Saturday, May 31, 2008
Sirico on How the Separation of Powers Doctrine Shaped the Executive
This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates.
At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for second term, removing the Executive, devising the Executive veto, requiring legislative advice and consent for executive appointments, authorizing the Executive to grant reprieves and pardons, and making the Vice President the President of the Senate.
The Article demonstrates that much of the discussion centered on allocating power between the Legislative and Executive branches and thus really amounted to a struggle over defining the nascent office of the Executive. It thus offers the historical background for today's debates over separation of powers. For the Founders, separation of powers served not as a rigid rule, but as a functional guide, designed to help construct a working constitution with a workable executive branch.
Words, Pictures, and a Connection
Friday, May 30, 2008
Wuerth, An Originalism for Foreign Affairs?
Thursday, May 29, 2008
Policy History Conference & Law and Society
Desegregation as a Cold War Imperative, now on SSRN
Inspired by Paul Finkelman, Kurt Lash and others, I've decided it's time to try to make my SSRN listing more comprehensive by posting earlier articles. This seems particularly important for interdisciplinary scholars whose work appears in different sorts of indexes (law and humanities). Putting it on-line means that researchers across the divide can find it in one place. I did not post this earlier because I didn't have permission to do so, but was able to get permission to do it now.
Here's the abstract:
Desegregation as a Cold War Imperative by Mary L. Dudziak, University of Southern California Law School, Stanford Law Review (1988).
At the height of the McCarthy era, when Congressional committees were exposing "communist infiltration" in many areas of American life, the Supreme Court was upholding loyalty oath requirements, and the executive branch was ferreting out alleged communists in government, the U.S. Attorney General filed a pro-civil rights brief in what would become one of the most celebrated civil rights cases in American history: Brown v. Board of Education. Although seemingly at odds with the restrictive approach to individual rights in other contexts, the U.S. government's participation in the desegregation cases during the McCarthy era was no anomaly. Rather, by the early 1950s, American leaders had come to believe that civil rights reform was crucial to the more central U.S. mission of fighting world communism. Based in part on diplomatic research in State Department archives, this article demonstrates that Cold War motives influenced the U.S. government's involvement in Brown and other cases. Originally published in 1988 in the Stanford Law Review, this article was the first publication to use State Department records to examine the relationship between Cold War foreign relations and civil rights in the United States. Diplomatic records illustrate the growing concern among American diplomats and political leaders after World War II about the impact of race discrimination on the U.S. image around the world, and the global critique that the United States could not be an effective "leader of the free world" as long as the nation blatantly denied rights to its own peoples. This research confirmed the suspicions of Derrick Bell and others who argued before these records were opened that foreign affairs affected U.S. government civil rights policies, and it helped illuminate the world-wide impact of the civil rights movement. This research was expanded upon in Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton University Press, 2000), and in books and articles by other scholars. The larger body of work on race and foreign relations is an important aspect of efforts by historians to internationalize the study of American history. Thanks to the Stanford Law Review, the article is now available on SSRN so that it will be easily accessible on-line.
Wednesday, May 28, 2008
McQueen on Corporations Law in the Colonies
New Book: Fletcher, American Indian Education
America Indian culture and traditions have survived an unusual amount of oppressive federal and state educational policies intended to assimilate Indian people and destroy their cultures and languages. Yet, Indian culture, traditions, and people often continue to be treated as objects in the classroom and in the curriculum. Using a critical race theory framework and a unique "counternarrative" methodology, American Indian Education explores a host of modern educational issues facing American Indian peoples¿from the impact of Indian sports mascots on students and communities, to the uses and abuses of law that often never reach a courtroom, and the intergenerational impacts of American Indian education policy on Indian children today. By interweaving empirical research with accessible composite narratives, Matthew Fletcher breaches the gap between solid educational policy and the on-the-ground reality of Indian students, highlighting the challenges faced by American Indian students and paving the way for an honest discussion about solutions.
Tuesday, May 27, 2008
New book: Wittern-Keller, Freedom of the Screen: Legal Challenges to State Film Censorship, 1915-1981
The author shows how Americans began to recognize that filmmakers, like the creators of books and newspapers, ought to enjoy the right of free speech under terms of the First Amendment. Wittern-Keller's well-researched investigation of the fight against censorship makes an important contribution to U. S. social, legal, and political history.
Between 1907 and 1980, many state and local governments empowered motion picture censor boards with the legal authority to keep any movie they considered obscene, indecent, or harmful from being shown. Although the mainstream American film industry accepted the form of censorship known as "prior restraint," independent distributors and exhibitors challenged the government censors in court.
