Brophy on Property and Progress: Antebellum Landscapte Art and Property Law

Albert L. Brophy, University of North Carolina School of Law, has posted a new paper, Property and Progress: Antebellum Landscape Art and Property Law. Al previously blogged about this topic, with beautiful images, here. (The image posted is borrowed from his post.) Here's the SSRN abstract:

Landscape art in the antebellum era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property's role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain.

Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate intellectual, moral, technological, and economic progress. The paintings thus remind us of how antebellum Americans understood property, as they struggled with the changes in the role of property from protection of individual autonomy of the eighteenth century to the promotion of economic growth in the nineteenth century.

Hanson and Hanson on The Blame Frame: Justifying (Racial) Injustice

"[T]hough the history of ideas is a history of trial-and-error," begins the opening quote in an article by Jon D. Hanson and Kathleen Hanson,

even the errors illuminate the peculiar nature, the cravings, the endowments, and the limitations of the creature that falls into them . . . ; and they may further serve to remind us that the ruling modes of thought of our own age, which some among us are prone to regard as clear and coherent and firmly grounded and final, are unlikely to appear in the eyes of posterity to have any of those attributes. The adequate record of even the confusions of our forebears may help, not only to clarify those confusions, but to engender a salutary doubt whether we are wholly immune from different but equally great confusions.

—Arthur O. Lovejoy (1936)

Hanson and Hanson's article, just posted on SSRN is The Blame Frame: Justifying (Racial) Injustice in America. While new work in law and psychology often does not intersect with history, Hanson and Hanson bring the two fields together. The article appeared in the Harvard Civil Rights-Civil Liberties Law Review (2006). Jon Hanson, Harvard Law School, blogs on topics like this at Situationist. Here's the article abstract:

This Article attempts to elucidate how our forebears, who were presumably as devoted to justice and liberty in their times as we are in ours, failed to condemn behaviors that are today widely viewed as patently oppressive, unfair, and even evil.

Our argument unfolds in several Parts. Part II summarizes evidence from social psychology and related fields that helps explain how people who imagine themselves fair and just routinely blame the victims of inequities and excuse the perpetrators or passive observers through blame frames.

Because humans crave justice, salient suffering or inequalities activate an injustice dissonance within us. Too often, we alleviate that dissonance, not by addressing the injustice, but by creating an illusion of justice through assumptions, arguments, or stereotypes about the blameworthiness of the victim. Part II then describes three powerful blame frames that have coexisted, while alternating in dominance, throughout American history: the God frame, the nature frame, and the choice frame.

Part III elucidates through a few prominent examples how blame frames have operated throughout history to relieve our forebears' injustice dissonances and to perpetuate systems of oppression. The motivated attributions underlying those blame frames acted to legitimate laws, customs, and practices that today - with the benefit of hindsight and the lens of a new frame - are recognized as clearly unjust.

Part IV argues that we suffer an equally great confusion today, but the injustices that haunt our generation are soothed less by the God and nature frames and more by conceptions of choice. Choicism attributes disparities to the preferences and character of individuals and their groups. Although choicism purports to be colorblind and non-discriminatory, it is, unfortunately, just the latest cloak veiling racism and other groupisms while allowing us to blame victims and excuse non-victims. Part IV, by examining public reactions to Hurricane Katrina and her aftermath, then shows how Americans experienced an unusually powerful and intractable injustice dissonance when the winds, water, and desperation exposed inequalities that choicism could not readily justify. For at least a moment, Americans faced what seemed to be strong evidence of racial injustice. Part IV reveals some of the ways that a set of overlapping and largely camouflaged blame frames obscured and confused the public discourse regarding Katrina and the injustice dissonance she wrought.

Finally, this Article argues that only by understanding the sources and effects of blame frames can we ever hope to end oppression and thereby live according to the fundamental values we espouse.

Review Round-Up: Books on Hamdan, Guantanamo, Empire, and more

HABITS OF EMPIRE: A History of American Expansion by Walter Nugent (Knopf) is reviewed today in the Washington Post. Michael Grunwald find it a "generally scrupulous chronicle of American territorial expansion," but raises questions.

Nugent argues that the story of American imperialism is really one continuous story of expansion divided into three phases stretching from the end of the Revolution to the misadventures of the Bush Administration: the "continental empire," the "offshore empire" and the "global or virtual empire." But those are three very different stories; the second is relatively unimportant, and the third is not really about empire. Not all imperialism is created equal, and not all imperiousness is imperialism.

Continue reading here.

Jonathan Mahler, The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power (Farrar, Straus and Giroux), gets a breezy, unenlightening review in the New York Times by Bryan Burrough. Seth Lipsky channels Anthony Lewis in a breathless review of Mahler entitled "Hamdan's Trumpet" in the New York Sun. Burrough would only recommend the book to lawyers, but Lipsky finds it "a riveting read." For Lipsky,

Mr. Mahler's narration is neither an anti-war tome, accusatory opus, nor political polemic. Rather it is a reaffirmation — a celebration even — of America's constitutional government, in which a doughty naval officer and immigrant constitutional enthusiast could, in the midst of a war, sue the commander in chief on behalf of a low-ranking enemy detained in a cell at the edge of America's jurisdiction, and best the entire federal legal apparatus. Even for those who don't agree with the decision in Hamdan, the book will be a reminder of justice's grandeur in our country.

Descent into Chaos: The United States and the Failure of Nation Building in Pakistan, Afghanistan, and Central Asia by Ahmed Rashid (Viking) is reviewed in the San Francisco Chronicle. Steve Kettmann writes: "If you have had trouble making sense of the ever-gloomier headlines from Afghanistan, where a single attack in mid-July killed nine Americans and monthly U.S. death tolls are now higher than in Iraq, because of the resurgence of the Taliban, Ahmed Rashid's new study of the badly botched U.S. campaign in the area ought to be required reading." Raymond Bonner's New York Times review is a commentary on American policy in the region.

The Way of the World: A Story of Truth and Hope in an Age of Extremism by Ron Suskind is reviewed for the Los Angeles Times by Tim Rutten. The book takes up the Bush Administration and the war on terror. Because of Suskind's past work, Rutten writes, "a reader comes...to 'The Way of the World: A Story of Truth and Hope in an Age of Extremism' with high expectations. One is likely to get up, however, feeling frustrated, confused and in need of further reassurance from the author as to the substance of some of the book's most serious allegations."

Finally, MY GUANTÁNAMO DIARY: The Detainees and the Stories They Told Me (Public Affairs) by Mahvish Rukhsana Khan, an interpreter who worked with detainees is reviewed by Jeffrey Rosen in the New York Times.

Transitions

Many thanks to Beth Hillman for her posts as a terrific guest blogger!

Look for some changes on the Legal History Blog soon. I created the blog in November 2006. It has been a solo blog since that time, with the addition of guest bloggers over the past few months. This coming week I'll announce an LHB on-going co-blogger. Moving from a solo blog to a group blog will enable the Legal History Blog to keep you current on new scholarship, and to vary the nature of the posts. It will also keep the blog going during times when my attention needs to be elsewhere. (My summer reading has involved a combination of Clausewitz, Machiavelli and Foucault, which tends not to lend itself to quick blog posts!)

Guest bloggers will be a regular feature, which helps diversify the content. I hope you will enjoy the upcoming changes. Thank you for reading!

