Monday, May 18, 2015
Gorman on the Origins of the FCPA
Thomas O. Gorman, who is, among other things, co-chair of Dorsey & Whitney’s Anticorruption and Foreign Corrupt Practices Act practice group, has posted The Origins of the FCPA: Lessons for Effective Compliance and Enforcement, Securities Regulation Law Journal (Spring 2015): 43-65. The “paper traces the origins of the FCPA from the early days of the Watergate hearings, through the initial SEC 'questionable payments' cases, the volunteer program and the two years of Congressional debates. From the origins of the statute the paper offers insights into crafting effective compliance today and for improving enforcement.”
McClain on Folkways, Stateways, and the Civil Rights Act of 1964
Linda C. McClain, Boston University School of Law, has posted The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether “Stateways” Can Change “Folkways,” forthcoming in the Boston University Law Review 891 95 (2015): 891-927:
Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”
New Release: Cuno, "Modernizing Marriage"
New from Syracuse University Press: Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early Twentieth-Century Egypt, by Kenneth M. Cuno (University of Illinois). A description from the Press:
A few blurbs:In 1910, when Khedive Abbas II married a second wife surreptitiously, the contrast with his openly polygamous grandfather, Ismail, whose multiple wives and concubines signified his grandeur and masculinity, could not have been greater. That contrast reflected the spread of new ideals of family life that accompanied the development of Egypt’s modern marriage system. Modernizing Marriage explores the evolution of marriage and marital relations, shedding new light on the social and cultural history of Egypt.
Family is central to modern Egyptian history and in the ruling court did the "political work." Indeed, the modern state began as a household government in which members of the ruler’s household served in the military and civil service. Cuno discusses political and sociodemographic changes that affected marriage and family life and the production of a family ideology by modernist intellectuals, who identified the family as a site crucial to social improvement, and for whom the reform and codification of Muslim family law was a principal aim. Throughout Modernizing Marriage, Cuno examines Egyptian family history in a comparative and transnational context, addressing issues of colonial modernity and colonial knowledge, Islamic law and legal reform, social history, and the history of women and gender.
"Eagerly anticipated, Cuno’s Modernizing Marriage more than delivers on its promise. Drawing on compelling evidence and written with great clarity, the book details the dramatic changes marriage underwent in late nineteenth and early twentieth century Egypt. Anyone interested in the study of law, society, family, and gender must read this fascinating book."—Beth BaronMore information is available here.
"Modernizing Marriage takes up a fundamental question for political, social, legal, and cultural history: how did we become moderns? Using marriage as his lens, Cuno weaves together a remarkable account of this process within the Egyptian context of the long nineteenth century."—Wilson Chacko Jacob
Sunday, May 17, 2015
Graber to Lead ICH Seminar on "the Pre- and Post-1865 Constitution"
[We're moving this post up because the deadline of May 22 is fast approaching.]
The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, The Pre- and Post-1865 Constitution.
The seminar will take place Monday evenings, 6:00–8:00 p.m., September 21, 28, October 5, 12, 19, and 26, 2015. It will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.
The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until May 22, 2015. Successful applicants will
be notified soon thereafter.
There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.
For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.
The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on
American constitutional history.
The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, The Pre- and Post-1865 Constitution.
The instructor is Mark A. Graber, Professor of Law at the University of Maryland Francis King Carey School of Law. He is the author of Transforming Free Speech; Rethinking Abortion; Dred Scott and the Problem of Constitutional Evil; A New Introduction to American Constitutionalism; nearly a hundred articles on constitutional law, history, development and theory; and an editor of the American Constitutionalism series.This course explores the extent to which the post-Civil War Amendments made fundamental changes in the American constitutional order. Abraham Lincoln in 1863 promised "a new birth of freedom." Many contemporary scholars believed the post-Civil War Constitution was designed to achieve that new birth of freedom by radically changing the basic design and commitments of the American constitutional order.
Mark Graber (credit)
Conservatives in 1865, however, spoke of that "Constitution as it was," minus slavery. The Supreme Court championed this view in The Slaughter-House Cases (1873). The debate is hardly academic. As the opinions in Shelby County v. Holder (2013) demonstrate, basic contemporary regime commitments depend to a fair degree on the extent of constitutional change during the Civil War and Reconstruction.
We will explore this issue by examining primary and secondary sources. The first third of the course will explore the basic commitments of the constitutional regime established in 1787 through a close reading of crucial Federalist Papers and major selections from other Federalist and anti-Federalist writings. The second third of the course will examine the basic commitments of the constitutional regime Republicans hoped to establish in 1865 through a close reading of the debates over the Thirteenth and Fourteenth Amendments, as well as such measures as the Civil Rights Act of 1866 and the Second Freedman's Bureau Act. The last third of the course will look at some prominent claims that the constitutional regime was fundamentally altered during the Civil War and Reconstruction.
The seminar will take place Monday evenings, 6:00–8:00 p.m., September 21, 28, October 5, 12, 19, and 26, 2015. It will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.
The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until May 22, 2015. Successful applicants will
be notified soon thereafter.
There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.
For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.
The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on
American constitutional history.
Saturday, May 16, 2015
Weekend Roundup
- Thanks to Mark Spiegel's article and Felice Batlan's book, it has been a big week for the history of legal aid. Keep it going by browsing the finding aids for the manuscript collections in the National Equal Justice Library, deposited at Georgetown Law.
- The annual report of the Max Planck Institute for European Legal History was recently posted here.
- A reminder: this afternoon, Charles L. Zelden, Nova Southeastern University, is scheduled to discuss his Thurgood Marshall: Race, Rights, and the Struggle for a More Perfect Union on C-SPAN2 BookTV.
- The table of contents and introduction to the third edition of Race and Races: Cases and Resources for a Diverse America, by Richard Delgado, Jean Stefancic, Juan F. Perea, Angela P. Harris, and Stephanie M. Wildman are here.
- Over at the Junto, guest blogger Robert Gamble (University of Kansas) writes about "African Americans, Mobility, and the Law."
Friday, May 15, 2015
A Homeless Rights Advocates' History of Vagrancy Laws
Javier Ortiz, Matthew Dick, and Sara Rankin, Seattle University School of Law, have posted The Wrong Side of History: A Comparison of Modern and Historical Criminalization Laws. Its origins are a bit different form the mine run of SSRN papers. "The Homeless Rights Advocacy Practicum (HRAP) is a section of the Homeless Rights Advocacy Project at Seattle University School of Law’s Korematsu Center. Javier Ortiz and Matthew Dick, law students at Seattle University School of Law and members of the founding cohort of HRAP, authored this policy brief under the supervision of Professor Sara Rankin of Seattle University School of Law." Here is the abstract:
Like many other cities throughout the country, Washington’s homeless population is being targeted through ordinances infused with a historical spirit of control and discrimination. The policy brief looks at the history of criminalization laws by focusing on historical criminalization laws and how they paved a way for current anti-homeless ordinances. The policy brief reveals that the spirit of historical criminalization laws is present in anti-homeless ordinances today. Since these historical laws have been repealed and overturned, so should anti-homeless ordinances that share the same spirit of control, exclusion, and discrimination.H/t: Legal Theory Blog
The brief focuses on five historical laws and modern anti-homeless ordinances through case studies: Vagrancy; Anti-Okie, Jim Crow, Ugly, and Sundown Town laws. Each section discusses the impetus for each law and the effect it had on targeted individuals. Next, the brief examines specific language from these laws and how they were applied-- and ultimately, how they were overturned by judges, legislatures, and public opinion. The brief then shifts focus to three case studies of modern anti-homeless ordinances.
This comparison reveals that modern anti-homeless ordinances share much of the same form, phrasing, and function as historical laws that banned African-Americans from attending public school with white Americans; that banned Midwesterners from entering Western states during the Great Depression; and that banned people with physical disabilities from residing in certain cities. And yet, anti-homeless ordinances are just contemporary expressions of the same impulse to marginalize already marginalized people. Ultimately, this brief shows that modern anti-homeless ordinances are just historically infamous laws in a new guise.
Miller Center Fellows Announced
Recipients of the University of Virginia's Miller Center National Fellowship for 2015-16 have been announced. Descriptions of the fellows' projects and the names of their mentors are here.