In Freedom of the Screen, Laura Wittern-Keller tells the story of those who fought prior restraint on movies. By drawing attention to this inequity--film was the only medium so constricted by the 1950s--the distributors pushed a reluctant judiciary to square its interpretation of movie expression with the rights of other media. As these legal interpretations gradually became more sympathetic to artistic freedom--largely because of the independent distributors' lawsuits--Hollywood was free to discard its outmoded restraints and deliver provocative, relevant movies to American audiences.
Laura Wittern-Keller is visiting assistant professor of history and public policy at the University at Albany (SUNY) and the recipient of the New York State Archives Researcher of the Year award.
The author's research is prodigious and fills a significant gap in the field. All who are engaged in this field will have to incorporate her findings into their stories of movie censorship. . . . This reference is needed and will be much appreciated by historians, film studies specialists, and legal scholars for decades to come. A heroic effort.
--Francis G. Couvares, author of Movie Censorship and American Culture
Attaway on the 7th Circuit, the history of banking and state regulation of federal thrifts
Monday, May 26, 2008
Just published: Bank, Stark and Thorndike, War and Taxes
During World War II, Americans were urged to ration food, raise money, and accept higher taxes. After September 11, we were given tax cuts and asked to shop. Has the United States broken a noble tradition of fiscal sacrifice with the current, unprecedented wartime tax cuts, or are they the mark of new economic, and social forces at work? War and Taxes weighs the question by considering six conflicts that span the American Revolution to the present war in Iraq.
—Dennis J. Ventry Jr., Assistant Professor of Law, American University, Washington College of Law
“Rarely does a work of history illuminate the present as much as War and Taxes. This fascinating account of the politics of American wartime taxation from the Revolution through the Iraq conflict shows that the Bush administration’s policy of cutting taxes while waging war marks an abrupt departure from the strong, but often fiercely contested, American tradition of fiscal sacrifice. It’s a must-read for those interested in taxation, war, and how each shapes the other.”
—Joel Slemrod, Paul W. McCracken Collegiate Professor of Business Economics and Public Policy and Director, Office of Tax Policy Research, University of Michigan
Nelson on the History of Judicial Review of Legislative Purpose
Sunday, May 25, 2008
The Death of the Critic?
Saturday, May 24, 2008
Zelden on Why We Need to Take the 2000 Election and the Ruling in Bush v. Gore Seriously
Bush v Gore. Just whisper the name of the case that ended the 2000 presidential election and you are likely to get one of three responses: A yawn of active indifference (not that again), teeth-grinding anger at the Supreme Court and the presidency of George W. Bush (let me tell you . . .), or an eye-roll of frustration (Get over it already, Bush won!). Two things tie these disparate responses together - their shared disdain for the event and their tendency to treat the case in only the most superficial, dismissive, and unwelcoming ways.In the year after the 2000 election, there was much written about it, but this was all eclipsed in the aftermath of September 11, 2001 -- just as a spate of Bush v. Gore books and articles was coming out. Perhaps the juxtaposition of these historical moments explains some of the absence of discussion that Professor Zelden experiences. My favorite works in that early literature, though not on Zelden's important point about electoral reform, are Howard Gillman, The Votes that Counted: How the Court Decided the 2000 Election (Univ. of Chicago Press, Oct. 2001), and Mark Tushnet, Renormalizing Bush v. Gore: An Anticipatory Intellectual History, Georgetown Law Journal (Nov. 2002).
Sadly, such has become the norm when Bush v. Gore is discussed - if it is discussed at all. In many ways and on many levels, Bush v. Gore has become - as Adam Cohen of the NYT put it - the case that must not be spoken of. The anger and frustration over the Supreme Court's ruling (and/or over the reactions to this ruling) lie too deep for the sort of sober reflection a case of this importance deserves. So most of us just ignore the whole event as a bad memory.
Such willful historical amnesia about a pivotal electoral and constitutional crisis resolved by an unprecedented and controversial Supreme Court decision is a mistake, however. The events of 2000 were, to use Thomas Jefferson's famous description of the controversy over slavery, a firebell in the night - a warning that bad things were happening and that, if not faced and responded to, would produce catastrophic results. The content of this warning, however, was not about an out of control Supreme Court or the hubris of judicial overreach. Rather, at its core, the lessons of Bush v. Gore are about a broken electoral system and the dangers this poses to American democracy.
This article, based on a speech given at the Oklahoma City University Law School, explores some of the lessons we should be drawing from the events of November and December 2000. It sets out the problems exposed by events in Florida and shows how these problems have continued uncorrected to the present and ends with a discussion of potential reforms to fix what is broken.
Vladeck on The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia
Friday, May 23, 2008
Moyn on Jacques Maritain, Christian New Order, and the Birth of Human Rights
This paper traces some changes in Catholic political theory eventually taken up and extended during World War II by Jacques Maritain, who became the foremost philosophical exponent of the idea of "human rights" on the postwar scene. I show that the invention of the idea of the "dignity of the human person" as embedded in the Universal Declaration of Human Rights occurred not in biblical or other longstanding traditions, but instead in very recent and contingent history. In conclusion, I speculate on what the restoration of Maritain's route to human rights to its proper contexts might suggest about the cultural meaning the idea had in postwar Continental Europe, which became its homeland.
