Monday, June 30, 2014

Pound and Frank, Part 3

Frank Sworn in as SEC Chairman Douglas Looks On (LC)
 [This post concludes a series on my book Tocqueville’s Nightmare.  The series starts here.]

The font of the “about-face narrative” is Jerome Frank’s remark, in If Men Were Angels (1943), “The reader of Pound’s earlier writings, indeed, rubs his eyes when he peruses Pound's 1940 volume [Contemporary Juristic Theory] ‘Can this be the same man?’ he asks.”  Rarely does whoever cites the passage acknowledge that Frank’s book, dedicated “to Mr. Justice William O. Douglas who, while Chairman of the Securities and Exchange Commission, superlatively demonstrated that effective administration can be made an important instrument of true democracy,” was anything but a dispassionate review of Pound’s writings on administrative law.  It was, rather, a shot in a running gun battle between the former dean and his New Deal critics.

Jerome Frank’s career and the origins of his jurisprudential quarrel with Roscoe Pound are well known–or easily knowable from the works of Neil Duxbury, Robert Jerome Glennon, N.E.H. Hull, and Laura Kalman.  Even before publishing his sensational Law and the Modern Mind (1930), Yale law professors referred to him as “our sort of practitioner,” one who had “become adept at the art of advocacy without ceasing to be the intellectual adventurer.”  In particular, Frank had both an insider’s understanding of the corporate reorganization practice and a revulsion against the wealth it brought its most forceful practitioners, such as Robert T. Swaine of the Cravath firm.  In this, he was much like Yale’s William O. Douglas, who had experienced the corporate reorganization practice at Cravath.  The two collaborated on law review articles that drew Swaine’s fire.

As Hull in particular relates, in the early 1930s, Frank’s jurisprudential sallies, in which Karl Llewellyn sometimes joined, provoked Pound’s ire.  While still dean of the Harvard Law School, he usually regained his composure and believed his capacious jurisprudence would contain the radical implications of the legal realists’ work.  His equanimity survived the U.S. Supreme Court’s revamping of the Contract and Due Process Clause in the Blaisdell and Nebbia decisions of 1934.  1937 changed all that.  Pound did not join in the fight over the Court-packing plan, announced the day he left San Francisco on an around-the-world trip, but it and the presence of Frank, Douglas and other legal realists in the Roosevelt administration made him fear that the “give-it-up” philosophies of his jurisprudential rivals might prevail.  (That James Landis, his successor as HLS dean, had supported FDR’s plan, was particularly galling.)  When incoming ABA president Arthur T. Vanderbilt offered Pound the chairmanship of the Special Committee on Administrative Law, the former dean hesitated only briefly before accepting.  (The encouragement of Joseph N. Welch, better known for his magnificent role in the Army-McCarthy hearings, proved decisive.)

In the quarrel following the circulation of Pound’s report in the summer of 1938, heat predominated over light.  Pound repeatedly displayed the willful solipsism indistinguishable from dishonesty that had infuriated the HLS faculty in his final years as dean.  He pretended that Vanderbilt did not expect him to draft a statute as well as a statement of first principles, even though any reader of their correspondence could see that Vanderbilt did.  In his report, Pound cited Swaine as an objective commentator on the dangers of “politically constituted administrative bureau” without acknowledging that the Cravath lawyer, Douglas (then serving as SEC chairman), and Frank (an SEC member) had a history.  With Stalin’s show trials just concluded and the House Un-American Committee just beginning its investigations, he professed amazement that anyone would see his characterization of his rivals as Marxists as dangerous Red-baiting when the legal philosopher Morris R. Cohen politely pointed out that it was just that.  After the report came out, he told Frank he did not mean to single out the SEC even though he had just brought an audience of investment bankers to its feet by blasting Frank and his agency.

In his replies, Frank was far from a model of scholarly detachment.  If Pound accused administration of sheltering dangerous official discretion, Frank returned fire with the tu quoque argument that at least the SEC’s staff did not use the rubber hose on its adversaries as did police under the judiciary’s negligent oversight.  Even the SEC’s general counsel thought another, similar riposte to be “hitting below the belt.”  And, as the dedication of If Men Were Angels suggests, Frank could be excessive in heroizing Douglas.  At the ABA meeting that received Pound’s report, Frank declared that “patient justice is a quiet virtue with” Douglas.  (“Of course it is,” I can’t help saying to myself.  “Just ask any of his wives.”)

