Mitchell on Felix Cohen and the Founding of American Legal Pluralism

This is a great year for legal history books. I will try to catch up on new books in the next week or so. If you are an author or publisher, feel free to let me know about yours!

ARCHITECT OF JUSTICE: Felix S. Cohen and the Founding of American Legal Pluralism by Dalia Tsuk Mitchell, George Washington University, has just been published by Cornell University Press. Here's the press description and blurbs:

A major figure in American legal history during the first half of the twentieth century, Felix Solomon Cohen (1907–1953) is best known for his realist view of the law and his efforts to grant Native Americans more control over their own cultural, political, and economic affairs. A second-generation Jewish American, Cohen was born in Manhattan, where he attended the College of the City of New York before receiving a Ph.D. in philosophy from Harvard University and a law degree from Columbia University. Between 1933 and 1948 he served in the Solicitor's Office of the Department of the Interior, where he made lasting contributions to federal Indian law, drafting the Indian Reorganization Act of 1934, the Indian Claims Commission Act of 1946, and, as head of the Indian Law Survey, authoring The Handbook of Federal Indian Law (1941), which promoted the protection of tribal rights and continues to serve as the basis for developments in federal Indian law.

In Architect of Justice, Dalia Tsuk Mitchell provides the first intellectual biography of Cohen, whose career and legal philosophy she depicts as being inextricably bound to debates about the place of political, social, and cultural groups within American democracy. Cohen was, she finds, deeply influenced by his own experiences as a Jewish American and discussions within the Jewish community about assimilation and cultural pluralism as well the persecution of European Jews before and during World War II.

Dalia Tsuk Mitchell uses Cohen's scholarship and legal work to construct a history of legal pluralism—a tradition in American legal and political thought that has immense relevance to contemporary debates and that has never been examined before. She traces the many ways in which legal pluralism informed New Deal policymaking and demonstrates the importance of Cohen's work on behalf of Native Americans in this context, thus bringing federal Indian law from the margins of American legal history to its center. By following the development of legal pluralism in Cohen's writings, Architect of Justice demonstrates a largely unrecognized continuity in American legal thought between the Progressive Era and ongoing debates about multiculturalism and minority rights today. A landmark work in American legal history, this biography also makes clear the major contribution Felix S. Cohen made to America's legal and political landscape through his scholarship and his service to the American government.

Reviews:

“Outside a small circle of lawyers and legal scholars, Felix Cohen is virtually unknown. This ought to change and will after Dalia Tsuk Mitchell's masterful book. Cohen was a major figure among legal and political scholars in the first half of the twentieth century. Mitchell does a superb job of recovering his legacy, which has direct implications for some of the most urgent questions in political and legal theory today. This book is a must-read for anyone interested in legal and political theory.”—Gregory S. Alexander, A. Robert Noll Professor of Law, Cornell Law School, Cornell University

“A brilliant student of philosophy, a skeptic about the utility of legal rules, and a Socialist who nonetheless was a firm believer in the American democratic faith, Felix S. Cohen came into the federal government in the early New Deal for short-term service in the Department of the Interior. He ended up spending fifteen years in the service of justice for American Indian tribes in this most unlikely of settings-the federal department oriented toward controlling tribes rather than allowing them self-determination. Architect of Justice, the first comprehensive study of Cohen, is a major achievement along several dimensions. It is a thoughtful intellectual history of one of law's most intelligent and intriguing thinkers-a pillar of the legal realism movement whose scholarship is still important today. It is also a case study in how a brilliant man trained in legal theory attempted to put his ideas into action to promote justice for American Indians, Jews seeking to escape Nazi horror, and other subordinated people. And it is also an incredibly rich analysis of how Cohen took the amorphous treaties, statutes, historical (mis)understandings, and the like that involved federal relations with Indian tribes and literally constructed a new, coherent field of law, federal Indian law. Students of law, federal-tribal relations, New Deal history, and American political theory will find much to learn in these pages.”—Philip P. Frickey, Alexander F. and May T. Morrison Professor of Law, Boalt Hall School of Law, University of California at Berkeley

“Dalia Tsuk Mitchell's brilliant intellectual biography shows how Felix S. Cohen's commitment to pluralism linked his seminal contributions to legal realism and federal Indian law. Cohen's philosophical, ethical, political, and legal theories enabled him to systematize and reimagine federal Indian law in a manner that respected tribal sovereignty and culture. This biography is not only a gripping story but also reveals surprising truths about the vast legal, political, and philosophical changes experienced during the middle years of the twentieth century.”—Joseph William Singer, Bussey Professor of Law, Harvard Law School, Harvard University

“Architect of Justice is a masterful intellectual biography full of discoveries and keen analysis illuminating many of the most intractable problems of today. The book will be a must-read for many people, and a delight for many more.”—Aviam Soifer, Dean and Professor, William S. Richardson School of Law, University of Hawai'i

"Felix S. Cohen's life and work were dedicated to theorizing how group rights - especially those of Native Americans - should be protected. Cohen's achievements included not only his work on behalf of Indian tribes but also his arguments for justice in all corners of society and for all peoples. Dalia Tsuk Mitchell's ability to bring this extraordinary commitment to justice to life is an enormous contribution to our understanding of progressive thought in the middle decades of the twentieth century."—Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law and Professor of History, University of Pennsylvania

Vazquez on the History and Evolution of Corporate Criminality

Osvaldo Vazquez, Harvard, has posted a new paper, The History and Evolution of Corporate Criminality. Here's the abstract:

This article traces the evolution of corporate wrongdoing in the United States, focusing on the late Nineteenth and early Twentieth Centuries. A study of courts' and scholars' approach to the problem of promoting economic interests while ensuring that corporate power was not abused is instructive in analyzing current proposals to regulate or punish public corporations. Historically, courts faced doctrinal and practical issues in addressing corporate wrongdoers: in addition to the doctrinal difficulties attached to punishing what is essentially a legal fiction, the needs and wishes of American society (which alternately embraces and attacks corporations) pushed courts to approach the problem in creative ways.

Weissman on Rethinking Criminal Corporate Liability

Andrew Weissman, Jenner & Block, surveys the history of corporate criminal liability in a new article with a law reform focus, just published in the Indiana Law Review and posted on SSRN, Rethinking Criminal Corporate Liability. Here's the abstract:

Under current federal law, a corporation, no matter how large or small, is criminally liable if a member of the organization commits a crime within the scope of employment and at least in part with the intent to benefit the company. This Article challenges that doctrine and contends that where it seeks to charge a corporation criminally, the government should bear the burden of establishing as an additional criminal element that the corporation failed to have reasonable policies and procedures to prevent the employee's conduct. Narrowing the scope of criminal corporate liability is supported by the reasoning of a series of Supreme Court decisions that curtailed the application of civil corporate vicarious liability in the context of punitive damages and certain claims under Title VII. This Article applies the logic behind those cases to the criminal context and argues that a similar rethinking of criminal corporate liability is long overdue. Far from giving corporations a shield to commit fraud, a system that ties criminal liability to the lack of an effective compliance program will do what the practical limitations on a prosecutor's time and resources could never permit—incentivize boardrooms around the country to devise, implement, and monitor compliance measures. Where a corporation has such policies and procedures to deter and detect criminal actions by its employees, none of the legitimate concerns animating criminal corporate liability is implicated.

Brown examines the Professional Life of Ramsey Clark

Lonnie T. Brown, Jr., Univ. of Georgia, has posted a new paper, Representing Saddam Hussein: The Importance of Being Ramsey Clark. Here's the abstract:

This article examines the professional life of former United States Attorney General Ramsey Clark in an effort to understand the many controversial representations and causes that he has undertaken during his post-government career. I do so through the vehicle of perhaps his most perplexing client choice — deposed Iraqi President Saddam Hussein. Although Hussein had other competent attorneys prepared and willing to represent him, Ramsey Clark nevertheless felt compelled to volunteer his services to the defense team. Why would he do so, and was his decision an ethically proper one under the circumstances?

