Russell Sandberg, Cardiff University, has published A Historical Introduction to English Law: Genesis of the Common Law (Vambridge University Press):
Russell Sandberg, Cardiff University, has published A Historical Introduction to English Law: Genesis of the Common Law (Vambridge University Press):
“Those Things Which Are Written in Romance: Language and Law Teaching in Thirteenth-Century England,” an article by Thomas J. McSweeney, William & Mary Law, has been published, gated in American Journal of Legal History 62 (December 2022): 285-304:
Around 1250, a shift began to occur in texts written on the common law. Where earlier texts on the practices of the king’s courts had mostly been written in Latin, a number of the new texts written after 1250 were written in French. The shift to French initially occurred mostly in the context of texts on counting and pleading, the oral parts of court procedure, which were conducted in French, and one author of the 1280s even suggested that by his time a norm had developed that texts on counting and pleading should be written in French. This article examines the evidence for such a norm and the reasons for the shift to French in the later thirteenth century. It uses texts on counting and pleading to examine how both French and Latin were used in the education of pleaders and concludes that, although a norm probably did exist that the oral parts of procedure should be taught in French, Latin was still being used for a number of different purposes in the education of pleaders.
Thomas H. Lee, Fordham University School of Law, on the The Judicial Power-Admiralty Clause, which is forthcoming in the Heritage Guide to the Constitution, 3d ed.:
This Essay explains the text and original meaning of “all Cases of admiralty and maritime jurisdiction” in Article III of the U.S. Constitution, its background history, its implementation by the First Congress, key judicial precedents interpreting it, and the open question of what Erie doctrine means for the centuries-old historical practice of federal courts applying the maritime law of nations in “all Cases of admiralty and maritime jurisdiction.”--Dan Ernst
Article III does not define what constitute “all Cases of admiralty and maritime jurisdiction.” Understanding this Article III judicial power as a matter of text and original meaning thus requires examination of relevant English, colonial, and Articles of Confederation history; the Constitutional Convention and state ratification conventions; and subsequent judicial precedents. A backwater today, the admiralty and maritime jurisdiction was among the most vital of the nine categories of Article III judicial power in the early United States because of: (1) the need for uniform rules and adjudication of maritime cases for a new coastal nation dependent on maritime trade among themselves and with Europe and its colonies; (2) the negative experience of divergent state admiralty courts during the War of Independence, which created friction among the states and with foreign states and led to the establishment of the first national court of appeals; and (3) the criticality of port customs duties for early federal government revenues.
Guido Calabresi is famous for his transformative scholarship on torts, his leadership as dean of Yale Law School, and his tenure on the Second Circuit Court of Appeals. But above and beyond those accolades, Guido defines himself as an outsider, “a Catholic Jewish Italian,” (OI, v.1, 104) “an immigrant, and a refugee” (OI, v1, 1). In this post, I want to suggest that the religious dimension of Guido’s outsider experience is reflected in his famous majority opinion in Galloway v. Town of Greece. Normally I would be hesitant to read the personal biography so directly into judicial philosophy, but Outside In encourages it. Readers can’t help but see the conversation between volume one, a narrative oral history of Guido’s childhood through early adulthood, and volume two, a more thematic look at his work as dean and judge. In my own reading, I was struck by how much of Guido’s youth was shaped by the tension between religious inclusion and exclusion, and how Guido connects that experience to his “egalitarian believer’s First Amendment” (TOC).
Guido’s religious heritage made him both sensitive to being an outsider and appreciative of religious pluralism. Both of his parents had roots in the small community of Jews in Italy (his mother converted to Catholicism), marking his family as outsiders even before the rise of fascism drove them across the Atlantic. And as he narrates in volume one of Outside In, the starkest experiences of being an outsider came in his family’s transition to life in the United States.
The social terrain of mid-century New Haven was defined in large part by religious and ethnic differences. An historically Congregationalist town, the New Haven that greeted the Calabresi family was also home to Catholic and Jewish communities where they might have found fellowship. The Calabresis were outsiders even here, however. As migrants from wealthy northern Italian Jewish extraction, they felt little commonality with the southern Italian-American community in Wooster Square, or the Ashkenazim at a local summer camp (OI, v1, Ch. 5). In Guido’s words, “We really did not belong to anyone” (OI, v.1, 101).
|Dwight Hall YMCA building at Yale (credit)|
New Haven was also Guido’s introduction to the American civic religion – a kind of non-denominational Christian public faith present in his Boy Scout Troop and public schooling (OI, v.1, 102-103). Although he was sensitive to the pressure on Italian Americans to assimilate, he also appreciated the welcoming Protestant community that embraced the young brothers. One anecdote is particularly illuminating – after trying out a Jewish summer camp and a Catholic school, someone suggested to Guido’s parents that they send the boys to a YMCA camp. “The idea of some association that would define itself as ‘Christian’ sounded anti-Semitic,” at first, but they were informed that the YMCA was an inclusive place, “open to everybody” (OI, v.1, 101-102). Guido remembers it fondly.