Birckhead on North Carolina, Junvenile Court Jurisdiction, and the Resistance to Reform

North Carolina, Juvenile Court Jurisdiction, and the Resistance to Reform is a new article by Tamar R. Birckhead, University of North Carolina at Chapel Hill School of Law. It appears in the North Carolina Law Review (2008). Here's the abstract:

North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Thirty-seven states cap juvenile court jurisdiction at age eighteen, while ten do so at seventeen. In addition, as reflected by international treaties and instruments, many nations of the world consider eighteen to be the most appropriate age for delineating between juvenile and adult court jurisdiction. Not surprisingly, the consequences of North Carolina's scheme for prosecuting minors can be particularly severe. The approximately 26,000 sixteen- and seventeen-year-olds who are convicted each year in North Carolina's criminal court system encounter significant barriers when attempting to secure employment or access higher education. According to empirical research, a less punitive approach to youth crime lowers recidivism rates and better protects public safety. Further, providing intensive probationary supervision and rehabilitation to young offenders, rather than incarcerating them with adults, is consistent with recent findings in the areas of brain development and adolescent psychology. Nonetheless, resistance to raising the age of juvenile court jurisdiction in North Carolina has been steadfast, with vocal opposition from law enforcement and prosecutors.

This Article examines the repeated attempts by advocates and lawmakers to raise the age of juvenile court jurisdiction in North Carolina. Grounded in primary source materials and legislative records, the Article demonstrates that there has been a recurring pattern over the past century: despite the backing of scholars, child welfare experts, and prominent legislators, proposals to extend jurisdiction from age sixteen to ages seventeen or eighteen have been consistently defeated. Although the precise reasons for North Carolina's refusal to join the majority are difficult, if not impossible, to identify, this Article suggests several likely causes: the self-perpetuating claim by opponents of raising the age that an already-underfunded system should not be expanded; the enduring power of the specter of youth violence; and the continued reluctance of the bench and bar to view juvenile court as a critical forum requiring specialization and commitment from its participants, rather than a mere training ground for inexperienced judges and lawyers. Finally, the Article argues that an appreciation and understanding of the historical context should cause lawmakers to revisit the issue with a greater sense of urgency, providing them with the momentum needed to break with the status quo and to raise the age of juvenile court jurisdiction in North Carolina.

Caplan on The History of Women's Jury Service in Washington

The History of Women's Jury Service in Washington by Aaron H. Caplan, Loyola Law School - Los Angeles, has been posted on SSRN. It appeared in Washington State Bar News (2005). There's the abstract:

From 1883 to 1887, women in the Washington territory served as jurors just as they do today. But unlike today, their presence was a source of great legal and social contention. Critics claimed that allowing women to serve as public decision-makers in the state's courts was a misguided experiment that violated the laws of nature, and would lead to dire consequences for family and society. A backlash followed that removed women from juries.

This article describes the decade-long tug of war between the Washington legislature and the Washington Supreme Court over the related questions of women's right to vote and their right to serve on juries. The ability of women to serve on juries was twice upheld by the Supreme Court in 1884, but it was stricken down in 1887 in a decision that unexpectedly found that the statute granting women the right to vote (one of the prerequisites to jury service) was unlawfully adopted due to a defect in the bill's title. The legislature responded with a new bill to re-enfranchise women in 1888, but this was invalidated later that same year as a violation of the federal Organic Act that outlined the powers of the territorial government.

Upon statehood in 1889, the state's (male) voters were asked to vote separately on whether the new constitution should extend the franchise to women. The measure failed, in part due to the widespread concern that female voters were likely to support alcohol prohibition. The constitution was amended in 1910 to extend the vote to women, ten years before a similar amendment was made to the U.S. constitution.

Suffrage did not immediately translate into equal jury service for Washington women, as various opt-in and opt-out provisions in place during the early twentieth century meant that women were chronically underrepresented on juries. A sex-neutral jury service statute was ultimately adopted in 1967.

Designing the Research Seminar

One of my favorite courses to teach is a research seminar. Since Beth Hillman shared her California Legal History syllabus, I thought I’d share some tips for designing a successful research seminar.

For my first decade or so in teaching, I regularly offered research seminars on Civil Rights History and Civil Rights Law, and on Law and Social Change in Postwar America. (I would now say Post-World War II, rather than "Postwar," since the postwar years have been war years, but that’s another topic...). Law students with no previous experience doing historical research wrote award-winning papers for my seminars, and a number of students published their papers. Graduate students used the seminars to begin dissertation work.

Two things helped make these seminars successful: the structure of research and writing assignments, and the collaborative atmosphere in the seminar, with students providing feedback on each others’ work. All of this I borrowed from my own experience in graduate school. My model was David Montgomery’s labor history research seminar in the History Department at Yale. I modified his assignments a little to get them to work in my law school setting, but most of what I did was straight from Montgomery’s class. This structure should work with any subject area. What matters is having a class intensely focused on research, regular written feedback from the professor, and a collaborative atmosphere among the students.

Montgomery’s class, and most of my seminars, were year-long seminars. During the fall, the class would meet weekly for reading and discussion in the substantive area the course was focused on (e.g. civil rights history). Preliminary assignments were due in the fall. The spring semester was devoted to research and writing drafts. If the seminar lasts only one semester, the assignments must begin earlier, with topic selection a priority during the first two weeks, and first drafts circulated well before the end of classes, making for a difficult, but not impossible, schedule.

Here’s the basic outline for the writing assignments:

Fall semester

1. Paper topic essay

A few weeks into the semester, students turned in 2-3 page paper topic essays. These were discussions of topic ideas. They could be informally written, but the student should have explored the topic idea enough to write about what the paper would entail and what sort of research would be required. I encouraged them to suggest alternative topics if they were undecided. Then I would then give the students written feedback, and meet with each student to refine their topic.

I think of helping students with topic selection as one of the most important things we do in shepherding students toward successful papers. Doing this early in the course helped ensure that students didn’t waste time on unworkable topics. Often proposed topics needed to be narrowed down. A guiding principal was the available research materials, so students began thinking about available primary sources that they would have access to during the course. (For example, at the University of Iowa, one student wrote about McCarthyism at the university, using U of I archives. Another student wrote about a woman who I think of as the Rosa Parks of Des Moines, sitting in at a segregated lunch counter in the 1940s, relying in part on an oral history interview she conducted. Availability of sources nearby that the students could access ensured that students could to serious, original research. You don’t have to be near the National Archives for students to be able to do original historical research.)

Once we were through with paper topic meetings, everyone in the class had a topic that they would be able to complete the research on during the academic year.

2. Research Prospectus and Annotated Bibliography

This assignment is a 3-5 page expansion of the paper topic and a discussion of how the proposed research will be accomplished, along with an annotated list of relevant primary and secondary sources. In a two-semester seminar, this would be due at the end of the fall semester. (In a one-semester seminar, a revised paper topic essay can be a substitute.)

These assignments were distributed to everyone in the course. In Montgomery’s seminar, we convened for a long session with dinner at his home, and the entire class discussed each person’s topic, identifying potential problem areas and offering research suggestions. Especially during my single-parent days, the dinner-at-the-prof's-home wasn’t really an option, but a good, robust discussion can happen over a very long lunch or an in-class meeting over dinner.

I would follow up with written comments on the assignments. Often the class discussions gave me ideas that I incorporated into my feedback. After this assignment, students should be very well focused and (hopefully) inspired to embark on a major research project through the rest of the academic year.

Spring Semester

3. Workshopping first drafts

During the beginning of the semester, nothing was scheduled and the students focused on research and writing, meeting with me individually when they needed to. Around the middle of the semester, we held several long sessions during which two or three students would present their first drafts. The drafts would be due a week in advance, and everyone in the class was required to read and comment.

Students took the first-draft deadline seriously because they knew their peers would receive their papers. For these meetings, sometimes I required students to provide written comments or to sign up to be discussion leaders (something I also did during the fall to ensure student engagement).

I also provided extensive written feedback on drafts. After this assignment, students should have a good sense of what they needed to accomplish by the end of the semester to turn in a successful paper.

4. Final papers

Final papers were due at the end of the semester usually before final exams.

Other tips:

Involving the library. Even though more research databases are accessible on-line, it’s helpful to have a session with a librarian in the library. The best time for this is usually after the paper topic essay, and well before the prospectus and bibliography. It worked especially well when I could provide a reference librarian with a list of student paper topics in advance. Law students will need to use non-law research materials, and all students benefit from talking with reference librarians. The best way to make this happen is to take them to the library.

