Today's Academy, The History of Marijuana, and More: This Week in the Book Pages

This week, The New York Times has reviews of two books critiquing the academy.  Hanna Rosin reviews Nathan Harden’s Sex and God at Yale: Porn, Political Correctness, and a Good Education Gone Bad (Thomas Dunne).  The title is a riff on William Buckley, Jr.’s God and Man at Yale.  There’s been buzz about the book elsewhere this week.  See, for example, The Chronicle of Higher Education (here) and at Inside Higher Ed (here).   Rosin writes:

Harden’s...examples of an institution run amok (an acting class run by a yoga fascist, a Spanish language class in which the professor shows a film with a lesbian sex scene) are revealing but not revealing enough to make one feel that an obsession with sex has turned Yale into a “great institution in decline — an institution of tremendous power and influence that is no longer aware of why it exists or for what purpose,” as Harden claims.

Read the full review here.

The other is Andrew Delbanco's review of The Victims' Revolution: The Rise of Identity Studies and the Closing of the Liberal Mind (Broadside Books) by Bruce Bawer.  Bawer "concludes that the contemporary American academy is a place of hypocrisy and fear, where tenured professors proclaim empty solidarity with exploited workers, and Take Back the Night rallies promote the idea that 'male students metamorphose, werewolf-life, into potential rapists' every night."  According to Delbanco "[t]his deliberately intemperate book is a useful reminder that liberal education always faces threats from one kind of intolerance or another."  Read on here.     

In TNR: The Book: a review of Sonia Faleiro's Beautiful Thing: Inside the Secret World of Bombay's Dance Bars (Black Cat); Tim Fernholz reviews Martin A. Lee's Smoke Signals: A Social History of Marijuana- Medical, Recreational and Scientific (Scribner); Yelena Akhtiorskaya reviews Alexandra Popoff's The Wives: The Women Behind Russia's Literary Giants (Pegasus) 

The Nation has a review of Tim Weiner’s Enemies: A Historyof the FBI (Random House), and at the Wall Street Journal, you'll find a review of two books on black popular culture: Elijah Wald's The Dozens: A History of Rap's Mama (Oxford) and Yuval Taylor and Jake Austen's Darkest America: Black Minstrelsy from Slavery to Hip Hop (Norton). 

Happy reading!

CFP: Congress of Turkish Legal History

A belated welcome to the blogosphere to the Otttoman Law Blog, on which there is the following call for papers for a Congress of Turkish Legal History to take place at Istanbul University, December 21-22, 2012. "The Congress is open to the interdisciplinary studies on Turkish legal history and historiography."  The full announcement and application form for the Congress are here.

More on "Before Roe v. Wade"

We earlier posted a notice of the new edition of Linda Greenhouse and Reva B. Siegel’s documentary history, Before Roe v. Wade.  We hear from the authors that this “really is a new edition (with a new afterword that brings the material forward).”  It has a new cover, pictured at right.  Note that the entire book is available as a free download, as the authors would like to see it used for teaching purposes.

Weekend Roundup

• Via Biddleblog (the blog of the University of Pennsylvania Biddle Law Library), we've learned that "C-SPAN has made virtually their entire archive of programming available online for users to watch." Go nuts, here. 

•  "Legal Pirates, Treasure, and Murder" -- sound interesting? Look no further than the Library of Congress.

•  Josh Blackman, South Texas College of Law, has a fun post on his blog prompted by an out-of-the-blue conversation with the granddaughter of the president of the defendant company in Carolene Products.

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

The Survey: Equality at the Founding

Over the past few years, we've seen a series of books on equality in America, most lamenting the fact that the United States has grown increasingly unequal over the past few decades.  To take just a few examples, see Timothy Noah, The Great Divergence: America's Growing Inequality Crisis and What We Can Do About It (New York: Bloomsbury, 2012), Joseph Stiglitz, The Price of Inequality: How Today's Divided Society Endangers Our Future (New York: Norton, 2012); and Glenn Greenwald, Equality and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful (New York: Macmillan, 2011). All of these texts seem to assume that inequality is and has always been considered a bad thing.  Has it?  Gordon Wood makes the case in The Radicalism of the American Revolution that the founders endorsed a theory of equality "as no other nation has ever quite had it" precisely because they believed that no one "was really better than anyone else." (RAR, 234)  Yet, even Wood concedes that "[i]n embracing the idea of civic equality ... the revolutionaries had not intended to level their society." (RAR, 233).  No indeed.  Take Federalist #10.  Often read for its endorsement of a large national republic, the document also presented a vigorous defense of inequality, one that anticipated Marx by over half a century.  Take this line, for example: “the most common and durable source of factions has been the various and unequal distribution of property … A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes.”  Isn't that the basic premise of Marx's 1848 Communist Manifesto?  Yet, unlike Marx, Madison came to view the emergence of "different classes" as a positive.  “From the protection of different and unequal faculties," he observed, "the possession of different degrees and kinds of property immediately results,” meaning that people with certain faculties, or talents, will be rewarded with certain amounts of property.  More property will go to those with more faculties and, in Madison’s view, “[t]he protection of these faculties is the first object of government.”  Put simply, government's role is to preserve inequality, precisely so that there will be innovation and incentive to work.  This leads to a larger argument about the Virginia Plan and the ensuing Federal Constitution  Rather strive to end inequality, Madison’s Constitution aimed to preserve it, precisely to encourage the development of individual faculties, or talents, talents which would then be rewarded with property.  What would Stiglitz, Greenwald, and Noah say to this?  Rather than a classless society, as Marx would propose, Madison seemed to envision a society of vast disparities in wealth, disparities protected by the Constitution.  Any call for “an equal division of property,” argued Madison, even if pushed by an electoral majority, constituted a “wicked project.”

