Reid on Marriage: Its Relationship to Religion, Law and the State

Charles J. Reid, Jr., Univ. of St. Thomas School of Law (Minnesota), has posted a new article, Marriage: Its Relationship to Religion, Law, and the State. It is forthcoming in Jurist. Here's the abstract:

This Article draws inspiration from the work of Fr. John Lynch, especially his studies of canonical influence on secular legal orders. Fr. Lynch appreciated that, in common with other legal systems, canon law was not a self-contained system of rules that should be studied in isolation from other intellectual currents. He further understood the pervasive influence canon law has had on western law generally, secular as well as sacred.

While the paper's purpose is broad – to examine the relationship of religion, the state, and marriage, it is largely historical in focus and concerned with the ways in which medieval canon law both directly and through the mediation of early-modern Anglican canon law, influenced American jurists and judges of the nineteenth and twentieth centuries. It has a philosophical dimension also, in its contention that this historical record reflects an inevitable human reality – that law and religion, marriage and the state not only have historically influenced each other but that they must do so, as a condition of a healthy society.

Marriage has been associated, within the western tradition, for nearly two millennia, with religious insight. In all societies, marriage is signified by some form of symbolic action or exchange; it reflects commitments not only by the individuals involved, but by larger communities, whether they be family, church, locality, or something larger or smaller than these groups. Marriage is a commitment that embraces not only the good of the parties, but points to something larger – a given society's sense of the ultimate.

Law itself points to a larger substantive vision of the good. For this reason, some, like Harold Berman, argue that the law itself has a religious dimension that we deny at the risk of imperiling the soundness of a society's legal order. And this religious dimension of law, this sense that the law must embody some larger, more transcendent understanding of right and wrong, also lies behind and animates much of the contemporary debate over marriage. Legislative or judicial attempts to sever the traditional bonds among marriage, religion, and law, are, for these reasons, doomed to failure, in either the short or the long term.

Opinio Juris on-line symposium on Posner & Vermeule, Terror in the Balance

Opinio Juris has been holding an on-line symposium on Eric Posner and Adrian Vermeule’s “Terror in the Balance.” You can get started here. Hat tip.

Quick links

In haste while a deadline is looming...

Niall Ferguson's review of The Most Noble Adventure: The Marshall Plan and the Time When America Helped Save Europe (Free Press) by Greg Behrman can be found at the New Yorker. Hat tip.

Emilye Crosby, Department of History, SUNY Geneseo, reviews Howard Ball, Justice in Mississippi: The Murder Trial of Edgar Ray Killen (University of Kansas press, 2006) on H-Law.

Looking for a JD/MA Program in Legal History? A discussion is on-going on H-Law. Go to this link and click on relevant posts.

Graber on Rosen on False Modesty, Judicial Restraint, and Felix Frankfurter

Mark Graber, Maryland, has posted the abstract for a new essay, False Modesty: Felix Frankfurter and the Tradition of Judicial Restraint. The paper itself is not posted, but Graber can be found here or at Balkinization. Here's the abstract:

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices "when they have tried to impose intensely contested visions of the Constitution on a divided nation." This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in those cases. Connecticut's experience with birth control suggests that one consequence of deep political divisions may be no clear policy at all, with substantial discriminatory consequences. Barnette suggests that the Court, when deep divisions exist, does not act unilaterally but with the support of prominent members of the dominant national coalition. Professor Rosen's analysis of Brown illustrates some problems with too sharp a distinction between legitimate judicial activism and judicial unilateralism. Exposing Justice Frankfurter's false modesty in cases involving birth control and flag salutes introduces further complications. What Justice Frankfurter insisted would be judicial unilateralism in Poe was, in effect, a judicial effort to make policy in the face of legislative paralysis. What Frankfurter regarded as judicial unilateralism in Barnette was the justices siding with the national executive against a few state legislatures. Judicial modesty may still have been appropriate in both instances, but that would have required a more honest assessment of the underlying constitutional politics than Frankfurter offered.

Wriggins on Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949

Jennifer Wriggins, University of Maine, has posted a new paper, Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949. Here's the abstract:

The essay explores the relationships between U.S. tort law, race, and legal culture in the first half of the twentieth century. The essay begins by highlighting two ways in which tort law and legal culture were glaringly white. First, whiteness was the default in the sense that litigants and witnesses were presumed to be white unless otherwise identified, and second, African-American people were excluded from decision-making roles in the tort system. Despite the whiteness of the civil justice system, black plaintiffs brought and won tort cases in all regions during this period. The tort system's institutional commitment to private enforcement and individualized resolution of claims resulted in significant access to the civil justice system for black plaintiffs. However, that same commitment to individualized resolution of tort claims allowed bias and inequality to devalue black plaintiffs' claims at every stage of tort litigation, in ways that were impossible to challenge. Despite the racist exclusions of the legal system and wider culture during this period, a theoretical commitment to equal treatment of tort victims persisted as an undercurrent in legal culture. Judges and others used a variety of attempted justifications, different in content but similar in structure, to rationalize their unequal treatment of black tort plaintiffs.

Fowler and Jeon: a quantitative analysis of The Authority of Supreme Court Precedent

James H. Fowler, U.C. San Diego, Political Science, and Sangick Jeon, U.C. Davis, bring quantitative analysis to bear on the question of how to measure the Supreme Court's authority, placing their study in the context of the assumptions about the Court's institutional weakness. The Authority of Supreme Court Precedent is forthcoming in Social Networks. Here's the abstract:

We construct the complete network of 30,288 majority opinions written by the U.S. Supreme Court and the cases they cite from 1754 to 2002 in the United States Reports. Data from this network demonstrates quantitatively the evolution of the norm of stare decisis in the 19th Century and a significant deviation from this norm by the activist Warren court. We further describe a method for creating authority scores using the network data to identify the most important Court precedents. This method yields rankings that conform closely to evaluations by legal experts, and even predicts which cases they will identify as important in the future. An analysis of these scores over time allows us to test several hypotheses about the rise and fall of precedent. We show that reversed cases tend to be much more important than other decisions, and the cases that overrule them quickly become and remain even more important as the reversed decisions decline. We also show that the Court is careful to ground overruling decisions in past precedent, and the care it exercises is increasing in the importance of the decision that is overruled. Finally, authority scores corroborate qualitative assessments of which issues and cases the Court prioritizes and how these change over time.

On the Blogosphere's critique of A Farewell to Alms: The author responds

Gregory Clark must be a happy man. His new book is not yet available, but it is already widely discussed in the media, provoking a critical reaction in the blogosphere. A Farewell to Alms: A Brief Economic History of the World, in case you have missed all of this, puts evolution and natural selection at the center of the history of the Industrial Revolution. The New York Times Science section essay on the book is noted here on the Legal History Blog.

Via Ralph Luker, Clark responds to his critics on Cliopatria. His bottom line: the critics need to read the book (as soon as they can get it...). The publication date is allegedly July 27, 2007, but Amazon says the book ships in 3-6 weeks(!). The Princeton University Press website has no information about availability, making it appear as if the book is available now, but that is apparently not the case. I would phone them to check.

In the meantime, the Introduction to the book can be read here. But readers will probably find more satisfying Clark's underlying research, which can be found in his working papers, available via his website. For example, there is The Great Escape: The Industrial Revolution in Theory and in History.

In his next project, we might not be surprised if Clark turns to the disconnect between promotion and production in academic presses....But at under $18.00 on Amazon, I suspect readers will spring for the book even after reading the papers.

