Monday, May 20, 2019

Motor Carrier Regulation and the Law, 1920-1955

[Longtime LHB readers will recall that for the exam in my legal history course at Georgetown Law i write an essay about some regulatory regime I did not cover in class and ask students to draw comparisons with those we did.  (Last year's, on meat inspection, is here, and earlier one on the US Commerce Court is here)  This year's essay, on the regulation of motor carriers, follows.  Dan Ernst.]

“Motor carriers unit gets underway” (LC)
“The story of transportation in the United States,” wrote David Lilienthal, who had studied with Felix Frankfurter at the Harvard Law School in the early 1920s, “has been marked by constant and almost bewildering changes in the facilities by which the movement of men and goods has been effected.”  In the early twentieth century, one of the most bewildering changes was the transformation of motor vehicles from a rich person’s plaything to a major competitor of railroads for the nation’s freight.  Already in 1920, the states had registered 1 million trucks; by 1929, the number was 3.7 million.  Railroads considered such motor carriers pests that threatened to consume their revenue, and they looked to government to bottle them up.

Until 1935, motor carrier regulation was the province of the states.  By the 1920s, most already had “public utility commissions” that regulated railroads; water, gas, and electric companies; and other “businesses affected with a public interest.”  Perhaps for that reason, as a scholar wrote, it was ‘but natural” that these commissions would regulate motor carriers as well.  Still, motor transport companies differed from railroads in important respects, including especially their much lower fixed costs. Trucks operated on publicly owned roads; railroads had to pay for their rights of way and lay their own tracks.  Also, trucks were much less expensive than locomotives and train cars.  Thus, barriers to entering the motor carrier industry were far lower than the railroad industry.  If the core mission of railroad regulation had been to ensure that railroads allocated their fixed costs to shippers fairly; the core mission of motor carrier regulation was to limit competition, thereby making, it was said, the transportation industry more stable and safe.

The foundation for motor carrier regulation was the “certificate of convenience and necessity,” issued by a commission not as a property interest but a revocable license to serve the public for a fixed period of time.  Commercial motor carriers could not operate without one.  To get one they had to show that the public needed their services and that they had the financial wherewithal to meet that need.  Motor carriers also had to abide by “tariffs” set by the commission.  These schedules fixed minimum, maximum or actual charges for the transport various classes of goods.  The commissions also issued a host of safety regulations and oversaw the mergers, issuance of securities, and other financial actions of regulated companies. Disputes could arise when commissions denied applicants certificates or revoked them for malfeasance, which were quasi-adjudicative acts.  They could also arise in rate-setting, a quasi-legislative act.

Sunday, May 19, 2019

Gaspare J. Saladino, Remembered

Over at Consource, Richard B. Bernstein has posted a memorial of the documentary editor Gaspare J. Saladino, who died last week.  It commences:
Gaspare J. Saladino was one of the finest documentary editors who ever lived, a superb historian, and an expert on the framing and adoption of the U.S, Constitution. Born in Brooklyn, NY, in 1936, educated at Brooklyn College and receiving his doctorate at the University of Wisconsin, he studied under the great Merrill M. Jensen. For many years, he was a co-editor of the Documentary History of the Ratification of the Constitution and the Bill of Rights, 1787-1791, an extraordinary project that compiled and published the full surviving documentary record, public and private, of the ratification of the U.S. Constitution and the Bill of Rights. The sheer excellence of these volumes means that this work will never have to be done again. This project now presents its findings not only in the print edition but also online, as seen in the link given at the end of this post.
More.

Saturday, May 18, 2019

Weekend Roundup

  • Our friends at the Federal Judicial Center have posted the latest in the Center’s series of teaching materials on Famous Federal Trials.  It’s U.S. v. New York Times, that is, The Pentagon Papers Case, in which "the publication of secret government documents about the Vietnam War leads to a federal court conflict pitting national security against freedom of the press."
  •  Recently posted over at Law and Political Society is the symposium Piercing the Monetary Veil.  Contributors include Christine Desan and Roy Kreitner.
  • Be sure to check out the redesigned website of the Historical Society for the District of Columbia Circuit.
  • An updated webpage helps catch us up on legal history at Edinburgh Law School
  • "The 2020 BHC Doctoral Colloquium in Business History will be held in conjunction with the BHC annual meeting . . . in Charlotte Wednesday, March 11 and Thursday, March 12. Typically limited to ten students, the colloquium is open to early-stage doctoral candidates pursuing dissertation research within the broad field of business history, from any relevant discipline.  Applications are due by 15 November 2019 via email to BHC@Hagley.org."  More on this prestigious competition of the Business History Conference is here
  • My erstwhile and present Georgetown Law colleagues Mark Tushnet, Harvard Law School, and Louis Michael Seidman, Georgetown University Law Center, have posted On Being Old Codgers: A Conversation about a Half Century in Legal Education, a “conversation, conducted over three evenings,” capturing “some of our thoughts about the last half century of legal education as both of us near retirement.”  DRE  
  • We didn’t realize that Attorney General William Barr contributed an oral history to the Miller Center for Public Affairs series on the George W. Bush presidency.  Thanks, WaPo!
  • ICYMI: Mary Ziegler on recent developments in the campaign to overturn Roe on NPR (et al.).  The History Channel’s notice of Dan Abrams and David Fisher’s Theodore Roosevelt for the Defense: The Courtroom Battle to Save His Legacy.  Also, the History Channel on the first Social Security check.  More on legal historians as partners: some, it seems, make dreams come true.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 17, 2019

Smith on Equity

Lionel Smith, McGill University, Faculty of Law, has posted Equity is Not a Single Thing, which is forthcoming from the Oxford University Press in Philosophical Foundations of the Law of Equity, ed. D. Klimchuk, I. Samet, and H. E. Smith:
In this paper, I ask what are the philosophical foundations of Equity as it was defined by Frederic Maitland: the body of rules and principles that were developed over the centuries by the Court of Chancery. My answer is that there is no single purpose, approach, philosophy or norm that characterizes Equity so defined. What is characteristic about Equity is a unique manner comprehending the juridical nature of some obligations, which grew out of Equity’s regulation of uses and trusts. This approach reveals three dimensions. First, Equity requires that one who owes such an obligation perform it, if necessary by substitution; there is no option of breaching and paying compensation for loss caused. Secondly, these obligations are understood by Equity in a manner that has the effect of depersonalizing the burden of these obligations. In the civil law tradition and in the common law (in the narrow sense that excludes Equity), an obligation is a bilateral relationship. Equity’s unique philosophy in relation to some obligations turned them into something like property rights and created the office of trusteeship. Finally, Equity understood some obligations not as freestanding particles but as elements of a particular kind of relationship, and this relationship is capable of itself generating new primary obligations. All these elements taken together facilitated the creation of an enduring conceptual toolkit for the juridical apprehension of relationships in which one person acts for and on behalf of another.
Dan Ernst

Thursday, May 16, 2019

Forsyth's "Common Law and Natural Law in America"

Andrew Forsyth, assistant secretary for student life at Yale University, has published Common Law and Natural Law in America: From the Puritans to the Legal Realists (Cambridge University Press):
Speaking to today’s conversations on both law, morality, and religion, and the religious foundations of law, politics, and society, Common Law and Natural Law in America is a narrative spanning 400 years and a reassessment of the varied American interactions of “common law,” the stuff of courtrooms, and “natural law,” a law built on human reason, nature, and the mind or will of God.

