Sunday, May 31, 2009

Reviewed: Jacoby, Alger Hiss and the Battle for History

Alger Hiss and the Battle for History by Susan Jacoby is reviewed in the Washington Post. David Greenberg writes that the author

admirably upholds what is both the common-sense position and the scholarly consensus: that Hiss was almost certainly guilty of both perjury and espionage, but also that his guilt hardly justifies the McCarthyite spy-hunting that flowed from his conviction. Admittedly, her defense of this eminently reasonable position gives her book a curious raison d'être: a fierce need to argue the agreed-upon, a burning insistence that the fervor surrounding a 60-year-old controversy is so overblown that the subject demands . . . yet another intervention. She urges "both the right and the left to let go of the Cold War," even as she enthusiastically dons the hat of Cold War historian.
Greenberg finds it odd that Jacoby "has almost nothing but harsh words" for legal historian G. Edward White.

White's book "Alger Hiss's Looking-Glass Wars" (2004) remains the best study of Hiss's fluctuating reputation and his importance as a cultural symbol. (One might even wonder whether White's volume loomed during the writing of this newer treatise as Jacoby's anxiety-of-influence book: the already published work that every author fears might render his or her effort superfluous.) Jacoby shows intemperance, too, toward other temperate writers -- a strange turn in a book that aspires to calm a roiling debate with cool detachment.
Read the rest here.

Gordon-Reed wins the George Washington Book Prize

"Historian and author Annette Gordon-Reed has won a literary Triple Crown with her remarkable 'The Hemingses of Monticello: An American Family,' her 798-page exploration of Thomas Jefferson and the family of slaves with whom he became intimately involved," reports the Washington Post. "The book has won the National Book Award, the Pulitzer Prize and, yesterday, the $50,000 George Washington Book Prize, given annually to the 'most important new book about America's founding era.'" Congratulations!

The Post's interview with Gordon-Reed is here.

Saturday, May 30, 2009

Rose on Musing on Clio

Jonathan Rose, Arizona State University College of Law, has posted Musing on Clio: Why Study the Past, History, and Legal History, which also appears in the University of Texas Tarlton Law Library Legal History Series. Here is the abstract:
This paper pursues two themes. First, it argues that there is a commonality between the general interest in the past, the interest of historians, and interest of legal historians. Second, it shows that several ideas about the past commonly appear in all three contexts. In pursuing this themes, the paper begins by reviewing the initial study of past and the emergence of history and legal history in academia. It explores the various reasons that the early historians and later academic historians and legal historians studied the past and the different ways in which they used it. The paper then pursues in more detail the development of Anglo-American legal history as a scholarly tradition. It identifies three types of academic legal history: classical, liberal, and critical and discusses their natures and different uses of the past. Finally, the paper explores the substantial legal history scholarship and its relevance to scholars who are not legal historians. The paper concludes by stressing the importance of studying the legal past.

Law and Politics in Newcastle's New York

[This is the second of two posts on Stanley N. Katz's “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” Perspectives in American History 5 (1971): 485–518. The first is here.]

The political controversy over chancery courts in colonial America must have seemed an intriguing oddity when Stanley Katz encountered it in the research that ultimately became Newcastle’s New York (1968). Part 2 of the book opens with the attempt in 1732 of the new governor, William Cosby (pictured at left), to recover half the salary paid to the lieutenant governor in his absence with a suit before the New York Supreme Court, sitting as an Exchequer Court with equitable jurisdiction. Cosby's salary suit and his later entertaining, in his own capacity as chancellor, of a bill challenging the validity of a large land grant to opponents of his administration, provoked a response “strangely out of proportion to their potential to do harm,” Katz wrote, complete with invocations of “archaic notions of English constitutional law.” In contrast to the revolutionary period, when constitutional debates produced deep and lasting divisions, “the problem of the chancery courts arose fitfully” and “ran close to the surface of political ideology.” Katz called the ideas it generated “brittle and discontinuous” and illustrated the point with the example of Lewis Morris (pictured at right), who staunchly defended his gubernatorial patron’s exercise of equitable jurisdiction in the 1720s, led the opposition to chancery courts in New York in the 1730s, and later presided over his own equity court as governor of New Jersey. The conclusion of the affair was odd as well. New Yorkers never seemed to have “solved” the problem of chancery courts; instead, they seemed simply to have gotten over it. After 1736 chancery courts ceased to be a focal point of political debate. By the 1750s the governor’s chancery court had become, in Katz’s words, “a respected and ordinary court of justice which transacted much of the same sort of work as its counterpart in England.”

Upon investigating, Katz discovered that colonial Americans “objected to chancery courts rather than to equity law.” They were no more willing than their English counterparts to go without a law of minors and lunatics and trusts and uses, discovery procedures and juryless trials, or doctrines that moderated the common law. The one exception he found was the “well-justified colonial perception” of a link between chancery courts and the collection of “quitrents.” These payments were difficult to collect in the common-law courts, because sheriffs “were easily intimidated, and juries often refused to convict” defaulters. But if quitrents could be pursued in chancery courts operating without juries and with an official specifically charged with collecting judgments, they could become a formidable engine for harassing political opponents and a stable stream of public revenue. “Year after year,” Daniel Hulsebosch has recently written, “the imperial agents held out hope that quitrents, like an unmined lode of gold, would provide support for royal administration and free them from relying on the assembly for their salaries.”

Although attacking chancery courts was, in Katz’s words, “one of the time-tested techniques of early-eighteenth-century ‘outs,’” it does seem from Katz’s essay and Newcastle’s New York that Cosby’s use of chancery courts went beyond the ordinary politics of the day and represented a destabilizing breach of the prevailing rules of political engagement. Even in an era when public office was sought for the “power and profit” it conferred, Cosby pursued his interests so voraciously that he disrupted the “political structure of the colony.” To many New Yorkers, Cosby was “a ‘rogue governor,’” who, as John Peter Zenger’s newspaper complained, did “a thousand things for which a small rogue would have deserved a halter.” In selling off the provincial offices within his patronage he slighted important freeholders; in granting land he was said to have kept a third for himself; and in voiding a deed from Mohawk Indians to Albany’s municipal corporation, he created the widespread impression that “he would stop at no Injustice in order to fill his pockets.”

Under the influence of such a governor, an equity court was a fearsome thing, because it functioned without a jury, applied legal standards that gave its judges broad discretion, and could be overturned only through a difficult and costly appeal to the King in Council. An exchequer court consisting of the handpicked justices of the Supreme Court had all these defects. The absence of a jury when an exchequer court sat in equity, for example, was what prompted Cosby to call one into being to hear his salary suit. As Katz writes, New York City jurors were “not likely to side with a newly-arrived Irish governor against a respected and aging Dutch merchant.” Although Cosby ultimately abandoned the suit, his dismissal of Chief Justice Morris for refusing to find jurisdiction in his court to hear the matter opened the governor to the charge that he would have a judiciary that followed his wishes rather than the rule of law.