Post-Doc at Penn on the topic of "Change"

The Penn Humanities Forum awards five one-year Andrew W. Mellon Postdoctoral Fellowships each academic year to junior scholars (received doctorate between December 1999 and December 2007) in the humanities who are not yet tenured. Recipients will pursue their own research, but relate it to the forum’s topic of study for 2008-09: Change. The topic director for 2008-09 is Peter Struck, Associate Professor of Classics.

Fellows will teach one class per term (a freshman seminar in the fall and an advanced course in the spring). The fellowship carries an annual stipend of $42,000 plus health insurance.

The deadline for applications is October 15, 2007. See the fellowship page for more details, and the application guidelines for instructions on how to apply.


Hat tip.

New Indiana Law Journal On-Line Supplement welcomes student writing

Announced by Douglas A. Hass, Executive Notes & Comments Editor, Indiana Law Journal, in an essay, The New Journal: A Supplement Not Undertaken Hitherto, on SSRN. The new supplement and submission procedures are not yet announced on the Journal website, so you should contact the Journal for more information. Here's the abstract:

While blogs or Wikis undoubtedly have an important, expressive place in legal discourse, these short-form outlets leave the demand for timely, interactive legal discourse unfulfilled. Printed law journals and online repositories like SSRN or Berkeley Electronic Press cannot address these needs either. This article introduces Indiana Law Journal's expanded publication, the Indiana Law Journal Supplement, and explains how the new online, short-form journal meets the Journal's original purpose and fills an important void left by other outlets.

The Indiana Law Journal has consistently been one of the few top-tier law journals to both encourage and publish significant student works. Ideas that advance the practice of law are no less vital simply because students - at Indiana or elsewhere - developed them. The article describes how the Supplement enables the Journal to amplify the focus on ideas, rather than who holds them. By offering both the interactivity and timeliness of blogs and the established path of legal scholarship provided by traditional law reviews, the Journal can further the purposes it first outlined in 1925.

Turner: two takes on The Racial Integration of Emory University

William B. Turner, Emory, has posted two interesting new papers on the history of racial integration at Emory University. The first is The Racial Integration of Emory University: Ben F. Johnson, Jr., and the Humanity of Law. Here's the abstract:

This article describes the racial integration of Emory University and the subsequent creation of Pre-Start, an affirmative action program at Emory Law School from 1966 to 1972. It focuses on the initiative of the Dean of Emory Law School at the time, Ben F. Johnson, Jr. (1914-2006). Johnson played a number of leadership roles throughout his life, including successfully arguing a case before the United States Supreme Court while he was an Assistant Attorney General of Georgia, promoting legislation to create Atlanta's subway system as a state senator, and representing Emory in its lawsuit to strike down the state statute that would have rescinded its tax exemption if it admitted African American students (Emory v. Nash, 218 Ga. 317 (Ga. 1962)). This account supplements my related article on Pre-Start, “'A Bulwark against Anarchy': Affirmative Action, Emory Law School, and Southern Self-Help” (SSRN abstract 1007006), providing more information about historical context generally, and particularly about Emory v. Nash. Johnson was ambitious for Emory as a whole, and particularly for the Law School, and he saw in segregation the single largest impediment to making Emory a nationally prominent research university. The story of Emory's integration, and Johnson's leadership, requires revision of the prevailing story of integration generally, and especially of universities. Integration at Emory came about because of the pressure that African Americans and their supporters created through the civil rights movement, but Emory administrators responded to such pressure more constructively than most (e.g., Universities of Alabama, Mississippi, Georgia, and Vanderbilt). Their actions provide an interesting case study in effective leadership during a period of significant moral and political conflict.

The second paper is 'A Bulwark Against Anarchy': Affirmative Action, Emory Law School, and Southern Self-Help. Here's the abstract:

This article presents archival evidence about Pre-Start, Emory Law School's affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are a chronic, anarchic threat to the rule of law, increasing the number of African American attorneys, everywhere but especially in the South, contributes to the state's role as a “bulwark against anarchy,” in Justice Thomas's phrase (539 U.S. at 353). I demonstrate that Pre-Start is an important case study in at least two other ways as well. First, very little legal discussion of affirmative action has focused on the South, yet any race-based policy will have a disproportionate impact in the South, given the region's history of slavery and segregation, and the fact that most of the nation's African Americans still live in the South. Second, opponents of affirmative action routinely characterize the originators and defenders of such policies as misguided or duplicitous. Emory administrators were neither. Pre-Start gives us the opportunity to look closely at the decisions of a group of law school administrators who ran an affirmative action program before Bakke, when neither public nor legal scrutiny was as significant as it is now. Finally, the historical context for Pre-Start demonstrates how much the current arguments against affirmative action in law school admissions resemble the arguments against racial integration of public schools in the first half of the twentieth century. This is not a claim about the intent of persons who oppose affirmative action, but a structuralist observation about the persistence of types of argument.

Reviewed: Watson, Sacco and Vanzetti: The Men, the Murders, and the Judgment of Mankind

"If it had not been for those things, I might have lived out my life talking at street corners to scorning men. I might have died unknown, unmarked, a failure. This is our career and our triumph. Never in our full life can we hope to do such work for tolerance, for justice, for man's understanding of man as now we do by an accident."

In this unattributed quote in John Dos Passos' The Big Money, are the most famous words Bartolomeo Vanzetti ever uttered, writes Art Winslow in his review of Bruce Watson's Sacco and Vanzetti: The Men, the Murders, and the Judgment of Mankind in the Los Angeles Times. Winslow writes:

Vanzetti spoke some close approximation of that to sum up seven years of travail, scant weeks before he and Sacco died in the electric chair in the first hour of Aug. 23, 1927, maintaining their innocence to the end. (The reporter who conducted the interview for New York World admitted the possibility of some embellishment.) By that time, the fate of the two Italian immigrants was an international cause célèbre, one that had waxed and waned along with a series of appeals and setbacks since their conviction in 1921 of having killed a paymaster and a guard in a payroll heist the year before in South Braintree.

Even at this historical remove, the two men, Watson writes, "haunt American history," in part because "there is little concrete proof in the case . . . only shifting stories and gut feelings."... There are...legalistic readings, such as that offered in 1927 by then Harvard law professor Felix Frankfurter, who termed Judge Webster Thayer's decision in denying appeals for a new trial "a farrago of misquotations, misrepresentations, suppressions, and mutilations."...Thayer himself was quoted variously as saying -- well away from his courtroom in Dedham -- that Sacco and Vanzetti were "Bolsheviki" and that he "would get them good and proper."...H.L. Mencken called the case "one of the most amazing scandals in the whole history of American jurisprudence."

Watson's integration of the case with its cultural context and his attention to Sacco's and Vanzetti's close connections to truly dangerous anarchist dynamiters are the main strengths of his account....Watson's agnosticism on the question of their guilt or innocence lets him present a cogent overview that avoids the tendentiousness some of his predecessors fall prey to.

The full review is here.

Update: Robert K. Landers weighs in less positively at the Wall Street Journal, concluding that "It's apparent that, as a historian, Mr. Watson is no Sherlock Holmes." The evidence is not as equivocal as Watson suggests, and supports the conclusion that Sacco was guilty, and Vanzetti innocent, he argues.

Heise on The Story of San Antonio Independent School Dist. v. Rodriguez

Michael Heise, Cornell, has posted a new essay, The Story of San Antonio Independent School Dist. v. Rodriguez: School Finance, Local Control, and Constitutional Limits. It will appear in Education Law Stories. Here's the abstract:

Part of the Education Law Stories, this book chapter tells the story behind San Antonio Independent School Dist. v. Rodriguez. Mindful of the challenges incident to the federal courts' effort to dismantle de jure and de facto school segregation, the Rodriguez decision evidences reluctance by some of the Justices to become ensnarled in an effort to dismantle school finance systems in way that would affect an overwhelming majority of the nation's public schools. By side-stepping such a confrontation, Rodriguez implicitly reveals important aspects about the federal courts and, in particular, how the Justices view their role in our federal system and the Court's ability as an institution to achieve sought-after policy goals. These various stories and perspectives, separately and collectively, enrichen, fuel, and complicate Rodriguez's enduring and evolving legacy.