Noel Anderson, Political Science, Massachusetts Institute of Technology
The Geopolitics of Civil War: External Military Aid, Competitive Intervention, and Duration of Intrastate Conflict
Sarah Coleman, History, Princeton University
Redefining American: The Shifting Politics of Immigration Policy at the End of the 20th Century
Jonathon Free, History, Duke University
Redistributing Risk: The Political Ecology of Coal in Late-Twentieth Century Appalachia
Boris Heersink, Politics, University of Virginia
Beyond Service: National Party Organization and Party Brands in American Politics
Benjamin Holtzman, History, Brown University
Crisis and Confidence: Reimagining New York City in the Late Twentieth Century
Elizabeth Ingleson, History, University of Sydney
The End of Isolation: Rapprochement, Globalisation, and American Trade with China, 1972-1979
Nora Krinitsky, History, University of Michigan
The Politics of Crime Control: Race, Policing, and State Power in Modern America
Shannon Nix, History, University of Virginia
‘The Soul of our Foreign Policy’: Human Rights Politics, U.S. Foreign Policy, and the Struggle for Central America, 1976-1984
Sarah E. Robey, History, Temple University
The Atomic American: Citizenship in a Nuclear State, 1945-1963
Sarah Seo, History, Princeton University
The Fourth Amendment, Cars, and Freedom in Twentieth-Century America
Noel Anderson, Political Science, Massachusetts Institute of Technology
The Geopolitics of Civil War: External Military Aid, Competitive Intervention, and Duration of Intrastate Conflict
Sarah Coleman, History, Princeton University
Redefining American: The Shifting Politics of Immigration Policy at the End of the 20th Century
Jonathon Free, History, Duke University
Redistributing Risk: The Political Ecology of Coal in Late-Twentieth Century Appalachia
Boris Heersink, Politics, University of Virginia
Beyond Service: National Party Organization and Party Brands in American Politics
Benjamin Holtzman, History, Brown University
Crisis and Confidence: Reimagining New York City in the Late Twentieth Century
Elizabeth Ingleson, History, University of Sydney
The End of Isolation: Rapprochement, Globalisation, and American Trade with China, 1972-1979
Nora Krinitsky, History, University of Michigan
The Politics of Crime Control: Race, Policing, and State Power in Modern America
Shannon Nix, History, University of Virginia
‘The Soul of our Foreign Policy’: Human Rights Politics, U.S. Foreign Policy, and the Struggle for Central America, 1976-1984
Sarah E. Robey, History, Temple University
The Atomic American: Citizenship in a Nuclear State, 1945-1963
Sarah Seo, History, Princeton University
The Fourth Amendment, Cars, and Freedom in Twentieth-Century America
Herbert Resner and the Decline of Radical Lawyering
Perhaps a close look at any legal community would reveal its share of interesting characters, but if you're studying lawyers in San Francisco, it doesn't take too long to get the impression that the Bay Area’s attorneys were a particularly eccentric lot. Melvin Belli was probably the most famous. Between his high profile tort and criminal defense cases, his flamboyant personality, and his love of the media, Belli may have been one of the best known lawyers in postwar America.
Yet Belli was only one of a cohort of San Francisco lawyers with a similar approach to the practice of law. George T. Davis, Jake Erlich, James Martin MacInnes, and Marvin Lewis (who makes an appearance in Forging Rivals when he championed fair employment practices legislation as a member of the Board of Supervisors in the early 1950s) all combined a spirited defense of underdog clients with a hunger for publicity and a love of the better things in life.
Herbert Resner was a less well-known member of this group. He came to prominence in San Francisco legal circles in the late 1930s, shortly after his graduation from Boalt Hall. At the time, he was a left-wing (possibly communist) lawyer who represented radical trade unionists like Tom Mooney (with Davis) and Harry Bridges (with MacInnes). The California Communist Party was another client, as were many of the Bay Area’s CIO Locals. He shows up in Forging Rivals as the lead attorney in James v. Marinship – a case that limited California unions’ power to have racially exclusive membership policies – but the focus of his practice was not civil rights. Instead, he spent most of the 1940s and 1950s suing employers on behalf of injured workers, particularly in the maritime industry, and sharing offices (and many cases) with Belli. In 1960, he was disbarred for mishandling client funds. He was reinstated in 1967, and expanded his practice into the management of Bay Area rock bands. In the early 1970s, he was sued by Carlos Santana for mishandling his business affairs.
The careers of this cohort of lawyers trace a fascinating arc that calls for more study. Coming from non-elite backgrounds, they all made fortunes defending underdogs. Yet by the 1970s, many had become caricatures of themselves: ethically challenged, nouveau riche lawyers whose conception of the oppressed had changed from labor radicals, African American civil rights advocates, and injured dockworkers to Nazi war criminals, disgraced televangelists, and down-on-their-luck celebrities. While Resner was not as extreme as some of his compatriots in this respect, the familiar trajectory of his career is suggestive. Perhaps there is a relationship between the enervation of many of the radical lawyers from the 1930s and 1940s and the path that liberalism found itself on during the same period. Many historians have noted the emergence of a more individualistic, market-based, anti-statist political culture in the 1970s. It may be that it was not simply our lawyers who traded Harry Bridges for Carlos Santana, but the country as a whole.
Yet Belli was only one of a cohort of San Francisco lawyers with a similar approach to the practice of law. George T. Davis, Jake Erlich, James Martin MacInnes, and Marvin Lewis (who makes an appearance in Forging Rivals when he championed fair employment practices legislation as a member of the Board of Supervisors in the early 1950s) all combined a spirited defense of underdog clients with a hunger for publicity and a love of the better things in life.
Herbert Resner was a less well-known member of this group. He came to prominence in San Francisco legal circles in the late 1930s, shortly after his graduation from Boalt Hall. At the time, he was a left-wing (possibly communist) lawyer who represented radical trade unionists like Tom Mooney (with Davis) and Harry Bridges (with MacInnes). The California Communist Party was another client, as were many of the Bay Area’s CIO Locals. He shows up in Forging Rivals as the lead attorney in James v. Marinship – a case that limited California unions’ power to have racially exclusive membership policies – but the focus of his practice was not civil rights. Instead, he spent most of the 1940s and 1950s suing employers on behalf of injured workers, particularly in the maritime industry, and sharing offices (and many cases) with Belli. In 1960, he was disbarred for mishandling client funds. He was reinstated in 1967, and expanded his practice into the management of Bay Area rock bands. In the early 1970s, he was sued by Carlos Santana for mishandling his business affairs.
The careers of this cohort of lawyers trace a fascinating arc that calls for more study. Coming from non-elite backgrounds, they all made fortunes defending underdogs. Yet by the 1970s, many had become caricatures of themselves: ethically challenged, nouveau riche lawyers whose conception of the oppressed had changed from labor radicals, African American civil rights advocates, and injured dockworkers to Nazi war criminals, disgraced televangelists, and down-on-their-luck celebrities. While Resner was not as extreme as some of his compatriots in this respect, the familiar trajectory of his career is suggestive. Perhaps there is a relationship between the enervation of many of the radical lawyers from the 1930s and 1940s and the path that liberalism found itself on during the same period. Many historians have noted the emergence of a more individualistic, market-based, anti-statist political culture in the 1970s. It may be that it was not simply our lawyers who traded Harry Bridges for Carlos Santana, but the country as a whole.
New Release: Stockreiter, "Islamic Law, Gender and Social Change in Post-Abolition Zanzibar"
New from Cambridge University Press: Islamic Law, Gender and Social Change in Post-Abolition Zanzibar (April 2015), by Elke Stockreiter (University of Iowa). The Press explains:
Reviewers say:After the abolition of slavery in 1897, Islamic courts in Zanzibar (East Africa) became central institutions where former slaves negotiated socioeconomic participation. By using difficult-to-read Islamic court records in Arabic, Elke Stockreiter reassesses the workings of these courts as well as gender and social relations in Zanzibar Town during British colonial rule (1890–1963). She shows how Muslim judges maintained their autonomy within the sphere of family law and describes how they helped advance the rights of women, ex-slaves, and other marginalised groups. As was common in other parts of the Muslim world, women usually had to buy their divorce. Thus, Muslim judges played important roles as litigants negotiated moving up the social hierarchy, with ethnicisation increasingly influencing all actors. Drawing on these previously unexplored sources, this study investigates how Muslim judges both mediated and generated discourses of inclusion and exclusion based on social status rather than gender.
'This captivating history establishes that Islamic courts contributed significantly to reconfiguring social relationships in post-abolition Zanzibar. Elke Stockreiter deftly explores rarely studied topics, such as women's control of property, men's material gains from divorce and former slaves' claims to inheritance, and reveals how the courts enabled these forms of individual agency while also constraining their social impact.' Susan F. Hirsch, George Mason University, VirginiaMore information is available here.
'Islamic Law, Gender and Social Change in Post-Abolition Zanzibar is a pioneering study of the practice of Islamic law in Zanzibar with a particular focus on gender dynamics and social change. This text is a highly welcome contribution to the fields of Islamic studies, gender studies and the history of Zanzibar in the colonial period.' Roman Loimeier, Universität Göttingen
Thursday, May 14, 2015
A Junior Scholars Conference at Tel Aviv University
[We have the following call for papers.]
The 3rd Annual TAU Workshop for Junior Scholars: Theory Coming to Life, Tel-Aviv, October 26-27 , 2015
The Tel Aviv University Buchmann Faculty of Law is pleased to invite submissions to its third annual workshop for junior scholars in law. The workshop provides junior scholars with the opportunity to present and discuss their work and receive meaningful feedback from faculty members and peers, and aims to invigorate the scholars’ active participation in the community of international junior scholars in law.
Through law, theory comes into our daily lives in many ways. The workshop will explore the connection between theory and life: how different theories are applied through legal doctrines, how theory comes to life through its application and how theory influences society and our lives.
Relevant papers could, for example, discuss more specific questions like: How do lessons learned from historical events affect the formation of theory and practice?
We welcome junior scholars (doctoral candidates, VAPs, writing fellows and recent graduates of doctoral programs) from universities and research institutions throughout the world to submit abstracts engaging with the leading theme of the workshop.
Limited travel grants and accommodation will be available for participants with no institutional funding.
Submissions: Abstracts of up to 500 words of the proposed presentation (with a short bio and your current institutional affiliation(s)) should be submitted by email to TAU.junior.scholars@gmail.com by June 15, 2015. Applicants requesting travel grants and/or accommodation should indicate so in their submission, along with the city they expect to depart from and an estimate of the funds requested.
Applicants will be informed of acceptance or rejection by July 15, 2015. Selected presenters must submit their papers up to 10,000 words in length by September 30, 2015.
The 3rd Annual TAU Workshop for Junior Scholars: Theory Coming to Life, Tel-Aviv, October 26-27 , 2015
The Tel Aviv University Buchmann Faculty of Law is pleased to invite submissions to its third annual workshop for junior scholars in law. The workshop provides junior scholars with the opportunity to present and discuss their work and receive meaningful feedback from faculty members and peers, and aims to invigorate the scholars’ active participation in the community of international junior scholars in law.