With the benefit of hindsight I was struck by the parallels between this story and Guido’s opinion in Town of Greece. The case arose in a suburb of Rochester, New York, where town officials invited local clergy to open monthly town meetings with a prayer. Over eight years, every prayer was offered by a Christian leader, with only four exceptions. According to the record on appeal, two-thirds of the prayers had overtly Christian theological references. Two residents objected that the use of Christian prayers in city government violated the Establishment Clause by giving Christianity preferential treatment through “sectarian” religious practice. Town officials responded that they had only invited Christian clergy because there were no places of worship for other faiths within the town boundaries. The Supreme Court’s Establishment Clause precedents turned the Second Circuit’s attention toward the content of the prayers – whether they promoted particular Christian denominations, or instead reflected a non-denominational message.
|Town Hall, Town of Greece (credit)|
But Guido saw things differently. The important issue was not the content of any particular legislative prayer, but whether the practice “conveyed the view that the town favored or disfavored certain religious beliefs.” (Galloway v. Town of Greece, 681 F.3d 20, 29 (2d Cir. 2012). By selecting (essentially) only Christian prayers, town officials had “affiliated the town with a single creed.” (at 22). The opinion reasoned that government cannot define the religious character of a civic institution to the exclusion of other faiths. Unlike the YMCA of his childhood, whose Christian identity informed its inclusivity, the Town of Greece risked an exclusionary religious affiliation.
Reflecting on the opinion in Outside In, Guido explains: “My compromise was one that said, ‘You can have local establishments, locally defined identities, so long as you do it in a way that also states that your place is open to everybody.’” (OI, v.2, 330). The problem from Guido’s point of view was not religion in public life, but religious exclusivity. If the town opened up the selection process in an inclusive way, “the town can also have plenty of Christian prayer leaders” without any problem. (OI, v.2, 330). His view of the issue celebrates free exercise as a progressive value while emphasizing that religious equality cannot thrive where some faiths are excluded.
The Supreme Court reversed the Second Circuit, reasoning that Town of Greece’s prayer practice was constitutional because it did not coerce non-Christians. Justice Kennedy’s majority opinion asserted that attendees at the meeting would presume that an opening prayer was meant to solemnize the proceedings, not to define the polity as Christian. This kind of coercion analysis has become a lodestar of contemporary Establishment Clause cases, including last term’s Kennedy v. Bremerton School District, which found no coercion where a football coach – who had previously prayed with and given religious speeches to his players – invited both teams to pray with him on the fifty-yard line after games ended.
In Guido’s alternative, “coercion is of course forbidden, but it is not enough” (OI, v.2, 331). He would draw the Establishment Clause line beyond coercion, to prohibit religiously-motivated exclusion. And while this principle derives from caselaw, it also reflects his childhood experience. He explains that “growing up in New Haven, I never felt coerced, but nevertheless, I did not like it when we recited the Lord’s Prayer, Protestant version, in all these local elementary schools, which were loaded with Irish Catholic kids” (OI, v.2, 331). In other words, his interpretation of the Establishment Clause protects against more than active inducement to a particular religious practice. The appellate decision in Town of Greece, and the foundational school prayer decisions that undergirded it, drew the line instead at government imbuing public institutions or spaces with religious identities that would leave outsiders feeling excluded.
-- Kate Redburn
Michael Littlewood, University of Auckland Faculty of Law, has posted three papers on nineteenth-century New Zealand. The first is a short paper, Public Nuisance in Aotearoa New Zealand in 1849. It “examines the Constabulary Force Ordinance enacted by the legislature of the New Zealand Province of New Munster in 1849" for its revelations into the everyday life of the time. A second paper, Nothing New under the Sun: Tax Avoidance in Otago in 1856, reports on a tax on river crossings. The third Sir George Grey’s Machiavellian Constitutional and Fiscal Reforms in Aotearoa New Zealand, 1845–1876:
This paper examines the evolution of the New Zealand tax system from 1845 to 1876. The key to this period is the New Zealand Constitution Act 1852 (UK), which was devised by the Governor, Sir George Grey, and which divided the Colony into six provinces. There were hardly any roads, so allowing isolated settler communities a degree of autonomy made obvious sense. Grey’s more sinister aim, however, was to retain control of the purse-strings and thus dictate policy generally. In this he was markedly successful: the Act gave the Governor tight control over the Colony’s two main sources of revenue (land sales and customs duties) and also over the military (which he used to confiscate Maori land). The provinces were free to build and operate roads, wharves, railways, schools, hospitals and so on — but they had to either persuade the Governor to supply funding or pay for them themselves.
