Sharfstein on Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600-1860

Daniel J. Sharfstein, who is starting this fall at Vanderbilt as an Assistant Professor of Law, has a new article in the Minnesota Law Review: Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860. Here's the abstract:

Scholars describe the one-drop rule—the idea that any African ancestry makes a person black—as the American regime of race. While accounts of when the rule emerged vary widely, ranging from the 1660s to the 1920s, most legal scholars have assumed that once established, the rule created a bright line that people were bound to follow. This Article reconstructs the one-drop rule’s meaning and purpose from 1600 to 1860, setting it within the context of “racial migration,” the continual process by which people of African descent assimilated into white communities.

While ideologies of blood-borne racial difference predate Jamestown, the rhetoric of purity was always undermined by the realities of mixture. Cases such as Hudgins v. Wright and State v. Cantey simultaneously strengthened and undermined the color line, expressing confidence in the permanence of racial difference while allowing people of color to become white. Instead of simply widening the racial divide, restrictions on the liberty and livelihoods of African Americans pushed many into whiteness. As more people became vulnerable to reclassification, courts acted to preserve social stability in Southern communities, shielding them from the insecurity that an insistence on racial purity would engender.

The one-drop rule’s transformation from ideological current to legal bright line and presumed social reality is a story not of slavery, but of freedom. In the 1840s and 1850s, the prospect of emancipation hastened the rule’s spread as whites attempted to preserve property relations in slavery’s absence. In Northern border states such as Ohio, the rule emerged by 1860 as a legal argument and a social attitude. The rule’s ostensible opponents—abolitionists—propagated it, deploying it as a rhetorical weapon to symbolize slavery’s cruelty and to argue that Northern whites could be enslaved. But the rule’s ascent did not make it any more enforceable than it had ever been.

The blogosphere's hello to A Farewell to Alms

Ralph Luker notes that "Nicholas Wade's preview of Gregory Clark's A Farewell to Alms, "In Dusty Archives, A Theory of Affluence," NYT, 7 August, has had widespread, often deeply critical, discussion on the net." He collects reactions here (scroll down), and seeks a response from Gregory Clark. Clark's book is noted on LHB here.

Update: Luker reports that Clark will respond on Cliopatria. I'll link to the post. Check back on Monday..

More on the history of religious minorities and the law: Peters on Yoder

To follow up on the last post, Shawn Francis Peters has another, more recent book: The Yoder Case: Religious Freedom, Education, and Parental Rights (2003). This is in the series: Landmark Law Cases and American Society from the University Press of Kansas. These books are often terrific for course adoption.

Here's the book description from the press:

Compulsory education has always been in the best interest of the state, as it fosters good citizenship and self-sufficiency. But what if a segment of society considers state education detrimental to its own values? In the late 1960s, one Wisconsin Amish community held that view and removed its children from public schools. When the state claimed truancy and took Jonas Yoder and two other parents to court, a legal battle of landmark proportions followed.

Prize-winning historian Shawn Peters now offers a complete and compelling account of the Yoder case and of the tortured decision of simple Amish folk to break tradition and "go to law." He examines the breadth of First Amendment protections, the validity of compulsory school attendance, and the fundamental rights of parents and children. He also takes readers deep into the world of the Old Order Amish to show how their beliefs were often at variance with the very measures being undertaken to protect them.

While most accounts of Wisconsin v. Yoder have focused on its origins and implications, Peters lays out all the facts of the case to reveal their intrinsic importance. He draws on trial transcripts and in-depth interviews with participants to fully explore the backgrounds, motivations, and strategies of the people who shaped the case-particularly the National Committee for Amish Religious Freedom and its attorney William Ball. He then describes in riveting prose how the trial unfolded, explains the impact of First Amendment jurisprudence on ordinary citizens involved, and shows how a relatively obscure dispute became a conflict of national importance.

When the U.S. Supreme Court in 1972 ruled in favor of the Amish, its decision was hailed by many as a victory for religious freedom but was also criticized for conferring special protection on one faith. Yoder was subsequently cited in fundamentalist Christian efforts to excuse children from public schooling, but faith-based exemption to law was ultimately defeated in other tests. Peters traces the progress of such cases into the 1990s to show how Yoder in some ways marked the beginning of the end of an era for religious liberty jurisprudence.

In exploring the meaning and legacy of Yoder, Peters reveals not only the human element of a landmark case but also its continuing relevance for our times.

And the blurbs:

“Sympathetic, yet rigorous, and grounded in a thorough grasp of Amish culture, this superb book shows how Amish religious convictions have reshaped religious liberty for all Americans.”--Donald B. Kraybill, author of The Amish and the State

“A masterly study of a case at the very heart of what free exercise of religion means.”--Melvin I. Urofsky, author of A March of Liberty: A Constitutional History of the United States

“Admirably blends a wonderful storytelling ability with a remarkable capacity to present complex legal aspects of the case in a way that’s easy to understand.”--Derek Davis, author of Original Intent: Chief Justice Rehnquist and the Course of American Church-State Relations

“An extremely illuminating study of a profound human drama.”--Sanford Levinson, author of Constitutional Faith

Rostron on Demythologizing the Legal History of the Jehovah's Witnesses and the First Amendment

Allen K. Rostron, University of Missouri, Kansas City, School of Law, has just posted a review essay, Demythologizing the Legal History of the Jehovah's Witnesses and the First Amendment. The essay takes up Shawn Francis Peters, Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution. While the book appeared in 2000, and the essay in 2004 (Quinnipiac Law Review), the essay makes a point that will be of interest beyond its examination of Peters' book. A particularly interesting criticism, which we could think of in the context of litigation involving other groups, is that Peters addresses the impact of the Witnesses on the law, but does not adequately turn his lens around, and explore the way involvement in litigation affected the Witnesses. Here's Rostron's abstract:

In 2002, for the first time in more than 20 years, the Supreme Court of the United States decided a case involving the First Amendment rights of Jehovah's Witnesses. The Court ruled that Witnesses cannot be required to give their names to local government authorities in order to obtain permits before going door-to-door to distribute their publications and preach their religious message.

While the amount of new law being generated by the religion's followers has slowed, scholars have finally begun in recent years to give significant attention to the legal history of the Jehovah's Witnesses, and, in particular, to their phenomenal wave of constitutional litigation. Shawn Francis Peters' Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution is the most recent, and broadest, historical account of the Witnesses' legal activities. Peters focuses on the period of the late 1930s through the mid-1940s, a time when persecution of the Witnesses was at its peak and the Supreme Court decided a flurry of major First Amendment cases involving the Witnesses.

Peters' book shares a fundamental flaw with previous accounts of the legal history of the Jehovah's Witnesses. He has chosen to passionately and unequivocally support the Witnesses' side of each and every one of the legal battles he describes. In Peters' hands, every episode in the Witnesses' legal struggles becomes a story about how an extraordinarily brave and dedicated Witness challenged an indefensible rule of law, and how every case ultimately resulted in either a watershed victory for liberty, or a disheartening judicial failure to protect our freedom. This Review considers the problems that arise in trying to force the history of the Jehovah's Witnesses into a uniform narrative of courageous opposition to unjust legal restrictions and prejudice. This form of legal history idealizes and oversimplifies the events underlying the cases and the issues they raise.

Part I of this Review describes Peters' approach, and how he consistently frames the legal history of the Witnesses as a confrontation between righteous dedication and legal harassment. Part II suggests that Peters and other historians have been so determined to applaud the Witnesses' effect on the law that they have overlooked the equally significant question of how participating in these legal activities affected the Witnesses. Part III closely examines one particular case in which the Supreme Court considered the First Amendment rights of Jehovah's Witnesses, in order to suggest how Peters' approach to the legal history of the Witnesses can distort representation of the facts underlying cases as well as analysis of the meaning and significance of the cases as legal precedent. Finally, Part IV suggests that Peters, like others, has also neglected the opportunity to gain a deeper understanding of the Witnesses' legal history through comparison of the Witnesses to other religious groups.