Through law, theory comes into our daily lives in many ways. The workshop will explore the connection between theory and life: how different theories are applied through legal doctrines, how theory comes to life through its application and how theory influences society and our lives.
Relevant papers could, for example, discuss more specific questions like: How do lessons learned from historical events affect the formation of theory and practice?
We welcome junior scholars (doctoral candidates, VAPs, writing fellows and recent graduates of doctoral programs) from universities and research institutions throughout the world to submit abstracts engaging with the leading theme of the workshop.
Limited travel grants and accommodation will be available for participants with no institutional funding.
Submissions: Abstracts of up to 500 words of the proposed presentation (with a short bio and your current institutional affiliation(s)) should be submitted by email to TAU.junior.scholars@gmail.com by June 15, 2015. Applicants requesting travel grants and/or accommodation should indicate so in their submission, along with the city they expect to depart from and an estimate of the funds requested.
Applicants will be informed of acceptance or rejection by July 15, 2015. Selected presenters must submit their papers up to 10,000 words in length by September 30, 2015.
Spiegel on Legal Aid, 1900-1930
Mark Spiegel, Boston College Law School (and a former Reggie), has posted Legal Aid 1900 to 1930: What Happened to Law Reform? which is forthcoming in the DePaul Journal for Social Justice:
This article offers a counter narrative to the conventional description of legal aid in the United States. By offering this counter narrative it focuses us on certain enduring difficulties that any legal aid or legal services program has to face if it wants to engage in reform efforts: problems of funding and problems of the social and historical context. Conventional wisdom has it that legal aid until the 1960s was largely devoted to individual cases and that it was not until the advent of federally-funded legal services that law reform and social change became part of the delivery of legal services to the poor. Contrary to this conventional wisdom, there is another story. As this article demonstrates, there was an aspiration toward using the legal system aggressively to achieve social justice during the period 1900 to roughly 1920. This changed during the 1920s.
In presenting this counter-narrative, this article first looks at legal aid during the period 1900-1920 to support the thesis that during this period legal aid aspired toward using the legal system to achieve social justice. It then looks at that next decade, the 1920s, and describes how legal aid became the kind of organization that conventional wisdom describes: a legal aid organization devoted almost solely to individual cases with a large focus on domestic relations practice and abandoning any attempt to use law to achieve social justice. More importantly, this article explores why this change to a more traditional type of legal aid occurred. The most interesting theories blame Reginald Heber Smith and the American Bar Association. Smith is blamed because of his alleged emphasis on access to justice in a landmark study of legal aid called “Justice and the Poor” published in 1919. The ABA is blamed because of the alleged “takeover” of legal aid by the conservative bar in the 1920’s, enabled by the ABA’s establishment of a standing committee on legal aid. These theories, however, are too reductionist and overlook two more important explanations for this retreat from law reform: the need for funding and the social and historical context. These explanations are significant not only because they shed light on a neglected part of our past, but because they connect that past to issues that persist until today.
Wednesday, May 13, 2015
Schmidt on the Civil Rights-Civil Liberties Divide
Christopher W. Schmidt, Chicago-Kent College of Law and the American Bar Foundation, has posted The Civil Rights-Civil Liberties Divide, which is forthcoming in the Stanford Journal of Civil Rights and Civil Liberties 12 (2016):
Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Article explains how this differentiation arose and considers its consequences.
Although there is a certain underlying logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech and due process rights of suspected subversives. Toward this end, they took two terms that had generally been used interchangeably and they created the civil rights-civil liberties distinction. Civil rights would forever after be attached to the struggle for racial equality and subsequent campaigns against other forms of public and private discrimination. Civil liberties would be attached to claims of individual freedom against generally applicable government regulatory power.
The civil rights-civil liberties divide was contested from the beginning, however. In the late 1940s and early 1950s, the radical left condemned the divide as a tool for politically powerful liberal anticommunists to separate themselves from the declining fortunes of their former New Deal allies. In the 1960s, a new generation of critics of the divide made the case that the battles against discrimination and government oppression were indivisible. Some advocated a new label, “human rights,” which would subsume the categories of civil rights and civil liberties, while also recognizing social welfare rights. Despite these revisionist efforts, the civil rights-civil liberties divide survives, still contested, but also reinforced as each new generation puts it to new uses. This Article not only reconstructs the largely forgotten history of the origins of the civil rights-civil liberties divide, it also identifies the ways in which labeling and categorizing the legal landscape can advance or impede legal change.
Banks v. Housing Authority and a Multi-Racial Approach to the Equal Protection Clause, Part 2
In my last post I discussed the background to the Banks v. Housing Authority case: the San Francisco Housing Authority’s separate but equal “neighborhood pattern” policy, the rise of Chinese American political power, and the decision of African American elites to abandon their tacit acceptance of segregated public housing by suing the Housing Authority.
The lawsuit was brought in San Francisco Superior Court in 1951. It was filed by Terry Francois, who, though just two years out of law school, was the head of the San Francisco NAACP’s Legal Redress Committee. Francois and his co-counsel, the much more experienced civil rights litigator Loren Miller, used the case to attack Plessy v. Ferguson’s separate but equal doctrine. Recent United States Supreme Court decisions, such as Shelley v. Kraemer, Sweatt v. Painter, and McLauren v. Oklahoma, indicated that separate but equal was all but dead. Banks, they argued, should be the final nail in the coffin. Even if the California courts didn’t wish to go that far (this was, after all, three years before Brown v. Board of Education), Francois and Miller suggested that, after Shelley, separate but equal should not apply in the context of property rights. They also claimed that California law and public policy provided an independent basis for abolishing separate but equal in the Golden State.
Francois and Miller won their case. While the trial court and the appellate courts refused to reject Plessy in its entirety, they accepted Francois and Miller’s other arguments. They also noted that the Authority could not even meet the separate but equal standard required by Plessy because, despite its claims otherwise, it failed to provide minority groups with public housing slots in proportion to their population in the city.
Though the NAACP proudly presented itself as a civil rights group working on behalf of all racial minorities, San Francisco’s Chinese American community was not pleased with the outcome in Banks. What the NAACP’s lawyers saw as a victory for racial egalitarianism, many people in Chinatown saw as a legal ruling that would take away both their neighborhood housing and a tangible symbol of their entry into the political mainstream. Chinese Americans, community leaders argued, did not wish to move into integrated housing projects spread throughout the city. They wanted to live in their neighborhood. For years they had fought to get the city to take action to relieve the chronic shortage of housing in Chinatown. Yet, just when they were able to convince the Housing Authority to do so by building Ping Yuen, the NAACP came and took it away from them.
The Banks case is a small chapter in the story of the emergence of a more racially egalitarian legal order in the United States, but it illustrates a significant point about that story: civil rights history looks different when viewed through a multiracial lens. Banks demonstrates that different racial groups may have different definitions of equality and different approaches to achieving it. The conflict between the Chinese American community and the African American community over public housing thus resulted in different interpretations of the Equal Protection Clause. While one racial group might see separate but equal as a degrading relic of Jim Crow oppression, another might see it as a potent symbol of its newfound political power.
For more on the story of the conflicts endemic to a multiracial fight for civil rights, including a discussion of the Banks case, see Mark Brilliant’s fantastic The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978. Banks also pops up in two great books about Asian communities in California: Charlotte Brooks, Alien Neighbors, Foreign Friends: Asian Americans, Housing, and the Transformation of Urban California; and Nayan Shah, Contagious Divides: Epidemics and Race in San Francisco’s Chinatown. For “the new objects of racial scorn,” see Scott Tang’s essay “Becoming the New Objects of Racial Scorn: Racial Politics and Racial Hierarchy in Postwar San Francisco, 1945-1960” in Jeff Roche, ed., The Political Culture of the New West.
The lawsuit was brought in San Francisco Superior Court in 1951. It was filed by Terry Francois, who, though just two years out of law school, was the head of the San Francisco NAACP’s Legal Redress Committee. Francois and his co-counsel, the much more experienced civil rights litigator Loren Miller, used the case to attack Plessy v. Ferguson’s separate but equal doctrine. Recent United States Supreme Court decisions, such as Shelley v. Kraemer, Sweatt v. Painter, and McLauren v. Oklahoma, indicated that separate but equal was all but dead. Banks, they argued, should be the final nail in the coffin. Even if the California courts didn’t wish to go that far (this was, after all, three years before Brown v. Board of Education), Francois and Miller suggested that, after Shelley, separate but equal should not apply in the context of property rights. They also claimed that California law and public policy provided an independent basis for abolishing separate but equal in the Golden State.
Francois and Miller won their case. While the trial court and the appellate courts refused to reject Plessy in its entirety, they accepted Francois and Miller’s other arguments. They also noted that the Authority could not even meet the separate but equal standard required by Plessy because, despite its claims otherwise, it failed to provide minority groups with public housing slots in proportion to their population in the city.
Though the NAACP proudly presented itself as a civil rights group working on behalf of all racial minorities, San Francisco’s Chinese American community was not pleased with the outcome in Banks. What the NAACP’s lawyers saw as a victory for racial egalitarianism, many people in Chinatown saw as a legal ruling that would take away both their neighborhood housing and a tangible symbol of their entry into the political mainstream. Chinese Americans, community leaders argued, did not wish to move into integrated housing projects spread throughout the city. They wanted to live in their neighborhood. For years they had fought to get the city to take action to relieve the chronic shortage of housing in Chinatown. Yet, just when they were able to convince the Housing Authority to do so by building Ping Yuen, the NAACP came and took it away from them.