Deadlines and penalties. These assignments work only if students turn them in in a timely way. Usually firm deadlines with clear penalties announced well in advance do the trick. I would of course accommodate illness and other calamities, but otherwise students were expected to turn things in on time.

Follow-ups. If the final papers are good enough, consider helping students organize a panel or submit paper proposals for a conference. The Law and Society Association is especially welcoming of student work.

What fits at your law school?

It takes more than good course design to put together a successful research seminar in a law school. Students need to get enough academic credit so that the credit they earn relates to the amount of time and effort they need to put into the course (e.g. if they get only 2 credits because the class meets only 2 hours a week for one semester, it is unlikely to work).

It also helps if there is a mix of law and graduate students. The students work together, and learn things from each other. It is easy for students to take classes outside their academic unit in some institutions, and difficult in others, with much variation across universities.

At some schools, students tend to get their intensive writing experience, and satisfy law school writing requirements, in student programs (law reviews, etc.), so that most students tend not to take writing seminars.

Serious research seminars work better in some law school settings than others, and it strikes me as best to offer the sort of course that works well at your institution. For various reasons, after moving from one law school to another, I found that the reading and discussion seminar, rather than the research seminar, was a better fit. But there is a special joy, I think, in working with a student who is afraid of a big writing project, breaking it down for the student and providing the feedback to make it work, and them someday getting in the mail that reprint of a piece you first saw as a unformed topic a long time before.

Johnson on John Marshall and His Supreme Court: From Adulation to Evaluation

Herbert A. Johnson, University of South Carolina, author of The Chief Justiceship of John Marshall 1801-1835 (1997), has posted an interesting paper on the historiography on Marshall, John Marshall and His Supreme Court: From Adulation to Evaluation, 1901-2001. The SSRN abstract is short and to the point:

Provides a historiographic summary of writings on Chief Justice John Marshall and his Supreme Court, beginning at the Centennial celebration in 1901 and ending with 2001.

The paper's opening paragraph fills in Johnson's project:

We have witnessed a striking change in the academic study of John Marshall since the Centennial of his Supreme Court appointment was celebrated in 1901. This has involved altered historiographical emphases and new research methods. To a degree the study of the Great Chief Justice has been driven more by intellectual currents contemporary to the authors than by the events and philosophies prevailing in Marshall’s own day. There is an all too human tendency to find in historical evidence what one is seeking, and to miss what an objective approach would demonstrate. That is particularly true of a subject like John Marshall who left few personal papers or documents for our study, and whose major public service was on the Supreme Court which has always been reticent in either personal or collective self-revelation. As this paper will show, it is only over the past fifty years--since the 1955 bicentennial celebration of Marshall’s birth-- that we have begun to examine with care the ill-founded generalizations that have been applied to the man and his Supreme Court chief justiceship.

Hulsebosch on Horwitz, Kent, Story and the Legacy of Revolution

Daniel J. Hulsebosch, New York University School of Law, has posted a new essay, Debating the Transformation of American Law: James Kent, Joseph Story, and the Legacy of the Revolution. It will appear in The Transformation in American Law: Essays in the Honor of Morton J. Horwitz, Daniel W. Hamilton & Alfred L. Brophy, Eds. (2008). Here's the abstract:

Using a variety of sources, including recently discovered letters and notes in James Kent's law library, this essay will demonstrate that although Kent and Joseph Story agreed about the desirability of a strong Congress, an independent federal judiciary, and the need to control juries, they disagreed about the shape of each of these institutions. Together, these disagreements reveal not only the dynamism of American law in the early Republic - a conclusion consistent with Morton J. Horwitz's interpretation in his Transformation of American Law I - but also illuminate the indeterminacy of federal authority and the judicial power - findings that fit more comfortably with the premises and methods of Horwitz's Transformation of American Law II. In addition, their disagreements illustrate the quest for authoritative reasoning that defined post-revolutionary American legal culture and the intertextuality of its formative literature.

More on Jefferson and Executive Power

Jeremy Bailey, author of a recent, highly lauded, book, Thomas Jefferson and Executive Power, weighs in on the Yoo/Fisher debate so nicely orchestrated in posts by Elizabeth Hillman. His comments complicate the picture of Jefferson and executive power, and help with way we might think about the contemporary implications of Jefferson's legacy stressed by Yoo and Fisher. Bailey's book, according to the Cambridge University Press description,

examines Thomas Jefferson's attempt to combine respect for a fundamental constitution with the fact that no set of laws can foresee every event. His solution to this problem offers a democratic, yet strong, alternative to the more common, Hamiltonian solution. Jefferson scholars have long written of 'two Jeffersons,' one before he became president and one after he became president. The first was opposed to a strong executive, while the second embraced one out of necessity. This book challenges this account. It presents Jefferson's understanding of executive power, which, though it developed over time, pointed to an executive that was both democratic and powerful.

Just one of the blurbs on Bailey is from Richard Bensel, Cornell:

"Jefferson was acutely sensitive to the potential, even inevitable, contradiction between the exercise of presidential power and respect for popular democracy. As president he attempted their reconciliation, simultaneously practicing and innovating a strikingly original theory of politics. In the process, as Jeremy D. Bailey thoroughly and convincingly demonstrates, Jefferson created one of the strongest and most enduring ideational bulwarks of the modern presidency."

Here's Bailey's take on Fisher and Yoo:

Professor Fisher is right to emphasize that Jefferson never argued for an inherent executive authority. Professor Yoo is right to point out that Jefferson seemed to embrace a powerful executive. I make both points in my book. Others have made these points before. But two points need to be added:

First, I would argue that the LA Purchase fits within Jefferson’s larger political thought and even his political project. Contra Henry Adams, there were not “two Jeffersons,” one before the Revolution of 1800 and one after. Instead, throughout his career, Jefferson tried to figure out a way to make constitutionalism work, that is, to preserve a written constitution against events (both emergencies and opportunities) that that constitution could never predict. For example, Jefferson as wartime governor offers a way to understand Jefferson as president.

Second, part of Jefferson’s solution is his reliance on “declarations of principle,” which he saw as the institutional way for presidents to throw themselves on the people. For example, the Twelfth Amendment (the amendment to end the amendment process) was designed to create what we now call the mandate theory of the presidency so that presidents would be able to do just this (and the need to have the 12th in place before 1804 partly explains Jefferson’s silence on the LA amendment). As a result, the president would come to embody electoral revolution and thus possess a particular spirit of interpretation (letter to Cabell, August 1807, LOC). By gathering and directing the public will, the executive would become lawless in spirit.

What, then, to make of Jefferson? I think Professors Fisher and Yoo would, for different reasons, have a hard time accepting his model. But another question is the extent to which we are still living with the democratic presidency Jefferson created. I think so.

I should say here that I omitted discussion of several obvious subjects in the book (the war with the pirates, the war with the judiciary, and the problem of states rights). The publisher’s word count requirements forced me to make choices. I have since written an article on Jefferson’s coordinate theory of impeachments.

You can find Bailey's article, “Constitutionalism, Conflict, and Consent: Jefferson on the Impeachment Power,” in an upcoming issue of the Review of Politics. The September 2008 issue of Presidential Studies Quarterly will have an interesting review of Bailey, Jack Goldsmith, The Terror Presidency, and other recent works on executive power.

Cross-posted at Balkinization.

Kang, Thinking Through Internment: 12/7 and 9/11

Thinking Through Internment: 12/7 and 9/11 is an article by Jerry Kang, University of California, Los Angeles School of Law. It appeared in the Berkeley Asian Law Journal in 2002, and so would have been written in the months immediately following September 11, 2001. While work written during that time will of course have its own value, it is also part of a genre of post 9/11 writing that is in need of critical attention. Just about enough time has passed for us to compare writing during the fall of 2001 and 2002 with works written after (and before). The question of how to periodize such works is unclear. And the impact of these works will continue to play out for some time. But still, post-9/11 intellectual history strikes me an an important project.

