Thursday, January 31, 2008
Tamanaha on The Dark Side of the Relationship between the Rule of Law and Liberalism
Musacchio on Legal Origins, Shareholer Protections, and Ownership Concentration in Brazil, 1890-1950
Wednesday, January 30, 2008
Olivas on Hernandez v. Texas, a Litigation History
Quinn on the Nation's First Criminal Domestic Violence Court
Many proclaim that criminal domestic violence courts -- specialized court parts that focus on intimate violence cases and utilize a particularized approach in such prosecutions to prevent further violence -- are a recent innovation within our criminal justice system. Most observers point to the Quincy District Court in Massachusetts, which opened in 1987, as the first venue in this country to offer specialized processing of criminal domestic abuse prosecutions. In the two decades since the Quincy court opened its doors, other jurisdictions have developed similar models using similar specialized approaches. For example, court planners in New York assert its first criminal domestic violence court, building on the Quincy model, was established in Brooklyn in 1996.
These contemporary accounts of judicial innovation fail to acknowledge, however, that a somewhat similar experiment in specially adjudicating domestic violence prosecutions was undertaken more than fifty years ago in New York. In 1946, Judge Anna Moscowitz Kross established New York State's first criminal domestic violence court within New York City's Magistrate's Court system. The Home Term Part, as Kross's court was called, was a groundbreaking experiment in criminal justice that sought to employ a particularized approach in domestic violence cases to address charges of assault, harassment, disorderly conduct and other abuses. Nevertheless, Kross, one of New York's first women judges, and her early attempts at judicial innovation like the Home Term Part, have been largely forgotten by legal historians and court reformers alike.
This paper seeks to inform current conversations about dedicated domestic violence courts by shedding light on Kross's remarkable early efforts to treat domestic violence prosecutions differently from other criminal matters and handle them in a designated court part. The story of Kross's Home Term Part - the first specialized criminal domestic violence court in New York and probably the United States -- is an important chapter in the history of intimate violence policies in this country. Its recognition is crucial to any complete account and understanding of our criminal justice system's renewed efforts at judicial innovation through specialized problem-solving courts. And although many features of Home Term would be viewed as objectionable by modern standards, it may also provide important insights to contemporary court reformers as they consider the future of domestic violence prosecutions.
Tuesday, January 29, 2008
Super Crunchers and Antebellum Legal History
I've been saying for years (this prediction goes back to about 1989) that full text databases of antebellum case reports will revolutionize how we think about antebellum legal history. It's been about a decade since westlaw and lexis have had the antebellum state reports on-line and so far, we're still waiting to realize their full promise. Part of this may be because legal historians have gone in so many different directions of late that we're no longer as concerned with antebellum legal history as we were in the days when Horwitz' Transformation of American Law, 1780-1860 was published. I think one of the many attractions of Horwitz was that he brought the insights of law and economics to bear on antebellum jurisprudence. Horwitz and Posner did not share a political agenda, but they shared an intellectual agenda: talking about how, throughout American legal history, economic considerations were important to judges. We're now talking more about nationality, civil rights, criminal law, women, slavery and Jim Crow, all sorts of areas that were not so hot in the 1970s and 1980s. But that's a discussion for another time.
Still, I think there are important insights--low hanging fruit to use the common phrase--to be mined from the hundreds of volumes ready for full text searching. And that's where Super Crunchers comes in, with its contagious enthusiasm for looking at large datasets.
What do I want to mine from antebellum cases? Well, lots of cool stuff to be done on webs of citations (which states are citing which states and when) and other stuff, too. But right now I'm thinking about it for a different purpose. I'm in the midst of a paper on antebellum landscape art and property law. It's tentatively titled "property and progress," with apologies to Henry George and Stephen Thernstrom, of course. Not surprisingly, Asher Durand's Progress (1853) (housed in the fabulous Warner-Westervelt Musuem in Tuscaloosa, Alabama and used as an illustration here) is a centerpiece of the talk. So I've been interested in how judges talk about progress and the even more popular nineteenth century term "Civilization." All of that led me to westlaw's old cases database, where there are nearly three hundred cases that use the word "civilization" before the Civil War. Not quite super-cruncher numbers, but perhaps enough instances to see the ways judges using the term. Seems to me we could create a pretty cool map of the terrain of judges' minds by studying such phrases. There are enough uses of the word that we can begin to see how judges use it and in what kinds of cases. There are probably a lot of other words and phrases that we might use, like sentiment, utility, expediency, feudalism.... Sort of like a small version of the amazon.com algorithm that tells me what books I should read, in light of the books I've already purchased. As Ayers' says, amazon knows more about my preferences than I do--and he's right.