The book offers a counter-narrative to the dominant story of common law and natural law by drawing widely from theological and philosophical accounts of natural law, as well as primary and secondary work in legal and intellectual history. With consequences for today’s natural-law proponents and critics alike, it explores the thought of the Puritans, Revolutionary Americans, and seminal legal figures including William Blackstone, Joseph Story, Christopher Columbus Langdell, Oliver Wendell Holmes, and the legal realists.

Rosenblatt on Patents and the Sherlockian Canon

Elizabeth Rosenblatt, University of California, Davis, has posted "What One Man Can Invent Another Can Discover": The British Patent Controversy and the Sherlock Holmes Canon, which appears in Canon Law: Lawyers, Law and the Sherlockian Canon (2018)
Over the course of the 19th Century in Great Britain, patent law and policy developed quickly in an atmosphere of heated debate. In the first half of the century, some advocated for a patent system that provided greater ownership to inventors, while others advocated for abolition of patents altogether. The one thing people could agree on, it seemed, was that the then-existing system was flawed. In the latter half of the 19th Century and beginning of the 20th, Parliament overhauled the patent system, including unifying the patent systems of England, Ireland, and Scotland, establishing the Patent Office, and passing the Patents Designs and Trademarks Act. In the midst of this atmosphere of debate and change, Sir Arthur Conan Doyle wrote 54 stories and 4 novels about the detective Sherlock Holmes, some of which address inventions. This chapter considers the treatment of patents and patent law in the Sherlock Holmes novels and stories to illuminate popular Victorian and Edwardian understandings of, and ambivalence about, the patent law of the time.

Elangovan on B. S. Rao and the Indian Constitution

Arvind Elangovan, Wright State University published "Constitutionalism as Discipline: Benegal Shiva Rao and the Forgotten Histories of the Indian Constitution" in South Asia: Journal of South Asian Studies 41:3 (2018), 605-20. Here's the abstract: 
Ironically, despite being acclaimed as one of the foremost biographers of the Indian Constitution, little is known about Benegal Shiva Rao (1891–1975) or his ideas about constitutionalism. By delving into Rao's published writings and his incomplete, unpublished autobiography, this essay reconstructs his idea of constitutionalism as one that primarily sought to discipline politics. However, I argue that such a view also leads to erasing the accounts of political conflict that comprise the history of the Indian Constitution. By analytically bringing together this curious triadic relationship between politics, constitutionalism and history, this essay explores how an isolated focus on constitutionalism leads to troubling historical amnesia.
Further information is available here

-Mitra Sharafi

Wednesday, May 15, 2019

Horwitz on Barnette

Paul Horwitz, University of Alabama School of Law, has posted A Close Reading of Barnette, in Honor of Vincent Blasi, which appears in the FIU Law Review 13 (2019): 689-728:
This article, written for a symposium marking the 75th anniversary of West Virginia State Board of Education v. Barnette, offers a close reading of Justice Jackson's opinion for the Court. In doing so, it offers an implicit and explicit tribute to Vincent Blasi, whose teaching and writing have emphasized the value of deep, careful engagement with the language and arguments of a single text, such as a judicial opinion, and who has been an inspiration to me and many other contemporary First Amendment scholars.

This close reading explores a gallery of passages from Barnette that have received relatively little scholarly attention, largely because Jackson's arresting "fixed star" passage has monopolized much of the discussion. But other passages in the opinion help reveal additional important points about the case with important broader implications. They suggest something about why Jackson treated this as a speech rather than a religion case and as an individual liberty case rather than an equal treatment case. They have implications for arguments about third-party harms, "government nonendorsement," student speech, and heckler's veto doctrine. And they underscore the importance of Jackson's description of an autonomous "sphere of intellect and spirit" and of the limits of state power in this area. Perhaps much more than has been recognized, Barnette is a paean to the sovereignty of the mind, and in doing so it treats this realm as much or more as a matter of state non-interference than as a subject for measured judicial balancing.

Although I focus closely on the text of the opinion itself, I offer some larger assessments of Barnette's condition today. I make two general observations. First, on the one hand, Barnette had an excellent 75th anniversary year, with citations and discussions in major Supreme Court decisions suggesting its stock is high. On the other, I suggest that it is in much poorer health in academic circles. A striking number of scholarly discussions of current issues, such as the wedding vendor cases, omit Barnette altogether. I suggest that these omissions are evidence of a deeper discomfort with Barnette. And for good reason: As this close reading reveals, the words and deeper music of Barnette are in genuine tension with current popular positions on these issues, and suggest that at some point these scholars need to engage directly and seriously with Barnette. Second, I argue that in interesting ways Barnette is a kind of "pre-capitulation" of much that happened in First Amendment law in the 75 years that followed it. This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine, but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around it.

Taylor, "Race for Profit"

Out later this year from the University of North Carolina Press (but available for pre-order now): Race for Profit: How Banks and the Real Estate Industry Undermined Black Homeownership (2019), by Keeanga-Yamahtta Taylor (Princeton University). A description from the Press:
Keeanga-Yamahtta Taylor offers a damning chronicle of the twilight of redlining and the introduction of conventional real estate practices into the Black urban market, uncovering a transition from racist exclusion to predatory inclusion. Widespread access to mortgages across the United States after World War II cemented homeownership as fundamental to conceptions of citizenship and belonging. African Americans had long faced racist obstacles to homeownership, but the social upheaval of the 1960s forced federal government reforms. In the 1970s, new housing policies encouraged African Americans to become homeowners, and these programs generated unprecedented real estate sales in Black urban communities. However, inclusion in the world of urban real estate was fraught with new problems. As new housing policies came into effect, the real estate industry abandoned its aversion to African Americans, especially Black women, precisely because they were more likely to fail to keep up their home payments and slip into foreclosure. 
Taylor narrates this dramatic transformation in housing policy, its financial ramifications, and its influence on African Americans. She reveals that federal policy transformed the urban core into a new frontier of cynical extraction disguised as investment.
A few blurbs:
"This is an incredibly important history. Well-written, persuasive, and brimming with insightful analysis, Race for Profit is a book that people have been waiting for."--Beryl Satter 
"Taylor offers a strong account of major transformations in U.S. affordable housing policy and its impact on African American communities. This is an extraordinary book, measured and incisive, with a rich and compelling narrative."--Joseph Heathcott
More information is available here.