These are the specific questions that this Article endeavors to address; but more significantly, it critically explores the evolution of one of the most enigmatic and fascinating legal figures of modern times. Whether or not one agrees with Clark's views or the manner in which he has chosen to utilize his license to practice, a holistic assessment of the entirety of his professional career makes plain the critical importance of being Ramsey Clark.

Mordkoff on The Demise of the Right to Strike in the Airline Industry

David Mordkoff, Virginia, has posted a new paper, From Bonehead to Chaos: The Demise of the Right to Strike in the Airline Industry. Here's the abstract:

This paper chronicles the demise of labor's ability to strike in the commercial aviation industry in the United States. The analysis starts with the airmail strikes of the early 20th century and progresses to the present day, where the Northwest Airlines flight attendants' attempt to strike was enjoined by the District Court (a decision that was upheld by the 2nd Circuit). The first part of the paper is historical. The second part focuses on the NWA case, analyzing the District Court's decision (an analysis of the 2nd Circuit decision will be added). The paper concludes with a legislative proposal for amending the Railway Labor Act to make it easier for unions to strike a formerly-bankrupt carrier, once the carrier leaves bankruptcy protection.

Summer Research Seminar on Constitutionalism

The Institute for Constitutional Studies (George Washington University) announces an interdisciplinary RESEARCH SEMINAR, to be held in Washington, DC, from, June 11 to 17, 2007 (NOTE: these are revised dates).

The topic is"Constitutionalism"and the seminar will be led by Aviam Soifer (dean of the University of Hawaii law school) and Mary Sarah Bilder (Boston College). The seminar is open to advanced graduate students and junior faculty members. International participants are especially invited to apply. Participants will receive free lodging, a travel allowance, and a modest per diem to cover food and additional expenses. Lodging will also be available from June 6 for participants who want to conduct additional research in the DC area. The application deadline is now April 22.

The Institute will also host a WORKSHOP for college instructors -- "New Approaches to Teaching the Constitution" -- in Albany, NY, from July 8 to 14, 2007, previously noted here. The application deadline for this workshop is April 13.

UPDATE: In response to a reader's query, I asked organizers of the Constitutionalism workshop about their focus. It is not limited to constitutionalism in U.S. history, and is framed broadly to encompass many geographic areas. Specifically, Mary Bilder said that she and Avi Soifer "broadly defined the topic so as to attract a wide variety of people interested in constitutionalism. Ideally, we will have some people whose work is in American constitutionalism, some people whose work is in the history of British imperial and American colonial constitutionalism, some people whose work is in contemporary post-colonial constitutionalism in countries that were formerly part of the British empire, and some people whose interest is in global constitutionalism. I have been very interested in Australian constitutionalism, particularly the way in which Australian and Canadian constitutionalism diverge from British constitutional model in a manner different from American constitutionalism. We would love it if people interested in that subject applied." I asked whether scholars interested in other countries such as Germany and Japan should apply, and the answer was yes!

Slavery 200 years after Abolition

IntLawGrrls covers a recent panel on "Slavery 200 Years After Abolition" at the American Society of International Law meeting. Speakers included Diane Marie Amann, Kevin Bales and Adrienne Davis, with Adrien Wing moderating. A summary with many helpful links is here.

Boyle reviews Jaspin, Buried in the Bitter Waters: The Hidden History of Racial Cleansing in America

BURIED IN THE BITTER WATERS: The Hidden History of Racial Cleansing in America (Basic), by Elliot Jaspin is reviewed by Kevin Boyle in today's Washington Post. The book takes up purges of African American communities by whites. Boyle writes, in part:

...In the last decade or so, the silence has started to lift. Oklahoma established a public commission to investigate the destruction of Tulsa's African American neighborhood in a horrific 1921 pogrom. Hollywood made a movie dramatizing whites' assault on the black town of Rosewood, Fla., in 1923. And two years ago, the sociologist James W. Loewen published an award-winning book, Sundown Towns, that systematically documented America's wave of racial purges, which he rightly called "ethnic cleansing." Now Elliot Jaspin's vivid Buried in the Bitter Waters digs deeply into 12 of the purges -- those he judged "the worst of the worst."

A reporter for the Cox newspaper chain, Jaspin brings a journalistic sensibility to the task. He's interested less in broad social dynamics than in the particulars of the small towns where the 12 purges took place. He carefully recreates the often convoluted steps that led to each town's racial cleansing "in the period between Reconstruction and the 1920s." And he makes the horror come alive by describing the experience of people swept up in the violence of the moment: a mob member's viciousness, a white official's cowardice, a victim's heart-pounding fear as she fled across an open field, her house ablaze behind her. Jaspin then takes each story to the present day, showing how the purge left wounds that still refuse to heal.

For the rest, and Boyles' critique, click here.

Reviewed: Carr, The Infernal Machine: A History of Terrorism

The Infernal Machine: A History of Terrorism From the Assassination of Tsar Alexander II to Al-Qaeda, by Matthew Carr (New Press) is reviewed by Steve Weinberg in the Boston Globe. Weinberg begins:

In an era when government leaders in the United States and Great Britain brand as unpatriotic those who examine terrorism logically, Matthew Carr has written a brave and wise book....

[Carr writes,] "It is not my intention here to offer an overarching definition of terrorism to replace those that have already been put forward. Nor do I wish to enter the largely futile discussion over who constitutes the 'real' terrorists. Both states and revolutionary organizations have carried out atrocities, crimes, and acts of terror, even if the former have done so on a far greater scale. This book is largely concerned with a particular technique of revolutionary violence that first emerged in Russia and Europe in the late nineteenth century. The essence of this technique is the use of violence against symbolic targets in order to achieve a political rather than a military victory over a particular government or regime."

The history of terrorism -- not only in Great Britain and the United States but also in the Middle East, Latin America, and other regions -- is crucial to the current charged atmosphere. As Carr notes, "The current state of terror and alarm cannot entirely be attributed to nineteen hijackers armed with pocket knives and box cutters. . . . Governments have tended to present their own particular interpretation of terrorism as the 'true' version, regardless of whether there is any evidence to sustain it. Thus, George Bush has repeatedly declared that the September 11 attacks represented an attack on American 'freedom,' even though this motivation has been explicitly rejected by Osama bin Laden."

For the rest, click here.

Wood reviews Hunt, Inventing Human Rights: A History

Gordon Wood reviews Lynn Hunt, INVENTING HUMAN RIGHTS: A History (W. W. Norton & Company) in Sunday's New York Times. Wood begins:

According to many people in the West today, human rights trump all other claims and values, including those of custom, community and culture; everyone in the world, including every individual in strange faraway places like Darfur, has certain inalienable rights simply because he or she is a human being. As conventional as this claim has become for us, in the entire sweep of history it is quite extraordinary and of fairly recent origin. How did it come about and what has been its history? These are the questions Lynn Hunt has sought to answer in this remarkable little book. Indeed, because she covers so much ground in so few pages and with such clarity, “Inventing Human Rights” is a tour de force of compression.

Hunt, the Eugen Weber professor of modern European history at the University of California, Los Angeles, and a distinguished expert on 18th-century France, says that “human rights require three interlocking qualities: rights must be natural (inherent in human beings), equal (the same for everyone) and universal (applicable everywhere).” This conception of human rights, she explains, had its origins in the Western Enlightenment of the 18th century. Although the English had issued a Bill of Rights in 1689, that document derived from the particularities of English law and English history and did not declare the equality, universality or naturalness of rights. It was left to Thomas Jefferson and the American Congress in 1776 to issue the first notable human rights proclamation. But it was the French Declaration of Rights of Man and Citizen of 1789 that had the greatest impact on Western thinking.

Hunt readily concedes that many people, including men without property, slaves and women, were left out of these declarations of universal and equal rights. Thus “we should not forget the restrictions placed on rights by 18th-century men, but to stop there,” she says, “patting ourselves on the back for our own comparative ‘advancement,’ is to miss the point. How did these men, living in societies built on slavery, subordination and seemingly natural subservience, ever come to imagine men not at all like them and, in some cases, women too, as equals?” Answering this question, she says, will help us “understand better what human rights mean to us today.”

