Saturday, May 23, 2015

Weekend Roundup

  •  The National History Center's updated guide to researching in the National Archives is here.
    Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

    Friday, May 22, 2015

    Three by Ariens on the History of Legal Ethics

    Michael S. Ariens, St. Mary's University School of Law, has posted three papers on the history of legal ethics.  The first is Lost and Found: David Hoffman and the History of American Legal Ethics, from the Arkansas Law Review 67 (2014):
    David Hoffman was a successful Baltimore lawyer who wrote the first study of American law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

    How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A lawyer acted honorably if his actions were morally sanctioned. Thus, Hoffman concluded a lawyer should refuse to plead the statute of limitations because, though legal, such action was dishonorable. When Hoffman wrote his maxims of legal ethics, the concept of honor was being displaced by individualism. The test of lawyer behavior became private conscience rather than public honor. This turn was accompanied by a second shift, in which lawyers accepted that legal ethics differed from public morality. Though an “officer of the court,” the lawyer’s foremost duty was to serve his client’s private interests, and the lawyer was not morally accountable to the public for the client’s goals. One consequence of these changes was the profession’s agreement that lawyers owed a duty to their clients to plead all legal claims and defenses. This vision left Hoffman behind.

    Hoffman was found in response to a crisis within the modern American legal profession. By the late 1970s, many lawyers feared that the liberal ideal of the lawyer as a morally neutral, zealous agent (or “hired-gun”) effectuating a client’s goals ignored the lawyer’s duties to the public. This crisis was exacerbated by two events: Watergate, in which lawyers blindly followed the demands of their client, the President, to society’s detriment, and the ABA’s decision in 1978 to replace its 1969 Code of Professional Responsibility, because the Code embraced the “fiction” that ethical issues were “matters of ethics rather than law.” Because Hoffman concluded a lawyer’s duty to a client was limited by his duties to society, he was used as a relevant, historical example of an ethics of advocacy contrary to the “standard conception” of liberal neutrality. Hoffman was a touchstone justifying an ethics of virtue, of lawyers serving the ends of justice, not merely serving their client’s goals.
    The second is Brougham's Ghost, North Illinois University Law Review 35 (2015):
    In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

    This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to a client, nor did it represent a traditional view within the American legal profession. It was consciously rejected in nearly all writings of American lawyers for most of American history, and was not explicitly embraced until the 1970s. Reminding lawyers of the duty of zealous representation was promoted in the 1960s in part to solidify the Supreme Court’s Constitutional Criminal Procedure revolution, for only zealous lawyers could protect the rights of the criminally accused. Brougham’s ethic of advocacy was used to provide a historical justification for a revived zeal in criminal defense practice, an effort to make those lawyers more professional. This justification was transformed in the 1970s by two events: first, the American legal profession became enmeshed in a professionalism crisis as a consequence of the Watergate affair. Second, that professionalism crisis was exacerbated by a fear of diminishing economic prospects for American lawyers.

    This essay is divided into three parts. First, it offers a full assessment of Brougham’s representation of Queen Caroline. Second, it traces the published and negative reaction of American lawyers to Brougham’s statement of the duty of zealous representation from the 1840s on. Third, the essay explains why the consistent rejection of Brougham by American lawyers became the “classic statement” of the duty of the advocate beginning in the 1970s.
    The third is The Agony of Modern Legal Ethics, 1970-1985, St. Mary's Journal of Legal Malpractice and Ethics 5 (2014): 134:
    When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United States and the Soviet Union. Relatedly, American lawyers argued they possessed a central role in maintaining the rule of law. From the 1950s through the mid-1960s, the popular image of lawyers may have peaked. It was at this time that the ABA began its work to update the 1908 Canons of Ethics. The ABA’s adoption of the Code of Professional Responsibility in 1969 was the first significant reformulation of a lawyer’s code of ethics, and was intended to demonstrate that lawyers deserved the trust placed in them by American society. The ABA’s adoption of the Code, and its quick acceptance by most states as law, were the last acts in a "golden age."

    By 1974, the American legal profession was reeling from the turmoil of the late 1960s, followed by the Watergate affair and an economic downturn that adversely affected many lawyers. The larger legal profession was buffeted by a series of lawsuits alleging antitrust violations by the ABA and state bar organizations, and the Supreme Court held in 1977 that a ban on lawyer advertising for ethical reasons was unconstitutional. Although some lawyers did exceedingly well economically during the 1970s, many struggled. In late 1977, the President of the ABA called for the Code’s replacement. Shortly thereafter, the ABA’s House of Delegates approved the nomination of the members of the Kutak Commission, which was handed this task. During the half-decade effort to craft the Model Rules of Professional Conduct, the problematic ethical behavior of lawyers continued to make national news. Within the profession, a significant segment of the Bar rejected the structure and tenets of the Code, demanding a "modern" code of legal ethics befitting the needs of modern lawyers. Another segment of the lawyer population challenged the particular vision within the Code of the ethical duties of lawyers in representing clients. When the ABA adopted its Model Rules of Professional Conduct, it replaced a code that combined rules and aspirations with an approach that merely set a floor regarding lawyer conduct. The drafters of the Model Rules intentionally created a law of lawyering that supplanted an ethic of lawyering. Much more so than the Code, the Model Rules ushered in the modern understanding of lawyer.

    This Article examines a crucial period in the history of American legal ethics, 1970-1985. Its thesis is that a shallow, though broad, consensus among American lawyers concerning the ideals of legal professionalism dissolved during the 1970s. An ideological dissensus, propelled by the scandalous behavior of some Executive Branch lawyers in the Watergate affair, joined by a heightened fear of economic torpor, shattered the post-World War II profession’s accepted self-definition.

    The Model Rules of Professional Conduct implicitly acknowledged this ideological disagreement, a disagreement that has coursed through the history of the American legal profession from the late 1970s to the present.

    Politics, Administration, and Fair Employment Practices

    How Did It Operate?  Without Coercive Power.
    Library of Congress
    One of Forging Rivals' chapters focuses on the history of the San Francisco Commission on Equal Employment Opportunity (CEEO). Created in 1957 after a decade of contentious political wrangling, the CEEO enforced San Francisco’s local prohibition on employment discrimination. It closed its doors in 1960, less than three years later, when a statewide fair employment practices law was passed establishing a state agency charged with combating employment discrimination.

    The CEEO was one of a number of fair employment practices agencies that sprang up in postwar America. Indeed, by the time San Francisco Mayor George Christopher appointed its first commissioner, 22 jurisdictions (11 states and 11 cities) had some administrative body that enforced fair employment practice standards. By one calculation, there had been close to 10,000 complaints made to these commissions by the middle of the 1950s. Only a handful of these complaints – about 20 nationwide-- resulted in full adjudications.

    This last statistic – that less than 1 in 500 complaints were fully adjudicated – raises some interesting questions. Surely this fact does not suggest that all but a tiny number of these claims were frivolous. After all, in the decade after World War II, discriminatory employment practices were widespread and openly practiced. Contemporary commentary, as well as my own research in Forging Rivals, indicated that this number was so low because local and state agencies focused their energy on the informal resolution of the complaints they received. This research also revealed that these informal resolutions did little to stop employment discrimination. To understand why this is the case, it’s helpful to look at the United States' first attempt to use the administrative state to promote fair employment practices.