-- Karen Tani

Tuesday, May 14, 2019

Thomas on Constructive Trusts to 1827

Rod Thomas, Auckland University of Technology Faculty of Business & Law, has posted Constructive Trusts up to Lord Eldon - A Consent Issue:
This paper looks at the development of constructive trust liability up to the retirement of Lord Eldon in 1827. It suggests liability over this period was imposed to enforce performance of expectations in a way not possible under an executed model of contractual liability. With advent of the Industrial Revolution such grounds became difficulty to justify. Performance of promises became enforceable under an executory contract model of liability, causing us to think the grounds for imposition of liability over this earlier time lack a coherent framework.

This approach invites us to reconsider the basis for liability being imposed in Keech v Sandford and the bribes cases. Also whether remedial constructive trusts are indeed “unprincipled, incoherent and impractical,” as recently suggested by Lord Neuberger. In terms of the presented argument, constructive trust liability up to the tenure of Lord Eldon was imposed on remedial grounds.
"Equity at its flabby worst"!

Treanor on Gouverneur Morris, the Committee of Style and the Constitution

William Michael Treanor, Georgetown University  Law Center, has posted Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution:
Gouverneur Morris (LC)
At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee on Style and Arrangement to bring together the textual provisions that the convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris was assigned to draft the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the Committee’s proposed constitution. For more than two hundred years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have concluded that Morris was an honest scrivener. No prior article, however, has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This article reveals how many changes Morris made to the text delegates had previously agreed to and how important those changes were (and are). It shows that many of the central elements of the Constitution (including the Preamble; the basic Article I, Article II, and Article III structure; and the contract clause) were wholly or largely the product of the Committee’s work. In total, Morris made twelve significant changes to the Constitution, and these textual changes advanced his constitutional goals, including strengthening the national government, the executive, and the judiciary; protecting private property; and fighting the spread of slavery. Finally, it shows that, in central debates in the early republic, Federalists, and, notably, fellow committee member Alexander Hamilton repeatedly drew on language crafted by the Committee as they fought for their expansive vision of the Constitution. In revising the constitutional text, Morris created the basis for what was to become the Hamiltonian reading of the Constitution.

This history has significant implications for modern constitutional law. While the Supreme Court has never been presented with a case that reveals the extent of the Committee’s changes, in four cases it has confronted situations in which the Committee’s text arguably had a different meaning than the provision previously adopted by the convention, and the Court has consistently treated the Committee’s work as substantively meaningless and concluded that the prior resolutions were controlling. That approach should be rejected because it is at odds with the majoritarian premise of constitutional ratification by “the people.” The text that was ratified is controlling. At the same time, in most circumstances, Morris’s language was ambiguous. A modern public meaning originalist approach leads to the conclusion that Morris’s revisions made possible alternate readings of the Constitution: it supported what was to become the Federalist approach, but did not prevent Republican textualist readings. On important contemporary issues, focus on Morris’s text makes us aware of originalist understandings of the text that have been frequently dismissed or wholly forgotten; although it does not eliminate the originalist basis for narrower readings, that focus provides new originalist support for broad understandings of congressional, judicial, and presidential power and for protection of private property.

Ranney on Mississippi's legal history

Joseph A. Ranney, Marquette University Law School has published A Legal History of Mississippi: Race, Class, and the Struggle for Opportunity with the University of Mississippi Press. From the publisher:
A Legal History of Mississippi: Race, Class, and the Struggle for OpportunityIn A Legal History of Mississippi: Race, Class, and the Struggle for Opportunity, legal scholar Joseph A. Ranney surveys the evolution of Mississippi's legal system and analyzes the ways in which that system has changed during the state's first two hundred years. Through close research, qualitative analysis, published court decisions, statutes, and law review articles, along with unusual secondary sources including nineteenth-century political and legal journals and journals of state constitutional conventions, Ranney indicates how Mississippi law has both shaped and reflected the state's character and, to a certain extent, how Mississippi's legal evolution compares with that of other states.
Ranney examines the interaction of Mississippi law and society during key periods of change including the colonial and territorial eras and the early years of statehood when the legal foundations were laid; the evolution of slavery and slave law in Mississippi; the state's antebellum role as a leader of Jacksonian legal reform; the unfolding of the response to emancipation and wartime devastation during Reconstruction and the early Jim Crow era; Mississippi's legal evolution during the Progressive Era and its legal response to the crisis of the Great Depression; and the legal response to the civil rights revolution of the mid-twentieth century and the cultural revolutions of the late twentieth century.
Histories of the law in other states are starting to appear, but there is none for Mississippi. Ranney fills that gap to help us better understand the state as it enters its third century.
 Further information is available here.

-Mitra Sharafi

Monday, May 13, 2019

Three English Revolutions: An ICH Summer Workshop

[We are moving this up because the deadline of May 15 will soon be upon us.  DRE]

We have the following announcement of an Interdisciplinary Summer Workshop in Constitutional History, to be held July 7-12, 2019, at Stanford, California on "Three English Revolutions."  The workshop is sponsored by the Institute for Constitutional History with the Stanford Constitutional Law Center.
This seminar will explore the role played by the two seventeenth-century English Revolutions (of 1642-1660 and 1688-9) in the constitutional debates surrounding the American Revolution and the formation of the state and federal constitutions. Particular attention will be paid to the way in which English controversies about representation, the royal prerogative, and the history of parliament reemerged in the American context and shaped the development of the presidency.
The workshop leaders are Eric Nelson, the Robert M. Beren Professor of Government at Harvard University, and Michael McConnell, the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution.
Stipends and Support: Participants will receive accommodation at the Munger Graduate Residence on the campus of Stanford Law School and a modest stipend for meals. Participants will also receive a travel reimbursement up to $250. Workshop participants are expected to attend all sessions and engage in all program activities. Eligibility and Application Procedure: The summer workshop is designed for university instructors who now teach or plan to teach courses in constitutional studies, including constitutional history, constitutional law, and related subjects. Instructors who would like to devote a unit of a survey course to constitutional history are also welcome to apply. All university-level instructors are encouraged to apply, including adjuncts and part-time faculty members, and post-doctoral fellows from any academic discipline associated with constitutional studies (history, political science, law, anthropology, sociology, literary criticism, etc.).

To apply, please submit the following materials: a detailed résumé or curriculum vitae with contact information; syllabi from any undergraduate course(s) in constitutional studies you currently teach; a 500- word statement describing your interest in both constitutional studies and this workshop; and a letter of recommendation from your department chair or other professional reference (sent separately by e-mail or post). The application statement should address your professional background, any special perspectives or experiences you might bring to the workshop, and how the workshop will enhance your teaching in constitutional studies. The Deadline for Applications deadline is May 15, 2019. Applications should be sent via electronic mail to MMarcus@nyhistory.org. Successful applicants will be notified soon thereafter.

