Thursday, June 30, 2011

A Legal Historian's First Book: Signing Off

Heartfelt thanks to Mary and the rest of the Legal History Blog for warmly welcoming me as a guest this month. I am also very grateful to all of you who commented on this series of posts on the process of writing a first book, both on and off the blog.

A couple of readers requested a central set of links to each post in the series; here it is.

Thanks for reading!

A Legal Historian's First Book: Table of Contents

Part I: “Revising” the Dissertation
Part II: Archival Research
Part III: The Book Proposal
Part IV: The Book Contract
Part V: (Law Review) Articles vs. Books
Part VI: Outside Reviews
Part VII: Restructuring and Introducing Characters
Part VIII: Doctrine, Clarity, and Context
Part IX: The Hatchet and the Scalpel
Part X: The Production Process, and Letting Go
Part XI: The Author's Questionnaire

Fagernäs on Birth Registration and Child Labor Laws

Sonja Fagernäs, Department of Economics, University of Sussex, has posted Protection Through Proof of Age: Birth Registration and Child Labor in Early 20th Century USA. Here is the abstract:
A birth certificate establishes a child's legal identity and is the sole official proof of a child's age. However, quantitative estimates on the economic significance of birth registration are lacking. Birth registration laws were enacted by the majority of U.S. states in late 19th and early 20th centuries. Controlling for state of birth and cohort effects, the differential timing of birth registration laws across US states is used to identify whether birth registration changed the effectiveness of child labor legislation between 1910 and 1930. The incidence of child labor declined significantly in the early 20th century. The study finds that if a birth registration law had been enacted by the time a child was born, the effectiveness of minimum working age legislation in prohibiting under-aged employment more than doubled. This effect was stronger for children residing in non-agricultural areas.
This is in line with what I learned from a little research, conducted for my 2007 exam in American Legal History, on the administration of the Keating-Owen Act between its passage in 1916 and its demise in Hammer v. Dagenhart (U.S. 1918).  To quote from the exam:
A second issue was what evidence to accept in certifying the age of the child. The states were only just beginning to require the official registration of births; in North Carolina, where many children labored in textile mills, fewer than one percent of births were registered. After conducting public hearings of employers and state officials, a regulation was adopted that declared birth certificates the most reliable evidence, followed (in descending order of reliability) by baptismal records, Bibles regularly used to record a family’s vital statistics, and affidavits from two doctors, one of whom had to be a member of the U.S. Public Health Service. (Employers unsuccessfully attempted to add the affidavits of parents to the list.)
In general, the administration of the Act by the Child Labor Division of the Children's Bureau of the Department of Labor struck me as an interesting, if of course truncated, episode in the history of the American state.  The Division's director, the Chicago social worker Grace Abbott, struggled to develop procedures that maximized the reach of her small staff without falling violating doctrines of doctrines of administrative law and procedure that were only just taking shape.  (Among Abbott's legal advisers were two allies from Chicago's reform movement, Ernst Freund and--wait for it--Roscoe Pound.)  A nice master's thesis or dissertation chapter could be written by someone with the requisite legal and historical skills and access to the National Archives.

Morawetz on "Counterbalancing Distorted Incentives in Supreme Court Pro Bono Practice"

In addition to the works cited in the prior post on the Supreme Court pro bono bar, historians and legal scholars who are thinking about the impact of competition on Supreme Court practice may be interested in "Counterbalancing Distorted Incentives in Supreme Court Pro Bono Practice," an article recently published in the New York University Law Review by Nancy Morawetz (NYU--Law). It caught my eye because it does begin with historical framing, although it's mostly a normative work. The abstract of the article follows, and the full article is here.
The emergence of a new Supreme Court Pro Bono Bar, made up of specialty practices and law school Supreme Court clinics, has altered the dynamic of litigation related to public interest issues. The new Bar often brings expertise in Supreme Court litigation to cases where there may otherwise be a dearth of resources to support high quality lawyering. But at the same time, this new Bar is subject to market pressures that have important consequences. This Article shows how members of this new Bar are engaged in a race for opportunities to handle Supreme Court cases on the merits. At the certiorari stage, this Bar can be expected to engage in truncated case analysis, avoid coordination with lawyers handling similar cases, and otherwise make decisions that are influenced by each firm’s interest in being in a position to handle cases on the merits before the Supreme Court. Moreover, throughout the litigation, this Bar may be influenced by the merits opportunity that provided the incentive to take the case in the first place.

This Article explores the implications of this new dynamic in Supreme Court litigation for both pro bono practices and public interest practice communities. With respect to pro bono practices, this Article proposes principles that firms could adopt, including those that relate to the selection of cases for free representation and those that relate to the nature of representation that the pro bono practices provide once the firm has taken on representation. With respect to public interest practice communities, this Article considers the strategic decisions that practice communities face in light of the new Supreme Court Pro Bono Bar. This Article argues that practice communities must anticipate Supreme Court activity on the issues that interest them and must engage constructively both with lawyers whose cases might be possible targets for a petition for writ of certiorari and with the Supreme Court Pro Bono Bar.

Postema on Holmes's Path for American Jurisprudence

Gerald J. Postema, University of North Carolina, has posted the chapter Justice Holmes: A New Path for American Jurisprudence, which is from his book Legal Philosophy in the Twentieth Century: The Common Law World (Springer, 2011). The preface and outline of the book are here.  Here is the abstract for the chapter on Holmes:
Library of Congress
Legal Philosophy in the Twentieth Century: The Common Law World (Springer, August, 2011) offers a critical history of Anglophone jurisprudence since 1870. It is the tale of two Boston lectures, Holmes’s, “Path of Law,” (1897) and Hart’s Holmes Lecture, “Positivism and the Separation of Law and Morals” (1958), and their respective legacies. “Justice Holmes: A New Path for American Jurisprudence” is chapter 2 of this larger work, setting the context and a framework for understanding Holmes’s justly famous lecture. Focusing strictly on Justice Holmes’s jurisprudential writings, the last of which was published in 1899, it defends a new interpretation of his understanding of law. It sets his early work along-side that of his life-long interlocutor, Frederick Pollack. This reveals Holmes to be equally inheritor and critic of classical common-law theory and practice of law, departing only modestly from the alleged formalism of Langdell. His early static or synchronic conception of law (“enforcement positivism”), developed from a critique of Austin’s sovereignty-focused positivism, stands behind and informs the dynamic or diachronic conception Holmes worked out in The Common Law. According to this account, the, “sovereign prerogative of [judicial] choice,” is framed and constrained by a collective effort to give effect to past judicial decisions and the legal issues they define. Keenly aware of both role and limits of theory in legal reasoning and adjudication, Holmes’s deep skepticism of morality and human reason generally led him to a decisively conservative view of proper judicial decision-making which stands in sharp contrast to the radicalism of American legal realists who claimed him as intellectual father. Holmes was not without responsibility for the radical directions in which his thought was sometimes taken by later generations of (largely American) legal theorists, since he was always willing to sacrifice precision and care for the bold and provocative bon mot. However, a sober assessment of the jurisprudence underneath his rhetoric reveals an innovative legal theorist working within and revising somewhat classical common-law understanding of law and the role of practical reasoning in law. [NOTE: references for this chapter are not provided, but they may be obtained by request from the author.]

Wednesday, June 29, 2011

Hovenkamp on "Neoclassical" Legal Thought

Herbert J. Hovenkamp, University of Iowa College of Law, has posted A Preface to Neoclassical Legal Thought. Here is the abstract:
Most legal historians speak of the period following classical legal thought as “progressive legal thought.” That term creates an unwarranted bias in characterization, however, creating the impression that conservatives clung to an obsolete “classical” ideology, when in fact they were in many ways just as revisionist as the progressives legal thinkers whom they critiqued. The Progressives and New Deal thinkers whom we identify with progressive legal thought were nearly all neoclassical, or marginalist, in their economics, but it is hardly true that all marginalists were progressives. For example, the lawyers and policy makers in the corporate finance battles of the 1920s, who advocated for the abolition of par value stock and the adoption of more forward looking theories of corporate valuation, were thoroughly marginalist in their reasoning, but by and large they were regarded by Progressives as the enemy.