Moyn elaborates in the paper's introduction:
Jacques Maritain, the Catholic philosopher and publicist, was the highest profile thinker to defend the concept of human rights in the immediate postwar period, the era of their framing in the Universal Declaration and embedding in European identity. What I would like to analyze in this essay is how this once reactionary critic of rights transformed into their champion. The basic argument is that this shift has to be correlated with overall ideological change in Catholicism, in which dominant old political options disappeared and new ones were needed. They were created, not simply adopted from elsewhere: Maritain – who castigated the language of rights through the late 1930s – changed them through his turn to them as much as they changed him. And his personalist and communitarian recasting of the language as a new option for Christianity helps explain why commitments to human dignity and human rights could become as prominent as they did in the postwar European order.
For we must give up once and for all the idea that the history of human rights is a story in which a static liberal doctrine rises slowly over time, its degree of external acceptance (and the failure of external alternatives to it) the main story unconnected to any sense of its internal plasticity and ideological reinvention. In a recent book, Jay Winter has proposed that the Universal Declaration of Human Rights be seen as a “utopia,” albeit in a minor key. If so, what matters is whose utopia it was, and with what content, at the moment of its formulation and at different stages of its reception. I will try to argue that, in terms of the cultural meanings that the concept had in the beginning, human rights reflected most centrally the ideology of "personalist humanism.”
This ideology, the intellectual backbone of the larger postwar European politics of human dignity, not only cannot be left out when pondering the original meaning of human rights, but was arguably their most determining constituent.
The Roberts Court and Thurgood Marshall's Legacy
The recent anniversary of Brown v. Board of Education falls nearly 100 years since the 20th century's greatest civil rights lawyer, Thurgood Marshall, was born (July 2, 1908). Brown was a milestone in the nation's civil rights history; the case also christened Marshall, the plaintiff's lead attorney, as "Mr. Civil Rights." Not long after, Marshall would be eclipsed by a new generation of civil rights leaders. His greatest disappointment, however, was to see the court that decided Brown turn away from his legacy.
The Supreme Court's dismantling of Brown has been on display most recently in a ruling last year involving school districts that adopted voluntary plans designed to maintain racial diversity in their schools. In Parents Involved in Community Schools v. Seattle School District last June, the court reviewed such a plan under its most stringent constitutional test: strict scrutiny. The efforts of a school board to keep schools integrated were scrutinized in the same way as the efforts of past school boards to keep schools segregated, as if they were the same. Facing this steep hurdle, the plan was struck down.
The court's approach was not inevitable, but a path in this direction was laid years earlier, when Marshall was on the court. Regents of the University of California v. Bakke, the court's first affirmative action case, took up the question of whether racial classifications intended to remedy discrimination should be measured by the same standard as racial classifications meant to harm racial minorities. The University of California's program was faulty, but in Bakke and later cases, the court's increasingly broad use of strict scrutiny meant that the court, and not the political branches, would set the terms of efforts to undo decades of discrimination. In many contexts, it became illegal to take race into account even in efforts remedy discrimination.
The Bakke decision prompted a bitter dissent from Marshall, the nation's first African-American justice. "Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery," he wrote. "The slave was deprived of all legal rights," and "the system of slavery brutalized and dehumanized both master and slave." The Civil War changed things but, Marshall argued, freedom did not bring African-Americans equality. Instead, "slavery was replaced by a system of laws which imposed upon the colored race onerous disabilities and burdens ... to such an extent that their freedom was of little value." Tracing the long and difficult history of race discrimination, Marshall concluded that in 1978, the position of African-Americans was "the tragic but inevitable consequence of centuries of unequal treatment." Meaningful equality remained "a distant dream."
For Marshall, this context mattered when the court took up government efforts to remedy race discrimination. "In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order," he argued. "To fail to do so is to ensure that America will forever remain a divided society." Taking race into account to remedy discrimination was not suspect. Instead it was an imperative.
Marshall's argument in Bakke belies the current court's efforts to wrap its very different vision in Brown's legacy. Chief Justice John Roberts argued last spring that he and Marshall were on the same page, that the plaintiff's attorneys in Brown supported the idea that all racial classifications should be equally suspect. This prompted a response from Robert Carter, Marshall's co-counsel and now a retired federal judge, who the chief justice had quoted in his opinion: "All that race was used for" at the time of Brown "was to deny equal opportunity to black people," he said. "It's to stand that argument on its head" for the court "to use race the way they use it now."
The Roberts court abstracted Brown from its painful historical context, a context that Marshall pressed on the court in Bakke.