For Further Information Please Contact: Maeva Marcus Director, Institute for Constitutional History New-York Historical Society and The George Washington University Law School (202) 994-6562 MMarcus@nyhistory.org

"Chevron" Revisited

The Historical Society of the District of Columbia Circuit is holding another of its reenactments of historic cases.  On June 13, 2019, it is Chevron's turn.  Among the participants are the leading administrative law scholars, including Gillian Metzger, John Manning, my Georgetown Law colleague David Vladeck, and Christopher Walker.  

Dan Ernst

Ernst on the New Deal FCC

My latest, "The Shallow State: The Federal Communications Commission and the New Deal,"  University of Pennsylvania Journal of Law & Public Affairs 4 (May 2019): 403-458, is now available from SSRN and Penn Law's online repository:
Eugene Octave Sykes (LC)
American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state.  Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order.  Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State.  This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal.  For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, network lobbyists, and the radio bar.  When Roosevelt finally let a network of lawyers in his administration try to clean up the agency, their success or failure turned on whether it could hire the kind of young, smart, hard-working lawyers who had at other agencies proven themselves to be the “shock troops of the New Deal.”  Only after James Lawrence Fly, formerly general counsel of the Tennessee Valley Authority, became chairman and hired lawyers like himself did the FCC set sail.  It cleaned up its licensing of radio stations and addressed monopoly power in the industry without becoming the tool of an authoritarian president or exceeding its legislative and political mandates.
I’m quite grateful to Amanda L. LeSavage, the Editor-in-Chief for Volume 4 of the Journal of Law & Public Affairs, and other members of her staff who worked on what I know was a challenging piece.

Sunday, May 12, 2019

ASLH Student Research Colloquium 2019

[We have the following announcement.  DRE]

The American Society for Legal History will host a Student  Research Colloquium (SRC) onWednesday, Nov. 20, and Thursday, Nov. 21, 2019, immediately preceding the ASLH’s annual meeting in Boston, Massachusetts. The SRC annually enables eight Ph.D.students and law students to discuss their in-progress dissertations and articles with distinguished ASLH-affiliated scholars.

The SRC’s target audience includes early-post-coursework graduate students and historically minded law students. The colloquium seeks to introduce participating students to legal history, to each other, and to the legal-historical scholarly community. Students working in all chronological periods, including ancient and medieval history, and all geographical fields are encouraged to apply, as are students who have not yet received any formal training in legal history. Applicants who have not yet had an opportunity to present their work to the ASLH are particularly encouraged to apply. A student may be on the program for the annual meeting and participate in the SRC in the same year.

Each participating student will pre-circulate a twenty-page, double-spaced, footnoted paper to the entire group. The group will discuss these papers at the colloquium, under the guidance of two faculty directors. The ASLH will provide at least partial and, in most cases, total reimbursement for travel, hotel, and conference-registration costs.

The application deadline is July 15, 2019. Applicants should electronically submit:
  • a cover letter describing, among other things, how far along you are and how many years remain in your course of study;
  • a CV;
  • a two-page, single-spaced “research statement” that begins with a title and proceeds to describe the in-progress research project that you propose to present at the colloquium; and
  • a letter of recommendation from a faculty member, sent separately from, or together with, the other materials.
Organizers will notify all applicants of their decisions by August 15, 2019. Please direct questions and applications to John Wertheimer at: srcproposals@aslh.net.

Saturday, May 11, 2019

Weekend Roundup


  • Michael Klarman devoted his talk in HLS’s “Last Lectures” series to Thurgood Marshall and Ruth Bader Ginsburg, whose lawyering, he said, evinces “hope and resilience in what I find to be an alarming political landscape.”  More.
  • The Norman Transcript kvells over the winning of the Supreme Court Historical Society’s Journal of Supreme Court History by University of Oklahoma graduating senior Adam Hines for “Ralph Waldo Emerson & Oliver Wendell Holmes, Jr.: The Subtle Raptures of Postponed Power," to appear in the May edition of the Journal of Supreme Court History.  Mr. Hines was a student of OU's Andrew Porwancher.
  • At San Francisco State, Steve Harris “uses role-playing to transport his students into the past” in a constitutional-history-laden course.  His student Serafina Kernberger's Ben Franklin alone is worth the click. He was drawing upon techniques learned in Barnard College’s Reacting to the Past program, which holds its Nineteenth Annual Faculty Institute, this year devoted to Democratic Education in Uncertain Times on June 12-15, 2019.
  • ICYMI:  Daniel Okrent on the history of anti-immigration laws in the United States on NPR.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 10, 2019

Roberts on the Imperial Origins of American Public Administration

Alasdair S. Roberts, University of Massachusetts Amherst School of Public Policy, has posted Bearing the White Man's Burden: American Empire and the Origin of Public Administration:
Taft in The Philippines, 1901-03 (LC)
Conventional wisdom about the origin of American public administration is mistaken in several ways. It overlooks the American experiment with colonial administration in the two decades following the Spanish-American war. Academics wrote textbooks, taught courses, and proposed new schools to prepare young men for colonial service. At the same time, reformers used the new dependencies as proving grounds for administrative reforms they wanted at home. Colonial administration was comparative in its approach: American academics and reformers often sought to emulate the practices of European empires. The project of colonial administration was not value-neutral or concerned with establishing "efficient democracy." On the contrary, it was founded on a belief in the superiority of Anglo-Saxon civilization and the need to maintain "white man's rule." Some academics who expressed such views are now counted as pioneers in American public administration.

Publisher's Query: Holmes's "Black Book"

[We have received the following query from the managing editor of Talbot Publishing.  DRE]

Justice Oliver Wendell Holmes (LC)
As publishers of books on law and legal history, we are currently working on a book entitled The Black Book of Justice Holmes: Text Transcripts and Commentary, edited by Michael H. Hoeflich and Steven Epstein.

The book will consist of a facsimile of the manuscript of Justice Holmes’ Black Book (from Harvard Law Library) along with a transcription of the text, as well as introductory materials. We are very pleased to be the publishers of this book that will bring this important primary source to a larger audience.  127 of the 173 pages of transcriptions are thus far completed and in place in the book.

We are looking for general feedback in terms of page presentation,  but are also looking for scholars who might be interested in providing additional essays to be included in our prefatory materials.

Please contact vhorowitz@lawbookexchange.com.

Valerie Horowitz
Managing Editor, Talbot Publishing (an imprint of The Lawbook Exchange, Ltd.)
33 Terminal Avenue, Clark, New Jersey 07066-1321
Tel: 732-382-1800; Toll Free 800-422-6686 in USA or Canada
Fax: 732-382-1887

Narrative as a Mode of Argument

The most practical course I took in grad school was Writing History with Marni Sandweiss, where I learned how to use narrative as a mode of argument. Historians already do this when they decide which characters to follow, how to frame conflict, and when and where to begin and end their story. What was especially helpful for me was learning how to use organization—the unfolding of a story—to make an argument.