Connecticut Legal History & Culture Speaker Series

Here’s the year’s lineup for the Connecticut Legal History & Culture Speaker Series, at the University of Connecticut School of Law:

September 19.  Patrick Weill (Université de Paris-1), “The Sovereign Citizen: Denaturalization & the Origins of the American Republic”

October 24.  Jane Ginsburg (Columbia), “Popes & Printing”

February 6.  Adriaan Lanni (Harvard), “Law & Order in Classical Athens”

March 4.  Jed Shugerman (Harvard), “The Decisions of 1870 and 1887: The Origins of America's Exceptional Mixed Executive”

March 6.  Mary Ziegler (St. Louis), “The Making of a Woman's Right: Social Movements and the Popular Reinterpretation of Roe v. Wade, 1965-1980"

Donohue on the Four Epochs of National Security in the United States

My Georgetown Law colleague Laura Donohue, has posted The Limits of National Security, an account of national security across its four epochs in American history.  It is also out in the American Criminal Law Review 48 (2011): 1573-1756.  Here is the abstract:

The United States’ National Security Strategy (“NSS”), issued in May 2010, articulates an expansion in U.S. interests that stems from the end of the Cold War. Departing from a policy of industrial growth and military containment in response to geopolitical threats, U.S. national security is now defined in terms of a wide range of potential risks that the country faces.

The NSS, for instance, ties the economy, education, immigration, infrastructure, science and innovation, alternative forms of energy, health care, and reductions in the federal deficit to U.S. national security. It calls for a “seamless coordination among Federal, state, and local governments to prevent, protect against, and respond to threats and natural disasters.” A “whole of government approach” will integrate the skills and capabilities of the country’s military and civilian institutions, including, inter alia, merging the staffs of the National Security Council (“NSC”) and Homeland Security Council. In addition to foreign policy and international military concerns, the NSC will now also focus on trade, travel, organized crime, domestic intelligence gathering and dissemination, terrorism, public health, and natural disasters.

The NSS is not alone in its rather expansive view of U.S. national security. The Quadrennial Defense Review (“QDR”), for example, issued in February 2010, cites threats related to the global commons, cybersecurity, climate change, and energy. The Quadrennial Intelligence Community Review (“QICR”), issued in January 2009, proclaims the dawn of a new era, requiring a “fundamental transformation of the national security establishment.” It identifies seven key variables underlying the unique threats now faced by the United States: political and military, social and cultural, demographic and health, domestic environment, innovation and technology, energy and environment, and economic and financial.

What these and other articulations share in common is a significantly expanded view of what constitutes U.S. national security -- one which differs not just from that which dominated during the Cold War, but also from any point in U.S. history. This is not the first shift in how the country has looked at its security interests. It is, however, by far the most expansive. And it is beginning to find root in the law, with significant constitutional implications.

This article argues that the current expansion represents the fourth and most troubling epoch in the evolution of the country’s approach to national security, one that raises concern about the distribution of power within the U.S. constitutional structure. It suggests that each epoch resulted in alterations to the domestic and foreign affairs structures of the federal government -- components generally considered to lie in different realms, but, in fact, equally important in conceptions of U.S. national security.

The national security interests of the Founders centered on protection of the Union, the constitutional structure of the state, and the national government as the institutional representation of the people as sovereign. But it is not now the protection of the people’s sovereignty that is the primary aim of federal activity. Instead, it is the federal government’s sovereignty, which, through secret mechanisms and a greatly enlarged administrative capacity, is being secured as against the people. The resulting constitutional implications make the fourth epoch fundamentally different from those that preceded it.

At some point, the effort to attach issues to national security is simply blatant opportunism. Thus, Senator Barbara Mikulski of Maryland, a member of the Health, Education, Labor, and Pensions Committee, recently considered counterfeit prescription drugs entering the United States. During the Senate hearing, she asked, “[A]re we moving with [a] sense of urgency? Has this been escalated to a homeland security issue? Is this the top of anyone’s agenda?” The underlying assumption is that as soon as the issue becomes couched as a security concern, it rockets to the top of the political agenda. “For any of us who value safety and efficacy,” Mikulski added, “this has to be elevated to a national security, homeland security and criminal level.” Reasonable minds may differ on whether the threats faced by the country today are any greater than those that existed in previous decades. Perhaps less controversial, however, is the observation that the basic understanding of what constitutes a national security threat has changed. So have executive institutions, relationships, and authorities -- with constitutional implications. In 1928, Justice Brandeis remarked, “The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well meaning but without understanding.” In developing a deeper understanding of the evolution of conceptions of U.S. national security, perhaps stronger resistance to such encroachments may ensue.

Center for the Study of Law and Society Speaker Series: Legal History Highlights

The Center for the Study of Law and Society at the University of California, Berkeley has posted the line-up for its fall speaker series. Highlights (for our readership) include:

Carla Hesse (image credit)

October 15 – Carla Hesse
, Dean of Social Sciences and Peder Sather Professor of History, University of California, Berkeley. “The Spirit of Revolutionary Law: Political Justice 
and the Logic of Legitimation in Republican France” 
(co-sponsored by Berkeley Law Faculty Workshop) 

October 29 – Kerry Abrams, 
Albert Clark Tate, Jr., Professor of Law, University of Virginia School of Law
. “A Legal Home: Derivative Domicile and Women's Citizenship”

November 5 – Margot Canaday
, Assistant Professor of History, Princeton University. “Perverse Ambitions, Deviant Careers:  A Queer History of the American Workplace”

November 19 – Ariela Dubler, 
George Welwood Murray Professor of Legal History, Columbia Law School
. “The Maternal Difficulty”

Additional details are available here.

