure before the provincial or state legislature. Slaves themselves, meanwhile, availed themselves in large numbers of the offer of Virginia’s last royal governor of freedom to runaways from patriot masters. But in Wolf's account, the signal accomplishment of the era was the 1782 "act to authorize the manumission of slaves." This law, which remained on the books until 1806, was a sharp departure from the laws that preceded it and those that would follow: masters wishing to free female slaves between eighteen and forty-five and males between twenty-one and forty-five could do so, without seeking individual approval by the legislature. Significantly, the law contained no provision demanding that freed former slaves leave the state. Yet the law did not attempt a systematic, state-sponsored program of emancipation, channeling emancipation exclusively through private individuals under certain defined conditions.

The law's limitations notwithstanding, the 1782 manumission law allowed whites to free their slaves and blacks to buy their freedom, thus fostering the emergence of much larger free black communities than existed in the colonial period. In the cleverest analysis in the book, Wolf investigates how, for whom, and to what extent the 1782 law reshaped behavior. While Wolf estimates that ten thousand African Americans gained their freedom through the aegis of this law, this is significantly less than other estimates. More importantly, she suggests that the breadth and ideological significance of the emancipations during this period has been overestimated by previous historians. Wolf samples manumission documents in eight counties in various regions to reach the conclusion that only in the first decade after the law went into effect can it be concluded that most masters freed their slaves out of a principled renunciation of slaveholding....After the mid-1790s, however, manumission assumed a different, and, to historians of ancient and modern slavery outside of North America, quite familiar pattern whereby individual slaves gained their freedom for special considerations or as a means of securing loyalty. This pattern was compatible with strengthening slavery, manumission being used by masters to create individual incentives for loyalty or performance....

The two concluding chapters of Wolf's study make clear that it was not the plight of people like Samuel Johnson that a developing cohort of antislavery politicians had in mind when, during the late 1820s, they began to question the role of slavery in Virginia. Rather, eastern elites themselves introduced slavery into the debate over a new state constitution in 1829 in order to counter western impatience with the disproportionate political power of the Tidewater. Easterners feared western efforts to expand the franchise by eliminating property holding requirements, so that far more white men in the west could vote. They also feared plans to reapportion the legislature to reflect white populations, which would have deprived the eastern regions of Virginia of the population advantage gained from its large number of slaves.Wolf indicates that conservatives beat back the call for electoral reform by raising the specter of abolition and by asserting that the egalitarian rhetoric of westerners, taken to its logical ends, would enfranchise free blacks, as well as women. Thus, according to Wolf, the defense of slavery forced eastern conservatives to refashion the ideals of the American Revolution as dedicated to the preservation of property rather than the extension of liberty. The two-fold effect of this ideological retrenchment was to blunt the western constitutional agenda and to inspire amongst many westerners an incipient free-soil philosophy that made them even more hostile to slaveholder interests.

Nat Turner's Rebellion delivered one more shock to Virginia's body politic that in 1831 and 1832 provided a final opportunity for Virginians to consider whether emancipation might reshape the state's future. Predictably, the problem of what the state should do with its current population of free blacks and the future increase that emancipation threatened, framed the debate and ultimately short-circuited it. Few white Virginia politicians saw the natural rights of black people as a major consideration. Legislators divided largely on sectional lines as to whether a gradual emancipation scheme freeing the offspring of current slaves violated the property rights of slaveholders. Western critics of slavery emphasized that the institution harmed economic and political development, preventing Virginia from realizing its full potential as a dynamic and virtuous society dominated by free white farmers. Ironically, a debate centered on slavery as a practical, not a moral, problem produced nothing but impractical plans that would have stretched out the emancipation process as late as 1910 and was undermined by the consensus of pro- and antislavery legislators that free blacks should be deported. A pervasive consensus on race thus ensured even the contemplation of conservative reform would produce complete inaction. In the thick of the age of Jackson, the eastern elite's colonial commitment to race-based slavery won the day in Virginia.