Gale's Making of Modern Law series, which has more than 20,000 volumes on English and American law from 1800 to 1920 is another fabulous source. book.google.com has helped out in huge ways , too. One of the many insights here: I was interested in Bill Bojangles Robinson of late, because I was involved in a conversation with my favorite librarian about him. That led to me ask about the statue put up in Richmond back when I lived there to commemorate him. And that led me to learn that some people credited him with popularizing "copasetic" and that led me to a wikipedia entry that says copasetic was first used in 1919. But, ah, through the magic of book.google, there appears to be a use in 1914!
The difficult part, now that all this information is such much more easily available, of course, is to know what to do with it. The puts an even greater premium on interpretation, now that anyone with access to the internet can get at overwhelming amounts of text on the antebellum era. ...
Smythe and Bird on The Structure of American Legal Institutions and the Diffusion of Wrongful-Discharge Laws, 1978-99
Monday, January 28, 2008
Schiller on The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law
The first two terms of Franklin Roosevelt’s presidency (1933–1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal–era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt’s appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a “prescriptive” vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century.
Barron and Lederman on The Commander in Chief at the Lowest Ebb
This Article is the first of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. Professors Barron and Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little historical evidence supporting the notion that the conduct of military campaigns is beyond legislative control. Thus stripped of its assumed roots in a supposedly longstanding tradition, and considered in light of the long pattern of executive acceptance of constraining statutes, the Administration’s recent assertion of preclusive war powers is revealed as a radical attempt to remake the constitutional law of war powers.
This Article begins by explaining why the debate about the “lowest ebb” is now emerging as the primary constitutional war powers question, and by addressing the methodological missteps that have typically infected this debate. It then explores recent attempts to identify the preclusive prerogatives of the Commander in Chief and explains why the tests often deployed to cabin the scope of the presumed preclusive power are flawed. Finally, it reviews the relevant Supreme Court precedent, along with the constitutional text, the historical context in which the text was written, and the original understandings, and sets the stage for the post-Founding historical review contained in the next Article.
Sunday, January 27, 2008
This is Not a Blog (re: NYRB)
OMG! What am I doing wrong? (LOL).
There are, thankfully, many corners of the blogosphere. It doesn't paint an accurate picture to collapse us all into the sort of writing we may have enjoyed in 6th grade. To characterize the blog world this way is something like writing an essay on literature, but only taking up the romance novel. The kind of blogs Boxer writes about are an important cultural innovation (whether we like them or not), and there are common attributes across genres -- most importantly the issue of connection with sources in the rest of the web, something that has not yet effectively come to the on-line versions of traditional journalism. Even Boxer's essay lacks links to the blogs she mentions.
The blog world is also a place for writers who have things to say that won't make it into a newspaper, and sometimes things that need to be said more quickly than a print publication cycle would allow. Blogs like this really are blogs, not some second category of writers who don't have the hang of the genre yet.
Boxer's essay mentions, but does not really engage, a list of blog-related books, including Daniel Solove's important new work, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press). Others are: We've Got Blog: How Weblogs Are Changing Our Culture, ed. John Rodzvilla (Basic Books); Against the Machine: Being Human in the Age of the Electronic Mob by Lee Siegel (Spiegel and Grau); Republic.com 2.0 by Cass R. Sunstein (Princeton University Press); Blogwars by David D. Perlmutter (Oxford University Press); We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age by Scott Gant (Free Press); Blog: Understanding the Information Reformation That's Changing Your World by Hugh Hewitt (Nelson Books); The Cult of the Amateur: How Today's Internet Is Killing Our Culture by Andrew Keen (Doubleday/Currency); Naked Conversations: How Blogs Are Changing the Way Businesses Talk with Customers by Robert Scoble and Shel Israel (Wiley); Blog! How the Newest Media Revolution Is Changing Politics, Business, and Culture by David Kline and Dan Burstein.