Call for Legal History Workshop Schedules

We at Legal History Blog would be pleased to publish the schedules of any legal history workshop or colloquim.  Please write to the blog's email address or to one of the bloggers.

Rao, "Administering Entitlement: Governance, Public Health Care, and the Early American State"

Here's a timely and important piece, just out in Law and Social Inquiry: Gautham Rao (American University), "Administering Entitlement: Governance, Public Health Care, and the Early American State," Law and Social Inquiry, vol. 37, issue 3 (Summer, 2012), 627-56.

Here's the abstract:

This article explores the federal marine hospitals of the early republic, the first public health care system in US history. Beginning in 1798, the federal government collected twenty cents per month from mariners' wages and used this revenue to subsidize medical care for sick and disabled merchant mariners. Previous studies have traced links between marine hospitals and modern public policy. By studying governance from the bottom up, this article takes a different approach. I argue that jurists, physicians, and officials' regulation of sailors' entitlement to public health care facilitated and reflected a transformation of national authority. Between 1798 and 1816, sailors' entitlement was a local matter, based on the traditional paternalist understandings of maritime laborers as social dependents. By 1836, though, the federal Treasury redefined entitlement around a newly calculus of productivity: only the productive were entitled to care at the marine hospitals. This story about governance, federal law, and political economy in the early United States suggests that the early American state was a more vibrant participant in the market and society than has been previously understood.

I saw a version of this when it had the clever title "Pitied but Entitled." I'm looking forward to reading the final version, available here.

Gordon-Reed Appointed to HLS's Charles Warren Professorship

A press release from the Harvard Law School announces that Annette Gordon-Reed has been appointed to the Charles Warren Professorship in American Legal History.  According to the release, she will share it with its current occupant, Morton J. Horwitz, who plans to retire this year.

From the J.D. to the Ph.D.: My Two Cents

Karen's post prompts me to offer two pieces of advice that occur to me when I look back on my transition, almost thirty years ago, from the J.D. to the Ph.D.  First, it is okay to skim.  You will never make it through a thousand-page weekly assignment if you read every word like it was in the UCC.  I’m still only up to page 357 of Gordon Wood’s Creation of the American Republic.

Second, a doctoral program in history is professional training, too.  To elaborate: that law school is training for a profession, with its own norms, ethics, and institutions, is obvious on the first day of almost any law school.  Depending on the school, however, you might not realize at first that law is also an intellectual discipline, with its own canonical works (a point Josh makes in his post).  Because of how I was introduced to history (thank you, Mary Kelley, Charles Wood and Michael Ermarth), I understood that it involved the mastery of a literature, but I only gradually came to understand that it was also a profession, one centered in the academe but not confined to it, with its own norms about what work is worthy and how to pursue it.  Even if there hadn’t been popular books describing the first year of law school I would have realized that it was predominantly a process of socialization into a profession, but because I knew of no One L or Paper Chase for doctoral programs in history, I was more at sea about what professional socialization meant in one.  That said, I’m not sure that having a semi-fictional vantage point from which to observe my first years of graduate study would have helped all that much.  Just as you can’t take the first year of law school ironically, you also have to throw yourself into the professional study of history.

The challenge then becomes figuring out how to reconcile your two different professions–how to draw upon what you took all that time to learn in law school without letting it dictate what you should learn in a doctoral program.  Having mentors who understand both worlds is an enormous help (thank you, Stan Katz and Dirk Hartog), but ultimately every person who confronts that puzzle has to solve it on her or his own.

J.D. to Ph.D. - a few suggestions

I loved Josh's recent "top ten" list for history PhDs who are headed to law school. In response to his post, reader Emily asked for JD-to-PhD suggestions.

In the comments, LHB blogger and JD-turned-PhD-candidate Clara Altman counseled Emily to "resist the temptation to outline everything so that you can let your brain work in new ways, but figure out when your outlining skills can yield something important/insightful." Josh recommended "getting as caught up on the 'canon' as you can."

Here are a few more suggestions, based on my experience doing a year of JD coursework before starting my PhD:

1. In a PhD program, your classmates are truly your colleagues -- and will be your colleagues for the rest of your professional life. You are not competing against them for grades or a coveted spot on the law review. If like me, you spent much of law school like this, take the time now to build personal relationships and explore intellectual connections. Ask your peers to read your work, and be generous and thoughtful when you have the opportunity to help with theirs.

2. When I wore my "law school hat," I often felt that I had to be extremely efficient and focused in order to get all my work done. It took me a long time to realize that part of the graduate school experience is wandering down some rabbit holes. If you feel like you have wasted time on a fruitless or unsustainable research trail, cut yourself some slack.

That said ….

3. Law students turn work in on time. There is no other option. Graduate students often do not. They ask for extensions, carry papers over to subsequent semesters, and so on. Others may disagree, but on this, I would encourage JD-to-PhD students to stick to their habits. I think that good time management leads to less stress over all. Honoring deadlines also demonstrates respect for your professors and their schedules.

Readers -- any additional thoughts?