Sir George Grey (wiki)
Twenty years later the difficulties of communication had been largely solved and the Colonial Government, spectacularly insolvent prior to Grey’s arrival, was financially secure. The provinces had served their purpose and in 1876 they were abolished. Since then, New Zealand has had one of the most centralised systems of government and taxation in the world, and the Maori people are still suffering from the catastrophic loss of their land.
The History of the Technology and Construction Court on Its 150th Anniversary: Rewriting the Rules, edited by Peter Coulson and David Sawtell is now out from Bloomsbury/Hart:
The contributors are current and retired senior judges, renowned academics and leading construction and technology lawyers. The book draws on their different perspectives and approaches to showcase different aspects of the Official Referees and the TCC from its origins in the Judicature Act 1873 through to its modern-day role as an international leader in dispute resolution through litigation, arbitration and adjudication.
Different essays consider the role of the TCC in procedural reform and the digital transformation of dispute resolution, building safety, and how it has impacted on doctrinal English law.
The book also explores the lives and impact of notable Official Referees and TCC judges from the senior judiciary's perspective, with contributions by Lord Dyson on the transition from the Official Referees to the TCC, Sir Rupert Jackson on the Housing Grants, Construction and Regeneration Act 1996, Dame Finola O'Farrell on the TCC today, Sir Peter Coulson on Sir Brett Cloutman QC (a Senior Referee who was awarded a Victoria Cross) and Her Honour Frances Kirkham on the court's role in the regions.
The creation of a specialist dispute resolution forum for complicated engineering, construction and technological disputes is a foundational milestone in the legal history of construction law in England and Wales. This collection offers a unique insight from the judiciary, practising lawyers and academics into the significance and development of the court.
I am very sorry to report that Craig Evan Klafter died yesterday. I knew him best and respected him greatly from his lengthy and able service as Treasurer of the American Society for Legal History.
Craig's B.A. and M.A. were from the University of Chicago; his Ph.D. was from the University of Oxford. He began his academic career as a lecturer at the University of Manchester and then the University of Southampton. Thereafter he moved to Boston University, where he held an appointment on the law faculty and served as Assistant to the President. Other administrative jobs in the academe followed, at the University of Northern Iowa, the University of British Columbia, Oxford Brookes University, the St. Catherine's College Foundation, and the American University of Myanmar, where he was Rector and Professor of History. His publications include Reason Over Precedents: Origins of American Legal Thought (Praeger, 1993); "The Americanization of Blackstone's Commentaries," in Essays on English Law and the American Experience, ed. Elisabeth A. Cawthon and David E. Narrett (Texas A&M University Press, 1994); and "Myanmar, Rule of Law, and an Imperfect Inheritance," Fletcher Forum of World Affairs 44 (Winter 2020): 121-136.
A funeral service is scheduled for Thursday morning. Legal historians who would like to attend via Zoom may contact Craig's brother Jeffrey Klafter (firstname.lastname@example.org).
Organising Committee: Prof. Joanna Polatynska, Ph.D. Sc.D.; Prof. Lukasz Jan Korporowicz, Ph.D. Sc.D.; J. Patrick Higgins.
Applications can be submitted until 30 September 2023. [More on applications and schedule here.]
Amanda L. Tyler, University of California, Berkeley School of Law, has posted Judicial Review in Times of Emergency: from the Founding through the COVID-19 Pandemic, which is forthcoming in the Virginia Law Review:
Whether deferring to President Lincoln’s blockade at the start of the Civil War, a state’s suspension of creditors’ remedies during the Great Depression, or President’s Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II, the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that during peacetime would be viewed as flouting the Constitution. Although there have been a handful of exceptions to this practice, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency.
In several recent cases, however, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where they intersect with the exercise of religion, but also in the area of property rights and separation of powers. The Court’s propensity to be so active of late should revive debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same.
This article explores the role of the Constitution and judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic, while surveying debates on either side of the competing visions that emerge. Then, after criticizing the Court’s inconsistent approach to its role during the pandemic and acknowledging that many may find fault in its merits assessments of certain cases, the article contends that the application in some recent cases of normal standards of judicial scrutiny during times of emergency should be viewed as a welcome development. The Court’s recent decisions suggest we have traveled some distance in rejecting the prosecution’s argument at the trial of the Lincoln conspirators that the Constitution is “only the law of peace, not of war.” But, as will also be shown, we still have a considerable way to go.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
This post, by José Argueta Funes is the sixth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber. Argueta Funes is currently an Academic Fellow at Columbia Law School; as of July 1, he will be an Assistant Professor of Law at Berkeley Law.