    In 1941, President Roosevelt created the federal Fair Employment Practices Commission (FEPC) by an executive order. The FEPC was a major civil rights victory. It was the first federal effort to combat race discrimination since the end of Reconstruction. That said, the FEPC was a weak agency. Its powers were purely investigatory. When it found instances of employment discrimination, it could bring public pressure on employers and unions to end discriminatory practices, but, beyond that, it was powerless.

    Many of the state and local fair employment practices agencies that emerged after the War were shaped by this wartime experience. In particular, civil rights activists fought hard to ensure that the postwar agencies had some form of coercive power: that they could fine employers, require employers to eliminate discriminatory practices, or force employers to hire or promote people they had discriminated against. In exchange for these sorts of powers, most agencies were required to keep their investigations, deliberations, and adjudications entirely confidential. This trade off – coercive power for secrecy – turned out to be a problematic one. It made it difficult for agencies to generate political support for themselves. If the San Francisco CEEO was any indication, this lack of political support made agencies reluctant to punish recalcitrant employers and unions. Indeed, stranded in a hostile political environment, and lacking methods of generating support, these agencies struggled mightily to avoid using their coercive powers. Instead, they functioned as mediation services, secretly resolving employment disputes in a manner that did little to address the systemic problem of employment discrimination.

    The San Francisco CEEO thus illustrates an interesting characteristic of regulatory governance: isolated expertise, even when coupled with coercive authority, may not be enough to further an agency’s policy goals if the agency can’t generate political support for its mission. For people steeped in the study of the administrative state, this may be a quotidian observation, but seeing the actual mechanics of administrative failure in the face of political opposition is fascinating. Additionally, it is striking how the administrative actors at the postwar fair employment practice commissions did not anticipate the need to develop and nurture political support. Their disappointment with the wartime FEPC and its lack of coercive power led many of them to believe that silencing themselves in exchange for enforcement powers was a worthwhile horse trade. As it turned out, it was not.

    Adams on Canadian Constitutional Identities

    Eric M. Adams, University of Alberta Faculty of Law, has posted Canadian Constitutional Identities, which is forthcoming in the Dalhousie Law Journal 38 (2015):
    Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms.

    Thursday, May 21, 2015

    New Release: Bannai on Korematsu's Quest for Justice

    Although the publication date is November, Lorraine K. Bannai, Seattle University School of Law, has posted the preface, prologue and toc for her book Enduring Conviction: Fred Korematsu and His Quest for Justice (University of Washington Press):
    Fred Korematsu's decision to resist F.D.R.'s Executive Order 9066, which provided authority for the internment of Japanese Americans during World War II, was initially the case of a young man following his heart: he wanted to remain in California with his white fiancée. However, he quickly came to realize that it was more than just a personal choice; it was a matter of basic human rights.

    After refusing to leave for incarceration when ordered, Korematsu was eventually arrested and convicted of a federal crime before being sent to the internment camp at Topaz, Utah.

    He appealed his conviction to the Supreme Court, which, in one of the most infamous cases in American legal history, upheld the wartime orders. Forty years later, in the early 1980s, a team of young attorneys resurrected Korematsu's case. This time, Korematsu was victorious, and his conviction was overturned, helping to pave the way for Japanese American redress.

    Lorraine Bannai, who was a young attorney on that legal team, combines insider knowledge of the case with extensive archival research, personal letters, and unprecedented access to Korematsu his family, and close friends. She uncovers the inspiring story of a humble, soft-spoken man who fought tirelessly against human rights abuses long after he was exonerated. In 1998, President Bill Clinton awarded Korematsu the Presidential Medal of Freedom.

    Wednesday, May 20, 2015

    Lieblich on Kelsen's Assimilation through Law

    Eliav Lieblich, Radzyner School of Law, Interdisciplinary Center, has posted a pre-submission version of Assimilation Through Law: Hans Kelsen and the Jewish Experience, which is forthcoming in The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought, ed. James Loeffler and Moria Paz:
    Hans Kelsen was perhaps the foremost continental lawyer of the 20th century. The founder of the immensely influential Pure Theory of Law, he is primarily remembered as a groundbreaking Austrian jurist. However, Kelsen was also a Jew, albeit an extremely assimilated one. His life story – from his early days in Vienna until his death in California – is truly representative of the tragedy of European Jewry in the 20th century. This Chapter discusses Kelsen in light of the ever-present tensions between Jewish and European identity, with particular attention to his position as an international lawyer. Focusing on the period surrounding the publication of the first edition of his Pure Theory of Law (1934), the Chapter discusses Kelsen along three interrelating themes relevant to the Jewish experience of the time. The first part situates Kelsen in relation to a key dilemma of Jewish politics: the tension between Jewish nationalism and assimilationism. It highlights the different constructions of Kelsen’s identity, and their uses by various actors. The second theme focuses on assimilationist politics in Kelsen’s jurisprudence, suggesting a reading of Kelsen’s Pure Theory which I call “assimilation through law.” The third theme pitches Kelsen’s Pure Theory of (international) law against the ideology of progress – a key idea in the thought of assimilated Jewish internationalists. As I demonstrate, although Kelsen’s Pure Theory famously claimed to be “anti-ideological,” the notion of progressivism still shines through its cold and analytic reasoning.

    Levi on the NLRA, Credible Commitments and Labor Violence

    Margaret Levi, Stanford University, Tania Melo, University of Washington, , Barry R. Weingast, Stanford University, and Frances Zlotnick, Stanford University have posted Ending a Century of Violent Labor Conflict: A New Perspective on Unionization and the National Labor Relations Act:
    Open access to labor organizations lagged nearly a century behind open access to business organizations, arising as part of the New Deal in the mid-1930s. During the century previous to the New Deal, firms and governments actively suppressed labor organization, frequently resorting to violence. Conflict and violence ended with the National Labor Relations Act (NLRA) of 1935.

    Why did the violence associated with labor last for a century? What did the NLRA do to solve this problem, and why couldn’t Congress have done so earlier? In this paper, we develop a new perspective on labor organization and violence that addresses these questions. We argue that the century-long violence surrounding labor resulted from an inability to solve a series of commitment problems. All three parties to the violence – labor, business, and government – faced commitment problems. We show that the NLRA succeeded because it finally solved the commitment problems underlying the century of labor violence.

    Sen, McCleskey, & Basuchoudhary on Civil Litigation on the Virginia Frontier, 1745-1755"

    The latest issue of the Journal of Interdisciplinary History includes an article of interest: Tinni Sen, Turk McCleskey, and Atin Basuchoudhary, "When Good Little Debts Went Bad: Civil Litigation on the Virginia Frontier, 1745-1755." Here's the abstract:
    The use of a multinomial logit model to analyze a hitherto unavailable dataset of 1,376 small-claims lawsuits in colonial Augusta County, Virginia, for information about debts, litigants, and procedures finds no evidence of prejudice in the legal system. The magistrates' consistently fair enforcement of legitimate contracts may have induced both plaintiffs and defendants to settle their disputes in court rather than in private. The evidence corroborates the view that by the mid-eighteenth century, Virginia's frontier judicial system was sufficiently impartial to encourage creditors to draw up efficient contracts even for small debts.
    Subscribers to the journal may access full text here

    Hat tip: Mike Widener

    Tuesday, May 19, 2015

    Greenglass Testimony before the Rosenberg Grand Jury Ordered Unsealed

    We've just learned that Judge Alvin K. Hellerstein of the Southern District of New York has just granted the motion of the National Security Archive, the American Historical Association, the American Society for Legal History, the Organization of American Historians, the Society of American Archivists and Sam Roberts to unseal the testimonies of Max Elichter and David Greenglass before the Rosenberg grand jury.  "The requested records are critical pieces of an important moment in our nation's history," wrote Judge Hellerstein.  "The time for the public to guess what they contain should end."  H/t Brad Snyder/David Vladeck

    Joseph V. Baker and the Invisible Man

    Joseph V. Baker
    Emory University Library
    Joseph V. Baker is one of the most fascinating peripheral characters to drift through Forging Rivals. He was not a lawyer, but a public relations executive. In 1958, right-to-work initiatives appeared on the ballots in California and Ohio. Baker was the author of a brilliant (though deeply deceptive) pamphlet that was distributed in African American neighborhoods in both states as the election approached. The pamphlet, entitled “The Negro and His Right to Work,” portrayed right-to-work laws as civil rights legislation that would free black workers from the thrall of racist union bosses.