Waters and Nelson on the Legality of Bombing Civilians inWW2

Library of Congress

Christopher P.M. Waters and Robert Nelson, University of Windsor, have posted The Allied Bombing of German Cities During the Second World War from a Canadian Perspective, which appears in Journal of the History of International Law 14 (2012): 87-122.  Here is the abstract:

This paper addresses the history of the legality of the aerial bombardment of civilians, from the earliest attempts at legalization, through the inter-war period and into the actual bombing campaigns of the Second World War. We then chart the paucity of discussion of the legality of said bombing both during the war and throughout the Cold War, and finish with the occasional interruptions to the legal silence since 1992 in Canada and elsewhere.

The Survey: Integrating Tomlins

Enjoyed my dust-up with Brian Tamanaha yesterday.  Now, back to the survey.  Before leaving the colonial period, I'm interested in the impact that Christopher Tomlins has had on lectures and source readings.  Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865 (New York: Cambridge University Press, 2010) received impressive accolades, perhaps greater than any book in recent memory.  But how does it change the way we teach the colonial period? Divided into ten chapters, the book’s first part tells the story of how British theorists provided the legal imaginaire necessary for the “manning” of the North American colonies (Chapter 1), the “planting” of those colonies (Chapter 2), and finally the “keeping” of English holdings in the New World (Chapter 3) in part through the creation of “apparatuses of government,” designations of “status,” and the exposition of imperial legalisms like imperium and dominium (FB, pps. 89, 116).  Off the bat, this is a very different story from the one presented to students in most legal history texts.  Take, for example, my favorite Hall, Finkelman, and Ely's American Legal History: Cases and Materials.  HFE dedicates its first five sections to a set of materials that make it appear as if the two main heirlooms carted by colonists to the New World were individual rights and the common law.  Tomlins focuses, by contrast, on imperial planners like John Dee and the Hakluyt cousins, challenging Jack Greene’s argument that British designs for colonial America were “failures” (FB, p. 184)  Instead, Tomlins demonstrates that English legal minds provided the “means to express and implement colonizing and expansion and displacement,” in essence guiding the settlement of the United States (FB, p. 184).  This last point is important. While HFE presents documents like Locke's Fundamental Constitutions of Carolina as "exotic" and "far outside the mainstream of American constitutional development," (HFE, p. 30) Tomlins counters that the "discourse of  territorial appropriation, occupation, and improvement" that was "ubiquitous" in these charters "was embraced everywhere." (FB, p. 184)  So, perhaps a modification to HFE's note on the Constitutions of Carolina is in order?  If not, Finkelman and Ely may want to push back by including an excerpt from King George's Royal Proclamation of 1763 in their next edition.  In a review I wrote for the Wash U's legal history reading group last spring, I raise this document as a challenge to Tomlins's argument about the guiding role of British imperial policy in North America (follow this link).  Not only did England’s King try to stop settlers from manning western lands, in other words, he did so to protect the “nations or tribes of Indians with whom We are connected.” (RP of 1763) While Tomlins claims that “the narrative of English colonizing” was one that “progressively banish[ed] existing inhabitants to the margins of its consciousness,” this fails to describe British imperial policy following the pivotal French and Indian War, a war that convinced England to discourage expansion in order to guarantee that Native Americans not be “molested,” or “disturbed.” (RP of 1763)  Rather than an orderly procession of British imperial ideas, in other words, western settlement defied almost all forms of legal ordering, ultimately pushing the nation to a series of untenable compromises resulting in Civil War.  Here, Tomlins’s focus on slavery and the Civil War is backwards.  Rather than mark the end of English patterns of colonialism, the war arguably marked a return to imperial modes worked through indigenous legal/imperial forms like the Homestead Act and the Federal Income Tax.  Indeed, the North’s victory in the Civil War set the stage for America’s truly imperial moment, forged in Hawaii, the Philippines, and the Jim Crow South – a moment very different from the unregulated chaos of the Early Republic.

Scottish Legal History Group to Meet in October

Via the Edinburgh Legal History Blog, here is the program for the 32nd Annual Conference and AGM of the Scottish Legal History Group, to be held in Edinburgh on October 6, 2012:

11.00  First Session

Mr W.W. Scott
“William de Crannystoun, notary public, c. 1395-1425, and some contemporaries”

 Dr John D. Ford, University of Cambridge
“William Welwod's Treatises on Maritime Law”

2.15  Second Session

Annual General Meeting ... to be followed at 2.30 approximately by:

Ms Harriet Cornell
“Social Control and the Courts of Haddingtonshire: 1610-1640"

3.30  Third Session

Dr  Dan Carr, University of Edinburgh
“Lord Kames in America”

Dr Andrew Mackillop, University of Aberdeen
“Scots Law & Scottish Identities in the Eastern British Empire, c.1750-1815"

Walker on Tomlins's "Freedom Bound"

Our Guest Blogger, Anders Walker, St. Louis Law, has posted England Bound: The Problem of Reading American Legal History from the Top Down, which is his review of Christopher Tomlins’s prize-winning Freedom Bound.  Here is the abstract:

If King George III could return from the grave and write a history of America, it would read like Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865. Deeply rooted in English soil, Christopher Tomlins’s long awaited survey challenges the past “half century” of American historiography, replacing its “ground up” emphasis on “the quotidien social behavior” of “settler populations” with a rich, beautifully written exposition of English imperial theorists – in essence the King’s men (p. 185).

Weinberg on the Unlikely Beginnings of Modern Constitutional Thought.