Of the two, Frank had the better understanding of the stakes.  American lawyers were going to reach an accommodation with the administrative state regardless of what an ex-law dean said or did.  Yet when the ABA’s proposal was introduced in Congress as the Walter-Logan bill in early 1939, the recent history of the antibureaucracy clause threatened to repeat itself, only to devastating effect.  Congress had largely ignored the ABA’s proposals to reform administrative procedure for years, but after FDR’s attempted purge of party rivals in the 1938 primaries, congressional leaders saw it, the Hatch Act and an investigations of the NLRB as ways to reduce the power of “third termites” in the executive departments and administrative agencies.  The Walter-Logan bill need not enact Dicey’s rule of law; it would suffice if it tied up the NLRB, the SEC, and the Wage and Hour Division while courts worked out sensible interpretations of its ambiguous provisions.  (In this sense it was “a ripper bill,” as an early student of the measure once characterized it to me.)  The politicians, prompted by one of Pound’s acolytes, Judge Harold Stephens of the DC Circuit, were also shrewd enough to realize that Pound’s imprimatur could cloak their partisan calculations.  No one “stands out more indisputably above the clamors and passions of the day,” one declaimed.  “When he speaks in terms of our national future, all of us, Republican, Democrat or dissenter, must pay heed.”

If Pound in his “anecdotage” (Jerome Frank) was thus willing to lend his “great name to one side of an important controversy” (Kenneth C. Davis), then he “had it coming to him” (James Landis).  A generation of liberal legal academics proved more than happy to do the honors.  Lost in the sound and fury, though, was the incident’s implications for the federal administrative state.  As G. Edward White has noted, the Walter-Logan bill was, for its time, a moderate measure.  It stopped well-short of Dicey’s ideal.  Even its ambiguous language raising the specter of heightened judicial review was dropped before passage.  Long before the Administrative Procedure Act of 1946 a procedural notion of the rule of law had won broad support.

I’ll conclude this series of posts with the summary of its conclusion I wrote for OUP:
Corrupt Legislation (LC)
Good Administration (LC)
Elihu Vedder's two murals in the Library of Congress, Corrupt Legislation and Good Administration, are arresting depictions of the plight the creators of the American administrative state hoped to escape and the sound and just government they hoped to attain.  But if they expected to avoid Tocqueville's nightmare, they also knew that administrators would not stay good on their own, and they designed the administrative state accordingly.  Much has changed since 1940, including the rise of rulemaking as the most controversial form of administrative action.  Still, the emergence of a procedural rule of law during the heyday administrative adjudication remains relevant.  First, the various methods of holding administrators accountable tried out before 1940 are part of a repertoire that we still turn to today.  Second, this history shows that we can have an administrative state without transgressing fundamental principles of American governance.

Sunday, June 29, 2014

Tsai on Declaring Independence

Robert Tsai, American University Washington College of Law, has a nice op-ed in the Boston Globe inspired by his recently published book, America’s Forgotten Constitutions.  It begins:
On the Fourth of July, Americans celebrate the moment when our forefathers “dissolved the political bonds” between the 13 Colonies and Great Britain—cutting themselves free of a ruler thousands of miles away, and asserting their right to pursue life, liberty, and happiness under a new form of government.
Today, we see this as a watershed in our grand civic narrative: a break in historical time that ended one chapter of the story and began another. But to see their claim to liberty as a unique moment in our history would be an error. In fact, once Americans declared independence, they never really stopped. Since the founding era, dozens of groups have taken the message to heart and asserted the right to self-rule, again and again.

A Sunday Book List: Civil Rights

[This is the second in a series of special book roundups reflecting on Ph.D. reading lists and general exams. The first in the series can be found here.]

Although few books on my exam reading lists were categorized specifically as "civil rights," many on the topic found their way into sections on constitutional law, urban change, 20th century politics, and the American West. Here in this post, I’ve gathered together the books on civil rights that populated my three exam fields--“U.S. History from 1865 to Present,” “Anglo-American Legal History,” and “Race, Gender & Place”--plus a few more that deserve to be on any list but didn't quite make my own.

Courts and Lawyers
Local Studies
The Long Civil Rights Movement and Economic Rights
Civil Rights in the North and West
Civil Rights and Suburbanization
Civil Rights and National Politics

And there are, of course, all the books we’ve highlighted through Sunday Book Roundups and new release posts. You can sift through many of them by checking out those tagged under “civil rights.”

For more thoughts on civil rights historiography take a look at these posts: one by guest blogger Christopher Capozzola here, and a second by guest blogger Susan D. Carle here.

What else is essential on a "Civil Rights Movement" reading list?

Sunday Book Roundup

First up this week is an interview with Doron S. Ben-Atar and Richard D. Brown about their book, Taming Lust: Crimes Against Nature in the Early Republic (University of Pennsylvania Press) on New Books in Law

New Books in History interviews Luke Harlow about his new book, Religion, Race and the Making of Confederate Kentucky: 1830-1880 (Cambridge).

