call for ASLH posts

If you are attending the American Society for Legal History meeting this weekend, reports on panels and other legal history news would be welcome. (An example of a post on a panel is here, but something less extensive would also be helpful.) If you would like to submit a guest post, please email me.

Orlee on Madison and Legislative Chaplains

Andy G. Orlee, Faulkner University, has posted a new article, James Madison and Legislative Chaplains. It is forthcoming in the Northwestern University Law Review. Here's the abstract:

The U.S. Supreme Court has long interpreted the Establishment Clause of the First Amendment by reference to the attitudes and practices of the Framers, including James Madison. Among their practices, the congressional chaplaincy has garnered special attention and influence. In particular, in Marsh v. Chambers, 463 U.S. 783 (1983), the Court referred to the Framers' endorsement of that practice as it upheld a state legislative chaplaincy. Marsh has subsequently formed the core of the Court's precedential support for upholding certain other governmental activities endorsing a religious belief or practice, most recently in Van Orden v. Perry, 125 S. Ct. 2854 (2005) (plurality opinion). Most judges and commentators who have examined Madison's attitude toward the legislative chaplaincy have concluded from certain of his actions that he, like the other Framers, probably supported the congressional chaplaincy as it was being instituted in the first House of Representatives, although he may have changed his mind later in life.

This Article canvasses the historical evidence about Madison's life and writings in an attempt to understand his attitude toward legislative chaplains. The Article concludes that Madison never wavered on the issue of legislative chaplains and always thought them inconsistent with religious liberty. This conclusion counsels reappraisal of the lines of Establishment Clause jurisprudence founded on the Framers' supposed uniform acceptance of the congressional chaplaincy and similar religiously imbued practices.

California Fires: news link and how you can help

The best coverage I've found of the California wildfire disaster is at the Los Angeles Times, with updated news stories, blogs and many devastating photographs.

The LA Times has posted links to charities taking donations to assist those displaced and affected by the fires. Their page should update as more information becomes available. I will also update this post to include other related information as it comes in.

Update: Tips from other law blogs: You can donate directly to the San Diego Chapter of the American Red Cross (hat tip Truth on the Market), or to Catholic Charities in LA or San Diego, which broadly serves the poor, not just Catholics (hat tip Bainbridge).

10/25 Update: From the LA Times: The McCormick Tribune Foundation has teamed up with partners in California to create two fire relief campaigns, one in the San Diego area and one in the Los Angeles area. The Foundation will match at least the first $500,000 raised for each campaign at fifty cents on the dollar. Additional matching funds will be made available based on fundraising response. All donations, plus the match, will go directly to agencies supporting disaster response and recovery efforts for those affected by the fires, as the Foundation and its partners cover all administrative costs. [Note: the direct link from the LA Times webpage does not work at this writing. Use the links from this blog, or google the foundation.]

Personal update: Because I've gotten queries, a personal note: My home in LA is not affected. It is in Santa Monica, not near the LA fire area. I am away in Princeton this year, and far from all of this, and my daughter is in high school in the Boston area.

Paul Caron at Tax Prof is keeping track of the impact on law schools and law professors.

From having grown up around Southern California wildfires, I can say that folks in the entire region will be affected for some time, even those whose homes are not directly threatened. And it is not just wealthy Malibu homeowners who will be homeless. Many middle and working class families in California urban areas move to surrounding communities, to fire danger areas, to find more affordable housing. These disasters come in two waves. First the fire, then the mudslides and flooding with the first rainfall, when there is no vegetation to hold back hillsides. Southern California communities, and our colleagues in the region, will need support from the rest of the country long after the fires die down.

Photo credit: LA Times.

Davenport, Moore and Armstrong on Torture and Democracy: The Puzzle of Abu Ghraib

The Puzzle of Abu Ghraib: Are Democratic Institutions a Palliative or Panacea? is a new essay by Christian Davenport, Department of Government and Politics, University of Maryland, Will H. Moore, Florida State University - Department of Political Science, and Dave Armstrong, University of Oxford - Nuffield College. Here's the abstract:

The events of Abu Ghraib exposed politicians, journalists, military and law enforcement personnel, NGOs, activists and ordinary citizens to the potential brutality of state repression. Many were left stunned that the agents of a liberal democracy would perpetrate such horrific acts against individuals in the state's control. Such shock makes sense if one believes that liberal democratic institutions constrain leaders from acting on the utilitarian incentive to employ torture during interrogations. While such a belief is apparently widespread, is it consistent with the recent historical record? Extant theories of repression and global evidence about torture suggest that it is not. We distinguish among three mechanisms that might constrain the use of torture in liberal democracies: voice, veto, and freedom of expression. We then argue that voice is unlikely to have a strong effect when the state is faced with violent dissent, and that the effect of veto and freedom of expression will be substantially reduced when the state is faced with a violent challenge. To test our hypotheses we use data from 146 countries covering the years 1980-1999 and investigate the extent to which voice, veto, or freedom of expression inhibit countries' use of torture both in times of quiescence and in times when dissidents challenge the state with violence. We find that rather than being aberrant, state-sponsored torture like that in Abu Ghraib is perfectly consistent with both theory and previous experience. More specifically, democratic institutions reduce the probability that a state uses torture in only limited circumstances.

Symposium issue on Miranda at 40

Donald J. Kochan, Chapman University School of Law, has posted an essay, Symposium Introduction - Miranda at 40: Applications in a Post-Enron, Post-9/11 World. The symposium issue appeared in the Chapman Law Review. The symposium itself is webcast. Follow the links from here. I had trouble accessing the webcast, but it may be my computer (time for an upgrade...). Perhaps you'll have more luck. Here's Kochan's abstract:

The groundbreaking case of Miranda v. Arizona "raise[d] questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime." This Introduction to the 2007 Chapman Law Review Symposium summarizes the contemporary examination of Miranda's influence, past and present, along with the continuing debate today. The experiences and precedents that have evolved in the past 40 years helps to explore the evolution of the criminal law and procedural dictates set forth in Miranda. Complications with custodial interrogation—and the impulses and incentives involved by both the interrogator and the interrogated—have long been an exploration in law, literature, and other forums.

This Introduction sets the stage and summarizes the articles presented herein that provide a valuable contribution to the scholarship on Miranda's evolution and its effects today. Thanks go to all the participants, including: The Honorable Edwin Meese III, Maurice Suh, Keith Bishop, Henry N. Butler, Sherri L. Burr, Marisa S. Cianciarulo, Russell Covey, M. Katherine Baird Darmer, Roman E. Darmer, Steven B. Duke, Jim Fleissner, Mark A. Godsey, Steve Goorvitch, Thomas E. Holliday, Sam Kamin, Linda Keller, Donald J. Kochan, Joan L. Larson, Jeremy M. Miller, Stephen F. Rohde, Lawrence Rosenthal, Ronald J. Rychlak, Paul Shechtman, Ronald Steiner, and J. Kelly Strader. The first panel addressed "Miranda and the War on Terror." The second panel focused on "Miranda and the Media." The third panel contemplated "Miranda and Modern Practice." The final panel examined "Miranda and Corporate Crime."