At a time when political pundits suggest that the Barack Obama candidacy portends a post-racial America, Brown's recent anniversary date, May 17, should be a time to remember that, in moving forward, the nation cannot escape its past. This year, for Marshall's 100th birthday, on Brown's anniversary we should reflect on Marshall's admonition: "It must be remembered," he wrote in Bakke, "that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier."
Mary L. Dudziak is Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at USC. Her newest book is "Exporting American Dreams: Thurgood Marshall's African Journey."
Henning on the History of the Mail Fraud Statute
Thursday, May 22, 2008
Spivack, The Woman Will be Out: A New Look at the Law in Shakespeare's Hamlet
Hutchinson on Racial Exhaustion
Special Issue on The Constitution and Public Policy in U.S. History
Here's the table of contents:
Introduction - Bruce Schulman and Julian Zelizer
Idea or Practice: A Brief Historiography of Judicial Review - Mary Bilder (recently posted on SSRN)
From Blood to Profit: Making Money in the Practice and Imagery of Early America - Christine Desan
Necessities of State: Police, Sovereignty, and the Constitution - Christopher Tomlins
Constitutional Revision and the City: The Enforcement Acts and Urban America, 1870-1894 - David Quigley
"The Least Vaccinated of Any Civilized Country": Personal Liberty and Public Health in the Progressive Era - Michael Willrich
Forging Fiscal Reform: Constitutional Change, Public Policy, and the Creation of Administrative Capacity in Wisconsin, 1880-1920 - Ajay Mehrotra
Woodrow Wilson and a World Governed by Evolving Law - John A. Thompson
The South Confronts the Court: The Southern Manifesto of 1956 - Anthony Badger
State Constitutionalism and the Death Penalty - Alan Rogers
The Equal Rights Amendment Reconsidered: Politics, Policy, and Social Mobilization in a Democracy - Donald T. Critchlow and Cynthia L. Stachecki
Governance and Democracy: Public Policy in Modern America - Morton Keller
The Historical Society conference, June 5-7 in Baltimore
THE CHRISTOPHER LASCH LECTURE
Richard Salvucci, Trinity University
“Pricing Peace, Property, and Friendship: Mexico, the United States, and the Treaty of Guadalupe-Hidalgo, 1848”
NEW SCHOLARSHIP ON THE POST-CIVIL WAR ERA
Moderator: Peter Coclanis, University of North Carolina, Chapel Hill
Michael W. Fitzgerald, St. Olaf College, “Reconstruction Revisited: African-American Politics in Modern Context”
Susan O’Donovan, Harvard University, “Women, Work, and Reconstruction: Questions of Gender in a Free-Labor System”
Michael A. Ross, Loyola University, New Orleans, “The Supreme Court and the Retreat from Reconstruction: An Assessment of Twenty Years of Scholarship”
AFRICAN AMERICANS IN THE ERA OF THE GREAT WAR
Moderator: Melvyn Dubofsky, SUNY Binghamton
Steven Reich, James Madison University, “The Great Migration and Literary Imagination”
Chad Williams, Hamilton College, “African-American Soldiers and the First World War: Class, Citizenship, and the Meanings of Military Service”
Robert H. Zieger, University of Florida, “‘Grudgingly, Unwillingly, Almost Insultingly’: Racial Progress in the Era of the Great War”
Comment: Melvyn Dubofsky, SUNY Binghamton
THE DILLINGHAM COMMISSION ON U.S. IMMIGRATION
Moderator: Robert Zeidel, University of Wisconsin, Stout
Yael Schacher, Harvard University, “Contrarian Expertise: Isaac Hourwich’s Immigration and Labor (1912)”
Melanie Shell-Weiss, Johns Hopkins University, “Workers and Citizens: The Debate over Black Immigrants and the Southern Economy”
Katie Benton-Cohen, Georgetown University, “The Ambivalence of Race: The Dillingham Commission and Mexican Immigrants”
John M. Lund, Keene State College, “Vermont Nativism: William Paul Dillingham and U.S. Immigration Legislation”
MOVING CIVIL RIGHTS HISTORY IN NEW DIRECTIONS
Moderator: Eric Arnesen, University of Illinois at Chicago
Risa Lauren Goluboff, University of Virginia School of Law“The Lost Promise of Civil Rights” Thomas J. Sugrue, University of Pennsylvania“Black Power, Civil Rights, and Conservatism: The Strange Origins of Community Economic Development”
Carol E. Anderson, University of Missouri, Columbia“Eyes Off The Prize: The NAACP and Political Liberation Movements in Africa and Asia”
THE POLITICS OF CIVIL RIGHTS HISTORY
Moderator: Randall Stephens, The Historical Society
David Chappell, University of Oklahoma“Waking from the Dream: The Battle over Martin Luther King’s Legacy”
Eric Arnesen, University of Illinois at Chicago“Periodizing and Politics in Civil Rights History: Reconsidering the ‘Long Civil Rights Movement’”
Daniel L. Letwin, Pennsylvania State University“‘A Nettle of Peculiar Sharpness’: The Social Equality Question in Black Political Thought”
THE FRAGMENTATION OF AUTHORITY IN THE ERA OF THE CIVIL WAR
Moderator: Donald Avery, Harford Community College
H. Robert Baker, Georgia State University, “Federalism and the Fugitive Slave Act: The Making and Unmaking of Constitutional Nationalism”
Owen Williams, Yale University, “The Fall of Slavery and the Rise of the Supreme Court”
Daniel W. Hamilton, Chicago Kent College of Law, “Human Property and the Constitution: Litigating Slavery After Emancipation”
Stern on Tom Jones and the Economies of Copyright
Wednesday, May 21, 2008
Next week: Policy History Conference in St. Louis
Highlights of this year's meeting include:
A Plenary: Does the 19th Century Matter in Policy History?