The Guardian has a review of Penny Loaves and Butter Cheap: Britain in 1846 by Stephen Bates (Head of Zeus).
"Eschewing any great ambition to shake the standard accounts of one of the great set pieces of British constitutional history, Bates does a sturdy job of providing an introduction to the key personalities and positions of the day."
The Washington Post has a list of the "Five best books by American presidents", including Theodore Roosevelt's history, The Naval War of 1812

H-Net has posted a review of Hilary McD. Beckles's Britain's Black Debt: Reparations for Caribbean Slavery and Native Genocide (University of West Indies Press).
"This book will appeal to political leaders, legal scholars, academics, and activists engaged in the reparatory justice movement through its insightful observation that the legacies of the colonial paradigm do not lie quiescent in the past, but are galvanized in current discursive and institutional practices of racism, destitution, and exploitation."
H-Net also has a review of Mary Jane Warde's When the Wolf Came: The Civil War and the Indian Territory (University of Arkansas Press), "a complete study of the Civil War in the Indian Territory that should have a place on your bookshelf."

For those looking for some poetry to read this summer, the recent SCOTUS cell phone decision has inspired NPR to make Tape for the Turn of the Year: A Poem (Norton & Co.) by A.R. Ammons "this week's must read."
"Privacy advocates cheered the unanimous ruling. The police weren't so psyched, fearing it would make their work harder. Basically, the Court decided that the Founding Fathers had never anticipated carrying one's whole life in a handheld device, and so that device deserved the same privacy protection the Founders had fought so hard for.
But literature has another answer, an odd one I'll admit, that also involves a handheld device called a book. Some writers protect their privacy by hiding in plain sight."
Salon has an excerpt from America and Britain: Was There Ever a Special Relationship? by Guy Arnold (Oxford University Press).

Saturday, June 28, 2014

Weekend Roundup

  •  And more the Junto: Episode 11 of the Junto's regular podcast is out, and it's on the Declaration of Independence.
  • Thanks to @LHR_editor, we've learned of the Maryland State Archives website, Legacy of Slavery in Maryland, which has searchable databases containing the entries for "over 300,000 individuals including, white and black, slave owners, enslaved and free individuals from primarily the years of 1830 through 1880."
  • Summer housecleaning.  An inquiry from our library director leads us to ask: If you teach at a law school, does your library systematically collect official committee documents, such as reports, minutes, or research), beyond what finds its way into a chronological series in the dean's office?
  • From the Canadian Legal History Blog: A recap of the awards given at the annual meeting of the Osgoode Society for Canadian Legal History. Congratulations to graduate students Peter Price (Queen's University) and Mary Stokes (York University) for taking away honors! 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, June 27, 2014

An Interview with Chris Tomlins

Up on the website of the Queen Mary School of Law is The Study of Legal History and Its Place in Academia–An Interview with Professor Chris Tomlins.  Although it will come as no surprise to the legions of us whom Chris has edited, here’s my favorite bit:
I am a believer in a plurality of perspectives. I want to fight intellectually to obtain a hearing for the way I think things can be done and can be done productively. I don’t want to fight to exclude other ways of doing things. One is constantly influenced by other people’s work and one wants to see that work flourish, no matter the perspective it might be advancing.

The Civil Rights Litigation Clearinghouse

A hearty welcome to the Blogosphere to the Civil Rights Litigation Clearinghouse, directed by Michigan Law professor Margo Schlanger.  Originating in Professor Schlanger's research files, the Clearinghouse is, as of today, "posting at least partial information on 5,947 cases, including a litigation summary for each as well as: 42,541 dockets, complaints, filings, opinions, settlements, court orders, and other documents; and citations and links to an additional 1,199 opinions. Some of these cases are historical, but many more are current; the site is strongest for cases from the 1990s to present."  For example, the collection of cases on conditions in jails and prisons "span the time period from 1956 to the present."  (Information on the categories collected by the Clearinghouse is here.)

Professor Schlanger's Clearinghouse and my Georgetown Law colleague Laura Donohue's State Secrets Archives are models of how legal academics can make their research available to other scholars.

Hat tip:

Pound and Frank, Part 2

Roscoe Pound, circa 1916
[This post continues a series on my book Tocqueville’s Nightmare.  The series starts here.]

The centerpiece of Roscoe Pound’s report for the ABA’s Special Committee on Administrative Law was the phrase “administrative absolutism.”  Pound defined it as “a highly centralized administration set up under complete control of the executive for the time being, relieved of judicial review and making its own regime.”  The term invoked a set piece in the lore of the common law, the attempt by Stuart kings to fasten absolute monarchy upon England and the successful defense of the ancient constitution by Sir Edward Coke.  It “at once conjures up visions of Tudor and Stuart excess and calls into play prejudices born of emotion and tradition,” a law professor observed.  As Pound boasted, it also infuriated New Dealers “very much as a red rag does a bull,” because it cast them as latter-day subverters of a cherished legal order.