    Baker, as it turns out, is an essentially unknown African American civil rights pioneer, though of a decidedly different stripe than those who are normally featured in Black History Month presentations. Born in South Carolina in 1908, his family moved to Philadelphia in 1920s. He attended the city’s famed Central High and went on to Temple University, where he studied journalism. From there he become the first African American staff member at The Philadelphia Inquirer. In 1934, at the same time that Baker was forging a career in journalism, he started the first African-American-owned public relations firm. By the 1950s, he had left journalism to devote himself entirely to the PR business and Republican Party politics. His clients included some of America’s biggest corporations (NBC, DuPont, U.S. Steel, American Tobacco, the Association of American Railroads, Procter and Gamble, Chrysler) and (as the pamphlet reveals) the California and Ohio Republican parties.

    Not a
    Baker's Right-to-Work Pamphlet
    Author's Collection
    lot has been written about Baker. He seems to have pioneered the now obvious (but at the time revolutionary) strategy of marketing products specifically to African Americans.  He convinced businesses to feature black people in advertising that targeted the black community. He also persuaded companies that hiring black workers was a sure-fire way to generate brand loyalty among African Americans. Finally, his work for NBC was instrumental to increasing the number of African Americans appearing on broadcast television in roles that didn’t reinforce odious stereotypes. “Integration without Identification” was Baker’s mantra as he convinced the network to cast black actors in roles that were “in no way identified . . . as being played by a Negro.” His firm also reviewed scripts for NBC in an effort to prevent portrayals of African Americans that might offend. “Avoid jive terms and lines written in consciously bad English,” Baker admonished the writers at NBC.

    As his involvement with the right-to-work campaign reveals, Baker was conservative when it came to matters of class. He was a lifelong Republican, who never made the transition to the Democratic Party that so many African Americans of his generation did during the postwar period. It is also a bit difficult to applaud Baker as a civil rights pioneer when one of his major accomplishments seems to have been encouraging American corporations to target the African American community for alcohol and cigarette sales. (Baker’s name pops up repeatedly in the UCSF Tobacco Legacy Project database of tobacco company documents.) Yet, if, as Ralph Ellison suggested, invisibility to white Americans was one of the major obstacles that African Americans had to overcome to achieve full citizenship, Baker certainly had a part in rendering them visible. For Baker’s work at NBC see, Murray Foreman, “Employment and Blue Pencils: Race, Employment, and Representation, 1926-1955,” in Michele Hilmes, ed., NBC: America’s Network, 117-34. (This is where I drew the quotes from.) A small collection of Baker’s papers are housed at Emory University's Manuscript, Archives, and Rare Book Library

    The U.S. Commerce Court, 1910-1913

    William Howard Taft, April 1909 (LC)
    [Here's the other essay from this year's exam in American Legal History, on a short-lived attempt to subject administration to a court-centered notion of the rule of law, dreamed up by that "progressive conservative," William Howard Taft.]

    Before 1906, the Interstate Commerce Commission could not prospectively set the rates railroads charged shippers.  It had to wait until a shipper challenged a railroad's existing rate and decide whether it was reasonable or unreasonable.  The railroad was then free to try again.  Further, an ICC order only became effective if a federal court decided to enforce it.  In making that decision, the court was free to take evidence not presented to the ICC and make up its own mind where the weight of the evidence lay. The Hepburn Act of 1906 fundamentally changed this by allowing the ICC to set future rates and by making ICC orders effective immediately and forcing the railroads to go to court to overturn them.  In these proceedings, the federal courts could not take new evidence, but whether they had to defer to the ICC's factual findings or were free to weigh the evidence themselves was not clear from the statute.  The Supreme Court finally addressed that issue in the Illinois Central case, decided in January 1910.

    Three days before the Court announced its decision in Illinois Central, President William Howard Taft called upon Congress to create the US Commerce Court.  No American President had greater experience in the courts.  In the 1880s and 1890s, Taft had been a prosecutor in a rural Ohio county, a trial judge in Cincinnati, and a federal appellate judge.  He believed that because the Hepburn Act had granted the ICC "a legislative function," the commission should not also perform the judicial one of finally determining the legality of the rates it prescribed.  He proposed that this judicial power be entrusted to a Commerce Court with exclusive jurisdiction over challenges to ICC orders.  Such a court would allow the federal judiciary to acquire the expertise needed for the "effective, systematic, and scientific enforcement" of federal railroad law.  At present, generalist judges on the U.S. Courts of Appeals often failed to master the "great volume of conflicting evidence" in railroad rate cases.  Too often they let stand ICC orders that "robbed" railroads of a reasonable return upon their investment.

    As established by the Mann-Elkins Act of June 18, 1910, the Commerce Court consisted of five newly appointed and life-tenured judges who served during good behavior for five-year terms.  After their term expired, they would join one of the existing Circuit Court of Appeals.  The Chief Justice of the United States would appoint replacements from among the existing bench of federal appellate judges.  Judges were not eligible to return to the Commerce Court during the year following their service.  The Commerce Court had exclusive jurisdiction over all challenges to ICC orders.  The only appeal was by certiorari to the US Supreme Court.

    Journalists dubbed the Commerce Court Taft's "pet project."  When it was before Congress, the legal profession said little about it one way or the other.  Progressive Republicans, including Wisconsin's Robert M. La Follette, and Democrats opposed it.  They thought the ICC was already protecting the public interest by keeping railroads from charging shippers (and, ultimately, consumers) too much.  They were sure the Commerce Court would "usurp" the jurisdiction of the ICC and do the bidding of the railroads.  Shippers saw things the same way, but the railroads did not enthusiastically support the court either.  They preferred the existing system of appeals to the various Circuit Courts of Appeals, where their able advocates could overwhelm a nonspecialist bench. 

    The Commerce Court convened for the first time in February 1911.  Its chief judge was Martin Knapp, a former chairman of the ICC.  He believed that the current ICC favored shippers excessively and seemed bent on keeping it in check.  Another judge was Julian Mack, a Jewish lawyer and reformer from Chicago.  A third, Robert Archibald, owed his position to "Boss" Penrose, who dominated Pennsylvania's Republican Party.  Archibald's impeachment in 1912 for using his influence over railroads to secure contracts for his associates did not directly tarnish the other judges.  Still, contemporaries thought the scandal underlined "the peculiar character" of the Commerce Court.