Menkel-Meadow on Interdisciplinarity and "Big Bang" moments in the history of Legal Education

Carrie Menkel-Meadow, Georgetown, has posted a new essay, Taking Law and.....Really Seriously: Before, During and After the Law. It has been published in the Vanderbilt Law Review. Here's the abstract:

This article reviews the history of different schools of legal education from Langdellian formalism to legal realism, law and economics, critical legal studies, feminist and critical race theory, clinical education, law and social science,law and literature, law and behaviorism, and pragmatism. It then offers a specific program for interdisciplinary legal education, including a remapping of conventional three year legal education and illustrates with several recent examples of innovations in interdisciplinary legal education.

Pether, Regarding the Miller Girls: Daisy, Judith, and the Seeming Paradox of in Re Grand Jury Subpoena, Judith Miller

Penelope Pether, Villanova University School of Law, has posted the abstract for a new essay, Regarding the Miller Girls: Daisy, Judith, and the Seeming Paradox of in Re Grand Jury Subpoena, Judith Miller. It was part of a symposium, The New Exceptionalism: Law and Literature Since 9/11 Symposium, and is published this year in Law and Literature. The essay is not posted, but the essay should be accessible in the published journal. The author's contact information is on her SSRN page. Here's the abstract:

“Daisy Miller” is a story about American Exceptionalism; about the banal and tawdry tragedy that comes of having faith in it; about Daisy's (the lawyer Giovanelli's “new found land”) tragic flaw - that she is unaware of how others perceive her, or she doesn't care; or about ambiguities, or seeing things. It can be made to speak volumes about the power of perception, as about what Tayyab Mahmoud has called “[a]doption and deployment of identity.” Or about the seductive power of fictions of specifically national identity: for James critic Leslie Fiedler, “the American Girl is innocent by definition, mythically innocent; and her purity depends upon nothing she says or does….”

A contemporary American anti/heroine, Judith Miller, is likewise figured as interpretable: did she need a “freely given” “personal” waiver of confidentiality to identify her source, and when did she get one; was she a “good, honorable principled reporter” or “A Woman of Mass Destruction”; and what did New York Times Executive Editor Bill Keller's accusation of an “entanglement” with “Scooter” Libby connote?

This essay takes the intrigues generated around “the Miller Girls” as a guide to reading the stories told by, surrounding, excised from, and immanent in the 2005 decision of the United States Court of Appeals for the District of Columbia in In re Grand Jury Subpoena, Judith Miller, and explores some fictions of American Exceptionalism cultivated both by “common law constitutionalism,” and by a Federal judiciary laying down the law in the shadows cast by the “War on Terror” and the jurisdictions of expatriation.

Barrozo on Punishing Cruelly: Punishment, Cruelty, and Mercy in the thought of Lucius Seneca

Paulo D. Barrozo, Harvard, has published a new essay, Punishing Cruelly: Punishment, Cruelty, and Mercy. It appears in the journal Criminal Law and Philosophy. Here's the abstract:

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca's De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca.

Reviewed: Saks, The Center Cannot Hold

Sherry Colb recommends Elyn Saks' new book, The Center Cannot Hold: My Journey Through Madness in a must-read post on Dorf on Law. The book is reviewed today in the San Francisco Chronicle. This is not really a history book. It is a personal memoir of a law professor's life with mental illness. But the SF Chronicle reviewer also notes that memoirs like Saks' have been made possible by historical developments: "this kind of vivid personal recollection exists in part because of our current breakthroughs in treatment and their relative novelty." We might see this book in two ways: a story of one of our colleagues, and also a memoir of one scholar's passing from one era of mental health treatment into another.

Clea Simon, in the SF Chronicle, writes in part:

Elyn R. Saks has been to hell and back. In this articulate and at times profoundly disturbing memoir, Saks, a professor at the University of Southern California Gould School of Law and adjunct professor of psychiatry at UC San Diego, recounts her nearly lifelong struggle with schizophrenia, including voices, visions and profound depersonalization.

For Saks, as perhaps for most schizophrenics, the disease started subtly. As a child of 7 or 8, she believed she was "dissolving ... like a sand castle with all the sand sliding away." Soon she feared unnamed strangers, and by puberty she stopped eating in an effort to gain control over her life....

But it wasn't until she went to Oxford University as a Marshall scholar that she truly began to lose her grip....Thanks to an incredible strength of will and a powerful intellect, Saks was able to keep herself more or less together, even as the voices and visions worsened. She spent time in hospitals and with a sympathetic psychoanalyst, and managed to graduate and apply to law school. Once at Yale Law School, however, her disease took control, and Saks describes Goya-esque scenes in which hospital restraints left her helpless against flying demons, and forced medications did little to stop the voices telling her she was not worthy to live.

Because of her current clarity, Saks' descriptions are chilling, and when she occasionally steps back, her explanations can be profound. "Psychotic people who are paranoid do scary things because they are scared," she writes, likening the experience to "that sweaty midnight moment when you sit bolt upright in your bed from a nightmare that you don't yet know isn't real." This is not easy reading.

To continue reading, click here.

Sherry Colb suggests that the lesson from the book "is that people with schizophrenia are not so different from everyone else and that what distinguishes them should make the rest of us feel lucky and empathic rather than superior and distant."

But then she goes on to talk about Elyn Saks, my USC colleague, in a way that makes clear that Elyn is not so much just like everyone else. Instead she has qualities we should aspire to:

Though mental illness has become increasingly common in the population..., the stigma attached to it has not abated very much over the years. And this is even truer of thought disorders such as schizophrenia than of the so-called mood disorders such as depression and manic-depression. For a person of status like Elyn to write a memoir of schizophrenia is accordingly to take a risk -- people can either look at others with schizophrenia in a new and more enlightened way or they can look at the writer of the book in a less flattering light and say "now we now that she is one of 'them.'" I am hopeful that most readers will do the former, but Elyn's willingness to risk the latter in her effort to educate us all says a great deal about her character.

For more from Colb on Saks, click here.

Elyn Saks is Associate Dean and Orrin B. Evans Professor of Law, Psychology, and Psychiatry and the Behavioral Sciences at USC. Her bio and bibliography are here. A recent interview on NPR's Fresh Air is here. Buy the book at your local independent bookstore, or here.

Photo credit: Elyn Saks.

Lillian Robinson Scholars Program offers fellowships in feminist studies

The Lillian Robinson Scholars Program has just been established to provide funding to bring outstanding feminist scholars to the Simone de Beauvoir Institute at Concordia University, Montreal.

Deadline: August 31, 2007

There are fellowships for both junior and senior scholars, for short-term residencies. Applicants for residencies under the Lillian Robinson Scholars program must be pursuing scholarship with a feminist orientation, although applications are accepted for work in any field(s) of inquiry. Applicants must have PhDs in hand, but need not be employed academics. Scholars have access during their residency to office space, a computer, the Institute Reading Room, and the University Libraries, plus the Institute’s community of feminist intellectuals and activists. They are expected to take an active role in Institute life, and to present their work in a public forum while in residence. Please note that priority will be given to scholars for residencies during the regular academic year (September – April).