Indeed, corporate finance and minimum wage policies are areas where progressive and corporation lawyers flipped against each other. On the minimum wage question, corporate interests in the early twentieth century generally clung to the classical and backward looking “wage fund” theory, which set an absolute limit on wages based on historically accumulated capital. Progressives embraced a forward looking marginal productivity theory. By contrast, in corporate finance, corporate interests generally rejected the view that corporate value should be driven by historically paid in capital as reflected in stated “par” value of shares. Rather, they believed that stated corporate value should be based on reasonable economic prospects, and that this made the concept of par value obsolete.

Neoclassicism in both economics and law was a big tent that fed different and inconsistent ideologies. Describing the successor ideology to classical legal thought as “progressive” does not do justice to the range of views that the successors had. Marginalism in economics led to influential legal theories about policy making, and about the relationship between interest groups and welfare. On one side, it led to progressivity in tax policy, championed by Progressive marginalist economist Edwin R.A. Seligman [right]; and the idea that workers’ wages were limited by nothing more than the marginal contribution of each worker to the employer. Marginalism’s strong environmentalism also eventually led to greater egalitarianism in race policy, although that change was not reflected in the writing of the Progressives, who attempted to be both marginalist and genetic determinist. On the other side, marginalism also led to a comprehensive revision of corporate finance theory and the modern theory of the large corporation, in which shareholders are all but irrelevant. Marginalism also gave us public choice theory and its deep distrust of government, developed by such writers as Mancur Olson and Buchanan and Tullock in the 1960s. The theory was derived directly from models of competition in neoclassical economics, and the authors were all economists.

This essay briefly describes the contours of neoclassical legal thought, including its dramatic impact on constitutional adjudication and regulatory theory, corporate law and finance, labor law, race relations, and competition policy.

Thinking Historically about a "Supreme Court Pro Bono Bar"

The rise of a Supreme Court pro bono bar and Supreme Court clinics is of journalistic and scholarly interest. Critics of Supreme Court clinics worry that competition to litigate cases in the Court might have an adverse impact on outcomes for individual clients or causes.

Compare this worry to scholarly concern about a distinct but related matter: the advent of an elite Supreme Court bar for private interests--corporate lawyers who work at top-notch private law firms. In recent years, Richard Lazarus has argued, the corporate bar influenced both the types of cases that the Supreme Court has heard and the merits of disputes. See Lazarus, "Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar," 96 Georgetown L. J. 1487 (2008).

I've followed both strands of recent discussions of the Supreme Court bar with great interest, mostly because of my prior work on the legal history of the public interest bar. Against the backdrop of that work, one feature of the present conversation about the pro bono Supreme Court bar has seemed odd to me: its ahistoricism.

The ways in which the private sector has advanced its interest at the Court through an elite Supreme Court bar strike me as entrepreneurial, opportunistic, and historically unique in many respects, as Professor Lazarus argues.

But competition within the Supreme Court pro bono bar in ways that both transformed the Court's docket and the legal and social worlds of clients and society probably should not be understood as an entirely new historical phenomenon. Some of the most interesting legal history and constitutional scholarship of late explores the strategic and even competitive contexts in which twentieth-century public interest lawyers crafted strategies and tactics as they sought to form socioeconomic problems into legal claims heard in the U.S. Supreme Court. Melvin Urofsky's biography, Louis D. Brandeis: A Life, describes the tremendous influence that the lawyer wielded as he sought to transform the law in ways consistent with the objectives of Progressive Era reformers. Risa Goluboff's book, The Lost Promise of Civil Rights, on the relationship between the labor and civil rights movement during the 1930s, argues that lawyers did not pursue certain types of labor and civil rights claims at the Court because of might be understood as competitive pressures, internal and external to the bar. Sophia Lee's work on the national NAACP and its "workplace constitutionalism" uncovers the lawyers' complex strategic choices as well. See Lee, Hot Spots in the Cold War. Speaking of the NAACP, I can hardly leave out my own argument. A critical examination of interaction between the national NAACP and local groups over time can tell us much about how national NAACP lawyers shaped the Supreme Court's docket, even as these mainstream lawyers contended with the competing perspectives of grassroots lawyers and social movement activists.  We see lawyers and activists skeptical of certain types of civil rights litigation and deeply concerned about economic inequality when we look at the civil rights movement from the bottom up, I've argued. Serena Meyeri's book on feminist legal theory and practice during the 1970s, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, explores how one form of liberal feminist legal advocacy won out at the Supreme Court over other possibilities as feminists contested notions of equality. Steven Teles's book, The Rise of the Conservative Legal Movement, which chronicles how lawyers for political conservatives and corporations shaped legal agendas during the late 1960s and 1970s, also is germane to the question of how a specialized and politicized bar transformed the Court and society.

In these examples and others, scholars have shown that competition among members of the bar, along with internal dynamics on the Court and external political, social and economic forces, shaped legal outcomes and marked the boundaries of opportunity for citizens over the course of the twentieth century.  In addition to providing scholars with more nuanced understandings of the Court, lawyers, and the legal process, I suspect that historical works such as these could add depth to discussions of present Supreme Court litigators who intend to work in the public interest.

Malcolm Mason, Julius Goebel, Jr., and the "Control of Business" Project

Recently Malcolm S. Mason posted 1485: Control of Business in the Early Tudor Period on the SSRN. The paper is the introductory chapter of a book manuscript on which he commenced work over seventy-five years ago as a research assistant in the Foundation for Research in Legal History (FRLH) at the Columbia Law School. Under the FRLH's Director, Julius Goebel, Jr., Columbia became the font of one of the great traditions in the writing of American legal history, the "Development of Legal Institutions" or "DLI." I was trained in the tradition as a law student at the University of Chicago, and it has been preserved for another generation in the remarkable text, History of The Common Law: The Development of Anglo-American Legal Institutions, by John H. Langbein, Renee Lettow Lerner, Bruce P. Smith. The appearance of a portion of Mason's long lost work has prompted me to investigate the circumstances of its writing and Goebel's apparent decision not to publish it. My investigation is incomplete, but rather than let the posting of Mason's chapter pass unremarked, I am filing an intermediate report now.

Malcolm Mason was born in the Bronx in 1910. He graduated from Columbia College with honors in 1930 (after studying with Mortimer Alder and Mark Van Doren), spent the next academic year studying philosophy in France, and was admitted to the Columbia Law School in 1931. He was an outspoken student who frankly told Columbia's eminences when he thought they were wrong. This offended some but delighted Karl Llewellyn. Mason took Goebel's course on the Development of Legal Institutions with everyone else in the first year class, but, unlike most everyone else, he suggested improvements to the DLI materials, which Goebel later adopted. Later, he impressed Goebel with a research paper that pursued the duty to rescue through sources in Aramaic, Bulgarian, French, Gaelic, Hebrew, Italian and Latin.

Graduating in 1934, Mason followed three law school friends to Jerome Frank's legal division at the Agricultural Adjustment Administration, where he worked in the opinion section under Frank Shea and Telford Taylor. At some point he also assisted Alger Hiss when AAA lent the pair to the Special Senate Committee on Investigation of the Munitions Industry. That summer Goebel contacted him with an offer of a fellowship that, at $3,000, paid more than his AAA salary. Mason requested a leave of absence and commenced his work for Goebel on October 1, 1934. Although gone from Washington, he was not forgotten. After Frank and other AAA lawyers were purged for their liberal ways in February 1935, Telford Taylor commended him to Thomas Corcoran, the "network entrepreneur" of the New Deal lawyers, as "unusually good and well worth inquiring about," although Taylor was "not sure how keen he would be to come down," in light of his "very fat fellowship." In fact, Mason remained at Columbia for four years, assisting Goebel for pay and Llewellyn without compensation. He finally left Morningside Heights for the National Labor Relations Board in 1938.