To this polemical intent, Pound added a maddening refusal to say publicly whether he actually endorsed the ABA’s bill, later introduced into Congress as the Walter-Logan bill.  To an eminent tax lawyer, he protested that his committee “had nothing to with that bill” and ventured that the Board of Governors arranged for it to be after his report in ABA Reports.  “I certainly should not have thought of recommending the bill in the form in which it was appended to the report.”  Yet when Jerome Frank demanded that Pound say whether he supported the bill, the former dean obfuscated.  “Probably I do not need to repeat,” Pound declared in an open letter to his successor as chair of the ABA committee, “but out of abundance of caution, I am saying once more as emphatically as I know how that my statement that I was not the author of the bar association bill did not mean, and in my judgment cannot be taken to mean, that I am out of accord with the Committee or the Association on the subject.”

When Pound felt free to say what he actually thought should be done to reform administrative law and procedure, he stopped well short of Dicey’s insistence on de novo review by “the ordinary courts of the land.”  As he did in his St. Paul address of 1906, he opposed the granting of injunctions against administrators, because it would result in “a paralysis of administration.”  De novo review, whether in an equitable action or a statutory appeal, meant “you have to take the testimony all over again, and do over again what has already been done administratively.”  In his St. Paul address, Pound identified appellate courts’ excessive granting of new trials as one of “the causes of popular dissatisfaction with the administrative justice” in the United States.  In 1938 he objected to the rehearing of administrative disputes.  “There comes a time when we should stop reviewing facts,” Pound told a congressional committee.  “So much delay is involved by multiplied appeals that, if we are assured there really has been a determination of the facts,” we did not need to substitute “the judicial tribunal for the administrative tribunal.”

Further, Pound thought that review boards created within an agency, as proposed in the ABA bill, could correct “obvious abuses now existing perhaps as well as any plan which may be devised.”  When a member of his committee objected that the reviewing officials would “be influenced by, if not controlled by, the opinion of the Executive heads of the Department or Commission appointing them,” Pound was not dissuaded.  The risk of bias was offset by the likelihood that the review boards’ findings would give agency chiefs and reviewing courts a better view of the basis for the disputed orders than did the “heterogeneous combination of reports and papers” that passed as a record in many administrative proceedings.

The change Pound most unequivocally sought was quite modest and in line with his longstanding approach to law reform.  In his St. Paul address, he claimed that the procedural shortcomings of the common-law courts had driven Americans to seek “justice without law.”  In 1938 he thought that procedure also explained the rise of administrative absolutism.  Too often, he maintained, those who would overturn an administrator's ruling had to negotiate a bewildering maze of common law writs, costly injunction suits, and statutory appeals.  The chances of prevailing were so uncertain, thanks to the “technicality, confusion, delay and expense in review procedure,” that clients looked not to the law but “political influence” for relief.  Adopt simple statutory appeals from the agencies, Pound argued, and lawyers could go to the courts.  The courts would insist on procedural fair play within the agency.  Procedural fair play within the agency would make frequent judicial review unnecessary.

Thus, even Pound fell in line with the procedural notion of the rule of law.  Although this discovery dispatches the “about-face” narrative, it raises a new question.  If Pound and the New Dealers agreed on a procedural notion of the rule of law, what were they fighting about?  The answer lies in the politics of administrative law in the late 1930s.

[The series concludes here.]

New Release: Williams, Jr., on "Prudence Crandall's Legacy"

New from Wesleyan University Press: Prudence Crandall’s Legacy: The Fight for Equality in the 1830s, Dred Scott, and Brown v. Board of Education (June 2014), by Donald E. Williams, Jr. (president pro tempore of the Connecticut State Senate). The publisher explains:
Image Credit:
Prudence Crandall was a schoolteacher who fought to integrate her school in Canterbury, Connecticut, and educate black women in the early nineteenth century. When Crandall accepted a black woman as a student, she unleashed a storm of controversy that catapulted her to national notoriety, and drew the attention of the most significant pro- and anti-slavery activists of the day. The Connecticut state legislature passed its infamous Black Law in an attempt to close down her school. Arrested and jailed, Crandall’s legal legacy had a lasting impact—Crandall v. State was the first full-throated civil rights case in U.S. history. The arguments by attorneys in Crandall played a role in two of the most fateful Supreme Court decisions, Dred Scott v. Sandford, and the landmark case of Brown v. Board of Education. In Prudence Crandall’s Legacy, author and lawyer Donald E. Williams Jr. marshals a wealth of detail concerning the life and work of Prudence Crandall, her unique role in the fight for civil rights, and her influence on legal arguments for equality in America.
More information is available here.

