Friday, August 31, 2007

The Little Rock Crisis: 50 Years Later -- New Books

Fifty years ago Governor Orval Faubus of Arkansas blocked a federal court order requiring the integration of Little Rock's Central High School, setting off an extended crisis in the city, which came to a dramatic close only when President Dwight D. Eisenhower sent in federal troops who held back white mobs and escorted nine African American students to school.

There are many events planned and new resources available as the nation takes up Little Rock's anniversary. To start off, here are two new books on the Little Rock crisis.

Legal historians might find most interesting Tony Freyer's new book, Little Rock on Trial: Cooper V. Aaron and School Desegregation, just out from the University Press of Kansas. Here's the book description:

Americans were riveted to their television sets in 1957, when a violent mob barred black students from entering Little Rock's Central High School and faced off against paratroopers sent by a reluctant President Eisenhower. That set off a firestorm of protest throughout the nation and ultimately led to the Supreme Court's landmark decision in Cooper v. Aaron, reaffirming Brown v. Board of Education's mandate for school integration "with all deliberate speed" and underscoring the supremacy of federal and constitutional authority over state law.

Noted scholar Tony Freyer, arguably our nation's top authority on this subject, now provides a concise, lucid, and eminently teachable summary of that historic case and shows that it paved the way for later civil rights victories. He chronicles how the Little Rock school board sought court approval to table integration efforts and how the black community brought suit against the board's watered-down version of compliance. The board's request was denied by a federal appeals court and taken to the Supreme Court, where the unanimous ruling in Cooper reaffirmed federal law--but left in place the maddening ambiguities of "all deliberate speed."

While other accounts have focused on the showdown on the schoolhouse steps, Freyer takes readers into the courts to reveal the centrality of black citizens' efforts to the origins and outcome of the crisis. He describes the work of the Little Rock NAACP--with its Legal Defense Fund led by Thurgood Marshall and Wiley Branton--in defining the issues and abandoning gradualism in favor of direct confrontation with the segregationist South. He also includes the previously untold account of Justice William Brennan's surprising influence upon Justice Felix Frankfurter's controversial concurring opinion, which preserved his own "deliberate speed" wording from Brown.

With Cooper, the "well morticed high wall" of segregation had finally cracked. As the most important test of Brown, which literally contained the means to thwart its own intent, it presaged the civil rights movement's broader nonviolent mass action combining community mobilization and litigation to finally defeat Jim Crow. It was not only a landmark decision, but also a turning point in America's civil rights struggle.

This is Freyer's second Little Rock book. The Little Rock Crisis: A Constitutional Interpretation was published by Greenwood Press in 1984. The newer volume, besides setting Little Rock in the context of contemporary arguments about courts and civil rights, is a better vehicle for classroom use.

Turn Away Thy Son: Little Rock, the Crisis That Shocked the Nation by Elizabeth Jacoway has been published by Free Press. Here's the book description:

In September 1957, the nation was transfixed by nine black students attempting to integrate Central High School in Little Rock in the wake of the Supreme Court's Brown v. Board of Education decision. Governor Orval Faubus had defied the city's integration plan by calling out the Arkansas National Guard to prevent the students from entering the school. Newspapers across the nation ran front-page photographs of whites, both students and parents, screaming epithets at the quiet, well-dressed black children. President Eisenhower reluctantly deployed troops from the 101st Air-borne, both outside and inside the school.

Integration proceeded, but the turmoil of Little Rock had only just begun. Public schools were soon shut down for a full year. Black students endured outrageous provocation by white classmates. Governor Faubus's popularity skyrocketed, while the landmark case Cooper v. Aaron worked its way to the Supreme Court and eventually paved the way for the integration of the south.

Betsy Jacoway was a Little Rock student just two years younger than the youngest of the Little Rock Nine. Her "Uncle Virgil" was Superintendent of Schools Virgil Blossom. Congressman Brooks Hays was an old family friend, and her "Uncle Dick" was Richard Butler, the lawyer who argued Cooper v. Aaron before the Supreme Court. Yet, at the time, she was cocooned away from the controversy in a protective shell that was typical for white southern "good girls." Only in graduate school did she begin to question the foundations of her native world, and her own distance from the controversy.

Turn Away Thy Son is the product of thirty years of digging behind the conventional account of the crisis, interviewing whites and blacks, officials and students, activists and ordinary citizens. A tour de force of history and memory, it is also a brilliant, multifaceted mirror to hold up to America today. She knows what happened to the brave black students once they got inside the doors of the school. She knows how the whites' fear of "race mixing" drove many locals to extremes of anger, paranoia, and even violence. She knows that Orval Faubus was only a reluctant segregationist, and that her own cousin's timid tokenism precipitated the crisis.

Above all, Turn Away Thy Son shows in vivid detail why school desegregation was the hottest of hot-button issues in the Jim Crow south. In the deepest recesses of the southern psyche, Jacoway encounters the fear of giving black men sexual access to white women. The truth about Little Rock differs in many ways from the caricature that emerged in the press and in many histories -- but those differences pale in comparison to the fundamental driving force behind the story. Turn Away Thy Son is a riveting, heartbreaking, eye-opening book.
Juan Williams reviewed the book for the Washington Post. He had this to say:

Jacoway argues that Southern resistance to integrated schools was rooted in white men's insistence on controlling white women and white bloodlines by keeping them away from black men. "In the mannerly, distinctly southern environment of Little Rock, such sexual concerns rarely rise to the level of verbal discourse, and almost never in the company of women, then or now," Jacoway notes....