The short answer is that 18th-century individuals developed a new and profound sense of sympathy, or to use a more exact 20th-century term, “empathy,” for the autonomy and well-being of other human beings.

To continue reading, click here.

Foner reviews Freehling, The Road to Disunion: Vol II, Secessionists Triumphant

THE ROAD TO DISUNION: Volume Two. Secessionists Triumphant: 1854-1861, by William W. Freehling (Oxford University Press) is reviewed by Eric Foner in Sunday's New York Times.

In the course of his review, Foner takes aim at the tendency "for historians writing with one eye on the best-seller list to disparage fellow scholars for supposedly alienating the broad reading public." He suggests: "I think it’s time to declare a moratorium on scholars’ denigrating other scholars for failing to achieve popularity. As Freehling’s own extensive footnotes demonstrate, those much-maligned specialized studies are the building blocks of historical knowledge."

Foner begins his discussion of Freehling this way:

Everyone who lived through the Civil War, Abraham Lincoln observed in his second Inaugural Address, knew that slavery was “somehow” its cause. Ever since, historians have been struggling to explain that “somehow.” Their interpretations fall into two broad schools. One sees the war as the result of an “irrepressible conflict” between two societies with incompatible interests and values. The second blames irresponsible agitators and a “blundering generation” of political leaders for bringing about a war that could and should have been avoided.


In “The Road to Disunion: Secessionists Triumphant,” the conclusion of a two-volume account of the Civil War’s origins, William W. Freehling seems to combine these approaches. It is “indisputable,” he writes, that slavery was the war’s main cause, and some kind of clash was probably inevitable. But not necessarily in 1861. Whatever the underlying reasons, the war that actually took place resulted from individual decisions, chance events and at least one “incredible coincidence.”

Since the publication four decades ago of “Prelude to Civil War,” a study of the nullification crisis of the early 1830s, Freehling has been among the foremost students of 19th-century Southern history. If one theme unites his scholarship it is that the Old South cannot be viewed as a monolith.


For the rest, click here.

Russell on The American System, Schumpeter and Regulatory Standardization

Andrew L. Russell, Johns Hopkins, has posted a new essay, The American System: A Schumpeterian History of Standardization. The importance of Joseph Schumpeter is not as apparent from the abstract as from the essay itself. Russell begins his essay, the second in a series, this way:

Despite writing over 50 books and articles and spending almost two decades as an influential Harvard professor of economics, most of us are familiar with Joseph Schumpeter only through a short passage in his 1942 book, Capitalism, Socialism, and Democracy. In this passage, as I discussed in the first essay in this series, Schumpeter emphasized the dynamic aspects of capitalism. In Schumpeter’s view, capitalism is driven by a process that "incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one. This process of Creative Destruction is the essential fact about capitalism."

In my first essay, I discussed how this "essential fact" can be seen clearly in the history of standardization across three Industrial Revolutions. Standardization provided stability for manufacturing and for building networks; yet, entrepreneurs and engineers developed innovations that upset this stability by introducing new products based on new standards. Standardization played a central role in the perpetual tension between the old and the new.

Schumpeter understood the dynamic characteristics of the economy as well as any thinker in the twentieth century. For example, when we consider the changes in standards used for telecommunications over the past thirty years, Schumpeter looks positively clairvoyant: we no longer rely on the Bell System to lease black telephones to us; instead, we choose from dozens of competing wired and wireless telephones that we use to listen to music, watch TV shows, or read the news. AT&T has been chopped up, sold, partially reassembled, and re-branded; the new telecom giants and would-be giants include the likes of Qualcomm, Skype, Vonage, and Google. "Creative destruction" indeed!

We might expect that the man who introduced the concept of creative destruction would have anticipated that innovation and entrepreneurship would dominate American capitalism in the late twentieth century. In fact, he predicted the opposite. The central claim of Capitalism, Socialism, and Democracy may come as quite a shock to those who have not perused its dense prose. Schumpeter stated this central claim with uncharacteristic brevity: "Can capitalism survive? No, I do not think it can."

What should we make of this unsettling prediction? This series of essays is based on the premise that the process of standardization is both a microcosm of the American style of capitalism as well as an index for measuring who is at the helm of the essential processes of industrial production and innovation.

Russel's abstract for essay #2 is here:

While governments as far back as the ancient Egyptians have implemented industry standards, their economic importance grew with the spread of industrialization. Throughout the 1800s, the rise of nationalism, a greater emphasis on accuracy and precision science, and the steady march of industrialization further underlined the importance of standards for establishing competitive advantages in the industrial age. In the Information Age, The U.S. government has played specific roles in the system of standardization: investment and leadership in basics standards to relieve some financial burden from firms; specific research and development funding for information technology; and policies that support standards built through industry consensus. While a few exceptions exist where the U.S. government has played a direct role in standards setting, policymakers have preferred to rely on standards set by private firms and collaboration. This market-oriented approach to industrial standards greatly increases the chances of such standards being widely adopted and implemented.

Presidential Biography on C-Span Book TV this weekend

Presidential Biography Panel with David Greenberg, "Calvin Coolidge"; Ira Rutkow, "James Garfield"; and Sean Wilentz, "Andrew Jackson"

On Saturday, April 7 at 7:30 pm and Sunday, April 8 at 10:25 pm on C-Span2 Book TV

Description: David Greenberg chronicles the life of Calvin Coolidge, America's 30th president, who presided in office from 1923 to 1929. In his new book Mr. Greenberg reports that President Coolidge, known as 'Silent Cal' for his tight lipped demeanor, was a great advocate of of the technology of his time, using newsreels and radio to connect with the American people. Also, featured on this panel is Sean Wilentz, author of a biography of Andrew Jackson, and Ira Rutkow, author of a biography of James Garfield. All three books are part of The American Presidents series published by Times Books. The talk is moderated by Hillel Italie of the Associated Press.

Author Bio: David Greenberg is a professor of history and media studies at Rutgers University. He is a columnist for Slate and the author of "Nixon's Shadow: The History of an Image." Sean Wilentz is a professor of American history at Princeton University. He is the author of "The Rise of American Democracy: Jefferson to Lincoln", which was a finalist for the 2006 Pulitzer Prize. Ira Rutkow is a clinical professor of surgery at the University of Medicine and Dentistry of New Jersey. Dr. Rutkow is the author of "Bleeding Blue and Gray: Civil War Surgery and the Evolution of Medicine."

The rest of the weekend Book TV schedule is here.

Palmer Civil Liberties Prize for Scholarship on Civil Liberties and National Security

ROY C. PALMER CIVIL LIBERTIES PRIZE ESTABLISHED AT CHICAGO-KENT

Eligible books and articles will focus on the tension between civil liberties and national security

The Roy C. Palmer Civil Liberties Prize, newly established at Chicago-Kent College of Law by alumnus Roy C. Palmer and his wife, Susan M. Palmer, will honor a work of scholarship exploring the tension between civil liberties and national security in contemporary American society.

The $10,000 prize is designed to encourage and reward public debate among scholars on current issues affecting the rights of individuals and the responsibilities of governments throughout the world.

Submissions to the competition must be in draft form or have been published within six months after February 1, 2007. As a condition of accepting the award, the winner will present his or her work at Chicago-Kent. The deadline for submissions is August 1, 2007. Please submit entries to Ms. Tasha Kincade, assistant to Dean Harold J. Krent, at tkincade@kentlaw.edu. For details, click here (pdf).

Roy Palmer, a laywer and real estate developer, is a 1962 honors graduate of Chicago-Kent and a member of its board of overseers. He and his wife Susan, active in numerous civic, social and philanthropic organizations, are the recipients of the 1997 Outstanding Individual Philanthropist Award of the National Society of Fundraising Executives. In 2006, the Palmers pledged a $1 million gift to the law school earmarked to support the expansion of Chicago-Kent’s campus, located in a rapidly developing area of downtown Chicago. The Palmers reside in Sarasota, Florida.