Who edits Wikipedia? The CIA, Diebold (on their e-voting machines), and more

From Wired.com:

On November 17th, 2005, an anonymous Wikipedia user deleted 15 paragraphs from an article on e-voting machine-vendor Diebold, excising an entire section critical of the company's machines. While anonymous, such changes typically leave behind digital fingerprints offering hints about the contributor, such as the location of the computer used to make the edits.

In this case, the changes came from an IP address reserved for the corporate offices of Diebold itself. And it is far from an isolated case. A new data-mining service launched Monday traces millions of Wikipedia entries to their corporate sources, and for the first time puts comprehensive data behind longstanding suspicions of manipulation, which until now have surfaced only piecemeal in investigations of specific allegations.

Wikipedia Scanner -- the brainchild of Cal Tech computation and neural-systems graduate student Virgil Griffith -- offers users a searchable database that ties millions of anonymous Wikipedia edits to organizations where those edits apparently originated, by cross-referencing the edits with data on who owns the associated block of internet IP addresses.

[It was] inspired by news last year that Congress members' offices had been editing their own entries....

Continue reading here. Hat tip: NPR.

Update: This story has been widely covered in the media. The New York Times picks it up, outing Sea World, PepsiCo, Walmart, and even the NYT itself, well into page 2 of the story. The prize for the strangest edits clearly goes to the NYT.

Another update: Dave Hoffman at Concurring Opinions outs law firms.

Van Cleve reviews Copeland, The Idea of a Free Press, and Knudson, Jefferson and the Press

David A. Copeland, The Idea of a Free Press: The Enlightenment and its Unruly Legacy (Northwestern University Press, 2006) and Jerry W. Knudson, Jefferson and the Press: Crucible of Liberty (University of South Carolina Press, 2006) are reviewed on H-Law by George Van Cleve, Ph.D. candidate, University of Virginia. Van Cleve writes:

As the distinguished journalist Daniel Schorr shows in his foreword to David A. Copeland's The Idea of a Free Press, despite their stated adherence to the ideal of civil liberty, Americans have long had ambivalent feelings about unrestrained freedom of speech and of the press. As Copeland concludes, "the urge to suppress and censor is always elevated in times that are perceived to be dangerous for a country or a people.... Many truly believe that allowing extremist points of view to be expressed will destroy the foundation of a nation" (p. 225). In a time of rising terrorism accompanied by passionate disputes about the bounds of civil liberty, it is beneficial that Copeland and Jerry W. Knudson have offered works that revisit the history of the long and continuing struggle for press freedom.

Copeland's The Idea of a Free Press is an ambitious work that seeks to provide an intellectual and social history of freedom of the press covering several centuries in England and North America. The book contains a general survey of major Anglo-American thought about freedom of speech and the press, together with descriptions of a number of controversies on the subject,including prosecutions such as the 1735 John Peter Zenger libel trial. As part of its survey, the book also broadly traces the evolution of the law in this area. Although the book's topic and treatment would be of interest to general historians of the seventeenth and eighteenth centuries, particularly those interested in religious, political, and legal history, for many the work will serve as little more than a broad introduction to these issues, one containing an analysis of limited value on numerous points.

The book begins by considering the origins of the free press in England.Copeland argues that the earliest source of the idea of a free press in England was the tradition of religious dissent in that country that began with the Reformation and flowered into its astonishingly variegated expression during the English Civil War. Copeland considers the role of the press in the English Civil War, as well as the views of John Milton, John Locke, and others on free speech and the press in chapters 2 and 3....

Copeland shows that by the time period just after the Glorious Revolution, Parliament had largely abandoned licensing of the press in England, but that the law of seditious libel continued to be valid there, permitting such prosecutions after publication. He dismisses the omission of a guarantee of press freedom from the English Bill of Rights of 1689 as "inconsequential, for the most part" (p. 221). This is a questionable conclusion given the other provisions of the Bill of Rights, which are narrowly drawn to protect only the right of petition and parliamentary freedom of speech, and the course of English law on press freedom then and later, including the triumph of parliamentary sovereignty as the foundation of British constitutional thought.

Chapters 5 through 7 consider the history of free expression in the American colonies and during the American Revolution, including the rise of a "public sphere" in England and the United States. Copeland argues that during the eighteenth century, the public, particularly in the British colonies, gradually became unwilling to support the use of seditious libel by government officials as a means of controlling the press. He supports that contention through discussion of the Zenger trial and other prosecutions (pp. 153-163). Copeland's discussion (in chapter 7) of the role of the press during the French and Indian Wars is of particular interest. He argues that the French and Indian Wars prompted a sharp growth in the size of the press operating in the United States, and that the experience of seeking inter-colonial unity, and treating news from other colonies as being of local concern, prepared the press for its role as part of the resistance to Great Britain during the American Revolution. Copeland then offers a concluding chapter summarizing the history reviewed and offering observations about its significance.

Although ambition and breadth in a work like this are potential virtues, they are also the source of potential vices. Many historians will regret that the book lacks any systematic effort to engage with the historiography on the issues Copeland addresses, so that it remains unclear precisely how Copeland thinks he is advancing the discussion of his issues. (Though the absence of note numbers in the text suggests that perhaps this work was intended for a more general audience.) On the historical evolution of views about the proper bounds of press freedom (beyond the absence of prior licensing), the book fails to present any sustained thesis beyond the idea that "the Enlightenment" (a notoriously vague term used repeatedly as a makeweight here) had an "unruly"legacy. As intellectual history, some of its interpretations are open to question because they gloss over differences in thought with fundamental implications for freedom of the press. For example, although Thomas Hobbes and John Locke may both have believed in "natural rights" in some form, they had profound differences on the ground and nature of such rights that would have supported diametrically opposed views on press freedom (pp. 88-93). Similarly, readers will puzzle over broad statements such as "Leveller philosophy would become part of the Enlightenment rhetoric of ... the Founding Fathers of the United States" (p. 106), and not solely because the Levellers and the vast majority of the Founding Fathers had remarkably little in common on most issues, including how to actualize the principle of consent of the governed.

While the book says that it will explain how press freedom became part of the American Constitution's Bill of Rights, it paradoxically disclaims any effort to shed any light on the meaning of the First Amendment (p. 4). The book does explore the vigorous efforts of the Patriot press and public to suppress dissent during the Revolution (pp. 208-214). The author terms this suppression "regress[ive]," but still seems to think that perhaps contemporaries sufficiently steeped in "Enlightenment thought" could have understood suppression as consistent with an "absolute right of free speech"(pp. 223, 214). The author acknowledges that during the Revolution, printers were punished for seditious speech, if at all, only at the state level (p.214). Yet readers will find little exploration (beyond a general discussion of the work of Leonard Levy) of the implications of the fact that when the Bill of Rights was adopted, the First Amendment was widely seen only as a limitation on the Federal government, not on the states. Thus Thomas Jefferson could resolutely oppose the Alien and Sedition Acts, while later recommending state libel prosecutions against his political opponents as "wholesome ... in restoring the integrity of the presses" (quoted in Knudson, p. 169). Despite these gaps, there is a general historical conclusion about freedom of the press that can be drawn from Copeland's work, though perhaps not one that he would endorse.