[More links to follow later -- this blogger has an off-line deadline today! ;-)]
Saturday, January 26, 2008
Jackson on the politics of MLK's "shattered dream"
Democratic candidates have recently been cherry-picking lessons from the civil rights and voting rights campaigns of the mid-1960s. President Lyndon Johnson's achievement in building a bipartisan congressional coalition to secure passage of the 1964 Civil Rights Act was indeed monumental.
But Martin Luther King Jr. was no mere dreamer. As the civil rights revolution's most famous strategist and self-proclaimed "symbol," King stood at the forefront of a mass political movement with many leaders and agendas. Like Lincoln and the Emancipation Proclamation, African Americans and their white allies organized, protested, and voted, forcing politicians to make hard choices and progressive commitments.
While debating the relative achievements of King and Johnson, the candidates are ignoring King's unrealized dreams and strategies for expanding democracy. After 1964, King argued that the nation's leadership needed to address challenges more intransigent than legal desegregation: unemployment, income inequality, poverty, voter disaffection, and racial apartheid in housing and education. King's "shattered dreams" remain our own.
Continue reading here.
Friday, January 25, 2008
Emom on Constitutionalism in the Muslim World: History and Identity in Islamic Law
Thursday, January 24, 2008
Kyra Sedgwick, Catharine Sedgwick, and Landscape Art
Here's something to think about when you're watching Kyra Sedgwick in The Closer: she's related to Henry Dwight Sedgwick (author of an important late antebellum treatise on Constitutional law) and Catharine Sedgwick (author of Redwood and other novels that have made a huge comeback among literary scholars in recent years.) Pretty unusual, eh? Yup. You never know what things you'll learn at legalhistoryblog to impress your friends! (Years and years ago Alan Heimert suggested that I spend some quality time with Catharine Sedgwick because she was a nice mid-way point between James Fenimore Cooper and Stowe and Melville. I hope to talk about that some more at some point, though perhaps not on this visit to legalhistoryblog.)
This post, though, is about a fragment of one of her other novels: Clarence, which I've been reading for a paper on antebellum property (there's a will contest in the novel, which is capturing some of my attention these days). In Clarence, one of Thomas Cole's landscapes is sold at auction ... at what appears a high price ($50), but is in actuality a bargain. (Been looking at some of Cole's correspondence of late and that's about what they were going for at the time. Talk about a great investment....) After the sale, the buyer refuses the audience another look because "he paid an extraordinary price for the exclusive right to look at the picture." Pretty cool stuff here--a landscape is itself turned into a commodity and then sold and the only person who has the right to look at it is the buyer. Sort of turns Emerson's talk in Nature on its head:
The charming landscape which I saw this morning, is indubitably made up of some twenty or thirty farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them owns the landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts, that is, the poet. This is the best part of these men's farms, yet to this their warranty-deeds give no title.Lots of stuff to make out of this, since Cole was concerned with the ways that nature was being subverted by America's economy and Sedgwick also wrote frequently about issues of law, individualism, and freedom.
I've illustrated this post with a Cole landscape from our friends at wikipedia. Back at propertyprof I spoke a little about Kyra Sedgwick and property law a few years ago.
Alfred L. Brophy
Musacchio, Do Legal Origins Have Persistent Effects Over Time?
Wednesday, January 23, 2008
American Studies Association deadline this Friday!
The theme of the 2008 meeting is: "Back Down to the Crossroads: Integrative American Studies in Theory and Practice." It will be held October 16-19, 2008, in Albuquerque, NM. Proposals are welcome from "anyone having an interdisciplinary interest in the study of American cultures." It is a great conference for legal history scholarship. While the Law and Society Association is especially strong on law and social sciences, the American Studies Association is stronger in the humanities, and so is an especially good venue for legal history work that draws upon literature and cultural studies.