The first volume of Outside In (OI) closes with a wonderful reflection on Guido’s third major book, A Common Law for the Age of Statutes (ACLAS). Published in 1982, A Common Law grew out of Guido’s 1977 Holmes Lectures at Harvard Law School. Over the course of the twentieth century, Guido argued, statutes had become the primary source of law in America, displacing the common law. This shift raised a problem of legal change. Statutes were much harder to alter once enacted, and therefore Americans could go on living under laws which would not survive the legislative process if put up to a vote once again. And some of these laws, even if reenacted, would still “not fit . . . our whole legal landscape” (ACLAS, 2). The law and the people would be out of sync. A Common Law set out a radical solution for this problem: allow judges to update statutes. It then endeavored to show that this solution was not radical at all, but rather built upon “antecedents in which a common law court can take comfort” (OI, 391).
A Common Law is usually considered as Guido’s entry in long-running debates about the relationship between common law and legislation and about the nature of legal change. But while reading Outside In, my mind went to a different historical problem: American empire. And I got there by way of Guido’s repeated invocation of a curious phrase: “legal topography.” Guido was not thinking about America’s encroachment on other sovereigns when he used this phrase, which is simply shorthand to describe the work of common-law judges and lawyers. And this shorthand is deeply informed by nineteenth-century ideas about the common law. So, I started to wonder if we might use the idea of a “legal topography” to think about nineteenth-century lawyers engaging with the various kinds of law that existed across the continent and the articulation of empire.
Let me first sketch out what I think Guido means. In A Common Law, Guido uses the phrase “legal topography” (ACLAS, 98) alongside the phrases “legal fabric” (ACLAS, 96) and “legal landscape” (ACLAS, 98). The three phrases seem to refer to legal principles underlying American society (ACLAS 96-97) and to the diverse sources of law and legal interpretation one can find across the land (ACLAS, 98-99). Lawyers and judges weave the fabric or map the landscape—meaning, they articulate the underlying principles and figure out how different pieces or sources of law fit with each other.
This mapping is complicated, for at least two reasons. First, law has its own internal logic that requires some sort of training. Second—and more to the core of A Common Law—these legal cartographers must also keep track of changes in society and figure out how the principles and pieces of law relate to each other in time. All of this is deeply evocative of how nineteenth-century common lawyers described their work. As Kunal Parker has argued, common law judges claimed to “‘read’ the community as it presented itself” in the courtroom to articulate legal change while preserving social identity over time (Parker, 16).
But what if we reorient “legal topography” away from its temporal dimensions and take a more literal, spatial approach? There were many sources and kinds of law in nineteenth-century America. We are used to thinking about state and federal sovereigns and their law, and this problem was central for many nineteenth-century jurists, like Joseph Story. But Story understood that the complexities of this topography extended beyond federalism, hence his knowledge, as Kent Newmyer noted, of merchant customs (Newmyer, 121-22). Recently, Kellen Funk has shown that religious doctrine, too, could supply legal rules to apply in the distribution of church assets. And Greg Ablavsky has recently emphasized that American lawyers could not afford to ignore Spanish, French, or Mexican property law. These sources were out there as part of the topography for lawyers to incorporate them into legal argument. They might do this, too, with the laws of Indian tribes, even as the United States pursued efforts to attack and eliminate them.
Consider an example from Oregon, detailed by Peggy Pascoe in What Comes Naturally. In 1921 the Oregon Supreme Court held that an Indian woman named Ophelia Paquet (Tillamook) could not claim the estate of her deceased white husband, Fred Paquet, because Oregon’s anti-miscegenation statute forbade marriages between white men and Indian women. This was something of a surprise, because that court had previously recognized marriages between Indian women and white men as the source for husbands’ land claims under the Oregon Donation Act (Pascoe, 97). Pascoe astutely reconstructed this case as an example of a white supremacist retrenchment in the American West. But there are also hints behind the case of an underexplored legal topography.
We can glean some outcroppings in the story of how Fred and Ophelia came to be husband and wife. As Pascoe explained, their relationship began sometime in the 1880s, and they soon became the target of a local jury intent on punishing non-marital sexual relations. Fred “consulted a lawyer” who advised him to “hold a ceremony that would meet the legal requirements of an Indian custom marriage” (Pascoe, 104). Fred and Ophelia got married after Fred consulted Ophelia’s relatives and the Tillamook Chief Betsy Fuller. The jury’s harassment apparently stopped thereafter, and Pascoe’s narrative then goes to the end of the story, where shifting attitudes about race would invalidate the marriage and defeat Ophelia’s property claim.