    More general was the complaint that the Commerce Court was attempting to "overshadow and dwarf" the ICC by intrusively reviewing and then reversing its orders.  In four of its first five cases, the court reversed a shipper-friendly order of the ICC, only to be itself reversed by the US Supreme Court, which reinstated the ICC's original order.  George W. Wickersham, Taft’s Attorney General, blamed the ICC for not clearly setting out the facts justifying its orders.  The commission's opinions, he complained, blended "facts and observations and deductions and conclusions of law"; "everything enters into it.  It is exceedingly difficult to go through that and pick out the facts."  He hoped that the Commerce Court's reversals would induce the ICC to produce better findings.  For its part, the ICC blamed the Commerce Court's intrusive standard of review.  The court's assertion of a right to reject orders that were "clearly and palpably against the weight of the evidence" meant that 99 out of 100 of its orders were at risk of reversal, the commissioners maintained.

    In a sympathetic account of the Commerce Court published in 1928, Felix Frankfurter argued that its judges had not engaged in "a conscious attempt . . . to usurp authority" but had struggled in good faith to work out their jurisdiction.  He hinted that an administrative court might be worth trying again.  But during the Taft and Wilson administrations, most congressmen felt otherwise.  J. Harry Covington (D-Maryland), who would later found the law firm Covington & Burling, warned that "we have drifted far away from constitutional landmarks in the creation of special courts in this country."  He believed that "the best jurisprudence of America" had been created by judges who could resolve "all the varied questions which came before the courts."  The judgments of specialized courts were more "often warped than well-rounded."

    A bill to abolish the Commerce Court passed both houses of Congress in 1912 but fell to Taft's veto.  After Woodrow Wilson took office in 1913, the court was abolished and its judges assigned elsewhere in the federal judiciary.

    Monday, May 18, 2015

    Gorman on the Origins of the FCPA

    Thomas O. Gorman, who is, among other things, co-chair of Dorsey & Whitney’s Anticorruption and Foreign Corrupt Practices Act practice group, has posted The Origins of the FCPA: Lessons for Effective Compliance and Enforcement, Securities Regulation Law Journal (Spring 2015): 43-65. The “paper traces the origins of the FCPA from the early days of the Watergate hearings, through the initial SEC 'questionable payments' cases, the volunteer program and the two years of Congressional debates. From the origins of the statute the paper offers insights into crafting effective compliance today and for improving enforcement.”

    McClain on Folkways, Stateways, and the Civil Rights Act of 1964

    Linda C. McClain, Boston University School of Law, has posted The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether “Stateways” Can Change “Folkways,” forthcoming in the Boston University Law Review 891 95 (2015): 891-927:    
    Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”

    New Release: Cuno, "Modernizing Marriage"

    New from Syracuse University Press: Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early Twentieth-Century Egypt, by Kenneth M. Cuno (University of Illinois). A description from the Press:
    In 1910, when Khedive Abbas II married a second wife surreptitiously, the contrast with his openly polygamous grandfather, Ismail, whose multiple wives and concubines signified his grandeur and masculinity, could not have been greater. That contrast reflected the spread of new ideals of family life that accompanied the development of Egypt’s modern marriage system. Modernizing Marriage explores the evolution of marriage and marital relations, shedding new light on the social and cultural history of Egypt.

    Family is central to modern Egyptian history and in the ruling court did the "political work." Indeed, the modern state began as a household government in which members of the ruler’s household served in the military and civil service. Cuno discusses political and sociodemographic changes that affected marriage and family life and the production of a family ideology by modernist intellectuals, who identified the family as a site crucial to social improvement, and for whom the reform and codification of Muslim family law was a principal aim. Throughout Modernizing Marriage, Cuno examines Egyptian family history in a comparative and transnational context, addressing issues of colonial modernity and colonial knowledge, Islamic law and legal reform, social history, and the history of women and gender. 
    A few blurbs:
    "Eagerly anticipated, Cuno’s Modernizing Marriage more than delivers on its promise. Drawing on compelling evidence and written with great clarity, the book details the dramatic changes marriage underwent in late nineteenth and early twentieth century Egypt. Anyone interested in the study of law, society, family, and gender must read this fascinating book."—Beth Baron

    "Modernizing Marriage takes up a fundamental question for political, social, legal, and cultural history: how did we become moderns? Using marriage as his lens, Cuno weaves together a remarkable account of this process within the Egyptian context of the long nineteenth century."—Wilson Chacko Jacob
    More information is available here.

    Sunday, May 17, 2015

    Graber to Lead ICH Seminar on "the Pre- and Post-1865 Constitution"

    [We're moving this post up because the deadline of May 22 is fast approaching.]

    The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, The Pre- and Post-1865 Constitution.
    Mark Graber (credit)
    This course explores the extent to which the post-Civil War Amendments made fundamental changes in the American constitutional order. Abraham Lincoln in 1863 promised "a new birth of freedom." Many contemporary scholars believed the post-Civil War Constitution was designed to achieve that new birth of freedom by radically changing the basic design and commitments of the American  constitutional order.

    Conservatives in 1865, however, spoke of that "Constitution as it was," minus slavery. The Supreme Court championed this view in The Slaughter-House Cases (1873). The debate is hardly academic. As the opinions in Shelby County v. Holder (2013) demonstrate, basic contemporary regime commitments depend to a fair degree on the extent of constitutional change during the Civil War and Reconstruction.

    We will explore this issue by examining primary and secondary sources. The first third of the course will explore the basic commitments of the constitutional regime established in 1787 through a close reading of crucial Federalist Papers and major selections from other Federalist and anti-Federalist writings. The second third of the course will examine the basic commitments of the constitutional regime Republicans hoped to establish in 1865 through a close reading of the debates over the Thirteenth and Fourteenth Amendments, as well as such measures as the Civil Rights Act of 1866 and the Second Freedman's Bureau Act. The last third of the course will look at some prominent claims that the constitutional regime was fundamentally altered during the Civil War and Reconstruction.
    The instructor is Mark A. Graber, Professor of Law at the University of Maryland Francis King Carey School of Law.  He is the author of Transforming Free Speech; Rethinking Abortion; Dred Scott and the Problem of Constitutional Evil; A New Introduction to American Constitutionalism; nearly a hundred articles on constitutional law, history, development and theory; and an editor of the American Constitutionalism series.

    The seminar will take place Monday evenings, 6:00–8:00 p.m., September 21, 28, October 5, 12, 19, and 26, 2015. It will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

    The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at until May 22, 2015. Successful applicants will
    be notified soon thereafter.

    There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

    For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

    The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on
    American constitutional history.

    Saturday, May 16, 2015

    Weekend Roundup

    • The annual report of the Max Planck Institute for European Legal History was recently posted here
    • The table of contents and introduction to the third edition of Race and Races: Cases and Resources for a Diverse America, by Richard Delgado, Jean Stefancic, Juan F. Perea, Angela P. Harris, and Stephanie M. Wildman are here.
    Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

    Friday, May 15, 2015

    A Homeless Rights Advocates' History of Vagrancy Laws

    Javier Ortiz, Matthew Dick, and Sara Rankin, Seattle University School of Law, have posted The Wrong Side of History: A Comparison of Modern and Historical Criminalization Laws.  Its origins are a bit different form the mine run of SSRN papers.  "The Homeless Rights Advocacy Practicum (HRAP) is a section of the Homeless Rights Advocacy Project at Seattle University School of Law’s Korematsu Center.  Javier Ortiz and Matthew Dick, law students at Seattle University School of Law and members of the founding cohort of HRAP, authored this policy brief under the supervision of Professor Sara Rankin of Seattle University School of Law."  Here is the abstract:
    Like many other cities throughout the country, Washington’s homeless population is being targeted through ordinances infused with a historical spirit of control and discrimination. The policy brief looks at the history of criminalization laws by focusing on historical criminalization laws and how they paved a way for current anti-homeless ordinances. The policy brief reveals that the spirit of historical criminalization laws is present in anti-homeless ordinances today. Since these historical laws have been repealed and overturned, so should anti-homeless ordinances that share the same spirit of control, exclusion, and discrimination.