McDonald takes on Korematsu revisionism
February 1 deadline for ASLH proposals
Tuesday, January 22, 2008
Mikhail on Blumenthal: Mind of the Moral Agent
Here is Mikhail's abstract:
In her insightful and stimulating article, The Mind of a Moral Agent, Professor Susanna Blumenthal traces the influence of Scottish Common Sense philosophy on early American law. Among other things, Blumenthal argues that the basic model of moral agency upon which early American jurists relied, which drew heavily from Common Sense philosophers like Thomas Reid, generated certain paradoxical conclusions about legal responsibility that later generations were forced to confront. "Having cast their lot with the Common Sense philosophers in the 'formative era' of American law," she explains, "early republican jurists thus bequeathed to future generations of lawyers a problem of responsibility of no small proportions."I hope to talk more about this important topic at some point; however, in the interim I have one thought and one question. It seems to me as though antebellum Americans drew upon a number of intellectual traditions and applied them rather haphazardly. So it is not surprising that we see fragments of different traditions; and I suspect that as we look at different subjects within law, we are likely to see different traditions in varying degrees. (Not earth-shaking observation, but it may explain some of the differences in Mikhail and Blumenthal's findings.)
In this invited comment for Law and History Review, I first argue that the problems of responsibility on which Blumenthal focuses our attention are not specific to Scottish Common Sense, but rather descend straight from the core of the Western legal and moral tradition. The same problems would arise if Common Sense philosophy had never existed. Second, even if it is true that Common Sense exerted a powerful influence on American academic life in the antebellum period, it still must be shown that this influence extended to specific features of American law, which remained at the time almost entirely the product of English common law. Blumenthal has not met this burden, however, because she does not identify any specific doctrines or judicial opinions that might support the conclusion that early American jurists "were steeped in Common Sense philosophy" or sought to construct "an indigenous legal tradition, built on the universalistic premises of Common Sense." Rather, her defense of this interesting claim is highly selective, resting mainly on the writings of Wilson and Hoffman. Third, although Blumenthal claims that there is something puzzling or paradoxical from a Common Sense perspective about the diversity of moral opinion, the existence of irrational or evil actors, or the fact that individuals often disregard the dictates of their moral sense, she does not adequately explain what exactly that paradox is, nor why Common Sense adherents should be troubled by it. Locke had made objections like these familiar as a result of his attack on innate practical principles in his Essay Concerning Human Understanding. Yet already by the eighteenth century, critics like Shaftesbury, Hutcheson, Reid, and their followers had rejected Locke's arguments as based on mere confusion and fallacy. Finally, a key point that Blumenthal neglects, as does John Witt in his elegant chapter on Wilson, is that Common Sense philosophers also supplied positive scientific arguments for innate moral knowledge, based on observation and induction rather than introspection, whose intellectual worth has proved remarkably durable. We risk misunderstanding Scottish Common Sense and its place in the history of ideas if we overlook contributions like these, or remain content to think of it merely as an unduly optimistic philosophy, which relied mainly on introspection to affirm the innate goodness of humankind, but which gave way to a more accurate theory of human nature as the nineteenth century unfolded. Certainly there is some truth to this description, but it is only part of the story, and a potentially misleading one.
Now the question. Mikhail says at one point (170): "even if it is true that Scottish Common Sense exerted a powerful influence on American academic life in the antebellum period, it still must be shown that this influence extended to specific features or practices of American law, which after all remained at the time almost entirely the product of English common law." [emphasis in original]. So my question for legalhistoryblog readers: do we agree with the statement that American law remained in the antebellum period "almost entirely the product of the English common law?" Maybe this is where my comment in the previous paragraph is useful--perhaps it depends on one's perspective.
Lash on Barnett on Lash on the 9th Amentment
Monday, January 21, 2008
Thurgood Marshall and Martin Luther King, Jr.
The trouble occurred afterward at the House of Deputies meeting, when a resolution was introduced that spoke to the principles of King’s philosophy of nonviolent civil disobedience. The resolution “recognized the right of persons to disobey segregation laws that are in ‘basic conflict with the concept of human dignity under God.’” Civil disobedience had to be nonviolent, done only after “earnestly seeking the will of God in prayer.” Many in the clergy supported the proposal, but a number of lay delegates opposed it. “This is the first time in all of the history of this church that we have been asked to take a position that recognizes the right of people to disobey the law,” a Minneapolis delegate complained. “This is the way to chaos.” Reverend Gordon E. Gilett of Illinois responded: “One of my ancestors picked up a musket at Lexington and fought the British and I am certain we agree that was one of the greatest acts of civil disobedience.” When the measure came to a vote, it had the support of a majority of the clergy but did not receive enough support from lay delegates. The resolution was rejected. In protest, Marshall walked out.