The Banks case is a small chapter in the story of the emergence of a more racially egalitarian legal order in the United States, but it illustrates a significant point about that story: civil rights history looks different when viewed through a multiracial lens. Banks demonstrates that different racial groups may have different definitions of equality and different approaches to achieving it. The conflict between the Chinese American community and the African American community over public housing thus resulted in different interpretations of the Equal Protection Clause. While one racial group might see separate but equal as a degrading relic of Jim Crow oppression, another might see it as a potent symbol of its newfound political power.
For more on the story of the conflicts endemic to a multiracial fight for civil rights, including a discussion of the Banks case, see Mark Brilliant’s fantastic The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978. Banks also pops up in two great books about Asian communities in California: Charlotte Brooks, Alien Neighbors, Foreign Friends: Asian Americans, Housing, and the Transformation of Urban California; and Nayan Shah, Contagious Divides: Epidemics and Race in San Francisco’s Chinatown. For “the new objects of racial scorn,” see Scott Tang’s essay “Becoming the New Objects of Racial Scorn: Racial Politics and Racial Hierarchy in Postwar San Francisco, 1945-1960” in Jeff Roche, ed., The Political Culture of the New West.
Walter Gellhorn's Loyalty Board File
 |
| Walter Gellhorn (1974), UVA Law Library |
The rating examiner charged with assessing Gellhorn's loyalty for a possible appointment to the National War Labor Board concluded, "The information concerning the appointee’s loyalty to the United States is in a sense favorable and yet is disquieting.” To be sure, the "ultra-liberal," Gellhorn was "fully loyal to the United States.” Still,
[t]he information is disquieting in that the appointee has clearly affiliated himself with numerous Communist front and Communist dominated groups; that he has used his professional ability to advise, aid and defend Communists and organizations known to be Communist saturated; and, in that it is inconceivable that an individual as intelligent and well -informed as this appointee must be ignorant of that fact that his affiliations were with Communist dominated groups and his activities were serving to aid the Communist cause. The possibility of the appointee’s innocence in these matter diminished in proportion to the numerical rise in his memberships and capacities until such a possibility of innocence must be dismissed as unreasonable.
Louis Rothschild Mehlinger (1882-1987)
[Longtime LHB readers will recall that the exam in my annual survey of American legal history includes a biographical essay. Here is this year's.]
Louis Rothschild Mehlinger (1882-1987) was born along the shores of the Mississippi River to Ferdinand Mehlinger, a German Jew who had emigrated to New Orleans in 1865, and the former Catherine Hayes, who had been born a slave in 1863. He grew up in rural Mississippi, where his father was a postmaster and merchant. Louis was sent off to a historically black college in Jackson, Mississippi, where the instruction was vocational. One day, Booker T. Washington visited and Mehlinger was among the students assigned to look after the great man. “I never will forget,” he later said, “I got to shine the dear gentleman’s shoes.” Looking back, he thought the educator’s focus on vocational training was right “under the circumstances in which Booker Washington found himself.”
Upon graduating he briefly taught carpentry in Florida, but in January 1907, during Theodore Roosevelt’s presidency, he arrived in Washington, DC, to take a job as clerk in the Treasury Department. He boarded in the same house with Carter Woodson and would serve as secretary of the historian’s Association for the Study of Afro-American Life and History. He enrolled in Howard University’s night dental school, but it closed before he could get his degree. By studying shorthand, typing, and bookkeeping, he qualified for a stenographer job at Treasury. In 1916 he entered Howard’s night law school but his studies were interrupted by the United States’ entry into World War I. After a stint in a black officer’s training school, he became a captain in an infantry division that served in France.
After the war, Mehlinger returned to Treasury and recommenced his nighttime legal studies at Howard. He graduated magna cum laude in 1921, soon after the start of Warren G. Harding’s presidential administration. Solo practice was unpromising, as “most black families with any means” wanted a white lawyer. Fortunately, the Department of Justice’s only black lawyer, a member of the Republican National Committee from Mississippi, had Mehlinger appointed his stenographer. Because his politically connected boss “ran around a lot,” all the law work of the office fell to him. “Pretty soon,” he recalled, “I was appointed assistant attorney and assigned to argue cases in the Court of Claims,” a juryless court that heard monetary claims against the federal government.
Some members of the government were offended when they realized that the Department of Justice had sent a black lawyer to discuss a case with them. When Mehlinger traveled in the South to investigate a claim, he routinely left the day before the returned trip he had booked, fearful that if he left as scheduled “Ku Klux Klan elements” might take him off the train in some rural area. His caution was understandable: in 1925, white Mississippians murdered his brother and drove his father from the state. Despite such handicaps, Mehlinger became so good at his job that even FDR's patronage-starved Democrats decided they had to retain him–a Republican–when they came into office in 1933.
Mehlinger had subscribed to the NAACP’s journal as early as 1915, when he wished its editor W.E.B. Du Bois and the NAACP itself “smooth seas and prosperous gales on its great voyage for manhood rights.” (Mehlinger later called Du Bois “the most brilliant man I ever knew.”) In 1919, he testified against racially segregated passenger cars at a congressional hearing over the return of railroads to private hands after their wartime nationalization. With Charles Hamilton Houston and five others, Mehlinger co-founded a black lawyer’s group, the Washington Bar Association, in 1925. But he also thought that “Houston had the Harvard stamp on him.” Unlike Houston, Mehlinger believed one could study law successfully at night and co-founded a night law school that produced 600 graduates over fifteen years starting in the 1930s.
As perhaps befits a fellow who delivered patriotic Flag Day speeches to schoolchildren, in December 1941 Mehlinger offered his services to the Secretary of War “in whatever field of endeavor they may be used in defense of my country.” He also tried to persuade Brigadier General Benjamin O. Davis to help him be called to active duty. (Davis told him that “he would be of more service, due to his age and so forth, to the government by remaining in his present assignment.”) Mehlinger was active in his church (where he was a deacon), the American Legion, the Elks, and his college fraternity. In these groups he always argued against those who counseled collaborating with Communists. “I have always maintained that all the ills eventually could be adjusted,” he later explained. One his superiors at DOJ agreed. Although Mehlinger concerned himself with the welfare of “his own people,” Francis Shea recalled, “he was moderate and seasoned in his views of how to push forward the welfare of the Negroes.”
Mehlinger refused to join the National Negro Congress but he did join the National Lawyers Guild in 1946 because he understood from Judge James A. Cobb that it “had received a clearance”–apparently a reference to the decision not to place the Guild on the Attorney General’s List of Subversive Organizations. Although placed on the Guild’s Civil Rights Committee, he attended no more than three Guild meetings.
You can imagine Mehlinger’s shock and surprise, then, when, in September 1948, he was notified to appear before the Department of Justice’s Loyalty Review Board, created by executive order by President Harry S. Truman, to show why he should not be removed from his position for disloyalty. The only basis offered was his “sympathetic association with the Southern Negro Youth Congress,” a group long under surveillance by the Federal Bureau of Investigation. Mehlinger had agreed to have his name listed as a sponsor of the group’s national meeting after receiving a circular listing one of his fraternity brothers, Du Bois, and other African American leaders. “Being a Negro myself and having suffered the indignities of Jim Crowism,” he explained at his hearing, “naturally I was in sympathy.” He only learned that the group was considered subversive when notified of his charges.
When presented with the pamphlet of the Southern National Youth Congress that listed Mehlinger as a sponsor, the lawyer was repulsed. The figures on it, he said at his hearing in October 1948, reminded him of a “passage from Dante’s Inferno. . . . I would have suffered my right hand to be cut off before I put my name” to it. Many witnesses–white and black–testified to his loyalty and none to his disloyalty. One former Assistant Attorney General testified that he was “dumbfounded “ to hear of the charges. Another DOJ lawyer called Mehlinger “one of the most loyal people that I have ever known” and “one of the most faithful government servants that I have ever come into contact with.” Although Mehlinger kept his position, his file was not closed until after his retirement in 1952.
At his loyalty hearing, Mehlinger ventured, “I have achieved as well as any man who started as low as I was.” The Washington Post reporter who caught up with him on his hundredth birthday found that he still had a few court-appointed clients. Asked his philosophy of life, he quoted Micah: “What does the Lord require of the old man? But to love mercy, do justly and walk humbly with thy God.” He died a few weeks short of his 105th birthday.
[The principal sources for this essay are digitized newspapers and the Oversize Personnel Security Investigation Case Files (inventory A1, entry 2, box 1303) of the Records of the Office of Personnel Management (RG 478), which Landon R. Y. Storrs rescued from historical obscurity and used so effectively in her excellent Second Red Scare and the Unmaking of the New Deal Left (2013).]
Upon graduating he briefly taught carpentry in Florida, but in January 1907, during Theodore Roosevelt’s presidency, he arrived in Washington, DC, to take a job as clerk in the Treasury Department. He boarded in the same house with Carter Woodson and would serve as secretary of the historian’s Association for the Study of Afro-American Life and History. He enrolled in Howard University’s night dental school, but it closed before he could get his degree. By studying shorthand, typing, and bookkeeping, he qualified for a stenographer job at Treasury. In 1916 he entered Howard’s night law school but his studies were interrupted by the United States’ entry into World War I. After a stint in a black officer’s training school, he became a captain in an infantry division that served in France.