One good example is Malcolm Gladwell’s New Yorker essay, “Offensive Play.” It’s a braided narrative of two different stories, one about football and the other about dogfighting. Gladwell never explicitly claims that the injuries sustained by football players are an inherent part of the game and, thus, that the sport is fundamentally immoral. Instead, he raises the question and to answer it, he weaves in sections about dogfighting. Readers, of course, come to the very conclusion that Gladwell wants them to reach, transferring their reactions in one context to the other. But the effect is much more powerful than it would have been if Gladwell had pontificated directly on the ethics of dangerous sports.

I thought about narrative organization often, especially when writing about the history of traffic. My challenge was twofold. First, how could I make an ostensibly boring topic like traffic interesting? Given our familiarity with cars and traffic today, how could I capture the sense of bewilderment at the traffic problem in the early twentieth century? Simply declaring that traffic was a big problem that interested many important people in the early years of the automobile didn’t seem to work. The second challenge was directly connected to the argument I wanted to make. How could I convey that the traffic problem was so serious, overwhelming, and massive that American society built an entirely new mode of governance? How could I relate to contemporary readers that the solution, which is taken as a given today, was not assumed a century ago?

To figure out how to create historical suspense, I went back to Erik Larson’s Devil in the White City. Incidentally, this book offers another compelling example of a braided narrative, interlacing the stories of Daniel Burnham, the mastermind of the 1893 World Fair, and H.H. Holmes, a mastermind serial killer, to portray both the potential and pathos of modernity.

Another one of Larson’s narrative techniques is to hold back certain details until the right moment in order to give readers the same perspective as the historical actors. Consider the following example [spoiler alert]. Early in the book, Larson introduces one of the conflicts in the plot: Burnham desperately desired a structure to “out-Eiffel Eiffel” to showcase the greatness of American architecture and engineering. There was a competition. Several entries proposed a tower even taller than the one at the Paris Exposition, but Burnham deemed towers unoriginal. Two chapters later, we read about a 33-year-old engineer from Pittsburgh with a flash of insight. Pages later, we learn that his idea “embodied little ‘dead load,’ the static weight of immobile masses of brick and steel. Nearly all of it was ‘live load,’ meaning weight that changes over time, as when a train passages over a bridge.” [What is this? I wondered.] This proposal was accepted and then, on second thought, revoked because it was deemed un-buildable.

Finally, the resolution, on page 185: The engineer refined his plans. The structure would be a “vertically revolving wheel” carrying “thirty-six cars, each about the size of a Pullman, each holding sixty people and equipped with its own lunch counter” and “when filled to capacity the wheel would propel 2,160 people at a time three hundred feet into the sky over Jackson Park, a bit higher than the crown of the now six-year-old Statue of Liberty.” I still didn’t get it until the last sentence of the chapter, which finally revealed the name of the engineer from Pittsburgh, George Washington Gale Ferris. What stayed with me from this narrative is the ambition behind a now common feature of state fairs and amusement parks.

In Policing the Open Road, I juxtaposed stories and played with the organization of chapters, sections, paragraphs, and even sentences. I made this effort not just to engage readers, but also to advance the argument. But there are tradeoffs. When a writer avoids direct, declarative expressions of argument (the “I argue that…”), there is the possibility that readers might miss the point. When writing and editing, I constantly asked myself whether I was asking the reader to do too much. Would a reader feel drawn in or wonder if I was hiding the ball? To be sure, there were places where I had to lay out my argument. But the wonderful thing about writing a book is the freedom to experiment with narrative.

Sarah Seo

Murray, Shaw, & Seigel, eds., "Reproductive Rights and Justice Stories"

New from Foundation Press, in the "Law Stories" Series, Reproductive Rights and Justice Stories, edited by Melissa Murray (NYU Law), Katherine Shaw (Benjamin N. Cardozo School of Law), and Reva B. Siegel (Yale Law School). A description from the Press:
This book tells the movement and litigation stories behind important reproductive rights and justice cases. The twelve chapters span topics including contraception, abortion, pregnancy, and assisted reproductive technologies, telling the stories of these cases using a wide-lens perspective that illuminates the complex ways law is debated and forged―in social movements, in representative government, and in courts. Some of the chapters shed new light on cases that are very much part of the constitutional law canon―Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Nevada Department of Human Resources v. Hibbs. Others introduce the reader to new cases from state and lower federal courts that illuminate paths not taken in the law. 
Reading the cases together highlights the lived horizon in which individuals have encountered and struggled with questions of reproductive rights and justice at different eras in our nation’s history―and so reveals the many faces of law and legal change. The volume is being published at a critical and perhaps pivotal moment for this area of law. The changing composition of the Supreme Court, increased executive and legislative action, and shifting political interests have all pushed issues of reproductive rights and justice to the forefront of contemporary discourse. The volume is suited to a wide range of law school courses, including constitutional law, family law, employment law, and reproductive rights and justice; it could also be assigned in undergraduate or graduate courses on history, gender studies, and reproductive rights and justice.
All of the editors have contributed solo- or co-authored essays. The other contributors are: Samuel R. Bagenstos (University of Michigan Law); Khiara M. Bridges (Boston University School of Law); Deborah Dinner (Emory Law); Cary Franklin (University of Texas at Austin School of Law); Linda Greenhouse (New York Times/Yale Law School); Maya Manian (University of San Francisco School of Law); Serena Mayeri (University of Pennsylvania School of Law); Douglas NeJaime (Yale Law School); Priscilla A. Ocen (Loyola Law School, Los Angeles); Neil S. Siegel (Duke Law).

It looks like some of the essays are available on SSRN. For example, here is Reva Siegel and Linda Greenhouse's chapter on "The Unfinished Story of Roe v. Wade."

Thursday, May 9, 2019

CFP: New Histories of Sovereigns and Sovereignties

[The “interest group” of the European Society of International Law Annual (ESIL) on the History of International Law has sent us the following call for papers for a session at the ESIL’s conference in Athens on September 12, 2019 .]

New Histories of Sovereigns and Sovereignties
Deadline 31 May 2019

Sovereigns and sovereignty have long been key aspects for histories of international law. Doctrinal definitions of sovereignty have been instrumentalized in political struggles throughout history. In the era of revolutions, instrumental uses of leading law textbooks like Vattel’s even led to constitutional overthrows. Therefore, changing ideas of sovereignty, the emergence and disappearance of particular sovereign states, and the sovereignty of international organisations inspired much debate among lawyers, and between lawyers and politicians in the last centuries. More recently, many of the major works in the contemporary revival of international legal history took sovereigns, their empires, their equality or inequality or even their property as starting points for new critical histories of the discipline and the role of international law in the expansion of the European state model or the rise of imperialism.