Copeland's work shows that groups who seized power, such as the Cromwell government or the Patriots, also typically sought to suppress dissent, while colonial assemblies jousting with colonial governors generally supported press freedom. This history suggests that it has generally been the existence of contending centers of power seeking mass support, rather than ideology or news demand, which has determined whether the ideal of free speech and press became a reality. This conclusion about the sources of press freedom is also supported by the history of Thomas Jefferson's rise to political power, part of the focus of Jerry W. Knudson's Jefferson and the Press.

Knudson tells us that it is his purpose "to examine the interaction between the press and the administration of Thomas Jefferson ... by studying representative periodicals of the period" (p. xiii). He does this by summarizing for readers the results of his review of a total of fifty-six years worth of issues of eight early Republic newspapers. He organizes these materials by considering a series of major controversies of Jefferson's Administration, including the election of 1800-1801, Tom Paine's return to America, the Hamilton-Burr duel, the Republican assault on the Federalist judiciary, and the Embargo and related legislation of 1807-09 (p. xvi). The topic of Knudson's book will be of general interest to historians of the early Republic, particularly those interested in social and political history, but the author's approach and analysis will make it of limited value to them.

Knudson begins with three informative chapters that describe the state of the partisan press during Jefferson's Administration and provide general background on the editors of various newspapers and their political orientations and activities. At the time of the Revolution, Knudson notes, there were 39 newspapers publishing in the United States; by 1810, there were 360, or nearly a ten-fold increase in forty years (p. 1). By comparison, North American population roughly tripled during the same period, so the growth of the press was clearly an important social phenomenon in the early Republic. During this period, as Knudson shows, both public attitudes toward the press, and the role of public opinion in politics, were in sharp flux.

Knudson presents an illuminating quotation from the leading Republican editor, William Duane, who said: "there are in every society large masses of men, who never think or reason, some who have no capacity ... very unfortunately this mixture of ignorance, imbecility and hypocrisy is very numerous ... It is to the major part of this mass that all public discussions are addressed" (p. 5). In the early Republic, this low estimate of public information and opinion led, among other things, to elite opposition to the creation of political associations outside of government and to any form of public dissent by government officials. In such a climate, it was Thomas Jefferson's misfortune to be strongly opposed to the policies of the Washington Administration without any vehicle for expressing that dissent publicly.

As Knudson shows, the emerging partisan press came readily to hand as a political mobilization tool for Jefferson, because he could present his ideas through surrogates, whether pseudonymous writers such as his ally James Madison, or "sympathetic" editors such as Philip Freneau. During this period, Alexander Hamilton and Jefferson each had a partisan paper, and Knudson argues that their rivalry metamorphosed "into America's first political parties" (p.2). Knudson argues that the press shaped "the political parameters of Federalists and Republicans in the early national period" (p. 7), but historians might be forgiven for thinking that causation ran in the other direction, since Jefferson won a lot of his battles notwithstanding Federalist dominance of the press, and lost others despite controversies.

In chapter 4, Knudson considers the press coverage of the election of 1800. He shows that during the campaign, Jefferson was the subject of unrelenting attacks on all aspects of his personal morality and political views by the dominant Federalist press. Given that dominance, Knudson has some difficulty explaining the election of 1800. He concludes that "the Federalist press held the upper hand during the campaign"(p. 65), but then perhaps Jefferson should have lost. The more likely conclusion is that issues other than press coverage determined the outcome of the election, the conclusion reached by most other historians, who generally rely on a broader range of sources. (It is worth noting that Knudson's book contains several good illustrations, including a fine reproduction of one of the earliest American political cartoons from New York, 1793).

Chapter 6 covers the press treatment of the Louisiana Purchase. Readers are unlikely to learn anything new about the politics of the Louisiana Purchase from this chapter....

[W]hat was the relationship between public opinion and newspaper opinion during Jefferson's Administration? Knudson "takes issue" with Merrill Peterson's conclusion that Jefferson "had the good sense not to confuse newspaper opinion with public opinion" (p. 165). To support this view, Knudson asserts (without any evidence) that early Republic public opinion was generated primarily by newspapers, not by discussions in taverns, coffeehouses, markets, or churches: newspapers "kept the political fires kindled" (p. 165). Yet Peterson was undoubtedly correct here: Thomas Jefferson succeeded as the first American mass politician precisely because he understood public opinion as well as, if not better than,any politician during his lifetime, and because from behind the scenes he adroitly used newspapers to help shape that opinion. Jefferson's political tactics necessarily meant that he had to be acutely aware of the difference between the two types of opinion. Here and elsewhere, Knudson's work exaggerates the political influence of newspapers in the politics of the early Republic. Other works on newspaper politics during this era, as well as Sean Wilentz's treatment of various political and social organizations in the early Republic, and the rise of party organizations, are useful correctives to this view.

To read the full review, click here.

Sharfstein on Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600-1860

Daniel J. Sharfstein, who is starting this fall at Vanderbilt as an Assistant Professor of Law, has a new article in the Minnesota Law Review: Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860. Here's the abstract:

Scholars describe the one-drop rule—the idea that any African ancestry makes a person black—as the American regime of race. While accounts of when the rule emerged vary widely, ranging from the 1660s to the 1920s, most legal scholars have assumed that once established, the rule created a bright line that people were bound to follow. This Article reconstructs the one-drop rule’s meaning and purpose from 1600 to 1860, setting it within the context of “racial migration,” the continual process by which people of African descent assimilated into white communities.

While ideologies of blood-borne racial difference predate Jamestown, the rhetoric of purity was always undermined by the realities of mixture. Cases such as Hudgins v. Wright and State v. Cantey simultaneously strengthened and undermined the color line, expressing confidence in the permanence of racial difference while allowing people of color to become white. Instead of simply widening the racial divide, restrictions on the liberty and livelihoods of African Americans pushed many into whiteness. As more people became vulnerable to reclassification, courts acted to preserve social stability in Southern communities, shielding them from the insecurity that an insistence on racial purity would engender.

The one-drop rule’s transformation from ideological current to legal bright line and presumed social reality is a story not of slavery, but of freedom. In the 1840s and 1850s, the prospect of emancipation hastened the rule’s spread as whites attempted to preserve property relations in slavery’s absence. In Northern border states such as Ohio, the rule emerged by 1860 as a legal argument and a social attitude. The rule’s ostensible opponents—abolitionists—propagated it, deploying it as a rhetorical weapon to symbolize slavery’s cruelty and to argue that Northern whites could be enslaved. But the rule’s ascent did not make it any more enforceable than it had ever been.

The blogosphere's hello to A Farewell to Alms

Ralph Luker notes that "Nicholas Wade's preview of Gregory Clark's A Farewell to Alms, "In Dusty Archives, A Theory of Affluence," NYT, 7 August, has had widespread, often deeply critical, discussion on the net." He collects reactions here (scroll down), and seeks a response from Gregory Clark. Clark's book is noted on LHB here.

Update: Luker reports that Clark will respond on Cliopatria. I'll link to the post. Check back on Monday..

More on the history of religious minorities and the law: Peters on Yoder

To follow up on the last post, Shawn Francis Peters has another, more recent book: The Yoder Case: Religious Freedom, Education, and Parental Rights (2003). This is in the series: Landmark Law Cases and American Society from the University Press of Kansas. These books are often terrific for course adoption.

Here's the book description from the press:

Compulsory education has always been in the best interest of the state, as it fosters good citizenship and self-sufficiency. But what if a segment of society considers state education detrimental to its own values? In the late 1960s, one Wisconsin Amish community held that view and removed its children from public schools. When the state claimed truancy and took Jonas Yoder and two other parents to court, a legal battle of landmark proportions followed.