After the war, Mehlinger returned to Treasury and recommenced his nighttime legal studies at Howard. He graduated magna cum laude in 1921, soon after the start of Warren G. Harding’s presidential administration. Solo practice was unpromising, as “most black families with any means” wanted a white lawyer. Fortunately, the Department of Justice’s only black lawyer, a member of the Republican National Committee from Mississippi, had Mehlinger appointed his stenographer. Because his politically connected boss “ran around a lot,” all the law work of the office fell to him. “Pretty soon,” he recalled, “I was appointed assistant attorney and assigned to argue cases in the Court of Claims,” a juryless court that heard monetary claims against the federal government.
Some members of the government were offended when they realized that the Department of Justice had sent a black lawyer to discuss a case with them. When Mehlinger traveled in the South to investigate a claim, he routinely left the day before the returned trip he had booked, fearful that if he left as scheduled “Ku Klux Klan elements” might take him off the train in some rural area. His caution was understandable: in 1925, white Mississippians murdered his brother and drove his father from the state. Despite such handicaps, Mehlinger became so good at his job that even FDR's patronage-starved Democrats decided they had to retain him–a Republican–when they came into office in 1933.
Mehlinger had subscribed to the NAACP’s journal as early as 1915, when he wished its editor W.E.B. Du Bois and the NAACP itself “smooth seas and prosperous gales on its great voyage for manhood rights.” (Mehlinger later called Du Bois “the most brilliant man I ever knew.”) In 1919, he testified against racially segregated passenger cars at a congressional hearing over the return of railroads to private hands after their wartime nationalization. With Charles Hamilton Houston and five others, Mehlinger co-founded a black lawyer’s group, the Washington Bar Association, in 1925. But he also thought that “Houston had the Harvard stamp on him.” Unlike Houston, Mehlinger believed one could study law successfully at night and co-founded a night law school that produced 600 graduates over fifteen years starting in the 1930s.
As perhaps befits a fellow who delivered patriotic Flag Day speeches to schoolchildren, in December 1941 Mehlinger offered his services to the Secretary of War “in whatever field of endeavor they may be used in defense of my country.” He also tried to persuade Brigadier General Benjamin O. Davis to help him be called to active duty. (Davis told him that “he would be of more service, due to his age and so forth, to the government by remaining in his present assignment.”) Mehlinger was active in his church (where he was a deacon), the American Legion, the Elks, and his college fraternity. In these groups he always argued against those who counseled collaborating with Communists. “I have always maintained that all the ills eventually could be adjusted,” he later explained. One his superiors at DOJ agreed. Although Mehlinger concerned himself with the welfare of “his own people,” Francis Shea recalled, “he was moderate and seasoned in his views of how to push forward the welfare of the Negroes.”
Mehlinger refused to join the National Negro Congress but he did join the National Lawyers Guild in 1946 because he understood from Judge James A. Cobb that it “had received a clearance”–apparently a reference to the decision not to place the Guild on the Attorney General’s List of Subversive Organizations. Although placed on the Guild’s Civil Rights Committee, he attended no more than three Guild meetings.
You can imagine Mehlinger’s shock and surprise, then, when, in September 1948, he was notified to appear before the Department of Justice’s Loyalty Review Board, created by executive order by President Harry S. Truman, to show why he should not be removed from his position for disloyalty. The only basis offered was his “sympathetic association with the Southern Negro Youth Congress,” a group long under surveillance by the Federal Bureau of Investigation. Mehlinger had agreed to have his name listed as a sponsor of the group’s national meeting after receiving a circular listing one of his fraternity brothers, Du Bois, and other African American leaders. “Being a Negro myself and having suffered the indignities of Jim Crowism,” he explained at his hearing, “naturally I was in sympathy.” He only learned that the group was considered subversive when notified of his charges.
When presented with the pamphlet of the Southern National Youth Congress that listed Mehlinger as a sponsor, the lawyer was repulsed. The figures on it, he said at his hearing in October 1948, reminded him of a “passage from Dante’s Inferno. . . . I would have suffered my right hand to be cut off before I put my name” to it. Many witnesses–white and black–testified to his loyalty and none to his disloyalty. One former Assistant Attorney General testified that he was “dumbfounded “ to hear of the charges. Another DOJ lawyer called Mehlinger “one of the most loyal people that I have ever known” and “one of the most faithful government servants that I have ever come into contact with.” Although Mehlinger kept his position, his file was not closed until after his retirement in 1952.
At his loyalty hearing, Mehlinger ventured, “I have achieved as well as any man who started as low as I was.” The Washington Post reporter who caught up with him on his hundredth birthday found that he still had a few court-appointed clients. Asked his philosophy of life, he quoted Micah: “What does the Lord require of the old man? But to love mercy, do justly and walk humbly with thy God.” He died a few weeks short of his 105th birthday.
[The principal sources for this essay are digitized newspapers and the Oversize Personnel Security Investigation Case Files (inventory A1, entry 2, box 1303) of the Records of the Office of Personnel Management (RG 478), which Landon R. Y. Storrs rescued from historical obscurity and used so effectively in her excellent Second Red Scare and the Unmaking of the New Deal Left (2013).]
Tuesday, May 12, 2015
Two New Exhibits at HLS Special Collections
[We have the following announcement.]
The Harvard Law School Library’s Historical & Special Collections team is pleased to announce two new exhibits, both on view from 9 to 5 daily in the Caspersen Room, Langdell Hall, through mid-August 2015.
“It Was a Dark and Stormy Semester … Portrayals of Harvard Law School in Literature” seeks to highlight the role of Harvard Law School in fiction. Sometimes the law school serves as the scene, sometimes the featured characters are law school graduates, and sometimes the law school inspired its students to become novelists during their JD studies. A companion website to the exhibit can be found here. The exhibit was curated by Library staff members Claire DeMarco and Ed Moloy.
“By Popular Demand” is our first student-curated exhibit. It features objects in a variety of formats from Historical & Special Collections, selected by HSC staff and voted on by HLS students.
We hope you have a chance to view both exhibits next time you find yourself in the Cambridge area.
The Harvard Law School Library’s Historical & Special Collections team is pleased to announce two new exhibits, both on view from 9 to 5 daily in the Caspersen Room, Langdell Hall, through mid-August 2015.
“It Was a Dark and Stormy Semester … Portrayals of Harvard Law School in Literature” seeks to highlight the role of Harvard Law School in fiction. Sometimes the law school serves as the scene, sometimes the featured characters are law school graduates, and sometimes the law school inspired its students to become novelists during their JD studies. A companion website to the exhibit can be found here. The exhibit was curated by Library staff members Claire DeMarco and Ed Moloy.
“By Popular Demand” is our first student-curated exhibit. It features objects in a variety of formats from Historical & Special Collections, selected by HSC staff and voted on by HLS students.
We hope you have a chance to view both exhibits next time you find yourself in the Cambridge area.
Religion and the Constitution: An ICH Summer Seminar
[We are moving this post up as the deadline of May 15 is approaching.]
The Institute for Constitutional History is pleased to announce a residential summer research seminar for advanced graduate students and junior faculty, which will be co-sponsored by the Stanford Constitutional Law Center. This year's seminar is entitled “Religion and the Constitution.”
The instructors will be Michael McConnell, the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and Jack Rakove, the William Robertson Coe Professor of History and American Studies and Professor of Political Science and (by courtesy) Law at Stanford University.
This seminar will combine discussion of works-in-progress by the participants (on a variety of subjects) with a focused set of conversations about religion in the American Republic. We will examine the relation between the principles of religious freedom embodied in the First Amendment to the Constitution and the growth of the spiritually active, multi-denominational, and religiously tolerant culture that distinguishes the United States from most other societies. Seminar readings will follow a historical arc. We will begin with the emergence of practices of toleration in early modern Europe and the birth of a commitment to the free exercise of religion as a natural right in 18th- century America. After that we will examine the developing law of religion in 19th- and 20th-century America before concluding with the debates over religious accommodation that have become so controversial over the past few years. The relationship of history, law, and culture will be a subject of recurring interest.
The seminar will meet at Stanford Law School, from July 12-17, 2015. The Institute for Constitutional History will reimburse participants for their travel expenses (up to $350), provide accommodation at the Munger Graduate Residence on the Stanford campus, and offer a modest stipend to cover food and additional expenses. Seminar enrollment is limited to fifteen participants.
Applicants for the seminar should send a copy of their curriculum vitae, a brief description (three to five pages) of the research project to be pursued during the seminar, and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted until May 15, 2015, and only by email at MMarcus@nyhistory.org. Successful applicants will be notified soon thereafter.
For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.
The Institute for Constitutional History (ICH) is the nation's premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.
The Stanford Constitutional Law Center grows out of the long and distinguished tradition of constitutional law scholarship at Stanford Law School. The Center seeks to carry on that tradition by directing attention to the most fundamental questions of constitutional order, especially the allocation and control of governmental power through law. The Center advances this mission through events and activities that foster scholarship, generate public discussion, attempt to transcend ideological divides, and provide opportunities for students to engage in analysis of the Constitution.
The Institute for Constitutional History is pleased to announce a residential summer research seminar for advanced graduate students and junior faculty, which will be co-sponsored by the Stanford Constitutional Law Center. This year's seminar is entitled “Religion and the Constitution.”
The instructors will be Michael McConnell, the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and Jack Rakove, the William Robertson Coe Professor of History and American Studies and Professor of Political Science and (by courtesy) Law at Stanford University.