For our Interest Group meeting at the ESIL Annual Conference in Athens we are soliciting paper presentations that continue this path and promise novel ways of thinking about sovereigns and sovereignty. Potential topics may include (but are not limited to):
  • Potential paths for the field to explore now that the critical works have become the new mainstream literature. For example, what might a revisionist history of sovereignty look like?
  • The hybrid nature of legal argumentation in specific political and constitutional struggles and their transnational reverberations.
  • Papers exploring to what extent the centrality of sovereignty in the history of international law is warranted.
  • Examples of resistance to interpretations of sovereignty, or the concept itself.
  • Forgotten sovereigns and interpretations of sovereignty.
Papers using underexploited primary sources or involving archival work will receive our special attention. We particularly welcome proposals from and about women, and encourage early career scholars or those without current university affiliations to apply. We consider submissions written in French and English.

Abstracts of up to 500 words must be submitted no later than 31 May 2019 to esilighil@gmail.com on behalf of the Steering Committee of the Interest Group, which shall collectively supervise the blind peer-review process. The Interest Group is unable to provide funding for travel and accommodation. Please see the ESIL website for information about travel grants and carers’ grants offered to ESIL members (deadline: 5 June), and other relevant information about the conference.

Selected speakers are strongly encouraged to become members of the Society and to register for the Annual Conference; please note, however, that the Society is unable to offer reduced conference registration fees to speakers at pre-conference events (please do not register as agora speakers).

Selected speakers can indicate their interest in being considered for the ESIL Young Scholar Prize, if they meet the eligibility conditions as stated on the ESIL website. The ESIL Secretariat must be informed of all speakers who wish to be considered for the Prize by 15 May at the very latest.

Weinberger Named Berger-Howe Fellow

[We have the following announcement.]

The Program in Law and History at Harvard Law School is pleased to announce that the Raoul Berger-Mark deWolfe Howe Fellow in Legal History for the academic year 2019-2020 will be Lael D. Weinberger.  Mr. Weinberger is a Ph.D. candidate in history at the University of Chicago, where he also received his J.D.  During his fellowship year he will continue working on his dissertation, “Law, Rights, and Courts for America and the World, 1914–1948.”

Deadline Approaching to Apply for AJLH US Editor-in-Chief

Reminder: the American Journal of Legal History seeks applications for US Editor-in-Chief. The Press and the current editor will begin reviewing applications on June 1.
American Journal of Legal History – applications invited for post of US Editor-in-Chief 
Oxford University Press (OUP) is seeking to recruit a new co-Editor for the American Journal of Legal History (AJLH) with special expertise in the legal history of the United States. Professor Al Brophy, who currently co-edits the AJLH with Professor Stefan Vogenauer, is planning to step down due to ongoing health issues. Professor Brophy has been a key figure in the successful relaunch of the journal after it joined forces with OUP. The publishers are now seeking to appoint his successor for an initial term of three years, with effect from 1 September 2019.

The AJLH was founded in 1957 and was the first English-language periodical in the field. It was relaunched as an OUP publication at the beginning of 2016 with new editors, Professors Al Brophy (University of Alabama School of Law, Tuscaloosa) and Stefan Vogenauer (Max Planck Institute for European Legal History, Frankfurt). The new AJLH aims to publish outstanding scholarship on all facets and periods of legal history. While retaining its focus on American legal history, it accommodates the enormous broadening of the intellectual horizon of the discipline over the past decade and is particularly interested in contributions of a comparative, international or transnational nature. Book reviews are a regular feature. The new AJLH is a quarterly, peer-reviewed journal. 
For further information on the editorial role please visit here

Wednesday, May 8, 2019

CFP: 100 Years of Canadian Bankruptcy and Insolvency Law

[We have the following conference announcement and call for papers.]

Western University Faculty of Law in London, ON Canada will be hosting the 100 Years of Canadian Bankruptcy and Insolvency Law Conference on May 22-23, 2020.  The conference will commemorate the 100th anniversary of the coming into force of the Bankruptcy Act, 1919, the basis of Canada's modern bankruptcy regime.

The conference organizers welcome papers that offer legal history perspectives on the evolution of bankruptcy law in Canada and other jurisdictions. Other topics are covered in the Call for Papers. Proposals are due June 24, 2019.

Thomas Telfer, Western University (ttelfer@uwo.ca).

Anderson on 19th-Century Trial Manuals on Jury Challenges

April J. Anderson has posted Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies As Seen in Practitioners’ Trial Manuals, which she wrote as a Yale Law student in a seminar on the history of the jury trial.  It is forthcoming in 2020 in the Stanford Journal of Civil Rights and Civil Liberties:
Peremptory strikes on the basis of race, national origin, religion, and class are well-known problems in modern jury selection, and have led to calls to abolish peremptory strikes altogether. Defenders of peremptory strikes argue that they are a fixture of the common law system that should not be discarded because of a few abuses.

This Article explores how and why strategic jury selection developed in the United States by looking at previously unstudied primary source materials: nineteenth-century trial-attorneys’ practice guides. Peremptory challenges and voir dire are difficult to study because court records often leave them out. Even when strikes are recorded, an attorney’s strategy may not be evident to the outsider. But practice guide materials reveal these strategies, demonstrating that nineteenth-century attorneys used peremptory strikes to eliminate jurors based on stereotypes regarding race, national origin, religion, and class. They also show how a number of features of the modern American jury selection system—most notably, extended pretrial questioning of jurors—were expanded from their more limited common law forms to make it easier for lawyers to either respond to particular social prejudices in American society or to make discriminatory peremptory challenges.

These findings have important implications for the modern-day debate over peremptory challenges. While proponents of peremptory challenges point to their ancient origins as justification for keeping them, a historical perspective shows that modern jury selection looks nothing like its English common law progenitor. Analysis of turn-of-the-century practices, the beginnings of the procedures we use now, exposes modern abuses as part of a trend that began in the 1800s. Simply put, the problems reformers now point to are not recent abuses that have crept in to an ancient system. They have existed for as long as the jury selection procedures we know have been practiced. Modern jury selection and abusive tactics grew up simultaneously in the 1800s as a reaction to the country’s social divisions, suggesting that discrimination as a trial strategy is inevitable in a heterogeneous society where courts allow extended voir dire and unfettered peremptory challenges.
---DRE

Call for Nominations: Cromwell Article Prize

We have the following announcement (note the May 31 deadline):
The William Nelson Cromwell Foundation Article prize is awarded annually for the best article in American legal history published by an early career scholar. Articles published in 2018 in the field of American legal history, broadly conceived, will be considered. There is a preference for articles in the colonial and early national periods. Articles in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

The author of the winning article receives a prize of $5,000. The Foundation awards the prize after a review of the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History. This subcommittee invites nominations for the article prize. Authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed. Please send a brief letter of nomination, no longer than a page, along with an electronic copy (or URL of the publication site) of the article, by May 31, 2019, to the subcommittee chair, Prof. David Konig, at cromwellarticleprize@gmail.com.