Prize-winning historian Shawn Peters now offers a complete and compelling account of the Yoder case and of the tortured decision of simple Amish folk to break tradition and "go to law." He examines the breadth of First Amendment protections, the validity of compulsory school attendance, and the fundamental rights of parents and children. He also takes readers deep into the world of the Old Order Amish to show how their beliefs were often at variance with the very measures being undertaken to protect them.

While most accounts of Wisconsin v. Yoder have focused on its origins and implications, Peters lays out all the facts of the case to reveal their intrinsic importance. He draws on trial transcripts and in-depth interviews with participants to fully explore the backgrounds, motivations, and strategies of the people who shaped the case-particularly the National Committee for Amish Religious Freedom and its attorney William Ball. He then describes in riveting prose how the trial unfolded, explains the impact of First Amendment jurisprudence on ordinary citizens involved, and shows how a relatively obscure dispute became a conflict of national importance.

When the U.S. Supreme Court in 1972 ruled in favor of the Amish, its decision was hailed by many as a victory for religious freedom but was also criticized for conferring special protection on one faith. Yoder was subsequently cited in fundamentalist Christian efforts to excuse children from public schooling, but faith-based exemption to law was ultimately defeated in other tests. Peters traces the progress of such cases into the 1990s to show how Yoder in some ways marked the beginning of the end of an era for religious liberty jurisprudence.

In exploring the meaning and legacy of Yoder, Peters reveals not only the human element of a landmark case but also its continuing relevance for our times.

And the blurbs:

“Sympathetic, yet rigorous, and grounded in a thorough grasp of Amish culture, this superb book shows how Amish religious convictions have reshaped religious liberty for all Americans.”--Donald B. Kraybill, author of The Amish and the State

“A masterly study of a case at the very heart of what free exercise of religion means.”--Melvin I. Urofsky, author of A March of Liberty: A Constitutional History of the United States

“Admirably blends a wonderful storytelling ability with a remarkable capacity to present complex legal aspects of the case in a way that’s easy to understand.”--Derek Davis, author of Original Intent: Chief Justice Rehnquist and the Course of American Church-State Relations

“An extremely illuminating study of a profound human drama.”--Sanford Levinson, author of Constitutional Faith

Rostron on Demythologizing the Legal History of the Jehovah's Witnesses and the First Amendment

Allen K. Rostron, University of Missouri, Kansas City, School of Law, has just posted a review essay, Demythologizing the Legal History of the Jehovah's Witnesses and the First Amendment. The essay takes up Shawn Francis Peters, Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution. While the book appeared in 2000, and the essay in 2004 (Quinnipiac Law Review), the essay makes a point that will be of interest beyond its examination of Peters' book. A particularly interesting criticism, which we could think of in the context of litigation involving other groups, is that Peters addresses the impact of the Witnesses on the law, but does not adequately turn his lens around, and explore the way involvement in litigation affected the Witnesses. Here's Rostron's abstract:

In 2002, for the first time in more than 20 years, the Supreme Court of the United States decided a case involving the First Amendment rights of Jehovah's Witnesses. The Court ruled that Witnesses cannot be required to give their names to local government authorities in order to obtain permits before going door-to-door to distribute their publications and preach their religious message.

While the amount of new law being generated by the religion's followers has slowed, scholars have finally begun in recent years to give significant attention to the legal history of the Jehovah's Witnesses, and, in particular, to their phenomenal wave of constitutional litigation. Shawn Francis Peters' Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution is the most recent, and broadest, historical account of the Witnesses' legal activities. Peters focuses on the period of the late 1930s through the mid-1940s, a time when persecution of the Witnesses was at its peak and the Supreme Court decided a flurry of major First Amendment cases involving the Witnesses.

Peters' book shares a fundamental flaw with previous accounts of the legal history of the Jehovah's Witnesses. He has chosen to passionately and unequivocally support the Witnesses' side of each and every one of the legal battles he describes. In Peters' hands, every episode in the Witnesses' legal struggles becomes a story about how an extraordinarily brave and dedicated Witness challenged an indefensible rule of law, and how every case ultimately resulted in either a watershed victory for liberty, or a disheartening judicial failure to protect our freedom. This Review considers the problems that arise in trying to force the history of the Jehovah's Witnesses into a uniform narrative of courageous opposition to unjust legal restrictions and prejudice. This form of legal history idealizes and oversimplifies the events underlying the cases and the issues they raise.

Part I of this Review describes Peters' approach, and how he consistently frames the legal history of the Witnesses as a confrontation between righteous dedication and legal harassment. Part II suggests that Peters and other historians have been so determined to applaud the Witnesses' effect on the law that they have overlooked the equally significant question of how participating in these legal activities affected the Witnesses. Part III closely examines one particular case in which the Supreme Court considered the First Amendment rights of Jehovah's Witnesses, in order to suggest how Peters' approach to the legal history of the Witnesses can distort representation of the facts underlying cases as well as analysis of the meaning and significance of the cases as legal precedent. Finally, Part IV suggests that Peters, like others, has also neglected the opportunity to gain a deeper understanding of the Witnesses' legal history through comparison of the Witnesses to other religious groups.

Menkel-Meadow on Interdisciplinarity and "Big Bang" moments in the history of Legal Education

Carrie Menkel-Meadow, Georgetown, has posted a new essay, Taking Law and.....Really Seriously: Before, During and After the Law. It has been published in the Vanderbilt Law Review. Here's the abstract:

This article reviews the history of different schools of legal education from Langdellian formalism to legal realism, law and economics, critical legal studies, feminist and critical race theory, clinical education, law and social science,law and literature, law and behaviorism, and pragmatism. It then offers a specific program for interdisciplinary legal education, including a remapping of conventional three year legal education and illustrates with several recent examples of innovations in interdisciplinary legal education.

Pether, Regarding the Miller Girls: Daisy, Judith, and the Seeming Paradox of in Re Grand Jury Subpoena, Judith Miller

Penelope Pether, Villanova University School of Law, has posted the abstract for a new essay, Regarding the Miller Girls: Daisy, Judith, and the Seeming Paradox of in Re Grand Jury Subpoena, Judith Miller. It was part of a symposium, The New Exceptionalism: Law and Literature Since 9/11 Symposium, and is published this year in Law and Literature. The essay is not posted, but the essay should be accessible in the published journal. The author's contact information is on her SSRN page. Here's the abstract:

“Daisy Miller” is a story about American Exceptionalism; about the banal and tawdry tragedy that comes of having faith in it; about Daisy's (the lawyer Giovanelli's “new found land”) tragic flaw - that she is unaware of how others perceive her, or she doesn't care; or about ambiguities, or seeing things. It can be made to speak volumes about the power of perception, as about what Tayyab Mahmoud has called “[a]doption and deployment of identity.” Or about the seductive power of fictions of specifically national identity: for James critic Leslie Fiedler, “the American Girl is innocent by definition, mythically innocent; and her purity depends upon nothing she says or does….”

A contemporary American anti/heroine, Judith Miller, is likewise figured as interpretable: did she need a “freely given” “personal” waiver of confidentiality to identify her source, and when did she get one; was she a “good, honorable principled reporter” or “A Woman of Mass Destruction”; and what did New York Times Executive Editor Bill Keller's accusation of an “entanglement” with “Scooter” Libby connote?

This essay takes the intrigues generated around “the Miller Girls” as a guide to reading the stories told by, surrounding, excised from, and immanent in the 2005 decision of the United States Court of Appeals for the District of Columbia in In re Grand Jury Subpoena, Judith Miller, and explores some fictions of American Exceptionalism cultivated both by “common law constitutionalism,” and by a Federal judiciary laying down the law in the shadows cast by the “War on Terror” and the jurisdictions of expatriation.