Chicago-Kent College of Law is the law school of Illinois Institute of Technology, a private, Ph.D.-granting institution with programs in engineering, psychology, architecture, business, design and law. With more than 1,100 students, Chicago-Kent offers full-time and part-time J.D. and LL.M. degree programs as well as joint-degree programs with other IIT units, including Stuart School of Business.

Hernández on the Repression of Radical Immigrant Birth Control Advocates at the Turn of the Century

César Cuauhtémoc García Hernández, Boston College, has posted a new paper, Of Inferior Stock: The Two-Pronged Repression of Radical Immigrant Birth Control Advocates at the Turn-of-The-Century. Here's the abstract:

The history of birth control advocacy in the USA at the turn of the twentieth century is well known. So too is the federal government's attempt to quash radical political organizing during this period. This paper explores these well-known historical phenomena as they operated on radical immigrant birth control advocates at the turn-of-the-century. By combining the threat of criminal prosecution with the ability to deport immigrants, the federal government brought a two-pronged attack on immigrant subversive political activists that was not available against “native” (i.e., considered to be white) activists. This paper argues that the legal suppression of radical immigrant birth control advocates derived from an intensely racist desire to protect the nation's alleged racial purity. In this zeal, “foreign” was identified with language, ideology, class, and appearance, and anyone marked as “foreign,” regardless of formal citizenship, was denied the protections of social and legal citizenship and therefore eligible to be targeted for deportation.

Lain on Deciding Death

Corinna Lain, Univ. of Richmond, has posted a new paper, Deciding Death. Here's the abstract:

When the Supreme Court decides death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment “evolving standards of decency” doctrine, but a close look at the Court's decisions in this area shows that their criticism misses the mark. Doctrine does not matter one whit in the Supreme Court's “evolving standards” cases, but where majoritarian doctrine does not constrain the Court's decision-making, other majoritarian forces do. To make this point, I first examine three of the Supreme Court's most prominent (and in two cases, most recent) “evolving standards” decisions, along with the decisions they implicitly or explicitly overruled. In each set of cases, I attack the doctrinal justification for the Court's change of position, offering larger historical context as a more compelling, nondoctrinal explanation for why those cases came out the way they did. I then use political science models of Supreme Court decision-making to explain how broader social and political forces push the Court towards majoritarian death penalty rulings for reasons wholly independent of majoritarian death penalty doctrine. Finally, I bring the analysis full circle by showing how broader sociopolitical forces even led to the development of the “evolving standards” doctrine, turning current death penalty scholarship on its head. As I show, problematic doctrine is not to blame for majoritarian influences; rather, majoritarian influences are to blame for problematic doctrine. In the end, the real obstacle to countermajoritarian decision-making is not doctrine, but the inherently majoritarian nature of the Supreme Court itself.

Mikhail on Lacey, A Life of H.L.A. Hart

John Mikhail, Georgetown, has posted a review essay recently published in the Georgetown Law Journal, 'Plucking the Mask of Mystery from its Face': Jurisprudence and H.L.A. Hart. He reviews Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford Univ. Press, 2004). Here's the abstract:

Until recently, little was known of H.L.A. Hart's private life. That has now changed with the publication of Nicola Lacey's A Life of H.L.A. Hart: The Nightmare and the Noble Dream. Drawing on Hart's notebooks and correspondence, Lacey paints an illuminating portrait of Hart, which reveals that despite his public success he struggled with internal perplexities, including his sexual orientation, Jewish identity, intellectual insecurity, and unconventional marriage. Yet, as critics have noted, the connection between these revelations and the development of Hart's ideas is unclear. Moreover, one cannot help but wonder whether by focusing on these aspects of Hart's personal life, Lacey has missed an opportunity to explore certain basic questions about his jurisprudence and its link to wider intellectual currents. For example, linguistics, psychology, and the philosophy of language and mind are much different today than they were in the 1940s and 1950s, yet Lacey does not discuss how such familiar events as the overthrow of logical positivism, the demise of behaviorism, the rise of generative linguistics, or the broader cognitive revolution of which they were a part actually impacted Hart or should influence our understanding of his legacy. Surprisingly, none of these developments are taken up in this book, leading one to ponder the significance of their absence.

Likewise, one of the mysteries surrounding Hart is his attitude toward human rights. It is difficult to imagine a more direct repudiation of legal positivism than the Universal Declaration of Human Rights and the broader human rights revolution it helped to promote. Yet Hart never seemed to notice or care. None of his rights-related essays of the 1940s and 1950s gives the Universal Declaration so much as a passing reference. Meanwhile, the topic of human rights is completely absent from The Concept of Law. We are therefore left with the following paradox: human rights is “the idea of our time” (Louis Henkin), yet the twentieth century's leading legal philosopher had virtually nothing to say about them.

Disappointingly, Lacey does not shed much light on these issues. Even after the publication of her biography of Hart, therefore, we lack a proper overall assessment of Hart's place in the recent history of ideas. This Essay attempts to take an initial step in that direction, by examining a few select themes of Hart's jurisprudence and Lacey's interpretation of them in light of recent developments in philosophy, linguistics, cognitive science, and law. The central argument I make is that a genuinely puzzling aspect of Hart's jurisprudence is how detached it now seems from many of the most important intellectual events of the past fifty years, including the modern revival of Universal Grammar, the cognitive revolution in the study of language and mind, and the human rights revolution in constitutional and international law, all of which would appear to have significant implications for the traditions of legal positivism, analytic jurisprudence, and epistemological empiricism with which Hart was associated.

Guggenheims

Guggenheim Fellows for 2007 are just posted by the John Simon Guggenheim Memorial Foundation. This year 189 fellowships were awarded, out of a field of 2800 applicants.

Guggenheims most closely related to legal history are below. There are a number in history and politics. There appears to be only one to a law professor (moi! -- not for blogging, of course, for a new book project). (A second scholar is listed in the law category: political scientist Michael McCann.) At a time when interdisciplinarity has been questioned in various corners, e.g. here, it is notable that this year and last, the Guggenheims to law professors have gone to interdisciplinary legal scholars (last year: Michael W. Doyle, Harold Brown Professor of International Affairs, Law, and Political Science, Columbia University, and David Garland, Arthur T. Vanderbilt Professor of Law and Professor of Sociology, New York University).

2007 -- Guggenheim Fellowships of interest to legal historians:

Lawrence D. Bobo, Martin Luther King, Jr., Centennial Professor, and Director, Center for Comparative Studies in Race and Ethnicity, Stanford University: Black and white Americans' views of the new law and order regime.

Daniel Carpenter, Professor of Government, and Director, Center for American Political Studies, Harvard University: The American antislavery petition in context.

Mary L. Dudziak, Judge Edward J. and Ruey L. Guirado Professor of Law, History, and Political Science, University of Southern California: How war made America in the 20th century.

Neil Foley, Associate Professor of History, University of Texas, Austin: Civil rights in Texas and the Southwest, 1940-1965.

Stathis N. Kalyvas, Arnold Wolfus Professor of Political Science, Yale University: Varieties of political violence.

Dina Rizk Khoury, Associate Professor of History and International Affairs, and Director, Graduate Studies, George Washington University: War and remembrance in Iraq.

Philippa Levine, Professor of History, University of Southern California: The evolution debates.

Peter D. Little, Professor and Chair, Department of Anthropology, University of Kentucky: The anthropology of neoliberalism in sub-Saharan Africa.

Michael McCann, Gordon Hirabayashi Professor for the Advancement of Citizenship, University of Washington: Public interest litigation and the politics of responsibility.

Julie Stone Peters, Professor of English and Comparative Literature, Columbia University: Theatrical censorship, obscenity, and the making of modern drama.

Mary Louise Roberts, Professor of History, University of Wisconsin, Madison: The American military presence in France, 1944-1945.

Daniel T. Rodgers, Henry Charles Lea Professor of History, Princeton University: Transformation in social thought in 1980s America.

Robert Self, Associate Professor of History, Brown University: Gender and sexuality in America from Watts to Reagan.

Michele Wucker, Senior Fellow, World Policy Institute, New York City: Evolving views of citizenship, belonging, and exclusion.

For the full list, click here. For the press release, click here.