Further, Cosby wielded discretionary power in his own capacity as chancellor. Cosby used his chancery court to collect quitrents from his opponents, although apparently the records leave the extent of his activity in doubt. Cosby’s jurisdiction over bills in equity questioning land titles unquestionably provoked fierce political opposition. The most controversial was the bill to void an earlier New York governor’s patent of a huge tract along the New York-Connecticut border. All of the New York patentees were Cosby’s political opponents; the challengers, who sued under a royal patent, included Cosby himself. “There is not one patent in the whole Country for the setting aside of which a cunning Lawyer might not find a Pretence,” the New York patentees protested. “If a Governor can set aside patents without a tryal at Law,” another contemporary warned, “a Governor can set make himself master of any mans Landed Estate,” and “if the practice be once Established the whole people will in consequence soon become tenants at will and slaves to Governors.”

The case roiled New York’s politics until Cosby’s death in 1736, after which his opponents dispersed into the administration of his successor, who was more circumspect in his use of his chancery powers. “The chancery was henceforth removed from politics,” Katz writes, “and freed for its dramatic legal development after mid-century.”

For present purposes, I’d like to emphasize several aspects of Katz’s account. “Practically everybody involved,” Katz writes, “agreed that it was necessary to supplement the common law with equity and equitable remedies.” The “mundane private law which occupied most chancellors and equity courts” rarely drew objections. Chancery courts became controversial when governors used them to circumvent common-law courts in general and juries in particular in pursuit of the collection of quitrents. Opponents made arguments that did not admit of distinctions between kinds of equity courts or differences in the substantive law they applied. Cosby and his judges were likened to James II and Chancellor Jeffreys; the ancient constitution was invoked against the despotic assertions of royal prerogative. Yet when the threat to the structure of politics passed, and the potentially transformative use abandoned, chancery courts were accepted as the necessary adjuncts to common-law courts that they in fact were.

Finally, note something missing from Katz’s account: an organized bar, with a professional interest in the regularity of judicial decisionmaking. Its absence apparently is accountable by a simple fact: it did not yet exist. In a later study, Eben Moglin described the New York bar of the 1730s as “a tiny group of lawyers depending upon political privilege rather than professional organization to secure their livelihoods." In opposing Cosby’s control of the chancery courts, it took a tentative but “critical step toward the creation of an independent professional community, capable of unified action in political defense of the legal system itself.” Not long afterward, a “creole legal establishment”--Hulsebosch’s term--emerged and jealously defended the autonomy of law from the discretion of imperial administrators.

What does all this have to do with the politics of administrative law in New York State, two centuries later? I saw some parallels and an important difference. Just as equity law and the courts that administered it were uncontroversial before and after the the 1730s, so was administrative law rarely the subject of popular political comment in the state before or after the period 1938 to 1941. It became controversial when the leaders of an established political order (colonial elites in Newcastle's New York; "Old Guard" factions in the political parties of New Deal New York) thought this new alternative to the common law was being employed to create a new era in political mobilization. In the 1930s, bar leaders were prominent among the protesters, at least in part because of the threat "politicized" administrative law posed to their economic livelihood. (Who would bother to pay a lawyer, if the administrator responded only to partisan calculations?) In contrast, lawyers were only just starting to organize as a profession in Newcastle's New York when the controversy over Crosby's equity courts broke out; indeed, Moglin's account suggests that the controversy was a precipitating event. The bar's role was harder to document than that of its successor two centuries late. Finally, once all sides decided that the "judicialization" of administrative procedure had contained the partisan potential of administrative agencies and preserved the cash value of lawyers' mastery of due process, discussions of administrative law became less heated, and the topic returned to the outer margins of American political debate. Something similar happened to equity law in Newcastle's New York with Governor Cosby's death.

Friday, May 29, 2009

Ronald Takaki has died

I am very sorry to report the death this week of Ronald Takaki, a pioneering scholar of ethnic studies. He was seventy years old, and a Professor Emeritus of Asian American Studies at U.C. Berkeley.

His life and contributions are discussed in AsianWeek, which plans a series of articles in tribute to Takaki.

Homage to Katz

Now that my article, “The Politics of Administrative Law," is out, I want to say something about its historiographic context that probably won't be apparent to most readers.

I wrote the paper for a conference in honor of Stanley N. Katz (my dissertation adviser) held at Woodrow Wilson School at Princeton University in February 2007. Because of the occasion, I thought of the first thing of his I ever read, “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” Perspectives in American History 5 (1971): 485–518, which John Langbein put in my hands as I was trying to decide where to do graduate work in history after completing my J.D. I recall being impressed by the article, as well as by Katz's Newcastle’s New York (1968), and off I went.

In the years since, I never forgot the essay, but for some time its salience for me lessened. Although published in 1971, it originated in Katz’s dissertation on Anglo-American politics, which he started in the late 1950s. By the time it appeared, social history and other concerns were capturing the imagination of historians, including, if I’m reading the essay properly, Katz’s. “The real challenge is not to learn about the relatively infrequent intersection of law and political crisis,” he concluded, after a masterful tour of just that topic, “but to find out how legal institutions affected daily life.”

For some time now, I’ve been inspired by recent work of political historians and scholars of American political development to study the cohort of lawyers who took entry-level jobs in the federal government during the administrations of Franklin D. Roosevelt. The more I followed the New Deal lawyers around Washington as they built an administrative state, the more I found myself thinking about Katz’s essay on colonial chancery courts. It dawned on me that years before scholars of American political development argued that “state and party systems” independently determined “the origins, implementation, and effects of policy proposals,” Katz, borrowing from Sir Lewis Namier (pictured at right) brought the idea of an autonomous “structure of politics” to American legal history, where it remains a fruitful source of insights.

More specifically, I became aware of a parallel between the law and politics of “New Deal New York” and the law and politics of Newcastle’s New York. Katz’s “Politics of Law” essay culminated in two related disputes over equity courts in New York in the 1730s. Just about two centuries later--in 1938, to be precise--two disputes over another rival of common-law courts, the administrative agency, again roiled New York’s politics. The lesson of Katz’’s essay--that in trying to explain a political controversies about law, look for some attempt to use a legal institution to transform a political order--turns out to be good advice for understanding the controversy in New York in 1938. Moreover, Katz’s essay usefully brought out a difference between the two eras. In Katz’s account, the legal profession does not appear as a collective body asserting its own interests in having courts be free from gubernatorial domination. In 1938 the legal profession played a leading role.

I’m not going to rehearse the argument of my article here, but in my next post I’m going to say enough about Katz’s original article and related work to suggest why I found the comparison so useful. The next time I teach a “development of legal institutions” seminar, I plan to assign the two articles together. I’d be very pleased to learn what happens if anyone else gives it a try.

[The second and concluding post is here.]

Image credits: Katz; Namier

New work on Lincoln and on historians and conservatism

For your Friday (since I have two panels coming up at the Law & Society meeting this weekend), here are a couple of interesting items from Ralph Luker at Cliopatria. Ralph's dependable daily blog posts are the best place to go for breaking news about historical scholarship.
Ari Kelman, "Lincoln's legacy," TLS, 27 May, reviews Philip B. Kunhardt III, Peter W. Kunhardt and Peter W. Kunhardt, Jr., Looking for Lincoln: The making of an American icon, James Oakes's The Radical and the Republican: Frederick Douglass, Abraham Lincoln, and the triumph of anti-slavery politics, Eric Foner, ed., Our Lincoln: New perspectives on Lincoln and his world, and Barry Schwartz's Abraham Lincoln in the Post-Heroic Era: History and memory in late twentieth-century America.

A. W. Purdue, "Politics filtered by the past," THES, 21 May, reviews Reba Sofer's History, Historians, and Conservatism in Britain and America: From the Great War to Thatcher and Reagan.