Here is a Federal judge, the very embodiment of our law, acting as though he had turned in his judicial robes for a pair of sneakers and a CORE sweatshirt. The spectacle is ludicrous and not a little hypocritical.
This is a man who sits upon the United States Circuit Court of Appeals asking his church to encourage followers who violate selected laws “for reasons of conscience.”
The terrible danger of such an official endorsement of civil disobedience is that it leaves to the individual to judge what laws to violate, and individuals have different
ideas of “human dignity under God.”
This endorsement would have been an invitation to anarchy!
This passage is taken from Mary L. Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press, forthcoming 2008). Cross-posted at Balkinization.
Photo credits: Martin Luther King, Jr.; Thurgood Marshall addresses an NAACP conference.
LaCroix, The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic
Sunday, January 20, 2008
Reviewed: Rejali, Torture and Democracy
This is the most comprehensive, and most comprehensively chilling, study of modern torture yet written. Darius Rejali, one of the world's leading experts on torture, takes the reader from the late nineteenth century to the aftermath of Abu Ghraib, from slavery and the electric chair to electrotorture in American inner cities, and from French and British colonial prison cells and the Spanish-American War to the fields of Vietnam, the wars of the Middle East, and the new democracies of Latin America and Europe.
As Rejali traces the development and application of one torture technique after another in these settings, he reaches startling conclusions. As the twentieth century progressed, he argues, democracies not only tortured, but set the international pace for torture. Dictatorships may have tortured more, and more indiscriminately, but the United States, Britain, and France pioneered and exported techniques that have become the lingua franca of modern torture: methods that leave no marks. Under the watchful eyes of reporters and human rights activists, low-level authorities in the world's oldest democracies were the first to learn that to scar a victim was to advertise iniquity and invite scandal. Long before the CIA even existed, police and soldiers turned instead to "clean" techniques, such as torture by electricity, ice, water, noise, drugs, and stress positions. As democracy and human rights spread after World War II, so too did these methods.
Rejali makes this troubling case in fluid, arresting prose and on the basis of unprecedented research--conducted in multiple languages and on several continents--begun years before most of us had ever heard of Osama bin Laden or Abu Ghraib. The author of a major study of Iranian torture, Rejali also tackles the controversial question of whether torture really works, answering the new apologists for torture point by point. A brave and disturbing book, this is the benchmark against which all future studies of modern torture will be measured.
Reviewed: Carr, The Big Switch: Rewiring the World, From Edison to Google
Just so, he writes, the personal computer, the Internet and the World Wide Web may be largely the creation of visionaries and tech wizards and offered short-term advantages to early adopters, but we're already seeing the migration of those resources to a centralized utility in which it makes ever less sense for businesses or individuals to own their own technology; the value lies in the ability to connect to the system. As former Sun chairman Scott McNealy used to say back in the '80s, "The network is the computer."...
The advent of electric household appliances, for example, may have reduced the need for domestic servants, but it created corresponding pressure on the individual homemaker to maintain an impossible (and marketing-driven) standard of sparkling perfection - Carr notes, for example, that the electric iron made it socially unacceptable for even children to go about in wrinkled clothing. The net result was a world in which women were increasingly confined to their homes and deprived of adult conversation, just because running the home "efficiently" had become a full-time job: "The housewife, like the factory hand, had become an essential cog in the great technological machine that was producing a more advanced civilization."
Looking for similar dystopian developments in the present day, Carr finds many - driven, as with electricity, by the dual forces of profit and control. He points, for example, to the rapid erosion of his own field, journalism, by "user-generated content" and the increased unwillingness of the population to pay for content, be it music, video or investigative reporting - which, when combined with the growing ability of advertisers to quantify results and reluctance to pay for anything that doesn't help their bottom line, is fast rendering anything but product-pushing economically unsustainable. Similar disruptions are occurring across the board in occupations that have largely sustained the middle class, as knowledge and expertise are offloaded from the individual brain to the centralized machine - with dire social and economic consequences but great power and revenues for those who control the machine.
The rest is here.
Skeel on The Paths of Christian Legal Scholarship
University of Pennsylvania Professor David A. Skeel has posted "The Paths of Christian Legal Scholarship" on ssrn. His abstract reads:
You may want to read this in conjunction with Skeel's "The Unbearable Lightness of Christian Legal Scholarship."