But I would like to pause on the bit of legal advice that Fred received. The lawyer he consulted expected the jury to recognize such a marriage as a legitimate relationship. Put differently, this lawyer is telling us that Indigenous legalities were a feature of Oregon’s late-nineteenth-century legal topography. How extensive this phenomenon was is not clear, but some preliminary archival research suggests he was not alone. Thus, in 1900, a different lawyer could write a brief to the Oregon Supreme Court and claim that because Indians had “resided in the state of Oregon . . . [f]rom time immemorial,” their “customs, when not in conflict with positive law and reasonable in themselves, . . . must be considered as a part of the law of Oregon” (Appellant’s Brief, at 12, Non-she-po v. Wa-win-ta, 62 Pac. 15 (June 22, 1900) (Case No. 3805, Oregon State Archives)). But by 1921, Oregon’s Supreme Court was ready to erase tribal law from the legal topography.
I am likely far from the legal topography that Guido understood himself to be engaging with when he wrote A Common Law. But it is a credit to his understanding of the practices and ideologies surrounding the common law that we might get from him a useful heuristic to understand that work of lawyers in the nineteenth century, and, through them, a window into American empire. The accidents of a legal topography might usefully signal collisions among multiple legal orders, between state legal institutions and popular legalities, between power and law. If we broaden our sense of the sources of law and historicize the legal topography, we might ask, as Guido did, “[w]hat kind of confused landscape, what kind of ragged map, have we got” (ACLAS, 99)?
-- José Argueta Funes
Thomas D. Russell, University of Denver Sturm College of Law, has posted Blood on the Tracks, which appears in the Seattle University Law Review:
Streetcars were the greatest American tortfeasors of the early 20th century, injuring approximately one in 331 urban Americans in 1907. This empirical study presents never-before-assembled data concerning litigation involving streetcar companies in California during the early twentieth century.
Scene at Capitol Fire, 1911 (NYPL)
This article demonstrates the methodological folly of relying upon appellate cases to describe the world of trial-court litigation. Few cases went to trial. Plaintiffs lost about half their lawsuits. When plaintiffs did win, they won very little money. Regarding the bite taken out of the street railway company, the Superior Court was a flea.
Professor Gary Schwartz and Judge Richard Posner have presented inaccurate empirical data concerning early twentieth-century personal injury litigation. Professor Gary Schwartz was wrong to characterize tort law as generous. Likewise, Judge Richard Posner has been wrong to call tort law efficient. Like Professors Lawrence M. Friedman and Morton Horwitz, I see the amount taken from the street railway companies as quite small. However, I see no deliberate efforts to subsidize the industry.
Last February, we noted that several legal historians would be participating in a University of Pennsylvania Law Review symposium on "The Disability Frame." The published volume is now available online at the Law Review's website. Contributions of interest for readers of this blog include:
Nate Holdren (Drake University), Capitalism Disables: The Case of Workers' Compensation Laws. Abstract:
This article presents an account of disability as social and thus variable, connected to an account of capitalism as an inherently disabling type of society, such that different capitalist societies may disable in different ways, but all of them will disable. The article then takes the early history of workers’ compensation laws in the United States as a case study for the theoretical account of disability and capitalism, arguing that those laws created new incentives for discrimination against disabled people and thus re-organized the process of disabling. The article concludes with brief speculation about what these points imply for the prospects of achieving justice for disabled people through law.
Karen Tani (University of Pennsylvania), Disability Benefits as Poverty Law: Revisiting the "Disabled State". Abstract:
This essay, a contribution to "The Disability Frame" symposium, uses the history of a famous and influential disability benefits case to revisit political scientist Deborah Stone’s argument in THE DISABLED STATE (1984). Observing that “[m]edical certification” of disability had “become one of the major paths to public aid in the modern welfare state,” Stone wondered whether policymakers were asking the “concept of disability” to do too much and whether they were sufficiently alert to the concept’s tendency to expand over time.
Filed in 1983 and decided by the Supreme Court in 1990, Sullivan v. Zebley is an example of those expansionary pressures and their significant results. When the Social Security Administration stopped making Supplemental Security Income payments to 5-year-old Brian Zebley, despite his continuing and severe disabilities, lawyers at the legal aid organization Community Legal Services filed a class action. Operating from a foundational belief that the welfare state should be more robust, Zebley's lawyers contended that not only had the Social Security Administration erred in Zebley’s case, but also that the Agency’s overall eligibility determination process for child disability benefit claimants was too restrictive. The plaintiffs’ ultimate victory before the Supreme Court, and the surprising allies it amassed along the way, illustrate how readily many actors and institutions connected disability to deservingness and embraced disability as a distributional device in the late twentieth century. The post-Zebley backlash against child claimants, however, illustrates how closely the public continued to associate disability with deviance and fraud, especially when they observed take-up among Black citizens. Negative perceptions contributed to the program’s reform in 1996. Congress preserved the new path to eligibility that Zebley created, but also narrowed it. Decisional power, meanwhile, remained in the hands of medical gatekeepers.
This essay casts the Zebley story as one of triumph and tragedy. It was a triumph for poverty lawyers and their clients, who, under hostile circumstances, pressed for a more generous and life-affirming social welfare system. They saw that the boundaries of disability were malleable and they pushed on them. But it remains a tragedy that the best route to subsistence for so many children has further entangled disability with medicalization, suspicion, and surveillance.