You can follow Ralph's posts regularly here.

Limerick on the Interior Department

If ever there was a "sick man" of the federal bureaucracy, it would be the Department of the Interior. Some quite estimable figures have served as Secretary, including James R. Garfield, Walter L. Fisher, and of course Harold Ickes; still, in historical accounts it usually figures as a nest of persistent, intractable dysfunction. (Did anyone else hear echoes of Daniel Carpenter's chapter on the department in The Forging of Bureaucratic Autonomy while watching the appearances of Secretary Ken Salazar and his hat on the Daily Show earlier this month?) Even under Ickes, for example, a very able departmental solicitor, the New Dealer Warner Gardner, was amazed how often "some . . . enlightened agreement or compromise among the conflicting interests represented in the Interior Department" was ignored by the Bureau of Reclamation, did "nothing about it other than to explain to the Congress . . . that the department wanted to do that, but of course a sensible person would know better."

All of which is to say that it is really quite thrilling that the remarkable historical imagination of Patricia Limerick, University of Colorado, Boulder, has been brought to bear on the problem of bureaucracy at the Department of the Interior. Her talk, Parks and Politics: Saving the American Environment, from July 22, 2008, is downloadable from the Gilder Lehrman Institute's website. here is the abstract:
Bureaucrats, University of Colorado professor of history Patricia Limerick argues, are often the most overlooked (at best) or reviled (at worst) of government officials, but they wield tremendous powers that shape Americans’ daily lives. Nowhere is this more true than in the bureaucracy of the U.S. Department of the Interior. A wide-ranging agency charged with both protecting land and promoting its use, the Department of the Interior implements federal law over millions of acres of land and mediates the claims of environmental, mining, foresting, farming, and ranching interests, among others. Bureaucracies like the Department of the Interior may be boring, Limerick argues, but historians cannot ignore their impact on the development of the American West.
Also interesting is the description of her summer seminar for teachers, offered under Gilder Lehrman's aegis, Visions of the American Environment.

Priest on the Death of the Fee Tail

David Schraub, serial student blogger on legal history at the University of Chicago Law School, has a post on the presentation of Claire Priest, (soon-to-be) Yale Law School, to Chicago's American Legal History Workshop. His post, on The University of Chicago's Law Faculty Blog, commences:
The fee tail, as any first year property student knows (or knew, then promptly forgot), is a type of interest in property that renders it inalienable, instead automatically passing on to the owner's heirs upon his death. Though a long standing component of English property law, the fee tail is no longer enforceable in the United States, and indeed was relatively quickly subject to attack after the Revolutionary War. The common explanation for the fee tail's death was that it offended America's incipient republican spirit -- enabling the creation of large hereditary estates which too closely resembled European aristocracies.

In her presentation to the last session of this year's American Legal History Workshop, Northwestern Law Professor (joining Yale's faculty this summer) Claire Priest sought to complicate that explanation and offer a different picture for why the fee tail withered away soon after the revolution. Acknowledging that republican ideals may have played some role, Priest focused her inquiry on a different aspect of entailed estates -- their shielded status from creditors -- and how that affected the way that fee tails were employed in the revolutionary era.


Thursday, May 28, 2009

Kerber on the Other Marshall Court

Linda Kerber, University of Iowa, has just published in the Boston Globe an op-ed appreciation of Chief Justice Margaret H. Marshall and her opinion for the Supreme Judicial Court in the Goodridge decision of 2003, which legalized same-sex marriage. (Marshall's opinion drew upon a historians' brief that showed how marriage practices in the state changed with changing meanings of equality.) Professor Kerber commences:
Look to the court decisions legalizing same-sex marriage in three states and you'll find the echoes of Margaret H. Marshall, chief justice of the Supreme Judicial Court of Massachusetts. Writing in 2003 that a state may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex, " Marshall warned that the decision "marks a change in the history of our marriage law."

Suddenly her ruling - that the Massachusetts Department of Public Health had to issue marriage licenses to Hillary and Julie Goodridge and six other same-sex couples - has come to seem the common sense of the matter.

Image credit.

Bartrum on The Constitutional Canon as Argumentative Metonymy

The Constitutional Canon as Argumentative Metonymy is a new paper by Ian C. Bartrum, Yale Law School and Drake Law School. Here's the abstract:

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that might accomplish this change. I offer three examples, each organized by: (1) the argumentative modality within which each text most often appears; (2) the type of evolution the text's meaning has undergone; and (3) the predominant sphere of constitutional discourse in which evolution has taken place. The first example - Thomas Jefferson's Reply to the Danbury Baptists - appears in the historical modality, and is an example of 'decanonization' accomplished in the Supreme Court. The second, Lochner v. New York, appears in doctrinal argument and exemplifies 'canonical refinement' within the legal academy. The Declaration of Independence and the Gettysburg Address are my final examples; they appear in the ethical modality, and illustrate 'canonical reformation' within the sphere of constitutional politics. Along the way, I hope that my historical narratives shed perhaps a little light on old and familiar stories. I do not intend to forward much of a normative interpretive theory of my own here, beyond pointing to Wittgenstein's generalized assertion that meaning can best be found in use. Indeed, I believe this approach is in keeping with the central and illuminating Wittgensteinian insight that Bobbitt has brought to constitutional law. That is, there are no 'right' answers to many constitutional questions; there are no foundational kinds of definitions for the most controverted constitutional terms, which we might discover if only we could hit upon the correct interpretive theory or algorithm. All that we have is the constitutional conversation itself - this discussion and its derivative decisions are, in fact, the constitution - and the only meanings we can attach to disputed terms are those that we can discover by looking to their proper use. It is nonetheless true that such a descriptive project is also, by necessity, a historical project, complete with its own kinds of interpretive decisions and normative judgments. But my aim here is at a particular kind of history--an 'argumentative' history, for lack of a better phrase - which explores the appearance and construction of canonical texts within particular arguments, and tries generally to avoid taking a position on the merits of substantive claims. In the end, I conclude that constitutional argument - like art - is better described than explained.

Image: Jefferson's reply to the Danbury Baptists.

Wednesday, May 27, 2009

Prohibition and the Functional Approach

Here's a post for those of you who just can't get enough of the in-jokes of the American legal realists about the "functional approach."

As is well known, Thurman Arnold, William Douglas, Wesley Sturges and the other legal realists at the Yale Law School never let a little thing like illegality get in the way of raucous, alcohol-fueled partying during the last years of Prohibition. Jerome Frank, who in this period was a corporate reorganizer in New York City, used to say that his principal responsibility as a "lecturer" at YLS was to import liquor to New Haven. One of the few Harvardarians welcomed at their brawls was Thomas Reed Powell, the brilliant and acerbic professor of constitutional law who had been Douglas's teacher at the Columbia Law School before moving to Cambridge in 1925. (I still laugh out loud every time I read his review of James Montgomery Beck's Constitution of the United States (1924).)