I met Mason in September 2005, when I traveled to his daughter and son-in-law's house near Charlottesville to interview him about his time at the AAA and NLRB. When he mentioned his fellowship with Goebel, I was intrigued. At the University of Chicago Law School, Richard Helmholz had me and the other members of his seminar read Goebel's devastating assault on the frontier thesis as applied to the legal history of the American colonies, and, early in my work with him, John Langbein pointed me to the monumental Law Enforcement in Colonial New York (1944). I was under the impression that Goebel and other contributors to what William Nelson has called the "professional tradition" of American legal history were principally interested in the history of courts and lawyers.  A study of the legislative and administrative regulation of business seemed to me Hurstian, not Goebellian.

Tuesday, June 28, 2011

A Legal Historian's First Book, Part XI: The Author's Questionnaire

Authors' questionnaires seek information useful to a publisher in marketing a book. These questionnaires, somewhat intimidating to publishing neophytes like me, ask about the book's unique features, audiences for whom the book is written, comparable books, professional meetings at which the book might be exhibited, prizes for which the book should be submitted, ideas for course adoptions, subject headings for bookstore placement, and a list of publications to which the book might be submitted for review. Cambridge University Press has an example here.

Most daunting to me was the prospect of writing a 250-word description of the book, on which the catalog entry, book jacket copy, and other promotional material, would be based.  My first step was—as usual—to impose on the generosity of friends who had recently published books. They kindly provided indispensable examples and ideas. The greatest challenge of refining this description was the need to step back from the minutiae of a manuscript and think about what is most relevant to a reader who knows nothing about the project. 

Around the same time the Author's Questionnaire arrived in my inbox, it was time to finalize the book's title. Since its inception, the name of my project has been Reasoning from Race. This title was so ingrained that when a friend suggested alternatives toward the end, I balked. Rethinking the title seemed almost as out of the question as changing my own name.

The subtitle, however, was still up for grabs. My dissertation’s subtitle had been the somewhat clunky but serviceable “The Civil Rights Paradigm and American Legal Feminism, 1960-1979.” Though it’s not the catchiest moniker, this subtitle had the virtue of specificity—it identified a key concept and time period.

For purposes of my book proposal, the subtitle morphed into “Legal Feminism in the Civil Rights Era.” After a colleague persuaded me to purge the book of the terms “legal feminist” and “legal feminism,” the subtitle became “Feminism and the Law in the Late Civil Rights Era.” I liked the double meaning of “late,” but grew wary of implicating historiographical debates over the civil rights movement’s periodization in the title. (In the end, “The Late Civil Rights Era” became the title of the book’s final chapter on feminist legal advocacy in the age of Reagan.)

I waited until the last possible moment to finalize the subtitle. “Feminism” had to come first, and law needed to be in there somewhere. I ultimately settled on “Feminism, Law, and the Civil Rights Revolution” in part because of the double meaning of “revolution”—transformational change, but also coming full circle—and in part because the word conveyed to me a kind of dynamism and excitement.

As a title, “Reasoning from Race” has a downside. It’s what appears on the book’s spine, so to the casual bookstore browser, it won’t be evident that the book is about feminism. Some readers find it bewildering—"What on earth is 'reasoning from race'? is not an uncommon reaction. Hopefully, more will be intrigued than perplexed. 

Advice about authors' questionnaires, titles, and academic book marketing generally would be most welcome. Are there particular challenges legal historians face in this regard?

Deal reviews Banner, "American Property"

Via H-Law, we have a review of American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), by Stuart Banner (UCLA).

According to reviewer Robert C. Deal (Marshall University), the book is "a rich addition to the discussion of the historical evolution in how Americans think about property" and "a joy to read." Here's more:
American Property is a welcome antidote to many standard discussions of property law which despite attention to iconic cases such as the 1805 matter of Pierson v. Post are oddly ahistorical in their treatment of what constitutes property. A fox, a beehive, or--by implication--an entire continent are all treated in much the same manner. Banner historicizes the issue by looking beyond the perennial law school question of what one must do to claim a piece of property. He deals, instead, with what sorts of things are considered property and how the interests competing for the monetary, ideological, or other value to be derived from these things shape the definition of property prevailing in any period. At the center of the book is Banner’s thesis that much of this change over time has been driven by advances in technology.
The full review is here.

American Property is also featured in the June 6 issue of Rorotoko. Following the site's standard format, Banner describes the book "in a nutshell" and from the "wide angle," then provides a "close-up" and a final take-away ("lastly").

The Legal Historians' Brief in Kiobel v. Royal Dutch Petroleum

Harvard Law School's International Human Rights Clinic has posted a legal historians' brief in Kiobel v. Royal Dutch Petroleum on Congress's intent in passing the Alien Tort Statute. The amici are William Casto, Martin Flaherty, Robert W. Gordon, Nasser Hussain, and John V. Orth,

Collins on Judge-Made Federal Equity Law in Antebellum US

Kristin A. Collins, Boston University School of Law, has posted "A Considerable Surgical Operation": Article III, Equity, and Judge-Made Law in the Federal Courts, which appeared in the Duke Law Journal 60 (November 2010). Here is the abstract:
This Article examines the history of judge-made law in the federal courts through the lens of the early-nineteenth-century federal courts’ equity powers. In a series of equity cases, and in the Federal Equity Rules promulgated by the Court in 1822 and 1842, the Supreme Court vehemently insisted that lower federal courts employ a uniform corpus of nonstate equity principles with respect to procedure, remedies, and - in certain instances - primary rights and liabilities. Careful attention to the historical sources suggests that the uniform equity doctrine was not simply the product of an overreaching, consolidationist Supreme Court, but is best understood in the context of important and surprisingly underappreciated early-nineteenth-century debates concerning judicial reform. During this period, both Congress and the Court were preoccupied with the disuniformity in the administration of the federal judicial system, especially in the farther reaches of the republic. When reform was not forthcoming through legislation, the Supreme Court achieved a modicum of uniformity in the federal courts through the application of a single body of equity principles drawn from federal and English sources. But the Court did not act unilaterally. Congress’s repeated acquiescence to, and extension of, the Court’s uniform equity doctrine reveals a complex, interbranch dynamic at work. Retelling the story of nonstate, judge-made law in the federal courts through the lens of equity is not intended to demonstrate that such a formulation of federal judicial power was (or is) correct. Rather, by recuperating the history of federal equity power, this Article illuminates the significant metamorphosis of the meaning of Article III’s grant of judicial power. This change has been elided in modern accounts of federal judge-made law in an effort to bolster the legitimacy of a modern vision of federal judicial power.

Monday, June 27, 2011

Jerome I. Braun Prize in Western Legal History

The Ninth Judicial Circuit Historical Society announces the 2011 Jerome I. Braun Prize in Western Legal History. The prize, named in honor of a NJCHS past president, will be awarded for the best unpublished article-length manuscript on the legal history of the trans-Mississippi North American West. The Braun Prize carries a cash award of $1,000 for the winning essay and $500 for the first runner-up. The winning essay will be published in the NJCHS journal Western Legal History. Authors are encouraged to explore topics that illuminate the contributions of the law, lawyers, judges, and law-related organizations to the social, political, economic, and cultural history of the North American West. Submissions must be 25-40 pages in length (double-spaced) plus endnotes. Please submit entries by pdf along with a separate brief biographical statement by December 1, 2011. Entries and inquiries should be sent to Please write "Braun Prize" in the subject line. Visit the website at

Carr reviews Krueger, "Reading for the Law"; Malone reviews Ansolabehere and Snyder, "The End of Inequality"

The latest installment of the Law & Politics Book Review spotlights a few books that readers may find useful. They come from the fields of law & literature and political science, respectively, but both explore questions that have long interested legal historians.

The first is READING FOR THE LAW: BRITISH LITERARY HISTORY AND GENDER ADVOCACY (University of Virginia Press, 2010), by Christine L. Krueger (Marquette University).

