Marzen on Advocacy and Migration in Reaction to the Kansas-Nebraska Act

Professor Chad Marzen of FSU's Business School has posted "Law, Popular Legal Culture, and the Case of Kansas, 1854-1856" (forthcoming Wyoming Law Review) on ssrn.  His abstract is as follows:

In the wake of the movie Lincoln and the 150th anniversary of events such as the Emancipation Proclamation and the Battle of Gettysburg, more attention and discussion in 2013 is likely to be directed to the causes, effects, and legacy of the Civil War, in law and social impact.  This article contends that there is one historical time and moment which should not be overlooked – the Kansas-Nebraska Act of 1854 and period of time with events relating to Kansas from approximately 1854-1856 which preceded the onset of the Civil War. 

This Article applies Professor Friedman’s framework of popular legal culture to appeals for emigration to Kansas made by abolitionists and Northeasterners in response to the passage of the Kansas-Nebraska Act in 1854. Instruments of popular culture, including circulars, handbooks, music, poetry, speeches, and especially newspaper heavily influenced migration to Kansas from 1854 to 1856 as a direct response to the notion of popular sovereignty embraced by the Kansas-Nebraska Act. 

This article concludes that by engaging in a close reading of Kansas rhetoric from 1854-1856 in the instruments of popular culture which responded to the Kansas-Nebraska Act, the significant change in tone helps to explain how popular culture and the response to the legislation led to the growing polarization between North and South prior to the onset of the Civil War.

I think Marzen is exactly correct to urge that we pay significant attention to how people tried to implement constitutional ideas -- in this case popular sovereignty.  While much of my attention of late has been on how people outside of the courts appealed to constitutional ideas to mobilize support for slavery (and here), in the years leading into Civil War people on all sides of the dispute over slavery appealed to the Constitution and law -- and tried to remake it.

The image is from Gettysburg, where a lot of people interpreted the Constitution -- in radically different ways.

Comments

[Jeffrey Harrison]

Al, I enjoy this Blog and especially your thoughtful posts. I'd like to hear a denied from Filler with respect to Campos' allegations. In fact, I wonder why the co owners of this blog have not already demanded that denial or a resignation.

[Matt]

"In fact, I wonder why the co owners of this blog have not already demanded that denial or a resignation."

Jeff, I really, really hesitate to turn every post on this blog into something about Campos, but I assume the reasoning is something like the following:

1) For anyone who knows anything about Campos, his credibility is very, very low.

2) Even if the "charges" were true, it would be, at best, a difference of opinion as to whether there was any moral wrongdoing.

3) The "legal" claims are, at best, highly doubtful. (See, for example, the opinion of Orin Kerr, in a comment at Prawfsblog.)

Given that, I don't see how there is much to do but let Campos throw a fit and then go calm down, and the idea that people should demand Filler's "resignation" seems a bit hysterical.

[Anonymous]

"Difference of opinion as to whether there was any moral wrongdoing?" Care to explain how revealing people's e-mail and IP addresses to a third party so that third party can send harassing e-mails to people who disagreed with him can be considered morally upright?

This isn't about Campos--the people being harassed aren't Campos. The people whose credibility is in question is Leiter and the administrators of this website, and a quick Google will tell you all you need to know about Leiter's history on the internet.

Personally, I'm not really calling for Filler's resignation, but I would like an apology and a privacy policy that would state that TFL will not release that information in future.

[Matt]

" Care to explain how revealing people's e-mail and IP addresses to a third party so that third party can send harassing e-mails to people who disagreed with him can be considered morally upright?"

Sure- when you write obnoxious and stupid things about someone, you shouldn't expect that they won't try to find out who did it, nor expect that those who can find out won't tell. That seems obvious, and I see nothing wrong in the action, and even something good. Some doubt this, but in truth, I see absolutely no merit in their position.

[Anon]

What "obnoxious and stupid things" are you referring to? Disagreeing with Brian Leiter anywhere on the internet? Because that's what the people being harassed had allegedly done.

The administrators of this website chose to permit anonymous or pseudonymous comments. By revealing the information to a third party, the administrators breached an ethical obligation, particularly when that information was revealed to allow Leiter to send harassing e-mails to people who disagreed with him.

[b]

Prof. Brophy,

I'm not sure you're aware of this, but my comment was deleted and I'm not sure on what grounds. I'm actually one of your regular readers, and an infrequent commenter (e.g., on you historic photo guessing games).

My comment merely pointed out that a person under the name Matt was also unusually active in at least one comment section talking about Dr. Leiter more than two years ago, raising the specter of "sockpuppetry."

It really can't be that my tone was uncivil considering what hasn't been removed, including the content written by Matt. I've also never written any comment before on Dr. Leiter on ANY website. I just don't get it.

Thanks.

[Ganger]

Anon at 2:54 -- if you are one of the ones allegedly outed by this blog and harassed by Prof. Leiter, perhaps you can link us to whatever post you made, so the reader can judge for ourselves whether yours was an appropriate post or not. My personal view is that such an outing may or may not be appropriate, depending on the nature of the post.

[nobody's fooled]

Ganger (Brian Leiter) -

We know your personal view is that outing may be appropriate.

Again - As much as you're trying to change the topic, the point of all of this isn't what the posts actually said - the point of this is whether you (Brian Leiter) were given the email address and IP information of posters by blog administrators of The Faculty Lounge, or whether you yourself have previously-undisclosed administrator access.

[anon]

Does any of this have to do with Kansas-Nebraska?