How (not to) Write an Abstract

For SSRN papers, for grant applications, sometimes for law review articles, and other purposes, we often have to write abstracts. But no one tells you how to write one. At the request of a reader, in case it might be helpful, I’m offering some tips. If you disagree, agree or have other ideas, please post a comment.

An abstract should be a succinct statement summarizing your paper or project. It will be the reader’s first take on your project. If it is a lousy abstract, it may be their last. An abstract should make the project seem compelling and well-written, and cause the reader to want to know more. The abstract leads the reader to the rest of the paper.

How do you make sure your abstract holds the reader’s attention rather than turns them away? A few thoughts:

1. Never ever write an abstract at the last minute. Abstracts sometimes look like a last-minute afterthought, inelegantly written, and conveying little of a paper’s substance. Readers are less likely to download a paper with an abstract like this. Write your abstract a few days in advance. Then rewrite, rewrite, rewrite.

2. "In this essay, it will be argued that...." Never use passive voice in an abstract. Ever.

3. The writing in the abstract should be as good or better than in the paper, or at least as clear or clearer. If it is worse (awkward or confusing, when your paper is a crisp and compelling read), the abstract will not draw readers who would have valued your paper.

4. No typos or grammatical errors. To avoid this, find a friend to read and critique (or at least proof) your abstract.

5. Some advice: when your friend or family member criticizes your abstract, DO NOT become defensive or dismissive. Instead, say thank you. You needed it. If you don’t like their suggestions, they might still be flagging something that needs attention. Perhaps your abstract is unclear, and you can edit it in a different way than they suggest.

6. State the central thesis of your paper. Clearly. If you can’t state it clearly, you’re still working it out, and the paper may not be ready to post. Every project cannot be boiled down to a sound bite, but with a complex project, find a focused way of conveying the project’s central theme.

7. What is new and original about your paper? Describe your research, your findings, whatever it is that makes your paper special. If the point of your paper is to challenge a central line of argument in the preexisting literature, say so in the abstract.

8. If the abstract covers an entire page, it is not an abstract. Readers of abstracts want a short, quick take on your paper. If you have a five part paper with fifteen subsections, do not summarize each subpart. Summarize the essential components, or your most important contributions.

9. If you have a word limit (e.g. for a grant proposal), do not go over the limit. Not one word. Set the abstract aside for a few hours. You’ll find words to cut that don’t affect the substance.

10. So what’s the ideal length? Many good SSRN abstracts are between 200 and 500 words. Some are shorter, some longer. They are often broken up into two or three paragraphs. The right length depends on the paper. If you’re not sure, aim for 250-400 words.

11. If the abstract is for a grant proposal, pitch your project to the funding criteria in the abstract. For example, if the program funds projects on religious and ethical values, mention the way your project engages religious and ethical values.

12. If the abstract is for a general reader, don’t use specialized terms that need to be defined. Save that for the paper. Say it another way in the abstract.

13. Since SSRN abstracts that appear on blogs can be found through internet search engines, include terms that will enable yours to come up in the right searches. E.g. original intent, critical race theory, fourth amendment.

14. Having trouble getting started? Find an abstract that you like, and use it as a model. Some very different recent SSRN abstracts I like – they are clear, make the projects compelling, and make me want to read the papers – are here, here, and here.

More advice:

Tips about abstract writing in other fields are here and here.

Image credit.

More from Eisgruber on the Legacy of the Bork Hearings

Chris Eisgruber follows up on his first post at Balkinization with more on the legacy of the Bork hearings, from his book, The Next Justice: Repairing the Supreme Court Appointments Process, here and here.

His recommendations:

The Senate should make three changes to the way it evaluates nominees to the Court:

1. Evaluate nominees the way that presidents do. George W. Bush knew exactly what he was getting when he appointed Roberts and Alito to the Court. More generally, political scientists and historians have shown that presidents accurately assess the values of their nominees by looking at their past records. Nearly all the relevant information is available to senators, too. They should not hesitate to make judgments on the basis of it.

2. Put the burden of explanation on the nominee. If senators can judge nominees on the basis of their records, what is the point of holding hearings? To give the nominees a chance to explain. Senators, though, should not hesitate to put the burden of proof on the nominee. If a nominee with a starkly partisan record claims to be nothing more than a neutral umpire, that is a good reason for a senator to vote against confirmation.

3. Give up the quest for the ‘smoking gun.’ Senators and the public often seem to treat confirmation hearings as an oral examination. Nominees who pass are entitled to confirmation. That puts an impossible burden on the senate: smart, well-coached nominees have no trouble producing bland answers to tough questions.

Garry on Accommodating the Administrative State: The Interrelation between the Chevron and Nondelegation Doctrines

Patrick M. Garry, University of South Dakota Law School, has posted an article, Accommodating the Administrative State: The Interrelationship between the Chevron and Nondelegation Doctrine. It appeared in the Arizona State Law Journal. Here's the abstract:

Accommodating the Administrative State: The Interrelationship Between the Chevron and Nondelegation Doctrines addresses the interrelationship between two of the more prominent doctrines in administrative law - the nondelegation doctrine and the Chevron doctrine. The article argues that even though the Chevron doctrine has come under intense criticism, it is the logical result of how the nondelegation doctrine has evolved since the late 1930s.

During the constitutional revolution of the New Deal, the Court adopted a deferential model of the nondelegation doctrine, enabling Congress to delegate broad regulatory powers to administrative agencies. This deferential model has become so accepted by the courts that not once since the New Deal has the nondelegation doctrine been used to strike down a congressional enactment. The Chevron doctrine, however, has not been so universally accepted. This doctrine contradicts traditional legal principles by giving to administrative agencies the power to interrupt the statutes they administer, hence requiring courts to defer to agencies on questions of law. Many critics argue that Chevron violates separation of powers, since it gives to the executive branch a power traditionally exercised by the judiciary. Contrary to this position, the article argues that Chevron is a necessary and logical extension of the generally accepted nondelegation doctrine. In essence, both doctrines have become necessary to support and sustain the modern administrative state.

Judging Blogging Success

"What Is a 'Successful' Blog?" asks the Chronicle of Higher Education.

Is a blog successful if it gets a lot of page views? And, using the same logic, is it a failure if only a handful of people actually read it?

That’s what Another Damned Medievalist, who has been blogging for more than five years (an eternity in Internet time), asked recently. By all means add a few hits to ADM’s counter by clicking through.

Judging the success of a blog by its page views is sort of like rating a movie by its box-office tallies, a TV show by its Neilsen ratings, or a book by its place on the best-seller list.

By that standard, the best movie in the country is “30 Days of Night,” the best TV show is “Dancing With the Stars,” and the best novel is World Without End, by Ken Follett.

Makes me wonder if I should regret the recent uptick in traffic....

On Autherine Lucy and a Barber Shop

From Al Brophy at Property Prof, a reminiscence from Thomas Linton, who is a Presbyterian minister and a Tuscaloosa barber, in the Tuscaloosa News, about the role of a barber shop in a critical moment in civil rights history:

"I was a kid when Authurine Lucy tried to attend the University of Alabama," John Linton said in telephone interview from his home. "It was an outrage."