By taking into consideration a half-century sweep, from 1776 to 1832, and by viewing it as a period of prolonged transition, Wolf's work on slavery in Virginia would seem to mirror the project of Richard S. Newman and others who view the same period as a transformative one in the history of northern abolitionism. Defenders of slavery and critics, whites and blacks, worked out their ideas and strategies in real time, in reaction to unfolding events,interests, and political structures, not simply in response to a clear set of identified, albeit problematic, Revolutionary principles. In Wolf's case,ironically, she has to make this argument by repeatedly making reference to Revolutionary principles, measuring words and actions by the presence or absence of egalitarian and libertarian language. While she does show us Virginians responding to external events such as the War of 1812 and the Missouri Crisis, her argument might be stronger, and her portrait more textured, if she more frequently looked beyond the boundaries of conventional politics and expanded the range of voices that reflected on the meaning of race or recorded the presence of blacks, slave and free, in the Old Dominion. As it is, the Revolution is the measuring stick for ideology, despite Wolf's efforts to provide a story more deeply grounded in a changing social landscape.

Still, Wolf mounts an intriguing challenge to historians who have claimed that the Revolution had a powerful impact on thinking about race and slavery. Here emphasis on conservatism provides nuance to works by William Shade, Dickson Bruce, and Robert McColley. Wolf locates slavery and race closer to the heart of political conservatism in Virginia than does Bruce. In building on these previous perspectives, she interrogates claims by historians such as William Freehling, Gary B. Nash, and Duncan Macleod regarding the relative intensity of revolutionary liberalism, as well as casting doubt on whether oppressive ideas about race were really a response to the inability of the Revolutionary generation in the South to dismantle slavery. Colonial era habits of mind remained a crucial instrument of power in Wolf's account, merely tuned up for a new era. Throughout the half century that she examines, the persistent refusal by whites to accept the possibility of large numbers of free blacks and free whites living amongst one another, even on unequal terms,vanquished even the most cautious antislavery arguments....

Read the full (detailed and interesting) review here.

Saturday, July 28, 2007

Hilyerd on Lawyers in American Comic Books, 1910-2007

Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007. This is a new paper by William A. Hilyerd, Louis D. Brandeis School of Law at the University of Louisville. Here's the abstract:

Since comic books were first introduced in the 1930s, they have provided entertainment for children and adults alike. Most American males (and a significant portion of American females) have read comic books at some point in their lives, most when they were in grade school. In addition to providing young adults with their first glimpse of costumed heroes, comic books have also provided these same young adults with their first look at the legal profession. From the earliest days of comic books and strips through the present, attorneys have been prominently featured in American comic books.

The article begins with a discussion of the history of illustrated artwork and how that artwork evolved first into newspaper comic strips then into comic books. Next, comic strip and comic book attorneys from the early part of the 20th Century are identified and discussed. The introduction of Superman touched off the Golden Age of comic books. Part four discusses attorney characters which appeared during this Golden Age (1938-1946) and provides some background information on many of these characters. Part five discusses the decline of the reputation of comic books during the 1940s and 1950s and socio/legal attacks on comic books during the period.

By the middle of the 1950s, comic book publishers switched back to superheroes from the horror and suspense books. The switch back to superheroes brought with it a new crop of attorneys. Part six of the article identifies all of the recurring attorneys who appeared during this resurgence of interest in comic books, known as the Silver Age (1956-1969). Part seven provides discusses all of the attorney characters who appeared from 1970 through 1985. Part eight finishes the history of attorneys in comic books by identifying all of the attorneys who have had recurring roles in comic books since 1985.

Image credit: Harvey Dent, former Gotham District Attorney, in Batman.