Her theory about white sexual anxiety acts as a spicy subplot to a generally scholarly book. At its best, this is a comprehensive, sometimes overly detailed telling of the Little Rock crisis. Armed with five decades of books written by the principals in the drama, as well as interviews, newspaper accounts, letters, legal briefs and legal rulings, Jacoway offers a sometimes stilted, character-driven narrative that moves the accepted telling of the tale from the world of segregationist politics to the world of personal failings and insecurities.

Stern on Debating Rationales for Jury Nullification After Bushell's Case

Simon Stern, Faculty of Law, University of Toronto, has posted an essay, Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bushell's Case. It appeared as a Note in the 2002 Yale Law Journal. Here's the abstract:
Bushell's Case, 24 Eng. Rep. 1006 (C.P. 1670), established that jurors may not be fined or imprisoned for returning a verdict that conflicts with the judge's assessment of the evidence. Chief Justice John Vaughan's opinion did not defend jury nullification - in fact, the opinion asserted that jurors must follow the judge's directions concerning the law - but the opinion has long been recognized as a crucial resource for those who advocate nullification. Modern defenses of jury nullification that draw on Bushell's Case often point to Vaughan's argument that jurors must be permitted to form their own views because reasonable people may disagree about a witness's credibility or the reliability of the evidence. In the 1680s, however, when Bushell's Case was first being publicly debated, commentators focused primarily on Vaughan's argument that because jurors were chosen from the locality where the crime occurred, they should be presumed to have personal knowledge of the facts of the case. By the late seventeenth century, however, this premise was untenable. This article considers why the "personal knowledge" argument might have been so appealing, despite its implausibility, and examines the process by which that justification for jury nullification gave way to the "independent assessment" argument. In the course of the movement from the first justification to the second one, Bushell's Case began to viewed as supporting the jury's right to find both fact and law - a right that Vaughan had never defended.

Call for Papers: The Paradoxes of Race, Law and Inequality in the United States

The Paradoxes of Race, Law and Inequality in the United States

Call For Papers: Spring 2008 Conference
Co-Sponsored by Law & Society Review and
The Center for Law, Society and Culture at the University Of California, Irvine

Conference Theme: The Civil Rights Movement reinvigorated socio-legal scholarship and raised new questions about the place of law in social, political, economic and cultural life. Scholars have continued to grapple with issues surrounding race and class. From the beginning, one of the ideals of the Law and Society Association has been that, by making social scientific research available to policymakers, scholars could move toward righting the wrongs of our racialized pasts.

Today, scholars approach the analysis of race, law and inequality in the United Sates in a very different socio-political climate than that of the 1960s. There have been dramatic changes in immigration law in the 1990s, debates over even more restrictive immigration policies in the 2000s; transformative changes in labor markets within the United States and overseas; skyrocketing concerns over security threats from outside and within the United States, increased use of racial profiling, new forms of incarceration, and fears of gang warfare. In the face of these developments, theories and methodologies have diversified.

Despite these changes, the paradoxes of race, law and inequality are at least as profound as they were at the beginning of the Civil Rights Movement. The broad question before us is: What role can scholars play in understanding the landscape where race, ethnicity, inequality, and law intersect?

In January 2007, Law & Society Review Editor Carroll Seron, and Associate Editors Jeannine Bell, Laura Gómez, Ruth Peterson, and Jonathan Simon convened a workshop to plan a conference and a symposium of the Review on the topic of race, law, and inequality in the United States. Kitty Calavita and David Goldberg served as commentators at this workshop which was held at the University of California Irvine, and which was co-sponsored by the UCI Center in Law, Society and Culture. Students and faculty from across the campus were also in attendance. After a day of brainstorming, a series of cross-cutting themes emerged.

To explore these themes in greater depth, a conference will be held at UCI in spring 2008 and a special symposium of the Review will follow in 2009. The conference will be co-sponsored by Law & Society Review and the Center for Law, Society and Culture at UCI. We invite paper submissions on the conference themes. Following the conference, papers that are presented may also be submitted for inclusion in the symposium. All articles will go through the standard peer review process of Law & Society Review.

Procedures for submission of a paper: To be considered for participation, please submit your paper title with an abstract and a c.v. by October 31, 2007. Participants will be selected by November 30, 2007. We anticipate covering the travel and other expenses of participants at the conference.

Inquiries: You may submit inquiries to either Carroll Seron at or Susan Coutin at The Associate Editors of Law & Society Review and the Advisory Board of the Center for Law, Society and Culture will continue to play an active role in the development of the conference and the selection of participants.

Date: We anticipate that the conference, to be held at the University of California, Irvine, will be May 2-3, 2008.

Proposed topics
What is the most productive way to describe race without reifying it?
How have racialized inequalities in the United States been reinforced or exacerbated in recent decades?
How do discursive shifts in crime policy and the unprecedented expansion of imprisonment since the 1960s affect investments in racialized forms of governance?
How have institutionalized inequalities been sharpened even as few admit to being racist?
What are the global impacts of American racial policies and practices?

Thursday, August 30, 2007

New Feature: This Day in History, from IntLawGrrls

The blog IntLawGrrls regularly includes fine posts on legal history, often by blog co-founder Diane Marie Amann. The blog begins each day with a post on notable events in legal history that have occurred on that date. Other important recent posts include a series on Women at Nuremburg, including today's post on female journalists.