That February day in 1956 when Authurine Foster Lucy was suspended from the university, whites pelted her with eggs and state troopers escorted her to the black-owned newspaper, The Alabama Citizen, where a throng of more than 300 gathered. The paper was two shops away from the barber and then-beauty shop.

Robert Wade, 87, ran the linotype machine at the black newspaper. He recalled his indignation of that day.

"I had lost three brothers in World War II," said Wade, owner of a Tuscaloosa print shop. "I couldn't understand why blacks could serve their country but weren't accepted at a university."
Thomas Linton said that Lucy sought refuge in the barbershop, where beauticians helped her wash off the mess.

"It was a gathering place," John Linton said. "I saw some tremendous things happen there when I was a kid." ...

Union Morrow, a 70-year-old brick layer and Tuscaloosa resident, has barbered with Linton for 59 years. They grew up chopping cotton together on their family's small farms in Mantua, in Greene County. Linton's fortitude made a difference to him.

"I always wanted to emulate him because he was a model," said Morrow, who still lays brick and taught the craft at Fredd and Shelton State community colleges. "He was instrumental in change. He was a peaceable, very religious and down-to-earth person. He had a great conviction that everyone should be treated fairly."

More from Al is here. The rest of the Tuscaloosa News story is here.

More on Berle: Tsuk Mitchell on The Politics of Progressive Corporate Law

Dalia Tsuk Mitchell, George Washington University Law School, has posted an article, Corporations Without Labor: The Politics of Progressive Corporate Law. It appeared in the University of Pennsylvania Law Review. Here's the abstract:

This article examines how, in the course of the twentieth century, legal scholars and political theorists helped remove the interests of workers (as differentiated from shareholders, officers, and directors) from the core concerns of corporate law and theory. Specifically, the article demonstrates how scholars' conversations about corporate entities and corporate power were influenced by a shared cultural and intellectual objection to Marxist class analysis with its focus on the proletariat. It further explores how the purging of the working class from the scholarly imagination paved a way, first, for the rise of the new classes of managers and owners and the shareholder-centered vision of corporate law and, then, for the emergence of a narrow, shareholder-wealth-maximization norm.

The article uses class as a category of analysis to interpret major events in the history of corporate law: the debate about the personality of associations in the 1910s and 1920s, the publication of The Modern Corporation and Private Property, the debate between Adolf A. Berle, Jr. and E. Merrick Dodd, Jr. about the nature and scope of managerial duties, the rise of managerialism, and the ascent of the economic theory of the firm in the 1980s.

Bratton and Wachter on Shareholder Primacy's Corporatist Origins: Adolf Berle and 'The Modern Corporation'

William W. Bratton, Georgetown, and Michael L. Wachter, University of Pennsylvania, have posted a new paper, Shareholder Primacy's Corporatist Origins: Adolf Berle and 'The Modern Corporation'. Here's the abstract:

Many corporate law discussants think of themselves as picking up where Adolf Berle and E. Merrick Dodd left off in a famous, precedent-setting debate in the 1930s. The generally accepted historical picture puts Berle in the position of the original ancestor of today's shareholder primacy position while Dodd is cast as the original ancestor of today's corporate social responsibility (CSR). This Article shows that both categorizations amount to mistaken readings of old material outside of its original context. The Article corrects the mistakes, offering new readings of some of corporate law's fundamental texts, texts that recently reached their 75th anniversaries and include Berle's famous book with Gardiner C. Means, The Modern Corporation and Private Property. Seventy-five years ago the normative issue of the day was the appropriate policy response to the crisis of the Great Depression. Both Berle and Dodd addressed the issue from a corporatist perspective which views the corporation as an entity that operates as an organ of the state and assumes social responsibilities. In so doing Berle took on the fundamental question “for whom is the corporation managed” at a time when the answer had crucial implications for social welfare. In answering the question, Berle articulated a political economy that integrated a theory of corporate law within a theory of social welfare maximization. It was a great accomplishment, but it was in a context very different from today's debates about corporate management and responsibility. Accordingly, Berle was not advocating shareholder primacy as we understand it today. Nor is there a strong claim that Berle was a CSR advocate; he never did make the final jump of advocating reorganization of the legal firm as a social welfare maximizer. His unqualified statements on the subject all presupposed a strong regulatory state and a public consensus against a corporate profit maximand. Dodd does not present a clear picture either. Dodd's Depression-era writing, once contextualized, offers only indirect support to today's CSR advocates. He is most plausibly read as a managerialist, and social responsibility within management's discretion is not what CSR tends to be about. The biggest lesson from this analysis is that the shareholder primacy school impairs its own position by making a claim on Berle.

Linder on the trials of Socrates, Moore, Galileo and Zenger

Douglas Linder, University of Missouri, Kansas City, has just posted four papers on SSRN about important historic trials. Linder's helpful website includes much more information. It covers fifty-two Famous Trials, from Socrates to Moussaoui. Legal history teachers may find the primary sources especially useful, such as the trial record from Susan B. Anthony's prosecution for voting, abolitionist John Brown's prison letters, and short film clips of Clarence Darrow and William Jennings Bryan at the Scopes Trial.

Here are Linder's abstracts:

The Trial of Socrates

The trial and execution of Socrates in Athens in 399 B.C.E. puzzles historians. Why, in a society enjoying more freedom and democracy than any the world had ever seen, would a seventy-year-old philosopher be put to death for what he was teaching? The puzzle is all the greater because Socrates had taught - without molestation - all of his adult life. What could Socrates have said or done than prompted a jury of 500 Athenians to send him to his death just a few years before he would have died naturally?

Finding an answer to the mystery of the trial of Socrates is complicated by the fact that the two surviving accounts of the defense (or apology) of Socrates both come from disciples of his, Plato and Xenophon. Historians suspect that Plato and Xenophon, intent on showing their master in a favorable light, failed to present in their accounts the most damning evidence against Socrates.

What appears almost certain is that the decisions to prosecute and ultimately convict Socrates had a lot to do with the turbulent history of Athens in the several years preceding his trial. An examination of that history may not provide final answers, but it does provide important clues.

The Trial of Sir Thomas Moore: An Account

There is much to learn from the story of how the head of one of the most revered men in England, Sir Thomas More, ended up on the chopping block on London's Tower Hill in 1535. Few people in history have faced their trials and deaths as squarely, calmly, and with as much integrity as did More. More's road from his post as Lord Chancellor of England to the Tower of London owes its course to a Bible passage, a marriage of a long-dead prince, and the consuming desire of lustful and vain-glorious King Henry VIII to marry Anne Boleyn. Swept along with More, in this fateful confluence of writings, events, and people, was nothing less than the Reformation.

The Trial of Galileo

Galileo Galilei was born in 1564 - the same year that Shakespeare was born and Michelangelo died. From an early age, Galileo showed his scientific skills. At age nineteen, he discovered the isochronism of the pendulum. By age twenty-two, he had invented the hydrostatic balance. By age twenty-five, Galileo assumed his first lectureship, at the University of Pisa. Within a few more years, Galileo earned a reputation throughout Europe as a scientist and superb lecturer. Eventually, he would be recognized as the father of experimental physics. Galileo's motto might have been follow knowledge wherever it leads us. In the 1633 trial of Galileo Galilei, two worlds come into cosmic conflict. Galileo's world of science and humanism collides with the world of Scholasticism and absolutism that held power in the Catholic Church. The result is a tragedy that marks both the end of Galileo's liberty and the end of the Italian Renaissance.