Here's Kang's abstract:

The terrorist attacks on 9-11 have frequently been analogized to Pearl Harbor. In many ways, the analogy is apt. Just as that attack launched us into World War II, the attacks on the World Trade Center and the Pentagon have launched us into a new kind of war against terrorism. But waging this sort of borderless war poses great risks, not only to the soldiers commanded to fight but also to core American values. In this way, Pearl Harbor raises other disturbing memories, those of the internment. In this essay, Professor Kang draws lessons from the internment of Japanese Americans to the current war on terror.

Syllabus for "California Legal History"

I'm teaching a new course in "California Legal History" this fall. I hope to add a local dimension to our current offerings in national and international history and law and to capitalize on interest in the 2008 campaign to promote deeper historical consciousness related to past elections (hence the focus on politicians Earl Warren and Pat Brown). Below is my tentative syllabus:

University of California Hastings College of the Law
Fall 2008

Professor Elizabeth L. Hillman
hillmane@uchastings.edu

This seminar explores the singular legal history of California, a state that has become emblematic of progress, protest, and opportunity for the entire United States. With an emphasis on the last fifty years, but with important forays into the 19th and early 20th century, we will explore how the law has reflected, struggled with, and occasionally resolved the tensions created by California’s demographics, geography, and politics.

The course does not assume extensive background in California history nor does it attempt a comprehensive approach to the sprawling history of the nation’s most populous state. Instead, we will engage with a few key themes, people, and episodes in California history. These include John Wesley Powell, Earl Warren, and Pat Brown; the interplay of politics, law, and culture in San Francisco; the impact of immigration; the struggle to allocate water and other natural resources; and the turmoil of the 1960s. Throughout, our emphasis will be on how law and politics have both shaped and adapted to California’s changing environment and population.

Course Materials (listed in the order in which they are assigned)

Kevin Starr, California: A History (New York: Random House, 2007). ISBN 978-0-8129-7753-0.

Wallace Stegner, Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West (New York: Penguin, 1992). ISBN 978-0-1401-5994-3.

Jim Newton, Justice for All: Earl Warren and the Nation He Made (New York: Riverhead, 2006). ISBN 978-1594489280.

Philip L. Fradkin, The Great Earthquake and Firestorms of 1906: How San Francisco Nearly Destroyed Itself (Berkeley: University of California Press, 2006). ISBN 978-0-520-24820-5.

Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995). ISBN 978-0-8078-4530-1.

Nan Alamilla Boyd, Wide-Open Town: A History of Queer San Francisco to 1965 (Berkeley: University of California Press, 2003). ISBN 978-0-520-24474-0.

Chester Hartman with Sarah Carnochan, City for Sale: The Transformation of San Francisco (Berkeley: University of California Press, rev. ed. 2002). ISBN 978-0-520-08605-0.

Ethan Rarick, California Rising: The Life and Times of Pat Brown (Berkeley: University of California Press, 2005). ISBN 978-0-520-24828-1.

Grading

Your grade will be based on your class participation (25%) and the quality of your work on three essays submitted during the course of the semester (each worth 25% of your final grade). This course is a seminar, which makes your presence in class even more critical than usual. We meet only once per week, and you can only contribute to class if you are present and prepared. Unexcused absences will lower your grade.

The three written assignments are described below. Each paper must be five to ten pages long (double-spaced, 1-inch margins, 11 or 12 point font). More details will be provided in class. Note that this course satisfies the requirement for a seminar with a substantial writing component.

Assignment 1, due Sept. 18: An essay based on an interview with a lawyer about his or her experience in California legal practice, governance, or advocacy.

You may interview anyone who has been out of law school for at least 10 years (this includes practicing attorneys, judges, law professors, and those who abandoned the practice of law). Your goal in this assignment is to convey a sense of how California as a place has influenced your subject’s experience with the law (or alternatively, how California practice is similar—indistinguishable?—from legal practice elsewhere). If you need assistance identifying a subject for this assignment, please let me know and we’ll connect you to Hastings alumni.

Assignment 2, due Oct. 30: An essay about law in San Francisco.

Select one or more of the assigned readings and analyze how the development of the law influenced or reflected a major event or trend in California history.

Assignment 3, due Nov. 21: An essay about sources and methods of legal history, based on independent research in an archive (a list of suggested archives will be distributed in class).

Select a topic, identify a source of primary information about it, find an archive that holds that source, review the source – and then write an essay analyzing the validity of that source for legal historians. Your essay should refer specifically not only to the source that you review, but to other examples of historians relying on similar sources of evidence in the assigned course materials.

Reading assignments

I. Foundations

Aug 28
Starr, California: A History (through p. 70)
Browse the “Laws and Regulations” and “Statistics” sections of the California Department of Food and Agriculture, available at http://www.cdfa.ca.gov

Sept 4
Starr, California: A History
Browse the population data available from regarding California, available at http://www.census.gov/census2000/states/ca.html; http://quickfacts.census.gov/qfd/states/06000lk.html; http://www.lib.berkeley.edu/doemoff/govinfo/state/gov_calstats.html

Sept 11
Stegner, Beyond the Hundredth Meridian
Joan Didion, “Holy Water,” The White Album (New York: Farrar Straus Giroux, 1990), first published 1979, available at http://www.pbs.org/pov/pov2004/thirst/special_holywater.html

Sept 18
No class scheduled; class dinner/make-up in November, date TBD.

Sept 25
Newton, Justice for All (through p. 261)
Essay #1 due: interview.

II. San Francisco

Oct 2
Fradkin, The Great Earthquake

Oct 9
Salyer, Laws Harsh as Tigers

Oct 16
Boyd, Wide-Open Town

Oct 23
Hartman with Carnochan, City for Sale (through p. 212)
Browse the “government” section of the City of San Francisco’s official website, http://www.sfgov.org/site/government_index.asp

Oct 30
Hartman with Carnochan, City for Sale
Essay #2 due: San Francisco.

III. Rebels?

Nov 6
Rarick, California Rising (through p. 252)

Nov 13
Rarick, California Rising

Nov 20
Free Speech Movement, Bancroft Digital Archive and Oral History Project (http://bancroft.berkeley.edu/FSM/)
The McCone Report (the official study of the 1965 Watts riots) (http://www.usc.edu/libraries/archives/cityinstress/mccone/)
Essay # 3 due: Archival source analysis.

Louis Fisher on John Yoo, Jackson, and presidential power

As promised, Louis Fisher's response to John Yoo's second recently posted article on SSRN-- about Jackson and presidential power--appears below, along with Yoo's abstract. Lou's newest book, The Constitution and 9/11 (University of Kansas Press, 2008) will soon be available.

Andrew Jackson and Presidential Power by John Yoo, University of California, Berkeley

This paper examines Andrew Jackson's role in establishing the foundations of the Presidency. He is generally considered by historians to have been one of the nation’s most vigorous and powerful chief executives. He advanced a new vision of the President as the direct representative of the people. Jackson put theory into practice with the vigorous exercise of his executive powers—interpreting the Constitution and enforcing the law independently, wielding the veto power for policy as well as constitutional reasons, and re-establishing control over the executive branch. In the first of two great political conflicts of his time, the Bank War, Jackson vetoed a law that the Supreme Court and Congress both thought constitutional, removed federal deposits from the Bank, and fired cabinet secretaries who would not carry out his orders. In the second, the Nullification Crisis, Jackson again interpreted the nature of the Constitution and the Union on behalf of the people, and made clear his authority to carry out federal law, even against resisting states. Although he was a staunch defender of limited government, Jackson would confront head-on the forces seeking a weaker union and or a weaker Executive. His achievement would be to restore and expand the Presidency, within the context of a permanent Union. He would also spark resistance so strong that it would coalesce into a new political party, the Whig party, devoted to opposing concentrated executive power.