This seminar will combine discussion of works-in-progress by the participants (on a variety of subjects) with a focused set of conversations about religion in the American Republic. We will examine the relation between the principles of religious freedom embodied in the First Amendment to the Constitution and the growth of the spiritually active, multi-denominational, and religiously tolerant culture that distinguishes the United States from most other societies. Seminar readings will follow a historical arc. We will begin with the emergence of practices of toleration in early modern Europe and the birth of a commitment to the free exercise of religion as a natural right in 18th- century America. After that we will examine the developing law of religion in 19th- and 20th-century America before concluding with the debates over religious accommodation that have become so controversial over the past few years. The relationship of history, law, and culture will be a subject of recurring interest.
The seminar will meet at Stanford Law School, from July 12-17, 2015. The Institute for Constitutional History will reimburse participants for their travel expenses (up to $350), provide accommodation at the Munger Graduate Residence on the Stanford campus, and offer a modest stipend to cover food and additional expenses. Seminar enrollment is limited to fifteen participants.
Applicants for the seminar should send a copy of their curriculum vitae, a brief description (three to five pages) of the research project to be pursued during the seminar, and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted until May 15, 2015, and only by email at MMarcus@nyhistory.org. Successful applicants will be notified soon thereafter.
For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.
The Institute for Constitutional History (ICH) is the nation's premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.
The Stanford Constitutional Law Center grows out of the long and distinguished tradition of constitutional law scholarship at Stanford Law School. The Center seeks to carry on that tradition by directing attention to the most fundamental questions of constitutional order, especially the allocation and control of governmental power through law. The Center advances this mission through events and activities that foster scholarship, generate public discussion, attempt to transcend ideological divides, and provide opportunities for students to engage in analysis of the Constitution.
Rabb on the Judical Stereotyping of Kadijustiz
Intisar A. Rabb, Harvard Law School, has posted Against Kadijustiz: On the Negative Citation of Foreign Law, which is forthcoming in the Suffolk University Law Review 48 (2015): 343-77:
In the arguments about the judicial citation of foreign law, judges are arguing about values, but they often do not acknowledge the values that they are debating or give specific reasons for why they prefer one over the other in their majority and dissenting opinions — preferring instead to adopt negative models of foreign law against which to make a general claim. One example of this phenomenon is the American judicial citation of “kadijustiz” — a term introduced by Max Weber and popularized by Justice Frankfurter in a 1949 decision to refer to arbitrariness. But this is wrong because for two reasons. First, it is inaccurate, as Islamic legal historians have long pointed out in detailing Islamic judicial procedure in Mamluk, Ottoman, and other courts from the medieval to early modern periods. Second, judicial citation of kadijustiz obscures the reasons for adopting certain values over others in contested judicial decision-making, thereby weakening invoking-judges’ arguments overall.
New Release: Batlan's History of Legal Aid, 1863-1945
I've been really looking forward to this new release, from Cambridge University Press: Women and Justice for the Poor: A History of Legal Aid, 1863–1945, by former guest blogger Felice Batlan (Illinois Institute of Technology/Chicago-Kent College of Law). Here's the abstract:
Reviewers say:This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women's history in dialogue, it demonstrates that nineteenth-century women's organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor.
"Women and Justice for the Poor is an exciting and timely intervention into work on lawyering in the United States. Batlan establishes the deep relevance of ideas about gender and race to the history of law and legal practice through ambitious research, provocative analysis, and engaging narrative." -- Martha S. Jones, Arthur F. Thurnau Professor, University of Michigan
"By tracking legal aid through the winding corridors of urban social institutions, Batlan gives us evocative insights into gender, reform, capitalism, and lawyering in a cogent and fascinating historical account. Her erosion of lay and professional boundaries, demonstrated by women’s contribution to legal aid and the pragmatic relief they provided to underprivileged clients, illuminates the value of using gender to frame the story." -- Norma Basch, Professor Emeritus, Rutgers University
More information is available here."In a remarkably original social/legal history, Batlan is asking readers to rethink what lawyering has meant and could mean. And when you ask ‘outside the box’ questions, you come up with surprising answers. This book can help us understand why law today can be far from justice." -- Linda Gordon, Florence Kelley Professor of History, New York University
Monday, May 11, 2015
Alden on Williston on Promissory Estoppel
Eric Alden, Northern Kentucky University, Chase College of Law, has posted Rethinking Promissory Estoppel, which is forthcoming in the Nevada Law Journal 16 (2015):
Samuel Williston, the official Reporter for the ALI’s first Restatement of the Law of Contracts in 1932, claimed that promises had been enforced without consideration in sufficiently many cases across different factual situations that the only way to embrace them all was to create a provision, set forth in Section 90 and generally referred to as “promissory estoppel,” that purports to suspend wholesale the normal rules governing contract formation. This Article challenges that assertion as a factual matter, and challenges the claim that only a provision as broad as Section 90 could accommodate certain limited exceptions to the consideration requirement that had been observed at the time.H/t: Legal Theory Blog
To the extent Williston’s initial claim of authority rests upon questionable assertions, fundamental concerns arise as to the legitimacy of Section 90 in its current form and as to the doctrinal validity of cases decided on the basis thereof.
This Article further addresses the implications of this analysis for the future of contract law. In order to reduce the risk of contract bleeding out doctrinally into tort, the Article argues that a markedly more modest approach than that reflected in Section 90 should be taken with respect to the enforcement of promises in the absence of consideration. Specifically, the Article argues in favor of discrete, limited categorical exceptions to the consideration requirement. As to factual situations not falling within those categorical exceptions, courts should strongly consider an implied unilateral contract analysis as an analytic paradigm preferable to that of promissory estoppel.
Zelden on Thurgood Marshall on C-SPAN2
Next weekend, commencing sometime Saturday afternoon, Charles L. Zelden, Nova Southeastern University, will discuss his book Thurgood Marshall: Race, Rights, and the Struggle for a More Perfect Union on C-SPAN2 BookTV. The interview is to be available in C-SPAN’s video archive starting Monday, May 18th.
Banks v. Housing Authority and a Multi-Racial Approach to the Equal Protection Clause, Part 1
 |
| The Ping Yuen Public Housing Project in 1956 (San Francisco Public Library, Historical Photo Collection) |
Chinese Americans faced appalling discrimination in San Francisco prior to World War II. Hemmed into Chinatown’s crowded, substandard housing, San Francisco’s Chinese population faced discrimination in employment, housing, and public accommodations, hostility from police and public health officials, and violence from bigoted demagogues who stoked white working class fears about competition for jobs. While San Francisco’s tiny African American community (less than 5000 people prior to the War) faced discrimination, it was not subject to the extreme race hatred and bigotry that marked relations between the white and Asian communities.
The 1940s saw a dramatic shift in this racial dynamic. Both the image and the fortunes of the Chinese American community changed as the decade progressed. White Americans came to view the community differently. The Chinese had been loyal allies during the War – heroic resisters of Japanese aggression. After the War, most of those living in the United States were staunch supporters of the Kuomintang and thus stood at the forefront of the anti-communist struggle against “Red” China. This status as war heroes and cold warriors led to a dramatic decline in anti-Chinese sentiment. It also resulted in tangible benefits for the Chinese American community, such as a loosening of restrictions on immigration, political appointments for Chinese Americans, and the provision of government benefits targeted specifically at their communities. In San Francisco, it meant access to local political power, including patronage positions in local government, and the building of the Ping Yuen public housing project in Chinatown. At the same time, African Americans’ position in the racial hierarchy shifted. As African Americans streamed into the city in increasing numbers, hostility towards them grew. Discrimination in employment increased, as did housing and educational segregation, and police hostility. As historian Scott Tang has elegantly written, in postwar California, African Americans replaced Chinese Americans as the “new objects of racial scorn.”
This shifting racial dynamic was played out in a fascinating manner in the litigation that the NAACP brought to desegregate San Francisco’s public housing, a case known as Banks v. Housing Authority. Prior to 1950, the San Francisco Housing Authority segregated its public housing by race. Whites lived in projects in white neighborhoods and African Americans lived in a single project in the Western Addition. Immediately after World War II, the Housing Authority built two more housing projects, North Beach Place in the predominantly Italian North Beach neighborhood and the Ping Yuen apartments in Chinatown. According to the Housing Authority’s “neighborhood pattern” policy, only Italian Americans would be allowed to live in North Beach Place and only Chinese Americans would be admitted to Ping Yuen. Every racial and ethnic group in the city would be given a number of public housing slots proportional to the need for public housing in their community. Thus, the distribution of public housing would be equal among the different communities, but it would be separate.
Prior to the World War II, San Francisco’s African American community didn’t object to this approach. Indeed, at that time, the city’s African American elites didn’t demand that the Housing Authority integrate its properties. They simply asked that it build them “their own” public housing in the Western Addition. Thus, when the Westside Courts opened in 1943, the African American community considered it to be a political victory. By the late 1940s, however, civil rights groups had turned decisively against the “separate but equal” premise of the demand to build Westside Courts. Consequently, in 1951, the NAACP sued the Housing Authority, asserting that the neighborhood pattern policy violated the Equal Protection Clause of the Fourteenth Amendment.
For the details of the lawsuit and its controversial aftermath, stay tuned. They will be the subject of my next post.
This shifting racial dynamic was played out in a fascinating manner in the litigation that the NAACP brought to desegregate San Francisco’s public housing, a case known as Banks v. Housing Authority. Prior to 1950, the San Francisco Housing Authority segregated its public housing by race. Whites lived in projects in white neighborhoods and African Americans lived in a single project in the Western Addition. Immediately after World War II, the Housing Authority built two more housing projects, North Beach Place in the predominantly Italian North Beach neighborhood and the Ping Yuen apartments in Chinatown. According to the Housing Authority’s “neighborhood pattern” policy, only Italian Americans would be allowed to live in North Beach Place and only Chinese Americans would be admitted to Ping Yuen. Every racial and ethnic group in the city would be given a number of public housing slots proportional to the need for public housing in their community. Thus, the distribution of public housing would be equal among the different communities, but it would be separate.