Limerick reviews Pfaelzer, Driven Out: The Forgotten War Against Chinese Americans

Leading historian of the American west, Patricia Nelson Limerick, University of Colorado, reviews DRIVEN OUT: The Forgotten War Against Chinese Americans by Jean Pfaelzer in this Sunday's New York Times. "Thinking realistically about the history of the American West," Limerick writes, "easily lands on the list of this nation’s top 10 least favorite pastimes." She finds Pfaelzer's book a corrective. The book
tells the story of the “thousands of Chinese people who were violently herded onto railroad cars, steamers or logging rafts, marched out of town or killed,” from the Pacific coast to the Rocky Mountains. Despite the forceful adjective of Pfaelzer’s subtitle, this burdensome history has not been entirely “forgotten.” Scholars have written comprehensively and memorably about it. But it is surely accurate to say that a majority of Americans live without a recognition of the degree, scale and extent of these chilling undertakings.

Most know even less about the extraordinary record of the Chinese people’s responding to persecution with boycotts, petitions, lawsuits and demands for reparations. In Wing Hing v. City of Eureka, 53 Chinese men and women joined together in asserting that the Northern California city had a duty to protect its residents and in demanding reparations and financial compensation for the violence that drove them out in 1885. Confronted with the requirement, in the Geary Act of 1892, that Chinese immigrants carry an identity card proving they were in the country legally or else face deportation, thousands refused to submit to what they called the “Dog Tag Law,” thus undertaking what Pfaelzer says was “perhaps the largest organized act of civil disobedience in the United States.”

Altogether, Chinese immigrants filed more than 7,000 lawsuits in the decade after the Chinese Exclusion Act of 1882, “and they won the vast majority of them,” Pfaelzer writes. In truth, these efforts to claim the protection of American law should require historians to come up with a whole new understanding — in geography, chronology and cast of characters — of the civil rights movement.
Along with Alexander Saxton, Pfaelzer sees "the disappointment and disillusion that afflicted many seekers of fortune in the American West," as a motivating factor behind anti-Chinese violence. But Pfaelzer recasts it: “Whites saw in Chinese workers precisely what they hated about their own lives: hard and underpaid work, long hours, poor living conditions and a dearth of women.”

Limerick's incisive review finds much insight in Pfaelzer's book, but points to weaknesses as well. It is often tiresome to hear penetrating scholarship criticized for lacking a narrative flair, but Limerick makes a connection between what she sees as flaws in the book's execution, and the author's message.

Uneven quality of the writing has consequence. It gives the reader an unintended relief from an otherwise unrelenting confrontation with human cruelty. One more round of revisions, with sharper phrasing, clearer narrative and more thorough analysis, and Pfaelzer could have sealed off the reader’s route of emotional escape.
It looks as if an important book has met its match with a world class reviewer. Read the review here, and buy the the book at your local independent bookstore, or here.

Friday, July 27, 2007

2007 "Best of the Best" from the University Presses, on Book TV Saturday

You can find out what's on librarians' lists for the "2007 Best of the Best From the University Presses" on C-Span2 Book TV, Saturday, July 28, at 12:00 PM (Eastern time, US). (You can always view archived programs on the Book TV website later on.)

It is a broadcast of a program from this year's American Library Association Conference.

Just one of my favorites is John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American Law (Harvard University Press, 2007). This is an interesting book to think about for course adoption, especially for an American legal history survey, since the scope of the book takes you from law at the founding to 20th century tort law and the administrative state, always with an eye on the relationship between law and national identity. If you haven't yet revamped your teaching materials to "globalize" your American legal history course, this book will help with that. Witt takes up just four broad-ranging stories, which could be taken up at various points during a semester. And it's an elegant read. An excerpt is here.

I would be so interested to know about your favorites.

Pue and McQueen on Law's Empire

Wesley Pue, University of British Columbia, and Rob McQueen, Griffith University, have posted an essay, Law's Empire, which introduces a forthcoming symposium issue of Social Identities. Here's the abstract:
Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding “Law's Empire” in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007.
The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network, in publications of Melbourne University’s Postcolonial Studies Institute, UBC Press’ Law & Society series and through special issues of Law Text Culture, Law in Context and The Journal of Social Justice and Global Development.