The history of twentieth century Christian legal scholarship- really, the absence of Christian legal scholarship in America's elite law schools- can be told as a tale of two emblematic clashes: the first an intriguing historical footnote, the second a brief, explosive war of words. In the first, a tort action in Nebraska circa 1890,William Jennings Bryan and Roscoe Pound served as opposing counsel; the second was a war of words in the 1940s between a group of neo-Thomist scholars and defenders of Oliver Wendell Holmes. Using these two incidents to frame as a starting point, this essay briefly chronicles the disappearance of Christian legal scholarship from the elite law reviews for much of the twentieth century. In the past few years, however, there have been signs of a possible renaissance. The second half of the essay focuses on the signs of renewal. To organize the discussion, I address three very basic questions: What?, Who?, and How? - What are the most promising directions for Christian legal scholarship? Who is a Christian legal scholar? And how can Christian legal scholarship best be facilitated?
The illustration is Asher Durand's Beeches. How's that for a path?
Kutler on Huckabee and the Constitution
On CNN’s “The Situation Room” (Jan. 8), Huckabee finessed the allegation that he favored stripping American citizenship from children born in the United States to illegal immigrants. That ever-present “someone,” he said, had suggested to him that bestowing citizenship on such children “needed to be reviewed.” The status of children of illegal immigrants who had come for the purpose of giving birth, Huckabee added, might indeed might be reconsidered.
As he said, “I simply said that’s something the Supreme Court would have to rule on.” He maintained that rejecting citizenship “was only a conversation that someone had with me.” Again, that “someone.”
But why would – why should – the Supreme Court “reconsider” a constitutional amendment that has been clearly understood for more than 140 years? It could be that Huckabee betrays his “Old South” roots?
Saturday, January 19, 2008
Knaplund on The Evolution of Women's Rights in Interitance
Friday, January 18, 2008
Wiecek on Epstein
Highlights from the review:
Epstein contends that in the late eighteenth century, and for most of the ensuing
century, our constitutional order was organized around "the classical liberal synthesis" (14). Its basis is "classical economics," especially "Adam Smith's happy conception of the 'invisible hand'" (4). Property and contract naturally play a central role in such a regime. The individual liberties agenda of this earlier order was concerned primarily with "economic liberties and property rights" (35). In its constitutional manifestations, classical liberalism was particularly concerned with two problems, federalism and economic liberty. But the federal Constitution was not originally charged with protecting individual rights directly, being tasked rather with identifying the boundaries of federal and state power vis-à-vis each other. Thus, most of the relevant achievements of "The Old Court" (19) (the United States Supreme Court before 1937) were to be found it its commerce-clause and dormant-commerce holdings.
But then the serpent slithered into this edenic garden. Beginning in the late nineteenth century, Progressivism assaulted the constitutional order of classical liberalism in all its premises, attacking both doctrine and results. The old order did not expire on the spot; in fact its greatest triumphs still lay in the future: Lochner v. New York (1905), Adair v. United States (1908), Coppage v. Kansas (1915), Hammer v. Dagenhart (1918), and Adkins v. Children's Hospital (1923). But for reasons Epstein does not explain, and perhaps does not understand, Progressivism inexorably triumphed over its classical rival, displacing traditional beliefs with modern, antagonist ones. The only explanation that Epstein offers for this is that "the older conceptual scheme [that is, classical liberalism] did not collapse of its own weight. All that really happened was that several justices lost faith in it, without being able to show where it broke down" (66). (He does not specify who the apostates were.)
[P]artly because historians have failed him and partly because he does not seem to have been interested in making a historical inquiry in the first place, Epstein has provided us with nothing more than a conflict of shadows. Classical liberalism was slain by the ghostly apparition of the vague abstraction "Progressivism." But no real Progressives inhabit these pages. Brandeis and Frankfurter appear in cameo a few times, Pound, Woodrow Wilson, and Ernst Freund once each, but otherwise "Progressives" flit through these pages like the disembodied souls Odysseus encountered in Hades, nothing more substantial than shadows and sighs.Read the full review here.
