McClain, "Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law"

New from Oxford University Press: Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, by Linda C. McClain (Boston University School of Law). A description from the Press:

Historically, critics of interracial, interfaith, and most recently same-sex marriage have invoked conscience and religious liberty to defend their objections, and often they have been accused of bigotry. Although denouncing and preventing bigotry is a shared political value with a long history, people disagree over who is a bigot and what makes a belief, attitude, or action bigoted. This is evident from the rejoinder that calling out bigotry is intolerant political correctness, even bigotry itself.

In Who's the Bigot?, the eminent legal scholar Linda C. McClain traces the rhetoric of bigotry and conscience across a range of debates relating to marriage and antidiscrimination law. Is "bigotry" simply the term society gives to repudiated beliefs that now are beyond the pale? She argues that the differing views people hold about bigotry reflect competing understandings of what it means to be "on the wrong side of history" and the ways present forms of discrimination resemble or differ from past forms. Furthermore, McClain shows that bigotry has both a backward- and forward-looking dimension. We not only learn the meaning of bigotry by looking to the past, but we also use examples of bigotry, on which there is now consensus, as the basis for making new judgments about what does or does not constitute bigotry and coming to new understandings of both injustice and justice.

By examining charges of bigotry and defenses based on conscience and religious belief in these debates, Who's the Bigot? makes a novel and timely contribution to our understanding of the relationship between religious liberty and discrimination in American life.

Advance praise:

"Through historical excavation and close readings of primary texts, Linda McClain examines the meaning and use of bigotry over time. By situating us in the thick of past conflicts over equality, McClain shows that views we now repudiate as bigoted were once within the realm of reasonable debate. Her book should be a warning for proponents of equality law today: Labeling one's opponents as bigots may obscure, rather than illuminate, connections between past and present struggles. Instead, by unearthing the similarities in justifications for inequality over time, McClain leaves us better able to appreciate the relationship between struggles for racial equality and struggles for LGBT equality." -- Douglas NeJaime

"At a time when public discourse is so charged, and the label "bigot" carries enormous emotional and psychological weight, Linda McClain helpfully unpacks the legal provenance of this fraught term. Drawing on a diverse range of contexts - from interracial marriage to the present debate over conscience exemptions - McClain considers what it means, as a matter of law and culture, to characterize someone (and their actions) as bigoted. This is required reading for anyone who wants to understand our polarized society and how we got here." -- Melissa Murray

More information is available here.

-- Karen Tani

Suddler, "Presumed Criminal"

We missed this one when New York University Press released it last July: Presumed Criminal
Black Youth and the Justice System in Postwar New York, by Carl Suddler (Emory University). A description from the Press:

A stark disparity exists between black and white youth experiences in the justice system today. Black youths are perceived to be older and less innocent than their white peers. When it comes to incarceration, race trumps class, and even as black youths articulate their own experiences with carceral authorities, many Americans remain surprised by the inequalities they continue to endure. In this revealing book, Carl Suddler brings to light a much longer history of the policies and strategies that tethered the lives of black youths to the justice system indefinitely.

The criminalization of black youth is inseparable from its racialized origins. In the mid-twentieth century, the United States justice system began to focus on punishment, rather than rehabilitation. By the time the federal government began to address the issue of juvenile delinquency, the juvenile justice system shifted its priorities from saving delinquent youth to purely controlling crime, and black teens bore the brunt of the transition.

In New York City, increased state surveillance of predominantly black communities compounded arrest rates during the post–World War II period, providing justification for tough-on-crime policies. Questionable police practices, like stop-and-frisk, combined with media sensationalism, cemented the belief that black youth were the primary cause for concern. Even before the War on Crime, the stakes were clear: race would continue to be the crucial determinant in American notions of crime and delinquency, and black youths condemned with a stigma of criminality would continue to confront the overwhelming power of the state.

A few blurbs:

"A timely and critically important origins story of how black youth became over-policed and under-protected in one of the most liberal cities in America. They were victims of institutional racism and an increasingly hostile police force that refused to protect their right to protest and organize for racial justice. Young people’s bitter awakening to racial consciousness at the end of a police baton is, as Carl Suddler skillfully shows, the starting point for understanding why stop-and-frisk first made its debut in New York City over a half-century ago." ~ Khalil Gibran Muhammad

"In this powerful, timely, and deeply unsettling recovery of America’s criminal justice past, Suddler shines vital new light on the present. By brilliantly revealing the nation’s postwar effort to deal with troubled young people more humanely, this book forces us to face the extent to which the presumption of black criminality utterly undermined that effort and thereafter ensured that black boys and girls would forever be ensnared in a fundamentally unjust juvenile justice system." ~ Heather Ann Thompson

More information is available here.

-- Karen Tani

Weekend Roundup

• From the Washington Post's Retropolis section, a profile of Mitsuye Endo, the under-appreciated Japanese-American citizen whose legal challenge to the Japanese American internment "forced the government to close the camps and allowed thousands of Japanese Americans to return to the West Coast."  