The program is designed to be a living testimony to the legacy of Lillian Robinson(1941-2006), a leader in the field of women's studies and feminist cultural studies, who also worked extensively on issues of multiculturalism and the literary canon. Principal of the Simone de Beauvoir Institute, the women's studies program at Concordia University, Montreal, she also taught at institutions such as the University of Paris, MIT, the University of Hawai'i, and the University of Texas. Her six academic books include In the Canon's Mouth: Dispatches from the Culture Wars (1997), Night Market: Sexual Cultures and the Thai Economic Miracle (1998), and Wonder Women (2004).

More information and details about how to apply are here.

Abraham: Doing Justice on Two Fronts: The Liberal Dilemma in Immigration

David Abraham, University of Miami, has posted a new paper, Doing Justice on Two Fronts: The Liberal Dilemma in Immigration. Here's the abstract:

Two hearts beat in every liberal breast. One is the heart of non-discrimination - the commitment to propounding and furthering equal chances for all. This is the heart of human rights liberalism. Such a principle, built around individuals and their free choices, ought to be applicable everywhere and to everyone. There is indeed no obvious liberal principle that can rationalize the consequences that flow from one person's being born in San Diego and another's in Tijuana. This view is sometimes associated with the “global left” and often with the politics of “recognition” and “fairness.”

The second liberal principle is communitarian social justice, and that heart beats with almost equal vigor. Redistribution of some sort, effected primarily through the institutions of the state, is owed the poor and exploited, and it is due, first and foremost, and can be accomplished best, in one's own society and for one's own countrymen. This redistributional model recognizes international inequality and injustice, but it prioritizes solidarity with what one might call a community, a nation, or a country. This vision has lost a great deal of ground over the past 35-40 years, especially among elites but also among would-be critical intellectuals. This view is sometimes associated with the “sovereignty left” and often with the politics of “redistribution” and “justice.”

The tension may also be construed as part of a larger shift: from a communitarian, citizenship liberalism to a transnational, human rights or cosmopolitan liberalism. This essay examines the material as well as ideological aspects of this tension and looks at how it has reverberated through immigration, citizenship, and labor debates.

Dissertations on SSRN? Perhaps, but there CAN BE downsides

Larry Solum gives advice to graduate students on the Legal Theory Blog about making unpublished work available on SSRN. He says in part:

"SSRN provides an electronic alternative to the former practice of making dissertations "available" via a service that will provide bound photocopies. I can't really see any downside to this method of distributing research. Of course, many dissertations will become books, and others a series of articles, but that process frequently takes years to complete."

I agree that SSRN is a great way to distribute unpublished work. Whether it is wise for a historian to make their dissertation, especially the entire dissertation, available on the web prior to publication is another matter. There are two things to consider.

First, if you're planning to look for a book publisher, if your manuscript is readily available on the web, publishers may think that web access will undercut sales. If a market for the book is for course adoption, students might just download the SSRN version, rather than purchase the book. With publishers concerned about making ends meet, and since academic books tend not to have large sales as it is, putting the entire dissertation on the web might undermine your chances of finding a publisher.

The second issue is more complicated. If your dissertation is based on painstaking original research, you may want the world to know about it now, and you can do that quickly by posting on SSRN. But then you run the risk that someone else might publish a book or article based on your findings before your own book or articles are in print. This can happen without anyone engaging in plagiarism or unethical conduct. All they need to do is appropriately cite to and quote from your work.

With very original research, the better strategy might be to get an article out as quickly as you can that includes the most important findings. That article (or at least its abstract) can be posted on SSRN, and the published article is then out there for others to draw upon. You can then reserve the remaining material for the book. The originality of the material, and the fact that others haven't used those sources, helps you attract book publishers.

It's hard to protect against inappropriate borrowing, which of course does happen. But putting too much of your research on SSRN before publication enables others to make use of your material in an appropriate way, but that could dilute the originality of your book when it appears.

The way I've handled this issue: with Cold War Civil Rights, I first published an article, Desegregation as a Cold War Imperative. It was the article that caused me to decide to write the dissertation & book, rather than the other way around. The article made my research strategy accessible to others (through my citations), but at least I had a publication out first. Later I published just one story in the book as an article for the Journal of American History: Josephine Baker, Racial Protest and the Cold War. A version of the story appears as part of chapter two. And I published an article on the Little Rock Crisis, which served as the basis for chapter four. Some of the most dramatic material in the book appears in chapters five and six, on the 1960s. When writing those chapters, I was careful about where I circulated drafts. For example, when a colleague writing in a related area asked to see my JFK chapter, I sent it but specifically asked him not to discuss or cite to stories in the chapter that I wanted to appear for the first time in my book, rather than his. (This is getting into a different topic, but: sharing work is a good thing to do, but there are also times when it is ok to decline, especially with someone you don't know who is writing something similar to your dissertation/book.)

With my new book, also based on difficult, extensive archival research, I published an article, Working Toward Democracy: Thurgood Marshall and the Constitution of Kenya. The rest of the research has not been posted on SSRN and has only been circulated for the purpose of workshops. It will appear for the first time in the book.

So...yes, you should use SSRN, but with caution. Consider posting the introduction and table of contents (here is an example). And get at least one article published before the book, which helps build excitement about what's to come!

The 10 Comandments of Moving (academic version)

End of summer is the time that some of you are moving off for a visit, a first job, a post-doc, grad school or law school. It seems a good time for Tenured Radical's Ten Commandments of Moving, specially tailored for academics. Be sure to read the comments. And best of luck!

Post-Doctoral Fellowships in the Humanities at Columbia

A superb post-doc opportunity at Columbia University. Deadline October 8, 2007. Hat tip.

The Columbia Society of Fellows in the Humanities, with grants from the Andrew W. Mellon Foundation and the William R. Kenan Trust, will appoint a number of post-doctoral fellows in the humanities for the academic year 2008-2009. We invite applications from qualified candidates who have received the Ph.D. between 1 January 2004 and 1 July 2008. Fellows are appointed as Lecturers in appropriate departments at Columbia University and as postdoctoral research fellows. The fellowship is renewable for a second and third year. In the first year, Fellows teach one course per semester: at least one of these courses will be in the undergraduate general education program of the University. In years two and three, Fellows teach one course per year. In addition to teaching and research, the duties of Fellows include attendance at the Society's lectures and events as well as active participation in the intellectual life of the Society and of the department with which the Fellow is affiliated. The annual stipend will be $52,000. Each Fellow will also receive a research allowance of $4,000 per annum.

Links to application materials are here.

More from Carle: the role of the NAACP in the development of 20th century U.S. legal ethics

More from Susan Carle, American University: a series of earlier articles, recently posted, on the history of legal ethics. These two articles explore the important story of the role of NAACP litigation in the development of American legal ethics. The first is Race, Class, and Legal Ethics in the Early Naacp (1910-1920). It appeared in the Law and History Review in 2002. Here's the abstract:

The history of the NAACP is key to American conceptions of how to achieve social change through law. Yet despite the vast literature on the NAACP, no one has explored how the early NAACP navigated traditional legal ethics strictures in developing its innovative test case litigation strategies. In this Article, Prof. Carle examines that question, focusing on the activities of the elite white New York City practitioners who dominated the NAACP's first national legal committee between 1910 and 1920. Prof. Carle shows that this committee was experimenting with litigation strategies that included soliciting clients, advertising legal services to strangers, and staging facts for test cases. At the same time, legal committee members were involved in local bar associations that were enforcing legal ethics prohibitions against solicitation, advertising, and "stirring up" litigation. Prof. Carle explores the world view that allowed these lawyers to champion the NAACP's innovative legal work while simultaneously supporting the bar's traditional legal ethics views. She argues that the committee members' universalist understanding of the public good allowed them to endorse the NAACP's use of innovative litigation techniques while sitting on bar committees that penalized other practitioners for similar conduct, and that their professional and social privilege gave them such freedom to maneuver around inconvenient legal ethics norms in experimenting with new forms of public interest practice.