Here's the table of contents for the symposium issue:

Rob McQueen, `Speaking and listening to words is how we know who we are`: An Introduction to `Laws Empire’

Ian Duncanson `Identities in the Colony and the Family: tragedies of ascription and transgression in two Australian films’.

Renisa Mawani `Legalities of Nature: Law, Empire and Wilderness Landscapes in Canada’

David Williams, `Maori social identification and colonial extinguishments of customary rights in New Zealand’,

Emma Cunliffe `Anywhere But Here: Race and Empire in the Mabo Decision’

Chidi Oguamanam and W.Wesley Pue `Lawyers’ Professionalism, Colonialism, State Formation and National Life in Nigeria, 1900-1960: ‘the fighting brigade of the people’

Fatou Camara ‘Women and the Law – A Critique of the Senegalese Family Law’

Dianne Kirkby ‘Honorary Chinese? Women Citizens, Whiteness and Labour Legislation in the Early Australian Commonwealth’

Balkin: Originalism is for Progressives

On the topic of how lawyers, legal scholars and judges argue about history, Jack Balkin has a post at Balkinization, Originalism is for Progressives, picking up on a point he has made in recent scholarship.

Rich on The Rise, Fall and Revival of Pro-Slavery Federalism

William J. Rich, Washburn University, has posted an article, Lessons of Charleston Harbor: The Rise, Fall and Revival of Pro-Slavery Federalism. It appeared in the McGeorge Law Review. Here's the abstract:
Traces conceptions of sovereignty and federalism especially as shaped by events that took place in and around Charleston Harbor. Eighteenth century understanding of sovereignty drew sharp lines between state and national authority, and the Eleventh Amendment reflects that division. The belief that state sovereignty retains force even within the context of supreme federal authority did not exist when the Constitution was drafted, arose in part as a defense of slavery in the 1820s, and framed the classic debates in the 1830s between Massachusetts Senator Daniel Webster and South Carolina Senators John C. Calhoun and Robert Y. Hayne. Following the Civil War (which began when shots were fired in Charleston harbor), Congress adopted the Fourteenth Amendment Privileges or Immunities Clause to resolve prior debates and put to rest state claims of a right to resist federal authority. By focusing attention on the history of Charleston Harbor, the author explains why Congress sought to bury the pro-slavery conception of federalism, and how recent Supreme Court decisions (including the decision immunizing South Carolina from federal administrative proceedings involving ships that dock in Charleston Harbor) revived that conception. The author concludes by discussing how nineteenth century lessons apply to development of a credible twenty-first century framework for federalism.

Thursday, July 26, 2007

Symposium: Law's History: How Law Understands the Past

Law's History: How Law Understands the Past
Friday, October 19th, 2007
The University of Alabama School of Law, Tuscaloosa, AL
Law in the modern era is one of the most important of our society's technologies for preserving memory. In helping to construct our memory in certain ways law participates in the writing of our collective history. It plays a crucial role in knitting together our past, present, and future. The purpose of this symposium is to examine law as an active participant in the process through which history is written and memory is constructed. Instead of seeing law as a "victim" of history, we want to treat law as an author of history, not just in the instrumental sense in which law can be said to make a difference in society, but in the ways that law constructs and uses history.
Law looks to the past as it speaks to present needs. In the production of judicial opinions—supposedly definitive statements of what the law is—judges reconstruct law's past, tracing out lines of legal precedent that arguably "compel" their decisions. Among the things we wish to explore are the varied ways law treats history, how history appears in legal decisions, and how the authority of history is used to authorize legal decisions.

Organized by Professor Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst and Justice Hugo L. Black Visiting Senior Faculty Scholar for the 2007-2008 academic year at the University of Alabama School of Law.

Speakers include:

Mary Dudziak, University of Southern California (paper abstract here)
Martin Flaherty, Fordham
Risa Goluboff, University of Virginia
Neal Katyal, Georgetown
William Novak, University of Chicago.

Registration information is here.