To make these posts easily accessible to readers, I've added a feed from IntLawGrrls to the Legal History Blog. You'll find links to the five most recent IntLawGrrls posts on the left side of the blog.

More blog updates to come...

40 years ago today: Thurgood Marshall's confirmation

IntLawGrrls remembers Thurgood Marshall, who was confirmed by the Senate as an Associate Justice of the U.S. Supreme Court 40 years ago today.

A new book (forthcoming next year) tells the story this way:

It would be [Marshall's] fate to be nominated in 1967, a year Robert L. Allen would call "an important turning point in the history of black America. It was a year of unprecidentally massive and widespread urban revolts. It was the year that so-called riots became an institutionalized form of black protest."

Marshall’s opponents were concerned that he would change the Court balance on a particular case: Walker v. City of Birmingham. The case involved peaceful civil rights marchers in Birmingham, Alabama, led by ministers Martin Luther King, Jr., Ralph Abernathy, and Fred Shuttlesworth. The City had obtained a preliminary injunction against the marchers, but the protesters, claiming that the injunction and underlying city ordinance, were unconstitutional, violated the injunction, and marched. The Alabama trial court found them in contempt for violating the injunction, and sentenced them to jail terms. The protesters challenged the ruling, but the U.S. Supreme Court held that they were bound to follow the court order and challenge it through the judicial process, rather than violate it and question its constitutionality afterward....

Justice Brennan [argued in dissent]: "We cannot permit fears of ‘riots’ and ‘civil disobedience’ generated by slogans like ‘Black Power’ to divert our attention from what is here at stake."... The case was not about "violence or the right of the State to control its streets and sidewalks," but instead about whether Alabama could insulate from judicial review "ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights, thus arming the state courts with the power to punish as a ‘contempt’ what they otherwise could not punish at all."...

Walker was a 5-4 decision, handed down June 12, 1967. Retiring Justice Tom Clark was in the majority. A new justice with different views could change the outcome. President Johnson nominated Marshall the next day.

It was Senator Strom Thurmond of South Carolina who first drew the attention of his colleagues to the Walker case. On June 15, 1967, he introduced in the Senate record an editorial from the Washington Evening Star entitled "Dr. King’s Conviction." The paper thought the Walker ruling was sound, and hoped it would last as controlling precedent.
But this would be a very dubious assumption in view of the President’s nomination of Thurgood Marshall to replace Justice Clark. When a suitable case comes along after the Solicitor General takes his seat on the court, there is a high probability that the holding in the case of Dr. King will be overruled by a new 5 to 4 decision....
James J. Kilpatrick’s op-ed simply asked: "Would Marshall have voted to send Martin Luther King to jail?"

The man who had called for an end to "anarchy" was now criticized as a source of it....[But] most Senators saw it differently. Wayne Morse of Oregon thought Marshall’s nomination was "a shining moment for American democracy." It was evidence of the nation’s progress, reflecting "our growing maturity as a people and a nation." Thomas Kuchel, Republican of California, argued that Marshall’s nomination "reflects the American tradition in its finest sense." While many stressed that Marshall’s appointment was due to his experience, not his race, Kuchel thought that "the world and the American people will not ignore completely the fact that as a member of an ethnic minority, he will now sit on our supreme tribunal." It was this fact that led Marshall’s nomination to exemplify the American dream of "equal justice and opportunity under law." By confirming Marshall, the Senate would "express confidence in the American dream, a dream which says that every man, regardless of race, color, or creed, may achieve the goals he seeks in a free society."

Thurgood Marshall’s nomination to the United States Supreme Court was confirmed by the Senate, 69 to 11, on August 30, 1967. Compared with Marshall’s very difficult, drawn-out confirmation to the Second Circuit in 1961-62, this was comfortable. Still, Marshall said of LBJ: "I don’t see how he got it through, but he did."
"This is a shining hour," Senator Michael Mansfield said in announcing the news to President Johnson. "We have come a long, long way toward equal access to the Constitution’s promise." The nation would go "further along that way" with Marshall on the Court. For Marshall himself, a wide chasm remained between the ideal of constitutional equality and conditions of life for African Americans. He certainly hoped that the Court would provide new opportunities to move the nation forward. For many Americans, however, Marshall’s Court appointment was instead a sign that the American dream had already come true.
From Mary L. Dudziak, Chapter 5, Exporting American Dreams: Thurgood Marshall's African Journey (forthcoming Oxford University Press).