The story continues. From Buchanan to Button: Legal Ethics and the Naacp (Part II) appeared in the University of Chicago Legal Forum in 2001. Here's the abstract:

This paper continues an inquiry I have undertaken into the relationship between the NAACP's public impact litigation strategies and traditional legal ethics norms. In an earlier paper, I investigated the legal ethics mind set of the members of the NAACP's first national legal committee, who oversaw the organization's legal work in the period between 1910 and 1920. This first article confined its examination to the NAACP's first decade of existence, but the NAACP's influence on the development of the ethical norms applying to public interest law practice by no means ends with this early period. The NAACP's legal wars with hostile southern states in the 1950s and 1960s culminated in the United States Supreme Court's important legal ethics decision in NAACP v. Button. That case essentially legalized the public impact litigation techniques that are at the core of U.S. conceptions of how to use law as an instrument for social change.

This Article picks up where my earlier article left off and explores the transition from the early twentieth century legal ethics views of the NAACP's first national legal committee to the understanding of the relationship between legal ethics rules and public interest law reflected in Button. The transition from Buchanan to Button reflects one aspect of an enormously complicated story. One of many chapters of that story involved transformations in lawyers' conceptions of their ethical obligations. That is the aspect of the transition from Buchanan to Button I am interested in here.

I undertake this inquiry by setting up two contrasts. First, in Part I, I compare snapshot views of two U.S. Supreme Court cases the NAACP litigated half a century apart, Buchanan v. Warley and NAACP v. Button. Second, in Part II, I contrast the biographies of two leading NAACP lawyers of different generations, Moorfield Storey and Charles Hamilton Houston. I examine the socially and historically situated perspectives of these two lawyers and analyze the complex interactions among a number of variables -- including race, social standing, insider versus outsider status in the profession, political conditions, and changing jurisprudential conceptions of the nature of legal representation -- that help account for their different approaches to the NAACP's legal ethics challenges during their respective generations. Finally, in Part III, I trace the development of the Supreme Court's legal ethics jurisprudence under Button and suggest the beginnings of a critical approach based on this analysis.

Carle on Legal Ethics: the History of the 1908 Canons

This spring, Susan Carle, American University, posted on SSRN a series of earlier articles on the history of legal ethics. While we use SSRN most often for current work, posting earlier pieces is a great way to make them more widely accessible. Carle's three articles together provide a thoughtful window into early 20th century American legal ethics.

First is Lawyers' Duty to Do Justice: A New Look at the History of the 1908 Canons, which appeared in Law & Social Inquiry in 1999. Two articles by Carle on the NAACP and legal ethics will follow in another post. Here's the first abstract:

This article examines a long-forgotten controversy about lawyers' duties to evaluate the justice of their clients' causes in civil cases, which took place among the members of the Committee of the American Bar Association that drafted the 1908 Canons of Professional Responsibility. The article presents an analysis of newly discovered internal working documents of this important, but never before examined, ABA Committee, supplemented with primary historical research into the views and backgrounds of the Committee's members. The article demonstrates how a clash of perspectives among these men -- traceable in part to their backgrounds but also to their unpredictable allegiances to conflicting trends in legal thought at the turn of the century -- prevented the Committee from reaching a satisfactory resolution on the duty-to-do-justice issue. The Committee members instead adopted ineffectual compromise language in the Canons, leaving us with legacy of concealed ambivalence on the question of lawyers' "duty to do justice" in civil cases.

Duncan Kennedy's unpublished classic, The Rise and Fall of Classical Legal Thought, finds its way into print

The "most widely circulated and cited unpublished manuscript in twentieth-century American legal scholarship since Hart & Sacks' Legal Process materials" has been published. The Rise and Fall of Classical Legal Thought by Duncan Kennedy, a classic written in 1975, has been released by Beard Books. Here's the book description:

It began the re-evaluation of law in the Gilded Age, and gave it its current name of Classical Legal Thought. It was also one of the first and most influential of the works that introduced European critical theory and structuralism into the study of American law. This reprint comes with a substantial new Introduction that puts the work in context and relates it to current scholarship in the field. It should interest historians generally as well as readers curious about how our legal system got its special modern character. (The opening quotation is from legal historian G. Edward White.)

Duncan Kennedy is the Carter Professor of General Jurisprudence at Harvard Law School. He was one of the founders of the critical legal studies movement.

An earlier version of Kennedy's work can be found on-line here (scroll down). A bibliography of his writings can be found here.

Festa, Dueling Federalists, on how the Supreme Court cites The Federalist, 1986-2007

More from Matthew J. Festa, VAP at South Texas College of Law and the University of Georgia School of Law, on the way courts use history. This time: Dueling Federalists: Supreme Court Decisions with Multiple Opinions Citing 'The Federalist,' 1986-2007. The article is forthcoming in the Seattle University Law Review. Here's the abstract:

The use of history to interpret the law remains controversial, especially when historical evidence and arguments are used in Supreme Court opinions. While more commonly associated with a conservative or originalist jurisprudence, historical sources are in fact cited often by lawyers, academics, and judges from across the ideological spectrum in support of their legal reasoning. Perhaps the single most popular source for interpreting the U.S. Constitution is the collection of essays by Hamilton, Madison, and Jay known as The Federalist; no historical source has been cited more frequently by the Justices of the Supreme Court. This Article illuminates these issues by measuring a particular phenomenon: Supreme Court cases where multiple opinions cite the same historical source, The Federalist, even though the authoring Justices disagree on the outcome of the case. I measure the frequency of such cases from the beginning of the Rehnquist Court, which is often associated with the beginning of modern normative debates over originalism. In nearly one-fifth of all cases where one Justice cites The Federalist, a dissenting or concurring Justice also cites The Federalist to express a different interpretation of historical meaning. Furthermore, both liberal and conservative Justices cite The Federalist at comparable rates. These findings challenge the notion that only one side of a legal issue, or proponents of one judicial philosophy, can or should invoke historical support such as The Federalist. They also indicate the strong appeal of historical authority to the Justices even when their opinions reach opposing or conflicting results. Further research may reveal more information about how history can be most appropriately and effectively used to interpret law.

"The Google of African American History"

BlackPast.org, according to Elizabeth Grant of the AHA Blog, "has so much quality information in one place, this site just might be justified in calling itself 'the ‘Google’ of African American history.'" The site is organized by Quintard Taylor, Scott and Dorothy Bullitt Professor of American History, University of Washington.

According to BlackPast: This site is dedicated to providing reference materials to the general public on six centuries of African American history. It includes an online encyclopedia of hundreds of famous and lesser known figures in African America, full text primary documents and major speeches of black activists and leaders from the 18th Century to the present. There are also links to hundreds of websites that address the history of African Americans including major black museums and archival research centers in the United States and Canada.

From the AHA Blog feature: This site features an online encyclopedia containing 800 plus entries, transcripts of speeches from 1789 to 2004, collections of links and info on hundreds of other resources, and so much more. Peruse the Digital Archives and find links, separated by state, to sites like the Library of Congress exhibition "Voices of Civil Rights;" the Booker T. Washington papers from University of Illinois Press; and Indiana University’s Archives of African American Music & Culture. Visit the Timeline section of the site for breakdowns of African American history for each century. And check out the Perspectives on African American History for personal accounts and articles on events like the Brown v. Board of Education ruling, the rise of hip hop in Eastern Europe, and a lynching in Obion County, Tennessee.