John Yoo, "Andrew Jackson and Presidential Power." Review by Louis Fisher, Library of Congress.

This article explores Jackson's views on executive power and how he "laid the foundations for what we can begin to recognize as the modern presidency." We are familiar with Jackson's view that the President is the direct representative of the people and therefore an agent in assuring that the "will of the majority" would prevail. According to Yoo, Jackson held a more extreme view. Jackson believed that the "more elected representatives there were, the more likely the popular will would be frustrated" (Yoo's language). Such a position is plainly monarchical and necessarily subordinates Congress -- as the elected representatives -- to a subordinate role in government. I'm not aware that Jackson adopted that view or intended to carry it out.

Yoo discusses Jackson's position on coordinate construction. Even though the Supreme Court in McCulloch upheld the constitutionality of the U.S. Bank, and even though previous Presidents and Congresses had accepted the constitutionality of the Bank, Jackson felt at liberty to veto the bill reauthorizing the bank. I see nothing monarchical about that. I think Jackson had ever right to reach an independent judgment about the constitutionality of the Bank. I recall in the Clinton years giving a luncheon talk at OLC, where I offered what seemed to me a noncontroversial position. Even though the Court had upheld the constitutionality of the independent counsel in Morrison, if Congress reauthorized the IC it was my view that the President could say he was aware of the Court's decision, much had changed since that time, it was his duty to protect his own branch, and could therefore veto the bill for independent constitutional reasons. Almost all of the OLC attorneys agreed he could veto the bill on policy grounds but definitely not on constitutional grounds, because that issue had been authoritatively decided by the Court. I brought up the Jackson precedent, which they seemed familiar with. The discussion ended in a stalemate. I think Jackson was well within his constitutional powers with his veto of the Bank bill and I think contemporary Presidents have every constitutional authority to follow that precedent with bills presented to them. There is nothing monarchical about that and no disrespect is shown either to the Court or to Congress. In fact, Congress itself could make an independent judgment that the Court hadn't gotten it right in Morrison and decide, on constitutional grounds, not to reauthorize an IC. The Court might feel compelled because of stare decisis to uphold Morrison. The other branches have no such obligation. Jackson's interpretation of his veto power came from the Constitution, not from some sort of "inherent" power as claimed by the Bush administration after 9/11.

Yoo refers to Jackson's victory, as military commander, at New Orleans in 1814. It would have been interesting had Yoo dwelled on some of the details. On December 15, 1814, anticipating a British invasion of the city, he issued an order for martial law and threatened the arrest and detention of anyone who failed to comply. After his victory over the British, local citizens wanted him to rescind the order for martial law but he refused to do so until there was formal notice of a final peace treaty. Someone in a local newspaper wrote an anonymous article objecting that persons accused of a crime should be heard before a civil judge, not the military, and called Jackson's policy "no longer compatible with our dignity and our oath of making the Constitution respected." Jackson found out who the author was and had him arrested. On the way to jail the person alerted his attorney and a request was made to a federal district judge, who issued a writ of habeas corpus, concluding that martial law could no longer be justified. Jackson then had the judge arrested for "aiding and abetting and inciting mutiny within my camp."

A court-martial decided that leveling the charge of "spying" against the author was far-fetched, because spies normally don't published their views in a local newspaper, even under a pseudonym. He was acquitted. Jackson, realizing that the judge would not be convicted either, had him marched four miles outside of the city and left there. News of the peace treaty came and the city celebrated. The judge found his way back to the city and ordered Jackson to appear in court to show why he should not be held in contempt. Jackson agreed to appear before the court and was fined $1,000, which Jackson paid.

Jackson's defense bears an eerie similarity to Lincoln's use of the Lockean rerogative after the outbreak of the Civil War. Jackson said that rights enjoyed under peaceful conditions might have to be surrendered in time of crisis, so "that we may secure the permanent enjoyment of the former. Is it wise, in such a moment, to sacrifice the spirit of the laws to the letter, and by adhering too strictly to the letter, lose the substance forever, in order that we may, for an instant, preserve the shadow?" Lincoln asked Congress on July 4, 1861: "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Jackson and Lincoln understood that this exercise of emergency power was subject to checks. If the executive unwisely and illegally exercised emergency power, the other branches could invoke checks, including impeachment.

Yoo discusses Jackson's experience in 1818 with the Seminole War, leading to the capture of two British citizens: Alexander Arbuthnot and Robert Ambrister, who had been advising the Seminoles Jackson convened a military commission to try them. After a guilty verdict, Yoo says "he sentenced both to death." The story is more complicated. The commission, by the statutorily required margin of two-thirds, sentenced Arbuthnot to be hanged. The sentence was carried out. The commission also found Ambrister guilty and sentenced him to be shot. But the commission reconsidered the sentence and decided to sentence him to hard labor. Jackson overrode the commission and directed that he was to be shot. His order was carried out.

Both Houses of Congress investigated the matter. President James Monroe cooperated by forwarding a number of documents to Congress related to the case. The House Committee on Military Affairs issued a report highly critical of the trials, stating that it could find "no law of the United States authorizing a trial before a military court for offences such as are alleged" against the two men, except that of "acting as a spy." for which Arbuthnot was found not guilty. Having examined the documents, the committee was unable to find "a shadow of necessity" for the execution. The committee also criticized Jackson for the execution of Ambrister. Jackson acted "contrary of the forms and usages of the army, and without regard to the finding of that court, which had been instituted as a guide for himself." Other legal deficiencies were identified with the trials, including the use of hearsay evidence. In a "case of life and death," hearsay evidence "was never before received against the accused in any court of this country." The Senate also issued a report critical of Jackson. William Winthrop, commenting on these trials in his highly respected "Military Law and Precedents," observed that if any officer ordered an execution in the manner of Jackson, he "would now be indictable for murder."

As Yoo notes, "Jackson pursued the acquisition of Texas throughout his Presidency." He took a number of initiatives, but declined to recognize Texas. Many specialists in constitutional law regard the power of recognition as centered in the presidency, even though it is not expressly stated in the Constitution. That is not how Jackson saw it. Under pressure to recognize Texas, Yoo correctly states that Jackson "was unwilling to move forward with annexation because he worried that sectional divisions over slavery would complicate the election of his chosen successor, Martin Van Buren." Interestingly, Jackson "left the matter to Congress to decide, as under the Constitution it controlled the acquisition of new territory and the admission of states."

Yoo doesn't mention it, but Jackson had another reason not to recognize Texas. Both Houses of Congress passed resolutions stating that the independence of Texas ought to be acknowledged. Jackson refused to act. Had Texas been independent for a number of years and had other nations recognized it, he would have felt freer to act. But with Texas just breaking with Mexico, Jackson concluded that recognizing its independence could provoke war with Mexico and therefore invade the prerogatives of Congress. Yoo states that Presidents and Congresses "had long considered" the power to recognize other countries "part of the executive power over foreign relations. Jackson was no different." Yes he was.

On the matter of foreign relations, Justice Sutherland in the Curtiss-Wright case of 1936 claimed that the negotiation of treaties was left solely to the President: "he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it." That is nonsense. Sutherland himself, when he was a U.S. Senator from Utah, understood that his colleagues got involved in the negotiation of treaties. Yoo doesn't discuss this, but President Jackson understood the value of seeking the advice of Senators on how best to pursue treaty negotiations. Obtaining the Senate's views "on this important and delicate branch of our future negotiations would enable the President to act much more effectively in the exercise of his particular functions. There is also the best reason to believe that measures in this respect emanating from the united counsel of the treaty-making power would be more satisfactory to the American people and to the Indians" (the particular treaty being negotiated). Yoo does not discuss Jackson's view of treaty negotiation and its shared nature by the executive and legislative branches.