Louise Weinberg, Texas Law, has posted Unlikely Beginnings of Modern Constitutional Thought.  Here is the abstract:

This paper notes an intellectual transformation occurring in relatively obscure cases in the New Deal Court. Among other things, these cases prefigure the advent of the tiered scrutiny characteristic of modern rights-based constitutional litigation. At a deeper level, they mark a revolution in constitutional analysis with resonance for our present structural understandings of national power, state power, and the workings of American federalism.

Brooks reviews Rossum, "The Supreme Court and Tribal Gaming"

The Law & Politics Book Review has posted a review of Ralph A. Rossum, The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians (2011). The book is part of the Landmark Law Cases and American Society Series published by the University Press of Kansas. 

Reviewer Christopher Brooks (East Stroudsburg University) has this to say:

Most scholars would fairly place [the book] within the genre of legal history, more specifically within the subheading of tribal sovereignty. Beginning with the Grotius and the advent of international law and ending with Class III gaming cases that address the Cabazon legacy, Rossum rather adroitly covers the gambit of all that historically affected the Cabazon case, with special attention to the United States. Despite the scope of historical coverage, it reads in most places like a law book, one which this reviewer enjoyed. However, aside from a few sections, most undergraduate students interested in the topic may have difficulty tackling it if this text is their introduction to tribal sovereignty. It comes across as a text that will help the law or graduate student more, as well as the seasoned scholar.

Read on here.

A New Edition of Greenhouse and Siegel's "Before Roe v. Wade"

Linda Greenhouse and Reva Siegel, Yale Law, have posted, in its entirety, their documentary history, Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court's Ruling, on which see here and here.  Here is the abstract:

We post here a new edition of our book, a documentary history of the debate over abortion that took place during the decade before the Supreme Court rendered its decision in Roe v. Wade.

First published in 2010, the book collects a wide range of primary sources, many never before publicly available, that illustrate the dynamic of conflict in the period before Roe. These sources show how growing popular support for decriminalization elicited counter-mobilization; how each side appealed to constitutional arguments in the legislative arena before turning to the courts; and how the Republican Party during the 1972 presidential campaign began to adopt anti-abortion arguments as a way of recruiting traditionally Democratic Catholic voters. In short, much of the conflict typically ascribed to Roe began during the years leading up to the decision.

What difference does it make to study the abortion conflict in the decade before the Supreme Court ruled? This 2d edition of our book features, as a new Afterword, the full text of an essay we published in 2011 that explores questions about constitutional law and politics provoked by this “reframing” of Roe. Before (and After) Roe v. Wade: New Questions About Backlash traces the escalation of the abortion conflict at a time when courts played little part, investigating the important role played by movements, religious institutions, and, in particular, the political parties in shaping abortion’s meaning, associations, and increasingly central role in polarization.

The conventional assumption is that adjudication shut down politics and that polarization resulted. The history we uncover suggests that many institutions fueled politics around abortion in the years before Roe -- a period in which we can see the seeds of polarization before the Court ever ruled. Our account raises questions about the conventional backlash narrative, with its court-centered emphasis on the supposed perils of adjudication, a narrative that is a virtual commonplace today. When Federal District Judge Vaughn Walker, presiding over the Proposition 8 trial, asked the lawyer for the gay couples challenging California’s ban on same-sex marriage whether the danger was “not that you’re going to lose this case, either here or at the Court of Appeals or at the Supreme Court, but that you might win it,” the judge was making reference to Roe v. Wade and reflecting the belief that the Court’s decision ignited conflict over abortion. It is a view, we argue, that is as incomplete as it is widely held.

Ph.D. to J.D. - A Top 10 List

There is a little bit of a “fish out of water” experience awaiting Ph.D.’s or A.B.D.’s who attend law school. A couple of weeks of "cold-calling" in class quickly turned me into a law student.  Here’s a “Top 10” list of tips and observations for students entering law school after a stint in graduate school based on my experience as a 1L.

     Every sentence should be 25 words or less. This was by far the best suggestion I received from the legal writing instructor at the law school. Academics, for better or worse, tend to write longer, more complicated sentences. Lawyers and most law professors, on the other hand, prefer clarity over complexity. I’ve come to appreciate and adopt this advice. 
     Outline everything. Taking notes on a daily basis is a great way to keep up with assignments. It also prepares you for exams, which dominate law school. Ideas were way more important in my history coursework than in "Black Letter" classes. Rules matter more now. Taking extremely careful notes ensures you don't just know them but know how to apply them properly.
     Seek out professors who share your interests. There will be faculty members that find your work interesting. Make you sure you connect with them early on in law school. It is important for jobs, clerkships and the like to find faculty members who will go to bat for you.
     Try writing something out of your “wheelhouse.” Sure, specialization is the norm in academia, but in law school, at least while you are a student, it is crucial to learn a little bit of everything. This is especially true if you plan on passing the bar exam someday. If you want to teach a "Black Letter" class, think about which one that might be. Start working on a paper or article in that field (maybe after your 1L year when you are just trying to keep your head above water).
     Try a clinic or a summer internship. Practical experience completely changes the way law school looks for you. Suddenly, cases become more than just words on a page and you start thinking about clients and consequences. This makes law school easier and more enjoyable. And when you pursue your career as a lawyer or law professor, you'll be glad you had this real word experience.
     Keep a separate file to save cases or ideas relevant to your area of research. Every now and again a case will come up in Contracts or Torts, e.g., that will relate on a direct or analogous level to your research interests. Keep a running document of case names and class notes that might help you with your own writing.
     Take WestLaw or Lexis for a spin on your own topics. The research tools that these companies give to law students for free are amazing. You may never have the same opportunity to research on them freely again. Start running keywords and case searches through them. WestLaw NEXT, for instance, lets you store what you find in neatly organized folders. 
     Introduce yourself to the law librarian. Law librarians are amazing people. They know their way around legal databases and the book stacks, of course. But they also often have their own research interests and will happily share war stories about finding a difficult, but necessary document for their work. Someday, you'll be in a bind. The best law librarians will take a lot of pride in helping you. Some of them might even let you pet their dog for stress-reduction.
     Start familiarizing yourself with canonical works in the study of the law. Whether it's Calabresi and Melamed's "Cathedral" article or the Coase Theorem, you should seek out the most-cited works and writers in legal scholarship. You'll learn quickly that the kinds of questions that lawyers and legal scholars ask are often quite different from what historians try to answer in their work.
     Read and learn the bluebook. Learning a new style of citation, after you've spent most of your academic life with Chicago or MLA styles, is not easy. Unlearning something that has become habitual is harder, I believe, than adopting bluebook rules with a blank slate. Take the bluebook to the beach the summer before law school and get an early start. OK, that might be overkill. But you get the idea.