Also to be found are links to the Schomburg Center for Research in Black Culture and other important research sites. There is much to find through this valuable web portal.

Image credit: American Sketches: A Negro Congregation in Washington. Artist unknown. Wood Engraving, Illustrated London News, November 18, 1876. LC-USZ62-50584.

Festa on Applying a Usable Past: The Use of History in Law, through the Law of Evidence

Matthew J. Festa has posted a rather timely new article, Applying a Usable Past: The Use of History in Law. It is forthcoming in the Seton Hall Law Review. The author is a Visiting Assistant Professor at both South Texas College of Law and the University of Georgia School of Law. Here's the abstract:

This Article explores issues raised by the controversial uses of historical evidence to interpret the law, both in legal practice and in scholarship. I argue that instead of requiring lawyers to wholly incorporate the professional standards of academic historiography, the most likely way (as a practical matter) to increase the quality of "lawyers' history" is to pay greater attention to principles of evidence law in historical analysis. Many have criticized the practice of writing "law office history," where lawyers not trained in historical method appeal to the authority of history for the purpose of making persuasive legal arguments. Conversely, others have aimed criticism at the historical profession for cloaking advocacy as scholarship. But the fact is that from judges to law professors, from practicing attorneys to laypersons, and from all areas on the political and ideological spectra, many Americans do conceive of the law in historical terms. Because of this, the use of history in law will never go away.

Historians and legal professionals have also clashed over whether and how history can be used to interpret the law. I conceive of the issue as one of disciplinary "jurisdictional" boundaries, where the legal and historical professions are each faced with the question of what to do when their subject matter overlaps. The apparent tension is easier to understand when it is cast as a contrast between competing professional standards: the historians' teleological goal of determining truth through objectivity, versus the legal system's goal of arriving at truth through adversarial practice. But advocacy and objectivity - seemingly at cross-purposes - both are in the larger sense systemic endeavors to gain the most just and accurate understanding of past events, based on appeals to authority and interpretation. Placing the issue in that framework helps us understand that jurisdiction over historical evidence need not be a turf battle or a zero-sum game, but an overlapping, or at best, collaborative venture.

There are several possible approaches for reconciling the standards of history with law, but most that have been suggested before are generally unrealistic or implausible. We already have a workable analytical tool, however, for evaluating historical claims at law: the law of evidence. While one possible approach toward improving the quality of historical evidence might be to use only court-appointed historical experts (in pursuit of objectivity), such a practice might only exacerbate the existing problems associated with using history in law. Rather, the legal system should treat historical evidence just like evidence from other areas of expertise: as evidence that a party may offer, which the court can determine whether it meets baseline criteria of professional reliability, and then consider and evaluate for admissibility, credibility, and persuasiveness; if another party disagrees, it is free to challenge that historical evidence on the merits or to offer its own more persuasive interpretation. A combination of both adversarial and objective historical expertise, constrained by basic principles of evidence law, along with a greater attention to professional historical standards, can give us a workable (if not perfect) framework for using history reliably in legal interpretation. This can be applied in the litigation process and, by extension, in scholarship.

Was the Industrial Revolution caused by Evolution?

Were we naturally selected to be capitalists? "Gregory Clark, an economic historian at the University of California, Davis, believes that the Industrial Revolution — the surge in economic growth that occurred first in England around 1800 — occurred because of a change in the nature of the human population," Nicholas Wade writes in today's New York Times. Hat tip.

The change was one in which people gradually developed the strange new behaviors required to make a modern economy work. The middle-class values of nonviolence, literacy, long working hours and a willingness to save emerged only recently in human history, Dr. Clark argues. Because they grew more common in the centuries before 1800, whether by cultural transmission or evolutionary adaptation, the English population at last became productive enough to escape from poverty, followed quickly by other countries with the same long agrarian past.

Dr. Clark’s ideas have been circulating in articles and manuscripts for several years and are to be published as a book next month, “A Farewell to Alms” (Princeton University Press). Economic historians have high praise for his thesis, though many disagree with parts of it.

“This is a great book and deserves attention,” said Philip Hoffman, a historian at the California Institute of Technology. He described it as “delightfully provocative” and a “real challenge” to the prevailing school of thought that it is institutions that shape economic history....

The basis of Dr. Clark’s work is his recovery of data from which he can reconstruct many features of the English economy from 1200 to 1800. From this data, he shows, far more clearly than has been possible before, that the economy was locked in a Malthusian trap _ — each time new technology increased the efficiency of production a little, the population grew, the extra mouths ate up the surplus, and average income fell back to its former level.

Clark wondered whether the escape of the Malthusian trap had come about through natural selection. His data caused him to reject the idea that evolution toward disease resistance provided the answer. Instead, an analysis of English wills showed that:

Generation after generation, the rich had more surviving children than the poor.... That meant there must have been constant downward social mobility as the poor failed to reproduce themselves and the progeny of the rich took over their occupations. “The modern population of the English is largely descended from the economic upper classes of the Middle Ages,” he concluded.

As the progeny of the rich pervaded all levels of society, Dr. Clark considered, the behaviors that made for wealth could have spread with them. He has documented that several aspects of what might now be called middle-class values changed significantly from the days of hunter gatherer societies to 1800. Work hours increased, literacy and numeracy rose, and the level of interpersonal violence dropped.

Hmmm. Continue reading this interesting Science Times article here (or page D1 of your NYT).

We can easily imagine holes in the newspaper article version of this argument, but of course we haven't seen the book, which promises to be important and provocative, whether wrong or right. Keep an eye out for reviews, in this space and your favorite papers, appearing with the book next month.

Madeira on Bowers, Lawrence and the Mismeasure of Homosexual Historiography

Jody Lyneé Madeira, Indiana University -- Bloomington, has posted an article that speaks both to constructions and uses of "homosexual historiography," and to the broader question of such great current interest: uses of history by courts. Rebuilding the Closet: Bowers v. Hardwick, Lawrence v. Texas, and the Mismeasure of Homosexual Historiography appeared in the Richmond Journal of Law and Public Interest. Here's the abstract:

In an effort to engage in such specification, this paper will first address the mischaracterization of history in Bowers, which portrays the historic legal and ecclesiastical penalties of what the Court labels as "homosexual activities" as a continuous, unitary narrative extending from the halls of the Emperors Theodosius and Justinian to the legislative assembly rooms of Georgia and Texas. This illusory perspective portrays the criminalization of sodomy (and therefore the identity of homosexuality itself) as an impossible cultural continuum. The impossibility of this continuum lies not only in its implicit assumption that states and other lawmaking entities throughout history shared the same cultural, moral, religious, and legal principles, but also in its unqualified adoption of the secular state as the successor to religious authority and the seamless secular synthesizing of penitential prohibitions against sexual sin into secular prohibition against sexual crime. This paper will not only demonstrate that the Bowers conception of history as a continuum is in reality a series of discrete communal units, but will also show that the confines of this continuum emphasize only the horizontal progression of time, quashing significant differences in the authority of the entities who enact the laws and more importantly in the laws themselves. This paper will then elaborate upon other broader difficulties with the Bowers decision - difficulties that are characteristic of many homosexual historiographies. The first of these conundrums, the erroneous assumption that sodomy statutes of past centuries were a former species of anti-homosexual legislation, arises from the historic implications of the Court's conflation of homosexual status with the act of sodomy. The second and third of these topics, the collapse of morality into legality and the subsequent collapse of the legal into the social, also necessarily follow from the Court's collapse of status into act. Each of these three conflated concepts will be addressed in the context of the prior historical discussion of legislation prohibiting same-sex activity from Republican Rome to modern America. The paper will then describe how Bowers' faulty historiography was not merely a series of uninformed generalizations but a conscious strategy dictated by the Court's originalist platform that was developed to uphold the majority's interpretation of Georgia's anti-sodomy statute. Finally, the paper will conclude by explicating what impact the language of Lawrence v. Texas will have on future constructions of homosexuality and its histories.