Kalhan on the Legacy of Colonialism and Contemporary Anti-Terror Policy in India

Anil Kalhan, Fordham, has posted an interesting article that takes up the relationship between colonial emergency regimes and contemporary anti-terror efforts. There is other on-going work along these lines to look out for, for example by Carolyn Elkins, author of Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya (2005). This may help us to see that security efforts are not one-size-fits-all. As the U.S. exports anti-terror policies, it seems to matter very much what the historical, political and cultural context is that these programs are placed within.

Kalhan's piece is forthcoming in the Columbia Journal of Asian Law, Colonial Continuities: Human Rights, Terrorism, and Security Laws in India. Here's the abstract:

This article examines India's ongoing effort to reconcile its post-independence commitment to democracy, fundamental rights, and the rule of law with the inherited institutions of colonialism, focusing on several antiterrorism laws enacted during the past twenty-five years. The article situates these recent antiterrorism laws - the Terrorist and Disruptive Activities (Prevention) Act of 1985, the Prevention of Terrorism Act of 2002, and Unlawful Activities (Prevention) Amendment Act of 2004 - in historical and institutional context to analyze the human rights concerns they raise and the ways in which British colonial-era patterns and practices have evolved and been maintained since independence. While independent India's legal framework includes a strong commitment to fundamental rights, that framework has been layered on top of a set of colonial-era police and criminal justice institutions that were originally designed to ensure British control, rather than democratic accountability, and in many respects those institutions have remained unchanged since independence. With respect to its antiterrorism, emergency, and other security laws, India also has maintained patterns established by the British, periodically enacting and repealing statutes that share striking continuities with severe laws first enacted during the colonial period.

The overall result has been to routinize the use of extraordinary powers during non-emergency periods in a manner that raises significant human rights concerns. After tracing the extensive history in India of using extraordinary laws to combat terrorism and other security threats, the article analyzes in detail the specific human rights concerns arising under TADA, POTA, and UAPA, both on their face and in their application. The article then discusses shortcomings in India's police and criminal justice institutions more generally. To the extent these institutions have failed to protect fundamental rights even when enforcing ordinary criminal laws, as human rights advocates and government agencies have documented, they are no more likely to do so in the high pressure context of investigating and prosecuting terrorism-related offenses. At the same time, real and perceived problems concerning the effectiveness of the regular criminal justice system create intense pressures to enact special laws to take terrorism and other serious offenses outside of those regular procedures and institutions. Even when these laws have been repealed, the underlying structural pressures have persisted and thereby have encouraged the eventual reenactment of such laws. The article concludes by considering ways to break the patterns that have prevailed since independence, not only by addressing human rights concerns arising from the antiterrorism laws themselves, but also by seeking to improve and reform the police and criminal justice institutions responsible for administering those laws.

The article is based on information learned during a 2005 visit to India by several members of the Committee on International Human Rights of the Association of the Bar of the City of New York, and was authored by Anil Kalhan, chair of the Association's India Project and Visiting Assistant Professor at Fordham Law School. The other project participants who traveled to India in 2005 were Gerald P. Conroy, Deputy Commissioner in the Office of the Special Commissioner of Investigation for the New York City School District, Mamta Kaushal, coordinator of the visit and then-associate in the law firm of Wachtel & Masyr, LLP, Sam Scott Miller, partner in the law firm of Orrick, Herrington & Sutcliffe LLP, and Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York.

Symposium on The Domestic Commander in Chief at Cardozo

Cardozo Law School is holding a symposium on the President's domestic role as Commander in Chief on April 16. The event is free and open to the public, but requires registration.

The program begins with a panel on The Commander in Chief in Historical Perspective, featuring speakers Michael Les Benedict, Dept. of History, Ohio State University; Elizabeth Hillman, Rutgers School of Law-Camden; Martin Lederman, Georgetown University Law Center and Martin Flaherty, Fordham University School of Law. Louis Fisher, Congressional Research Service, also appears on a panel on Secrecy and the Commander-in-Chief Power.

Conference information is here, and the flyer is here (pdf). To register, e-mail floersheimer@yu.edu, or return the form on the flyer at the link. Here's the description of the symposium:

What authority does the President's role as the Commander in Chief of the armed forces grant him to act in the domestic arena? By most accounts, the Commander-in-Chief Clause vests the President with broad power over the military and its conduct within a "theater of war." But when that theater overlaps with much of domestic life, the President's control over the military runs headlong into Congress's regulatory authority as well as constitutional protections for individual rights.

This clash of constitutional principle has surfaced repeatedly in the American response to the 9/11 terrorist attacks. President Bush has invoked his authority as Commander in Chief as a basis for detention of American citizens captured on domestic soil, a program for eavesdropping on communications from domestic sources, the establishment of military commissions in Guantanamo, and decisions to classify information. In view of the persistence of the invocation of the Commander-in-Chief Clause, the scope, impact, and dynamics of this source of the President's constitutional power merits sustained treatment. This conference will bring together leading constitutional scholars and historians to discuss the proper scope of the President's domestic Commander-in-Chief authority.

Prakash on the Original Understanding of Congress's Power to "Declare War"

Saikrishna Prakash, Univ. of San Diego, has posted an article, forthcoming in the Cornell Law Review, Unleashing the Dogs of War: What the Constitution Means by 'Declare War'. Here's the abstract:

Though a good deal of war powers scholarship makes claims about the original meaning of "declare war," these works do not consider a host of sources pertinent to the inquiry. This Article considers these materials and sheds new light on two questions. Does Congress's power to declare war encompass the authority to decide whether the nation will wage war? Relatedly, does Congress's power to decide whether the country will wage war extend to those situations where another nation already has declared war on the United States? This Article answers both questions in the affirmative. In the eighteenth century the power to declare war was a power to decide whether a nation would wage war. Materials from that era reveal that any decision to wage war, however expressed, was a declaration of war. The commencement of warfare was regarded as the surest declaration of war. Because the Constitution grants Congress the power to declare war, only Congress can determine whether the nation will start a war or enter a war against a nation that already has declared war against the United States. Necessarily, the President cannot unilaterally choose to wage war against another nation, even when that nation has already declared war.

Sunstein on Due Process Traditionalism

Cass Sunstein, Chicago, has posted a new paper, Due Process Traditionalism. Here's the abstract:

In many cases, the Supreme Court has limited the scope of “substantive due process” by reference to tradition. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and they might have joined a cascade. An alternative defense sees due process traditionalism as a second-best substitute for two preferable alternatives: a purely procedural approach to the due process clause, and an approach that gives legislatures the benefit of every reasonable doubt. But it is not clear that in these domains, the first-best approaches are especially attractive. Even if they are, the second-best may be an unacceptably crude substitute. The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of “liberty” on their own. But the rule-consequentialist defense depends on controversial assumptions about the likely goodness of traditions and the institutional incapacities of judges.

Crane on Antitrust Antifederalism

Daniel A.Crane, Cardozo, has posted a new article, Antitrust Antifederalism, which is forthcoming in the California Law Review. While U.S. antitrust history is often traced to the late 19th century, Crane begins with the era of the nation's founding. Here's the abstract:

U.S. antitrust law has been profoundly influenced by a historical aversion to direct federal superintendence of corporations. This ideological impulse began with Antifederalist opposition to Madison's proposal to grant Congress a general incorporation power and carried over to the Progressive Era where it defeated a proposed corporate regulatory model of antitrust. The antitrust antifederalist impulse thus enabled the rise of the competing crime-tort model, in which antitrust law creates a freestanding norm of industrial competition rather than a regulatory apparatus for policing the capital-concentrating effects of incorporation statutes. As it has interacted with the general features of the U.S. civil litigation apparatus, this crime-tort conceptualization has produced a variety of pathologies including an excessive focus on locating a “bad act” rather than specifying appropriate corporate structure; delegation of adjudicatory decision-making to generalist judges and juries rather than industrial policy specialists; the predominance of private enforcement over public enforcement; extension of antitrust law to non-corporate subjects, particularly the working class; and interference with federal competition policy by parochially interested state regulators. The one major exception to antitrust antifederalism's continuing dominance - the pre-merger notification system adopted in 1976 - reveals the advantages of the corporate regulatory model and suggests some steps that could be taken to rationalize the institutional structure of antitrust law.