• Speaking of unlawful confinement, the History Office of the Federal Judicial Center has posted this introduction to federal habeas corpus jurisdiction. To its bibliography we would add Amanda Tyler's Habeas Corpus in Wartime (2017) and Eric Freedman's Making Habeas Work (2018).

• In individual posts we have mentioned several of the articles in the University of Pennsylvania Law Review's May 2019 symposium on administrative constitutionalism. The full symposium is now available here. It includes contributions by Karen M. Tani (University of California, Berkeley), Gregory Ablavsky (Stanford University), Joanna L. Grisinger (Northwestern University), Sophia Z. Lee (University of Pennsylvania), Jeremy K. Kessler (Columbia University), Bertral L. Ross II (University of California, Berkeley), William J. Novak (University of Michigan), Cary Coglianese (University of Pennsylvania), and William N. Eskridge, Jr. (Yale Law School). 

• From the Washington Post's "Made by History" section: Karin Wulf (Omohundro Institute of Early American History & Culture/William & Mary) on how "keeping historical records public and easily accessible" enables us to think for ourselves about impeachment.    

• Writing for JOTWELL's Contracts section, Daniel Barnhizer (Michigan State University) has posted an admiring review of "Cheating Pays," by legal historian Emily Kadens (Northwestern Pritzker School of Law). The article, which was based on a historical case study, appeared in Volume 119 of the Columbia Law Review.

• Available online from Law and History Review and Cambridge Core: Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South Asia, by Priyasha Saksena.

• The blog of the Cato Institute has Roger Pilon’s notice of David N. Mayer, who died last month.  Mayer, professor emeritus of law and history at the Capital Law School, was the author of The Constitutional Thought of Thomas Jefferson (University of Virginia Press, 1994).

• ICYMI: Ryan Husey, The Carceral State and Prison Activism, an H-Net Book Channel Essay.

• In the op-ed section of the New York Times: Lauren MacIvor Thompson (Georgia State University) reminds readers that "Women Have Always Had Abortions."  

• Via History News Network: "Over 1500 Historians and Scholars Sign Letter Urging Impeachment." Also, Robert Hardaway (University of Denver Sturm College of Law) on "Impeachment and the Electoral College."

• Over at New Books in Law (part of the New Books Network): an interview with G. Edward White (University of Virginia) about Volume III of Law in American History (Oxford University Press, 2019). Also, Talitha LeFlouria (Carter G. Woodson Institute at the University of Virginia) talks about her book Chained in Silence: Black Women and Convict Labor in the New South (University of North Carolina Press, 2016).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• Two items of interest from John Fabian Witt (Yale Law School): (1) He and other torts scholars (Mark Gergen, Paul Hoffman) have submitted an amicus brief to the U.S. Supreme Court in the current Section 1981 case Comcast v. National Association of African American-Owned Media. The brief challenges Comcast's characterization of a number of 19th-century torts cases and in doing so offers insights about the history of "but-for" causation as an element of negligence. (2) The latest issue of the New Republic includes his thoughts on "the shrinking legacy" of former Supreme Court Oliver Wendell Holmes, "first celebrity justice of the U.S. Supreme Court": why is Holmes veneration "in decline"?

• The 12th Annual Court History and Continuing Legal Education Symposium of the Historical Society of the U.S. District Court for the Southern District of Indiana will be devoted to the history of judicial confirmation.  The symposium includes the presentation, “Paths to the Bench: Southern District of Indiana Appointments from William E. Steckler to Gene E. Brooks,” by Doria Lynch and “a brief synopsis of the Chief Justice Robert B. Taney mural alternation project, which is part of the national trend to remove inappropriate historical symbols from public spaces.”  It will be held from 1 to 4:30 p.m. on November 1 in the Sarah Evans Barker Courtroom of the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis.   (The Indiana Lawyer.)

• John W. Kluge Center has announced the arrival of several scholars-in-residence at the Library of Congress.  The holder of the Kluge Chair in American Law and Governance is Andrea Campbell, the Arthur and Ruth Sloan professor of political science at MIT, who is working on a book project titled “How Americans Think About Taxes.” 

• Notorious RBG: The Life and Times of Ruth Bader Ginsburg is on exhibit at the National Museum of American Jewish History, 5th and Market Streets, Philadelphia, through January 12, 2020.

• Here at LHB we usually try to keep things nonpartisan, but we still feel obliged to note, in case you somehow missed it, the recent interview ASLH past-president Bruce Mann gave to CNN.  And, while we're on the subject of legal historian spouses to presidential candidates, thank you John Bessler for that shout out at the 2019 Hall of Fame Celebration of the Dubuque County Democratic Party.  DRE 

• Over at Jotwell: Binyamin Blum (UC Hastings) reviews Orna Alyagon Darr's Plausible Crime Stories: The Legal History of Sexual Offences in Mandate Palestine (CUP, 2018)

• ICYMI:  How Did Magna Carta Influence the U.S. Constitution? (History).  Frank Bowman on the history of impeachment in Rolling Stone.