Civil Rights Pioneer Oliver Hill dies at 100

"Oliver W. Hill, 100, a Virginia lawyer who helped overturn legal segregation in his native state and was one of the country's foremost civil rights defenders during a six-decade career, died yesterday at his home in Richmond. He had a heart ailment," writes Adam Bernstein in today's Washington Post.

Hill was an instrumental member of an NAACP-affiliated legal team that persistently attacked segregation. He also was a lead lawyer on a Virginia case later incorporated into Brown v. Board of Education, the 1954 case in which the U.S. Supreme Court declared segregated schools unlawful....

Hill, who was raised in Washington and graduated from Dunbar High School, spent his public life in Richmond, where he first won widespread attention in 1948 as the first black person elected to the City Council in 50 years. Although his term in office was short, his civil rights legacy proved far more enduring because of his role as a lead lawyer in Davis v. County School Board of Prince Edward County, Va., one of the five cases the U.S. Supreme Court combined into its landmark Brown v. Board of Education ruling. [Thurgood] Marshall was the lead lawyer in the high court case.

Hill's involvement in the Davis case began through his affiliation with the NAACP Legal Defense and Educational Fund, and he worked closely with a team that included Marshall; Howard Law School Dean Charles Hamilton Houston, who had been a mentor to Marshall and Hill; and Spottswood W. Robinson III, a future Howard law dean and chief judge on the U.S. Court of Appeals for the D.C. Circuit.

Their goal was to challenge more than the existing "separate but equal" system of public facilities that had been created with the U.S. Supreme Court's 1896 decision in Plessy v. Ferguson.

In 1951, Hill and Robinson took up the cause of students at an all-black high school in Farmville, Va., who had gone on a two-week strike to protest the leaky roof and other substandard conditions of the tar-paper building. This became the Davis case.

During and after the Brown decision, Hill remained an instrumental force in developing legal strategies during Virginia's "massive resistance" to desegregation, in which many public schools closed rather than admit blacks....


He told the publication Human Rights in 1994: "I can't understand why Americans are willing to send their children -- black and white -- to foreign lands to fight, and sometimes die, to preserve the American concepts of freedom, democracy and civil rights, when at the same time these same Americans are unwilling to undergo an occasional inconvenience or suffer a slight financial loss to help break down racial barriers and racial discrimination in this country."

The full story is here. An interview with Hill is here. A link to his Presidential Medal of Freedom webpage is here. Information about the Oliver Hill Foundation is here. A slideshow is here. The Wall Street Journal law blog has other good Richmond Times-Dispatch links here.

Image credit: Spottswood W. Robinson III, George Leakes, Elaine Bowen, and Oliver Hill. 1950s. NAACP Papers, Library of Congress. LC-USZ62-118180

Reviewed: Martelle, Blood Passion: The Ludlow Massacre and Class War in the American West

"The right to bargain collectively has been enshrined in federal law for decades," Michael O'Donnell writes in a review of a new book in today's San Francisco Chronicle. "But the Ludlow Massacre nevertheless serves as a cautionary tale about unregulated labor markets, not to mention an intense and dramatic moment in American history."

O'Donnell reviews Blood Passion: The Ludlow Massacre and Class War in the American West (Rutgers University Press) by Scott Martelle. He writes, in part:

The photograph shows two straight lines of mourners marching over fresh snow, snaking back through the rugged company town toward the mountains. The picture was taken almost 100 years ago, but you can still see the cold: The gray sky moves by hugely overhead, and chimneys blow smoke; the men - they are almost all men - wear hats and slump at the shoulders, and the horses' glistening flanks give off steam. The mourners follow a carriage bearing the body of Louis Tikas, a Greek union organizer who helped lead coal miners on a failed 15-month strike against the Colorado Fuel and Iron Co. in 1913 and 1914. Tikas was captured by company thugs during a gunbattle, disarmed, cracked in the skull with a rifle butt and shot in the back three times....

The Colorado miners had more to avenge than one fallen rabble-rouser. For seven months they had been on strike and in a state of more or less open insurrection. Kicked out of their company homes when they walked off the job, they built a tent colony for themselves and their families. But after months of guerrilla war and shootouts with the Baldwin-Felts detectives hired to protect the mines and the strikebreakers, the miners were rousted from their camp. Company men machine-gunned the tents and then set the place ablaze. Two women and 11 children who had been hiding underneath a tent in a foxhole that doubled as a birthing parlor suffocated as the fire overhead sucked up all the oxygen. Tikas was killed later that day....

More than 75 people died during the coal strike in Colorado (more than half of them company guards), making it one of the most violent episodes in American labor history. Too frequently, events surrounding the Ludlow Massacre have been the subject of one-dimensional folklore rather than serious analysis. Howard Zinn, for instance, wrote admiringly of "the undeterred spirit of rebellion among working people" who rose up against their oppressors and fought hard against the company. To Scott Martelle, a reporter for the Los Angeles Times, the miners seemed anything but valiant as they mobbed in their hundreds around a strikebreaker's wife, throwing rocks and screaming imprecations. Or when they assassinated company men at point-blank range....

If Martelle's book, "Blood Passion," refuses to give a free pass to the Ludlow strikers, it is by no means a shill for management. The company hired hundreds of unsavory men who baited the strikers, searched their tents without warrants and tortured prisoners held without charge. Colorado Fuel and Iron was a Rockefeller concern, and the absolute refusal to recognize the union or hold negotiations came from the top.

To continue reading, click here. A review of another recent book on Ludow is noted here, with photos and links.

Overcoming Women's Wiki-Invisibility

It's not just that Wikipedia needs your help, with incomplete law-related entries, as previously noted. IntLawGrrls points out that women's Wiki-Invisibility -- the absence of coverage of women in the law on the web -- reinforces women's invisibility. IntLawGrrls posts on the issue of women in international law, specifically the absence of information on women serving on the Inter-American Court of Human Rights. But clearly this is an important issue affecting the visibility of women and the law more generally, including women's legal history.

There are superb resources, especially Barbara Babcock's Women's Legal History Biography website. But as Diane Marie Amann suggests, it would be a great project for enterprising law students to take up improving and expanding the number of entries related to women's legal history on Wikipedia. Just one example, there is an entry for Judge Florence E. Allen of the Sixth Circuit Court of Appeals, the first woman to be appointed to an Article III court, but it is "a stub," and much less interesting than Allen's life story.

To get started, try going to History WikiProjects, and follow the links from there.

Reviewed: Kluger, Seizing Destiny: How America Grew from Sea to Shining Sea

SEIZING DESTINY: How America Grew from Sea to Shining Sea, by Richard Kluger, is reviewed this week in the Washington Post and the New York Sun. Patrick Griffin's review for the Sun is more satisfying, setting the book in its needed context: the Turner thesis. Griffin writes, in part:

When did America's mythic push West get under way? When did we become an imperial nation?...

Equally challenging is the question of why expansion happened. We have all sorts of explanations for this question. At one extreme, some argue, as did the historian Frederick Jackson Turner more than a century ago, that the nature of the frontier spurred expansion. Pushing forward a line separating savagery and civility created a democratic ethos and the compulsion to spread civility further. At the other end of the spectrum, others argue that some essential European trait such as restlessness, the desire to be free, greed, or racism -- what historians once characterized as a European "germ" that could overpower the American environment -- explains why Americans would look to the West....