Also of interest: Britney Wilson (New York Law School), Making Me Ill: Environmental Racism and Justice as Disability. Although not a historian, Wilson drew on historical research to explore the intersection of disability, race, civil rights, and environmental justice: Abstract:
Civil rights legal scholars and practitioners have lamented the constraints of the largely intent-based legal framework required to challenge racial discrimination and injustice. As a result, they have sought alternative methods that seemingly require less overt proof of discrimination and are more equipped to address structural harm. One of these proposed solutions involves the use of the Americans with Disabilities Act (ADA)—due to its affirmative mandate to address discrimination by reasonable modification or accommodation—and the framing of issues of racial injustice in terms of disability or the deprivation of medical rights. Environmental justice, an area in which issues of both race and disability are salient and affect one another, is one such context in which advocates have tried to use the ADA to challenge broader structural harm. This Article analyzes cases in which practitioners have used the ADA to challenge issues of environmental injustice to examine the purported utility of the ADA, and disability and medicalization framing, more generally, in addressing structural racism and injustice. Specifically, I discuss the attempted use of the ADA to stop the construction of a petrochemical plant in “Cancer Alley,” Louisiana and to challenge mold on behalf of public housing residents in New York City.
The use of the ADA to challenge environmental injustice has clear legal and social justice narrative benefits that explain its appeal, including the required inclusion of people with disabilities in environmental justice campaigns that disproportionately impact them, but from which they are often left out—except for as examples of the negative consequences of harm. However, the promise of these legal theories has not been adequately tested to proffer the ADA as a true alternative to race-based civil rights laws, and there are many suggestions that it is not. Furthermore, the use of disability as both narrative harm and legal strategy in environmental justice campaigns raises important considerations for racism and ableism as interrelated institutional harms. Therefore, any attempt to expand the disability frame in this direction requires an understanding of racism that does not exclude or otherwise undervalue ableism and vice versa. Otherwise, we risk perpetuating the same problems.
The symposium event featured many other scholars. Rabia Belt's remarks may be of particular interest to readers of this blog. A YouTube recording of her panel is available here.
-- Karen Tani
The Fordham Urban Law Journal has published "Plantation Localism," by Daniel Farbman (Boston College Law School). It is part of a symposium on "Local Government Structure through a Legal Lens: Conversations of Law and Local Governance." Here's the abstract:
Before the Civil War and emancipation, millions of human beings were enslaved across the United States. Most of these people lived on farms and plantations across the southern part of the nation. Scholars have tended to think of slavery as a form of private despotism — oppression undertaken under the color of the private law of property. Alongside this despotic private sphere, ran a weak public sphere of county court government dominated by the planter elite. These counties provided few services, and authorized the planters who controlled them to act as they pleased on their private plantations. The people that were enslaved were thus outside of the scope of public governance — brutally excised from the exclusively white and male political community. This Essay asks: What if, instead of dividing antebellum government into a weak public sphere protecting a despotic realm of private control by white elites, we conceived of the project of government and domination as unitary? What if we rejected the distinction between public and private and looked instead at where power was being wielded and by whom? What if we understood government not as a formal institution but rather as the place where governance happened in day-to-day life? What if, in short, we understood the plantation as a form of local government? Once we understand the plantation as a form of local government that was prevalent and, in some places, dominant across the South, a few things become clear. First, that the idea of the antebellum South as a place of little government and enlarged personal freedom is a fiction. The despotic government of millions of humans on the plantation was extremely intrusive on the lives and liberties of those who were governed. More than this, county governments were not weak so much as they were shells that both delegated power to planters and protected those planters from public oversight and accountability as they governed as despots. This reframing is primarily a historical intervention, but it also raises questions about the nature of localism today. Many local governments in the United States today appear weak but, in practice, operate as “public” shells through which power is delegated to property owners so that they may protect their “communities” from integration, redistributive taxation, and collective regulation. Although the chains of causation between past and present are attenuated, plantation localism echoes through these structural resonances in ways that should unsettle us.
The full article is available for download here.
-- Karen Tani
This post, by Karen Tani (University of Pennsylvania), is the fifth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber.