Van Schaack on The Definition of Crimes Against Humanity

Beth Van Schaack, Santa Clara University School of Law, has posted an article, The Definition of Crimes Against Humanity: Resolving the Incoherence. It appeared previously in the Journal of Transnational Law & Policy. Here's the abstract:
This Article discusses the contours of the prohibition of crimes against humanity with reference to proceedings before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and deliberations at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC). Because the contemporary status of this offense under international law cannot be understood or appreciated without reference to its history, this Article traces the evolution of the concept of crimes against humanity with particular reference to the genesis and re-interpretation of the war nexus requirement. A recurrent theme in this narrative is the search for an element of the offense sufficient to distinguish crimes against humanity from “ordinary” municipal crimes (e.g., murder, assault or false imprisonment) and to justify the exercise of international jurisdiction over inhumane acts that would otherwise be the subject of domestic adjudication. As this Article reveals, the war nexus originally served this purpose for the Nuremberg architects, although the time-honored doctrine of humanitarian intervention could have provided adequate precedent for the international prosecution of crimes against humanity.
The ICTY devised an ingenuous solution to the problem of delimiting international jurisdiction and distinguishing crimes against humanity from “ordinary” crimes. The Trial Chamber did not require proof of a substantial link between the defendant's inhumane act and a state of war. Rather, the Chamber defined crimes against humanity in terms of the mens rea of the defendant and the existence of a widespread or systematic attack against a civilian population. However, at the same time, a Trial Chamber of the Tribunal added additional elements to the definition of crimes against humanity that further complicate the definition and the Prosecution's burden of proof. The Article argues that these elements should be eliminated on appeal. [N.B. The Appeals Chamber did overturn the Trial Chamber in this regard in the Tadić case.]
Most recently, members of the international community drafting the Statute for the permanent ICC drew upon the ICTY Statute and the work of the Tribunal in drafting a consensus definition of crimes against humanity that will govern prosecutions before the new court. Fortunately, these drafters stopped where the Trial Chamber should have. They defined crimes against humanity with reference only to the existence of a widespread or systematic attack against a civilian population and the mental state of the individual defendant. In so doing, they recognized that once the abuse of civilians surpasses a particular threshold, the prescriptions of international law are activated and individual perpetrators can be held internationally liable for their acts of murder, assault, rape, or unlawful detention.
The evolving definition of crimes against humanity since the Nuremberg era provides an example of the way in which the principles guiding the contemporary codification of international criminal law are dramatically shifting. Such norms were previously drafted with an eye toward fortifying, or at least defending, state sovereignty. Over time, however, these guiding principles have become more concerned with condemning injurious conduct and guaranteeing the accountability of individuals who subject others, including their compatriots, to inhumane acts.

Wednesday, August 29, 2007

Bush, Historians, Katrina, and the War Analogies

President Bush has turned to different wars at different times during his presidency, using history in an effort to cast current policy in a more favorable light. Most recently, it has been Vietnam. The President suggested that "one unmistakable legacy of Vietnam is that the price of America's withdrawal was paid by millions of innocent citizens whose agonies would add to our vocabulary new terms like 'boat people,' 'reeducation camps' and 'killing fields.' "

The Washington Post took up this most recent turn, and the reactions of historians:

Writing in the Los Angeles Times on Saturday, Boston University professor Andrew J. Bacevich, a Vietnam veteran, accused Bush of being "oblivious to the history that actually matters." In the Houston Chronicle, Robert Buzzanco, a professor at the University of Houston, said Bush missed the point that it was U.S. intervention in Cambodia that caused the rise of the Khmer Rouge -- an interpretation still hotly debated three decades later.

Military author Max Boot, by contrast, hailed Bush's analogy in the Wall Street Journal but said he should have gone further in laying out the lessons of Vietnam and the dangers of withdrawal.

The New York Times and the Chicago Tribune also carried stories noting that many historians reacted critically to the use of the Vietnam analogy. Hat tip HNN. History News Network has more, and is conducting an online poll.
Two years ago, President Bush instead invoked the memory of World War II, in a speech on the anniversary of V-J Day, that was given as the impact of Katrina was being felt in New Orleans. Here's what I had to say, in the Boston Globe:
AS WATERS rose in the streets of Biloxi and New Orleans, President Bush took to the airwaves in San Diego on Tuesday in an effort to capture the nation's attention with a different crisis. The war in Iraq, which he framed as part of a ''war on terror" tied to Sept. 11, had its legacy in World War II, he argued, and the nation must devote itself to this new war.

Drawing from the memory of World War II, the president invoked one of the most powerful statements about that war's meaning. It was delivered by Roland Gittlesohn, a chaplain with the Marine Corps on the island of Iwo Jima who would later become rabbi at Boston's Temple Israel. The rabbi delivered a eulogy for the living as much as for the dead. One message was that the carnage of the war simply had to open a door to a new world. As Bush later quoted: ''Out of this . . . will come, we promise, the birth of a new freedom for the sons of men everywhere."
But what sort of ''new freedom" did Rabbi Gittlesohn have in mind in his World War II eulogy? As bodies are laid out for burial in Iraq -- and soon will be in American Gulf cities -- can we draw contemporary lessons from Gittlesohn's fuller message for our own time? While the president cast the meaning of war's transformative power outward, toward other nations, hoping for democratization in Iraq, Gittlesohn directed it inward, toward America itself.
''Here lie men who loved America," he said. ''Here lie officers and men, Negroes and whites, rich and poor, together. Here no man prefers another because of his faith, or despises him because of his color. . . . Among these men there is no discrimination, no prejudice, no hatred. Theirs is the highest and purest democracy."
The equality these soldiers had found in death was, for Gittelsohn, at the heart of the war's meaning. ''Whoever of us lifts his hand in hate against a brother, or thinks himself superior to those who happen to be in the minority, makes of this ceremony, and of the bloody sacrifice it commemorates, an empty, hollow mockery. Thus, then, do we, the living, now dedicate ourselves to the right of Protestants, Catholics, and Jews, of white men and Negroes alike, to enjoy the democracy for which all of them have paid the price."
There was an irony in the equality Gittelsohn found among the fallen soldiers. The military forces that fought in Iwo Jima were racially segregated. Yet this did not dampen Gittelsohn's passionate argument that out of the carnage of Iwo Jima came a commitment and an obligation to give democracy meaning across the divisions of race, religion, and class. ''Too much blood has gone into this soil for us to let it lie barren. Too much pain and heartache have fertilized the earth on which we stand. We here solemnly swear: it shall not be in vain." And here he ended with the line quoted by our president: ''Out of this will come, we promise, the birth of a new freedom for the sons of men everywhere."
And so the new freedom promised was a freedom that started within. It was a lesson learned by many during the war -- the idea that the nation could not save the world for democracy if it did not begin by saving itself. Wendell Willkie put it this way: ''Our very proclamations of what we are fighting for have rendered our own inequities self-evident. When we talk of freedom and opportunity for all nations, the mocking paradoxes in our own society become so clear they can no longer be ignored."
The president may well hope to bring American-style rights someday to the bombed-out streets of Baghdad, but as waters remain in American neighborhoods, flooding the homes of those who lacked the means to flee Katrina's fury, a better start might be with the unfulfilled and seemingly forgotten hopes of the World War II generation. While a crisis like Katrina spares no one in its path, heavy burdens always fall on those who have the least. Americans don't like to think about economic classes, but in natural disasters class can be tied to survival itself. And as rebuilding moves forward, many families in the Gulf Coast may find a fragile middle-class status more difficult than ever to maintain.
There is immediate suffering in Katrina's wake, but the hurricane has swept over a structure of American inequality, exposing it for a moment. The question for us all is whether we shall take the opportunity to see it.
Two years later, the point still stands. If we want to make the world safe for democracy, the best place to begin may be New Orleans.