Here's an excerpt from the publisher's summary:
Taking her title from the British term for legal study, "to read for the law," Christine L. Krueger asks how "reading for the law" as literary history contributes to the progressive educational purposes of the Law and Literature movement. She argues that a multidisciplinary "historical narrative jurisprudence" strengthens narrative legal theorists' claims for the transformative powers of stories by replacing an ahistorical opposition between literature and law with a history of their interdependence, and their embeddedness in print culture. Focusing on gender and feminist advocacy in the long nineteenth century, Reading for the Law demonstrates the relevance of literary history to feminist jurisprudence and suggests how literary history might contribute to other forms of "outsider jurisprudence."
And here's a taste of the review, by M. Kelly Carr (University of Baltimore):
Much of her book is spent evidencing the complicated role of narrative in legal thought and discourse, including: evolving Victorian literary standards such as omniscient narration and realist fiction; the emergence of witchcraft as an evidence-sparse crime reliant upon narratives for conviction; epistemological shifts from romanticism to realism both in literature and the law; government agencies whose primary task was to listen to stories of people [*338] incarcerated in insane asylums; and the use of “cover stories” to shelter certain crimes from prosecution. These uses of narrative range from mildly emancipatory and agency-building to fairly ineffective, and her analysis is always tied to larger social, political, and gender histories that pleasantly blur the causal lines sometimes drawn by comparative scholars. In several chapters, Krueger takes to task feminist advocates who would use narrative jurisprudence as an “antidote” to masculinist modes of reasoning, reminding readers that “no mode of representation enjoys special powers of advocacy” (p.51). Rather, literary techniques earn critical treatment because they are just as culturally bound as are legal processes; literary treatment is not “an autonomous aesthetic subject, but is itself historically contingent” (p.51). Krueger shows that a deeper investigation of the interrelations between literature and legal discourses, while carefully considering the historical context in which they acted, can help us understand both the limitations of specific attempts at “outsider advocacy” and to find evidence of those attempts, within literature, that are not represented in formal legal discourse.
The full review is available here.

The second book is THE END OF INEQUALITY: ONE PERSON, ONE VOTE AND THE TRANSFORMATION OF AMERICAN POLITICS (W. W. Norton and Company, 2008), by Stephen Ansolabehere (Harvard University) and James N. Snyder (MIT).

There's not much to see on the publisher's website, but reviewer Christopher Malone (Pace University) offers a concise summary of the argument.
THE END OF INEQUALITY focuses on the “quiet revolution” which occurred in the four decades after the landmark BAKER v. CARR decision of 1962. According to Ansolabehere and Snyder, BAKER v. CARR presents the political scientist with the closest thing to a “natural experiment” (pp.13-18) one could find in the political world. For the first five decades of the twentieth century, most state legislative districts across the country remained apportioned in accordance with the precepts, population and power structure of a rural/agrarian society. By the 1960s, however, the United States had become a predominantly urban/suburban society; population had shifted to metropolitan areas but political power had not followed. BAKER v. CARR, and the ensuing cases, would change the malapportionment of state legislative districts all across the country with an elegantly parsimonious phrase: one person, one vote. For Ansolabehere and Snyder, this sets up a perfect political experiment – a before and after scenario rarely available in American politics.

Have the equal rights announced in BAKER v. CARR and its progeny led to equitable outcomes? . . . .  
In brief, the answer for Ansolabehere and Snyder is an unequivocal yes: “the effects of reapportionment [in the wake of BAKER v. CARR] on these different aspects of politics all point to a singular conclusion: equal votes mean equal power. The equalization of representation led directly to an equalization of the distribution of public expenditures – who got what” (p.15).
As Malone notes, this is a book in the Gerald Rosenberg tradition: it explores whether the courts can and should bring about social and political change.

The full review is here.

Sunday, June 26, 2011

A Legal Historian's First Book, Part X: The Production Process, and Letting Go

All along, I felt confident that when it was time to send in my final manuscript, I would be thoroughly sick of the whole enterprise. After all, I had been working on the project in one form or another for more than a decade. 

I was wrong. To be sure, I would have been happy never to see another footnote or page proof. But the idea of letting go—of never being able to fix anything ever again—filled me with abject terror.

Before I could let go, there was much to be done. Most substantively, the book needed a beginning and an ending. I took a stab at the introduction during the penultimate round of revisions, but was not able to write something satisfactory until the eleventh hour. The conclusion took even longer. Weeks after my other chapters had gone off to the press, I was still perseverating. Two patient colleagues read multiple drafts, and pushed me to articulate my arguments and contributions with specificity and authority. I let go of it at the last possible moment.

Conventional wisdom about academic publishing suggests that about a year passes between the delivery of an author’s final manuscript to the press and the book’s publication. In my experience, this was almost true—depending on what “final” means. More on the nitty-gritty of the production process after the jump.

Clarence Darrow, 'Uncle Tom's Cabin,' a new take on the Holocaust, and more in the book pages

"It is fruitless to reduce the manifold evil of the Holocaust to a single cause," writes Timothy Snyder in a review of  Holocaust: The Nazi Persecution and Murder of the Jews by Peter Longerich, in the New York Review of Books.
Ideology, charisma, conformism, hatred, greed, and war were all very important, but each was related to the others and all mattered within rapidly changing historical circumstances. In his profound study Holocaust, Peter Longerich puts forward an analysis that includes all these factors and shows how politics or, as he puts it, Politik, set them all in motion. In this amplified English edition of his Politik der Vernichtung (1998), Longerich preserves the German term Judenpolitik, and with good reason. In German Politik means both “politics” and “policy,” and the compound noun (Juden + Politik) gives a sense of a joining of concepts that English cannot quite convey. In Longerich’s analysis, Judenpolitik has three meanings: German policy toward Jews; the national and international politics of the Jewish question; and the manner in which discrimination against Jews and then their extermination permeated German political life between 1933 and 1945.
Ultimately, this "impressive study of Judenpolitik is not a detailed recounting of the Holocaust, and makes no claim to take account of the perspective of the Jews who died and the neighbors who watched, collaborated, or more rarely rescued. But it supplies the best account we have of the relationship between anti-Semitism and mass murder, and conveys a melancholy plausibility."

Read the rest here.

Clarence Darrow: Attorney for the Damned, by John A. Farrell is a "clear-sighted, empathetic biography," Wendy Smith writes in the Los Angeles Times.  Darrow was "a towering figure in U.S. jurisprudence and politics. He served as defense lawyer for the people most hated and feared by respectable society and was indeed, as his friend Lincoln Steffens wrote in 1932, an 'attorney for the damned.'"  Darrow was "no left-wing saint. He was always in need of money and agreed to defend gangsters, bootleggers and crooked politicians for large fees."  Yet he was devoted to "imperfect, troubled humanity. 'We are all poor, blind creatures bound hand and foot by the invisible chains of heredity and environment, doing pretty much what we have to do in a barbarous and cruel world,' he declared. 'That's about all there is to any court case.'"  Continue reading here.

MIGHTIER THAN THE SWORD: “Uncle Tom’s Cabin” and the Battle for America by David S. Reynolds is an "informative account of the writing, reception and modern reputation of 'Uncle Tom’s Cabin," Andrew Delbanco writes in the New York Times.  "Reynolds unstintingly celebrates its author, Harriet Beecher Stowe, as a colossal writer who mobilized public opinion against slavery, and proved, against long odds, 'a white woman’s capacity to enter into the subjectivity of black people.'" Delbanco finds the author to be a "rewarding researcher," even as he suggests that Reynolds goes too far in his conclusions.  Ultimately,
we are left at the end of this book with the unsettling question of how to think about “Uncle Tom’s Cabin” as part of our cultural inheritance. The case for it as a literary work of depth and nuance is dubious. Yet it belongs to the very short list of American books (including, say, “The Other America” by Michael Harrington and “Silent Spring” by Rachel Carson) that helped create or consolidate a reform movement — in Stowe’s case, the most consequential reform movement in our history. Perhaps the fact that readers today have trouble taking seriously its heroes and villains is a tribute to its achievement — since, in some immeasurable way, it helped bring on the war that rendered unimaginable the world that Stowe attempted to imagine. 
Read the rest here.