Thursday, June 26, 2014

Tsai on War Constitutionalism

Robert L. Tsai, American University Washington College of Law, has posted Three Arguments About War, which appears in Constitutional Commentary 30 (2014) .  Here is the abstract:
The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual equality to First Amendment freedoms.

This article starts to fill gaps in our understanding of America’s war saturated legal culture. It does so by defining the practice of war constitutionalism, drawing on rich examples from our past, identifying some of the most frequently occurring forms, and evaluating the rule of law concerns posed by each mode of war-dependent argumentation. Three major arguments are scrutinized systematically: the war justification, which relies on a claim about a live conflict; the war legacy, a historical-ethical argument drawing legal lessons from a nation’s war experience; and the war metaphor, which figuratively describes a public policy issue in war-like terminology.

Legal History on the Web: A Plea for Help

[We have the following "plea for help from the legal history community," from Edward J. Balleisen, Duke University, about his invaluable website.]

Some of you may have had occasion to make use of “Legal History on the Web,” a gateway to online resources related to legal history.  Several years ago, Mitch Fraas (then a Duke History doctoral student, now Curator of Digital Research Services and Co-Director of the Digital Humanities Forum at the University of Pennsylvania) and I put this website together, which includes annotated links to
Since the initial construction of the site, the links and descriptions have predictably crept more and more into the mists of the online past.  Some content has migrated or become unavailable; still extant sites have morphed in new directions.  This summer, Duke History doctoral student Ashton Merck is taking on the task of bringing the site up to date.

If you are responsible for (or even just know about) sites/webpages that require updates or that you think merit inclusion on “Legal History on the Web,” please send along the relevant information to: Ashton Merck at  It would be helpful if you could also send along suggested text for the annotation to the link, which needs to be short – just a few lines that convey what the site has to offer (see current annotations for examples). 

We especially would like current links to LEGAL HISTORY SYLLABI, as these are especially prone to disappear with time. 

Thanks in advance for your help in improving a community resource for scholars/students/aficionados of legal history.

Ed Balleisen, Duke University

New Release: Bednarski on "The Life and Times of Margarida de Portu, a Fourteenth-Century Accused Poisoner"

New from the University of Toronto Press: A Poisoned Past: The Life and Times of Margarida de Portu, a Fourteenth-Century Accused Poisoner (May 2014), by Steven Bednarski (St. Jerome's University, University of Waterloo). The Press explains:

This is the story of Margarida de Portu, a fourteenth-century French medieval woman accused of poisoning her husband to death. As Bednarski points out, the story is important not so much for what it tells us about Margarida but for how it illuminates a past world. Through the depositions and accusations made in court, the reader learns much about medieval women, female agency, kin networks, solidarity, sex, sickness, medicine, and law.

Unlike most histories, this book does not remove the author from the analysis. Rather, it lays bare the working methods of the historian. Throughout his tale, Bednarski skillfully weaves a second narrative about how historians "do" history, highlighting the rewards and pitfalls of working with primary sources.

The book opens with a chapter on microhistory as a genre and explains its strengths, weaknesses, and inherent risks. Next is a narrative of Margarida's criminal trial, followed by chapters on the civil suits and appeal and Margarida's eventual fate. The book features a rough copy of a court notary, a notorial act, and a sample of a criminal inquest record in the original Latin. A timeline of Margarida's life, list of characters, and two family trees provide useful information on key people in the story. A map of late medieval Manosque is also provided.
Reviewers say:
"Nothing better stirs the hearts and minds of modern students than a lively small story abrim with the strange stuff of life long gone. Steven Bednarski knows that well; he employs microhistory's wiles to catch his readers' imaginations and sharpen their scholarly wits. This is a charming way to teach good historical method." -- Thomas V. Cohen
"Steven Bednarski has crafted an exceptionally thoughtful volume. Blending vibrant storytelling with methodological rigor, he guides readers through the personal experience of historical analysis in all of its various demands, occasional frustrations, and exhilarating discoveries. He simultaneously brings to life the detailed and intricate world of a late-fourteenth-century woman, and prompts vital questions about the very nature and limit of the historical enterprise." -- Jennifer Kolpacoff Deane
More information is available here.

Pound and Frank, Part 1

[This post continues my guided tour through my recently published book, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940.  The series starts here.]

I’ll begin this post with the summary I prepared for my publisher of the last chapter of Tocqueville’s Nightmare, “Pound and Frank.”  (You’ll recall that the chapter follows one on the battle over administrative law and procedure in New York in 1938.)  Then I’ll go back to the historical controversy that prompted me to write about Roscoe Pound in the first place.  In later posts, I’ll explain how the chapter completes the arc of the book.