Hills on McCulloch, National Banking and Preemption

Roderick M. Hills, Jr., NYU Law, has posted Exorcising McCulloch: The Conflict-Ridden History of American Banking Nationalism and Dodd-Frank Preemption.  Here is the abstract:

Conventional wisdom holds that federal law’s conferring banking powers on national banks presumptively preempts state laws seeking to control the exercise of those powers. This conventional wisdom springs from a long-standing legal tradition, originating with McCulloch v. Maryland, that nationally chartered banks are federal instrumentalities entitled to regulate themselves free from state law, even when national law fails to address the risks that state law seeks to regulate. Incorporated into National Bank Act of 1864 by 19th century precedents but then abandoned by the New Deal Court, McCulloch’s theory of preemption is being revived today by the Office of the Comptroller of the Currency (“OCC”) to preempt broad swathes of state law.

This article maintains that it is time to exorcise McCulloch’s theory from our preemption jurisprudence. Far from being sanctioned by legal tradition, McCulloch’s theory that national banks are federal instrumentalities offends a deeply rooted tradition in American political culture and law that I call the “anti-banker non-delegation principle. This principle has been manifest in campaigns against national banks’ immunities from political oversight ranging from Andrew Jackson’s 1832 veto of the charter of the Second Bank of the United States message to Louis Brandeis’ 1912 campaign against the “House of Morgan” as a “financial oligarchy.” Rather than accept McCulloch’s view of banks as impartial instruments of the federal government, the American political system and, since the New Deal, the federal courts, have adopted the view that federal law should not delegate unsupervised power to private banks to determine the honesty, safety, and soundness of their own operations. Accordingly, if federal regulators set aside state laws regulating banking practices, then those federal regulators must explain how federal law addresses the risks the state law attempts to control.

The most recent effort to eliminate McCulloch’s theory of preemption, according to this article, §1044(a) of the Dodd-Frank Act, which provides detailed standards governing the power of the OCC to preempt state law. This article argues that the OCC’s 2011 rules mistakenly revive McCulloch’s theory of preemption, contradicting not only §1044(a) but also the more general tradition of distrusting unsupervised delegations of immunity from state law to national banks. In particular, like McCulloch, the OCC’s rules draw irrational distinctions between states’ general common-law doctrines and states’ rules specifically directed towards banking practices, subjecting the latter to a sort of field preemption. Rather than accept such preemption, this article urges that courts ought to follow the ordinary principles of conflict preemption, barring preemption of state law unless the OCC has specifically approved the banking practice that state law forbids.

The Survey: Why?

Since Annette Clark’s abrupt resignation the week before last, things have been frenetic here at SLU.  Within 24 hours, the university appointed an interim dean, Tom Keefe, who brought three new variables to the equation (in addition to those leading up to the resignation), namely: 1) the perspective of a successful, practicing alumnus, 2) the perspective of a longtime donor, 3) Brian Tamanaha’s new book. 

Barring some already uncanny connections (Tamanaha also shocked faculty when he was unilaterally appointed interim dean by the President of St. Johns in 1998; Tamanaha’s predecessor at St. Johns, Rudy Hasl, had previously been Dean at SLU), our interim dean recently read Failing Law Schools … and liked it. 

Oh shit.

Brian’s sacred cow killing polemic boasts a new convert … and soon they’ll be lunching.  Now what?  For those of us scrambling to keep things afloat here, what began as an ugly dispute between the Dean and the President is now morphing into something very different, a Tamanaha-esque audit of legal education in its current state, including questions about tuition, faculty resources, and the merits of scholarship.  For anyone who hasn’t read the book, Tamanaha’s argument is basically that law school faculties at non-elite schools, together with the ABA and US News, have distorted the market for law school, pushing everyone to endorse a scholarship model that results in high salaries for inexperienced professors along with excessively high tuition for students, and a de-emphasis on practical skills training.  The solution, argues Tamanaha, is for law schools to adopt a tiered approach, with elite institutions like Wash U continuing along the scholarly model and non-elite schools like SLU adopting a low tuition, practical skills approach.

How convenient.