Also this week, The Law of Life and Death by Elizabeth Price Foley is reviewed by Eric Posner in The New Republic's The Book; CAMBODIA’S CURSE:  The Modern History of a Troubled Land by Joel Brinkley is reviewed in the New York Times.

Saturday, June 25, 2011

Women's Rights, Justice Ginsburg, and Rutgers-Newark Law

The Winter/Spring 2010 issue of volume 31 of the Women’s Rights Law Reporter is largely given over to the symposium “Rutgers School of Law--Newark and the History of Women and the Law.” Among the notable contributions are Catherine A. MacKinnon’s “A Love Letter to Ruth Bader Ginsburg”; Diane Crothers’s “The Origins of the Women's Rights Law Reporter in the Civil Rights and Women's Liberation Movements”; Fred Strebeigh’s “Rutgers School of Law-Newark and the History of Women and the Law”; and (especially my emerita colleague) Wendy Webster Williams’s “Justice Ruth Bader Ginsburg's Rutgers Years: 1963-1972.”

A Legal Historian’s First Book, Part IX: The Hatchet and the Scalpel

I began the final round of book revisions in denial about the fact that my manuscript needed to be reduced by 40,000 words—the equivalent of two chapters. One editor friend advised that I would need a hatchet as well as a scalpel: to condense the manuscript that much would require eliminating huge chunks of text as well as line-by-line editing. In the end, the need to cut Chapters 4 and 5 down to size forced me to do a wholesale rewrite of each—painful, but necessary.

Ruth Bader Ginsburg
The first step was to articulate the one or two central points of each chapter. Chapter 4 was perhaps the most difficult to distill without oversimplifying. There was a lot going on—feminists’ use of disparate impact arguments in both Title VII and equal protection cases, the complicated relationship between sex equality law and affirmative action, the politics and law of veterans’ preferences, and the campaign against pregnancy discrimination, among other topics. Several interrelated themes ran through the chapter; I tried to focus on two strands. First, feminists did not merely pursue “formal equality” or “equal treatment” in the 1970s; they also turned to more expansive theories of equality—disparate impact and affirmative action. In doing so, as the chapter’s title, “Reasoning from Sex,” suggests, they not only drew on race jurisprudence to attack sex inequality, they also deployed emerging sex equality theories and caselaw to protect and expand race precedents.

For example, Ruth Bader Ginsburg turned the Court’s rejection of strict scrutiny for sex-based classifications to the advantage of feminists and civil rights advocates. Using a “reverse analogy,” she argued forcefully that the distinction the Court had drawn between “invidious” discrimination and “genuine affirmative action” in sex equality cases should apply to race-based affirmative action, then under attack in Regents of the University of California v. Bakke (1978). And this was just the tip of the iceberg. By the mid-1970s, this chapter shows, race and sex equality law were so intimately intertwined that it is impossible to understand either in isolation from the other.

Katie Mae Andrews Peacock
Chapter 5 is one of my favorite chapters, in part because it features the little-known case of Andrews v. Drew Municipal Separate School District, argued at the Supreme Court in 1976 but dismissed as improvidently granted (“DIG’ed”). Katie Mae Andrews, then 22, challenged a rural Mississippi school superintendent’s ban on employing unmarried mothers as teachers. Andrews was attorney Charles Victor McTeer’s first client. McTeer collaborated with young feminist lawyers at the Center for Constitutional Rights, including Rhonda Copelon, and solicited testimony from sociologist Kenneth Clark and activist Fannie Lou Hamer. Andrews's supporters made innovative arguments about the intersections between racial injustice, economic oppression, sexual subordination, and reproductive freedom. They persuaded federal district court judge William C. Keady to see the case as not only an end run around racial desegregation but as an instance of unconstitutional sex discrimination, just weeks after the Court decided Roe v. Wade and Frontiero v. Richardson (1973). But when their appeal reached the Supreme Court, the rich intersections that had so excited Andrews’s feminist allies made the Justices profoundly uncomfortable.

Andrews is just one of many examples of how race and sex were intertwined in sex equality cases and campaigns during the 1970s. An astute colleague recommended making the case the chapter’s centerpiece. I rewrote the chapter from scratch, narrowing its focus to three sets of cases—involving school sex segregation, jury service, and unwed mothers’ employment--illustrate a single theme: the “whitewashing” of constitutional sex equality law.

In most respects, the word limit was a blessing in disguise, forcing me both to distill the book’s primary arguments and ruthlessly eliminate excess verbiage. Less salutary perhaps was my hatchet job on the footnotes. The rule of thumb I’ve heard is that footnotes should comprise no more than 25 percent of a book. My notes were longer than that, and still omitted much relevant information and explanation. That said, I am likely the only one who will miss them.

Weekend Roundup

  • Thanks to Bridget Crawford at the Faculty Lounge, we have coverage of the luncheon addresses given by Kenneth Mack (Harvard) and Tomiko Brown-Nagin (University of Virginia) at the recent AALS workshop on "Women Rethinking Equality."  They spoke on "Race, Sexuality, Identity and the Roots of Feminist Legal Advocacy." 
  • Registration is now open for the 2011 Rights Conference, to be held at San Francisco State University on September 15 and 16. More information is here. (hat tip: H-Law)
  • The June 2011 issue of Historically Speaking, the bulletin of the Historical Society, is out.
  • CFP: June 4-6, 2012, the Department of Middle East Studies at Ben-Gurion University of the Negev will convene its 16th Annual International Workshop. The topic is "Socio-legal Perspectives on the Passage to Modernity in and beyond the Middle East." More information, including guidelines for submitting papers, is here. (hat tip: H-Law)
The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 24, 2011

A Legal Historian’s First Book, Part VIII: Doctrine, Clarity, and Context

Perhaps the third chapter of my book should have been called “Things Fall Apart.” This title would reflect both the subject of the chapter—a series of crises feminists confronted in the mid-1970s—as well as my struggle with the chapter’s narrative flow. In “Recession, Reaction, Retrenchment,” I try to integrate economic and political background with specific examples of how race-sex analogies grew more problematic in the mid-1970s as an increasingly conservative polity entertained second thoughts about the civil rights revolution. The content of the chapter remained unusually stable, but I must have switched the order at least a dozen times before finding a structure that made sense (to me, at least) both chronologically and thematically.

Part of my problem stemmed from the inherent tensions between writing about (often dense) legal doctrines and strategies, and situating the twists and turns of constitutional argumentation within a larger political and social context. When I gave several chapter drafts to a brilliant historian friend who is not a lawyer, her exclamations of confusion and ennui in the margins of the more “legal” sections reminded me that not everyone is as interested as I am in the behind-the-scenes machinations of lawyers, judges, and their clerks. Moreover, she noted, terms like “strict scrutiny” and “disparate impact” require clear and concise explanations the first time they are mentioned.

Eventually, I decided that Chapter 3 should open with a snapshot of economic recession and political polarization seen through the eyes of Eleanor Holmes Norton and Aileen Hernandez, protagonists familiar to the reader from the preceding chapter. Then I would ease into the chapter with the least doctrinal section—a profile of Phyllis Schlafly and her cooptation of race-sex analogies for decidedly anti-feminist (and, more subtly, racially conservative) purposes. The prolific Schlafly, always a gifted rhetorician, became more legally fluent and savvy over the course of the 1970s, as she earned a law degree and frequently debated the ERA with feminist lawyers. At the same time, most of her writing from this period is directed toward a popular audience and requires no translation from legalese. After using Schlafly to introduce several of the chapter’s themes, I could then plunge into my examples of feminists’ difficulties in deploying race-sex parallels, exploring contexts including pregnancy discrimination, sex-segregated education, and the collision of “benign” sex classifications and race-based affirmative action in the Supreme Court.