Ben Tillman Statue in South Carolina
Just in time for the South Carolina primaries is a controversy about a statue of South Carolina politician (a symbol of the worst of Jim Crow for many), which is on the state house grounds. The story, from the South Carolina's The State newspaper is here (thanks to a pointer from feminist law prof Ann Bartow and one of the leading scholars of monument law).
Some want the statue removed:
“I just don’t think his statue should be on State House grounds,” said Rep. Todd Rutherford, D-Richland, noting Tillman for years made speeches about killing African-Americans who sought their rights.Others would like to see a plaque that puts the statue into perspective:
“A plaque would stand a better chance of passage because it simply tells the truth,” said Rep. Joe Neal, D-Richland. “History is what it is, and there’s an argument that you can’t change it (by removing a statue). But what you can do is tell the truth.”Among the many interesting issues these kinds of discussions raise are what meaning did the statue served to the people who put it up? Our friends at answers.com provided the image of the Tillman statue. You might notice that the writing on the base shows it was put up in 1940 by the "legislature, the Democratic Party, and private citizens of the state of South Carolina." Inscriptions are sometimes as useful in interpreting a monument as the images on it.
Thursday, January 17, 2008
Levitt and Fryer on the Second Klan: Hatred and Profits
I thought I'd talk first about the engagingly titled "Hatred and Profits: Getting Under the Hood of the Ku Klux Klan" by Steven Levitt and Roland Fryer. You may have seen this adoring piece on it in 02138 or Levitt's entry about it over at that Freakonomics blog last September. The paper is here if you're coming from a domain with a NBER subscription. If not, you can purchase it from ssrn for $5. Hey, these guys are economists. You expect them to give stuff away?!
Levitt said of the paper at Freakonomics blog:
More effort went into this paper, I believe, than any other paper I have ever written. Roland and I started this project five years ago and I wouldn’t be surprised if 10,000 hours were invested in it since then.Wow; that's a truck-load of time. What did they get for five years worth of their research assistants' and their time?
Their abstract reads:
The Ku Klux Klan reached its heyday in the mid-1920s, claiming millions of members. In this paper, we analyze the 1920s Klan, those who joined it, and the social and political impact that it had. We utilize a wide range of newly discovered data sources including information from Klan membership roles, applications, robe-order forms, an internal audit of the Klan by Ernst and Ernst, and a census that the Klan conducted after an internal scandal. Combining these sources with data from the 1920 and 1930 U.S. Censuses, we find that individuals who joined the Klan were better educated and more likely to hold professional jobs than the typical American. Surprisingly, we find few tangible social or political impacts of the Klan. There is little evidence that the Klan had an effect on black or foreign born residential mobility, or on lynching patterns. Historians have argued that the Klan was successful in getting candidates they favored elected. Statistical analysis, however, suggests that any direct impact of the Klan was likely to be small. Furthermore, those who were elected had little discernible effect on legislation passed. Rather than a terrorist organization, the 1920s Klan is best described as a social organization built through a wildly successful pyramid scheme fueled by an army of highly-incentivized sales agents selling hatred, religious intolerance, and fraternity in a time and place where there was tremendous demand.I love great titles and I deeply respect people who take on tough topics and say controversial things. I wonder if they are a little zealous with this statement: "Rather than a terrorist organization, the 1920s Klan is best described as a social organization built through a wildly successful pyramid scheme fueled by an army of highly-incentivized sales agents selling hatred, religious intolerance, and fraternity in a time and place where there was tremendous demand."
"Best described as"? And "the Klan's true genius lay in its uncanny ability to raise revenue." Hmm, I prefer a more moderate statement: the 1920s Klan was about profits and terror. It's harder to make comparative statements--that the Klan was more about profits than terror. To make that convincing, we need to measure the terror more effectively than only looking at lynchings and the out-migration of African Americans and foreign born people from counties with Klan members. That is, lynchings aren't a good measure of the Klan's effect. (And I'm not sure that lynchings measure all murders. For instance, the murder of the murder of Father Coyle in Birmingham in 1921 is often attributed in part to the hostile climate towards Catholics that the Alabama Klan fostered. Yet, even that extreme episode of violence isn't typically counted as a lynching.) There was a lot of lesser, but still significant, violence. We also need to know more than changes (or lack of them) in votes for Republicans and we need to know more about the political impact than the failure to pass state-wide legislation.