Stone on the Gonzales legacy; Kaiser on Bush/Gonzales vs. Truman/Acheson

Geoffrey Stone weighs in on the legacy of Alberto Gonzales. "The primary responsibility of the Attorney General is to uphold the Constitution and laws of the United States in a fair and even-handed manner," he writes. "In failing to comprehend this responsibility, Alberto Gonzales compromised himself, his office, the Constitution, and ultimately even the President who appointed him."
David Kaiser at Cliopatria takes up the question of whether President Bush's loyalty to Alberto Gonzales is comparable to President Truman's loyalty to Dean Acheson. His answer: "Mr. President—you’re no Harry Truman."

Calls for Papers: Medieval history, Peace Movements in the Cold War, and more

Calls for Papers: These two conferences are just two examples of what you can find on the Calender page of the American Historical Association website. Hat tip: AHA Blog.
17th Annual Conference of the Texas Medieval Association. Abstracts of proposed panels or papers on any medieval topic are due by September 1, 2007 for the Texas Medieval Association annual conference on October 11-13, 2007, at Texas A&M University, College Station, Texas.
Peace Movements in the Cold War and Beyond: An International Conference. Paper proposals due September 1, 2007 for the Peace Movements in the Cold War and Beyond: An International Conference taking place January 31-February 2, 2008 in London, UK.
NOTE: Regional meetings and smaller, subject-focused conferences are perfect for graduate students submitting their first conference paper proposal. It is much easier to get onto the program at a meeting like these, than at the big meetings like the AHA or the Organization of American Historians. And once you attend and present at the smaller meetings, you'll meet more well-known scholars who you might be able to organize a panel with for the more high-profile meetings.

Tuesday, August 28, 2007

Another Attorney General, Another Resignation

With comparisons being made between Attorney General Alberto Gonzales, who announced his resignation yesterday, and Richard Nixon's Attorney General John Mitchell, who went to prison for his role in Watergate, John Barrett of St. Johns University Law School brings us a reminder that there have been times when the office of Attorney General was held in high esteem. Along with a surprising historical footnote.

John Q. Barrett

Robert H. Jackson had been serving as Attorney General of the United States for about seventeen months when President Franklin D. Roosevelt announced on June 12, 1941, that he was nominating Jackson to the Supreme Court.

At the Department of Justice, Jackson decided immediately to avoid possible conflicts of interest and distractions stemming from his pending nomination by handing off his responsibilities to the Department’s number two official, his friend and the Solicitor General of the United States, Francis Biddle. After conferring with him, Jackson called a special meeting with other senior colleagues to report his nomination and that Biddle would be acting as Attorney General until the President nominated a successor to Jackson. (Roosevelt’s choice was Biddle himself, who was nominated on August 25th and served as Attorney General from fall 1941 until late spring 1945.)

Jackson’s Supreme Court nomination moved quickly. After a subcommittee of the Senate Judiciary Committee held hearings in late June, the full Committee voted unanimously on June 30th to recommend Jackson’s confirmation. After a July 4th recess, the Senate confirmed Jackson by voice vote on Monday, July 7th.

Once Jackson was safely confirmed, Department of Justice friends organized a celebration. On Wednesday evening July 9th, Department personnel saluted Jackson at a farewell reception and cocktail party in the main ballroom at Washington’s Mayflower Hotel. During the course of the evening gathering, Jackson, his wife Irene and their daughter Mary—her brother Bill Jackson was not present because he was working that summer in Idaho—received about 1,500 DOJ officers and employees in the Hotel’s Chinese Room.

The reception, which Department of Justice personnel paid for out of pocket, culminated in a gift and some remarks. Acting Attorney General Biddle gave Jackson, as a gift from DOJ employees, his first judicial robe. In his remarks, Biddle expressed the hope that Justice Jackson would “carry in its folds the friendly warmth of the Department to temper the cool dignity of the great court which you are about to join.” Jackson, in response, voiced a clever turn on Biddle’s theme: “I am sure that the thoughts of the loyal and friendly cooperation that I have received in the Department of Justice and of the work that we did together will survive even the chill that the Solicitor General thinks will come upon one when he enters that great refrigerator.”