The challenge of writing accessibly became even more acute in Chapter 4, “Reasoning from Sex.” At its low point, this draft chapter was a sprawling morass of complicated doctrinal twists and turns, at times an unrelenting march through caselaw unleavened by context or color. Several generous colleagues helped me wrestle this behemoth of a chapter to the floor and their tips bear repeating:

1.      1. Begin each chapter with a short anecdote that captures an important piece of context or a central argument of the chapter. 

2.      2. Be sure that you can state the argument of each chapter in a couple of sentences, and summarize it in a paragraph.

3.      3. Write short, punchy topic sentences. A reader should be able to glean the gist of the chapter from reading the first sentence of each paragraph.

4.      4. As tempting as it may be, don’t include more than two or three quotations/pieces of evidence in each paragraph.

5.      5. A book is not a law review article and should not be clogged with road-maps and redundant summaries. Don’t repeat yourself, or give away the ending at the beginning of a chapter.

                                  Image credit

Marsh reviews Muldoon, "Empire, Politics, and the Creation of the 1935 India Act"

Empire, Politics and the Creation of the 1935 India Act (Ashgate, 2009), by Andrew Muldoon (Metropolitan State College of Denver), is the subject of this review, commissioned by H-Albion.  The book may be of interest to historians of empire, as well as to scholars who study administrative law and practice.

Reviewer Brandon D. Marsh (Bridgewater College) offers this overview:
As past studies by R. J. Moore and Carl Bridge have shown, the 1935 India Act was designed to, in the words of the viceroy of India, Lord Linlithgow, “hold India to the Empire.” Through fully responsible elected ministries in provincial governments, communal electorates, and the involvement of the princes in a federal structure with ample British “safeguards” on matters of defense and fiscal policy, the British government hoped to strengthen the hand of Indian “moderates” and weaken the Indian National Congress. The act failed to stem Indian nationalism, however, and Congress went from strength to strength, ramping up electoral victories in six of eleven provinces. Meanwhile, the federal scheme at the center was never realized. Muldoon’s basic question is why, despite the clear strength of India’s nationalist movement, did the men who ruled India ever believe that the act would succeed in crippling Congress and maintaining British dominion in India?
The answer, Muldoon argues, lies in the colonial administration’s continued adherence to an outdated and essentialized vision of India. Muldoon contends that the India of Rudyard Kipling was still very much alive in the minds of British administrators. Even in the 1930s officials continued to maintain that the Indian peasant had no interest in politics, that India was hopelessly divided by caste, religion, and region, and that Congress was still--at heart--the preserve of “semi-educated” urban clerks. This view of India and its inhabitants was reinforced by intelligence failures. . . . [footnotes omitted]
Marsh concludes that "this study sheds important new light on the role of culture and perception in governing late imperial India."
The full review is here. The book's TOC and Introduction are available here.

hat tip: H-Law

Thursday, June 23, 2011

A Legal Historian's First Book, Part VII: Restructuring and Introducing Characters

After responding to the outside reviewers’ reports (see Part VI), it was time for yet another round of revisions. At this point, the manuscript included twelve chapters (almost twice as many as my book proposal had forecast), and about 180,000 words—40,000 words more than my contractual limit. I had not yet written an introduction or a conclusion, and my footnotes were of varying lengths and formats. Every chapter needed significant substantive work.

I began to think of the book as having two parts: the first would chronicle the rise and fall of race-sex analogies as a dominant feminist legal strategy, and the second would recover the creative ways that feminist advocates regrouped, as well as the often chilly reception their efforts received in the Supreme Court and elsewhere.

My first task was to streamline the book’s structure. The first three chapters became one, shorn of material that was well-covered in other works, including one of my own law review articles. I would try in this chapter, eventually titled “The Rebirth of Race-Sex Analogies,” to explain why “reasoning from race” became such an appealing legal strategy in the 1960s. Central to this story is Pauli Murray, who compared sex to race in an effort to heal rifts between civil rights and feminism, and to place African American women at the center of both movements. The chapter would now end in 1970 with feminist advocates united behind a “dual strategy” for constitutional change (Fourteenth Amendment litigation and Equal Rights Amendment advocacy) that depended heavily on parallels between sex and race.

I also began to think more carefully about where and when to introduce various characters. Murray, a central figure in the first half of the book, necessarily debuts in the first chapter. Chapter 2, “Women and Minorities,” features a larger cohort of African American feminist advocates—most prominently NOW President Aileen Hernandez and then-New York Human Rights Commission chair Eleanor Holmes Norton. Hernandez and Norton joined Murray’s crusade to challenge the prevailing view among liberals--including many civil rights leaders--that racial progress depended upon the restoration of African American men to their rightful positions as primary breadwinners. Ruth Bader Ginsburg makes the first of many appearances in this chapter, as she begins to implement a Fourteenth Amendment litigation strategy that drew upon both the race-sex analogies and the vision of egalitarian male-female partnerships advanced by Murray, Norton, and their allies.

My book treats 1973-74 as a turning point for feminist advocates, and I wanted the structure to reflect that. The Supreme Court’s decision in Frontiero v. Richardson (1973) eventually became the climactic (and anti-climactic) moment of Chapter 2. The Supreme Court’s partial and somewhat unsatisfying embrace of an abstract race-sex analogy in that case, decided the same year that the Court grounded abortion rights in privacy rather than equality, foreshadows many of the crises feminists would confront in at mid-decade. Poignantly, this is also when Murray exits the stage. Her race-sex analogy--with its rich account of interconnections as well as parallels--altered almost beyond recognition, she leaves the law and her hard-won academic post at Brandeis to pursue a calling to the priesthood.

Keleman, Eurolegalism: The Transformation of Law and Regulation in the European Union

Eurolegalism: The Transformation of Law and Regulation in the European Union by R. Daniel Keleman has just been published by Harvard University Press.  The author is a political scientist, but he sets the work in the context of the development of law and regulation in the EU over the past thirty years.  Here's the book description:
Despite western Europe’s traditional disdain for the United States’ “adversarial legalism,” the European Union is shifting toward a very similar approach to the law, according to Daniel Kelemen. Coining the term “eurolegalism” to describe the hybrid that is now developing in Europe, he shows how the political and organizational realities of the EU make this shift inevitable.

The model of regulatory law that had long predominated in western Europe was more informal and cooperative than its American counterpart. It relied less on lawyers, courts, and private enforcement, and more on opaque networks of bureaucrats and other interests that developed and implemented regulatory policies in concert. European regulators chose flexible, informal means of achieving their objectives, and counted on the courts to challenge their decisions only rarely. Regulation through litigation—central to the U.S. model—was largely absent in Europe.

But that changed with the advent of the European Union. Kelemen argues that the EU’s fragmented institutional structure and the priority it has put on market integration have generated political incentives and functional pressures that have moved EU policymakers to enact detailed, transparent, judicially enforceable rules—often framed as “rights”—and back them with public enforcement litigation as well as enhanced opportunities for private litigation by individuals, interest groups, and firms.
Here are the blurbs:
“This clearly argued and exhaustively researched book makes an important and original contribution to our understanding of the legal impact of the EU. It deserves to be carefully read not only by those interested in the development of European institutions, but by students of comparative legal studies.”—David Vogel, Haas School of Business, University of California, Berkeley

“Eurolegalism is one of the most important books ever written on the European Court of Justice and the European Union’s legal system. It may, in fact, be the best book.”—Alec Stone Sweet, Yale Law School

Graham on Rhode Island's Early Federal Courts

If, like me, you missed D. Kurt Graham’s To Bring the Law Home: The Federal Judiciary in Early National Rhode Island (Northern Illinois University Press, 2010), when it appeared, I recommend that anyone interested in the early American judiciary and legal profession give it a look. Although many book-length studies of individual courts have been written–see Edward A.Purcell, Jr.’s review essay–the only other one I can recall that focused on the first decades of the lower federal judiciary in a state is Mary K. Bonsteel Tachau’s Federal Courts in the Early Republic: Kentucky, 1789-1816 (1978).