In 1930, Douglas learned that William Clark, a federal judge in New Jersey was about to publish an opinion that drew upon some of Powell's learning in quashing an indictment under the Volstead Act on the ground that the Eighteenth Amendment had been improperly ratified and wondered what Powell thought of the argument. (See H.H. Creekmore, "The Sprague Case," Mississippi Law Journal 3 (1931): 282-91.) Powell replied that it was too late in the day to argue the unconstitutionality of the Eighteenth Amendment. Besides, he continued, "‘it would be much pleasanter to talk about the distinction between law in books and law in action and to approach the problem functionally and realistically, as we did at Al McCormack’s dinner.” (McCormack was a Columbia law graduate, Harlan Fiske Stone clerk, and a lawyer at Cravath, Swaine & Moore, where Douglas had also worked.)

Douglas took up the jest in his response. “I never realized before I received your letter of the 14th what the functional approach was. Now that I have found out I have climbed on the band wagon. Evidently I have been a functionalist for years and did not know it.”

Terranova on the history of instructions from state legislatures to federal representatives

The Constitutional Life of Instructions in America is a new by paper by Christopher Terranova, New York University School of Law (JD 2009). Here's the abstract:
In America's early history, state legislatures often formally instructed their federal representatives on particular votes. This practice flourished for a century, but then died out - a change that many scholars attribute to the Seventeenth Amendment. This Note argues that previous scholars have ignored other, more important reasons for the demise of instructions.
The six-year term length for United States senators, combined with the increasingly rapid turnover in state legislatures, prevented binding instructions from becoming entrenched. Instructions were held in place only by constitutional culture, but even this did not last. After Southern Democrats vigorously used the practice to purge Whigs from the Senate, instructions were indelibly linked to the South. Not surprisingly, the doctrine of instructions was one of the casualties of the Civil War. The roles had been reversed: Now the states - especially the Southern states - were taking instructions from the federal government. Today, instructions still exist, but
as nonbinding "requests" for action. This new conception of instructions returns us full circle, to James Madison's conception of the proper role of instructions: A right of "the people . . . to express and communicate their wishes" to their representatives.

Waldref on the Reagan-Era NLRB

Although it's not on SSRN, I'm going to note the appearance of an article by a recent graduate of Georgetown Law, Vanessa Waldref, written for my seminar a few years back. I thought it provides another window on the Right's dissatisfaction with the Reagan administration, which was for me one of the most interesting facets of Laura Kalman's recent presentation at the Miller Center.

The article paper is "Reagan's National Labor Relations Board: An Incomplete Revolution," Georgetown Journal on Poverty Law and Policy 15 (2008): 285-313. Here is the abstract:
The drafters of the Taft-Hartley Act of 1947 sought to curb the power of the National Labor Relations Board, which they perceived as biased toward labor, by imposing an internal separation of powers. The Act separated the General Counsel’s administrative and prosecutorial power from the Board’s judicial authority. The Act’s supporters desired that the General Counsel would serve as a conservative counterweight to the liberal leanings of the sitting Board members under the Truman Administration. Forty years later, the unique bifurcated structure of the NLRB again became a topic of controversy, this time under the conservative watch of the Reagan Presidency. In 1980, conservative interest groups celebrated President Reagan’s resounding electoral victory, and called for the “Reagan Revolution” to implement a new conservative social policy. Organizations like National Right to Work demanded conservative labor policy reforms at the NLRB.

This paper argues that by the end of Reagan’s Presidency, the revolution at the NLRB was incomplete. The unique bifurcated structure of the Board prevented conservative interests from simultaneously capturing both the influential Board Chair and General Counsel positions. Reagan’s controversial general counsel appointee, Rosemary Collyer [pictured at left], maintained the separation of powers between the Board and Office of the General Counsel and declined to follow the demands of movement conservatives. Although unions suffered significant losses of labor law protections during the Reagan Presidency, Collyer’s independence, along with the Board’s structure, precluded a complete overhaul of labor relations law.
Image Credit

Tuesday, May 26, 2009

More on California same-sex marriage decision

Since many Legal History Blog readers are non-lawyers, I thought it might be helpful if I posted some quick thoughts about today's California Supreme Court same-sex marriage case. Full disclosure: I signed an amicus brief in the case arguing that Prop 8 should be overturned.

In today's ruling, the court did not take up the basic question of whether there is a fundamental right to same-sex marriage under the state constitution, but rather the more narrow question of whether Proposition 8, which overturned the court's earlier ruling that there was such a right, was a constitutional amendment or a constitutional revision. Amendments are proper subjects for voter initiatives in California. Revisions, which are more fundamental changes, must go though a state constitutional convention.

The court found that Prop. 8 was an amendment (and so was proper), rather than a revision. Importantly, however, to get there, the court narrowly interpreted Proposition 8. The court noted:
In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8...properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
The court carved out space for the rights of same-sex couples protected in the Marriage Cases, emphasizing: "among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure." (emphasis added). Taking into account the "actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws," (emphasis added), the court found Prop 8 not to be a constitutional revision.

What does all this mean? One possibility, especially when considered in light of the court's refusal to invalidate the marriages performed before Prop 8 went into effect (on the basis that Prop 8 was not meant to be retroactive), is that opponents of gay marriage have won the battle, but lost the war. It was only by narrowing the effect of Prop 8, thereby preserving many rights of same-sex couples in California, that the court reached this outcome. As life goes on in California, with 18,000 legally married same-sex couples, voters may well discover, as have residents of other states, that the sky will not fall. It will simply be a matter of time before Prop 8 is overturned by a new state initiative.

These are quick thoughts from an initial look at a very lengthy (135 pages!) opinion. I'll revise later if needed.
More on the possibility that there may be a silver lining from Andrew Koppelman and Ilya Somin.

Calif. Supreme Court upholds Prop 8 and pre-election same-sex marriages

This is an important day in other areas. The California Supreme Court just released an opinion upholding Proposition 8, banning same-sex marriage, but validating the 18,000 same-sex marriages performed in California from June to November 2008.

The opinion is here. Be patient -- the website has been crashing and/or inaccessible because of excessive traffic.

It's Sotomayor

Not yet legal history, but certainly historic: many news outlets are now reporting that President Obama's Supreme Court pick will be announced today: Judge Sonia Sotomayor.

The NY Times has links to some of Judge Sotomayor's previous opinions.

Tom Goldstein discusses the politics of the nomination on SCOTUS Blog.

Jack Balkin weighs in on Balkinization.

And for those interested, I have more to say here.

Photo credit.

Book panels at Law & Society

There are many panels of interest to legal historians at the Law and Society Association annual meeting later this week in Denver. LSA is one of the best meetings for a book panel, and there are several interesting book panels at this year's meeting. Here are some of the panels on new legal history books or other books of interest:
Thu, May 28 - 2:30pm - 4:15pm
Author Meets Reader--Eloquence and Reason: Creating a First Amendment Culture, by Robert Tsai

Session Participants:
Chair: Mark A. Graber (University of Maryland)
Author: Robert Tsai (American University)
Reader: Susan Burgess (Ohio University)
Reader: Lief Carter (Colorado College)
Reader: Julie Novkov (University at Albany, SUNY)

Eloquence and Reason explores how the words in the Constitution become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans. Professor Robert Tsai employs the First Amendment as a case study to illustrate that liberty is achieved through the formation of a common language and a set of organizing beliefs. He explicates the structure of First Amendment language as a distinctive discourse and illustrates how activists, lawyers, and even presidents help to sustain our First Amendment belief system. When significant changes to constitutional law occur, they are better understood as the results of broader linguistic transformations. The book concludes by positing a model of judicial review in which jurists are responsible for the management of prevailing political discourses, quite apart from any obligations they may have to substantive conceptions of the good. These fascinating ideas will be explored by experts on the First Amendment, on constitutional culture, on law and society, and on legal discourse.
Thu, May 28 - 4:30pm - 6:15pm
Author Meets Reader--In Reckless Hands: Eugenics, the Depression, and the New Deal Constitution, by Victoria Frances Nourse