Here’s that summary:
Events in New York proved to be a dress rehearsal for the Walter-Logan bill, introduced in Congress in 1939 and vetoed by FDR late the following year.  The American Bar Association had developed the bill to meet the concerns of lawyers who practiced before the federal government, but it attracted the support of others for diverse reasons.  Roscoe Pound, forced from Harvard Law School's deanship in 1936, accused Jerome Frank, James Landis, and other legal realists of advocating "administrative absolutism."  In fact, Pound and his opponents agreed more about the administrative state than they let on; leadership of legal education was the real gravamen.  In Congress, a conservative coalition of Democrats and Republicans seized upon the bill to punish the National Labor Relations Board, the Securities and Exchange Commission at the behest of corporate contributors and from their own desire to harry the New Deal's “janizaries.”
“Pound and Frank” originated as a series of posts on this blog that grew into a conference paper.  The paper commenced: “Many legal scholars find themselves face to face with Roscoe Pound at some point in their careers.  For historians of law and politics in the twentieth-century United States, an encounter is inescapable, because of Pound’s report for the American Bar Association’s Special Committee on Administrative Law.  Published in 1938, it was, apparently, the greatest apostasy by any lawyer in the American reform tradition.” 

I then quote from a marvelous statement of the prevailing view of Pound from Michael Willrich’s first book, City of Courts: Socializing Justice in Progressive Era Chicago (Cambridge University Press, 2003), 315:
The familiar storyline is a narrative of betrayal, of one's own life's work and the people it inspired:  Brilliant young iconoclast, the best legal mind of his progressive generation, stuns the legal world in 1906 by announcing–in a speech to the ossified American Bar Association, no less–that the individualistic justice of the common law has proved unsuited to urban-industrial society, creating widespread “popular dissatisfaction with the administration of justice.”  In the 1910s he launches a broad movement for sociological jurisprudence that transforms legal education, helps to elevate the weight of social interests in judicial decision making, and lays the intellectual foundation for legal realism and the administrative state.  But just when those years of collective work were finally bearing fruit, in the New Deal and the Supreme Court’s “Constitutional Revolution of 1937,” the former progressive makes a stunning reversal and denounces the whole enterprise–his whole enterprise–as a dangerously relativistic, absolutist, un-American nightmare.  The denouement of this narrative echoes the legal realists’ own professed shock at Pound's so-called about-face.  “The reader of Pound's earlier writings,” wrote Judge Jerome Frank, “rubs his eyes” and wonders, “Can this be the same man?”
The “narrative of Pound's ‘about-face’” (to borrow Willrich's phrase) is a commonplace among legal historians.  Morton Horwitz, for example, maintained that in 1924 Pound “spoke enthusiastically" of the emergence of administration.  “Administrative regulation was not bureaucratic or standardized justice but a superior form of justice in the individual case.  What a far cry from Pound's later invocation of the judicial model as the only legitimate expression of the rule of law!”  David Wigdor wrote that "in the early years of his academic career," Pound “had advocated a large role for administrative agencies and had criticized legal traditionalists for treating them with hostility.”  By the end of the 1930s, however, “his attitudes had hardened, and he exclaimed that administrative law ‘will involve the common-law judges in a conflict analogous to that which they waged with the Stuart kings in the seventeenth century.’”  Neil Duxbury argued that Pound, "once keen for the expansion of administrative powers," was by the end of the 1930s “rallying against what he termed the recrudescence of administrative absolutism.”

Despite the dominance of the about-face narrative, historians have occasionally noted that the early Pound was a more conservative legal thinker than one would infer from Horwitz, Wigdor, Duxbury et al.  They saw continuities that made his later views appear not so much a volte-face as a shifting of weight from one foot to another.  Willrich saw that Pound called for the reform of civil procedure “to save the courts and the common law from the jurisdictional imperialism of the administrative state.”  Lewis Grossman also saw continuity, this time in Pound’s jurisprudence.  “It is often falsely assumed that Pound embraced elements of formalism only at a later stage of his career, when he was crankily resisting the Realists’ more daring modernism,” Grossman wrote in an unpublished paper.  “As Pound’s statements quoted here demonstrate, however, he started emphasizing the need for rule and form in his earliest writings.”  Although John Fabian Witt wrote that the early Pound approved of “administrative commissions on the Western European model,” Witt also saw that “there had always been a conservative streak running through Pound’s thinking on administration and the common law,” a fear that the state might extinguish “the individual” altogether.  Finally, and, most recently, Joseph Postell has squarely attacked the notion Pound ever enthusiastically championed the administrative state in an article published in The Review of Politics in 2012.