In three earlier posts in this series (here, here, and here), I suggested the fruitfulness of placing Guido Calabresi’s life alongside the rise of what sociologist Elizabeth Popp Berman has called “the economic style of reasoning”—an approach to governance that flourished in the later decades of the twentieth century and has now become embedded in institutions (e.g., the Congressional Budget Office) and in law (e.g., the consumer welfare standard in antitrust law, executive orders mandating cost-benefit analysis of proposed regulations). [All the Berman quotes in what follows are from Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (Princeton University Press, 2022) (“TLE”).] This rise to prominence merits our attention, Berman argues, because, over time, it narrowed the boundaries of what is politically possible, in domains ranging from environmental policy, to social welfare provision, to the governance of regulated industries. It did so by de-legitimizing or crowding out political claims that conflicted with those of the “economic style,” including “claims grounded in values of rights, universalism, equity, and limiting corporate power” (TLE 4). The result, in Berman's assessment, was to reinforce a “conservative turn” in American politics--even though “the most important advocates for the economic style in governance consistently came from the center-left” (TLE 13, 19). (For the fullest and most careful explanation of the argument, please read the book!)
In my previous posts, I argued that Calabresi’s scholarship has resonances with “the economic style,” but also sits outside of it. The insider/outsider character of Calabresi's work was a natural outgrowth of his unique path into Law & Economics. It also reflects his real-time reactions to the success of Law & Economics. As he helped that field expand and thrive, he also felt compelled to point out the limitations of economic theory and methodology. The question I ended my last post with was: Did Calabresi’s nuanced approach to Law & Economics help legitimize and spread the less nuanced “economic style” of Berman’s concern? Or (and?) did his work plant seeds of skepticism and resistance?
A historian cannot answer this question with any certainty (especially not in a short blog post!), but I will surface some evidence that seems relevant to me. In doing so, I must also acknowledge my affection for the subject of this post (I was one of Calabresi’s law clerks in 2007-08 and cherish that experience). That relationship colors my views, but also, I hope, gives me insight. In what follows, I’ll discuss (1) scholarship (which I’ll bundle with teaching), (2) judicial decisions, and (3) network.
|"Guido Calabresi Lauded at His Final Torts Class"|
I’ve already discussed some of Calabresi’s most important scholarly writings, so I won’t repeat myself here. I’ll simply add this brief assessment. His writings—which informed six decades(!) of teaching at Yale Law School—undoubtedly did give some people their first exposure to the use of economic thinking in law and governance. That matters. Among the consumers of Calabresi’s ideas were powerful people in politics, policymaking, legal practice, and academia, as well as people who would become powerful in those domains later in life. Moreover, I suspect that Calabresi’s stature, reputation, and charisma gave weight to his ideas. In The Rise of the Conservative Legal Movement, Steve Teles also credits Calabresi with giving Law & Economics respectability, by rebutting the notion “that it was an entirely conservative, University of Chicago project” (Teles 99).
Gregory Ablavsky (Stanford Law School) has posted "Too Much History: Castro Huerta and the Problem of Change in Indian Law," Supreme Court Review (2022). The abstract:
The Supreme Court’s decision last Term in Castro-Huerta v. Oklahoma dramatically rewrote the rules of criminal jurisdiction in federal Indian law. For the first time since 1882, the Court judicially expanded the scope of state criminal jurisdiction in Indian country, finding that states hold jurisdiction over Indian-on-non-Indian crime concurrently with the federal government. In reaching this conclusion, the Court exemplified the subjectivism that scholars have criticized in the Court’s Indian law jurisprudence for decades. The opinion distinguished or cast aside at least six prior decisions where the Court had seemingly reached the opposite conclusion, as well as concluding that the Court had already substantially limited the Court’s foundational holding in Worcester v. Georgia (1833) that Indian country ordinarily lies outside state authority.
Building on these earlier critiques, this Article uses Castro-Huerta to examine a less explored flaw in the Court’s Indian law rulings—what I call the problem of “too much history.” In Indian law, judges and litigants must make sense of over two centuries of jurisdictional debates, recorded largely not in statutes or constitutional provisions but in dozens of shifting Supreme Court decisions. The key question in Castro-Huerta, and the core of the dispute between majority and dissent, was change--how the law on state jurisdiction in Indian country had shifted over time. But the sheer mass of history makes it hard for the Justices to identify legitimate legal change in Indian law.
This conundrum leads to two broad types of judicial use of history in Indian law. “Good” history decisions, epitomized by this Term’s decision in Ysleta del Sur Pueblo v. Texas, employ specific context to examine narrowly defined legal questions. By contrast, “bad” history opinions, exemplified by Castro-Huerta, turn to the past as an independent source of law, ask broad, unanswerable questions of it, and provide no clear way to assess the inevitable heap of conflicting evidence.
Having laid out this challenge, the Article reexamines the question of the specific historical change at the core at Castro-Huerta. Rather than the majority’s narrative of abandonment and the dissent’s narrative of continuity, I think a more accurate account of what the Court has done with respect to state jurisdiction in Indian country is translation—trying to make sense of older legal principles within a new jurisprudential frame. But this approach makes the Court’s decisions in this area especially prone to misreading and selective citation, as Castro-Huerta underscored.
Read on here.