Tuesday, May 7, 2019

Schwartz on Lamazoff on the Bank War

David S. Schwartz, University of Wisconsin Law School, has posted Coin, Currency, and Constitution: Reconsidering the National Bank Precedent, a review essay on Eric Lomazoff’s Reconstructing the National Bank Controversy: Politics and Law in the Early Republic (2018) It is forthcoming in volume 117 of the Michigan law Review (2019):
The constitutional debates surrounding the First and Second Banks of the United States generated the first major precedents regarding the scope of federal legislative powers, and their importance continues to resonate today. Eric Lomazoff's important new book, Reconstructing the National Bank Controversy, is the first scholarly study that views the National Bank controversy as a continuous 55-year sequence of events, whose highlights include the adoption of Alexander Hamilton's proposed Bank of the United States in 1791, John Marshall's decision in McCulloch v. Maryland in 1819, and Andrew Jackson's veto of the Second Bank recharter in 1832. Lomazoff persuasively establishes that a Madisonian consensus supporting the creation of the Second Bank in 1816 " largely overlooked by constitutional scholars " was framed in a way that tried, albeit unsuccessfully, to downplay the Necessary and Proper Clause and the idea of implied powers by emphasizing the existence of a federal power to regulate the national currency, linked to the Coinage Clause. The book review goes on to argue that the National Bank controversy demonstrates that many antebellum partisans of limited enumerated powers -- mainstream Jeffersonian Republicans, Jacksonian Democrats, and even James Madison himself -- were quite happy to work around enumerated powers in order to meet the political demands and objectives of the moment. This lends support to the suggestion that enumerationism (the ideology of limited enumerated powers) was never, in practice, the "true" original meaning of the Constitution.

Harrison on Public Rights and Article III

John C. Harrison, University of Virginia School of Law, has posted Public Rights, Private Privileges, and Article III, which is forthcoming in the Georgia Law Review:
This article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. As the Justices are aware, the public rights rationale originated in the 19th century, and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. In light of the Court’s evident interest in the 19th century system, this article explores that system in depth and seeks to identify the ways in which it authorizes and limits executive adjudication. The older system focused on public rights, private rights, and private privileges. The courts protected the private rights they found in the primary law, including federal statutes that created such rights. Private privileges, unlike private rights, could be affected by the unilateral exercise of a proprietary right of the government – that is, by the exercise of a public right. The interest in receiving a payment from the Treasury was a classic example of a private privilege, provided Congress had not given the private recipient a judicially enforceable claim to it. When the executive administered the government’s own legal interests according to the law, it often performed a function that resembled adjudication. That function was nevertheless an exercise of executive power, because executive officials act for the government as proprietor and contracting party. Executive adjudication thus was permissible under the older system when Congress created the relation of public right and private privilege. Whether Congress may do so depends, like other questions concerning congressional power, on the scope of Congress’s enumerated powers and the affirmative limitations on it. The article identifies the questions concerning congressional power that must be answered in order to decide when Congress may create the relations that underwrite executive adjudication under the older system, and shows that the scope for that form of decision making may be quite broad. One constitutional rule is notably absent from the list of constraints: the vesting of the judicial power in the courts by Article III. The constitutional function of the courts is to protect rights. Under the older system, whether a private person has a right with respect to any specific interest depends on the primary law, not Article III. The judicial power took public rights, private rights, and private privileges as it found them.

Monday, May 6, 2019

Rothchild on the US and International Copyright

John Rothchild, Wayne State University Law School, has posted How the United States Stopped Being a Pirate Nation and Learned to Love International Copyright, which appeared in the Pace Law Review 39 (2018): 361-451:
From the time of the first federal copyright law in 1790 until enactment of the International Copyright Act in 1891, U.S. copyright law did not apply to works by authors who were not citizens or residents of the United States. U.S. publishers took advantage of this lacuna in the law, and the demand among American readers for books by popular British authors, by reprinting the books of these authors without their authorization and without paying a negotiated royalty to them.

Keppler, "The Pirate Publisher" (LC)
This Article tells the story of how proponents of extending copyright protections to foreign authors—called international copyright—finally succeeded after more than fifty years of failed efforts. Beginning in the 1830s, the principal opponents of international copyright were U.S. book publishers, who were unwilling to support a change in the law that would require them to pay negotiated copyright royalties to British authors and, even worse from their perspective, would open up the American market to competition from British publishers. U.S. publishers were quite content with the status quo—a system of quasi-copyright called “trade courtesy.” That system came crashing down in the 1870s, when non-establishment publishers who did not benefit from trade courtesy decided to ignore its norms, publishing their own cheap, low-quality editions of books by British authors in competition with the editions published by the establishment publishers. As a result, most U.S. publishers came to support extending copyright to foreigEditn authors as a means of preventing competition from publishers of the cheap editions.

Once the publishers withdrew their opposition, another powerful interest group came to the fore: typesetters, bookbinders, printers, and other workers in the book-manufacturing industries. These groups opposed international copyright unless it were accompanied by rules assuring that they would not be thrown out of work by a transfer of book manufacturing from the United States to England. In the 1891 Act, the typesetters achieved what they sought: a provision requiring books to be typeset in the United States as a condition of copyright. In this way, U.S. copyright law implemented an element of U.S. trade policy.

The manufacturing clause, as this requirement was called, was gradually watered down over the succeeding decades and lingered in the copyright law until 1986. Yet the entanglement of copyright law with trade policy continued, in the World Trade Organization treaty system and elsewhere.

As a major exporter of books, software, movies, and other articles embodying copyrighted works, the United States has sought in multiple forums to strengthen the protections those works receive under the laws of other nations, sometimes provoking pushback from countries that are net importers of intellectual property goods. When pursuing these goals in the twenty-first century, U.S. policymakers would do well to bear in mind this country’s forgotten history as the greatest copyright pirate nation of the nineteenth century.

Newman on Meat Inspection and Public Choice

Patrick Newman, Florida Southern College, has posted another installment of his research on the politics of meat inspection, Public Interest or Public Choice? The Beef Trust and the 1906 Meat Inspection Act:
The Meat Market, 1906 (LC)
This paper challenges the recent research of public interest historians and argues the evidence supports a public choice interpretation of the 1906 Meat Inspection Act. First, the Beef Trust’s slaughter of diseased meat was due to the uncertainty over the science of disease transmission and using it was the only way at the time to make meat affordable to consumers. Second, critics of the Beef Trust’s sanitary practices were often biased and they exaggerated the problem. Third, the evidence is consistent with the argument that the Beef Trust captured the regulation because the law was associated with an increase in their market share, less product choice, and higher meat prices, all of which hurt consumers.
Dan Ernst

A Book Greater than the Sum of its Chapters

When I learned that the academic book market had changed, my goals shifted too. Of course, the essence of the project remained the same. Policing the Open Road is about how the introduction of a technological shock in American society—the mass adoption of cars—transformed American governance, policing, criminal procedure, and the relationship between individual citizens and the state. The overarching argument posits that all of these changes responded to the necessity of disciplining “law-abiding” citizen-drivers, which raised a profound and troubling question: What did freedom mean in a modern, automotive society that policed all its citizens? Ultimately, the law’s solution to the potential arbitrary policing of “Everyman,” I argue, led directly to the systematic discriminatory policing of racial minorities.