“Pound and Frank” provides a compressed survey of Pound’s early writings, manuscript and published, which show that he considered commission government at best a necessary evil.  For a somewhat fuller view, you may consult my blog posts from 2008.  To this revision of Pound’s early view of the administrative state, Tocqueville’s Nightmare adds a revision of the dean’s later view.  Just as the about-face narrative exaggerates Pound’s enthusiasm for administrative before the alleged volte-face, so does it exaggerate Pound’s hostility after the reversal was supposed to have occurred.  Pound squarely rejected Dicey’s notion of the rule of law, which New York’s trial lawyers and anti-New Deal politicians had tried to write into their state constitution.  He did not even insist on a less extreme position that Learned Hand and other liberal Republicans preferred–review of an agency’s orders by an independent “administrative court.”  Notwithstanding his bluster about “administrative absolutism”– a phrase I expect Jonathan Turley to exhume any day now–even Pound joined an emerging consensus that court-like administrative procedures would let Americans have bureaucracy and their freedom too.

[The series continues here.]

Wednesday, June 25, 2014

LSA Law & History Collaborative Research Network

Via H-Law, we have the following exciting announcement:
Greetings from the Law & History Collaborative Research Network, part of the Law & Society Association (

We have just come from the Law and Society Association annual meeting in Minneapolis, where we were thrilled with the success of our first year as a Collaborative Research Network.  Creating a CRN, we think, significantly improved the discussion of legal history at LSA.  We were able to better coordinate and publicize legal history panels and create new opportunities to interact scholars from other fields.  But we hope that this is just the beginning.  With more participation, we believe next year will be even better, and we invite you to join us.

What is the Law & History CRN?
The Law & History CRN brings together scholars interested in legal history, both American and non-American, of any time period from contemporary to ancient.  We welcome a broad array of scholarly interests and methodological approaches. The Law and Society Movement has long welcomed legal historians and encouraged legal history, and our CRN intends to further foster this relationship. We seek to encourage presentation of historical legal work at the Law and Society’s Association’s annual meeting, and to create opportunities for interdisciplinary and cross-generational conversations.

What does it mean to join the Law & History CRN?
It means you will be welcomed into a network of scholars interested in participating in the historical examination of the law at the Law and Society Association annual meeting and beyond.  In practical terms, joining the CRN means joining a listserv (administered via Google Groups) that we use to alert members of the LSA’s call for papers, organize panels, and communicate about panels of interest for scholars interested in law and history at LSA.  We will also on rare occasions send out other announcements relevant to legal history.

The next Law & Society Association meeting will be held May 28-31 in Seattle, Washington. The call for papers should be out soon, and the deadline for submitting papers and panels will be in the fall of 2014, so it's not to early to start thinking about proposals.

What are the advantages of joining the Law & History CRN?
We see our main contribution as encouraging connections among a broad range of scholars and drawing attention to the historical legal research presented at the annual conference. More specifically, we’re interested in putting together and publicizing legal history panels at the LSA annual meeting. If you have a paper you’d like to present, you can use the listserv to find other potential panelists; we can also use our access to the LSA website to help connect you with other relevant paper submissions. And if you’re planning a panel that seems relevant to legal historians, please let us know so that we can list it as a CRN panel (if you’re interested) and publicize it among our members.  Further, we can make connections with other CRNs, further increasing the potential audience for each panel. This year (our first year as a CRN) we had five panels designated as CRN panels, two of which were co-listed with other CRNs. Finally, the administrative advantage of affiliating your paper/panel with a CRN is that the CRN can request that up to four of CRN-affiliated panels be scheduled at different times to avoid conflicts.

Do I need to be a member of LSA to join the Law & History CRN?
No. We strongly encourage everyone who is presenting at LSA to also become a member, but all we’re asking you to do right now is sign up for the email announcements.

I’m not a legal historian/I’m not a historian – can I join?
Absolutely. LSA is about drawing connections across fields and methods. If you’re interested in legal history, or you’re using historical materials, or you’re looking to the past, and you’d like to present on a panel with other people interested in historical sources/methods/questions, we’d love to have you.

I’m already a member of the American Society for Legal History – why should I also attend LSA?
We are all enthusiastic ASLH participants, but the LSA annual meeting differs in a few important ways. First, it’s a large interdisciplinary meeting with substantial representation from sociology, political science, anthropology, economics, and other fields. It can thus be a great place to make connections, put together panels across disciplinary lines, and participate in interdisciplinary conversations. Second, since LSA traditionally accepts all paper and panel submissions, it provides a welcoming place for all scholars, especially graduate students who may find it difficult to get on the program at smaller conferences.  And third, we want to exchange ideas with scholars interested in legal history more than once a year.

How do I join?
Send an email with your contact information to any or all of us and we will make sure you are included.