To illustrate some of the problems with this, let's take Oklahoma in the 1920s. I do not attribute, as some do, the terrible 1921 Tulsa riot (through which even the most conservative estimates acknowledge that dozens of people died) to the Klan. My sense is that the riot predated a lot of the Klan's popularity in Oklahoma; however, the riot helped to foster the growth of the Klan. And even though there were no lynchings in Oklahoma after the riot (when the Klan was most powerful), there were a lot of beatings and mutilations; many people run out of their homes (popularly known as "negro drives"). The Oklahoma governor declared martial law in Oklahoma in 1923 as a way of wresting control of the state from the Klan, at the time when many people acknowledged that a number of local officials, from prosecutors to police officers, to judges (and sometimes jurors) were Klan members. The military tribunals set up under martial law collected hundreds of pages of testimony about the Klan's violence. Of course, such claims served some of the governor's political purposes as well. I think the most obvious effects of the Klan are likely to be found at the local level, below the places that Levitt and Fryer look.
One of Levitt and Fryer's findings is that lynchings are declining as Klan membership is growing (page 21). This warrants some extended discussion. I'd like to suggest one interpretation. It's entirely possible, indeed likely, that the Klan is growing in part because of a perceived need to maintain white supremacy. So at a time when white supremacy is declining (as evidenced by a decline in lynchings), that may be precisely the moment when people feel the need to join the Klan. There is some literature along these lines, which talks about the all sorts of status anxiety issues in the 1910s and 1920s.
Before we're in a position to say that the Klan was more about some silly men dressing up like laughable Halloween characters, we need to have a very good estimate of the violence that they supported. Levitt and Fryer looked primarily at Pennsylvania, Colorado, and Indiana, rather than southern and southwestern states. As the quantitative reconstruction of our past continues, I hope there will be more studies like Levitt and Fryer and I look forward to further investigations of the Klan's violence. Their paper inspires me to go back to reexamine Oklahoma elections in the 1910s and 1920s.
While I'm on the topic of the Klan, I highly recommend Lisa Cardyn's excellent book-length study of the first Klan, which appeared in the Michigan Law Review in 2002. Here's a link to an excerpt. And I've written about the Klan in Oklahoma in the 1920s. Oklahoma, I think, gives us a sense of how the Klan’s members worked in conjunction with local law enforcement to create a macabre landscape that subjected African Americans, white women, immigrants, and even white men to threats of violence.
Florestal, On the Origin of Fear in the World Trade System: Excavating the Roots of the Berlin Conference of 1884
Wednesday, January 16, 2008
Burbank on The Class Action Fairness Act of 2005 in Historical Context
Tuesday, January 15, 2008
Saul Cornell's The Second Amendment Goes to Court
For the first time in nearly three quarters of a century, the Supreme Court has agreed to hear arguments in a case involving gun control and the 2nd amendment. The case comes amidst swirling scholarly debates over the history and meaning of the 2nd amendment. In this month's essay, Constitutional historian Saul Cornell describes the shifting nature of 2nd amendment scholarship over the last several years, and grounds the 2nd amendment more fully in its historical context.
The article is here; and a podcast of Cornell's paper is here.
Berger-Howe Fellowship in Legal History at Harvard
Harvard Law School
Deadline: February 1, 2008
Harvard Law School is seeking fellows who have a JD degree, who have completed the required coursework for their doctorate degree, or who have recently been awarded the doctorate degree. A JD is preferable, but is not required. We will also consider applicants who are beginning a teaching career in either law or history. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period. Fellows are expected to spend the majority of their time on their own research. They are also help to coordinate the Legal History Colloquium, which meets four times each semester. The Berger Fellow is invited to present their own work. Fellows will be required to be in residence at the Harvard Law School during the academic year (September through May).
Applications should include a cover letter, curriculum vitae, relevant transcripts, a research proposal (no more than five pages), and at least two academic recommendations. Writing samples are welcome.
Please address your application to Professor Jed Shugerman, Harvard Law School, Cambridge, MA, 02138. Applications by email are preferable. Please send them to Professor Shugerman's assistant Carol Igoe at firstname.lastname@example.org
Further information is here, or contact:
Harvard Law School
Griswold 4 North
Cambridge, MA 02138