For me, the implications are profound.  If SLU is to focus simply on doctrinal courses and clinical work, why offer a legal history survey?  I asked Tamanaha about such inter-disciplinary fluff last year and he seemed ambivalent.  What was then an academic question is now, ironically, practical.  To that end, I have decided to do what I can to save legal history at SLU … and to engage Keefe on the merits of Brian’s claims.  It hasn’t been easy.   In 187 concise pages, Tamanaha makes a convincing case that legal education is "failing society."  To his credit, few can deny that US News has distorted incentives, that tuition has grown too fast, and that the ABA has inhibited market innovation.  Yet, the question remains whether faculty scholarship per se is part of the problem.  For example, many of our best scholars at SLU are also our best teachers – as indicated by their student-generated teaching evaluation scores.  One reason for this, I suspect, is that faculty scholarship actually enhances classroom teaching, making it interesting and fresh – very different from classes where faculty continue to use casebooks from 1982.  Finally, our most successful program here at SLU is the Health Law Center, a heavily inter-disciplinary program that has been built, in large part, on scholarship.  Why not encourage non-elite schools to pursue similar niche topics?  Why not measure faculty productivity by linking scholarship to teaching scores?

More problematic is Tamanaha’s point about the relationship between faculty salary and tuition.  Here, his data is hard to refute.  Currently, faculty salaries constitute the primary expense at law schools, and a direct obstacle to lowering tuition.  Further, lowering tuition is important, particularly for non-elite schools.  If SLU could lower its tuition by 5 or 10K, for example, we could ease debt burdens for students and successfully out-compete peer institutions, arguably remaining viable even in the worst of market conditions.  However, it is not clear to me that faculty scholars should be the first to go.  Rather than punishing productive faculty who are out-performing in both teaching and scholarship, it seems to me that the primary problem (and cost), are under-performing faculty who have given up on scholarship, lost interest in teaching, and taken up novel writing.  On this point, the mysterious missing topic in Tamanaha’s book is post-tenure review.  Why?  Brian alludes to his frustration with non-productive, absent faculty in his prologue, but then drops the subject.

"Secret" Wars, a "Triumphant" Revolution, and More: This Week in the Book Pages

This week in the Wall Street Journal Rufus Phillips reviews Fredrik Logevall's Embers of War: The Fall of an Empire and the Making of America's Vietnam (Randome House).  "[A]t 714 pages of text," Embers of War, "is a monumental history," writes Phillips; "This book is a widely researched and eloquently written account of how the U.S. came to be involved in Vietnam and is certainly the most comprehensive review of this period to date."

On the domestic front in the 1960s, the Wall Street Journal has a review of Subversives: The FBI's War on Student Radicals, and Reagan's Rise to Power (Farrar, Straus & Giroux) by Seth Rosenfeld.  "Without consulting any of the attorney generals or presidents he ostensibly served," writes Sol Stern, "Hoover launched what Mr. Rosenfeld calls a "secret war" against the Berkeley student movement...Not content with spying on the students, Hoover authorized illegal surveillance of professors and college administrators who were deemed too sympathetic to campus radicals."  Read the full review here.

Also in the WSJ, a review of Mark Franko's Martha Graham in Love and War: The Life in the Work (Oxford), and a review of Gyorgy Moldova's history of the ballpoint pen, Ballpoint (New Europe).

TNR: The Book has a review of John Dramani Mahama's memoir, My First Coup d'Etat: And Other True Stories from the Lost Decades of Africa (Bloomsbury) and a review of Karen Elliott House's On Saudi Arabia: Its People, Past, Religion, Fault Lines- and Future (Alfred A. Knopf)

In the LA Times this week you'll find Audrey Bilger's review of Linda Hirshman's Victory: The Triumphant Gay Revolution (Harper)  Bilger writes: "Although many pens have written on the U.S. gay writes movement, particularly on the AIDS crisis and the 20th century rise in political activism, Hirshman reframes the history as a prequel to an ultimate triumph on the verge of coming to fruition."

And, in the New York Times: Richard A. Posner reviews How Much is Enough? Money and the Good Life (Other Press) by Robert Skidelsky and Edward Skidelsky; reviews of James Joyce: A New Biography (Farrar, Straus & Giroux) by Gordon Bowker (here), David Crist's The Twilight War: The Secret History of America's Thirty-Year Conflict with Iran (Penguin Press) (here), and Jonathan Fenby's The General: Charles de Gaulle and the France He Saved (Skyhorse Publishing) (here).

Weekend Roundup

• The Lincoln Group of the District of Columbia hosts a day-long symposium on Lincoln, War, and the Constitution on Saturday, September 15, 2012, in the E. Barrett Prettyman U.S. District Court Ceremonial Courtroom.  Speakers include Mark E. Neeley, Jr., Harold Holzer, Paul Finkelman, and Brian R. Dirck. There is a fee to attend: $55 for non members.  More.

• In case you missed David Gans's description on Balkinization of the scholar's brief in Fisher v. University of Texas, on the history of the Fourteenth Amendment, a link to the brief may be found here.  The six scholars are Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Neuborne, James Ryan, and Adam Winkler.

• Former guest blogger Emily Kadens has taken up residence at the John W. Kluge Center. Read more about it here. [KMT]

• Kill your textbook? Why historian Jonathan Rees assembles his own materials for his U.S. history survey course. [KMT]

• The Gilder Lehrman Institute has recently posted a podcast of Richard Bernstein's "Historians on the Record" lecture, Nixon, Executive Power, and the Constitution.  To download it you must register, but registration is free.