The Trial of John Peter Zenger: An Account

No country values free expression more highly than does the United States, and no case in American history stands as a greater landmark on the road to protection for freedom of the press than the trial of a German immigrant printer named John Peter Zenger. On August 5, 1735, twelve New York jurors, inspired by the eloquence of the best lawyer of the period, Andrew Hamilton, ignored the instructions of the Governor's hand-picked judges and returned a verdict of Not Guilty on the charge of publishing seditious libels. The Zenger trial is a remarkable story of a divided Colony, the beginnings of a free press, and the stubborn independence of American jurors.

Image credit: Galileo facing the Roman Inquistion by Cristiano Banti (1857).

Moss reviews Montefiore, Young Stalin, for Moscow Times

Young Stalin (Knopf) by Simon Sebag Montefiore is reviewed for the Moscow Times by Walter G. Moss, Eastern Michigan University. Moss writes:

Controversy about Josef Stalin and about how historians should depict his years in power continues to divide Russians. Simon Sebag Montefiore's new book "Young Stalin" does not deal directly with Stalin's reign -- his previous book, "Stalin: The Court of the Red Tsar," did that -- but it does provide new insights into how Stalin became the man he was by the end of 1917, still a decade before he ousted Leon Trotsky in the battle for post-Leninist leadership....

Starting with a prologue entitled "The Bank Robbery," which dramatically recounts an infamous 1907 Tiflis crime directed by Stalin, the book is full of vivid details and new revelations and analysis. Stalin was probably responsible, according to Montefiore, for numerous other robberies on trains, stagecoaches and ships, accumulating today's equivalent of millions of dollars for the Bolshevik cause....

More flamboyant and less cautious in his prose than most academic historians, Montefiore frequently depicts Stalin in the Caucasus as a "terrorist" and "gangster," or "expert in gangsterism," and as "an arsonist, killer, bank robber ... [and] seducer." The author is fond of using such vernacular terms as "hit men" and "female gunslingers." He refers to future show-trial prosecutor Andrei Vyshinsky as Stalin's "sidekick" who "organized terrorist gangs and [had] become a hit man." He tells us that "Stalin was unusual -- as adept at debating, writing and organizing as he was at arranging hits and heists," and that he was the "godfather of bank robberies in the Caucasus."...The author refutes some of the most slanderous charges against Stalin, such as that he once acted as a tsarist police agent, and at the end of the book we read of Stalin's generosity to old friends.

By then, however, Montefiore has indicated how, despite some redeeming qualities, Stalin had developed into the man who would later take millions of innocent lives. By 1917, a year in which he played a greater role than Trotsky admitted, his personality had been shaped by many influences -- parents who often beat him; a Georgian boyhood that furnished many examples of violence and vengeance; an Orthodox seminary education that taught him (in his own words) "surveillance, spying, invasion of inner life, violation of feelings"; an "amoral" revolutionary subculture; and years in Siberian exile, which contributed to his sense of isolation and self-containment. Already while in exile, Stalin said, "My greatest pleasure is to choose one's victim, prepare one's plans minutely, slake an implacable vengeance, and then go to bed. There's nothing sweeter in the world." Montefiore also contends that, by early 1917, Lenin and Stalin essentially "shared the same sentiments and favored identical methods." Overall, this vivid and significant book tells us more about the young Stalin than we have ever known before.

The full review is here.

Gergen reviews four new books on the Bush Administration

David Gergen weighs in on the Bush presidency in a review of four recent books in today's Boston Globe. On Gergen's argument that George Bush is no Richard Nixon, I expect that historians will have much more to say in the decades to come. One way to compare their records on constitutional rights and powers will be to assess the overall state of constitutional law as practiced at the end of both presidencies, something the current genre of Bush Administration books is not taking up.

The books reviewed are:

Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy by Charlie Savage (Little, Brown)

The Terror Presidency: Law and Judgment Inside the Bush Administration by Jack Goldsmith (Norton)

Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches by John Dean (Viking)

Dead Certain: The Presidency of George W. Bush by Robert Draper (Free Press)

In the days of Vietnam, Americans could watch on their television screens what was happening in the jungles overseas, but only with the passage of time did they see that a second, secret war was being waged here at home - an assault upon the constitutional order. In the end, the attacks on the rule of law became as dangerous to the nation as the quagmire on the battlefield. Are we witnessing history repeat itself today? Not exactly. George W. Bush is no Richard Nixon. But there are enough parallels between then and now that unless we pay close attention, we could badly damage our historic system of governance.

That warning emanates loud and clear from a spate of new books on the way the Bush-Cheney administration - largely out of the public eye - has seized upon the war on terror to drive an unprecedented expansion in the powers of the presidency. The best and most comprehensive of the new works is Charlie Savage's "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy." Savage, a graduate of Harvard and the Yale Law School, won a Pulitzer Prize for his coverage last year of the administration's efforts to stretch the law. The most illuminating volume is "The Terror Presidency: Law and Judgment Inside the Bush Administration," by Jack Goldsmith. Goldsmith is a conservative legal scholar who was recruited to a key position in the administration, courageously tried to rein in his colleagues, and, after repeated clashes, packed his bags. He is now a professor at the Harvard Law School....

The larger issues raised by Savage and Goldsmith are how we govern ourselves as a people. The Bush-Cheney team has been insisting that in time of war the Constitution and common sense tell us that the president must be entrusted with the power to protect the nation as he and he alone sees fit; neither the Congress nor international treaties agreed to by the United States should bind him. The administration has a legitimate point that the president and his team must be able to act quickly and forcefully in the face of threats. But in its zeal, as Savage and Goldsmith argue, it has been defying the Founders' express desire for checks and balances. As much as Madison and Hamilton wanted an effective executive, they also wanted to avoid an autocratic president. Down that road, as they saw, is a loss of liberty, so they invented instead, as Richard Neustadt observed, a system of "separated institutions sharing powers." If there were any remaining question, Justice Sandra Day O'Connor surely provided the answer in the Supreme Court's decision of 2004 in the Hamdi v. Rumsfeld case: "A state of war is not a blank check for the president."...

Goldsmith concludes that we can at least take comfort in the way that the courts, Congress, and public opinion are finally putting checks on the expansion efforts by the administration....On this point, Savage disagrees. He cites Supreme Court Justice Robert H. Jackson's warning that any new claim of executive power, once validated into precedent, "lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes." Seeing how quickly the Nixonian spirit of three decades ago was revived in our own time, Savage - alas - has the better argument.

Read Gergen's extended review here.

Reviewed: Weitz, Weimar Germany: Promise and Tragedy

WEIMAR GERMANY: Promise and Tragedy (Princeton University Press), by Eric D. Weitz is reviewed by Brian Ladd in today's New York Times. Ladd writes:

Democracy is a fragile flower, as we learn again and again. Among the many failed democracies of the past century, few held more promise than Germany’s Weimar Republic, and none collapsed into greater horror. Its story can be told in two ways: as a drama of decadent excess and tragic flaws, or as an elegy recalling noble promises betrayed by treacherous enemies. Eric D. Weitz’s “Weimar Germany: Promise and Tragedy” falls squarely into the second category.