Session Participants:
Chair: Brad Snyder (University of Wisconsin)
Author: Victoria Frances Nourse (Emory U/U of Wisconsin)
Reader: Catherine Albiston (University of California, Berkeley)
Reader: Dorothy Brown (Emory University)
Reader: Andrew Coan (University of Wisconsin)
Reader: Lawrence M. Friedman (Stanford University)
Reader: Anders Walker (Saint Louis University)

This book session addresses the history and historiography of a single United States Supreme Court case, best known among lawyers as a precursor to Roe v. Wade. The book tells the untold story of how a group of prisoners inside an Oklahoma prison during the Depression challenged eugenics in the case of Skinner v. Oklahoma, despite the fact that the Supreme Court had upheld its constitutionality in the infamous Buck v. Bell decision. The book not only addresses the actual, rather violent events, that led to the court's decision but also the key concepts that make the case incomprehensible today -- the court's invocation of equality, the idea of race and its role in eugenics, the transitional state of rights discourse in 1942, and the ways in which the criminology of the day propelled eugenics, as well as the New Deal constitutional revolution that led to the decision.
Fri, May 29 - 10:15am - 12:00pm
Author Meets Reader--The Origins of African-American Interests in International Law, by Henry Richardson

Session Participants:
Chair: Penelope Andrews (Valparaiso University)
Author: Henry J. Richardson (Temple University)
Reader: Maxwell O. Chibundu (University of Maryland)
Reader: Ruth Gordon (Villanova University)
Reader: Jeremy Telman (Valparaiso University)
Reader: Jeremy Levitt (Florida A & M University)

This book explores the birth of the African-American international tradition and, particularly, the roots of African Americans’ stake in international law. Richardson considers these origins as only formally arising about 1619, the date the first Africans were landed at Jamestown in the British North American colony of Virginia. He looks back to the opening of the European slave trade out of Africa and to the 1500s and the first arrival of Africans on the North American continent. Moving through the pre-Independence period, the American Revolution, the Constitutional Convention, and the Westward Migration, the book ends around 1820.
Fri, May 29 - 10:15am - 12:00pm
Author Meets Reader--What Blood Won't Tell, by Ariela Gross

Session Participants:
Chair: Clyde Spillenger (University of California, Los Angeles)
Author: Ariela Gross (University of Southern California)
Reader: Bethany Berger (University of Connecticut)
Reader: Adrienne Davis (Washington University) Reader: Jason Gillmer (Texas Wesleyan University)
Reader: Neil Gotanda (Western University)

Unearthing the legal history of racial identity, Ariela J. Gross’s WHAT BLOOD WON’T TELL (Harvard University Press, 2008) examines the paradoxical and often circular relationship of race and the perceived capacity for citizenship in American society. It tells the history of race and racism in the U.S. through the lens of "trials of racial identity," from the early republic through the present, in cases involving people of European, African, and Indian ancestry, as well as immigrants from Asia and Mexico. The panel will include discussion from the perspectives of legal history, critical race theory, and American Studies.
Fri, May 29 - 2:30pm - 4:15pm
Author Meets Reader--Exporting American Dreams: Thurgood Marshall's African Journey, by Mary Dudziak

Session Participants:
Chair: Taunya Banks (University of Maryland)
Author: Mary Dudziak (University of Southern California)
Reader: H. Kwasi Prempeh (Seton Hall University)
Reader: Henry J. Richardson (Temple University)

In Exporting American Dreams, Mary Dudziak recounts with poignancy and power the untold story of Marshall's journey to Africa. African Americans were enslaved when the U.S. constitution was written. In Kenya, Marshall could become something that had not existed in his own country: a black man helping to found a nation. He became friends with Kenyan leaders Tom Mboya and Jomo Kenyatta, serving as advisor to the Kenyans, who needed to demonstrate to Great Britain and to the world that they would treat minority races (whites and Asians) fairly once Africans took power. He crafted a bill of rights, aiding constitutional negotiations that helped enable peaceful regime change, rather than violent resistance.
Fri, May 29 - 2:30pm - 4:15pm
Author-Meets-Reader--Lawyers of the Right: Professionalizing the Conservative Coalition, by Ann Southworth

Session Participants:
Chair: Mary Nell Trautner (University at Buffalo, SUNY)
Author: Ann Southworth (University of California, Irvine)
Reader: Robert Granfield (University at Buffalo)
Reader: Laura J. Hatcher (Southern Illinois University, Carbondale)
Reader: David Wilkins (Harvard University)

This session will discuss Ann Southworth's new book on conservative cause lawyers, focusing on the elements of the conservative coalition that create coherence and division, examining lessons for cause lawyering on the left, and discussing the impact of the recent political transformation on the power of conservative cause lawyers in the future.
Fri, May 29 - 4:30pm - 6:15pm
Author Meets Reader--Whitewashed: America's Invisible Middle-Eastern Minority, by John Tehranian

Session Participants:
Chair: Rachel F. Moran (University of California, Berkeley)
Author: John Tehranian (Chapman University)
Reader: Lisa Hajjar (University of California, Santa Barbara)
Reader: Leila Kawar (Bates College)
Reader: Kathleen Moore (University of California, Santa Barbara)
Reader: Galya Ruffer (Northwestern University)

The Middle Eastern question lies at the heart of the most pressing issues of our time: the war in Iraq and on terrorism, the growing tension between preservation of our national security and protection of our civil rights, and the debate over immigration, assimilation, and our national identity. Yet paradoxically, little attention is focused on our domestic Middle Eastern population and its place in American society. Unlike many other racial minorities in our country, Middle Eastern Americans have faced rising, rather than diminishing, degrees of discrimination over time; a fact highlighted by recent targeted immigration policies, racial profiling, a war on terrorism with a decided racialist bent, and growing rates of job discrimination and hate crime. Oddly enough, however, Middle Eastern Americans are not even considered a minority in official government data. Instead, they are deemed white by law. In Whitewashed, John Tehranian combines his own personal experiences as a Middle Eastern American with an experts analysis of current events, legal trends, and critical theory to analyze this bizarre Catch-22 of Middle Eastern racial classification. He explains how American constructions of Middle Eastern racial identity have changed over the last two centuries, paying particular attention to the shift in perceptions of the Middle Easterner from friendly foreigner to enemy alien, a trend accelerated by the tragic events of September 11. Focusing on the contemporary immigration debate, the war on terrorism, media portrayals of Middle Easterners, and the processes of creating racial stereotypes, Tehranian argues that, despite its many successes, the modern civil rights movement has not done enough to protect the liberties of Middle Eastern Americans.
Sat, May 30 - 8:15am - 10:00am
Author Meets Reader--Stages of Capital: Law, Culture, and Market Governance in Late Colonial India, by Ritu Birla

Session Participants:
Chair: Kunal M Parker (Cleveland Marshall University)
Author: Ritu Birla (University of Toronto)
Reader: Teemu Ruskola (Emory University)
Reader: Christopher Lawrence Tomlins (American Bar Foundation)
Reader: Leti Volpp (University of California, Berkeley)