Richard Kluger, a Pulitzer Prize winner and author of a marvelous book on the history of Brown v. Board of Education, now enters the fray with "Seizing Destiny: How America Grew from Sea to Shining Sea" (Knopf, 672 pages, $35). This is a massive tome, offering a reading, or better a litany, of the events, pressures, and dynamics that led Americans to seize a continent, and even to dream of super-continental conquest. Mr. Kluger boils down a complex set of processes to this: Europeans, particularly Englishmen and women, freed by the Reformation and the Enlightenment from feudal strictures to think of themselves as individuals became storm troopers for British imperial, and later American national territorial expansion.

For Mr. Kluger, this impulse of personal independence impelled westward movement, and great proponents of expansion, such as Benjamin Franklin and Jefferson, amplified the inevitable. The availability of land, and the willingness to ignore Indian claims to it, allowed this sensibility to flourish. From the earliest Elizabethan sea dogs like Walter Raleigh, and the poor men that sailed with them, to the troops sent down to topple Manuel Noriega, and all points in between, Americans felt justified in becoming lords of all they surveyed....

Expansion for Mr. Kluger has an irresistible quality....America's common conquistadores and grand visionaries such as Jefferson, Franklin, and Theodore Roosevelt conquered and settled a continent because of the seeming limitlessness of land and their belief that they had a divine mandate to do so.

In some ways, Mr. Kluger's answers to the critical questions of expansion appear much like Frederick Jackson Turner's. The frontier created Americans. On the other hand, he embraces the merits of the germ thesis as well. The ready temptation of land allowed these New World people to become what the Old World had prepared them to be: grasping conquerors. This sense of inevitability does not make for a novel or sophisticated interpretation, and the book does not pause over contingencies. But in fairness, Mr. Kluger does not take a triumphalist tone while covering an impressive amount of historical ground. While we don't find new answers to critical questions in "Seizing Destiny," the questions themselves are the right ones to ask.

The full review is here.

J. Willard Hurst Prize to Nancy MacLean for Freedom is Not Enough

Nancy MacLean, Department of History, Northwestern University, is the 2007 winner of the J. Willard Hurst Prize for the best book in American Legal History, awarded by the Law and Society Association. Her book is Freedom is Not Enough: The Opening Up of the American Workplace (Harvard University Press).

Michael Grossberg, Indiana University, chaired this year's committee. Committee members were: Elizabeth Dale, University of Florida; Lawrence Friedman, Stanford University; Joanna Grossman, Hofstra University; David Konig, Washington University; and Sanford Levinson, University of Texas.

The committee called Freedom Is Not Enough "a rich and convincing tale about the centrality of workplace rights in the post World War II quest for civil rights in the United States. Taking her title from lines in a 1965 speech by Lyndon Johnson’s 1965 at Howard University, MacLean has written a fascinating narrative of grassroots struggles for workers’ rights that illuminates the links between gender, race, ethnicity, and political movements. Her stories, drawn from substantial archival research, are filled with telling examples of individual struggles by African-Americans, women, and Mexican-Americans against what she terms the ‘culture of exclusion.’ Through these stories she chronicles the efforts to implement path-breaking civil rights legislation and judicial decisions on the shop floor, construction site, and farm field as well as in the streets and the courts. At the same time, she insightfully weaves into her chronicle the conservative counterattacks that arose in response to each campaign for workplace diversity. She shows how this increasingly effective backlash combined with ineffective efforts to enforce antidiscrimination laws to limit drives for workplace equity and shift the public debate from affirmative action to reverse discrimination and quotas. MacLean places these intertwined stories in a broad political, cultural, and economic context that makes a significant contribution to our understanding of the interplay between law and society in the recent past. In doing so, Freedom Is Not Enough simultaneously illuminates and complicates our understanding of contemporary clashes over civil rights in America.”

The Hurst Prize Committee also recognized Université Laval historian Donald Fyson for his book Magistrates, Police, and People, Everyday Criminal Justice in Quebec and Lower Canada, 1764-1837 (University of Toronto Press), with an Honorable Mention. The citation reads: “Magistrates, Police, and People is a deeply researched and theoretically ambitious local study of criminal justice under shifting colonial regimes. Championing a revisionist social history, Fyson argues persuasively that everyday legal experiences are critical to understanding the nature of the legal process in any particular place and time. Through telling examples and compelling analyses, he demonstrates how local history can illuminate a broad legal landscape.”

Wikipedia wants your help

Well...history blogger Ralph Luker notes that since Wikipedia plays such an important role in history education, some historians are working to improve it, playing important roles in Wikiprojects in particular fields of history. It turns out, there are also Wikipedia projects in law that seek to improve Wikipedia's law-related listings.

Some of the difficulties in the writing/editing process have been noted elsewhere. And I am not departing from my views about judges and legal scholars citing to Wikipedia in published works.

But those having an interest in improving law and legal history-related Wikipedia entries would be doing a service.

Here's where you're needed:

WikiProject Law

WikiProject International Law

Wikiproject Australian Law
(This is the only Wikiproject related to the law of a particular nation. Perhaps others are needed?)

Also, I've noticed that Thurgood Marshall's Wikipedia entry begins with this note:

"This article does not cite any references or sources. Please help improve this article by adding citations to reliable sources. (help, get involved!) Unverifiable material may be challenged and removed. This article has been tagged since May 2007."

There are many terrific, easy to find, sources on Marshall -- some linked to from this blog (just do a search) -- but some on-line bios are inaccurate.

If you know of other specific law/legal-history related Wiki-entries in need of help, please post a comment.

Ransband and Garrett rethink Public Land Policy

James R. Ransband and Megan Garrett, both of Brigham Young University, have posted a new paoer, A New Era in Public Land Policy? The Shift Toward Reacquisition of Land and Natural Resources. Here's the abstract:

Traditionally, the history of public land law has been divided into periods of acquisition, disposition, a shift to retention, and then a period of management. The paper reviews these historical demarcations of public land law and then asks whether we have entered a new period of public land policy that might be termed a period of reacquisition. The paper considers the 19.8 million acre increase in the public land base (outside Alaska) since the 1964 passage of the Land and Water Conservation Fund and the Wilderness Act. It details this federal acquisition under the Land and Water Conservation Fund, by way of land exchanges, and under a variety of other statutes. The paper also suggests that the 37 million acres of land protected under the land trust and conservation easement movement can also be understood as part of this shift to reacquisition because of substantial federal tax expenditures in the form of deductions for conservation easements. Finally, the paper considers whether federal regulation can be characterized as a form of public reacquisition, even if the underlying fee is retained in private ownership, because the regulation shifts control over land and natural resources away from private parties and to the public. The paper, for example, considers whether Section 404 of the Clean Water Act might be understood as akin to a reverse of the federal Swamp Lands Grant Acts of the Nineteenth Century.

Senkewicz reviews Mullen, Dangerous Strangers: Minority Newcomers and Criminal Violence in the Urban West, 1850-2000

Kevin J. Mullen, Dangerous Strangers: Minority Newcomers and Criminal Violence in the Urban West, 1850-2000 (Palgrave Macmillan, 2005) is reviewed for H-Urban by Robert M. Senkewicz, Department of History, Santa Clara University. Hat tip. Senkewicz writes:

Over the past decade and a half, a number of historians have been writing about violence in the West, especially in California. It would be too much to call them a formal group, for their concerns, focus, and interpretations do not always agree. But the works of these scholars, including John Boessenecker, William Secrest, and Clare McKanna, Jr., have served to elevate the quality of writings on California violence, and to impart greater quantitative precision and conceptual clarity to this easily caricatured subject. Kevin Mullen, the author of an important book on the San Francisco Committee of Vigilance of 1851, is one of these writers.