Prior to the World War II, San Francisco’s African American community didn’t object to this approach. Indeed, at that time, the city’s African American elites didn’t demand that the Housing Authority integrate its properties. They simply asked that it build them “their own” public housing in the Western Addition. Thus, when the Westside Courts opened in 1943, the African American community considered it to be a political victory. By the late 1940s, however, civil rights groups had turned decisively against the “separate but equal” premise of the demand to build Westside Courts. Consequently, in 1951, the NAACP sued the Housing Authority, asserting that the neighborhood pattern policy violated the Equal Protection Clause of the Fourteenth Amendment.
For the details of the lawsuit and its controversial aftermath, stay tuned. They will be the subject of my next post.
Paradise on CRT and the African-American Christian Tradition
Brandon L. Paradise, Rutgers Law School-Newark, has published How Critical Race Theory Marginalizes the African-American Christian Tradition in Michigan Journal of Race & Law 20 (Fall 2014): 117-211:
 |
| Martin Luther King's Study (Carol M. Highsmith/LC) |
This Article offers the first comprehensive account of the marginalization of the African American Christian tradition in the movement of race and law scholarship known as critical race theory. While committed to grounding itself in the perspectives of communities of color, critical race theory has virtually ignored the significance of the fact that the civil rights movement came out of the Black church and that today more than eighty percent of African Americans self-identify as Christian. In practical terms, critical race theory’s neglect of the Christian tradition has meant that arguments developed in race and law scholarship are sometimes incompatible with the deeply religious normative frameworks that many Black Americans bring to bear on issues of law and justice. As a result, there is a significant disconnect between race and law scholarship and the comprehensive normative commitments of the community whose concerns that scholarship seeks to address. By offering the first comprehensive account of this disconnect, this Article supplies an important foundation for scholars who wish to close the gap between race and law scholarship and the larger African American community.
Sunday, May 10, 2015
Sunday Book Roundup
The Washington Post has a review of Cokie Roberts's Capital Dames: The Civil War and the Women of Washington, 1848-1868 (Harper).Charles Murray has a new book out, By the People: Rebuilding Liberty Without Permission (Crown Forum), and it is reviewed in The Washington Post.
The New York Review of Books has a piece by Jed Rakoff reviewing a report by Oliver Roeder, Lauren-Brooke Eisen, and Julia Bowling, with a foreword by Joseph E. Stiglitz and an executive summary by Inimai Chettiar, "What Caused the Crime Decline?".
The New Books series has an interview with Rebecca Earle, discussing her book, The Body of the Conquistador: Food, Race, and the Colonial Experience in Spanish America (Cambridge University Press).
Also interviewed by New Books is Amy Kittelstrom, who discusses her new work, The Religion of Democracy: Seven Liberals and the American Moral Tradition (Penguin).Karen Paget's Patriotic Betrayal: The Inside Story of the CIA's Secret Campaign to Enroll American Students in the Crusade Against Communism (Yale University Press) is reviewed in the Los Angeles Review of Books.
The Nation reviews William Maxwell's F.B. Eyes: How J. Edgar Hoover's Ghostreaders Framed African American Literature (Princeton University Press).
Salon supplies us with several excerpts this weekend, including ones from:
- Christian Hageseth's Big Weed: An Entrepreneur's High-Stakes Adventures in the Budding Legal Marijuana Business (Palsgrave Macmillan) (here).
- David Cohen and Krysten Connon's Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism (Oxford University Press) (here).
- Caroline Fredrickson's Under the Bus: How Working Women are Being Run Over (The New Press) (here).
H-Net adds a review of Mary K. Trigg's Feminism as Life's Work: Four Modern American Women through Two World Wars (Rutgers University Press).
The New York Times has a review of The Quartet: Orchestrating the Second American Revolution, 1783-1789 by Joseph J. Ellis (Knopf)."When and how did the United States become a nation? This question is the core of “The Quartet.” In his customary graceful prose, Joseph J. Ellis, the author of such works of popular history as the prizewinning “Founding Brothers,” argues that the United States did not become a nation with the Declaration of Independence in 1776. Rather, he says, American nationhood resulted from the creation, adoption and effectuation of the United States Constitution."Also in the Times is a review of Speak Now: Marriage Equality on Trial: The Story of Hollingsworth v. Perry (Crown) by Kenji Yoshino.
John W. Patty and Elizabeth Maggie Penn's Social Choice and Legitimacy: The Possibilities of Impossibility (Cambridge University Press) is reviewed on The New Rambler.
Saturday, May 9, 2015
Weekend Roundup
- Martha S. Jones, University of Michigan, has an op-ed tracing the origins of the recent unrest in Baltimore to the mortgage crisis, which she views on her research on the city's African American community as viewd from Baltimore's City Courthouse in the nineteenth century.
- On May 11, James Loeffler, University of Virginia, presents The Sovereignty of a Higher Law? Global Antisemitism and Jewish Politics in the 1960s to the Washington History Seminar.
- The Miller Center for Public Affairs series What Now? Dialogues on Race and Turmoil in America continues on Monday, May 11, with Frederick C. Harris and Robert C. Lieberman, the authors of Beyond Discrimination: Racial Discrimination in a Post-Racist Era, and on May 18, with Orlando Patterson, the John Cowles Professor of Sociology at Harvard University, speaking on the topic Whose Fault is Ferguson? The Roots of Our National Discord.
- At the New-York Historical Society on Saturday, May 16, 2015, Judge Denny Chin of the United States Circuit Judge for the United States Court of Appeals for the Second Circuit and the Asian American Bar Association of New York will reenact the trial of a group of Japanese-American citizens interned at Wyoming’s Heart Mountain Relocation Center who refused to be drafted in 1944. “Experts lead a trial reenactment of the legal proceedings that followed and share the draft resisters’ story through narration, discussion, and historic photographs.”
- On June 10-11, "more than 70 top scholars from around the world—all former residents at the John W. Kluge Center—will be under one roof at the Library of Congress as they converge on Capitol Hill on the occasion of the Kluge Center’s 15th anniversary, for an event we’ve titled ScholarFest." Hat tip.
- Has anyone taught a course on the Legal History of the Vietnam War before?
- Congratulations to the Osgoode Society for receiving for receiving the 2015 Hugh Lawford Award (for excellence in legal publishing) from the Canadian Association of Law Libraries. (h/t Canadian Legal History Blog)
- Update: We're not making this up: a rap history of the Japanese constitution.
- Update: the gathered tweets from yesterday's National History center-sponsored congressional briefing on tax history are here.
Friday, May 8, 2015
Bellia and Clark on on the Alien Tort Statute and the Origins of Federal Common Law Actions
Anthony J. Bellia Jr., Notre Dame Law School, and Bradford R. Clark, George Washington University Law School, have posted The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, which appears in the Virginia Law Review 101 (2015): 609
Judges and scholars have long debated the legitimacy and contours of federal common law causes of action — actions created neither by Congress nor by state law. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts, including with respect to whether federal courts may recognize an implied right of action for the violation of a constitutional or statutory provision that does not specifically create one. Recently, the power of federal courts to recognize federal common law causes of action has emerged as a key question under the 1789 Alien Tort Statute (“ATS”), a purely jurisdictional statute that the Supreme Court recently has attempted to apply in accordance with its original meaning. In interpreting the ATS to allow federal courts to adjudicate some federal common law causes of action, the Supreme Court has embraced a common — but mistaken — assumption about how early federal courts operated: namely, that early federal courts found causes of action in the ambient unwritten law of the era.
This Article explains why this widespread assumption is false. Early federal courts did not rely on ambient common law to supply causes of action in civil suits within their jurisdiction. Rather, early Congresses enacted specific statutes that prescribed the civil causes of action available in federal court. In particular, the Process Acts of 1789 and 1792 defined the causes of action that federal courts could adjudicate in actions at law, as well as in cases in equity and admiralty and maritime jurisdiction. In enacting these laws, Congress did not leave federal courts free to derive causes of action from the common law in the abstract. Rather, Congress specifically adopted several preexisting, well-developed bodies of law for use in federal court — most notably, requiring federal courts to borrow state causes of action in common law cases. While the Process Acts of 1789 and 1792 remained in force, federal courts adjudicated only those causes of action authorized by Congress. This history has important implications for questions of federal judicial power today. The example of the ATS illustrates how a proper understanding of the original source of the cause of action in federal court can both inform and transform debates over the origins and nature of federal judicial power.
Kammer on Railroard Land Grants and the Right of Exclusion
Sean M. Kammer, University of South Dakota School of Law, has posted "No Trespassing": Railroad Land Grants, the Right of Exclusion, and the Origins of Federal Forest Conservation, which appeared in the North Dakota Law Review 90 (2014): 87-120.
The Forest Management Act of 1897 established a management model for public lands that, for the most part, remains intact. It embodies a balancing of control and conservation of forest resources such as timber, minerals, and forage with provisions for the exploitation of those resources for private gain. This article explores the historical context in which this landmark legislation arose. It examines the role of large railroad companies, particularly those that received extensive land subsidies, in first challenging the long-standing custom of timber as an open-access resource in the American West. By enforcing their right of exclusion against timber trespassers in the court system, these railroad companies—while simply acting in their own pecuniary interest—helped effect a shift in natural resources policy from one emphasizing privatization and rapid development to one incorporating government ownership and centralized management. This article, however, illustrates the extent to which the allocation of resources can operate as a one-way ratchet. It is all too easy to give nature away; it is not so easy to get it back.