Joanna Grisinger, Center for Legal Studies, Northwestern University

Kimberly Welch, Department of History, University of West Virginia

Logan Sawyer, University of Georgia Law School

Kathryn Schumaker, Institute for the American Constitutional Heritage, University of Oklahoma

Robilant on Property Theory in the US and Europe

Anna di Robilant, Boston University School of Law, has posted Property: A Bundle of Sticks or a Tree? which appeared in the Vanderbilt Law Review 66 (2013): 869.  Here is the abstract:    
In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical liberal theorists of property, and the bundle of rights model, invented in the United States by Hohfeld and the Realists. This article retrieves an alternative concept of property, the tree concept of property. The tree concept of property was developed by European property scholars between 1900 and the 1950s, as part of Europe’s own “realist” moment. It envisions property as a tree: the trunk representing the owner’s right to govern the use of a resource, and the branches representing the many resource-specific property regimes present in modern legal systems (family property, agricultural property, affordable housing property, intellectual property etc.). This article argues that the tree concept of property provides a descriptively more accurate and normatively richer account of property than the two currently dominant models.

New Release: Langum on "The Litigious Life of Mary Bennett Love," "California's First Liberated Lady"

New from Texas Tech University Press: Quite Contrary: The Litigious Life of Mary Bennett Love (2014), by David J. Langum, Sr. (Cumberland School of Law). The Press explains:

Mary Bennett Love had a physicality exceeded only by her personality. Six feet tall and over 300 pounds, Love was anything but shackled by the mores of her day. In the 1840s, she moved west from Arkansas via the Oregon Trail. A few years later, she separated from her husband and took her six minor children to Santa Clara, where she acquired a Mexican land grant by forging an adult son’s signature.

Though illiterate, she knew the law thoroughly and used it to her advantage. No sooner had the American military invaded California than Mary squatted on public lands and engaged in dozens of lawsuits to advance her interests. Her love life was no less tumultuous. Harry Love, her second husband and slayer of Mexican bandit Joaquin Murrieta, died at her bodyguard’s hands.

Quite Contrary is the first book to focus on Mary Bennett Love. Aside from making for an entertaining story, she is representative of the relationship people had with the law in pre-Gold Rush California. Furthermore, her economic success demonstrates the often self-imposed notions of true womanhood—which Mary ignored, paving the way for future female entrepreneurs.
A few blurbs:
"Early California’s socio-legal history has been told in general terms, but here we have an individual story of Mary Bennett Love, a working class nineteenth-century woman, battling to protect her property. This is good stuff, and readers interested in early California or frontier history, women’s history, or legal history deserve to read about Mary Bennett Love’s amazing life." —Mark R. Ellis

"David Langum has written a fascinating account of Mary Bennett Love, a woman large in both size and ambition. Her schemes and ambitions, her lawsuits and her land-hunger, are played out against the backdrop of old California, as it made the transition from a small Mexican outpost to a booming American state. This well-written and deeply researched book is a genuine contribution to Western history." --Lawrence Friedman
More information is available here.

Tuesday, June 24, 2014

New Release: Clément on "Sex Discrimination and British Columbia's Human Rights State, 1953-84"

Via the Canadian Legal History Blog, we have word of a new release from the University of British Columbia Press (co-published with the Osgoode Society): Equality Deferred: Sex Discrimination and British Columbia's Human Rights State, 1953-84 (May 2014), by Dominique Clément (University of Alberta). Here's a description from the Press:

In Equality Deferred, Dominique Clément traces the history of sex discrimination in Canadian law and the origins of human rights legislation, demonstrating how governments inhibit the application of their own laws, and how it falls to social movements to create, promote, and enforce these laws.

Focusing on British Columbia -- the first jurisdiction to prohibit discrimination on the basis of sex -- Clément documents a variety of absurd, almost unbelievable, acts of discrimination. The province was at the forefront of the women's movement, which produced the country's first rape crisis centres, first feminist newspaper, and first battered women's shelters. And yet nowhere else in the country was human rights law more contested. For an entire generation, the province's two dominant political parties fought to impose their respective vision of the human rights state. This history of human rights law, based on previously undisclosed records of British Columbia's human rights commission, begins with the province’s first equal pay legislation in 1953 and ends with the collapse of the country's most progressive human rights legal regime in 1984.

This book is not only a testament to the revolutionary impact of human rights on Canadian law but also a reminder that it takes more than laws to effect transformative social change. 
A few blurbs:
"Curious about the origins of our human rights protections? This marvellous book presents fascinating insights. It romps through stories of the courageous individuals who claimed those human rights. It profiles the discriminators in all their egregious glory. And it probes the underbelly of the Canadian state that mediated between the two. Dominique Clément is by turns brilliant, challenging, and inspiring. Read this and ponder our history ... and our future." -- Constance Backhouse 
"Dominique Clément's book is timely. The purpose and value of human rights are being challenged in the press and even in parliament. If we are to avoid an extended era of human rights retrenchment, it is important to learn what has been accomplished and how human rights codes and commissions have affected our lives." -- James W. St. G. Walker
More information is available here.