The article includes a lengthy section analyzing Jackson's policy against the U.S. Bank. His veto message includes this language: "The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges. . . . [and] on that point the President is independent of both." Jackson said he would grant the courts "such influence as the force of their reasoning may deserve." othing in that position smacks of monarchical government. Jackson took
an oath to support and defend the Constitution, to reach an interpretation as he saw it, not as other branches saw it. There is nothing arrogant or overbearing about that position. It is a power and a duty vested in the President by the Constitution.

Yoo states that Jackson was "the first President to make use of the 'pocket
veto'." Actually, it was James Madison, in 1812, but the exercise of the pocket veto power is not by itself an aggrandizement of executive power. When used properly, it is rooted in the Constitution. Any bill not returned by the President within ten days (Sundays excluded) shall become law "unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law." It all depends on the interpretation of what "prevents" the return of a bill. Jackson acted within the Constitution, not outside it.

Yoo writes: "Because of Jackson, any modern President with the support of thirty-four senators can completely stall any proposed legislation." Presidents had that leverage before Jackson. That is what the Constitution provides.

With regard to President Jackson's removal of executive officers to carry out his policy against the U.S. Bank, Yoo says that Jackson "believed it was his constitutional right to decide how to carry out federal law, such as the statute on the deposit of federal funds. In order to execute the law, he had to control subordinate officials in the executive branch." That principle was fully addressed by James Madison in 1789 when he argued for presidential removal power over Cabinet heads.

As part of the dispute between Jackson and Congress over the U.S. Bank, the Senate passed a resolution censuring Jackson. Yoo regards his "Protest" as "one of the most forceful declarations of presidential power in American history." Yoo doesn't explain on what principled grounds Jackson denounced the Senate's action. The grounds were constitutional. The Senate, adopting a resolution that stated that Jackson had acted "in derogation" of the Constitution and the laws, claimed the right to censure him on the basis of unspecified charges and without an opportunity to be heard. The Senate had acted in circumvention of the formal constitutional procedure for impeachment. The branch that had acted in derogation of the Constitution was the Senate, not Jackson. Three years later the Senate later expunged the resolution of censure from its records.

There is much of value in Yoo's article. Jackson strengthened the presidency and established important precedents that are still followed today. But he never claimed, as the Bush administration did after 9/11, that he could adopt policies in secret that
were in violation of statutes and treaties. In exercising powers vigorously, he called on powers that derived from the Constitution. As Yoo states in the concluding section, Jackson "did not restore the office by breaking its constitutional limits."

Louis Fisher responds to John Yoo on Jefferson and executive privilege

When I saw that John Yoo had posted two new legal history papers on SSRN (hat tip to Mary), I wondered what a national security law expert like Louis Fisher might have to say about Yoo's work. So I asked. Below is Lou's response to the first paper, “Jefferson and Executive Power." (A future post will record his reaction to the second paper, titled “Andrew Jackson and Presidential Power.”)

Dr. Louis Fisher is among the nation’s foremost experts on constitutional law and public policy, with particular expertise in (among other areas) executive authority, separation of powers, and war powers. A specialist in the law Library of the Library of Congress, he has been both a prolific scholar and dedicated public servant since he first joined the staff of the Congressional Research Service in 1970. Dr. Fisher has testified before Congress dozens of times; is frequently cited as an authority in Supreme Court briefs; and has spoken about the U.S. Constitution in nearly 30 countries around the world. He has published hundreds of articles and many books, including American Constitutional Law (7th ed., 2007, with David Gray Adler); In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006); Constitutional Conflicts Between Congress and the President (5th ed., 2007); Presidential War Power (2nd ed., 2004); and Nazi Saboteurs on Trial: A Military Tribunal and American Law (2003).

Here is the SSRN abstract for Yoo's piece on Jefferson:

Jefferson and Executive Power
by John Yoo, University of California, Berkeley, School of Law

This paper argues that Thomas Jefferson was not the opponent of presidential power commonly assumed today. Jefferson is often thought to be a sharp critic of executive authority because he favored a national government of limited powers and because of his opposition to the Washington and Adams administrations. But as President, Jefferson expanded executive authority by resisting the courts, buying Louisiana, conducting foreign affairs, and managing legislation through Congress. Jefferson's actions as President did not contradict his positions in the opposition, as claimed most famously by Henry Adams, but were instead consistent with his earlier views on executive power. In fact, Jefferson supported perhaps the broadest conception of the Presidency in his belief in a Lockean prerogative that would allow the executive to act without constitutional authorization, so long as the people approved after the fact.

Here is Fisher's response:

John Yoo, "Jefferson and Executive Power." Review by Louis Fisher, Library of Congress.

This article offers a good overview of the legal and constitutional philosophy of a President. No doubt Jefferson actively invoked executive power, but many of the examples cited by Yoo raise no questions of illegal or unconstitutional action (trimming the number of Federalists in government, exerting leadership in Congress, and pardoning those convicted under the Sedition Act). Yoo goes beyond those examples to describe actions by Jefferson that might appear to sanction unchecked and exclusive executive power.

For example, he has this statement by Jefferson: "The transaction of business with foreign nations is executive altogether." Those words, if taken at face value, are misleading. Yoo neglects to point out that Jefferson was writing about a very narrow dispute concerning the Senate's role in the appointment of ambassadors and consuls. The issue was whether the Senate had a right to veto not only the person to be appointed but also the grade the President might want to use for the foreign mission. Jefferson fully realized that both branches make foreign policy through statutes and treaties and that it is the President's duty to represent the nation in seeing that the law was carried out. "Transactions" meant some form of communication; it did not mean unchecked, unilateral presidential policy.

Yoo makes no mention of an important role that Jefferson played with the Algerine treaty of 1792. President Washington wondered if it was better to borrow money to pay "tributes" (bribes) to the Barbary pirates. As Secretary of State, Jefferson counseled against that course. Loans would have to be repaid and Congress would not be happy about Washington's unilateral commitment. He advised Washington to go to Congress (both houses) to get approval, and to share treaty documents not only with the Senate but with the House. Washington did so. Louis Fisher, The Politics of Executive Privilege 30-33 (2004).

Several years later Washington made his famous statement about the House not being entitled to receive documents on the Jay Treaty, explaining that only the Senate had a constitutional role. This argument was makeweight, a disingenuous effort to keep from the House materials that were highly embarrassing to the administration and might have doomed congressional support for the treaty. Jefferson and other Presidents understood that it was often important to bring the House into treaty commitments and also to involve Senators and Representatives in the negotiation of treaties.

Yoo glosses over the Aaron Burr trial and concludes that it marked "the first true precedent for executive privilege." Oddly, he relies on a secondary source (Forrest McDonald's "The Presidency of Thomas Jefferson") instead of the trial transcript, which Yoo looked at quite closely when he wrote a 1999 article for the Minnesota Law Review.

Anyone reading the trial transcript would understand that it is inaccurate for Yoo to say that "Jefferson on principle refused to acknowledge the court's right to force the executive to produce information." It is true that Jefferson said that if the President were "subject to the commands" of the judiciary he might become subordinate to another branch. Jefferson also said he could not be kept "constantly trudging from north to south & east to west" responding to court orders, but that simply meant he could not personally appear in court. His subordinates from the administration could do that trudging -- and they did.

Jefferson knew that he could not charge Burr with treason (carrying a death sentence) on the basis of letters from General Wilkinson and not show those documents to Burr. That was elementary for any criminal proceeding. The administration's case was so weak that a final showdown was not necessary. As Yoo notes, Burr was acquitted. Had the trial proceeded, Jefferson faced a choice: either give Burr the documents or drop the charges. Jefferson understood that and so did Chief Justice John Marshall. Yoo mentions none of this. The Burr trial was not "the first true precedent for executive privilege."