Achtenberg on Taking History Seriously: Municipal Liability Under Sec. 1983 and the Debate over Respondeat Superior

David Achtenberg, UMKC School of Law, has posted a recent article that contributes to the discussion of how to argue about history in contemporary legal analysis. His piece is Taking History Seriously: Municipal Liability Under 42 U.S.C. §1983 and the Debate over Respondeat Superior. It appeared in the Fordham Law Review. Here's the abstract:
The Monell doctrine - the most important obstacle to municipal § 1983 liability for constitutional wrongs - hangs by a thread. Four Justices of the United States Supreme Court have called for reexamination of Monell's conclusion that cities are exempt from respondeat superior liability for their employees' unconstitutional conduct. Plaintiffs' civil rights lawyers wait only for the right case and a single change in the Court's personnel before urging the Court to overturn Monell.
This Article is intended to provide those lawyers - and those who will oppose them - with a comprehensive, accurate examination of the relevant historical background, and an equally comprehensive description of new historical arguments for overruling Monell and for reaffirming it. This new work is needed because Monell relies on an historical analysis that is simply wrong, while Monell's critics rely on an analysis that is so incomplete that it is grossly misleading. Each side relies on history, but neither side has its history right.
The following pages attempt to correct and complete the historical record. Part I describes the current standards for municipal § 1983 liability under Monell: the rejection of respondeat superior and the creation of four categories of conduct for which cities can be held liable. It then discusses the idiosyncratically narrow nature of those four categories.
Part II shows that Monell's historical arguments for rejecting municipal respondeat superior are wrong. It explains that Monell ignored the actual nineteenth-century rationales for respondeat superior and as a result misinterpreted the rejection of a proposal (known as the Sherman Amendment) to make cities liable for injuries resulting from Ku Klux Klan depredations. It demonstrates that the rejection of that proposal not only was consistent with the nineteenth-century rationales for respondeat superior but also was compelled by those rationales.
Part III shows that Monell's opponents' current arguments are equally counter-historical. It explains that, while nineteenth-century common law did recognize municipal respondeat superior, the practical significance of that recognition was drastically diminished by a doctrine that treated a large and crucial group of city-paid workers as employees of the state rather than the city. As a result, incorporation of nineteenth-century common law rules would not, as Monell's opponents suggest, lead to restoration of meaningful municipal respondeat superior.
Part IV attempts to reframe the arguments on sound historical foundations. Part IV.A suggests that the Court should treat § 1983 as implicitly incorporating substantive nineteenth-century common law doctrine. It then shows that the now-forgotten (but then well-known) public officer liability doctrine provides a solid historical foundation both for Monell's rejection of respondeat superior and for its four theories of municipal liability. Section B attacks the foundation of that approach and suggests that the enacting Congress would have expected courts to treat the common law not as a set of ironclad rules, but instead as a flexible decision-making process in which unchanging fundamental principles - in this case, the rationales for respondeat superior - were applied to a changing world. It then shows that application of that process to current municipal employment relations would lead to reinstating respondeat superior.

Pottow on The Maxwell Case in Bankruptcy Stories

John Pottow, University of Michigan, has posted a new essay, The Maxwell Case. It appears in BANKRUPTCY STORIES, R. Rasmussen, ed., (2007). Here's the abstract:
International bankruptcy scholars well know the Maxwell case as probably the most important litigation precedent in this fledgling jurisprudential field. What they tend to know less about is the “back story” of the redoubtable Robert Maxwell (born Jan Ludwick Hock). A towering, inspiring, and larger than life figure, Maxwell built an international publishing empire that spanned the globe before it came crashing down in scandal after his mysterious death. This book chapter (in a book devoted to the back stories of famous bankruptcy cases) explores Maxwell's life, business, fall from grace and, of course, posthumous bankruptcy. In so doing, it analyzes both the legal issues involved in the regulation of cross-border financial distress as well as certain eternal truths about the human condition (and, indeed, the corporate form).