• From the Washington Post's "Made by History" section: many historically informed observations about impeachment and President Donald Trump, including by Sidney Milkis (University of Virginia, Miller Center) and Daniel Tichenor (University of Oregon) (here); Thomas Balcerski (Eastern Connecticut State University) (here); and Doug Rossinow (University of Oslo) (here). Also Jessica Wang (University of British Columbia) on "How New York defeated rabies" and why "the city’s history with the disease offers a blueprint for eliminating deaths around the world." More.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Morrison on legal lynching

In 2018, Melanie S. Morrison published Murder on Shades Mountain: The Legal Lynching of Willie Peterson and the Struggle for Justice in Jim Crow Birmingham with Duke University Press. From the publisher: 

One August night in 1931, on a secluded mountain ridge overlooking Birmingham, Alabama, three young white women were brutally attacked. The sole survivor, Nell Williams, age eighteen, said a black man had held the women captive for four hours before shooting them and disappearing into the woods. That same night, a reign of terror was unleashed on Birmingham's black community: black businesses were set ablaze, posses of armed white men roamed the streets, and dozens of black men were arrested in the largest manhunt in Jefferson County history. Weeks later, Nell identified Willie Peterson as the attacker who killed her sister Augusta and their friend Jennie Wood. With the exception of being black, Peterson bore little resemblance to the description Nell gave the police. An all-white jury convicted Peterson of murder and sentenced him to death.

In Murder on Shades Mountain Melanie S. Morrison tells the gripping and tragic story of the attack and its aftermath—events that shook Birmingham to its core. Having first heard the story from her father—who dated Nell's youngest sister when he was a teenager—Morrison scoured the historical archives and documented the black-led campaigns that sought to overturn Peterson's unjust conviction, spearheaded by the NAACP and the Communist Party. The travesty of justice suffered by Peterson reveals how the judicial system could function as a lynch mob in the Jim Crow South. Murder on Shades Mountain also sheds new light on the struggle for justice in Depression-era Birmingham. This riveting narrative is a testament to the courageous predecessors of present-day movements that demand an end to racial profiling, police brutality, and the criminalization of black men.

Praise for the book: 

 "In this passionate account of Jim Crow–era injustice, educator and activist Morrison exposes how courtrooms 'could function like lynch mobs when the defendant was black.'... Morrison, who is white, shares this painful story with clarity and compassion, emphasizing how much has changed since the 1930s, how much white people need to 'critically interrogate' the past, and how much 'remains to be done' in the fight for justice." - Publishers Weekly

"The author deserves praise for identifying Peterson’s trial as an important precursor to the 1960s civil rights movement. Audiences will be enthralled and angered by this all-too-familiar account of a criminal justice system that was and remains biased against black Americans." - Karl Helicher

"Morrison digs deeply into period newspapers and archives to uncover this story of injustice long overshadowed by the more famous Scottsboro Boys trial. A thoughtful look into a tale of prejudice and stolen justice that will find many readers who are interested in African American history, the early civil rights movement, and Southern history." - Chad E. Statler

Further information is available here.

-Mitra Sharafi

Taylor, "Race for Profit"

Out later this year from the University of North Carolina Press (but available for pre-order now): Race for Profit: How Banks and the Real Estate Industry Undermined Black Homeownership (2019), by Keeanga-Yamahtta Taylor (Princeton University). A description from the Press:

Keeanga-Yamahtta Taylor offers a damning chronicle of the twilight of redlining and the introduction of conventional real estate practices into the Black urban market, uncovering a transition from racist exclusion to predatory inclusion. Widespread access to mortgages across the United States after World War II cemented homeownership as fundamental to conceptions of citizenship and belonging. African Americans had long faced racist obstacles to homeownership, but the social upheaval of the 1960s forced federal government reforms. In the 1970s, new housing policies encouraged African Americans to become homeowners, and these programs generated unprecedented real estate sales in Black urban communities. However, inclusion in the world of urban real estate was fraught with new problems. As new housing policies came into effect, the real estate industry abandoned its aversion to African Americans, especially Black women, precisely because they were more likely to fail to keep up their home payments and slip into foreclosure. 

Taylor narrates this dramatic transformation in housing policy, its financial ramifications, and its influence on African Americans. She reveals that federal policy transformed the urban core into a new frontier of cynical extraction disguised as investment.

A few blurbs:

"This is an incredibly important history. Well-written, persuasive, and brimming with insightful analysis, Race for Profit is a book that people have been waiting for."--Beryl Satter 

"Taylor offers a strong account of major transformations in U.S. affordable housing policy and its impact on African American communities. This is an extraordinary book, measured and incisive, with a rich and compelling narrative."--Joseph Heathcott

More information is available here.

-- Karen Tani