Ackerman vs Yoo

Bruce Ackerman debates John Yoo over the war powers in today's LA Times, in a series that will continue all week. Why does this remind me of the question of whether to debate Phyllis Schlafley over the ERA (which we seem to be having another round of these days...)? I suppose it must be done.

The Times introduces today's installment this way:

How much authority does the Congress have to direct the way a war is waged? John Yoo and Bruce Ackerman debate the wrangling between Congress and the president over wartime authority.

Today, Yoo and Ackerman interpret the U.S. Constitution for answers to the struggle between the executive and legislative branches over the conduct of the war in Iraq. Later this week, they'll debate the ongoing use-of-force resolution, the hypocrisy of the left and the right on this issue, the questionable relevance of "letters of marque and reprisal" in the 21st century, and the possibility that there may be more important issues here than constitutional language.

For Ackerman & Yoo, click here. To follow the rest later in the week, go to latimes.com, and click on "opinion."

Mayeri and others Honored with Prizes at OAH meeting

Serena Mayeri, University of Pennsylvania Law School, and others with legal history-related work were honored with prizes at the annual meeting of the Organization of American Historians. Mayeri was awarded the Lerner-Scott Dissertation Prize for "Reasoning from Race: The Civil Rights Paradigm and American Legal Feminism, 1960-1979." The Lerner-Scott prize recognizes the best doctoral dissertation in U.S. women's history. The prize is named for Gerda Lerner and Anne Firor Scott, both pioneers in women's history and past presidents of the Organization of American Historians.

The 2007 awards pamplet, with all the details, appears not to be on-line yet, but this years awards, descriptions of prizes and information about how to apply for next year, can be found by clicking on individual prizes, here. Awards of particular interest to legal historians include:



BOOK AWARDS

Avery O. Craven Award
Mark Elliott, Wagner College, Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson (Oxford University Press)

Ellis W. Hawley Prize
Marie Gottschalk, University of Pennsylvania, The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge University Press)

Liberty Legacy Foundation Award
Thomas F. Jackson, University of North Carolina Greensboro, From Civil Rights to Human Rights: Martin Luther King, Jr. and the Struggle for Economic Justice (University of Pennsylvania Press)

James A. Rawley Prize
Paul A. Kramer, University of Michigan, Ann Arbor, The Blood of Government: Race, Empire, the United States, and the Phillippines (The University of North Carolina Press)

Frederick Jackson Turner Award
Ned Blackhawk, University of Wisconsin, Madison, Violence over the Land: Indians and Empires in the Early American West (Harvard University Press).

Honorable Mention: Aaron Sachs, Cornell University, The Humboldt Current: Nineteenth-Century Exploration and the Roots of American Environmentalism (Viking).



OTHER AWARDS

Louis Pelzer Memorial Award (Graduate student essay competition. The winning essay will be published in the Journal of American History.)
Andrew W. Kahrl, Indiana University, "'Why the Police at No. 4 'Get Busy' When They Hear the Whistle of the 'Razor Beach' Boat': Steamboat Excursions, Pleasure Resorts, and the Emergence of Segregation Culture on the Potomac River, 1890-1920" (forthcoming)

OAH/IEHS John Higham Travel Grants
Maddalena Marinari, University of Kansas, "Toward a New Era: World War II and the Fight Against Immigration Restriction"
Eric R. Schlereth, Brandeis University, "Creating a Disenchanted Republic: American Political Independence and the Problem of Religion"
Stephen Seng-hua Mak, Northwestern University, "The Other Internment: The United States, Latin America and 'Enemy Aliens' During the Second World War"

For the complete list of awards, click here.

Chen, Kazin and Williams Jennings Bryan

Jim Chen's (University of Louisville) new short essay, Vox Populi, is not so much a review of Michael Kazin, A Godly Hero: The Life of William Jennings Bryan (2006), as an ode to Bryan who, Chen suggests, "we ignore...at our peril." The essay appears in the Nebraska Law Review. Here's the abstract:

William Jennings Bryan dominated American politics at large for nearly three decades. Thrice he sought the presidency. Thrice he lost. Perhaps no other American politician has had greater influence by losing. The publication of Michael Kazin's biography, A Godly Hero: The Life of William Jennings Bryan (2006), reminds us that the Great Commoner was far more than the sum of the Cross of Gold speech and the trial of John Scopes. Bryan singlehandedly transformed the Democratic Party from a conservative, almost reactionary, party opposed to the exertion of federal power into an activist party advocating the aggressive deployment of federal resources and legal coercion on behalf of the working class. Even though free silver and redistribution through inflationary monetary policy soon faded from the Democratic Party's agenda after 1896, the other elements of the Democratic domestic platform utterly transformed American law and politics. Bryan, for good and for ill, served as a harbinger of numerous political movements. The New Deal, the Great Society, the religious right, and an emerging Christian left all owe their origins to the political career of William Jennings Bryan. To be sure, Bryan was the prophet of free silver and the scourge of evolution. But today as during the days of his life, mostly W.J.B. is the voice of the people.

2007 Hurst Summer Fellows Announced

The Institute for Legal Studies, University of Wisconsin, and the American Society for Legal History have announced this year's Fellows, selected to participate in the 2007 Hurst Summer Institute in Legal History, June 10-22, 2007 at the University of Wisconsin-Madison:

Joshua Barkan, Ph.D. is a Copeland Postdoctoral Fellow in the Department of Law, Jurisprudence and Social Thought at Amherst College. His dissertation, entitled “A Genealogy of the Corporation: Articulating Sovereign Power and Capitalism” reframed the understanding of the development of “corporate sovereignty” through an historical study of corporation law.

Nandini Chatterjee is a Ph.D. candidate, faculty of history at St. Catharine’s College, University of Cambridge. Her Ph.D. thesis is on the history of the Indian state’s policy towards religion, focusing on religious family laws, endowed religious institutions, and regulation of sectarian instruction in state-funded schools, in the period 1830-1950.

Roman J. Hoyos is a Ph.D. candidate in history at the University of Chicago. The title of his dissertation is “‘In Convention Assembled’: Constitutional Conventions, Law, and Democracy in 19th Century America.”

Anne Kornhauser, Ph.D. is a lecturer in U.S. history at Princeton University. Her dissertation title was “Saving Liberalism: Political Imagination in the American Century.”

Sophia Z. Lee is a Ph.D. candidate in history at Yale University. Her dissertation is entitled, “‘Almost Revolutionary’: Labor Politics, Civil Rights Constitutionalism, and the Administrative State, 1935-1978.”

Lisong Liu is a Ph.D. candidate in U.S. Immigration History at the University of Minnesota. The title of his dissertation is “Mobility, Community, and Identity: Chinese Skilled Migrants in the U.S. and Transnational Citizenship, 1978-Present.”

Masako Nakamura is a Ph.D. candidate in history at the University of Minnesota. Her dissertation, “War Brides of the Pacific War: Marriage, Race, Immigration and U.S. Occupation of Japan,” examines how Japanese wives of servicemen became central to the debate about the makeup of the “ideal American family” and led to changes in postwar U.S. immigration policy.

Stephen R. Porter is a Ph.D. candidate in history at the University of Chicago. His dissertaion is “Defining Public Responsibility in a Global Age: Refugee Resettlement, NGO’s, and the American State, 1933-80.”

Honor Sachs, Ph.D. is a Clay Postdoctoral Fellow at Yale. Her current work in progress is an article, “Creating 'Free Citizens': Negotiating the Political Privilege of Race in the Early National West,” which explores the ways that lawmakers used racial exclusions to shape rights on the eighteenth-century frontier as part of a broader effort to secure western lands within the national project.

Stelios Tofaris is a Ph.D. candidate in law at University of Cambridge's Corpus Christi College. His doctoral research, “Contract Law in British India 1772-1905,” involves the interaction of English common law with indigenous legal rules in the colonial courtroom.