Much of this writing has examined the nineteenth century. But in Dangerous Strangers: Minority Newcomers and Criminal Violence in the Urban West, 1850-2000, Mullen dramatically expands the chronological sweep and looks at criminal violence in San Francisco from the time of its origin as an American city until the dawn of the new millennium.

The most impressive achievement of this volume is the primary research that went into it. Mullen has constructed his own database of "the almost 7000 criminal homicides that occurred in San Francisco from 1849 to 2000" (p. 146). He does this, as he carefully explains, because he agrees with many criminal justice researchers that homicide is "an index of the amount of criminal violence generally" (p. 2). Since many of the public records of San Francisco were destroyed in the fire that followed the 1906 earthquake, the creation of this database was not an easy task. Mullen exhaustively read the daily newspapers for the 1850s. He perused the municipal reports that began in the 1860s, waded through various coroners' tallies, combed the statistics in the city health department summary reports, and supplemented all this with this further readings in the city's newspapers. Mullen reports that this unique database has been archived at Ohio State University's Criminal Justice Research Center, where it is available to other researchers. The database can be accessed here, where it is marked as "Data Set 4." There one can find details on 6974 criminal homicides in San Francisco, from June 21, 1849 to December 19, 2003.

In this book, Mullen focuses on a series of what he terms "minority newcomers," and examines their contributions to criminal violence in San Francisco. He looks at Australians in the early days of the gold rush, at Latinos in the 1850s, at the Irish in the nineteenth century, at the Chinese between 1870 and 1930, at the Italians from the 1880s to the 1930s, and at African-Americans, generally in the post-World War II era. He finds that each group was overrepresented in the commission of criminal violence during the period he studies. He then poses two lines of inquiry. First, he seeks to examine "to what extent the criminal violence emanates from the culture of the group involved, as distinguished from that which is the result of the mistreatment of a minority group by the majority society." Second, he considers "the extent to which police practices influence levels of criminal violence." In short, he finds that "high rates of criminal violence can be attributed more to the group's culture than is generally believed." Also, "what police do--or do not do--affects the level of violence in a community" (p. 2)

There is much that is commendable in Mullen's work. The volume's broad sweep, for instance, allows him to offer suggestive comparisons between various groups, such as between the Chinese and the Italian immigrant experience in San Francisco and to draw interesting and important contrasts between the Italian experiences in San Francisco and Chicago. Mullen is sensitive to the ways in which changes in the structure of Irish society affected the social conditions and experiences of those who emigrated from there to the United States in the later nineteenth century. Most importantly, his own background as a San Francisco police officer allows him to write with clarity and verve about the changing policies of the city's police chiefs and the evolving procedures of the police department as it struggled to find ever more effective ways to combat crime and to keep abreast of the technologies, such as the automobile, which for a time gave a tremendous advantage to some of the city's criminals. These sections are some of the best in the book.

However, in my judgment the volume also suffers from a few deficiencies, which combine to weaken the overall quality of the work.

First, the notion of the culture that the various immigrants brought with them tends to be simplistic. The basic procedure Mullen follows is to cite a few secondary sources that describe a violent aspect of a country or region (such as brigand gangs in northern Mexico in the late nineteenth century, the Triad gangs in southern China, the Black Hand in Italy, or violence in the American rural South), then quickly to conclude that the immigrants who actually came to San Francisco brought these types of violence with them, and that this phenomenon goes a considerable (but unspecified) distance toward explaining what he finds in the database. Such complicated assertions demand a much more complex series of arguments.

Second, the social and historical context is uniformly weak. The narrative appears generally unaffected by much recent historical scholarship on the history of San Francisco, especially in the late nineteenth and the twentieth centuries. One looks in vain in the bibliography for works by Robert Cherny, William Issel, Michael Kazin, William Bullough, or others. The result is that the minority newcomers are treated in an insular fashion, with little relation to or interaction with the social, cultural, economic, or political life of the city.

Third, the very concepts of "minority newcomers" and "host society" are extremely problematic in reference to the tumultuous and multicultural milieus that constituted both Gold Rush California as well as the instant city of San Francisco that was its commercial hub. Australians and Latinos, far from being newcomers to the gold rush, were in fact early arrivers. A considerable part of the resentment against them stemmed from the fact that when the Atlantic-based 49ers finally arrived in California in later 1849 and after, they found that people from the Pacific Rim, who did not have to come around the horn or endure a long overland trek, were already there. To call the later arrivals the "hosts" is to miss this reality and to impose on Gold Rush society a dynamic that was not there....

Fourth, the dichotomy that Mullen uses to structure his investigation is not one that he is able to sustain throughout the work. He tends to put the matter is stark "either-or" terms. Minority newcomers were criminals either because they were treated harshly by the host society, or because it was part of their culture. As he puts it, he is attempting to determine "to what extent the criminal violence can be credited to their treatment by the host community and how much can be traced to traits found in the immigrant community" (pp. 64-65). But, as the book goes on, Mullen finds himself adopting an explanation that uses neither pole of his dichotomy, but rather emphasizes the difficulties that second-generation immigrants had in adjusting to their society. He finds much of the violence in Irish, Italian, and African American communities to have been committed by the sons of the immigrants, and his explanation is social: "Some of the increase in violence in those eras can be traced to the second-generation hoodlums, those not fully assimilated into the new society but out of sorts with the values of the older members of their communities" (p. 116). This approach leaves behind the simple dichotomy around which Mullen organizes much of the book, and it is a pity that he did not attempt to develop it more fully.

But here we return to the great value of the book: the publicly available database. In August 2006, Mullen's book was the subject of a session at Pacific Coast Branch meeting of the American Historical Association. Three academic experts offered thoughtful and nuanced critiques of Mullen's work. Mullen responded well and reiterated the major points in the book. He then noted that, in freely posting his sources on line, he has provided other researchers with the very sources with which they can challenge his findings. He hoped that others would continue this research and advance the scholarship on the controversial and important topics highlighted by his book. This is a noble hope and it testified to the fundamental generosity of spirit that underlies this significant work.

The full review is here.

Sherwin on Law, Metaphysics and the New Iconoclasm

Richard K. Sherwin, New York Law School, has posted a new essay, Law, Metaphysics and the New Iconoclasm. It is forthcoming in the journal Law Text Culture. Here's the abstract:

Is seeing believing, or does the image deceive us? Must we look 'through' the image to get at unadulterated truth, or have we no choice but to make do with endless simulacra? Bruno Latour describes this uncertainty as “iconoclash.” We need the image, yet we fear it. We accept truth's dependence upon mediation, yet we yearn for meaning's unmediated purity.

In its yearning to discard imperfection, the iconoclastic impulse risks the twin dangers of nihilism on the one hand (“It's all constructed”) and fundamentalism on the other (“let transcendent truth shine through”).

Today's iconoclash is, at least in part, the offshoot of new digital communication technologies. These technologies have led to an unprecedented proliferation of images coupled with an equally unprecedented capacity to control the simulation of reality. Political and legal discourse has embraced these technologies together with the visual rhetorical strategies that they allow. As a result, law and politics have also inherited the same metaphysical anxieties that pervade society as a whole, for now they too must cope with concerns about our collective ability to distinguish truth and fiction, reality and fantasy, reason and desire.

Positivism, instrumentalism, and the ideology of the marketplace have failed to acknowledge, much less affirmatively respond to the challenges of iconoclash and the metaphysical impulses that underlie it. Given the growing uneasiness regarding the Liberal state's capacity to fulfill its own conventional standards for legitimacy, it is time to rethink the role of metaphysics in the quest for legitimating values.