Chair/Commentator: Paula Baker, Ohio State University
Robin Einhorn, University of California, Berkeley
Richard Bensel, Cornell University
William J. Novak, University of Chicago
Law and the State in the Early Frontier
Chair/Commentator: PETER KASTOR, Washington University
ROMAN HOYOS, University of Chicago, Illinois "Pregnant with Danger": Constitutional Conventions and the Problem of Revolution in the Early Republic
HONOR SACHS, Yale University, From Colonial Backcountry to National Frontier: Race, Gender and State Formation in Eighteenth-Century Kentucky
STEFAN HEUMANN, University of Pennsylvania, Built in the West: Territorial Expansion and State- Building in the Antebellum U. S.
The Politics of Exclusion and U. S. Women’s Struggle for Inclusion: Historical Perspectives
Chair: LIETTE GIDLOW, Wayne State University
MEREDITH CLARK-WILTZ, Ohio State University, Reconstructing Constitutions and Citizenship: Women and Jury Service after the Reconstruction Amendments
SHEILA JONES, Bowling Green State University, The Economics of Sexual Harassment in the Workplace: Working Women and Citizenship Rights, 1975-1981
ERIN KEMPKER, Purdue University, Feminists and Conservatives at the Indiana International Women‟s Year Conference, 1977
Commentator: EILEEN MCDONAGH, Northeastern University
Civil Rights in the University
Chair/Commentator: MARIS VINOVSKIS, University of Michigan
SVEN H. DUBIE, John Carroll University, Civil Rights and the Ivory Tower: Academics, Lawyers, and the Transformation of Federal Civil Rights Enforcement Policies in the mid-20th Century
ANTHONY S. CHEN, University of Michigan and LISA M. STULBERG, New York University, Beyond Disruption: The Forgotten Origins of Affirmative Action in College and University Admissions, 1961-1969
CHRISTINE D. MYERS, Independent Scholar, Slipped in By the Side Door‟: The Acceptance & Education of Women at the University of Glasgow, 1868-1934
Who’s Capturing Whom? Rethinking Public and Private Power in the Postwar Administrative State
Chair: DANIEL ERNST, Georgetown University Law Center
ANNE KORNHAUSER, Columbia University, Groups Less Well Organized‟: Liberal Anxieties and the American Leviathan State
SOPHIA Z. LEE, Yale University, In and Out of Government: Public Interest Organizations and the Making of a Civil Rights State, 1968-1976
STEPHEN R. PORTER, University of Chicago, From Voluntary Agencies to State Sub-Contractors: Hybrid Governance and Cuban Exiles in the Cold War
Commentator: BRIAN BALOGH, University of Virginia
Defining Rights Outside the Courts in Cold War America
Chair: MARY L. DUDZIAK, University of Southern California Law School
JOANNA L. GRISINGER, Clemson University, Procedural Bulwarks and Subversive Threats: Internal Security Procedures in Cold War America
CHRISTOPHER W. SCHMIDT , American Bar Foundation, The Civil Rights Act of 1964 and Congressional Interpretation of the Fourteenth Amendment
H. TIMOTHY LOVELACE, JR., University of Virginia, South African Americans: SNCC, Atlanta Apartheid, and the Development of the United Nations‟ Race Convention
NEAL ALLEN, College of St. Benedict and St. John’s University, The Supreme Court, Backlash, and the Defense of White Supremacy: Judicial Decisions as Change Agents in American Political Development
Commentator: JAMES T. SPARROW, University of Chicago
Reproductive Justice: Policies, Politics, and Protest
Chair: EILEEN BORIS, University of California, Santa Barbara
LENA MCQUADE, University of California, Santa Barbara New Mexico‟s Reproductive Health Policies: Midwifery, Race, and Professionalism
LISA LEVENSTEIN, University of North Carolina, Greensboro Welfare Policy and Reproductive Justice in the United States
ANDREA SMITH, University of Michigan, Native Women‟s Organizing for Reproductive Justice RICKIE SOLINGER, Independent Scholar, The First Welfare Case: Challenging the Meaning of Marriage, the Meaning of Money, and the Meanings of History after the Voting Rights Movement in Selma, Alabama
Commentator: JOHANNA SCHOEN, University of Iowa
The full program is here.