Laura Weinrib is a Ph.D. candidate in American History at Princeton University. Her dissertation title is “Civil Liberties in America, 1920-1937.”

Diana Williams is the Raoul Berger Visiting Fellow in Legal History at Harvard Law School and a Ph.D. candidate in the history of american civilization at Harvard University. Her dissertation is entitled, “‘They Call it Marriage’: the Louisiana Interracial Family and the Making of American Legitimacy.”

This summer's workshop will be led by Barbara Welke, University of Minnesota.

Treanor critiques Textualism and Amar, The Bill of Rights

William Michael Treanor, Fordham, has posted a new paper, Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar's Bill of Rights. Here's the abstract:

Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor Amar's book, The Bill of Rights, the widely acclaimed masterpiece of the textualist movement, as a case study to test the validity of that assumption.

Amar's work has profoundly influenced subsequent scholarship and case law with its argument that the Bill of Rights primarily reflected republican rights of Athe people, rather than individual rights. This article shows that Amar's republican reading is incorrect and that his textualist interpretive approach repeatedly leads him astray. Amar incorrectly assumes that words have the same meaning throughout the document, assigns a significance to the placement of clauses that is belied by the drafting history, and incorrectly posits that the Bill of Rights reflects a unitary ideological vision. The textualist search for original public meaning cannot be squared with an interpretive approach that assumes that all word choices were made with a high degree of care, that the significance of location can be assessed simply by examining the four corners of the document, and that the Constitution must be understood holistically. Analysis of Professor Amar's The Bill of Rights indicates that, paradoxically, close reading is a poor guide to original meaning.

Brinkley on Michael Moore and more: OAH day 4 via YouTube

History News Network covers the final day of the Organization of American Historians conference in Minneapolis. YouTube clips include Douglas Brinkley, discussing Robert Toplin's book, Michael Moore's Farenheit 9/11: How One Film Divided a Nation, and Peter Hahn, Ohio State, on a panel on "The United States and the Middle East." Also at this link are additional speakers from the OAH Presidential Panel, David Montgomery and Mary Francis Berry. Click here to view.

Cottrol on Equality and Inequality in Legal Norms and Legal Practice in Latin America

Robert Cottrol, George Washington, has posted an article, forthcoming in the Tulane Law Review, Normative Nominalism: The Paradox of Egalitarian Law in Inegalitarian Cultures--Some Lessons from Recent Latin American Historiography. Here's the abstract:

This essay is a contribution to the discussion of the conflict that often exists between legal norms and legal practice in Latin America. It examines the conflict between equality under the law as a legal and constitutional norm in Latin America and the persistence of strong inequality as a social reality in Latin America. The essay examines this tension through a look at recent Latin American legal historiography. Essay includes issues of race, class and the law in the nineteenth century Brazilian Empire, race and the law in early 20th century Cuba and Brazilian labor law in the middle and latter part of the 20th century.

Richard White's OAH Presidential Address via YouTube, and other news from Day 3 of the OAH

History News Network continues its coverage of the Organization of American Historians Meeting, with coverage of activities on Saturday, March 31. Richard White, Stanford, delivered his Presidential Address on "The Relevance of History and the Problems with Relevance." To view it on YouTube, click here.

There are also YouTube clips of past OAH Presidents, Eric Foner, Ann Firor Scott, John Hope Franklin and Carl Degler, with more to come.

At the Business Meeting, it was announced that Elaine Tyler May, Minnesota, is the new President-Elect of the OAH.

LHB Special Report: Historians are not Funny

The Legal History Blog's extensive research has uncovered a shocking finding: Historians are not funny. No one seems to think so. Google, who of course knows everything, turns up virtually nothing. Historians themselves mulled over the absence of historian jokes on History News Network four years ago, and, well, Ralph Luker noted that the paltry results were, in a word, "lame." Historians have apparently been too embarrassed to take up the subject since.

Lawyers, of course have a corner on the market. What about others? Economists don't seem particularly jolly. But there are countless websites devoted to compilations of economist jokes. What's so funny about economists? How about this:

Man walking along a road in the countryside comes across a shepherd and a huge flock of sheep. Tells the shepherd, "I will bet you $100 against one of your sheep that I can tell you the exact number in this flock." The shepherd thinks it over; it's a big flock so he takes the bet. "973," says the man. The shepherd is astonished, because that is exactly right. Says "OK, I'm a man of my word, take an animal." Man picks one up and begins to walk away.

"Wait," cries the shepherd, "Let me have a chance to get even. Double or nothing that I can guess your exact occupation." Man says sure. "You are an economist for a government think tank," says the shepherd. "Amazing!" responds the man, "You are exactly right! But tell me, how did you deduce that?"

"Well," says the shepherd, "put down my dog and I will tell you."

For the source, click here. More economist humor is here and here.

In the end, it seems there is only one sort of joke about historians. Found here , here, here. It is:

How many historians does it take to change a light bulb?

Only one, but to tell anyone else about it you need an entire department: the historian of science to describe the development of electricity; the economic historian to describe the rise of power companies and disposable lightbulbs; the environmental historian to talk about the relationship between replacement bulbs and landfill issues; the political historian to describe the decision-making process in lightbulb replacement; and the social historian to argue about whether more lightbulbs are replaced by women or by men. Graduate students are working on the incandescent-fluorescent issue, but no publications yet.

Or this version:

Q. How many revisionist historians does it take to change a light bulb?

A. In actual fact, against popular consensus, the light bulb was never actually changed.

But since historians are not funny, perhaps it would be better to close this Special Edition of the Legal History Blog with political humor.

Q: How many Bush Administration officials does it take to screw in a light bulb?

A: None. There is nothing wrong with the light bulb; it's condition is improving every day. Any reports of it's lack of incandescence are totally unfounded, and the result of delusional "spin" assaults from the fanatic, elitist, liberal media. That light bulb has served honorably, and anything you say undermines the lighting effect and dims it's ego. Why do you hate freedom?

The Legal History Blog would like to thank Mark Graber, Eric Talley and John Fabian Witt, who collaborated on the April 1 Special Edition. Special thanks to Bill for technical assistance. All errors of judgment are, of course, mine.

The Real Reason Tempe to Host Legal Historians: They Bought it on E-Bay

The American Society for Legal History had led the Legal History Blog and others to believe that it was the beautiful Southwestern vistas, fine dining, reasonable hotel rates and easy airport connections that led the association to choose Tempe, Arizona, as the site for its 2007 annual meeting. But no. The Legal History Blog has just learned the real reason.

In an effort to plump up the organization's finances, the ASLH Board auctioned off the annual meeting site on E-Bay. Tempe was the highest bidder.

What were the alternatives? The city was nearly outbid by P'yŏngyang, North Korea, leading to fears that President Kim Jong-il might detain American scholars to use as bargaining chips in ongoing negotiations over North Korean nuclear technology.

But the strongest challenge to Tempe came from a group of amateur astronomers from Southern California, bidding on behalf of Pluto. Said their spokesperson: "If the American Society for Legal History went to Pluto, that would really prove that Pluto is a planet!"

This potential should strike fear in the heart of any legal historian. I checked. There is no listing for Pluto in Zagat's.

So when you find yourself next fall boarding a plane for Tempe/Phoenix, rather than a spacecraft, legal historians around the cosmos will be saying: Thank God for Tempe!

The second image is of Pluto on June 8 and 10, 2003.

Graber Reviews Personne, Samuel Blatchford: Not an Ordinary Justice

LHB exclusive: Jean Personne, Samuel Blatchford: Not an Ordinary Justice (Brown University Press, 2007) is reviewed by Mark Graber, Univ. of Maryland.

The late nineteenth century judicial universe becomes more interesting by the book. Largely thought the domain of legal toadies who championed laissez-faire at the behest of their former corporate clients and wide eyed populist radicals desperately hoping to prevent industrialization, immigration, and urbanization, the constitutional universe of the Gilded Age, thanks to such scholars as Charles McCurdy and Howard Gillman, has become a far more intriguing source of scholarly principle. Depending on one’s perspective, the justices on the Waite and Fuller Courts were committed to articulating the traditional constitutional animus against class legislation or, as Owen Fiss maintains, building the foundations of the civil rights revolution a half a century later.