Weitz, a professor of history at the University of Minnesota, praises the republic’s achievements and condemns its murderers: the right-wing businessmen, army officers and civil servants who handed the country over to the Nazis. Together, the respectable and the radical right nourished the toxic lie that Germany lost World War I because it was “stabbed in the back” by leftist democrats. Still, the Weimar of this book is not a prelude to Hitler, who barely puts in an appearance....

The republic’s mistake, Weitz argues, was its failure to dispatch its conservative enemies at the beginning. This is a disquieting view because it can lead to the conclusion that the moderation of the German socialists was a mistake, whereas the brutality of the Russian Bolsheviks demonstrated what successful leftists had to do to prevail over their opponents. Weitz, it should be said, does not make this claim. Indeed, he dismisses conservative attempts to blame German Communists for Weimar’s demise....

Better than most histories, the book connects culture, politics and city life. Modern architecture, for example, is presented as a response to the poor housing conditions of workers, while innovative artistic uses of light and sound are described as expressions of the new urban cacophony. This gives the book a greater breadth than its model, Peter Gay’s more elegantly written “Weimar Culture” (1968).

The rest is here. Weitz's first chapter is here.

Catherine Roraback, attorney in Griswold v. Connecticut, has died

Catherine Roraback, attorney for the plaintiffs in the landmark case establishing the right to birth control, Griswold v. Connecticut (1965), died this week at the age of 87. The Connecticut Women's Hall of Fame writes: "Long before the advent of public interest law Roraback made it part of her practice to protect the legal rights of 'dissenters and the dispossessed.'"

Her involvement in Griswold is remembered this way in the New York Times:

In the early 1960s, Ms. Roraback represented Estelle Griswold, then the executive director of Planned Parenthood in Connecticut, and Dr. Charles Buxton, the chief of obstetrics and gynecology at Yale University’s School of Medicine, as their case rose through the state courts.
For years, Ms. Griswold and Dr. Buxton had fought to overturn an 1849 Connecticut law that prohibited the use and prescription of contraceptives. When their efforts failed, they decided to break the law themselves by opening a birth-control clinic in New Haven.

Three days after it opened, the clinic was raided by detectives.

“They seemed to welcome the intrusion,” one of the detectives, Harold Berg, told The New York Times in a 1989 review of the case. “They gave us everything we were looking for.”

With Ms. Roraback representing them, Ms. Griswold and Dr. Buxton were found guilty; then she began the appeals process. In 1965, a noted First Amendment scholar, Thomas I. Emerson, argued the case of Griswold v. Connecticut before the Supreme Court. In a 7-to-2 decision, the court found that the “statute forbidding use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights.”

“It was simply a bad law,” Ms. Roraback told The Times in 1989. “People were concerned about controlling world population, and felt that outlawing contraceptives was out of step with the time.”

She also represented Bobby Seale of the Black Panther Party and civil rights workers in Mississippi. Roraback was the only woman in the Yale Law School class of 1948.

There is more in the Hartford Courant. Hat tip.

McNamara on Holocaust Denial, the History Wars, and Law's Problems with the Past in Australia

Lawrence McNamara, School of Law, University of Reading, has posted an article, History, Memory and Judgment: Holocaust Denial, the History Wars, and Law's Problems with the Past. It appeared in the Sydney Law Review. Here's the abstract:

Australia's current 'History Wars' raise difficult historiographical questions about establishing what happened in the past. In light of the courts' often important engagements with history, these questions have special significance for the law. Using the Irving v Lipstadt libel case regarding Holocaust denial and the possibility of a defamation action in the History Wars - both allege deliberate fabrication and distortion - this article explores how history and historians are subjected to legal judgment. It identifies as key considerations the methodological differences between and within law and history; the use and misuse of postmodernism and relativism; and the role of law and legal judgment in the transmission and construction of national memory.

on the road...

I will be traveling, so apologies if there is little on the blog for a couple of days.

Joseph on Black Power, Weiner on the history of the CIA, Rampersad on Ellison -- on Book TV this weekend

Time to set the Tivo. There's a great weekend for history coming up at C-Span2 Book TV. On the schedule are:


Saturday at 1:15 PM, and Sunday at 6:00 AM
Waiting 'Til the Midnight Hour: A Narrative History of Black Power in America
Author: Peniel Joseph


Saturday at 4:00 PM
After Words: Tim Weiner author of "Legacy of Ashes: The History of the CIA" - 2007 NATIONAL BOOK AWARD FINALIST


Saturday at 5:00 PM
2007 National Book Festival:
Arnold Rampersad, "Ralph Ellison: A Biography"
Author: Arnold Rampersad - 2007 NATIONAL BOOK AWARD FINALIST

Lakin reviews Lanni, Law and Justice in the Courts of Classical Athens

Adriaan Lanni, Law and Justice in the Courts of Classical Athens (Cambridge University Press, 2006) is reviewed in the Law and History Review by Kyle Lakin, Stanford University. Lakin writes:

If ideal courts in a democracy resolve disputes according to law, then the most democratic courts of the world's first and most democratic state seem far from ideal. Litigants in Athens's popular courts often use arguments that appear prejudicial, based upon character invectives, pleas for pity, and boasts of past civic service. These arguments may show that Athenian courts had more of a political than a judicial role in Athens' participatory democracy. This conclusion has consequences beyond historical debate. On this premise, Richard Posner recently criticized Justice Stephen Breyer's argument that American courts should follow Athenian courts in encouraging democratic participation. Posner argues Athenian courts are a dangerous model because in Athens "[t]he only justice was popular justice." Posner, "Justice Breyer Throws Down the Gauntlet," Yale Law Journal 115 (2006): 1701.

In her book, Lanni argues that "popular justice" does not mean Athenian courts were primarily political. "[T]he primary aim of [popular] courts was to resolve disputes justly, taking into account the circumstance of each case" (176). Athenian popular courts, like modern courts, sought to resolve disputes according to law. However, Athenians valued a jury's discretion to hear and evaluate arguments beyond those necessary to apply statute. Greater jury discretion sacrificed the courts' ability to announce stable rules across cases, but Athenians valued jury discretion more than legal certainty. Athenian "popular justice" is the first documented response to the "fissure between following generalized rules and doing justice in [a] particular case"—a tension that also exists for modern courts (4).

Lanni begins with an excellent, concise introduction to Athenians' social values, political system and courts. She then argues Athenians allowed non-legal arguments in the popular courts because they had "an extremely broad notion of what information was relevant to reaching a just legal verdict" (64). In popular courts, litigants coupled legal arguments with arguments built on "extra-legal evidence" (evidence unnecessary to apply the appropriate statute). Litigants present the same kinds of extra-legal evidence often enough that "jurors [surely] thought them relevant to popular court decision making" in the same way as a relevant law (44). Litigants also used these arguments to appeal to various standards of Athenian justice—the ethics of communal living or the value of punishing a defendant, for example. Jurors decided the relative importance of each argument, having enormous discretion to render a just verdict for each case.