Bilder, A Brief Historiography of Judicial Review
Lash on The Second Adoption of the Establishment Clause
Ross on The Career of Puritan Jurisprudence
Tuesday, May 20, 2008
Blomquist (with your help) ranks "the 100 Most Creative Moments in American Law"
In September of 2005—relying upon the AALS Directory of Law Teachers-- I sent letters to approximately 426 American law professors listed as having taught the subject of legal history. I asked each professor, rather naïvely, but straightforwardly: “Given your background as a teacher and scholar of legal history .... What do you think are the most creative moments in Anglo-American law?” I also alerted each recipient of my epistle that I was contemplating writing an article (and eventually a book) on the topic and would, if I used their response, give academic credit for the thoughts.If this study proves anything, it is that legal historians as a group are very helpful people. Blomquist continues:
Much to my surprise, I received numerous assorted responses to my query of the most creative moments in Anglo-American legal history—some by letter, some by e-mail and some by handwritten note.The author goes on to detail these responses from various legal history luminaries, carefully citing to the letters and e-mails you wrote in.
Blomquist describes his project in this abstract:
In most cultural contexts creativity is viewed as an unalloyed virtue. Law is different: given the inherently conservative and slow-moving pace of legal evolution, innovation in the law is viewed by many observers as problematic. Yet American revolutionaries, constitutionalists, legislators, chief executives, judges, administrators, scholars and activists have creatively changed the law for over two centuries in mostly positive ways with some admittedly questionable innovations. This article makes a bold new proposal -- the articulation and ranking of America's most creative legal moments -- designed to energize and clarify our synoptic thinking about the nature of legal creativity.I won't spoil the surprise by posting Blomquist's ranking, but first on the list is the Constitution of the United States and the ratification debates. Marbury v. Madison weighs in at #6. Richard Posner, Economic Analysis of Law (1973), at 54, and Hart & Sacks, The Legal Process (1958), at 55, outrank the creation of the United Nations, which comes in at 59. Earth Day is on the list. You can find the rest here.
Starting with the opinions of numerous eminent legal historians on the most creative moments in Anglo-American law, we will explore the meaning of creative moments in law, and advance to analytically compare legal creativity with other kinds of creativity (corporate, artistic, military and rhetorical). Then we will heuristically entertain a ranking of the top hundred moments in American law and a justification for the ranking.
Monday, May 19, 2008
Bodensteiner on The Supreme Court as the Major Barrier to Racial Equality
In the Green Bag: Thurgood Marshall's Bill of Rights for Kenya
Conference: History of Legal Transplantations
Saturday, May 17, 2008
Reviewed: Perlstein on Nixon and Wilentz on Reagan
Tyrell, What is Transnational History?
"Transnational," Tyrell writes, "is a broader term, but it is less encompassing than either the deterministic and unidirectional juggernaut of globalisation, or the generalities of the terminology of 'trans-border' which might refer to borders within nation states, including municipalities. The purpose of the transnational label was in fact more precise: to focus on the relationship between nation and factors beyond the nation."
In American history, the importance of transnationalism as a method was signalled by a 1992 special issue of the Journal of American History devoted to "internationalizing" American history, The Nation and Beyond. A series of conferences, a report to the Organization of American History, and a collection edited by Thomas Bender, Rethinking American History in A Global Age (2002), continued the momentum. But the OAH internationalizing project occurred alongside of other developments. As Tyrell notes, "in 1989-1991 that the idea of a self-conscious agenda called transnational history first came into being, linked to a specific research program. Though closely associated with an article I wrote in the American Historical Review (1991), the idea had been suggested in a narrower form in 1989 by Akira Iriye who argued for an examination not just of nationalism but of “internationalism” and suggested the study of an explicitly “transnational cultural history” to complement purely national developments." And there were precursors earlier in the 20th century, although they were "seed cast upon stony ground." Today, "the field of transnational history (and related developments going on today in sociology and anthropology) has a prospect of transforming scholarship...precisely because it chimes in with perceived changes in the world economy and social order associated with globalisation."
Continue reading here. Tyrell's most recent book is Transnational Nation: United States History in Global Perspective since 1789.
Friday, May 16, 2008
Tamanaha on Grossman & Tamanaha
There are indeed interesting points of overlap and difference between my "Bogus" article and Professor Grossman's article.