Yoo provides substantial detail on Jefferson's sending of ships to the Mediterranean and military encounters with the Barbary pirates. Very interesting material and well told. The fact is that Jefferson realized that the only branch that could take the country from a state of peace to a state of war was Congress, and for that reason (as Yoo states) he told Congress: "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence," he needed lawmakers to pass authorizing legislation. Congress did so, and did again with Madison, for a total of ten authorizing statutes. No "inherent" power existed for the President to act unilaterally for reasons of national security.

Jefferson's initiatives with the Louisiana Purchase are described in close detail by Yoo. It is true that Jefferson went beyond treaty instructions, the law, and the Constitution in buying not just New Orleans but the whole Louisiana territory. To Jefferson's credit, he never claimed to be acting legally or constitutionally. He did not find, somewhere in Article II, legitimate grounds for action. As Yoo explains, initially Jefferson thought it advisable to go public with his misgivings and ask for a constitutional amendment to bless the purchase. When that seemed likely to upend the negotiations, he chose to remain quiet and let the transaction proceed. He hoped that Congress would sanction what he had done and he prevailed.

Yoo correctly describes Jefferson's belief in the Lockean prerogative: the right of an executive -- for the public good -- to take action sometimes in the absence of law and even against it. But the executive must then come to the legislative branch, explain what he did, and face the consequences: either retroactive approval or being removed from office. As Yoo explains, Jefferson looked for ratification of an ultra vires action: "an indemnity from the people through their representatives in Congress."

Jefferson did not claim plenary, exclusive, independent, or inherent presidential authority. He never argued, as did the Bush administration after 9/11, that presidential powers under Article II enabled him to violate any statute or treaty that stood in his way. I think it is false for Yoo to write: "Contrary to popular belief,
Jefferson believed in an independent Presidency with inherent powers." Jefferson believed in the Lockean prerogative, subject to the conditions described above.

In reading this article, I wondered if John Yoo decided to look to earlier Presidents to determine whether their concept of the office might justify what President George W. Bush did after 9/11. Perhaps my suspicions are groundless, but the quote above did not help, nor the following: "Madison's low performance is attributable in part to his narrow view of his constitutional powers as President." Nothing in Jefferson's presidency lends support to the view widely circulated in the Bush administration that the President is endowed with inherent powers in national security that trump statutes, treaties, judicial decisions, and the Constitution.

Reviewed: new edition of Lombroso's Criminal Man, Kanstroom, Deportation Nation, and Sperber's history of property in Germany

Cesare Lombroso, Criminal Man, translated and edited by Mary Gibson and Nicole Hahn Rafter (Duke University Press, 2006) is reviewed for H-German by Elun Gabriel, Department of History, Saint Lawrence University. Hat tip to H-Law. Gabriel writes:

Mary Gibson and Nicole Hahn Rafter's meticulously edited new edition of Italian criminal anthropologist Cesare Lombroso's deeply influential Criminal Man (1876) is an invaluable contribution to the burgeoning historical scholarship on nineteenth-century criminology. No single scholar of criminality since Cesare Beccaria a century earlier exercised as much influence as Lombroso did in the late nineteenth century. Though always hotly disputed, his methodology and conclusions profoundly shaped the development of scientific attempts to understand the social and biological origins of crime. The fact that his most important work has only been available in English in two books of edited materials published in 1911 is as surprising as it is regrettable for students of criminological history.

What Gibson and Rafter offer is far more than a new translation of along-inaccessible text. First, by including selections from all five editions of Criminal Man (which grew from 256 pages in the original1876 edition to almost two thousand pages in four volumes in the final,fifth edition of 1896-97), the reader is able to see the evolution of Lombroso's thinking over time, as he developed an ever more complex classification system for criminals....

In their masterful introduction, Gibson and Hahn adroitly place Lombroso in historical context and approach his major work from a number of angles....Without soft-peddling his racism, sexism, biological determinism, poor scientific method, internal contradictions, or sloppiness, they show Lombroso as a man devoted to putting criminology on a scientific rather than purely philosophical basis, with the goal of improving society....

It is hard to imagine a better edition of this book.

The full review is here.

Deportation Nation: Outsiders in American History by Daniel Kanstroom (Harvard University Press, 2007) is reviewed in the Law and Politics Book Review by Leila Kawar, Department of Politics, Bates College. According to Kawar,

Kanstroom’s primary project in writing DEPORTATION NATION was to investigate the historical roots of the current system, purposefully going beyond the anti-immigrant politics of the 1990s. He argues that contemporary immigration controls, viewed in terms of [*528] normative principles, are simply among the cruder manifestations of a centuries-old practice of deploying deportation for social control purposes. The book traverses more than two-hundred years of American history, and even some Canadian history, to investigate “the pedigree” of the current deportation system. Kanstroom provides an exhaustive, almost archaeological (in the Foucauldian sense), tracing of the ideas that govern contemporary immigration control. The book is written as a series of stories. For each story, the author: 1) gives the historical context – documenting what legislators and administrators did, 2) describes how the judiciary responded, and 3) analyzes how in each case the Court’s jurisprudence contributed to the slow, incremental, and reactive construction of the principles that ground contemporary deportation policy.

This reflection on history with an eye to contemporary policies can be quite evocative....[T]he book is thought provoking. It forces us to think about deportation at length and in new ways.... Taken in historical perspective, the deportation provisions associated with the “War on Drugs” are seen as simply another manifestation of the tendency of Americans to enforce moralistic social control regimes through immigration law. Previous episodes include the Colonial “Warning Out” system, and the Progressive Era criminal deportation laws....

Kanstroom’s legal and social history of the US deportation system reveals the extent to which the law of immigration control has at times operated as a state of exception, exempted from the due process principles at the root of Anglo-American rule of law.

Continue reading here.

Jonathan Sperber, Property and Civil Society in South-Western Germany,1820-1914 (Oxford University Press, 2005) has been reviewed for H-German by Thomas Adam, Department of History,University of Texas at Arlington. Hat tip to H-Law. Adam writes:

With his new book, Jonathan Sperber aims to connect research on civil society with research on private property. For this purpose, he chose to study civil court records (paternity suits, bankruptcy and mental competency hearings, and other forms of civil litigation) from the Palatinate for the period from 1820 to 1914. He divides his book into four chapters. The first three chapters focus on basic aspects of private property in society: acquisition and transmission, transactions,and boundaries, while the fourth chapter provides more of a synthesis and periodization in property relationships.

He concludes that "Sperber's study is without a doubt a superb analysis of private property and the relations that sprung from it in nineteenth-century Germany. The same cannot be said about its contribution to discussions about civil society." The rest is here.

Blog glitch today -- fixed

• Another update: I found a workaround, so if you have had trouble accessing the Legal History Blog in Internet Explorer, you should be able to access it now. More details for fellow bloggers are below.
• And as of this afternoon, all funcionality appears to be back to normal. No more need for a workaround.

If you are unable to access the Legal History Blog today via Internet Explorer, the blog appears to be accessible on other browsers (e.g. Safari). I'm having this problem, and would appreciate hearing from other readers -- your comments will get to me via email. I have not seen Blogger buzz about this problem. Hope it is very temporary. I can get into Blogger to post, so I will continue to try to provide content to those who can see it.

Update: If you're a blogger and running into the problem, which appears to be widespread, info and possible fixes are here.

The workaround: If you're a blogger and running into this issue, it appears to be an incompatibility between Blogger and Sitemeter. I was able to access my Dashboard by going there directly, rather than going to my blog and logging in from there. Once you're in the Dashboard, go to Layout. Copy your Sitemeter code, saving it anywhere (e.g. a wordprocessing file), and then delete it. You and your readers should be able to access the blog, but of course Sitemeter will not work. You can put the Sitemeter back once the underlying problem has been resolved.

The history job market heats up early

"It’s only July, but the blogosphere’s already buzzing about job hunting," reports AHA Today, drawing readers' attention to PhDinHistory, who suggests that some history departments are lining up candidates before the American Historical Association convention, traditionally the focus of much entry-level hiring, and to Claire Potter's always excellent advice, this time for hiring chairs. Inside scoop on the market is at the history jobs wiki. Positions are listed on the AHA website (membership required), and other sites listed on the wiki.