Barrozo on Punishing Cruelly: Punishment, Cruelty, and Mercy in the thought of Lucius Seneca

Paulo D. Barrozo, Harvard, has published a new essay, Punishing Cruelly: Punishment, Cruelty, and Mercy. It appears in the journal Criminal Law and Philosophy. Here's the abstract:

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca's De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca.

Reviewed: Saks, The Center Cannot Hold

Sherry Colb recommends Elyn Saks' new book, The Center Cannot Hold: My Journey Through Madness in a must-read post on Dorf on Law. The book is reviewed today in the San Francisco Chronicle. This is not really a history book. It is a personal memoir of a law professor's life with mental illness. But the SF Chronicle reviewer also notes that memoirs like Saks' have been made possible by historical developments: "this kind of vivid personal recollection exists in part because of our current breakthroughs in treatment and their relative novelty." We might see this book in two ways: a story of one of our colleagues, and also a memoir of one scholar's passing from one era of mental health treatment into another.

Clea Simon, in the SF Chronicle, writes in part:

Elyn R. Saks has been to hell and back. In this articulate and at times profoundly disturbing memoir, Saks, a professor at the University of Southern California Gould School of Law and adjunct professor of psychiatry at UC San Diego, recounts her nearly lifelong struggle with schizophrenia, including voices, visions and profound depersonalization.

For Saks, as perhaps for most schizophrenics, the disease started subtly. As a child of 7 or 8, she believed she was "dissolving ... like a sand castle with all the sand sliding away." Soon she feared unnamed strangers, and by puberty she stopped eating in an effort to gain control over her life....

But it wasn't until she went to Oxford University as a Marshall scholar that she truly began to lose her grip....Thanks to an incredible strength of will and a powerful intellect, Saks was able to keep herself more or less together, even as the voices and visions worsened. She spent time in hospitals and with a sympathetic psychoanalyst, and managed to graduate and apply to law school. Once at Yale Law School, however, her disease took control, and Saks describes Goya-esque scenes in which hospital restraints left her helpless against flying demons, and forced medications did little to stop the voices telling her she was not worthy to live.

Because of her current clarity, Saks' descriptions are chilling, and when she occasionally steps back, her explanations can be profound. "Psychotic people who are paranoid do scary things because they are scared," she writes, likening the experience to "that sweaty midnight moment when you sit bolt upright in your bed from a nightmare that you don't yet know isn't real." This is not easy reading.

To continue reading, click here.

Sherry Colb suggests that the lesson from the book "is that people with schizophrenia are not so different from everyone else and that what distinguishes them should make the rest of us feel lucky and empathic rather than superior and distant."

But then she goes on to talk about Elyn Saks, my USC colleague, in a way that makes clear that Elyn is not so much just like everyone else. Instead she has qualities we should aspire to:

Though mental illness has become increasingly common in the population..., the stigma attached to it has not abated very much over the years. And this is even truer of thought disorders such as schizophrenia than of the so-called mood disorders such as depression and manic-depression. For a person of status like Elyn to write a memoir of schizophrenia is accordingly to take a risk -- people can either look at others with schizophrenia in a new and more enlightened way or they can look at the writer of the book in a less flattering light and say "now we now that she is one of 'them.'" I am hopeful that most readers will do the former, but Elyn's willingness to risk the latter in her effort to educate us all says a great deal about her character.

For more from Colb on Saks, click here.

Elyn Saks is Associate Dean and Orrin B. Evans Professor of Law, Psychology, and Psychiatry and the Behavioral Sciences at USC. Her bio and bibliography are here. A recent interview on NPR's Fresh Air is here. Buy the book at your local independent bookstore, or here.

Photo credit: Elyn Saks.

Lillian Robinson Scholars Program offers fellowships in feminist studies

The Lillian Robinson Scholars Program has just been established to provide funding to bring outstanding feminist scholars to the Simone de Beauvoir Institute at Concordia University, Montreal.

Deadline: August 31, 2007

There are fellowships for both junior and senior scholars, for short-term residencies. Applicants for residencies under the Lillian Robinson Scholars program must be pursuing scholarship with a feminist orientation, although applications are accepted for work in any field(s) of inquiry. Applicants must have PhDs in hand, but need not be employed academics. Scholars have access during their residency to office space, a computer, the Institute Reading Room, and the University Libraries, plus the Institute’s community of feminist intellectuals and activists. They are expected to take an active role in Institute life, and to present their work in a public forum while in residence. Please note that priority will be given to scholars for residencies during the regular academic year (September – April).

The program is designed to be a living testimony to the legacy of Lillian Robinson(1941-2006), a leader in the field of women's studies and feminist cultural studies, who also worked extensively on issues of multiculturalism and the literary canon. Principal of the Simone de Beauvoir Institute, the women's studies program at Concordia University, Montreal, she also taught at institutions such as the University of Paris, MIT, the University of Hawai'i, and the University of Texas. Her six academic books include In the Canon's Mouth: Dispatches from the Culture Wars (1997), Night Market: Sexual Cultures and the Thai Economic Miracle (1998), and Wonder Women (2004).

More information and details about how to apply are here.

Abraham: Doing Justice on Two Fronts: The Liberal Dilemma in Immigration

David Abraham, University of Miami, has posted a new paper, Doing Justice on Two Fronts: The Liberal Dilemma in Immigration. Here's the abstract:

Two hearts beat in every liberal breast. One is the heart of non-discrimination - the commitment to propounding and furthering equal chances for all. This is the heart of human rights liberalism. Such a principle, built around individuals and their free choices, ought to be applicable everywhere and to everyone. There is indeed no obvious liberal principle that can rationalize the consequences that flow from one person's being born in San Diego and another's in Tijuana. This view is sometimes associated with the “global left” and often with the politics of “recognition” and “fairness.”

The second liberal principle is communitarian social justice, and that heart beats with almost equal vigor. Redistribution of some sort, effected primarily through the institutions of the state, is owed the poor and exploited, and it is due, first and foremost, and can be accomplished best, in one's own society and for one's own countrymen. This redistributional model recognizes international inequality and injustice, but it prioritizes solidarity with what one might call a community, a nation, or a country. This vision has lost a great deal of ground over the past 35-40 years, especially among elites but also among would-be critical intellectuals. This view is sometimes associated with the “sovereignty left” and often with the politics of “redistribution” and “justice.”

The tension may also be construed as part of a larger shift: from a communitarian, citizenship liberalism to a transnational, human rights or cosmopolitan liberalism. This essay examines the material as well as ideological aspects of this tension and looks at how it has reverberated through immigration, citizenship, and labor debates.

Dissertations on SSRN? Perhaps, but there CAN BE downsides

Larry Solum gives advice to graduate students on the Legal Theory Blog about making unpublished work available on SSRN. He says in part:

"SSRN provides an electronic alternative to the former practice of making dissertations "available" via a service that will provide bound photocopies. I can't really see any downside to this method of distributing research. Of course, many dissertations will become books, and others a series of articles, but that process frequently takes years to complete."

I agree that SSRN is a great way to distribute unpublished work. Whether it is wise for a historian to make their dissertation, especially the entire dissertation, available on the web prior to publication is another matter. There are two things to consider.

First, if you're planning to look for a book publisher, if your manuscript is readily available on the web, publishers may think that web access will undercut sales. If a market for the book is for course adoption, students might just download the SSRN version, rather than purchase the book. With publishers concerned about making ends meet, and since academic books tend not to have large sales as it is, putting the entire dissertation on the web might undermine your chances of finding a publisher.