Ritu Birla's book "Stages of Capital: Law, Culture and Market Governance in Late Colonial India" charts the legal institutionalization of 'the market' as an abstract object of governance and places commercial law at center of broader debates about colonial modernities, governmentality, and subject-formation. The argument traces the introduction of categories of public and private into colonial law relating to the economy, categories, Birla argues, that distinguish the realm of economy from that of culture. At the same time, Birla explores the ways in which the language of contract translates the "embedded" value-systems of indigenous kinship-based capitalists.
Sat, May 30 - 4:30pm - 6:15pm
Author Meets Reader--Constitutional Rights in Two Worlds: South Africa and the United States, by Mark Kende

Session Participants:
Chair: Peter Yu (Drake University)
Author: Mark Kende (Drake University)
Reader: Penelope Andrews (Valparaiso University)
Reader: Taunya Banks (University of Maryland)
Reader: Miguel Schor (Suffok University)

The South African Constitutional Court has issued internationally prominent decisions abolishing the death penalty, enforcing socio-economic rights, allowing gay marriage, and promoting equality. By contrast, the U.S. Supreme Court has generally ruled more conservatively on similar questions. This book examines the Constitutional Court in detail to determine how it has functioned during South Africa's transition and compares its ruling to those of the U.S. Supreme Court on similar rights issues. The book also analyzes the scholarly debate taking place in South Africa about the Constitutional Court. It furthermore addresses the arguments of those international scholars who have suggested that constitutional courts do not bring about social change. In the end, the book highlights a transformative pragmatic method of constitutional interpretation, a method the U.S. Supreme Court could employ. This Author meets Readers panel will consist of scholars who discuss, critique, and expand on the book's themes.

Recent H-Net Reviews

A number of interesting books have been reviewed recently on H-Net and circulated via H-Law. Among them:

Douglas T. Stuart. Creating the National Security State: A History of the Law That Transformed America. Princeton: Princeton University Press, 2008.

Kimberly Jensen. Mobilizing Minerva: American Women in the First World War. Urbana: University of Illinois Press, 2008.

Sharon Block. Rape and Sexual Power in Early America. Chapel Hill: University of North Carolina Press, 2006.

Fay A. Yarbrough. Race and the Cherokee Nation: Sovereignty in the Nineteenth Century. Philadelphia: University of Pennsylvania Press, 2008.

Clara Sue Kidwell. The Choctaws in Oklahoma: From Tribe to Nation,1855-1970. American Indian Law and Policy Series. Norman: University of Oklahoma Press, 2007.

William F. Schulz, ed. The Future of Human Rights: U.S. Policy for a New Era. Pennsylvania Studies in Human Rights Series. Philadelphia: University of Pennsylvania Press, 2008.

Harold Holzer, Sara Vaughn Gabbard, eds. Lincoln and Freedom:Slavery, Emancipation, and the Thirteenth Amendment. Carbondale: Southern Illinois University Press, 2007, and Joseph R. Fornieri, Sara Vaughn Gabbard, eds. Lincoln's America:1809-1865. Carbondale Southern Illinois University Press, 2008.

Michael Salter. Nazi War Crimes: Intelligence Agencies and Selective Legal Accountability. Abingdon: Routledge-Cavendish, 2007.

Antony E. Simpson, ed. Witnesses to the Scaffold; English Literary Figures as Observers of Public Executions: Pierce Egan, Thackeray, Dickens, Alexander Smith, G. A. Sala, Orwell. Lambertville: TrueBill Press, 2008.

Monday, May 25, 2009

Friedman on Reconstruction: Some Problems for Originalists (and for Everyone Else, Too)

Barry Friedman, New York University School of Law, has posted a new article, Reconstruction: Some Problems for Originalists (and for Everyone Else, Too). It appears in the Journal of Constitutional Law (2009). Hat tip to Larry Solum, who comments on Friedman here. Here's the abstract:
Reconstruction, America's Second Founding, plays a remarkably small role in constitutional theory. This paper, prepared as part of a symposium aimed at addressing that neglect, discusses the serious interpretive problems posed by an attempt to work Reconstruction - and its aftermath - into the constitutional canon. These problems range from the paucity of extant materials to help understand the intentions of the ratifiers of the Fourteenth Amendment, to the lack of any place in constitutional theory for dealing with constitutional events amendments the country ratifies then effectively rejects. Problems such as these pose an almost insurmountable difficulty for originalists - but they don’t make life easy for other interpretive methodologies either. This paper bears upon the history of the Reconstruction Amendments, as well as interpretive theory.

More from Calo on Catholic Social Thought, the Establishment Clause, Human Rights, and Poor Relief

Zachary R. Calo, Valparaiso University School of Law, has just posted a number of manuscripts on SSRN. Just posted is an article, 'The Indispensable Basis of Democracy': American Catholicism, the Church-State Debate, and the Soul of American Liberalism, 1900-1920. It appeared in the Virginia Law Review (2005). Here's the abstract:
Several recent works of scholarship explore how Establishment Clause jurisprudence has been shaped by broader political debates over the role of religion in public life. This literature focuses on the politics of anti-Catholicism, particularly during the early years of Establishment Clause jurisprudence in the1940s and 1950s. While not questioning the centrality of this period to the historical narrative, this Note argues that the political contest over church and state took shape in an earlier debate over the compatibility of Catholicism and the Constitution during the 1920s. The Church’s response to the anti-Catholicism of this period was of particular importance. Catholic apologists actively challenged the widespread argument that Catholicism could not be reconciled with a democratic liberal political order. In fact, Catholics not only defended the doctrinal compatibility of Catholic social thought and the constitutional separation of church and state. They argued that Catholicism was ideally suited to preserving the moral foundations of the free society. Far from imperiling American democracy, Catholicism was, in the words of the Church’s leading social theorist, "The Indispensable Basis of Democracy." Thus, rather than aiming to depoliticize the church-state fracas of the 1920s, American Catholics drove the issue ever more fully into the realm of politics and culture. In the process, Catholics developed a worldview that now stands at the heart of Establishment Clause politics.
Calo's newest paper is Catholic Social Thought, Political Liberalism, and the Idea of Human Rights.
As the dominant moral vocabulary of modernity, the language of human rights establishes significant points of contact between the religious and the secular. Yet, the human rights movement increasingly finds itself in a contested relationship with religious ideas and communities. Even as the idea of human rights draws on the inherited moral resources of religion, the movement, at least in many of its dominant institutional and intellectual expressions, has established itself as an autonomous moral discourse. In this respect, the human rights movement, as an expression of western liberalism, presents itself as a totalizing moral theory that challenges countervailing theological accounts of human rights. This paper considers the distinctive account of human rights which has emerged out of Catholic social thought’s engagement with political and economic questions. Particular attention is given to the process by which Catholic thinking about human rights has embraced the possibilities of political liberalism while also bounding liberalism within a particularistic theologically-informed account of the human person. The distinctiveness of the Catholic account of human rights raises questions about the role of Catholicism, and religious communities more generally, in shaping the law of human rights. To what extent can secular and religious approaches to human rights law find common cause and overlapping consensus? How does a Catholic account of human rights rooted in theological anthropology relate to a regnant secular tradition which rests on theological categories shorn of religious content (and which has become its own intellectual and moral tradition that is, in important respects, a
counter-theology)? While a Christian theological jurisprudence must maintain a concern with the common good, the fractured moral consensus of late modernity usually demands that the goods identified be described with reference to the internal resources of the tradition. Catholicism, in this respect, might both advance and challenge the universalistic impulses of the human rights movement.
Also posted is an article, From Poor Relief to the Poorhouse: The Response to Poverty in Prince George’s County, Maryland, 1710-1770. It appeared in Maryland Historical Magazine (1998).
In 1671, the Maryland legislature empowered county justices to levy a tax for support of the poor. Because the number of poor remained small during this period, providing them with annual pensions proved to be an efficient and economical means of meeting the needs of elderly and infirm residents who were unable to labor and achieve self-sufficiency. Furthermore, those public dependents who were particularly old or disabled and thus in need of assistance beyond what standard pensions could provide were placed in the homes of community members whom the county paid to act as caretakers.
Dramatic changes that developed in the early 1760s rapidly undermined the effectiveness of the traditional poor relief system. For one, a steady increase in the population of several counties forced the relief system to provide for more people. Even more significant was the tremendous growth in the number of pensioners who received relief for long periods of time. This trend made it necessary for county taxpayers to support a population of dependents who were increasing at a faster rate than the population as a whole.
At the same time the poor relief system was becoming more expensive to operate, broad social and economic changes were limiting opportunities for financial advancement and thus creating a class of landless vagrants who roamed the region looking for a means of survival. Unlike traditional recipients of public relief, vagrants were generally young able-bodied males whom the public did not consider worthy of assistance. As a result, many counties began to petition the legislature for the right to construct poorhouses that could confine and control beggars and also provide a more economical means of caring for public dependents.
In this study, I argue that the transition from outdoor relief to the poorhouse encouraged new attitudes toward the poor. While the poor were once viewed as pitiable people worthy of public support, county residents came to view the poor as shameful and burdensome people who needed to be separated from society. The once stark distinction between the deserving and undeserving poor was largely eliminated.
And there is more on SSRN: 'True Economic Liberalism' and the Development of American Catholic Social Thought, 1920-1940, which appeared in the Journal of Catholic Social Thought (2008), and a chapter from Calo's book manuscript, The Circumscribed Radicalism of New Deal Catholicism: Catholic Liberalism in the 1930s.