Graham views the federal judiciary as a manifestation of the federal government and nation to Americans were still unsure what either was.  “No institution did more to forge [a] sense of nationhood than did the federal courts,” he writes. Rhode Island provides him with a particularly interesting case study. First, the state was “dragged into the Union kicking and screaming” and did not join until May 1790. Second, Rhode Island was known to be a benighted land of smugglers and defaulting debtors, who kept the state courts weak to escape retribution for their lawless ways. (Nowhere in the United States had “the solemnity of contracts and grants” been “so wantonly and sacrilegiously violated,” cried Noah Webster, than in “the little detestable corner of the continent called Rhode Island.”) By providing a friendly forum to customs officials, the federal district court “contributed directly to the power and viability of the central government.” Moreover, the federal circuit court was so hospitable to creditors that some moved out of state just to invoke its diversity jurisdiction. Yet Rhode Islanders, Graham finds, embraced both courts. “Federal authority took root in Rhode Island without a whimper.”

Graham’s explanation of this surprising result deserves reading in full.  In brief, he identifies three reasons. First, Rhode Island lawyers used the offices of federal judge and federal district attorney to create "a new level of leadership" within the bar and to elevate the practice of law within the state. Second, the resort to local officials to staff the courts–for four years, the same person served as state attorney general and federal district attorney–“alleviated some of the initial fears regarding the federal judiciary.” Third, the decisions of the federal courts “overwhelming favored commerce.” “Business was good for the courts,” Graham writes, “and the courts were good for business.”

I do wish Graham had addressed one question his book raises: if federal courts “generally ruled in favor of creditors,” why did the debtors who managed to overawe state judges and legislators not do more than “whimper” when hauled into federal court? Still, I learned a great deal from To Bring the Law Home, and I suspect that many other legal historians will too.

Wednesday, June 22, 2011

Jenoff on Managing Memory: The Legal Status of Auschwitz-Berkenau and Resolving Conflicts in the Post-Communist Era

Managing Memory - The Legal Status of Auschwitz-Birkenau and Resolving Conflicts in the Post-Communist Era -- an interesting take on reconciling the various interests that come into play with memorialization -- has just been posted by Pam Jenoff, Rutgers School of Law Camden.  It appeared in The Polish Review, Vol. 46, No. 2, p. 131, 2001.  The abstract is very short, so here are is the Introduction:
Of the many images that characterize the Holocaust in modern memory, the Auschwitz-Birkenau concentration camps (“Auschwitz”) are among the most recognized and enduring. From the “Arbeit Macht Frei” [Work Makes You Free] inscription on the gate above the entrance to Auschwitz to the gas chambers of Birkenau, these sites are universally identified with the Nazi atrocities and horrors of World War II.

Present day discourse is not, however, limited to the historical significance of Auschwitz. On-going and highly charged debate surrounds both the preservation of the concentration camp sites and protection of the surrounding area. These controversies affect not only the integrity of the former concentration camp sites, but also Poland’s development as a democratic state in the post-communist era and its relations with the international community.

Preservation of Auschwitz is an extremely sensitive and visible issue, involving international, national, local, and religious interests. Careful consideration of the historical and current legal status of Auschwitz provides a neutral and rational framework for discussing these multi-faceted and contentious matters. The key to resolving these issues lies in a comprehensive plan that takes into account international concerns while recognizing the sovereignty of the Polish State, the important role of the Catholic Church and the needs of the local community. Existing legislation and international agreements, if strengthened and enforced, provide a sufficient legal framework for the protection of Auschwitz.

Reinstein on Executive Power and the Law of Nations in the Washington Administration

Robert Reinstein, Temple University James E. Beasley School of Law, has posted Executive Power and the Law of Nations in the Washington Administration, which is forthcoming in the University of Richmond Law Review.  Here is the abstract:
The dramatic unilateral decisions of the Washington administration, particularly during the Neutrality Crisis of 1792-1794, have been the bases of expansive theories of plenary executive powers over foreign affairs. This paper presents an original historical and jurisprudential account of the Neutrality Crisis and draws three principal conclusions:
First, the source of the Washington administration's constitutional authority was the duty of the Executive, under the Take Care Clause, to obey the law of nations. This source of authority was (1) repeatedly asserted in the administration's public declarations; (2) the basis of its private deliberations; (3) consistent with the jurisprudence of the founding generation; and (4) explanatory of the actions that were taken (and not taken) by the administration. No other theory of executive power satisfies these criteria.
Historians and legal scholars have consistently rejected this thesis, claiming that Washington was not executing any settled doctrine of international law but was making discretionary policy decisions. This paper shows that the critics erred in projecting onto the founding generation their own ideas of legal positivism as the foundation of international law, and in dismissing the extraordinary influence of Continental publicists such as Vattel, who were the administration's principal authorities on the law of nations.
Second, this thesis has important implications regarding executive power and international law. Washington’s actions were based on the principle that the Executive has the duty to comply with the obligations of the law of nations. To the extent that international law remains part of national law, the actions of the Washington administration provide an important precedent for the duty of the Executive to obey the constraints of international law.
Third, this paper sheds light on the limits of originalism as a constitutional methodology. One of the profound changes that have occurred in the United States is that the founders' way of thinking about law can be incompatible with our own. The foreign policy decisions of the Washington administration reflected B indeed, in the view of the administration, were compelled by B a natural law jurisprudence of the law of nations that was a product of its time. This has little relevance to the general scope of modern presidential power to determine and conduct the nation's foreign affairs. Modern theories of expansive executive powers must find bases other than in the decisions of our first President.

Tuesday, June 21, 2011

A Legal Historian's First Book, Part VI: Outside Reviews

Most academic presses send a manuscript to outside readers for peer review at some point. Friends and colleagues had different views on the peer review process. Some saw it primarily as a potential minefield, and advised me to hope for a rubber stamp. Others viewed outside reviews as an opportunity for useful feedback that might not come again, a chance to have two or three scholars read the entire manuscript carefully and critically.

Fortunately, the two anonymous reviews of my manuscript were quite helpful. One was much more critical than the other. Its overall message was that my book had potential, but it wasn't there yet. The critical letter made me realize that I had a thicker skin than I thought; I agreed with most of the reader's critiques and suggestions, and mostly felt grateful to have the input while there was still time to implement it. The fact that the other letter was enthusiastic, and my editor supportive, were no doubt crucial to my accepting the criticism with equanimity.

Most importantly, both reviewers provided very specific and constructive suggestions, helped me to prioritize further revisions and research, and clarified in my own mind the contributions my book could potentially make. The letter I wrote to the press in response to the reviews laid out a helpful roadmap for the second round of (extensive) revisions. Twelve chapters became six, extraneous and redundant material came out. I added context, defined terms, filled in substantive gaps, rewrote large portions of chapters, including one from scratch.

I was fortunate to exercise some control over the timing of the reviews, and chose to do the first round of substantial revisions to my dissertation before the press sent out the manuscript. I'll say more about publication timetables in a future post, but for now, would be interested in hearing about others' experiences on both sides of the peer review process.

Race-Neutral Reparations for Massive Resistance

A front-page story in yesterday's Washington Post, "Virginia Scholarships Atoning for Segregation Go to Whites," may be of interest to some readers of this blog. The article reports that Virginia has established scholarships to "compensate those whose education suffered during the era of massive resistance." The administrators of the scholarship program are actively encouraging whites to apply. The article quotes one official:

“Both black and white students lost an opportunity because of the state’s decision, and both deserve this aid,” said Brenda Edwards, who administers the Brown v. Board of Education Scholarships for the Virginia Division of Legislative Services. “White people hear Brown v. Board, and they think they’re not eligible. We’re trying to change that perception. . . . We want more people to get the education they missed out on years ago.”
Racial neutral eligibility for the scholarship program rankles some Virginians, including some African Americans who were shut out of schools in Prince Edward County and other districts where officials closed schools rather than desegregate them. Meanwhile, whites could attend private schools (so-called "segregation academies"), using taxpayer-financed tuition vouchers. Read the Post's coverage of the controversy here.