The second issue is more complicated. If your dissertation is based on painstaking original research, you may want the world to know about it now, and you can do that quickly by posting on SSRN. But then you run the risk that someone else might publish a book or article based on your findings before your own book or articles are in print. This can happen without anyone engaging in plagiarism or unethical conduct. All they need to do is appropriately cite to and quote from your work.

With very original research, the better strategy might be to get an article out as quickly as you can that includes the most important findings. That article (or at least its abstract) can be posted on SSRN, and the published article is then out there for others to draw upon. You can then reserve the remaining material for the book. The originality of the material, and the fact that others haven't used those sources, helps you attract book publishers.

It's hard to protect against inappropriate borrowing, which of course does happen. But putting too much of your research on SSRN before publication enables others to make use of your material in an appropriate way, but that could dilute the originality of your book when it appears.

The way I've handled this issue: with Cold War Civil Rights, I first published an article, Desegregation as a Cold War Imperative. It was the article that caused me to decide to write the dissertation & book, rather than the other way around. The article made my research strategy accessible to others (through my citations), but at least I had a publication out first. Later I published just one story in the book as an article for the Journal of American History: Josephine Baker, Racial Protest and the Cold War. A version of the story appears as part of chapter two. And I published an article on the Little Rock Crisis, which served as the basis for chapter four. Some of the most dramatic material in the book appears in chapters five and six, on the 1960s. When writing those chapters, I was careful about where I circulated drafts. For example, when a colleague writing in a related area asked to see my JFK chapter, I sent it but specifically asked him not to discuss or cite to stories in the chapter that I wanted to appear for the first time in my book, rather than his. (This is getting into a different topic, but: sharing work is a good thing to do, but there are also times when it is ok to decline, especially with someone you don't know who is writing something similar to your dissertation/book.)

With my new book, also based on difficult, extensive archival research, I published an article, Working Toward Democracy: Thurgood Marshall and the Constitution of Kenya. The rest of the research has not been posted on SSRN and has only been circulated for the purpose of workshops. It will appear for the first time in the book.

So...yes, you should use SSRN, but with caution. Consider posting the introduction and table of contents (here is an example). And get at least one article published before the book, which helps build excitement about what's to come!

The 10 Comandments of Moving (academic version)

End of summer is the time that some of you are moving off for a visit, a first job, a post-doc, grad school or law school. It seems a good time for Tenured Radical's Ten Commandments of Moving, specially tailored for academics. Be sure to read the comments. And best of luck!

Post-Doctoral Fellowships in the Humanities at Columbia

A superb post-doc opportunity at Columbia University. Deadline October 8, 2007. Hat tip.

The Columbia Society of Fellows in the Humanities, with grants from the Andrew W. Mellon Foundation and the William R. Kenan Trust, will appoint a number of post-doctoral fellows in the humanities for the academic year 2008-2009. We invite applications from qualified candidates who have received the Ph.D. between 1 January 2004 and 1 July 2008. Fellows are appointed as Lecturers in appropriate departments at Columbia University and as postdoctoral research fellows. The fellowship is renewable for a second and third year. In the first year, Fellows teach one course per semester: at least one of these courses will be in the undergraduate general education program of the University. In years two and three, Fellows teach one course per year. In addition to teaching and research, the duties of Fellows include attendance at the Society's lectures and events as well as active participation in the intellectual life of the Society and of the department with which the Fellow is affiliated. The annual stipend will be $52,000. Each Fellow will also receive a research allowance of $4,000 per annum.

Links to application materials are here.

More from Carle: the role of the NAACP in the development of 20th century U.S. legal ethics

More from Susan Carle, American University: a series of earlier articles, recently posted, on the history of legal ethics. These two articles explore the important story of the role of NAACP litigation in the development of American legal ethics. The first is Race, Class, and Legal Ethics in the Early Naacp (1910-1920). It appeared in the Law and History Review in 2002. Here's the abstract:

The history of the NAACP is key to American conceptions of how to achieve social change through law. Yet despite the vast literature on the NAACP, no one has explored how the early NAACP navigated traditional legal ethics strictures in developing its innovative test case litigation strategies. In this Article, Prof. Carle examines that question, focusing on the activities of the elite white New York City practitioners who dominated the NAACP's first national legal committee between 1910 and 1920. Prof. Carle shows that this committee was experimenting with litigation strategies that included soliciting clients, advertising legal services to strangers, and staging facts for test cases. At the same time, legal committee members were involved in local bar associations that were enforcing legal ethics prohibitions against solicitation, advertising, and "stirring up" litigation. Prof. Carle explores the world view that allowed these lawyers to champion the NAACP's innovative legal work while simultaneously supporting the bar's traditional legal ethics views. She argues that the committee members' universalist understanding of the public good allowed them to endorse the NAACP's use of innovative litigation techniques while sitting on bar committees that penalized other practitioners for similar conduct, and that their professional and social privilege gave them such freedom to maneuver around inconvenient legal ethics norms in experimenting with new forms of public interest practice.

The story continues. From Buchanan to Button: Legal Ethics and the Naacp (Part II) appeared in the University of Chicago Legal Forum in 2001. Here's the abstract:

This paper continues an inquiry I have undertaken into the relationship between the NAACP's public impact litigation strategies and traditional legal ethics norms. In an earlier paper, I investigated the legal ethics mind set of the members of the NAACP's first national legal committee, who oversaw the organization's legal work in the period between 1910 and 1920. This first article confined its examination to the NAACP's first decade of existence, but the NAACP's influence on the development of the ethical norms applying to public interest law practice by no means ends with this early period. The NAACP's legal wars with hostile southern states in the 1950s and 1960s culminated in the United States Supreme Court's important legal ethics decision in NAACP v. Button. That case essentially legalized the public impact litigation techniques that are at the core of U.S. conceptions of how to use law as an instrument for social change.

This Article picks up where my earlier article left off and explores the transition from the early twentieth century legal ethics views of the NAACP's first national legal committee to the understanding of the relationship between legal ethics rules and public interest law reflected in Button. The transition from Buchanan to Button reflects one aspect of an enormously complicated story. One of many chapters of that story involved transformations in lawyers' conceptions of their ethical obligations. That is the aspect of the transition from Buchanan to Button I am interested in here.

I undertake this inquiry by setting up two contrasts. First, in Part I, I compare snapshot views of two U.S. Supreme Court cases the NAACP litigated half a century apart, Buchanan v. Warley and NAACP v. Button. Second, in Part II, I contrast the biographies of two leading NAACP lawyers of different generations, Moorfield Storey and Charles Hamilton Houston. I examine the socially and historically situated perspectives of these two lawyers and analyze the complex interactions among a number of variables -- including race, social standing, insider versus outsider status in the profession, political conditions, and changing jurisprudential conceptions of the nature of legal representation -- that help account for their different approaches to the NAACP's legal ethics challenges during their respective generations. Finally, in Part III, I trace the development of the Supreme Court's legal ethics jurisprudence under Button and suggest the beginnings of a critical approach based on this analysis.

Carle on Legal Ethics: the History of the 1908 Canons

This spring, Susan Carle, American University, posted on SSRN a series of earlier articles on the history of legal ethics. While we use SSRN most often for current work, posting earlier pieces is a great way to make them more widely accessible. Carle's three articles together provide a thoughtful window into early 20th century American legal ethics.