To figure out how to tell this story, I had to think about the book as a whole. In light of the realities of academic teaching today, I also crafted each chapter to stand alone, each with its own narrative, cast of characters, and argument. Here’s a short breakdown:

  • Chapter 1, “A Mystery of Traffic” gives an account of how the mass adoption of the automobile led to the shift from nineteenth-century governance based on common law and voluntarism to twentieth-century governance based on discretionary policing.
  • Chapter 2, “From Lumbering Foot Patrolmen to Motor-Mounted Policemen” traces the emergence of twentieth-century professionalized police to the need to manage traffic and “law-abiding” traffic violators.
  • Chapter 3, “The Automotive Fourth Amendment” examines the technology-driven demise of classical legal thought in criminal procedure and the resulting expansion of police discretion. Or, for crim pro folks, this chapter tells the story about how the Carroll automobile exception in 1925 culminated with the Terry stop-and-frisk in 1968.
  • Chapter 4, “It Could Happen to You” offers an alternative account of the Warren Court’s due process revolution by juxtaposing the Court’s landmark cases with its car cases.
  • Chapter 5, “The Right to Privacy in Public” integrates the histories of policing and the twentieth-century administrative state to explain why the major legal theories of the twentieth century—classical legal thought, legal realism, and legal process theory—failed to offer a principled method to both justify and constrain police discretion.
  • Chapter 6, “The Fourth Amendment Tool in Criminal Patrol” is a legal history of driving while black that shows that underlying proceduralism was a fundamental acceptance of discretionary policing—to the point of countenancing racialized policing.

One could easily pick up Policing the Open Road and start with any chapter. But, as with any book, readers would miss important narrative and thematic through lines without reading from beginning to end. One is the sense of dramatic change in state power and discretionary policing from the beginning of the twentieth century to the present.

Second, although it’s hard to miss my argument about causation, readers of select chapters may not catch my periodization. I argue that the turn to procedure in American law was an outgrowth of events in American society that took place in the 1920s and 30s.

Let me give an example that will be familiar to those who have read my essay, “The New Public,” which appears, significantly modified, as Chapter 5 (more on this in a future post). One of the main characters in this chapter is Charles Reich, who wrote the 1970 bestseller The Greening of America. In 1966 as a Yale law professor, he also wrote about his numerous encounters with the police in his car. These stops were about more than the annoyances of getting pulled over too many times. They were also about the invasion of his privacy. As a closeted gay man at a time when sodomy was a crime in all states but one, Reich went for long drives to escape the burdens of keeping his secret. So when the police questioned his whereabouts in his car, they were prying into the most intimate parts of his personal life.

Readers who read Chapter 5 will come away understanding the struggles of a legal progressive and realist who, in his attempts to delineate some limits on the police, flirted with classical legal thought but settled on an entirely different solution that ultimately expanded the police’s power even more. There is a sense that Reich conceded too much; a contemporary wrote in Playboy that Reich’s proposals for police reform were “well-meaning” but not enough.

But readers who have also read Chapter 1 will find it difficult to judge Reich’s concession to discretionary policing. Further confirming that larger social forces were at play, Reich’s proposals essentially mirrored policy choices and legal changes from the 1920s and 30s that accommodated police discretion, which are detailed in Chapters 2 and 3. Readers of Chapters 3 and 4 will also appreciate the constraints that the public/private dichotomy imposed on Reich’s thinking about the police problem and American legal thought more generally. And while Chapter 5 mentions the implications of Reich’s reforms, it is in Chapter 6 where readers learn about the devastating consequences of proceduralism in Fourth Amendment jurisprudence.

Like any author, I’m thrilled and honored whenever anyone reads something I’ve written. I know I’ll still be thrilled and honored if someone decides to pick and choose a chapter from Policing the Open Road rather than read the whole thing. I understand that authors have to earn their readers. I’ll pick up on this and narrative strategies in the next post.

Sarah Seo

Sunday, May 5, 2019

Registration for ASLH 2019 Now Open!

[We have the following announcement.]

Registration is now open [here] for the 2019 ASLH annual meeting in Boston, Massachusetts, November 21-24, 2019.  A $179.00 conference rate has been negotiated with the Boston Park Plaza.

Did you know that staying at the conference hotel will benefit ASLH? We need to book a minimum number of rooms to avoid penalties. Please help us keep conference costs down by booking your stay at the conference hotel. The link will appear in your confirmation email.

Also available are registrations for exhibitors and advertisements in the annual meeting program.

Saturday, May 4, 2019

Weekend Roundup

  • If you'd like to see how legal historians' scholarship figured in the recently decided Emoluments Clause decision Blumenthal v. Trump, Judge Sullivan's decision is here.  I was pleased to note the Judge's particular reliance on the scholarship of my Georgetown Law colleague John Mikhail.   Marcia Coyle discusses the historians' brief in the case in the National Law Journal.  H/t DV.  --DRE 
  • We have received a call for papers from the Theory and History of Law Center of the University of Lisbon on the 250th anniversary of what our computer somewhat dubiously translates from the Portuguese as “A Good Reason Law of August 18, 1769.”  Deadline is May 31, 2019. 
  •  The Historical Society of the New York Courts has posted an excerpt from Paul McGrath's "People v. Croswell: Alexander Hamilton and the Transformation of the Common Law of Libel," which originally appeared in Judicial Notice, the Society's journal, available here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 3, 2019

Quinn on a "Fallen" Woman Judge

Mae C. Quinn, University of Florida Levin College of Law, has posted Fallen Woman (Re)framed: Judge Jean Hortense Norris, New York City - 1912-1955, which is forthcoming in the University of Kansas Law Review 67 (2019): 451-512:
Jean H. Norris (wiki)
This Article seeks to surface and understand more than what is already known about Jean Hortense Norris as a lawyer, jurist, and feminist legal realist—as well as a woman for whom sex very much became part of her professional persona and work. This article analyzes the lack of legal protections provided to Norris and troubling nature of her removal from the bench given the evidence presented and standards applied. Finally, this Article seeks to provide further context for Jean Norris’s alleged misconduct charges to suggest that as a woman who dared to blur gender boundaries, embrace her professional power, and offer a unique vision of the “fairer sex,” she was held to a different standard than her male peers and made to pay the price with her career. In these ways, this Article provides a more complete picture of Jean Norris beyond a shamed and disrobed judge. And it begins to move Judge Norris out of legal history’s margins so that she may be remembered as more than mere mugshot in the American imagination.
--DRE