    The brief focuses on five historical laws and modern anti-homeless ordinances through case studies: Vagrancy; Anti-Okie, Jim Crow, Ugly, and Sundown Town laws. Each section discusses the impetus for each law and the effect it had on targeted individuals. Next, the brief examines specific language from these laws and how they were applied-- and ultimately, how they were overturned by judges, legislatures, and public opinion. The brief then shifts focus to three case studies of modern anti-homeless ordinances.

    This comparison reveals that modern anti-homeless ordinances share much of the same form, phrasing, and function as historical laws that banned African-Americans from attending public school with white Americans; that banned Midwesterners from entering Western states during the Great Depression; and that banned people with physical disabilities from residing in certain cities. And yet, anti-homeless ordinances are just contemporary expressions of the same impulse to marginalize already marginalized people. Ultimately, this brief shows that modern anti-homeless ordinances are just historically infamous laws in a new guise.
    H/t: Legal Theory Blog

    Miller Center Fellows Announced

    Recipients of the University of Virginia's Miller Center National Fellowship for 2015-16 have been announced.  Descriptions of the fellows' projects and the names of their mentors are here.

    Noel Anderson, Political Science, Massachusetts Institute of Technology
    The Geopolitics of Civil War: External Military Aid, Competitive Intervention, and Duration of Intrastate Conflict

    Sarah Coleman, History, Princeton University
    Redefining American: The Shifting Politics of Immigration Policy at the End of the 20th Century

    Jonathon Free, History, Duke University
    Redistributing Risk: The Political Ecology of Coal in Late-Twentieth Century Appalachia

    Boris Heersink, Politics, University of Virginia
    Beyond Service: National Party Organization and Party Brands in American Politics

    Benjamin Holtzman, History, Brown University
    Crisis and Confidence: Reimagining New York City in the Late Twentieth Century

    Elizabeth Ingleson, History, University of Sydney
    The End of Isolation: Rapprochement, Globalisation, and American Trade with China, 1972-1979

    Nora Krinitsky, History, University of Michigan
    The Politics of Crime Control: Race, Policing, and State Power in Modern America

    Shannon Nix, History, University of Virginia
    ‘The Soul of our Foreign Policy’: Human Rights Politics, U.S. Foreign Policy, and the Struggle for Central America, 1976-1984

    Sarah E. Robey, History, Temple University
    The Atomic American: Citizenship in a Nuclear State, 1945-1963

    Sarah Seo, History, Princeton University
    The Fourth Amendment, Cars, and Freedom in Twentieth-Century America

    Herbert Resner and the Decline of Radical Lawyering

    Perhaps a close look at any legal community would reveal its share of interesting characters, but if you're studying lawyers in San Francisco, it doesn't take too long to get the impression that the Bay Area’s attorneys were a particularly eccentric lot. Melvin Belli was probably the most famous. Between his high profile tort and criminal defense cases, his flamboyant personality, and his love of the media, Belli may have been one of the best known lawyers in postwar America.

    Yet Belli was only one of a cohort of San Francisco lawyers with a similar approach to the practice of law. George T. Davis, Jake Erlich, James Martin MacInnes, and Marvin Lewis (who makes an appearance in Forging Rivals when he championed fair employment practices legislation as a member of the Board of Supervisors in the early 1950s) all combined a spirited defense of underdog clients with a hunger for publicity and a love of the better things in life.

    Herbert Resner was a less well-known member of this group. He came to prominence in San Francisco legal circles in the late 1930s, shortly after his graduation from Boalt Hall. At the time, he was a left-wing (possibly communist) lawyer who represented radical trade unionists like Tom Mooney (with Davis) and Harry Bridges (with MacInnes). The California Communist Party was another client, as were many of the Bay Area’s CIO Locals. He shows up in Forging Rivals as the lead attorney in James v. Marinship – a case that limited California unions’ power to have racially exclusive membership policies – but the focus of his practice was not civil rights. Instead, he spent most of the 1940s and 1950s suing employers on behalf of injured workers, particularly in the maritime industry, and sharing offices (and many cases) with Belli. In 1960, he was disbarred for mishandling client funds. He was reinstated in 1967, and expanded his practice into the management of Bay Area rock bands. In the early 1970s, he was sued by Carlos Santana for mishandling his business affairs.

    The careers of this cohort of lawyers trace a fascinating arc that calls for more study. Coming from non-elite backgrounds, they all made fortunes defending underdogs. Yet by the 1970s, many had become caricatures of themselves: ethically challenged, nouveau riche lawyers whose conception of the oppressed had changed from labor radicals, African American civil rights advocates, and injured dockworkers to Nazi war criminals, disgraced televangelists, and down-on-their-luck celebrities. While Resner was not as extreme as some of his compatriots in this respect, the familiar trajectory of his career is suggestive. Perhaps there is a relationship between the enervation of many of the radical lawyers from the 1930s and 1940s and the path that liberalism found itself on during the same period. Many historians have noted the emergence of a more individualistic, market-based, anti-statist political culture in the 1970s. It may be that it was not simply our lawyers who traded Harry Bridges for Carlos Santana, but the country as a whole.

    New Release: Stockreiter, "Islamic Law, Gender and Social Change in Post-Abolition Zanzibar"

    New from Cambridge University Press: Islamic Law, Gender and Social Change in Post-Abolition Zanzibar (April 2015), by

    After the abolition of slavery in 1897, Islamic courts in Zanzibar (East Africa) became central institutions where former slaves negotiated socioeconomic participation. By using difficult-to-read Islamic court records in Arabic, Elke Stockreiter reassesses the workings of these courts as well as gender and social relations in Zanzibar Town during British colonial rule (1890–1963). She shows how Muslim judges maintained their autonomy within the sphere of family law and describes how they helped advance the rights of women, ex-slaves, and other marginalised groups. As was common in other parts of the Muslim world, women usually had to buy their divorce. Thus, Muslim judges played important roles as litigants negotiated moving up the social hierarchy, with ethnicisation increasingly influencing all actors. Drawing on these previously unexplored sources, this study investigates how Muslim judges both mediated and generated discourses of inclusion and exclusion based on social status rather than gender.
    Reviewers say:
    'This captivating history establishes that Islamic courts contributed significantly to reconfiguring social relationships in post-abolition Zanzibar. Elke Stockreiter deftly explores rarely studied topics, such as women's control of property, men's material gains from divorce and former slaves' claims to inheritance, and reveals how the courts enabled these forms of individual agency while also constraining their social impact.' Susan F. Hirsch, George Mason University, Virginia

    'Islamic Law, Gender and Social Change in Post-Abolition Zanzibar is a pioneering study of the practice of Islamic law in Zanzibar with a particular focus on gender dynamics and social change. This text is a highly welcome contribution to the fields of Islamic studies, gender studies and the history of Zanzibar in the colonial period.' Roman Loimeier, Universität Göttingen
    More information is available here.

    Thursday, May 14, 2015

    A Junior Scholars Conference at Tel Aviv University

    [We have the following call for papers.]

    The 3rd Annual TAU Workshop for Junior Scholars: Theory Coming to Life, Tel-Aviv, October 26-27 , 2015

    The Tel Aviv University Buchmann Faculty of Law is pleased to invite submissions to its third annual workshop for junior scholars in law. The workshop provides junior scholars with the opportunity to present and discuss their work and receive meaningful feedback from faculty members and peers, and aims to invigorate the scholars’ active participation in the community of international junior scholars in law.