Legal historians looking for jobs in history departments most often apply for positions in broader fields (U.S. history, European history, etc.), but this year there are three legal studies positions posted so far:

The University of Maryland and the New Jersey Institute of Technology are hiring in legal history, and Amherst is hiring in legal theory/global studies.

U.S. Legal/Constitutional
Maryland, College Park, MD
The Department of History, University of Maryland at College Park, seeks to appoint a scholar with a distinguished record of publication and teaching United States legal and/or constitutional history in long 19th-century (ca. 1789-1914) at the associate professor level. Historians with an interest in comparative or transnational legal history and the expansive field of Law and Society are especially encouraged to apply. The University of Maryland is an AA/EOE employer; it encourages applications from women and minorities. Candidates should submit letter of application, c.v. and three letters of recommendation to the attention of Ms. Courtenay Lanier, US History Search Committee, Dept. of History, University of Maryland, 2115 Francis Scott Key Hall, College Park, 20742-7315. For best consideration, applications should be received by October 20, 2008.
Application deadline: October 20, 2008
Related URL 1: http://www.history.umd.edu
Related e-mail: clanier@umd.edu

Law and History NJIT, Newark, NJ
The Federated Department of History at Rutgers University-Newark and New Jersey Institute of Technology (NJIT) invites applications for a tenure-track position at the rank of assistant professor, based at NJIT, to begin September 2009. Applicants should be able to present evidence of scholarly accomplishment and effective teaching and should have a PhD with a primary research field that focuses on the relationship of law and history. Topic, geographical area, and time period are open, but preference will be given to work that is comparative and that contributes to the department's strength in the history of technology, environment, and medicine/health. Applicants should also have an aptitude for program building, as the holder of this position will direct a new interdisciplinary NJIT BA program in Law, Technology and Culture. Send letter of application, c.v., writing sample, sample syllabi, and three letters of recommendation by November 15, 2008, as directed at njit.jobs, use posting # 0600289. NJIT is an EOE M/F/H/V.

Legal Theory/Global Studies
Amherst, Amherst, MA
The Department of Law, Jurisprudence and Social Thought at Amherst College invites applications for a half-time, tenure-track assistant professor in legal theory and global studies. The department's major focuses upon the cultural, interpretive, institutional, theoretical, historical, and cross-cultural aspects of law. Applicants must be able to teach a survey course and specialized courses in legal theory as well as specialized courses in one or more of the following: law and globalization, human rights, international legal institutions, and changing conceptions of sovereignty, citizenship and identity. Additional interest in one or more of the following is desirable: continental theory, liberal thought, the intersections of legal theory and cultural forms, and rhetorical and literary perspectives. At Amherst College a half-time position entails teaching one course per semester, supervising honors work, advising, and participating in the life of the department and the college. Applications are welcome from persons with a JD only as well as from those holding a PhD in literary or cultural studies, anthropology, history, sociology, political science, religion, or philosophy. Applicants should send a letter describing their background and interest, curriculum vitae, a sample of their scholarship, and three letters of recommendation to Prof. Nasser Hussain c/o Academic Department Coordinator, Dept. of Law, Jurisprudence, and Social Thought, Amherst College, Amherst, MA. 01002. Applications received by October 15, 2008, will be given full consideration. Amherst College is a private undergraduate liberal arts college for men and women, with 1,600 students and 200 faculty members. Located in the Connecticut River Valley of western Massachusetts, Amherst participates with Hampshire, Mount Holyoke, and Smith Colleges and the University of Massachusetts in the Five-College Consortium. For all faculty positions, completion of the PhD or appropriate equivalent is expected. Candidates should have a strong commitment to undergraduate and interdisciplinary teaching in a liberal arts context, and a well-articulated plan for sustained research. Amherst College has taken a leadership role among highly selective liberal arts colleges and universities in successfully diversifying the racial, socioeconomic, and geographic profile of its student body. The college now aims to enrich the diversity of its faculty, administration, and staff to ensure that full participation and inclusion become desired norms across the culture of the institution. Amherst aspires to become a learning community in which everyone, not just those individuals whom we identify with minority cultures or perspectives, is informed about and responsive to all aspects of diversity.
Application deadline: October 15, 2008
Related e-mail: klunderwood@amherst.edu

Thomas on the Takings Puzzle: How Correcting History Can Clarify Doctrine

Finding More Pieces for the Takings Puzzle: How Correcting History Can Clarify Doctrine has been posted by David A. Thomas, Brigham Young University, J. Reuben Clark Law School. It appeared in the University of Colorado Law Review (Spring 2004). Here's the abstract:

This article identifies and explains the effects of one of the philosophical assumptions underlying takings, perhaps the one that is most fundamental: one's view of the nature of the police power. This article also explains and documents the early or original assumptions about aspects of police power that are at the center of takings controversies, including the purposes for which the police power may be exercised in regulating private property, and the circumstances under which a landowner impacted by police power regulations may be entitled to compensation.

This article adds two new pieces to the historical puzzle of if and when to compensate for regulatory takings. These pieces are a more detailed description of the common law concepts of the police power and an analysis of early state cases on compensation practices for physical and regulatory takings.

Section II of this article explains the origins and character of police power in Anglo-American law. Section III reveals the widespread early assumptions about limitations on the purposes for which the police power could be used. Section IV details to what extent compensation was required for police power regulation of land in the early American cases. Section V shows how the historical background of police power suggests a compelling rationale for the rules by which contemporary police power regulations may be imposed and compensated.

Based on these analyses, Section VI argues that exercises of police power are not presumptively exempt from compensation requirements; that exercises of police power for affirmative purposes beyond suppression of nuisances should be subject to compensation requirements; and that compensating for police power regulations affecting property rights to achieve affirmative social benefits complies with both the letter and spirit of the constitutional compensation requirement.

Call for Papers: The NAACP at 100

Call for Papers: Civil Rights Century: The NAACP at 100

February 6-7, 2009

Deadline: October 31, 2008

The Center for Africana Studies at Johns Hopkins University seeks proposals for individual papers or panels for The Civil Rights Century: The NAACP at 100. This public conference will commemorate the hundredth anniversary of the founding of the National Association for the Advancement of Colored People in February 1909. This landmark anniversary is an ideal moment for reflection and discussion on the current status of the struggle for civil rights in the United States.

The conference will begin with an opening reception and keynote address on February 6, followed by a day of panel discussions on February 7. Organizers seek papers or panels that will engage a broad audience of both academics and nonacademics alike. The NAACP's long history suggests a wide variety of topics, including: interracial organizing women's leadership; the anti-lynching campaign; the fight against school segregation; literary contributions by NAACP figures; the relationship between local branches and the national office; conflict and cooperation with other civil rights groups in the 1950s and 1960s; civil rights work in the post-civil rights era (1970s-present); interracial marriage; relationship to the American Left; connection to other minority communities and rights movements (feminism, gay rights, Chicano movement, etc.); legal approaches vs. direct protest; interaction with the black church; regional comparisons: North, South, Midwest, West; reflections on the 2008 Presidential campaign and election.

Please submit abstracts of no more than 500 words for each paper and a two-page c.v. for each presenter to naacp100@jhu.edu by October 31, 2008. For panels, please submit abstracts and c.v. for no more than three persons per panel. Accepted presenters will be asked to pay a registration fee of $20.

We hope you'll join us for this important event! 

The Civil Rights Century: The NAACP at 100 is sponsored by the Center for Africana Studies, the Center for Social Concern, and the Office of Institutional Equity at Johns Hopkins University, with the Jewish Museum of Maryland and the Maryland Humanities Council; in partnership with the ACLU of Maryland, Equality Maryland, and the Maryland Black Family Alliance.