Although I will not directly address any of his points, I will add two additional comments. Another important difference between us is that, while he argues that Carter was a pre-realist thinker, Professor Grossman appears to to accept the standard "classical legal thinker" account of Langdell, which I reject as also a distortion. It is on this basis (and more) that I make sweeping claims about the "bogus" tale about formalism.
The second comment is that there is perhaps a closer overlap between our arguments in my companion article, "Understanding Legal Realism." In this second piece I identify the striking parallels between the historical jurists and the legal realists. Grossman focuses mainly on Carter, whereas I discuss other historical jurists as well. The main difference is that while he continues to privilege the legal realists (portraying Carter as a pre-realist), I infer from these strong parallels that "realism about judging" long predated the realists.
The different inferences we are willing to draw from this evidence might be a reflection of the fact that we work in different disciplines. Professor Grossman is a historian. I explore this historical material for its broader theoretical implications. This difference in perspective aside, I think the underlying historical material we are exposing has much in common.
What it all means is another matter.
From this point, I welcome both writers and others interested to continue this helpful discussion in the comments. [Please note: you no longer need a (free) Google account to comment -- you can also register with Open ID. And then you're able to post using a pseudonym, if that's what you prefer.]
More on Grossman and Tamanaha
There are parallel arguments, but also differences between these authors. To guide readers, I asked Grossman to compare and contrast their works. He accomplishes this principally by laying their arguments about similar issues side-by-side. I invite Tamanaha (and others!) to weigh in. It's best to begin with the papers, noted here and here. Grossman's comparison follows:
The Realist Characteristics of the “Formalist Age”
Tamanaha p. 5: “Judges, lawyers and theorists did not widely think of judging as a mechanical or deductive process. The legal realists were not pioneers of realism about judging. Just about everything the realists said about judging was said decades earlier by individuals who have been identified as important formalist thinkers, as well as by many others in legal circles, including a number of accomplished judges. The US legal culture has swallowed whole a largely fictional tale about views of judging during the so-called ‘formalist age.’”
Grosssman p. 217: “The debates over codification described in this Article demonstrate that jurisprudential strands identified almost exclusively with twentieth-century legal realism were substantially present, if not necessarily dominant, during the late nineteenth century. I thus challenge the long-dominant mode of periodizing the history of American legal thought.”
Antiformalist Views of Late 19th-Century Practitioners
Tamanaha p. 35-38 (from section titled “The View From Practice on Law as Science, and Judging as Deductive Logic”): “[T]he ‘law is a science’ phrase . . . was regularly invoked in the latter part of the nineteenth century, particularly by jurisprudence scholars. Throughout the formalist period, however, legal practitioners were openly skeptical. . . . An academic advocate of seeing law as science acknowledged (in 1895) the gaping divide on this issue . . . . The same gap in views [between academics and practitioners] is evident in connection with the notion that judging is a matter of mechanical or deductive logic.”
Grossman p. 197 (from section titled “Practitioners Jurisprudence”) : “The struggle against codification thus inspired an extraordinary flowering of literature in which attorneys defending the common law . . . thoughtfully examined their role, and that of judges, in the existing legal system. The vision of the common law they articulated in these writings was probably shaped in part by their experience as practitioners. Because litigators tend to focus on the facts of particular cases and on the flexibility of legal rules, they may have been particularly inclined to reject the conceptual formalism embodied by both complete codification and Langdellian classicism . . . .”
Grossman p. 200 (from same section): “At times . . . a controversy arises in the world of legal practice that requires members of the bar systematically to analyze the overall nature of the system within which they work. The codification dispute of the late nineteenth century was such a moment. And the resulting portrait of the common law painted by these lawyer-jurists was resoundingly different from that offered by Christopher Columbus Langdell. Instead, the anticodifiers’ vision of the common law foreshadowed, by several decades, the views of the aggressively anti-Langdellian legal realists.”
Tamanaha p. 74: “This discussion will close with yet another demonstration that leading ‘formalist’ thinkers were not guilty as charged—in this context with holding to the view that precedent must be strictly adhered to no matter what. Adherents of historical jurisprudence [Tamanaha earlier discusses Carter as a ‘historical jurist’] did not typically consider precedents inviolate, for their view was that law was an ongoing social production.”
Grossman p. 184-85: “Carter acknowledged that the doctrine of stare decisis sometimes denied common law judges the flexibility they needed to keep the law in line with changing social norms. . . . Nevertheless, if Carter had adopted a stringent version of stare decisis, he would have undermined his own primary argument for the superiority of the common law over a code—namely, that the former, unlike the latter, was capable of resolving each case according to the dictates of justice. . . . Consequently, Carter whittled away the doctrine into insignificance.”
Implications of Anticodification
There’s an interesting difference between Tamanaha and me here. Tamanaha focuses on the “realism” of the proponents of codification. I explore the realist characteristics of the anticodifiers.