    Through law, theory comes into our daily lives in many ways. The workshop will explore the connection between theory and life: how different theories are applied through legal doctrines, how theory comes to life through its application and how theory influences society and our lives.

    Relevant papers could, for example, discuss more specific questions like: How do lessons learned from historical events affect the formation of theory and practice?

    We welcome junior scholars (doctoral candidates, VAPs, writing fellows and recent graduates of doctoral programs) from universities and research institutions throughout the world to submit abstracts engaging with the leading theme of the workshop.

    Limited travel grants and accommodation will be available for participants with no institutional funding.

    Submissions: Abstracts of up to 500 words of the proposed presentation (with a short bio and your current institutional affiliation(s)) should be submitted by email to by June 15, 2015. Applicants requesting travel grants and/or accommodation should indicate so in their submission, along with the city they expect to depart from and an estimate of the funds requested.

    Applicants will be informed of acceptance or rejection by July 15, 2015. Selected presenters must submit their papers up to 10,000 words in length by September 30, 2015.

    Spiegel on Legal Aid, 1900-1930

    Mark Spiegel, Boston College Law School (and a former Reggie), has posted Legal Aid 1900 to 1930: What Happened to Law Reform? which is forthcoming in the DePaul Journal for Social Justice:    
    This article offers a counter narrative to the conventional description of legal aid in the United States. By offering this counter narrative it focuses us on certain enduring difficulties that any legal aid or legal services program has to face if it wants to engage in reform efforts: problems of funding and problems of the social and historical context. Conventional wisdom has it that legal aid until the 1960s was largely devoted to individual cases and that it was not until the advent of federally-funded legal services that law reform and social change became part of the delivery of legal services to the poor. Contrary to this conventional wisdom, there is another story. As this article demonstrates, there was an aspiration toward using the legal system aggressively to achieve social justice during the period 1900 to roughly 1920. This changed during the 1920s.

    In presenting this counter-narrative, this article first looks at legal aid during the period 1900-1920 to support the thesis that during this period legal aid aspired toward using the legal system to achieve social justice. It then looks at that next decade, the 1920s, and describes how legal aid became the kind of organization that conventional wisdom describes: a legal aid organization devoted almost solely to individual cases with a large focus on domestic relations practice and abandoning any attempt to use law to achieve social justice. More importantly, this article explores why this change to a more traditional type of legal aid occurred. The most interesting theories blame Reginald Heber Smith and the American Bar Association. Smith is blamed because of his alleged emphasis on access to justice in a landmark study of legal aid called “Justice and the Poor” published in 1919. The ABA is blamed because of the alleged “takeover” of legal aid by the conservative bar in the 1920’s, enabled by the ABA’s establishment of a standing committee on legal aid. These theories, however, are too reductionist and overlook two more important explanations for this retreat from law reform: the need for funding and the social and historical context. These explanations are significant not only because they shed light on a neglected part of our past, but because they connect that past to issues that persist until today.

    Wednesday, May 13, 2015

    Schmidt on the Civil Rights-Civil Liberties Divide

    Christopher W. Schmidt, Chicago-Kent College of Law and the American Bar Foundation, has posted The Civil Rights-Civil Liberties Divide, which is forthcoming in the Stanford Journal of Civil Rights and Civil Liberties 12 (2016):    
    Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Article explains how this differentiation arose and considers its consequences.

    Although there is a certain underlying logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech and due process rights of suspected subversives. Toward this end, they took two terms that had generally been used interchangeably and they created the civil rights-civil liberties distinction. Civil rights would forever after be attached to the struggle for racial equality and subsequent campaigns against other forms of public and private discrimination. Civil liberties would be attached to claims of individual freedom against generally applicable government regulatory power.

    The civil rights-civil liberties divide was contested from the beginning, however. In the late 1940s and early 1950s, the radical left condemned the divide as a tool for politically powerful liberal anticommunists to separate themselves from the declining fortunes of their former New Deal allies. In the 1960s, a new generation of critics of the divide made the case that the battles against discrimination and government oppression were indivisible. Some advocated a new label, “human rights,” which would subsume the categories of civil rights and civil liberties, while also recognizing social welfare rights. Despite these revisionist efforts, the civil rights-civil liberties divide survives, still contested, but also reinforced as each new generation puts it to new uses. This Article not only reconstructs the largely forgotten history of the origins of the civil rights-civil liberties divide, it also identifies the ways in which labeling and categorizing the legal landscape can advance or impede legal change.

    Banks v. Housing Authority and a Multi-Racial Approach to the Equal Protection Clause, Part 2

    In my last post I discussed the background to the Banks v. Housing Authority case: the San Francisco Housing Authority’s separate but equal “neighborhood pattern” policy, the rise of Chinese American political power, and the decision of African American elites to abandon their tacit acceptance of segregated public housing by suing the Housing Authority.

    The lawsuit was brought in San Francisco Superior Court in 1951. It was filed by Terry Francois, who, though just two years out of law school, was the head of the San Francisco NAACP’s Legal Redress Committee. Francois and his co-counsel, the much more experienced civil rights litigator Loren Miller, used the case to attack Plessy v. Ferguson’s separate but equal doctrine. Recent United States Supreme Court decisions, such as Shelley v. Kraemer, Sweatt v. Painter, and McLauren v. Oklahoma, indicated that separate but equal was all but dead. Banks, they argued, should be the final nail in the coffin. Even if the California courts didn’t wish to go that far (this was, after all, three years before Brown v. Board of Education), Francois and Miller suggested that, after Shelley, separate but equal should not apply in the context of property rights. They also claimed that California law and public policy provided an independent basis for abolishing separate but equal in the Golden State.

    Francois and Miller won their case. While the trial court and the appellate courts refused to reject Plessy in its entirety, they accepted Francois and Miller’s other arguments. They also noted that the Authority could not even meet the separate but equal standard required by Plessy because, despite its claims otherwise, it failed to provide minority groups with public housing slots in proportion to their population in the city.

    Though the NAACP proudly presented itself as a civil rights group working on behalf of all racial minorities, San Francisco’s Chinese American community was not pleased with the outcome in Banks. What the NAACP’s lawyers saw as a victory for racial egalitarianism, many people in Chinatown saw as a legal ruling that would take away both their neighborhood housing and a tangible symbol of their entry into the political mainstream. Chinese Americans, community leaders argued, did not wish to move into integrated housing projects spread throughout the city. They wanted to live in their neighborhood. For years they had fought to get the city to take action to relieve the chronic shortage of housing in Chinatown. Yet, just when they were able to convince the Housing Authority to do so by building Ping Yuen, the NAACP came and took it away from them.

    The Banks case is a small chapter in the story of the emergence of a more racially egalitarian legal order in the United States, but it illustrates a significant point about that story: civil rights history looks different when viewed through a multiracial lens. Banks demonstrates that different racial groups may have different definitions of equality and different approaches to achieving it. The conflict between the Chinese American community and the African American community over public housing thus resulted in different interpretations of the Equal Protection Clause. While one racial group might see separate but equal as a degrading relic of Jim Crow oppression, another might see it as a potent symbol of its newfound political power.