Two days later, after Jackson attended his final Cabinet meeting, President Roosevelt signed and presented to Jackson his judicial commission. Jackson then took his constitutional and judicial oaths, becoming an Associate Justice.

…except for one loose end: Jackson realized that his Supreme Court appointment did not automatically vacate his Cabinet position, and that he therefore was still the Attorney General too.

Justice Jackson promptly wrote a letter of explanation and resignation to President Roosevelt. A few days later, FDR dictated his response:

Dear Bob:-

Ever so many thanks for your note. I do wish you could occupy both posts at the same time….

Monday, August 27, 2007

Halliday and White on The Suspension Clause: English Text, Imperial Contexts, and American Implications

Paul Halliday and G. Edward White, both of the University of Virginia, have posted a new paper, The Suspension Clause: English Text, Imperial Contexts, and American Implications. Here's the abstract:
Since 1996, the Supreme Court of the United States has signaled that the jurisprudence of the writ of habeas corpus, and its possible suspension, should be informed by an understanding of the writ and of the Habeas Suspension Clause in the U.S. Constitution “as it existed in 1789.” This article recovers the historical basis of the Suspension Clause. It begins by exploring, in the English context, previously unexamined court archives and other manuscript sources. It then traces the path of the writ across the British Empire in the years before 1789. Finally, it analyzes early American uses of the writ, including its treatment in the Judiciary Act of 1789 and Chief Justice John Marshall's decision in Ex Parte Bollman. The article concludes that the writ's peculiar force was the product of judicial rather than statutory innovation; that judicial authority was premised on the idea that judges enacted powers peculiar to the king — his prerogative — when they used the writ; that this meant that judges focused more on the behavior of jailers rather than the rights of prisoners; that this focus gave the writ its surprisingly wide coverage as to persons and places; and that the implications of this history for current cases involving the claims of Guantanamo Bay detainees are significant.

Sunday, August 26, 2007

Quick links: reviews & book news

INDIA AFTER GANDHI: The History of the World’s Largest Democracy (HarperCollins) by Ramachandra Guha is reviewed today in the New York Times.

Lenin's Private War (St. Martin's) by Lesley Chamberlain is reviewed in the New York Sun.

The San Francisco Chronicle previews fall books.

The Schechters in the Sick Chicken case star in a new book that criticizes FDR on the Depression

The butchers in Schechter Poultry v. United States (1935) are the heroes of a new book on the Great Depression, writes David Leonart in the New York Times today. Readers will like the links to original NY Times stories with the on-line review. They include the NYT story about the Schechters' indictment, Arthur Krock's coverage of the Supreme Court's Schechter decision, and a follow-up interview with Joseph Schechter, who said that the $60,000 legal battle had "ruined him."
Leonart writes that Amity Shlaes, The Forgotten Man: A New History of the Great Depression (HarperCollins),
is somewhat more subtle than the usual critique from the right. She sees both Roosevelt and his Republican predecessor Herbert Hoover as inveterate economic tinkerers. Hoover, the engineer turned politician, never lost his instinct to fix things and, as a result, signed the disastrous Smoot-Hawley tariff bill. His biggest sin, and Roosevelt’s, was a “lack of faith in the marketplace,” Shlaes writes. “From 1929 to 1940, from Hoover to Roosevelt, government intervention helped to make the Depression Great.”
The book opens in 1937, eight years after the stock market crash, with a story about another Brooklyn resident, a 13-year-old boy named William Troeller, who hanged himself in his bedroom one evening. His father was unemployed, and William, as a New York Times headline reported, “Was Reluctant About Asking for Food.” For all the frenzied activity of Roosevelt’s first term, the country had yet to emerge from its slump. It wouldn’t fully do so until the war spending of the 1940s.

The length of the Depression is one of Shlaes’s two main criticisms of the New Deal....The great challenge for [Roosevelt's] critics has always been to come up with an alternate vision that might plausibly be said to have done more good with fewer downsides....
In a way, Shlaes’s book has come just a little after its time. In the early years of George W. Bush’s presidency, conservative critiques of the New Deal served a larger political purpose, as a rationale for the administration’s attempts to remake Social Security. Those plans failed, of course, mostly because they found little support among voters.
The full review is here.

Update: Nate Oman, Patrick O'Donnell and others carried on an interesting discussion of Shleas, FDR and more at Concurring Opinions recently.