[Anon]

Nope, I'm not one of them, as far as I know. In any case, I'm not sure why you should get to judge. Unless the comments contained a realistic threat of violence, or something very similar, I can't really see a basis for this website to reveal information to any third party. I particularly can't see any basis for giving the information to Brian Leiter, of all people.

[anon]

Brian Leiter:
"I did pursue the identity, successfully, of one of [Campos'] cyber-friends ("dybbuk") who Campos conveniently neglects to mention had the habit of bullying, insulting and defaming junior faculty and students (including one of mine), and I did succeed in getting his worst bit of libel deleted and he has now fallen silent."

Just for the record, 'dybbuk' doesn't seem to be terribly silent, Brian:

http://outsidethelawschoolscam.blogspot.com/2013/03/brian-leiter-professor-of-law.html

And, as has already been established, the "libel" is still out there, and more people are reading it than ever.

[Ganger]

Nobody's Fooled -- I would like to take this opportunity to state unequivocably that I did not receive any IP addresses or email addresses from anyone on this blog, nor do I have administrator access.

But then again, I am not Prof. Leiter. I would add that I think Prof. Leiter's post about the lawyer who wrote a snarky email to him was out of line, but there is not an allegation that Prof. Filler had anything to do with that.

Sorry to disappoint you and your crack team of detectives.

[Anonymous Only Because I Don't Want People to Harass Me For Speaking Common Sense (and not only am I not Brian Leiter, I have never met him and couldn't give a fig about who's right and wrong in this dispute)]

Can people pursuing personal or professional vendettas please make these pursuits elswhere? There are plenty of forums for people to post accusations and make personal attacks. A thread about the Kansas-Nebraska Act is not the right place for it.

In the meantime, you're just destroying whatever extremely limited credibility your side has in whatever the heck this dispute is about. No one cares about this except you. Since the illegality seems so clear-cut, why not just file your suit and leave TFL's comment sections? You can start your own blog about the progress of your suit and then fill us in on the verdict.

If the editors of this blog wonder whether your regular readership would support deleting off-topic comments, I give my support to such an action (including deleting this very off-topic post).

Finally, thank you for the link to Marzen's article. Bleeding Kansas is a fascinating and often overlooked prelude to the Civil War.

[Anon]

I don't know, your user name itself seems to provide a fairly good reason for ensuring that commenters on any post on this website know about its privacy practices (because people who post anonymously generally don't want to be harassed), at least until those practices have been clarified.

[Terry Malloy]

A softer question:

What is the privacy policy of TFL?

Does it include giving information to third parties under any circumstances?

If so, what are those circumstances?

[Anonymous Only Because I Don't Want People to Harass Me For Speaking Common Sense (and not only am I not Brian Leiter, I have never met him and couldn't give a fig about who's right and wrong in this dispute)]

Those with glass houses...

Terry Malloy - could you point me to Lawyer's Guns & Money's & Inside the Law School Scam's privacy policies? Because I can't find them on those two websites. I will take a lack of response as an admission that 1) those sites do not have a privacy policy, and 2) Paul Campos is illegally selling nuclear technology to Iran.

[Anonymous Only Because I Don't Want People to Harass Me For Speaking Common Sense (and not only am I not Brian Leiter, I have never met him and couldn't give a fig about who's right and wrong in this dispute)]

I'm sorry, I just found the LG&M comments policy. I am not making this up, this is really on the LG&M website:

Q: What’s your comments policy?
A: Arbitrary random drunkenness. Does that count as a policy?

Wow.

[Jeffrey Harrison]

I have no idea who Matt is but I am sure he is not Al, to whom I addressed a very simple question, because the answers are way beneath Al. So let's take a look:

"1) For anyone who knows anything about Campos, his credibility is very, very low."[So why not deny this accusations. What kind of logic is this.]

"2) Even if the "charges" were true, it would be, at best, a difference of opinion as to whether there was any moral wrongdoing." [If you allow posting by anonymous I think it can be assumed you will not "out" anonymous. The moral issue stems from not adhering the the poster's assumption that anonymous would remain anonymous.]

"3) The "legal" claims are, at best, highly doubtful. (See, for example, the opinion of Orin Kerr, in a comment at Prawfsblog.)"[I do not know about legal claims and would trust Orin or anyone with expertise on the matter.]

"Given that, I don't see how there is much to do but let Campos throw a fit and then go calm down, and the idea that people should demand Filler's "resignation" seems a bit hysterical." ["Hyterical"?, well maybe for you but I think it stands to reason that someone legitimizing the blog would want to know the values of the person they are supporting.]

Mainly, I am now persuaded that Campos must be correct. Otherwise there seems to be no explanation for the contributors to this blog, including Al, to hunker down.

[Anon]

A. I have no affiliation with LG&M.

B. No one has suggested that LG&M has given third parties information about people who post anonymous comments on their website (because their practices are in line with the reasonable expectation that an anonymous post will be, you know, anonymous). On the other hand, there are fairly strong indications that administrators on this website did give information on anonymous posters to Brian Leiter.

Therefore, I would like some clarification on what posters should expect from this website if they post anonymously, and warning people that, despite appearances, their apparently anonymous comments may not remain that way seems warranted.

[Ganger]

Anon at 7:54 and Prof. Harrison -- where on this website do you see a statement encouraging or even permitting anonymous or pseudonymous comments? I mean, people do post that way, myself included, but the actual instructions say "name and email address are required." I believe that is what it has always said.