Tamanaha p. 47: “[R]ealistic attitudes about law and judging were by no means the invention of the legal realists. Realistic observations can be found wherever there are critics of law or critics of judging, and the codification debate had both.”
Grossman p. 151-52 (from introduction): “This Article . . . suggest[s] that at least some late-nineteenth century jurists so devalued formal conceptual order, at least when it came into conflict with case-specific justice, that they can hardly be characterized as ‘classical’ at all. The anticodifiers, most notably James Coolidge Carter, their leading intellectual voice, explicitly minimized the role of formality and conceptual order in common law decision making. . . . Indeed, in trumpeting the advantages of the common law, Carter, an almost exact contemporary of Langdell, manifested a rule skepticism that foreshadowed that of the legal realists a half century later.”
Both Tamanaha and I end our articles with critiques of the strict periodization of American legal history (including the portrait of a “formalist age”) by Llewellyn, Gilmore, Horwitz, Kennedy, and other scholars. Our proffered explanations for this phenomenon differ, however; I focus on general scholarly trends, including the rise of the Kuhnian paradigm-shifting model of intellectual history, whereas Tamanaha stresses the political motivations of leftist scholars “denigrat[ing] the vanquished opponents” of the welfare state.
Tamanaha also makes a more extreme overall claim than I do. As evidenced by the title of his piece, he wholly dismisses the standard story of late nineteenth-century formalism, calling it “a bogus tale.” My conclusion (p. 219) is a bit more modest:
I do not claim that James Coolidge Carter was himself the paradigmatic legal thinker of the Gilded Age. I do, however, reject the notion that Langdell’s brand of amoral legal science typified the period, and I also question the complete hegemony of “classicism” broadly defined. More generally, I intend my examination of the anticlassicism of the Gilded Age anticodifiers, and their commonalities with the realists, to promote a healthy wariness of sweeping characterizations of any era in American legal history.
Grossman on Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anti-Codification
At the end of the nineteenth century, the American legal community engaged in an impassioned debate about whether the substantive common law should be codified. The American codifiers, like their civil law counterparts in Europe, sought to make the law largely judge proof by reducing the function of courts to the nondiscretionary application of clearly stated statutory principles and rules. By contrast, codification opponents, led by James Coolidge Carter, fought to preserve the centrality of courts in the American legal system. In light of the influential scholarship portraying Gilded Age law as dominated by Langdellian classical legal thought, one might think that these defenders of the common law valued judges' ability to construct a conceptually ordered legal structure and logically deduce the answers to cases from general principles. In fact, however, the leading codification opponents did not portray common law judging as a formal, mechanical, and amoral process, for these were the very characteristics of codification that they condemned. Instead, these practitioner-jurists praised the common law as a system that, unlike codification, permitted judges to decide each case fairly according to its particular facts. The anticodifiers' portrait of common law decision making thus bore little resemblance to the soulless deductive reasoning often thought to characterize the era. Anticodification literature depicted judging primarily as an exercise in ethics. Moreover, it stressed the indeterminacy of rules and the fact-specificity of justice in a way that anticipated legal realism. The article explores the heretofore unexamined similarity between late nineteenth-century anticodification jurisprudence and twentieth-century legal realist jurisprudence, and, finally, suggests that both reflected a practice-oriented ethos.
Spivack on The Cultural Context of Abortion Law in Early Modern England
Thursday, May 15, 2008
Aubuchon, Rehabilitating Durkheim: Social Solidarity and Rehabilitation in Eastern State Penitentiary, 1829-1850
Durkheim famously postulated that crime tears at the moral fabric of society and that punishment was the means by which society strengthened its solidarity: by condemning the criminal and his criminal act, society reminds itself that there is still great consensus surrounding the values it holds dear, those values which it has enshrined in the criminal law. However, the more a society advanced, he argued, the less intense its punishments would become, and the more its punishments would become based solely on the privations of certain rights. But Durkheim did not speak to purposes of punishment (e.g., rehabilitation, incapacitation, deterrence) except retribution. This study describes the relationship between penal rehabilitation and Durkheim's concept of social solidarity by examining the writings of certain Pennsylvanians who were involved in the creation and maintenance of the Eastern State Penitentiary between 1829 and 1850. Specifically, it seeks to answer two questions: (1) How does rehabilitation affect (strengthen, weaken, or not affect) social solidarity? and (2) What circumstances lead a society to choose rehabilitation over other methods or purposes of punishment? This study argues that penal rehabilitation strengthens social solidarity through its negative and positive expressive statements and results in solidarity-generating and solidarity-enhancing effects. This study also offers a framework for what conditions lead a society to choose rehabilitation, conditions that lead a society to be "optimistic" instead of "pessimistic." It closes with suggestions for future work in this area.