Saturday, August 25, 2007

Magliocca on Huey Long and the Guarantee Clause: Transformation by Assassination

Constitutional history as a murder mystery. Gerard N. Magliocca, Indiana University, Indianapolis, has posted a fascinating new paper: Huey Long and the Guarantee Clause: Transformation by Assassination. Law reviews should be scrambling for this one. Here's the abstract:
This Article contends that the assassination of Huey P. Long (The Kingfish) of Louisiana was a major turning point in the development of New Deal constitutionalism. Following his election as Governor in 1928, Long built one of the most formidable political machines ever seen in the United States. Indeed, he amassed so much power that contemporary observers routinely called his regime the first dictatorship in our history. For instance, Long abolished minority rights in the legislature, curtailed judicial review, took over the vote counting system, established a State Board of Censors to regulate political speech, and declared martial law against his opponents. Moving rapidly on to the national stage with his election to the Senate – he was Senator and Governor at the same time – Long established a national “Share Our Wealth” movement with the goal of challenging Franklin D. Roosevelt for the Democratic nomination in 1936.
The abuses in Louisiana triggered a broad national debate about whether the State still had a republican form of government as required by the Guarantee Clause of Article Four. Eventually, this outbreak of popular constitutionalism reached the President, who was desperate to find a way to stop Long. Not only did the President discuss the issue in press conferences, but he asked the Justice Department to examine the question in a lengthy memorandum. In August 1935, the House of Representatives took the first step to invoke the Guarantee Clause by forming a Select Committee to examine the question. A few weeks later, however, Long was killed and the inquiry was abandoned.
By cutting this confrontation short, Long's assassin unintentionally laid the foundation for modern judicial supremacy. But for this shocking event, the Special Committee would have almost certainly issued a report defining: (1) which rights being infringed in Louisiana were fundamental; and (2) which institutional practices there were so abusive that they struck at the heart of self-government. Such a report, coming in the midst of the collapse in Lochnerian doctrine, would have been an authoritative act of constitutional interpretation on major issues such as incorporation, voting rights, and the status of political minorities. Instead, the task of filling this vacuum fell entirely to the Supreme Court, which began that effort with the most famous footnote in the law - Footnote Four of United States v. Carolene Products. To a significant extent, Footnote Four's analysis of the conditions under which laws should receive heightened scrutiny was the judicial substitute for a congressional report on Long and the Guarantee Clause.
Accordingly, this Article makes three significant contributions. First, it provides the first detailed treatment (in a law review context) of Huey Long's dictatorship. Second, it documents the last serious effort to use the Guarantee Clause, which disappeared from serious legal discourse after 1935. Third, it provides a window into a fascinating counterfactual world that was only closed off by a highly improbable act.

a post from the coast

Apologies for the radio silence. I put the new book manuscript in the mail to my editor yesterday. And then left town immediately.

Originally I planned on a Big Sur getaway, but instead the destination is the coast of Maine. The fog rolls out here, same as there, if less spectacularly. Strangely, the sun sets in the wrong direction. But there is much more fresh lobster.

Here's hoping that loyal readers will indulge me for a few days by visiting anyway, to keep that blog traffic up. Regular posting will be back up to speed by mid- to late-next week.

Friday, August 24, 2007

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

Charles J. Reid, Jr., Univ. of St. Thomas School of Law (Minnesota), has posted a new article, Marriage: Its Relationship to Religion, Law, and the State. It is forthcoming in Jurist. Here's the abstract:
This Article draws inspiration from the work of Fr. John Lynch, especially his studies of canonical influence on secular legal orders. Fr. Lynch appreciated that, in common with other legal systems, canon law was not a self-contained system of rules that should be studied in isolation from other intellectual currents. He further understood the pervasive influence canon law has had on western law generally, secular as well as sacred.
While the paper's purpose is broad – to examine the relationship of religion, the state, and marriage, it is largely historical in focus and concerned with the ways in which medieval canon law both directly and through the mediation of early-modern Anglican canon law, influenced American jurists and judges of the nineteenth and twentieth centuries. It has a philosophical dimension also, in its contention that this historical record reflects an inevitable human reality – that law and religion, marriage and the state not only have historically influenced each other but that they must do so, as a condition of a healthy society.
Marriage has been associated, within the western tradition, for nearly two millennia, with religious insight. In all societies, marriage is signified by some form of symbolic action or exchange; it reflects commitments not only by the individuals involved, but by larger communities, whether they be family, church, locality, or something larger or smaller than these groups. Marriage is a commitment that embraces not only the good of the parties, but points to something larger – a given society's sense of the ultimate.
Law itself points to a larger substantive vision of the good. For this reason, some, like Harold Berman, argue that the law itself has a religious dimension that we deny at the risk of imperiling the soundness of a society's legal order. And this religious dimension of law, this sense that the law must embody some larger, more transcendent understanding of right and wrong, also lies behind and animates much of the contemporary debate over marriage. Legislative or judicial attempts to sever the traditional bonds among marriage, religion, and law, are, for these reasons, doomed to failure, in either the short or the long term.

Thursday, August 23, 2007

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

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

Quick links

In haste while a deadline is looming...

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

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

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

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

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

Wednesday, August 22, 2007

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

Jennifer Wriggins, University of Maine, has posted a new paper, Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949. Here's the abstract:
The essay explores the relationships between U.S. tort law, race, and legal culture in the first half of the twentieth century. The essay begins by highlighting two ways in which tort law and legal culture were glaringly white. First, whiteness was the default in the sense that litigants and witnesses were presumed to be white unless otherwise identified, and second, African-American people were excluded from decision-making roles in the tort system. Despite the whiteness of the civil justice system, black plaintiffs brought and won tort cases in all regions during this period. The tort system's institutional commitment to private enforcement and individualized resolution of claims resulted in significant access to the civil justice system for black plaintiffs. However, that same commitment to individualized resolution of tort claims allowed bias and inequality to devalue black plaintiffs' claims at every stage of tort litigation, in ways that were impossible to challenge. Despite the racist exclusions of the legal system and wider culture during this period, a theoretical commitment to equal treatment of tort victims persisted as an undercurrent in legal culture. Judges and others used a variety of attempted justifications, different in content but similar in structure, to rationalize their unequal treatment of black tort plaintiffs.