Sunday, May 24, 2009

Reviewed: Books on The American Future, women soldiers in Iraq, Israel and Palestine in 1948, and Vanderbilt

THE AMERICAN FUTURE: A History by Simon Schama is reviewed in the Boston Globe. Glenn C. Altschuler writes:

In "The American Future," Simon Schama, a professor of history at Columbia University, looks to an alternative America "that was actually there all along" to address the disintegration of the nation's moral authority and economic security. Grounded in the Declaration of Independence and the US Constitution, this America, he argues, views government not as the enemy of freedom and free enterprise but as their guardian and guide. This America is inclusive and tolerant, accepts natural resources as a public trust, and does not go to war without good and sufficient cause.
In the New York Times, David Brooks has a different take, calling it a "Brilliant Book" that "has nothing whatsoever to do with the American future." The Brilliant Book, it turns out, is "the most punishing of literary cages." For the brilliant writer involved in such a project,

Along the way, his writing will outstrip his reportage. And as his inability to come up with anything new to say about this country builds, his prose will grow more complex, emotive, gothic, desperate, overheated and nebulous until finally, about two-thirds of the way through, there will be a prose-poem of pure meaninglessness as his brilliance finally breaks loose from the tethers of observation and oozes across the page in a great, gopping goo of pure pretension.

These are the moments we Brilliant Book aficionados live for.

The Lonely Soldier: The private war of women serving in Iraq by Helen Benedict has been reviewed in the L.A. Times. Deanne Stillman writes that as "Benedict documents in her important, finely drawn book,...many find out they're fighting two wars: the one against the official enemy and the one against their male compadres." A play based on Benedict's book was performed in New York this spring.

In the New York Review of Books, Gershom Gorenberg takes up 1948: A History of the First Arab-Israeli War by Benny Morris, and Making Israel edited by Benny Morris, and A History of Palestine: From the Ottoman Conquest to the Founding of the State of Israel by Gudrun Krämer, translated from the German by Graham Harman and Gudrun Krämer. According to Gorenberg,

Morris has returned again and again to writing about 1948, as if he wakes up every morning anew in that year, inside the impossible trauma of Israel coming into existence as the Palestinians go into exile, rewriting it, dissatisfied, still seeking to get the story right, trying to fulfill the credo he has set:

"I believed, and still believe, that there is such a thing as historical truth; that it exists independently of, and can be detached from, the subjectivities of scholars; that it is the historian's duty to try to reach it...."...

Rather than focusing on the exodus, 1948 is a military history of the entire war.
Read the rest of this extensive review is here.

THE FIRST TYCOON: The Epic Life of Cornelius Vanderbilt by T.J. Stiles is reviewed by Alice Schroeder in the Washington Post. Schroeder writes that

Vanderbilt's colorful battles made him a magnet for mythology. Much of what has been written about him until now was dictated by his enemies. Stiles, a superb researcher, has unearthed quantities of new material and crafted them into the illuminating, authoritative portrait of Vanderbilt that has been missing for so long; Stiles has also debunked several myths about Vanderbilt, such as that he showed no tenderness toward his family and that he died of syphilis.

Saturday, May 23, 2009

Blue Sky Laws and the Progressive Regime

[The exam in my American Legal History usually consists of historical narratives on some subject or person analogous to the subjects and persons we discussed in class and questions that ask the students to draw their own parallels. Securities regulation was much on my mind this semester, thanks to an invitation to present on the early years of the Securities and Exchange Commission to the Tobin Project. Here's the first narrative from the exam, which addresses the first half of the course, on the emergence and consolidation of the Progressive legal-political regime (q.v. my chapter in the Cambridge History of Law in America):]

Most Securities Regulation classes begin with the New Deal and, in particular, the Securities Act of 1933. Under this “truth-in-securities” law, federal administrators did not offer an opinion on the merits of an investment; they simply required the investment bankers, brokers, and corporate officials behind the issuance of a stock or bond to disclose a great deal of information relating to the security and then let investors decide whether it was right for them. But securities regulation predated the New Deal by over twenty years in the guise of “blue-sky” laws enacted by the states. Kansas adopted the first in 1911, at the urging of J.N. Dolley, a successful rural banker and Republican politician who had seen depositors withdraw their funds to purchase stock backed by nothing more than the “blue sky.” Dolley [pictured at left] claimed that honest farmers, widows, and orphans, “whose knowledge of business is limited,” were “more or less at the mercy of the dishonesty and shrewdness” of promoters. Rather than offer safe investments, like railroad bonds, these “confidence men and thieves” hawked securities backed by speculative oil and gas wells, mines, and housing developments. To remove such “financial cancers,” Kansas required anyone selling a security within the state to obtain a license from the state banking commissioner. The commissioner would issue a license only if he concluded that the issuer intended “to do a fair and honest business” and that the security offered investors “a fair return.” Eleven states followed suit in the next two years. By 1931, only Nevada had failed to enact some kind of securities legislation.