Jean Personne’s Samuel Blachford: Not an Ordinary Justice will be of interest to all scholars interested in pre-Lochner revisionism. Personne, a long-time professor of history at the State University of New York, Baldwin, has devoted a career to the study of perhaps the most obscure justice on the post-Civil War Court with fascinating results. His study not only places Blachford at the center of the most important judicial debates of the Gilded Age, but casts new light on the constitutional politics of the late Waite and early Fuller Court. Blachford was the consummate note taker at the judicial conference and those papers, first unearthed by Personne’s investigation of the family summer home in Saranac Lake, New York, point to conflicts that would push the court in new directions in the next century.

The most important conflict concerned the place of religion in the United States. As scholars have recognized, the late nineteenth century was a time of Protestant revivalism and the Court in such cases as Reynolds v. United States reflected this sentiment by articulating a constitutional commitment to Christian values. Justice Blachford, who was married to a Jewish woman, vigorously protested judicial efforts to rest constitutional decisions on Christian doctrines. While ever the team player, Blachford elected not to write separately in Reynolds, Personne convincingly demonstrates that the Court’s greater sensitivity to religious issues after the turn of the century was in part the result of Blachford’s arguments in conference.

Blachford was a traditional economic conservative. His best known opinion, Chicago, Milwaukee & St. Paul Railway Co., pioneered the use of the due process clause to protect business enterprise. Unlike the other justices, however, Blachford had actual personal experience working on railroads, having been a conductor for two years after graduating Columbia college. Together with his lifelong friend, Elijah Doolittle, he actually invented a device for more accurate ticket taking that was used by a few railroads during the 1870s. This familiarity with the business practices of both trains and ships, Personne details, explains why Blachford tended to write majority opinions in admiralty and railroad cases.

Samuel Blachford is very much a nineteenth century biography. More facts than one could ever imagine, few general theories. Still, the story of Samuel Blachford as told by Jean Personne adds significantly to our understanding of judicial politics during the 1880s and 1890s. Personne demonstrates that the justices were human beings, as concerned with justice and law as religion and business. Perhaps most fascinating is Personne’s revealing that Blachford broke his arm in 1889, during a stampede caused by a person who falsely cried “anarchist” in a crowded theater. Blachford’s notes indicate that the incident was discussed by the justices on several occasions and may have provided the basis of Holmes’s more famous analogy in Schenck v. United States.

In disturbing new study, Economists find that History is Inefficient

It is an age-old saying: “Those who forget history are doomed to repeat it.” But this assumption is under fire in a new study by economists, released today. Eric L. Talley, a UC Berkeley economist and Principal Investigator for the study, described it this way: “using sophisticated methodological techniques, we have found that those who remember history are as likely to repeat it as those who do not. Although the results are surprising, they are resoundingly clear: history is inefficient.” The authors recommend that resources currently devoted to the study of history be redirected.

While many historians have responded with shock, the reaction has been varied. Some immediately took the study to heart. "I've often worried that studying history was pointless,” remarked legal historian John Fabian Witt, Columbia, “and the Talley study pretty much proves it. I've decided to switch to economics.” He continued: “honestly, I've always secretly wanted to be an economist. So clean, so crisp, none of these messy facts to get in the way. I think I’ll take up recursive modeling of dynamic linear economies. I used to be so anecdotal; from now on it's only stochastic linear difference equations for me."

The implications of this study for legal historians are, of course, profound, so I am posting the complete executive summary, below.

Is Studying History Efficient? An Experimental Economic Analysis

Prof. Eric L. Talley, PhD, JD (Principal Investigator)
April 1, 2007

EXECUTIVE SUMMARY

This experimental study was designed to test the oft-utilized maxim that “those who forget history are doomed to repeat it.”[1] In an earlier pilot study, we administered a written test to 351 college seniors assessing their knowledge of significant mistakes made by leaders throughout world history (e.g., Napoleon’s & Hitler’s invasions of Russia; Hoover’s response to the crash of 1929; George H.W. Bush’s projectile vomit into the lap of Japanese Premier Miyazawa; Monica Lewinsky). We then compared the choices of subjects who had passed the test against those who failed it when confronted with experimental vignettes based on key moments from history. We rejected the null hypothesis that the two groups behaved identically, versus the alternative hypothesis that the forgetters were more likely to repeat historical mistakes (p=0.049973, one-tailed test). On the basis of these preliminary findings, we concluded that the above adage about repeating history had clear empirical support.

The instant study demonstrates that our previous conclusions were unsound. While the pilot was interesting and provocative, it suffered from two significant methodological flaws. First, we could not exclude the possibility that the observed correlation between history forgetfulness and mistake recidivism might have been due to reverse causality or unobserved variables (e.g., diet, exercise, etc.). Second, the pilot study did not attempt to check the robustness of our results over time.

In order to address the first flaw (endogeneity bias), we significantly refined the study design to introduce an independent instrument for forgetfulness. We invited back into the laboratory only those subjects from the pilot study who had passed the diagnostic history exam (n=146). Those subjects were then asked to drink a glass of pomegranate punch laced with pentobarbital (a concoction we identified only as “smart juice”), causing them to lose consciousness for 3-5 hours. While unconscious, approximately half of the subjects (the treatment group, n=75) received trans-orbital lobotomies to the anterior cingulate area of the cortex – the region of the brain that neuro-economists have identified as being activated during long-term memory retrieval. The remaining subjects (the control group, n=71) received a superficial temporal incision, a few sutures, and a Sponge Bob Square Pants bandage. Each subject’s group assignment was determined by a random process.[2]

To address the second weakness in our pilot study (dynamic robustness), we tracked the treatment and control groups over the ensuing 24 weeks, observing them in multiple experimental vignettes fashioned after watershed decision-making moments in history. The results were striking, as can be seen in Figure 1, which illustrates the mean recidivist error frequencies of the two groups as a function of time.[3]

Initially, forgetters in the treatment group were almost three times as likely to repeat historical mistakes than were their counterparts in the non-forgetter control group (p=0.000021). However, over time the error rates of both the forgetters and the non-forgetters converged to the mid-90% range, steady-state frequencies that are statistically indistinct from one another (p=0.99899). Evidently, virtually all subjects were doomed to repeat history, whether lobotomized into forgetting it or not.

This finding has significant implications for the social value of studying history. Most immediately, our results suggest that the study of history is inefficient. To be sure, learning history might reduce error repetition risk for a couple of weeks, or even a few months if you’re really lucky. But over the long term, the benefits of a history education as a means for obviating habitual mistakes are modest to nonexistent. Viewed in this light, we would do well to consider redirecting social resources towards more cost-effective vehicles for preventing recidivist historical error. For example, we might impose a Pigouvian tax on habitual mistakes, or subject those who make them to ritualistic public humiliation, social ostracism, and civil or criminal liability. Alternatively, we could distribute (by auction or lottery) regulatory permits that entitle the holder to repeat historical mistakes, permitting free trade of such permits over an open market (such as the NYSE or eBay). Perhaps more radically, we might explore the possibility of establishing “conditioning camps” in Eastern Nevada or Antarctica for incapacitating and/or reforming mistake-prone individuals. Many of these alternative policy options are admittedly speculative, and accordingly we leave their fuller analysis for future research.

[1] While numerous grammatical permutations of this statement exist, they are all thought to emanate from the early 20th Century works of George Santayana.

[2] Explicitly, two research assistants (representing the control group and treatment group, respectively) conducted independent iterations of the game “Rock-Paper-Scissors,” replaying all ties until a victor emerged. The subject was then assigned to the “victorious” RA’s group, and the process continued ad seriatim until all subjects were assigned. (At their request, the names of the research assistants are being kept confidential).

[3] In the interests of full disclosure, Figure 1 tracks the mean error rates of all control group subjects (n=71), but omits one subject from the treatment group (n=74), who wandered away from the experimental facility shortly after surgery. His current whereabouts are unknown.