Athenians must have valued jury discretion in the popular courts for two reasons. First, when Athenians created the popular courts, they could have adopted a legalistic model they established for homicide courts a century earlier. Special Athenian homicide courts limited litigants to strictly legal arguments throughout the Classical period. Unlike other crimes, Athenian homicide statutes specify the substantive elements of homicide. Homicide litigants focus more on these elements and present far fewer extra-legal arguments, even when compared to litigants arguing cases in popular courts that involve a homicide. Greater jury discretion in the popular courts must therefore reveal "a conscious reluctance to embrace [homicide courts'] mode of notably stricter legal argumentation" (111).

Second, Athenians retained discretion even though they learned that jury discretion prevents generalized rules that decrease social costs. In the maritime courts that judged trade disputes, Athenians recognized consistent verdicts were "vital to attracting the foreign merchants who dominated maritime trade" and litigants presented more legal arguments (173). Athenians required that maritime disputes concern a written contract, and maritime arguments more often cite contractual language. Lanni concludes that Athenians must have allowed discretion in the popular courts because they perceived social and political benefits that outweighed the costs of the uncertainty discretion created.

Lanni argues convincingly that popular courts aimed for legal justice in each case, sacrificing generalized rules. But her arguments are weaker that in certain courts Athenians consciously abandoned jury discretion. Our only example of a defense speech in homicide courts uses extra-legal arguments throughout. Lanni admits that prosecutors rely more often on legal arguments, so our sources naturally emphasize legal arguments. Maritime litigants do cite their contracts in court, but citations rarely support legal arguments about the substantive requirements of Athenian contract law. Litigants usually cite the contract for an extra-legal reason, such as to show the benefits Athens would have reaped had the contract been fulfilled. Whether Athens contained distinct "pockets of legal formalism" requires more argument (175). Athenians more likely saw jury discretion as a natural outgrowth of the people's political power in a demokratia.

Nevertheless, Lanni shows that Athenian popular courts aimed for justice under the law. Seemingly prejudicial arguments are explained by Athenian preference for jury discretion in seeking justice over safeguards ensuring consistent verdicts. Athenian democracy and "popular justice" may have necessitated rejecting formal legalism, but they did not obviate jurors applying law.

2007 British Legal History Conference papers available on-line

Papers from the 18th British Legal History Conference: Judges and Judging held at the University of Oxford, England, July 2007, are now available on-line. Hat tip.

Papers include:

Paul Brand, Judges and Judging 1176-1307

Kelly De Luca, Lord Chancellor Ellesmere and the Law of Nations

James Jaffe, The Limits of Justice and Fairness: Expanding the Scope of Arbitration in Britain and India during the Late Eighteenth and Early Nineteenth Centuries

Susan Priest, Australia’s Early High Court, The Fourth Commonwealth Attorney-General And the ‘Strike of 1905’

And much more!

Eisgruber on The Legacy of the Bork Hearings

Chris Eisgruber, Princeton University, is guest blogging at Balkinization on the legacy of the Bork hearings. His first post begins:

This month marks the 20th anniversary of the Senate vote rejecting the Bork nomination (for anybody who wants to celebrate—or mourn—the exact date is October 23). In a series of three postings, I will try to take stock of what has happened to the confirmation process since the Bork hearings, drawing on themes from my recently published book, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press, 2007).

As anybody who watched them will remember, the Bork hearings were unforgettable political theater. They mixed hyperbole and scandal with sophisticated constitutional argument. Bork, unlike any nominee before or after him, spoke frankly about his controversial jurisprudential views. At the end of the day, the vote was not especially close: the nomination failed, 58-42.People divide about whether the hearings were a sordid debacle or a triumph of constitutional politics. I’m on the triumph side. The Senate rejected Bork for exactly the reasons that Ronald Reagan had nominated him....

Reagan might have defended Bork on the ground that he was an exceedingly able, and exceedingly pure, conservative—but he didn’t. Instead, Reagan described Bork as an “even handed and open-minded” successor to the moderate Lewis Powell. The Senate didn’t buy it.

Continue reading here.

Mitchell on The Speculation Economy: How Finance Triumphed Over Industry

Lawrence E. Mitchell, George Washington University Law School, has posted on SSRN the prologue and table of contents of his new book, The Speculation Economy: How Finance Triumphed Over Industry (Berrett-Koehler, 2007).

[Note to dissertation writers: this is exactly how to get the word out about your dissertation without jeopardizing your ability to publish it as a book. More on that here.]

Here's Mitchell's SSRN abstract:

The Speculation Economy identifies the moment in American history when finance triumphed over industry. It shows how the birth of the giant modern corporation spurred the rise of the stock market and how, by the dawn of the 1920s, the stock market left behind its business origins to become the very reason for the creation of business itself. The consequent widespread distribution of intrinsically speculative common stock embedded speculation into the capital structures of most large American corporations.

The stock market become the driving force of the American economy in the first decade of the 20th century as a result of the birth of the giant modern corporation. The Speculation Economy tells the story of the legal, financial, economic and social transformations that allowed financiers to collect companies and combine them together into huge new corporations for the main purpose of manufacturing stock and dumping it on the market. Businessmen started to make more money from legal and financial manipulation than from practical business improvements like innovations in technology, management, distribution, and marketing.

The Speculation Economy explains how and why, at the turn of the 20th century, the stock created by the giant modern corporation became dispersed throughout the market. It shows the shift in attitudes of ordinary Americans from cautious bond buyers into eager stock speculators. At the same time, it shows how a federal government wedded to an outdated economic model and struggling to expand its own power failed to regulate finance and thus missed the chance to control corporations. While politicians argued, finance came to dominate industry, and as stock ownership spread widely throughout society, the stock market came to dominate finance.

The Speculation Economy examines this history in detail from the perspectives of the economic history of the growth of the market, the social history of early stockholding, the intellectual history of financial analysis of the era, the federal regulatory attempts to control the giant combinations, and the roots of modern securities regulation that emerged from the antitrust debate of the first decade of the 20th century.

The downloadable paper includes the Table of Comments and Prologue of The Speculation Economy.

And here are the blurbs:

"Mitchell highlights two of the most pivotal events in our history of modern finance: the rise of Wall Street and investment banking as a key factor in American capitalism and the federal government's response to the ever more complex role of finance capitalism. Mitchell's writing is graceful, comprehensive, and persuasive that as significant as the story of trusts and the trustbusters has been, the rise of finance capitalism and ultimately its federal coordination through such agencies as the Federal Reserve System and the Securities and Exchange Commission may be even more important."-Joel Seligman, President, University of Rochester and author, the Transformation of Wall Street.