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

Bickel Remembered and Reassessed

Thanks to Ronald Collins for bringing to our attention a symposium on Alexander Bickel over at SCOTUSblog.  To date it includes, in addition to Collins’s foreword, contributions by Louis Michael Seidman, Kathryn Watts, Floyd Abrams, Adam White, Erwin Chemerinsky, Roger Pilon, Richard Epstein.  Forthcoming are posts by Barry Friedman, Sanford Jay Rosen, and Steve Vladeck.

CFP: Blackstone at Eighteenth-Century Studies

We have the following call for papers for a panel on "William Blackstone: Intersections between Law and Culture,” to be proposed for the 44th American Society for Eighteenth-Century Studies Annual Meeting, Cleveland, OH, April 4-7, 2013.  It comes from Andrew Benjamin Bricker, a Ph.D. candidate in Stanford’s Department of English.

One would be hard-pressed to overstate the importance and popularity among both legal and lay readers of William Blackstone`s Commentaries on the Laws of England (1765-69), both in the eighteenth century and beyond, and throughout Britain, its empire and America. Nonetheless, Blackstone`s other ventures, as a historian, as a literary writer, even as a legal writer, have been largely neglected. Building on the recent renaissance in Blackstone studies-most notably, Wilfrid Prest`s biography, William Blackstone: Law and Letters in the Eighteenth Century (2008), his edited collection, Blackstone and his Commentaries: Biography, Law, History (2009), and his edition of Blackstone`s correspondence, The Letters of Sir William Blackstone, 1744-1780 (2006)-this panel seeks presentations that address any aspect of Blackstone`s career, writings or life. Of particular interest are papers that address broader cultural and social issues-both in their influence on Blackstone, and his influence on their growth and later interpretation-demonstrating the connections between Blackstone, as both a jurist and a thinker, and the larger world of eighteenth-century culture and society.

Abstracts of 250-400 words should be sent to Andrew Bricker (abricker [at] stanford [dot] edu) by 15 September 2012.

Goldstein on the Liberty League and Unpopular Constitutionalism

Jared A. Goldstein, Roger Williams University School of Law, has posted Unpopular Constitutionalism: The American Liberty League and the Importance of Constitutional Villains. Here is the abstract:

In 1936, much like today, a first-term President faced opposition from a movement that charged that the President’s key policies were unconstitutional and un-American. Like the Tea Party movement, the American Liberty League of the 1930s generated massive media attention by calling the President a radical socialist who sought to foist alien policies on an unwilling public. Unlike President Obama, however, President Roosevelt welcomed the confrontation, making the dispute with the American Liberty League a central focus of his reelection campaign. Created and run by a small group of prominent businessmen, the Liberty League was a political gift, giving Roosevelt the perfect foil to make the case for the New Deal.

This Article tells the story of the fight between Roosevelt and the American Liberty League and argues that it should be recognized as a crucial episode of popular constitutionalism, in which the American people were asked to choose between fundamentally competing constitutional philosophies. This story corrects the narrative put forward by Bruce Ackerman and others that in 1936 the American people faced a choice between the constitutional positions of the President and the Supreme Court. In fact, Roosevelt chose to take on the Liberty League and not the Court because he recognized that persuading the public of the constitutional validity of the New Deal required an opponent that would sustain public attention by continuing to fight back and which could easily be made the villain in a grand constitutional drama.

The story of the American Liberty League adds an important chapter to scholarship on popular constitutionalism, which has devoted considerable attention to social and political movements that succeeded in changing the understood meaning of the Constitution, while neglecting the role of losing sides in constitutional contests. As the story shows, public consensus on constitutional questions may arise just as much from a conviction that one side is wrong as from the conviction that the other side is right. It is perhaps only a slight exaggeration to say that the apparent public consensus in favor of the modern administrative state arising from Roosevelt’s landslide victory owes as much to rejection of the constitutional nationalism of the American Liberty League as it does to an embrace of the New Deal.

Professor Goldstein's posting of his paper provides the occasion I've been waiting for to share the lyrics of a song parodying the League that I found in a New Deal lawyer's papers.  ("Our patriotic fervor burns/To mitigate our tax returns" is worthy of Calvin Trillin.)  The full lyrics appear after the jump.

Schiavone, The Invention of Law in the West

The Invention of Law in the West (Belknap Press of Harvard University Press), by Aldo Schiavone (Istituto Italiano di Scienze Umane), is reviewed this week in the The Law & Politics Book Review (here).

Here's the Press's summary of the book:

Law is a specific form of social regulation distinct from religion, ethics, and even politics, and endowed with a strong and autonomous rationality. Its invention, a crucial aspect of Western history, took place in ancient Rome. Aldo Schiavone, a world-renowned classicist, reconstructs this development with clear-eyed passion, following its course over the centuries, setting out from the earliest origins and moving up to the threshold of Late Antiquity.

The invention of Western law occurred against the backdrop of the Roman Empire’s gradual consolidation—an age of unprecedented accumulation of power which transformed an archaic predisposition to ritual into an unrivaled technology for the control of human dealings. Schiavone offers us a closely reasoned interpretation that returns us to the primal origins of Western legal machinery and the discourse that was constructed around it—formalism, the pretense of neutrality, the relationship with political power. This is a landmark work of scholarship whose influence will be felt by classicists, historians, and legal scholars for decades.

And here's a link to the LPBR review. Reviewer Walter J. Kendall III (the John Marshall Law School) warns that the author's "line of thought" is "difficult for a non-specialist to follow" but is "confident [that] it will evoke important and interesting reviews from experts in Roman law and history."

The TOC is available here.