Of course, investors swindled out of their money by fraudulent misrepresentations had always had a remedy against the sellers at common law. In practice, however, an action for fraud was unsatisfactory. By the time an investment went bust, the promoters often were nowhere to be found or otherwise judgment-proof. Also, plaintiffs rarely could show that promoters had made factual statements that they knew to be false, as common-law fraud required. Typically promoters simply expressed opinions or failed to reveal known defects–neither being illegal under the common-law doctrine of caveat emptor. Opponents of blue-sky laws called them paternalistic and claimed that they would produce “a nation of fools and weaklings.” Defenders replied that “the enlightened view of modern times” was to prevent public evils before they could occur. The blue-sky law was simply an exercise of “society’s right of self-defense.” Yes, a defender explained, shady investments hurt individuals, but it was only through individuals that the “incidence of any evil” fell “upon the community.” Dolley offered an additional justification: his law kept “Kansas money in Kansas,” where it would help local farmers and small businesses, rather than enrich “New York Stock Exchange speculators and gamblers.” Still other defenders said that blue-sky laws kept potential investors from becoming “distrustful of all” investments and fleeing the capital markets altogether.

Commonly, blue-sky laws empowered state commissioners to obtain financial statements of the company issuing and broker offering a security, the mortgage that secured the issue, and other documents. Commissioners were empowered to make detailed investigations of the issuer’s “property, business, and affairs” at the issuer’s expense. The commissioner who denied a license had to explain why the security was “unfair, inequitable, dishonest or fraudulent,” but few statutes required a hearing before the denial. Rather, the disappointed issuer was to challenge the denial in court. There, the issuer bore the burden of disproving the commissioner but could introduce new evidence, and the judge was not bound by the commissioner’s view of the facts. Lawyers for investment bankers charged that the broad delegation of legislative power to an administrator left too much “room for the play and action of purely personal and arbitrary power.” The definitive rejection of this argument came in 1917, when the U.S. Supreme Court upheld blue-sky laws in the Geiger-Jones case. Justice Joseph McKenna reasoned that the broad delegation was justifiable because the valuation of securities was “a complex problem” requiring skill and expertise. In any event, McKenna wrote, “an adverse judgment by the commissioner is reviewable by the courts.”

Despite this seeming defeat, investment bankers soon turned the evasion of blue-sky laws into “a well-developed art.” Because the states could only constitutionally reach sales that took place within their borders, the bankers offered securities through the mail “by prospectus” and formally completed sales in a home office in some other state. In the 1920s, business lobbyists got state legislators to exempt any security listed on a stock exchange; the securities of public utilities and other regulated industries; local, state, and federal bonds; and the securities of companies with a recent history of profits. Reconciling such exemptions with the basic philosophy of a blue-sky law “require[d] a good deal of imagination,” a treatise writer observed.

Further, the securities commissioners appointed in the 1920s generally lacked “the vigilance, energy, and intelligence” to administer a blue-sky law properly. Determining whether a mining property in Mexico, a railroad in China, or an automobile invention offered an investor “a fair chance to gain by his investment” required a staff of hundreds, which no state employed. “Administrative favoritism, even bribery,” were said to be common. Commissioners denied licenses to the business rivals of their cronies and favored political contributors. Even before the Stock Market Crash, knowledgeable observers had concluded that blue-sky laws were a regulatory charade.

Image credits: Joseph Norman Dolley; Joseph McKenna

[Sources include the standard articles on the subject and Morton Keller's indispensable Regulating a New Economy (1990).]

Milton V. Freeman

[Here' the narrative from a second question on my exam in American Legal History, a biographical sketch of Milton V. Freeman, whose career, as my students noted, shared a great deal with other young New Deal lawyers.]

Milton Victor Freeman (1911-2000) was born in New York City, the child of two Jewish immigrants from Russia. His father was a carpenter, until the Great Depression, when he lost his job, and his mother was “Chief Executive Officer of the house.” A precocious child, Freeman graduated from the City College of New York at the age of nineteen and from the Columbia University Law School three years later in 1934. He was an editor of the law review and, while a student, wrote a note on the Securities Act of 1933 that caught the eye of James Landis, the member of the Federal Trade Commission charged with implementing that statute. Landis offered Freeman a job straight out of law school and Freeman accepted. It was an easy decision because his only other interview was with one of New York’s “Jewish” law firms, and its partners dropped him once they learned he was considering the FTC job.

Freeman claimed to have been “a convinced New Dealer” before he left for Washington, but after a few weeks of dull work at the FTC, he was ready to leave. He stayed only because he was assured that he would have more interesting work in the General Counsel’s office of the newly created Securities and Exchange Commission. Freeman would work at the SEC from 1934 to 1946. In his last position at the commission, he made $8,100 or about $86,000 today. He claimed not to have been discriminated against, but he did recall that his superiors once felt obliged to refer to a new hire as “I.S. Weissbrodt” rather than “Israel Saul Weissbrodt,” so as to minimize the chances of drawing fire from congressional overseers.

Looking back from the 1970s, Freeman thought that the legal staff worked easily with Wall Street lawyers, thanks to the SEC’s “constant policy . . . of consultation with industry and with the bar.” “None of us resented the people on Wall Street,” he claimed. “We listened to their arguments.” The SEC lawyers realized that they could never acquire “the experience in [the] day-to-day operation of industry and of the financial community that members of those communities” had. To regulate effectively, they needed to “harness that vast reservoir of knowledge”; consulting the financiers’ lawyers was the best way to do this. Only when private practitioners tried to undermine the securities laws did matters grow heated and Freeman get “called all kinds of names.”

On at least one occasion, congressmen did the name-calling. In 1942 Freeman oversaw the drafting of the SEC’s new “proxy rules,” which, among other things, required companies to disclose the name of any officer or director earning more than $20,000 ($254,000 in today’s money). A hostile committee of the House of Representatives called him to task in 1943. After grilling Freeman about his reported statement that “We [that is, the SEC’s members and staff] do make the law,” the congressmen moved on to other matters. One noted that Freeman had belonged to the Washington Committee for Democratic Action (which defended the civil liberties of government employees), the American League against War and Fascism, and the Washington Book Shop Association and that Congressman Martin Dies had named him a Communist. Freeman acknowledged that he had joined those groups and denied ever having been a Communist. He was then questioned about his draft status and speeches against the FBI’s surveillance of allegedly disloyal government employees.

In 1946 Freeman joined the firm later known as Arnold & Porter, where he would remain for the rest of his career. In his first year, he unsuccessfully represented a friend who had been fired from a government job because of “a reasonable doubt as to his loyalty.” When Truman established his loyalty-security program the following year Freeman told himself, “We just got out of the government in time.” As he later recalled, “All of our friends, and the friends of our friends, were being called” before loyalty review boards.

Freeman’s other cases at Arnold & Porter involved food-and-drug law, antitrust, taxation and of course securities regulation. “The prime responsibility of the private counsel” in an SEC case, he explained, “is to be as thoroughly familiar as conditions permit with the facts and business conditions” of the client’s transaction. Then the lawyer should consider whether “the underlying policy and statutory language fairly prohibit the transaction or can be said to allow it.” That, of course, was no easy task. Even “the most experienced and competent attorney . . . in one of the smaller industrial cities” might never learn of a shift in the informal views of the staff. Washington lawyers, in contrast, followed such subtleties closely and effectively represented their clients in conferences with the commission’s staff.

Image credit (and an oral history)