    For more on the story of the conflicts endemic to a multiracial fight for civil rights, including a discussion of the Banks case, see Mark Brilliant’s fantastic The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978. Banks also pops up in two great books about Asian communities in California: Charlotte Brooks, Alien Neighbors, Foreign Friends: Asian Americans, Housing, and the Transformation of Urban California; and Nayan Shah, Contagious Divides: Epidemics and Race in San Francisco’s Chinatown. For “the new objects of racial scorn,” see Scott Tang’s essay “Becoming the New Objects of Racial Scorn: Racial Politics and Racial Hierarchy in Postwar San Francisco, 1945-1960” in Jeff Roche, ed., The Political Culture of the New West.

    Walter Gellhorn's Loyalty Board File

    Walter Gellhorn (1974), UVA Law Library
    In my last post, I mentioned the Oversize Personnel Security Investigation Case Files, inventory A1, entry 2, Records of the Office of Personnel Management (RG 478).  Here are some views of the Columbia law professor Walter Gellhorn from a file (box 683) compiled in connection with his possible appointment to the National War Labor Board  file in the 1940s.  One FBI informant described the great administrative law scholars as “a man of brilliant intellect but a men whose views are not in accord with the usual ideas of American Government” because he “desires to have every phase of human endeavor and activity regulated by the Government.”  Another said that Gellhorn thought “the Courts should not be permitted to review the decisions or findings of the various Government Boards of Agencies after they had made their decision in a particular case."  A neighbor in Englewood, NJ, described him as 35 years old, 180 pounds, with blonde hair, no visible scars, and an “air of conceit."

    The rating examiner charged with assessing Gellhorn's loyalty for a possible appointment to the National War Labor Board concluded, "The information concerning the appointee’s loyalty to the United States is in a sense favorable and yet is disquieting.”  To be sure, the "ultra-liberal," Gellhorn was "fully loyal to the United States.” Still,
    [t]he information is disquieting in that the appointee has clearly affiliated himself with numerous Communist front and Communist dominated groups; that he has used his professional ability to advise, aid and defend Communists and organizations known to be Communist saturated; and, in that it is inconceivable that an individual as intelligent and well -informed as this appointee must be ignorant of that fact that his affiliations were with Communist dominated groups and his activities were serving to aid the Communist cause.  The possibility of the appointee’s innocence in these matter diminished in proportion to the numerical rise in his memberships and capacities until such a possibility of innocence must be dismissed as unreasonable.

    Louis Rothschild Mehlinger (1882-1987)

    [Longtime LHB readers will recall that the exam in my annual survey of American legal history includes a biographical essay.  Here is this year's.]

    Louis Rothschild Mehlinger (1882-1987) was born along the shores of the Mississippi River to Ferdinand Mehlinger, a German Jew who had emigrated to New Orleans in 1865, and the former Catherine Hayes, who had been born a slave in 1863.  He grew up in rural Mississippi, where his father was a postmaster and merchant.  Louis was sent off to a historically black college in Jackson, Mississippi, where the instruction was vocational.  One day, Booker T. Washington visited and Mehlinger was among the students assigned to look after the great man.  “I never will forget,” he later said, “I got to shine the dear gentleman’s shoes.”  Looking back, he thought the educator’s focus on vocational training was right “under the circumstances in which Booker Washington found himself.”

    Upon graduating he briefly taught carpentry in Florida, but in January 1907, during Theodore Roosevelt’s presidency, he arrived in Washington, DC, to take a job as clerk in the Treasury Department.  He boarded in the same house with Carter Woodson and would serve as secretary of the historian’s Association for the Study of Afro-American Life and History.  He enrolled in Howard University’s night dental school, but it closed before he could get his degree.  By studying shorthand, typing, bookkeeping, he qualified for a stenographer job at Treasury.  In 1916 he entered Howard’s night law school but his studies were interrupted by the United States’ entry into World War I.  After training in a black officer’s training school, he became a captain in an infantry division that served in France. 

    After the war, Mehlinger returned to Treasury and recommenced his nighttime legal studies at Howard.  He graduated magna cum laude in 1921, soon after the start of Warren G. Harding’s presidential administration.  Solo practice was unpromising, as “most black families with any means” wanted a white lawyer.  Fortunately, the Department of Justice’s only black lawyer, a member of the Republican National Committee from Mississippi, had Mehlinger appointed his stenographer.  Because his politically connected boss “ran around a lot,” all the law work of the office fell to him.  “Pretty soon,” he recalled, “I was appointed assistant attorney and assigned to argue cases in the Court of Claims,” a juryless court that heard monetary claims against the federal government. 

    Some members of the government were offended when they realized that the Department of Justice had sent a black lawyer to discuss a case with them.  When Mehlinger traveled in the South to investigate a claim, he routinely left the day before the returned trip he had booked, fearful that if he left as scheduled he might be “Ku Klux Klan elements” might take him off the train once in reached a rural area.  His caution was understandable: caution: in 1925, white Mississippians murdered his brother and drove his father from the state.  Despite such handicaps, Mehlinger became so good at his job that even FDR's patronage-starved Democrats decided they had to retain him–a Republican–when they came into office in 1933.

    He had subscribed to the NAACP’s journal as early as 1915, when he wished its editor W.E.B. Du Bois and the NAACP itself “smooth seas and prosperous gales on its great voyage for manhood rights.”  (Mehlinger later called Du Bois “the most brilliant man I ever knew.”)  In 1919, he testified against racially segregated passenger cars at a congressional hearing over the return of railroads to private hands after their wartime nationalization.  With Charles Hamilton Houston and five other, Mehlinger co-founded a black lawyer’s group, the Washington Bar Association, in 1925.  But he also thought that “Houston had the Harvard stamp on him.”  Unlike Houston, Mehlinger believed one could study law successfully at night and co-founded a night law school that produced 600 graduates over fifteen years starting in the 1930s.

    As perhaps befits a fellow who delivered patriotic Flag Day speeches to schoolchildren, in December 1941 Mehlinger offered his services to the Secretary of War “in whatever field of endeavor they may be used in defense of my country.”  He also tried to persuade Brigadier General Benjamin O. Davis to help him be called to active duty.  (Davis told him that he would be of more service, due to his age and so forth, to the government by remaining in his present assignment.”) Mehlinger was active in his church (where he was a deacon), the American Legion, the Elks, and his college fraternity.  In these groups he always argued against those who counseled collaborating with Communists.  “I have always maintained that all the ills eventually could be adjusted,” he later explained.  One his superiors at DOJ agreed.  Although Mehlinger concerned himself with the welfare of “his own people,” Francis Shea recalled, “he was moderate and seasoned in his views of how to push forward the welfare of the Negroes.”

    Mehlinger refused to join the National Negro Congress but he did join the National Lawyers Guild in 1946 because he understood from Judge James A. Cobb that it “had received a clearance”–apparently a reference to the decision not to place the Guild on the Attorney General’s List of Subversive Organizations.  Although placed on the Guild’s Civil Rights Committee, he attended no more than three Guild meetings.

    You can imagine Mehlinger’s shock and surprise, then, when, in September 1948, he was notified to appear before the Department of Justice’s Loyalty Review Board, created by executive order by President Harry S. Truman, to show why he should not be removed from his position for disloyalty.  The only basis offered was his “sympathetic association with the Southern Negro Youth Congress,” a group long under surveillance by the Federal Bureau of Investigation.  Mehlinger had agreed to have his name listed as a sponsor of the group’s national meeting after receiving a circular listing one of his fraternity brothers, Du Bois, and other African American leaders.  “Being a Negro myself and having suffered the indignities of Jim Crowism,” he explained at his hearing, “naturally I was in sympathy.”  He only learned that the group was considered subversive when notified of his charges.