Ryan on the Mono Lake Case
Erin Ryan. Lewis & Clark Law School, has posted The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Ct., which is forthcoming in Environmental Law 45 (2015): 101-71
This article tells the epic tale of the fall and rise of Mono Lake — the strange and beautiful Dead Sea of California — which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in public trust ideals, which has redounded to other states and even nations as far distant as India.
Mono Lake (Carol M. Highsmith/LC)
The Mono Lake dispute pitted advocates for the local ecosystem and community against proponents of the continued export of Mono Basin water to millions of thirsty Californians hundreds of miles to the south. The controversy itself spanned decades, but the story leading up to the litigation stretches back more than a hundred years, adding depth and dimension to the tale that is easily missed on a casual reading of the Audubon Society decision itself. It is a case study on the challenges and possibilities for balancing legitimate needs for public infrastructure and economic development with competing environmental values, all within systems of law that are still evolving to manage these conflicts. And at this particular moment in time, commemorating the hundredth anniversary of the Los Angeles Aqueduct that would threaten the lake and the twentieth anniversary of the State Water Board’s ultimate decision to save it, the Mono Lake story is especially worth revisiting.
Part II introduces the main cast of characters in the Mono Lake story, starting with the public trust and prior appropriations doctrines around which the legal controversy unfolds. Part III introduces the three places at the center of the drama — Los Angeles, the Owens Valley, and the Mono Lake Basin — in recounting the history of the Californian water struggles leading up to the Mono Lake case. Part IV discusses the Audubon Society litigation itself and its aftermath, reviewing the court’s conclusion and the subsequent decision by the California Water Resources Control Board implementing the judicial directive. After analyzing the most important doctrinal developments in the opinion, it discusses subsequent critiques and new developments in public trust law.
Part V concludes with parting reflections about important questions that the Mono Lake story leaves us to ponder, including whose interests count when we talk about the “public” trust, how they differ from aggregated private interests, and which to account for when balancing the economic, cultural, and environmental considerations in public trust conflicts. It considers the extent to which the doctrine creates substantive or procedural obligations, and the responsibilities of different legal actors and institutions in implementing them. The contested answers to these questions are what make the public trust doctrine so fascinating, so powerful, and so critical as we continue to confront the inevitable crises between competing natural resource values.
Mossoff on Patent Licensing in 19th-Century US
 |
| Thomas Edison's Laboratory (Carol M. Highsmith/LC) |
The selling, buying and licensing of patents is controversial today. Inventors, companies, and universities who license their patents are labeled with the “patent troll” epithet, and academics, judges, lobbyists and others have decried this commercial activity as a new, harmful phenomenon. This historical claim, though, is profoundly mistaken. This essay contributes to the ongoing academic and policy debates by presenting new historical data and summarizing preexisting historical scholarship on the hoary practice in America’s innovation economy of both patent licensing and the buying and selling of patents in what economists call a “secondary market.” Famous inventors, such as Thomas Edison and Charles Goodyear, used this business model, as did many other inventors and companies. In sum, patent licensing and secondary markets have long been a key part of America’s innovation economy since the early nineteenth century.
Thursday, May 7, 2015
Charles on History and "the Originalism Disclaimer"
Patrick J. Charles, United States Air Force, has posted The "Originalism is Not History" Disclaimer: A Historian's Rebuttal, which appears in Cleveland State Law Review Et Cetera 6 (May 1, 2015): 1-11.
A number of originalists are on record asserting the disclaimer that “orginalism is not history,” therefore claiming that originalism does not suffer from the problems typically associated with history-in-law. This Article challenges that assertion, both on the grounds that originalism relies on historical evidence in reaching legal determinations — therefore falsely giving rise to the presumption that originalism and history are one and the same — and also on the grounds that originalists, when advocating before the courts, do not make a distinction between originalism and history. This Article further argues that if originalists want to issue an accurate disclaimer, it should state that “originalism is not intended to be accurate history.” This would correct many of the public’s misconceptions as to what does and what does not constitute originalism.My Georgetown Law colleague Lawrence Solum has commented on Charles's paper on his blog.
Arruñada on the Institutions of Roman Markets
Benito Arruñada, Universitat Pompeu Fabra, has posted The Institutions of Roman Markets:
I analyze the basis of the market economy in classical Rome, from the perspective of personal-versus-impersonal exchange and focusing on the role of the state in providing market-enabling institutions. I start by reviewing the central conflict in all exchanges between those holding and those acquiring property rights, and how solving it requires reducing information asymmetry without endangering the security of property. Relying on a model of the social choice of institutions, I identify the demand and supply factors driving the institutional choices made by the Romans, and examine the economic circumstances that influenced these factors in the classical period of Roman law. Comparing the predictions of the model with the main solutions used by Roman law in the areas of property, business exchange and the enforcement of personal obligations allows me to propose alternative interpretations for some salient institutions that have been subject to controversy in the literature, and to conclude with an overall positive assessment of the market-enabling role of the Roman state.
Dudziak to Lecture on "the Politics of Distant War"
LHB Founder Mary L. Dudziak has two lectures this month. She will be delivering the David M. Kennedy Lecture on the United States in the World, entitled The Politics of Distant War: 1917, 1941, 1964, on May 12, 2015 at 5:15 p.m. in Levinthal Hall at the Stanford Humanities Center, 424 Santa Teresa Street, Stanford University. She will be speaking on the same topic at the Henry M. Jackson School of International Studies at the University of Washington on Thursday, May 21 at 7:00 p.m., Kane Hall Room 220.
Redevelopment and Legal Liberalism
 |
| Western Addition Redevelopment Site, c. 1967 (Source: SF Redevelopment Agency/FoundSF) |
Like most major American cities, San Francisco created a redevelopment agency in the late 1940s in order to access federal money for building housing and infrastructure. The agency’s early projects were uncontroversial. They involved developing essentially uninhabited areas within the city, thus creating more housing without displacing existing residents. In the late 1950s, however, the agency turned its attention to eradicating urban blight through “slum clearance.” Under the leadership of Justin Herman, the agency designated over 60 square blocks in the predominantly African American neighborhood just west of City Hall for redevelopment. It was one of the largest urban renewal projects in the West.
Prior to the Second World War, this neighborhood, originally known as the Western Addition, had been settled by successive waves of immigrants: Jews, Filipinos, Mexicans, and, particularly, Japanese. Indeed, on the eve of World War II, it was one of the largest Japanese-American neighborhoods in the United States. Obviously, this changed during the War, as internment stripped the neighborhood of its Japanese-American population. At the same time, tens of thousands of African Americans moved to the Bay Area to work in war industries. Prior to the War, San Francisco had a tiny black population: no more than 5000 souls. By the end of the War, there were ten times as many. By 1950, there were almost 90,000 African Americans living in the city, making up almost 15% of the city’s population. With its recently vacated housing stock, the Western Addition became the home for many of these black arrivals. A dynamic African American neighborhood, known as the Fillmore, thus arose from the ashes of internment.
In retrospect, few people would say that the Western Addition urban renewal projects were a success. Thousands of residents of the Fillmore were displaced. Hundreds of gorgeous, but aging, Victorian homes were demolished only to be replaced with ugly, depressing, low-income housing that was insufficient to rehouse all the people who were driven from the neighborhood in the first place. The city was unable to attract businesses to the large commercial projects that the redevelopment agency envisioned. Accordingly, large swaths of the Western Addition sat as empty, rubble-strewn lots well into the 1980s. The final redevelopment lots were not developed until the 2000s.
Not surprisingly, the politics surrounding redevelopment were poisonous. Conflicts were frequently drawn along racial lines: African American community activists against white downtown interests. Local community groups sprang up in generally unsuccessful attempts to block the projects. (Indeed, the Western Addition Organizing Committee (WACO), which plays a prominent role in Forging Rivals as the plaintiff in a lawsuit designed to protect the rights of black workers within majority-white unions, focused the lion’s share of its attention on redevelopment issues, not fair employment practices.)
Redevelopment also divided the city’s black community. Justin Herman consistently courted African American leaders like Terry Francois and Wilbur Williams, the latter of whom he hired to run the Western Addition’s redevelopment projects. In doing so, he drove a wedge between an older group of politically connected black leaders, and younger, more community-oriented activists.
One of Forging Rival’s main themes is that postwar liberalism’s policies with respect to the law of the workplace were riddled with contradictions that, ultimately, made them less effective than they might have otherwise been. I imagine that a closer investigation of redevelopment would reveal a similar phenomenon. Justin Herman was no Robert Moses. He seems to have been genuinely committed to an inclusive vision of redevelopment. But redevelopment was implemented according to one particular version of liberalism. It was a centralized, top-down, expert-driven attempt to promote economic egalitarianism. As such, it clashed with the more community-based, anti-authoritarian strand of liberalism that developed in the 1960s. Surely it highlights one of the dismaying ironies of postwar political and legal history that community organizations (such as WACO) funded by one liberal federal program (the Economic Opportunity Act of 1964) were locked in heated combat with redevelopment authorities funded by other such programs (the Federal Housing Acts of 1948 and 1954). For more about these contradictions, see Suleiman Osman’s great book The Invention of Brownstone Brooklyn: Gentrification and the Search for Authenticity in Postwar New York. For more about the Western Addition/Fillmore District, see KQED’s documentary on the neighborhood, "The Fillmore."
Subscribe to:
Posts (Atom)