Tuesday, August 21, 2007

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

James H. Fowler, U.C. San Diego, Political Science, and Sangick Jeon, U.C. Davis, bring quantitative analysis to bear on the question of how to measure the Supreme Court's authority, placing their study in the context of the assumptions about the Court's institutional weakness. The Authority of Supreme Court Precedent is forthcoming in Social Networks. Here's the abstract:
We construct the complete network of 30,288 majority opinions written by the U.S. Supreme Court and the cases they cite from 1754 to 2002 in the United States Reports. Data from this network demonstrates quantitatively the evolution of the norm of stare decisis in the 19th Century and a significant deviation from this norm by the activist Warren court. We further describe a method for creating authority scores using the network data to identify the most important Court precedents. This method yields rankings that conform closely to evaluations by legal experts, and even predicts which cases they will identify as important in the future. An analysis of these scores over time allows us to test several hypotheses about the rise and fall of precedent. We show that reversed cases tend to be much more important than other decisions, and the cases that overrule them quickly become and remain even more important as the reversed decisions decline. We also show that the Court is careful to ground overruling decisions in past precedent, and the care it exercises is increasing in the importance of the decision that is overruled. Finally, authority scores corroborate qualitative assessments of which issues and cases the Court prioritizes and how these change over time.

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

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

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

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

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

Monday, August 20, 2007

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

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

Fellows will teach one class per term (a freshman seminar in the fall and an advanced course in the spring). The fellowship carries an annual stipend of $42,000 plus health insurance.
The deadline for applications is October 15, 2007. See the fellowship page for more details, and the application guidelines for instructions on how to apply.

Hat tip.

New Indiana Law Journal On-Line Supplement welcomes student writing

Announced by Douglas A. Hass, Executive Notes & Comments Editor, Indiana Law Journal, in an essay, The New Journal: A Supplement Not Undertaken Hitherto, on SSRN. The new supplement and submission procedures are not yet announced on the Journal website, so you should contact the Journal for more information. Here's the abstract:
While blogs or Wikis undoubtedly have an important, expressive place in legal discourse, these short-form outlets leave the demand for timely, interactive legal discourse unfulfilled. Printed law journals and online repositories like SSRN or Berkeley Electronic Press cannot address these needs either. This article introduces Indiana Law Journal's expanded publication, the Indiana Law Journal Supplement, and explains how the new online, short-form journal meets the Journal's original purpose and fills an important void left by other outlets.
The Indiana Law Journal has consistently been one of the few top-tier law journals to both encourage and publish significant student works. Ideas that advance the practice of law are no less vital simply because students - at Indiana or elsewhere - developed them. The article describes how the Supplement enables the Journal to amplify the focus on ideas, rather than who holds them. By offering both the interactivity and timeliness of blogs and the established path of legal scholarship provided by traditional law reviews, the Journal can further the purposes it first outlined in 1925.

Sunday, August 19, 2007

Turner: two takes on The Racial Integration of Emory University

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

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

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

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

In this unattributed quote in John Dos Passos' The Big Money, are the most famous words Bartolomeo Vanzetti ever uttered, writes Art Winslow in his review of Bruce Watson's Sacco and Vanzetti: The Men, the Murders, and the Judgment of Mankind in the Los Angeles Times. Winslow writes:
Vanzetti spoke some close approximation of that to sum up seven years of travail, scant weeks before he and Sacco died in the electric chair in the first hour of Aug. 23, 1927, maintaining their innocence to the end. (The reporter who conducted the interview for New York World admitted the possibility of some embellishment.) By that time, the fate of the two Italian immigrants was an international cause célèbre, one that had waxed and waned along with a series of appeals and setbacks since their conviction in 1921 of having killed a paymaster and a guard in a payroll heist the year before in South Braintree.
Even at this historical remove, the two men, Watson writes, "haunt American history," in part because "there is little concrete proof in the case . . . only shifting stories and gut feelings."... There are...legalistic readings, such as that offered in 1927 by then Harvard law professor Felix Frankfurter, who termed Judge Webster Thayer's decision in denying appeals for a new trial "a farrago of misquotations, misrepresentations, suppressions, and mutilations."...Thayer himself was quoted variously as saying -- well away from his courtroom in Dedham -- that Sacco and Vanzetti were "Bolsheviki" and that he "would get them good and proper."...H.L. Mencken called the case "one of the most amazing scandals in the whole history of American jurisprudence."

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

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

Friday, August 17, 2007

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

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

Thursday, August 16, 2007

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

On November 17th, 2005, an anonymous Wikipedia user deleted 15 paragraphs from an article on e-voting machine-vendor Diebold, excising an entire section critical of the company's machines. While anonymous, such changes typically leave behind digital fingerprints offering hints about the contributor, such as the location of the computer used to make the edits.
In this case, the changes came from an IP address reserved for the corporate offices of Diebold itself. And it is far from an isolated case. A new data-mining service launched Monday traces millions of Wikipedia entries to their corporate sources, and for the first time puts comprehensive data behind longstanding suspicions of manipulation, which until now have surfaced only piecemeal in investigations of specific allegations.
Wikipedia Scanner -- the brainchild of Cal Tech computation and neural-systems graduate student Virgil Griffith -- offers users a searchable database that ties millions of anonymous Wikipedia edits to organizations where those edits apparently originated, by cross-referencing the edits with data on who owns the associated block of internet IP addresses.
[It was] inspired by news last year that Congress members' offices had been editing their own entries....

Continue reading here. Hat tip: NPR.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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