    When presented with the pamphlet of the Southern National Youth Congress that listed Mehlinger as a sponsor, the lawyer was repulsed.  The figures on it, he said at his hearing in October 1948, reminded him of a “passage from Dante’s Inferno. . . .  I would have suffered my right hand to be cut off before I put my name” to it.  Many witnesses–white and black–testified to his loyalty and none to his disloyalty.  One former Assistant Attorney General testified that he was “dumbfounded “ to hear of the charges.  Another DOJ lawyer called Mehlinger “one of the most loyal people that I have ever known” and “one of the most faithful government servants that I have ever come into contact with.”  Although Mehlinger kept his position, his file was not closed until after his retirement in 1952. 

    At his loyalty hearing, Mehlinger ventured, “I have achieved as well as any man who started as low as I was.”  The Washington Post reporter who caught up with him on his hundredth birthday found that he still had a few court-appointed clients.  Asked his philosophy of life, he quoted Micah: “What does the Lord require of the old man?  But to love mercy, do justly and walk humbly with thy God.”  He died a few weeks short of his 105th birthday.

    [The principal sources for this essay are digitized newspapers and the Oversize Personnel Security Investigation Case Files (inventory A1, entry 2, box 1303) of the Records of the Office of Personnel Management (RG 478), which Landon R. Y. Storrs rescued from historical obscurity and used so effectively in her excellent Second Red Scare and the Unmaking of the New Deal Left (2013).]

    Tuesday, May 12, 2015

    Two New Exhibits at HLS Special Collections

    [We have the following announcement.]

    The Harvard Law School Library’s Historical & Special Collections team is pleased to announce two new exhibits, both on view from 9 to 5 daily in the Caspersen Room, Langdell Hall, through mid-August 2015.

     “It Was a Dark and Stormy Semester … Portrayals of Harvard Law School in Literature” seeks to highlight the role of Harvard Law School in fiction. Sometimes the law school serves as the scene, sometimes the featured characters are law school graduates, and sometimes the law school inspired its students to become novelists during their JD studies. A companion website to the exhibit can be found here. The exhibit was curated by Library staff members Claire DeMarco and Ed Moloy.

    By Popular Demand” is our first student-curated exhibit. It features objects in a variety of formats from Historical & Special Collections, selected by HSC staff and voted on by HLS students.

    We hope you have a chance to view both exhibits next time you find yourself in the Cambridge area.

    Reform, Reaction, and Constitutionalism in 20th-Century America: An ICH Seminar

    [We are also moving this post up, as its deadline of May 15 is also approaching.]

    The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, "Reform, Reaction, and Constitutionalism in Twentieth-Century America."

    The instructors are Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, and William E. Nelson, the Edward Weinfeld Professor of Law and Professor of History at New York University

    This seminar will selectively study progressive reform efforts in America between 1920 and 1980 -- both their successes and their failures. The first session will focus on the 1920s, when both reformers and conservatives conceived of reform in terms of class conflict carried out mainly in the political process; in that decade, reformers enjoyed almost no success in altering the nation's law. The second session will turn to the New Deal and will focus particularly on the issue of how much redistributive change the New Deal actually achieved prior to 1938. The third and fourth sessions will study the period from 1938 to 1968, when reformers turned to the courts and the constitution in a fight to achieve ethnic and religious equality, and the children of turn-of-the-century Catholic and Jewish immigrants entered the nation's socio-economic mainstream. The third session will focus on the impact of World War II on the nation's socio-economic structure; the fourth will turn to the Cold War. The two final sessions, still focusing on law and the constitution, will turn to the years since 1968, when equality was reconceptualized in terms of race and gender, with the fifth session examining race and the sixth, gender. Our hypothesis will be that only marginal change has again occurred. A key question throughout the seminar will be why ethnic and religious conceptions of equality succeeded in transforming law for ethnic white men, while other progressive conceptions in large part failed.

    It will meet Friday afternoons, 2:00-4:00 p.m., October 2, 9, 16, 23, November 6, 13. The seminar will meet at the New-York Historical Society, 170 Central Park West, New York City.

    The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities.

    Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at until May 15, 2015. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

    There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

    The Institute for Constitutional History (ICH) is the nation's premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

    Religion and the Constitution: An ICH Summer Seminar

    [We are moving this post up as the deadline of May 15 is approaching.]

    The Institute for Constitutional History is pleased to announce a residential summer research seminar for advanced graduate students and junior faculty, which will be co-sponsored by the Stanford Constitutional Law Center. This year's seminar is entitled “Religion and the Constitution.”

    The instructors will be Michael McConnell, the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and Jack Rakove, the William Robertson Coe Professor of History and American Studies and Professor of Political Science and (by courtesy) Law at Stanford University.

    This seminar will combine discussion of works-in-progress by the participants (on a variety of subjects) with a focused set of conversations about religion in the American Republic. We will examine the relation between the principles of religious freedom embodied in the First Amendment to the Constitution and the growth of the spiritually active, multi-denominational, and religiously tolerant culture that distinguishes the United States from most other societies. Seminar readings will follow a historical arc. We will begin with the emergence of practices of toleration in early modern Europe and the birth of a commitment to the free exercise of religion as a natural right in 18th- century America. After that we will examine the developing law of religion in 19th- and 20th-century America before concluding with the debates over religious accommodation that have become so controversial over the past few years. The relationship of history, law, and culture will be a subject of recurring interest.

    The seminar will meet at Stanford Law School, from July 12-17, 2015. The Institute for Constitutional History will reimburse participants for their travel expenses (up to $350), provide accommodation at the Munger Graduate Residence on the Stanford campus, and offer a modest stipend to cover food and additional expenses. Seminar enrollment is limited to fifteen participants.

    Applicants for the seminar should send a copy of their curriculum vitae, a brief description (three to five pages) of the research project to be pursued during the seminar, and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted until May 15, 2015, and only by email at Successful applicants will be notified soon thereafter.

    For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

    The Institute for Constitutional History (ICH) is the nation's premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

    The Stanford Constitutional Law Center grows out of the long and distinguished tradition of constitutional law scholarship at Stanford Law School. The Center seeks to carry on that tradition by directing attention to the most fundamental questions of constitutional order, especially the allocation and control of governmental power through law. The Center advances this mission through events and activities that foster scholarship, generate public discussion, attempt to transcend ideological divides, and provide opportunities for students to engage in analysis of the Constitution.

    Rabb on the Judical Stereotyping of Kadijustiz

    Intisar A. Rabb, Harvard Law School, has posted Against Kadijustiz: On the Negative Citation of Foreign Law, which is forthcoming in the Suffolk University Law Review 48 (2015): 343-77:    
    In the arguments about the judicial citation of foreign law, judges are arguing about values, but they often do not acknowledge the values that they are debating or give specific reasons for why they prefer one over the other in their majority and dissenting opinions — preferring instead to adopt negative models of foreign law against which to make a general claim. One example of this phenomenon is the American judicial citation of “kadijustiz” — a term introduced by Max Weber and popularized by Justice Frankfurter in a 1949 decision to refer to arbitrariness. But this is wrong because for two reasons. First, it is inaccurate, as Islamic legal historians have long pointed out in detailing Islamic judicial procedure in Mamluk, Ottoman, and other courts from the medieval to early modern periods. Second, judicial citation of kadijustiz obscures the reasons for adopting certain values over others in contested judicial decision-making, thereby weakening invoking-judges’ arguments overall.