First is Lawyers' Duty to Do Justice: A New Look at the History of the 1908 Canons, which appeared in Law & Social Inquiry in 1999. Two articles by Carle on the NAACP and legal ethics will follow in another post. Here's the first abstract:

This article examines a long-forgotten controversy about lawyers' duties to evaluate the justice of their clients' causes in civil cases, which took place among the members of the Committee of the American Bar Association that drafted the 1908 Canons of Professional Responsibility. The article presents an analysis of newly discovered internal working documents of this important, but never before examined, ABA Committee, supplemented with primary historical research into the views and backgrounds of the Committee's members. The article demonstrates how a clash of perspectives among these men -- traceable in part to their backgrounds but also to their unpredictable allegiances to conflicting trends in legal thought at the turn of the century -- prevented the Committee from reaching a satisfactory resolution on the duty-to-do-justice issue. The Committee members instead adopted ineffectual compromise language in the Canons, leaving us with legacy of concealed ambivalence on the question of lawyers' "duty to do justice" in civil cases.

Duncan Kennedy's unpublished classic, The Rise and Fall of Classical Legal Thought, finds its way into print

The "most widely circulated and cited unpublished manuscript in twentieth-century American legal scholarship since Hart & Sacks' Legal Process materials" has been published. The Rise and Fall of Classical Legal Thought by Duncan Kennedy, a classic written in 1975, has been released by Beard Books. Here's the book description:

It began the re-evaluation of law in the Gilded Age, and gave it its current name of Classical Legal Thought. It was also one of the first and most influential of the works that introduced European critical theory and structuralism into the study of American law. This reprint comes with a substantial new Introduction that puts the work in context and relates it to current scholarship in the field. It should interest historians generally as well as readers curious about how our legal system got its special modern character. (The opening quotation is from legal historian G. Edward White.)

Duncan Kennedy is the Carter Professor of General Jurisprudence at Harvard Law School. He was one of the founders of the critical legal studies movement.

An earlier version of Kennedy's work can be found on-line here (scroll down). A bibliography of his writings can be found here.

Festa, Dueling Federalists, on how the Supreme Court cites The Federalist, 1986-2007

More from Matthew J. Festa, VAP at South Texas College of Law and the University of Georgia School of Law, on the way courts use history. This time: Dueling Federalists: Supreme Court Decisions with Multiple Opinions Citing 'The Federalist,' 1986-2007. The article is forthcoming in the Seattle University Law Review. Here's the abstract:

The use of history to interpret the law remains controversial, especially when historical evidence and arguments are used in Supreme Court opinions. While more commonly associated with a conservative or originalist jurisprudence, historical sources are in fact cited often by lawyers, academics, and judges from across the ideological spectrum in support of their legal reasoning. Perhaps the single most popular source for interpreting the U.S. Constitution is the collection of essays by Hamilton, Madison, and Jay known as The Federalist; no historical source has been cited more frequently by the Justices of the Supreme Court. This Article illuminates these issues by measuring a particular phenomenon: Supreme Court cases where multiple opinions cite the same historical source, The Federalist, even though the authoring Justices disagree on the outcome of the case. I measure the frequency of such cases from the beginning of the Rehnquist Court, which is often associated with the beginning of modern normative debates over originalism. In nearly one-fifth of all cases where one Justice cites The Federalist, a dissenting or concurring Justice also cites The Federalist to express a different interpretation of historical meaning. Furthermore, both liberal and conservative Justices cite The Federalist at comparable rates. These findings challenge the notion that only one side of a legal issue, or proponents of one judicial philosophy, can or should invoke historical support such as The Federalist. They also indicate the strong appeal of historical authority to the Justices even when their opinions reach opposing or conflicting results. Further research may reveal more information about how history can be most appropriately and effectively used to interpret law.

"The Google of African American History"

BlackPast.org, according to Elizabeth Grant of the AHA Blog, "has so much quality information in one place, this site just might be justified in calling itself 'the ‘Google’ of African American history.'" The site is organized by Quintard Taylor, Scott and Dorothy Bullitt Professor of American History, University of Washington.

According to BlackPast: This site is dedicated to providing reference materials to the general public on six centuries of African American history. It includes an online encyclopedia of hundreds of famous and lesser known figures in African America, full text primary documents and major speeches of black activists and leaders from the 18th Century to the present. There are also links to hundreds of websites that address the history of African Americans including major black museums and archival research centers in the United States and Canada.

From the AHA Blog feature: This site features an online encyclopedia containing 800 plus entries, transcripts of speeches from 1789 to 2004, collections of links and info on hundreds of other resources, and so much more. Peruse the Digital Archives and find links, separated by state, to sites like the Library of Congress exhibition "Voices of Civil Rights;" the Booker T. Washington papers from University of Illinois Press; and Indiana University’s Archives of African American Music & Culture. Visit the Timeline section of the site for breakdowns of African American history for each century. And check out the Perspectives on African American History for personal accounts and articles on events like the Brown v. Board of Education ruling, the rise of hip hop in Eastern Europe, and a lynching in Obion County, Tennessee.

Also to be found are links to the Schomburg Center for Research in Black Culture and other important research sites. There is much to find through this valuable web portal.

Image credit: American Sketches: A Negro Congregation in Washington. Artist unknown. Wood Engraving, Illustrated London News, November 18, 1876. LC-USZ62-50584.

Festa on Applying a Usable Past: The Use of History in Law, through the Law of Evidence

Matthew J. Festa has posted a rather timely new article, Applying a Usable Past: The Use of History in Law. It is forthcoming in the Seton Hall Law Review. The author is a Visiting Assistant Professor at both South Texas College of Law and the University of Georgia School of Law. Here's the abstract:

This Article explores issues raised by the controversial uses of historical evidence to interpret the law, both in legal practice and in scholarship. I argue that instead of requiring lawyers to wholly incorporate the professional standards of academic historiography, the most likely way (as a practical matter) to increase the quality of "lawyers' history" is to pay greater attention to principles of evidence law in historical analysis. Many have criticized the practice of writing "law office history," where lawyers not trained in historical method appeal to the authority of history for the purpose of making persuasive legal arguments. Conversely, others have aimed criticism at the historical profession for cloaking advocacy as scholarship. But the fact is that from judges to law professors, from practicing attorneys to laypersons, and from all areas on the political and ideological spectra, many Americans do conceive of the law in historical terms. Because of this, the use of history in law will never go away.

Historians and legal professionals have also clashed over whether and how history can be used to interpret the law. I conceive of the issue as one of disciplinary "jurisdictional" boundaries, where the legal and historical professions are each faced with the question of what to do when their subject matter overlaps. The apparent tension is easier to understand when it is cast as a contrast between competing professional standards: the historians' teleological goal of determining truth through objectivity, versus the legal system's goal of arriving at truth through adversarial practice. But advocacy and objectivity - seemingly at cross-purposes - both are in the larger sense systemic endeavors to gain the most just and accurate understanding of past events, based on appeals to authority and interpretation. Placing the issue in that framework helps us understand that jurisdiction over historical evidence need not be a turf battle or a zero-sum game, but an overlapping, or at best, collaborative venture.

There are several possible approaches for reconciling the standards of history with law, but most that have been suggested before are generally unrealistic or implausible. We already have a workable analytical tool, however, for evaluating historical claims at law: the law of evidence. While one possible approach toward improving the quality of historical evidence might be to use only court-appointed historical experts (in pursuit of objectivity), such a practice might only exacerbate the existing problems associated with using history in law. Rather, the legal system should treat historical evidence just like evidence from other areas of expertise: as evidence that a party may offer, which the court can determine whether it meets baseline criteria of professional reliability, and then consider and evaluate for admissibility, credibility, and persuasiveness; if another party disagrees, it is free to challenge that historical evidence on the merits or to offer its own more persuasive interpretation. A combination of both adversarial and objective historical expertise, constrained by basic principles of evidence law, along with a greater attention to professional historical standards, can give us a workable (if not perfect) framework for using history reliably in legal interpretation. This can be applied in the litigation process and, by extension, in scholarship.