-- Karen Tani
Eric L. Muller, the Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at the University of North Carolina School of Law, has published Lawyer, Jailer, Ally, Foe: Complicity and Conscience in America's World War II Concentration Camps (University of North Carolina Press):
At each of these camps the government places a white lawyer with contradictory instructions: provide legal counsel to the prisoners, and keep the place running. Within that job description are a vast array of tasks, and an enormous amount of discretion they can use for good or for ill. They fight to protect the property the prisoners were forced to leave behind; they help the prisoners with their wills and taxes; and they interrogate them about their loyalties, sometimes driving them to tears. Most of these lawyers think of themselves as trying to do good in a bad system, and yet each ends up harming the prisoners more than helping them, complicit in a system that strips people of their freedoms and sometimes endangers their lives.
In Lawyer, Jailer, Ally, Foe, Eric L. Muller brings to vivid life the stories of three of these men, illuminating a shameful episode of American history through imaginative narrative deeply grounded in archival evidence. As we look through the lawyers’ sometimes-clear and sometimes-clouded eyes, what emerges is a powerful look at the day-by-day, brick-by-brick perpetration of racial injustice—not just by the system itself, but by the men struggling to do good within it.
Linda Upham-Bornstein, Senior Teaching Lecturer in History, Plymouth State University, has published Mr. Taxpayer versus Mr. Tax Spender: Taxpayers’ Associations, Pocketbook Politics, and the Law during the Great Depression (Temple University Press):
Mr. Taxpayer versus Mr. Tax Spender presents a comprehensive overview of these grassroots taxpayers’ leagues beginning in the 1860s and shows how they evolved during their heyday in the 1930s. Linda Upham-Bornstein chronicles the ways these taxpayers associations organized as well as the tools they used—constructive economy, political efforts, tax strikes, and tax revolt through litigation—to achieve their objectives.
Taxpayer activity was a direct consequence of—and a response to—the economic crisis of the Great Depression and the expansion of the size and scope of government. Mr. Taxpayer versus Mr. Tax Spender connects collective tax resistance in the 1930s to the populist tradition in American politics and to other broad impulses in American political and legal history.
Here are two endorsements, one of them mine:
“Nobody else has comprehensively detailed the activities of tax protesters during the Great Depression, and Upham-Bornstein does this very effectively. This book will prove beyond a shadow of a doubt that taxpayer politics are a long-standing American tradition. ‘Mr. Taxpayer versus Mr. Tax Spender’ provides useful analyses of how these movements relate to trends in law and politics, as it provides a wealth of empirical details and richness for this relatively understudied topic.”--Dan Ernst
—Lawrence Glickman, Professor of American Studies at Cornell University, and author of Free Enterprise: An American History
“In the depth of the Great Depression, middle-class property owners spontaneously organized to ‘raise hell and lower taxes.’ This extensively researched, sensibly organized, and thoughtfully argued book presents nonpartisan political activism, judicial intervention into local government, and a pivotal moment in the fiscal history of the United States. It also reaches a surprising but utterly convincing conclusion: most tax revolters sought not a smaller government but a more efficient and progressive one.”
—Daniel R. Ernst, Carmack Waterhouse Professor of Legal History at Georgetown University Law Center, and author of Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940
In earlier posts in this series, I suggested the fruitfulness of placing Guido Calabresi’s career alongside the rise of what sociologist Elizabeth Popp Berman has called “the economic style of reasoning”—an approach to governance that flourished in the later decades of the twentieth century and remains prominent. [All the Berman quotes in what follows are from Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (Princeton University Press, 2022) (“TLE”).] My first post described Calabresi’s education in economics and in law, as recounted in Outside In. My second post turned to his scholarship and began to explore its fit with “the economic style.” When I left off, I had covered Calabresi's writings on “the decision for accidents” (a.k.a. “the cost of accidents”), and I had mentioned both his excitement and his discomfort at the growing influence of Law & Economics. Looking back on this period, Calabresi said this to Silber: “Because of the way the field was taking off, I was becoming afraid that people would start to think of the economic approach to law as the only thing that is legal scholarship” (OI, v.1, 332).*
This worry is apparent in the use of the phrase “one view of the Cathedral” in the subtitle of Calabresi’s famous 1972 article (with Douglas Melamed) on “Property Rules, Liability Rules, and Inalienability.” Calabresi explains:
[B]ecause of a generic reference Harry Wellington made, I called it “One View of the Cathedral.” I do not think Harry was talking about law and economics at the time; he was talking about art and about how you couldn’t understand the cathedral at Reims by looking at only one of Monet’s impressionist paintings. To understand . . . you had to look at all the paintings. I liked that, and I used it because I wanted to say that law and economics was one important way of looking at legal issues, but it was not the only way.(OI, v.1, 331). [Image at right: Rouen Cathedral, West Façade, Sunlight, 1894 by Claude Monet, oil on canvas. Credit: National Gallery of Art.]