"Lawrence Mitchell's new work is full of fresh insight about the rise of what he calls `American corporate capitalism.' Anyone interested in the development of our modern financial markets will be richly rewarded by a careful reading."-Harvey J. Goldschmid, Dwight Professor of Law, Columbia University, former Member, United States Securities and Exchange Commission

"Professor Mitchell's provocative thesis is that the development of the modern American public corporation was not an organic process but rather occurred almost overnight at an identifiable point in time and as a result of identifiable political and economic forces. This important new work helps us understand the forces that continue to shape the dominant form of economic actor of our time."-Stephen M. Bainbridge, William D. Warren Professor of Law, UCLA School of Law

"An impressive work of legal, economic and historical scholarship that will enrich today's debate over corporate accountability and regulatory policy."-Charlie Cray, director of the Center for Corporate Policy and co-author of The People's Business: Controlling Corporations and Restoring Democracy

Rothchild on an Introduction to Athenian Democracy of the 4th and 5th Centures BCE

Rothchild, Wayne State University Law School, has posted a new paper, Introduction to Athenian Democracy of the Fifth and Fourth Centuries BCE. Here's the abstract:

This essay serves to introduce students to the institutions of the democratic constitution of ancient Athens, during its flowering in the fifth and fourth centuries BCE. Its principal purpose is to enable students to compare the Athenian democracy with the system established by the U.S. Constitution. It will serve equally well to meet the needs of anyone who is interested in the Athenian democracy for its own sake. The essay assumes no prior background knowledge about the Athenian system.

The Athenian democracy is worthy of study if for no other reason than that it was the inspiration for modern democratic systems. The ancient system takes on added interest from the standpoint of comparative constitutional law. Many of the institutions of the Athenian democracy seem quite peculiar to us moderns, and some of them strike us as downright bizarre. Yet the goals of those who designed that system were very similar to the goals of the designers of modern constitutional democracies: establishment of a system in which political power resided with the people, in which government officials had enough power to be able to discharge their functions, and in which official power was effectively constrained so that it did not devolve into tyranny.

The essay has several features that enhance its pedagogical mission. The expository portion is followed by a set of review questions that help the student test her comprehension, and a set of discussion questions meant to facilitate classroom discussion. A glossary of Greek terms used in the essay is also included.

Remembering David Currie

Constitutional scholar and historian David Currie, Edward H. Levi Distinguished Service Professor of Law at the University of Chicago, passed away on October 15 at the age of 71. He is remembered with great fondness at the Chicago Law School Faculty Blog, where you can leave comments, and in a detailed obituary on the law school website. I never had an opportunity to meet Professor Currie, but I benefited from his works, as will future generations of legal historians.

Here is an excerpt from the U of C website:

Professor Currie authored or co-authored three major casebooks on Federal Courts, Environmental Law, and Conflict of Laws. He is the author of numerous articles in legal periodicals as well as various books - including: The Constitution of the Federal Republic of Germany (1994) and Air Pollution: Federal Law and Analysis (1982).

Professor Currie is perhaps best known in academic circles for two series of books he wrote about constitutional history. The first, The Constitution in the Supreme Court, was published in two volumes (1985 and 1990), each about a century of the Court’s interaction with the Constitution. The second, The Constitution in Congress, appears in three volumes, The Federalist Period (1997), The Jeffersonians (2001), and Democrats and Whigs (2005). He was working on the series at the time of his death. [Amazon.com shows a fourth volume: Descent into the Maelstrom, 1829-1861(2006).]

Professor Currie also wrote a widely read book for non-lawyers entitled The Constitution of the United States: A Primer for the People, and in 2006 recorded a reading of the entire text of the Constitution as a gift to the graduating class of the Law School.

There is more at The Green Bag.

Garrow on Thomas

David Garrow claims that other reviewers have "missed the lede" on the new Clarence Thomas biography, suggesting that "Any reader who comes to this book without a pre-existing animus toward Thomas will likely feel tremendous empathy for his life story, even if the reader's legal views -- like this reviewer's -- differ from Thomas'." His sympathetic reading is on Law.com and will appear in the November issue of American Lawyer.

Jabari Asim's compelling take in the Washington Post is noted on LHB here.

Carmona and Donoso on Cost Accounting in Early Regulated Markets: The Case of the Royal Soap Factory of Seville (1525-1692)

Salvador Carmona, Instituto de Empresa, and Rafael Donoso Anes, University of Seville, have posted a paper, Cost Accounting in Early Regulated Markets: The Case of the Royal Soap Factory of Seville (1525-1692). Here's the abstract:

Regulated markets and state-owned monopolies characterized the economies of many Southern European territories around the end of the Middle Ages and during the Renaissance. Although this economic form was of considerable importance in implementing public policy at the time, investigation into the functioning of cost accounting in such contexts has been consistently neglected in accounting research. In this paper, we examine the role of cost systems in early regulated markets by focusing on the case of the soap production and distribution monopoly in the City of Seville, Spain. In 1423, the King of Castille granted the soap monopoly to the Duke of Alcalá as a reward for his war achievements, but pricing decisions rested in the hands of the local government. Disputes between the Duke of Alcalá and the local government (the parties) about the fair price of a pound of soap were negotiated after the development of tests that replicated the soap production process and determined its cost through complex calculations.

Just published: Muller, American Inquisition

American Inquisition: The Hunt for Japanese American Disloyalty in World War II by Eric Muller has just been published by the University of North Carolina Press. Here's the book description:

When the U.S. government forced 70,000 American citizens of Japanese ancestry into internment camps in 1942, it created administrative tribunals to pass judgment on who was loyal and who was disloyal. In American Inquisition, Eric Muller relates the untold story of exactly how military and civilian bureaucrats judged these tens of thousands of American citizens during wartime.

Some citizens were deemed loyal and were freed, but one in four was declared disloyal to America and condemned to repressive segregation in the camps or barred from war-related jobs. Using cultural and religious affiliations as indicators of Americans' loyalties, the far-reaching bureaucratic decisions often reflected the agendas of the agencies that performed them rather than the actual allegiances or threats posed by the citizens being judged, Muller explains.

American Inquisition is the only study of the Japanese American internment to examine the complex inner workings of the most draconian system of loyalty screening that the American government has ever deployed against its own citizens. At a time when our nation again finds itself beset by worries about an "enemy within" considered identifiable by race or religion, this volume offers crucial lessons from a recent and disastrous history.

And the blurbs:

“At last, Eric Muller shines new light on the U.S. government's failed attempt to define ‘loyalty’ among a supposed ‘enemy race’ during wartime. His detailed examination of the judgment of tens of thousands of those of Japanese ancestry, including my family, incarcerated during World War II, is an important historical lesson we must never forget and an injustice we must never repeat."--Norman Y. Mineta

"In this fascinating account, Eric Muller relates the forgotten story of how a U.S. government agency worked with the military and intelligence communities to determine who was in fact a 'true' American. That some of our best and brightest tried to establish an acid test for loyalty--and failed--should give us pause today."--Lane Ryo Hirabayashi, George & Sakaye Aratani Professor of Japanese American Internment, Redress, and Community, University of California, Los Angeles

"Combining intensive archival research and brilliant analysis, Eric Muller gives us another example of bad news from the good war. He shows how military and civilian government lawyers pioneered large-scale loyalty testing on incarcerated Japanese Americans, establishing precedents used in defining subversives during the Cold War."--Roger Daniels, Emeritus, University of Cincinnati, and author of Prisoners Without Trial: Japanese Americans in World War II

Muller is also the author of Free to Die for Their Country: The Story of the Japanese American Draft Resisters in World War II. He blogs about the new book here and here.