It's interesting to compare popular discussion of massive resistance to scholarly treatments. Consider, for example, the perspectives on the subject found in the following works: Michael Klarman, From Jim Crow to Civil Rights; Matt Lassiter & Andrew Lewis, eds., The Moderates' Dilemma: Massive Resistance to School Desegregation in Virginia; Neil McMillen, The Citizens' Council: Organized Resistance to the Second Reconstruction; Jason Sokol, There Goes My Every Thing: White Southerners in the Age of Civil Rights; Anders Walker, The Ghost of Jim Crow; and John Dittmer, Local People: The Struggle for Civil Rights in Mississippi. Some of these authors emphasize the actions of the reactionary white power structure. Others focus on white moderates. Still others stress the viewpoints of blacks excluded from public accommodations or segregated in schools on account of race. Most recently, scholars have turned attention to the perspectives of average whites who lacked policy making authority.

Overall, civil rights scholarship has moved toward highlighting multiple actors' perspectives on the era and emphasizing historical contingency. On one view, the idea of race-neutral reparations for massive resistance reflects a more complicated understanding of Jim Crow-era whites, consistent with some recent scholarship. On another view, the policy places white southerners and African Americans--the targets of de jure segregation in schools and presumed beneficiaries of Brown v. Board of Education--on the same moral footing--and distorts history. For purposes of administering the program, however, it appears that a distinction is being drawn between white Southerners as a class and individual white claimants.

This is rich material. Whatever one's view of the underlying substantive issues, the Virginia legislature's policy choice raises questions about how stakeholders shape historical memory. The policy raises other intriguing questions: about how broadly or narrowly to define the harms of massive resistance to segregation and of segregation itself; the political viability of "race neutral" approaches to social justice, including precisely what "race neutral" means; where low-income and relatively politically powerless whites do and should fit into conversations about social justice; and what has been gained and lost by emphasizing ahistorical justifications for legal remedies originally designed to redress racial discrimination, e.g. the diversity rationale for school desegregation and affirmative action. See, for example, Parents Involved in Community Schools v. Seattle School District (2007); Grutter v. Bollinger (2003); Richmond v. Croson (1989).

Shapiro on Ex Parte Young

David L. Shapiro, Harvard Law School, has posted Ex Parte Young and the Uses of History, which will appear in NYU Annual Survey of American Law 67 (2011): 69. Here is the abstract:
Ex parte Young, an iconic decision that recently celebrated its centennial, was not very well-received at birth but most scholars, now and in the recent past, agree that the case was correctly decided. Yet the range of justifications for the result, and the analyses of its implications, are strikingly diverse. (The disagreements about its significance are exemplified by the three opinions in the Supreme Court’s recent decision in Va. Office for Prot. & Advocacy v. Stewart.)

How can such a range of views exist about so famous and esteemed a decision – a debate that extends to such matters as its rationale, its novelty, and even the proper characterization of its holding, the lessons it teaches about state-federal relations, and the proper role of the federal courts? And what, if anything, does this tell us about the nature of legal scholarship? These are the questions addressed in this article. Briefly stated, the conclusions reached are that over-reading of the case by scholars and courts has led to a backlash in which the case has been undervalued, and that arguments about what the case “really” stands for tend to mask more important questions about both the substance and the process of constitutional interpretation.

Monday, June 20, 2011

Legal History at the Foreign Relations History Conference

Society for Historians of American Foreign Relations
For legal historians interested in global affairs, I highly recommend attending meetings of the Society for Historians of American Foreign RelationsSHAFR's 2011 Annual Meeting is later this week in Alexandria, VA.  The theme is Waging War, Making Peace, Crossing Borders.

It used to be that people thought of diplomatic historians as stodgy and old-fashioned.  But they said the same things about legal historians!  And the more comparative and transnational legal history becomes, the more important it is to pay attention to global politics.  So we need foreign affairs history now more than ever.

There is a lot of law on the panels this year, consistent with a turn to law among historians in many fields, perhaps as a consequence of renewed interest in the state.  Highlights of interest to legal historians include these panels:

Roundtable: Bringing the Law Back In: New Approaches to the History of the U.S. in the World
Chair: Daniel Margolies, Virginia Wesleyan College
Benjamin Coates, Columbia University
Allison Brownell Tirres, DePaul University College of Law
Robert McGreevey, The College of New Jersey

Stopped at the Gate: Crime, Diplomacy, and Immigration
Chair: Beatrice McKenzie, Beloit College
Diplomacy behind Deportations: Rights of Residency and Responsibly under the Criminal Provisions of U.S. Deportation Policy
Torrie Hester, Roanoke College
Italians on the Move: American Immigration Restriction and Illegal Immigration from Italy
Maddalena Marinari, American University
Extraditing Immigrants, Deporting Criminals: International Crime Control in an Era of Anarchy and Revolution
Katherine Unterman, Texas A&M University
Comment: Mark Choate, Brigham Young University

Rethinking the Impact of Refugees on Domestic and Foreign Policy
Chair: Carl Bon Tempo, State University of New York at Albany
Synchronizing Domestic and Foreign Policy Concerns: The Case of the 1980 Refugee Act
David W. Haines, George Mason University
The Distinction of Dragon-Boats: The Khmer Krom and the United States
Trude Jacobsen, Northern Illinois University
Encouraging Defection while Discouraging Admissions: Refugees from Hong Kong and U.S. Foreign Relations, 1950-1965
Philip E. Wolgin, University of California, Berkeley
Comment: Carl Bon Tempo

Conflicting Desires: American Commitment to AID and Human Rights during the Cold War, 1945-1985
Nexus: National Interest, Human Rights, Foreign Aid and U.S. Response to the “Genocide” in East Pakistan, 1971
Richard Pilkington, University of Toronto
The Kirkpatrick Doctrine and Human Rights: Neoconservative Foreign Policy in the Reagan Administration
Bianca Rowlett, University of Arkansas
Comment: William Michael Schmidli, Bucknell University

Crossing Borders and Intersecting Empires
Chair: Daniel Margolies, Virginia Wesleyan College
The Struggle for the Northern Border: British Occupation and Insurgency in the Old Northwest 1783-1796
John C. Kotruch, University of New Hampshire
The Fenian Invasions: Territorial Sovereignty and Imperial Actors
Skye H. Lynch, College of William and Mary
The Friendly Address Movement and the Oregon Territory Boundary Dispute: Transatlantic Citizen‐Diplomacy, Gender, Ethnicity, and Race in the 1840s
Wendy E. Chmielewski, Swarthmore College Peace Collection
Comment: Daniel Margolies

And the following papers:
I Took Panama, Now You Justify it: Two Faces of Public Opinion in Early Twentieth Century International Law
Benjamin Coates, Columbia University
"Is the Emperor Fully Clothed?": The Iranian Student Movement and Transnational Human Rights Organizing
Matthew Shannon, Temple University

Army Operations against Non-state Actors: Peacekeeping, Law Enforcement, and the Extension of U.S. Sovereignty along the Southern Maritime Frontier, 1810-1830
Samuel Watson, United States Military Academy

Ronald Reagan, George W. Bush, & Afghanistan: A Historical Analysis of “Freedom” in U.S. Foreign Policy
Andrew Hammond, University of Warwick

Condemning “Gender Apartheid”: The Taliban, Feminist Activism, and the Clinton Administration
Kelly Shannon, LaSalle University

Between Pacifism and Imperialism: The Frustration of the International Birth Control Movement
Aiko Takeuchi-Demirci, Brown University
And of possible interests, the first plenary, with yours truly, where I'll talk about law post-9/11:

PLENARY SESSION: 7:00 PM – 9:00 PM, Thursday, June 23
9/11, the War on Terror, and U.S. International History
Andrew Bacevich, Boston University
Mary Dudziak, University of Southern California
Bassan Haddad, George Mason University
Melani McAlister, George Washington University
Marilyn Young, New York University

For more, the full program is here.