Mashaw on Administrative Law from Jackson to Lincoln, 1829-1861

Jerry Louis Mashaw, Yale Law School, has posted a new article, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861. It is forthcoming in the Yale Law Journal. Here's the abstract:

Jacksonian America was a country in rapid transition, technologically, economically, geographically, sociologically and politically. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to find an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy - including a broadened electorate, offices open to all and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people.

But as is often the case, the institutionalization of democracy demands a corresponding increase in governmental capacities. Destroying the power of the "Monster Bank" gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of "rotation in office" created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side-effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, prompted the creation of a recognizably modern system of health and safety regulation.

"The Democracy" established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging, 19th Century, model of American administration law. In that model administrative accountability was preeminently a matter of (1)political oversight and direction and (2) internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review that found administrative discretion, and therefore non-reviewability, almost anywhere thought by the responsible official was required. Yet, as individuals, officials remained personally responsible for damages whenever a jury determined that their actions were unauthorized pursuant to some standard common law tort or property action.

Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the 21st Century legal imagination, it fit comfortably within Jacksonian democratic ideology. "The Democracy" did not envision the judiciary as having a mandate to protect errant officials from responsibility to their fellow citizens for compensation, or to interfere with the discretionary authority of an executive branch headed by a popularly-elected President. Internal hierarchical control of administration smacks of bureaucracy, but not when viewed as reinforcing the elected President's power to carry out the people's will. Bureaucracy, understood as hierarchical control of executive branches officials, and democracy, understood in "presidentialist" terms, were complements, not competitors. Then, as now, competition between the President and Congress for control of administration was mediated almost exclusively by institutional contestation, not by judicial adjudication. But for Jacksonian's, more than for us, this generally partisan struggle was the essence of the new democracy that they had fashioned, not a blemish on some non-partisan ideal of democratic deliberation.

Reviewed: Sunstein, Republic.com 2.0

Republic.com 2.0 by Cass R. Sunstein (Princeton University Press) is reviewed by Jerome Weeks for the San Francisco Chronicle. Weeks begins:

Several years ago, the Online News Association posted on its site a proposed "bloggers' code of ethics." The voluntary guidelines were rather self-evident, well-meaning maxims suitable for framing: "Be honest and fair." "Minimize harm."

Many blogger journalists responded approvingly. But many others were incensed. Their denunciations could be summed up best by Eric Cartman, the funny, foulmouthed, unleashed id on "South Park": "You don't know me! I can do what I want!"

This simplistic libertarianism afflicts much of our thinking about the Web, Cass Sunstein argues in his updated book, "Republic.com 2.0." Even sophisticated thinkers, such as author Chris Anderson ("The Long Tail"), do not see beyond consumer self-interest as the Web's great, if not sole, purpose. It offers more goods to more people (often in areas where such goods weren't available). It permits more hobbyists to chat about collecting yurts, more people to watch videotaped Taserings. How can that be bad?

It isn't, Sunstein says, on the whole. It's terrific, really. (He says these things repeatedly; why will become clear.) But we're confusing the Web's individual license or, especially, its consumer bonanza with increased democracy. A University of Chicago Law School professor and a frequent author on rights, economics and constitutional law, Sunstein applies a simple-seeming but profound yardstick for measuring the Web's value: Is it good for democracy? And by democracy, Sunstein means not just wider markets for wind chimes but also the collective working out of our shared destiny as Americans.

Continue reading here.

Reviewed: Faludi, The Terror Dream

THE TERROR DREAM: Fear and Fantasy in Post-9/11 America by Susan Faludi (Metropolitan Books/Henry Holt & Company) is reviewed this weekend in the New York Times. But the Faludi review not to miss is Rebecca Traister's interesting pairing of Faludi and the new Springsteen album Magic, at Salon.com. Traister begins:

It may be pop culture heresy to rope together Susan Faludi's new book, "The Terror Dream," and Bruce Springsteen's new album, "Magic," both released this week. Faludi, author of 1991's "Backlash," is a diligent chronicler of the country's gender problems. Springsteen is a swaggering blue-collar cult hero whose critical thinking about American culture has made him an international rock star. Yet there is a neat perfection in the pairing of these two uniquely American storytellers, as if Mars and Venus had conveniently weighed in simultaneously, after six years of consideration, on what exactly has unfolded in this country, with which they are each so critically obsessed, in the wake of the terrorist attacks of Sept. 11, 2001.

Springsteen, of course, has already made one contribution to the national artistic accounting of 9/11 with "The Rising," his 2002 album that Faludi might crankily write off (as she does movies like "United 93" and "World Trade Center") as a piece of art that "seemed to have no purpose but to repeat what we already knew." On it, Springsteen gave voice to those whose lives had been damaged by 9/11: a firefighter who died, one who survived, widows both American and Arab. Five years later, he and Faludi are on related missions: to step back from the firsthand experience of events and attempt to pick out the patterns in all that's gone down since.

Faludi is characteristically grim in her reading of the country's tea leaves; she is unsurprised to report that the cultural signifiers are, as always, oppressive. Springsteen's music has always been buoyed by American symbolism; he's never been shocked by its misuse, but on this record, his grief and anger over its twisted meanings are palpable. Both "The Terror Dream" and "Magic" employ images of surrealist dread to describe the post-9/11 manipulation -- by media and politicians -- that has left us warped and brainwashed, and both deploy terrifying visions to make their points. On the title track and throughout his record, Springsteen describes the creepy carnival tricksterism of the Bush administration and the sinuous ways it has distorted his vision of America, while Faludi sees a vast national conspiracy to put women back in the kitchen and alpha males like John Wayne (or perhaps Bruce Springsteen) back in their lost positions of power.


Continue reading here.

There is also a Faludi review in the Chicago Trib. The Trib has made it harder to find reviews on their website, unfortunately, but the paper has had among the most substantive reviews of the major papers, so it is worth the effort. Go here and scroll down.

Waterhouse on Reparations and Black Life Under American Law, 1619-1972

Carlton Waterhouse, Florida International University, suggests that "the civil rights legislation of the 1960s and 1970s represented one more step in a series of unfortunate legal events that ultimately reflected the dominant attitude of society's white majority toward ending the Jim Crow practices of the south," in a new article on SSRN. Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration of Black Life Under American Law from 1619 to 1972 and A Challenge to Prevailing Notions of Legally Based Reparations appeared in the Boston College Third World Law Journal. Here's the abstract:

The growing body of literature on reparations consists primarily of articles showing that black reparations are consistent with various legal theories, promote racial justice, or further broader societal goals like eliminating poverty and promoting education. This article takes the distinct position of challenging reparations supporters to justify their confidence in the legal system to deliver meaningful reparations for slavery and segregation in light of the historic use of law as a means of instantiating white racial supremacy and the prospective individualistic approach to race adopted by contemporary judges and legislators. The article also challenges those who oppose reparations based on its supposed unfairness to contemporary citizens to explain how their position differs from that of past generations who opposed reparations and related legal efforts to redress racial injustices as unfair at that time. To support the challenge to reparations commentators, the article examines the historical framework of blacks' relationship to the law through legislation and court rulings from 1619-1963. The article closes by presenting an alternative approach to reparations focused on building and strengthening black political, economic, and educational institutions.