Want a more academic picture of Michigan? Check out the law school building trivia question from last spring.
Want a more academic picture of Michigan? Check out the law school building trivia question from last spring.
One of my facebook friends linked to this and I think you'll enjoy it if you haven't seen it already. If you don't enjoy it, my sincere apologies for having intruded on the conversation here in the faculty lounge. At the very least I hope you'll find it interesting.
In this post I want to build upon my earlier post concerning the ‘2 v. 3’ debate, and the ways in which this debate often problematically sidesteps problems with higher education more generally—but, in particular, undergraduate education—in the United States. I learned a lot from the comments to that earlier post as well as some private emails I received, so here I’d like to respond to some of the themes I saw emerging in that previous discussion, and also set the stage for at least one more post on this topic.
As the title to this post is meant to suggest, I think we need to be careful in how we understand ‘the liberal arts,’ and neither singularize nor essentialize it. Some previous commentators suggested that there was much to be learned from disciplines that would not traditionally be considered part of a liberal education—for example, marketing, financing, and accounting. Other commentators suggested that what passes for liberal arts education in the contemporary United States—for example, haphazard courses of study in philosophy or political science with no guiding sets of (humanistic) problems or questions—is hardly beneficial.
I am sympathetic to both sets of concerns and, in fact, one of the central realizations that I try to bring my students to when teaching Comparative Law is that overarching systemizations of ‘the world’s different legal systems’ are often not very helpful. In other words, it would be as problematic to always categorize accounting as not part of the liberal arts as it would be to describe the United States fundamentally as a democracy. We need to get beyond merely surface characterizations and impressions.
But such surface talk is what much of the ‘2 v. 3’ debate deals in, in the process avoiding a more serious debate about what we fill any number of years of (legal) education with, and what kind of lawyer—and, indeed, what kind of person—we want to emerge from whatever educational enterprise/s is/are settled upon.
The ‘we’ here is not a royal one, but a social one. In other words, I take it as axiomatic that we are hoping to design a legal education system whose graduates are conceived of as social actors with responsibilities towards their fellow citizens (global or otherwise), much in the same way that we conceive of medical education and doctors. That is to say that there’s no (capitalistic) ‘right’ to be a lawyer or a doctor and it’s also to say that neither legal or medical licenses should be designed as products that can be bought cheaply via Amazon.com. I mention the cost issue here because ‘2 v. 3’ often devolves into ‘2 x $45,000 v. 3 x $45,000.’ To my mind, ‘# of years’ is a pretty thin question in the legal education debate, and talking about ‘# of dollar-years’ doesn’t make the discussion significantly less anorexic.
Last summer I blogged about my book on the term Uncle Tom. Those who would like to eventually read it will soon be able to. I was offered a book contract from Cambridge University Press. The book is finished. But now, of course, I have to respond to reader’s comments. So next year, I assume, the fruit of years of labor will be available for public consumption.
I argue that cemetery dedication addresses before the Civil War are part of a Whig constitutional culture. Those addresses see cemeteries -- often organized as private charitable corporations -- as vehicles for moral uplift. They aim at fulfilling a sacred trust -- the proper burial of the dead -- and they seek to do this by taking a place of natural beauty and improving it by cultivation. The cemeteries do not just fulfill moral duties; they teach lessons about duty and patriotism. The cemeteries are republics on a micro scale.
I've been hearing some skepticism from colleagues. At best they'll concede that a lot of judges and Whig politicians gave dedication addresses. Sure, Supreme Court Justices Joseph Story and John McLean gave dedication addresses at Mount Auburn in 1831 and Spring Grove in 1849; Whig politician Daniel Barnard gave one at Albany in 1849, and Whig novelist (and lawyer) John Pendleton Kennedy gave one in Baltimore in 1839. So maybe they'll concede that the cemetery dedication addresses -- and the rural cemeteries themselves -- were related in some way to Whig constitutional ideas. But the addresses anything more than a charming adjunct to Whig oratory?
What legitimizes this project and validates my methodology, I suppose, is Lincoln's address at Gettysburg. Everyone accepts that the Gettysburg Address reveals a lot about the constitutional functions of the War and that it helped set our nation on the course towards a new constitutional vision. The addresses I study aren't nearly as great as Lincoln's. A lot aren't great oratory (i.e., that's my understated way of saying they're really bad) and only a handful are better than decent. Story's is one of them, Barnard's is another, I think Amory Mayo's is another. Pure numbers are helpful on this score -- there were in the neighborhood of seventy published addresses and a lot of pageantry around the dedications, too. They help to establish the persistent of Whig ideas of constitutionalism through cemeteries organized by charitable corporations. The number of addresses, the consistency of themes, and the few good addresses contribute to the legitimacy of this as a way of understanding the contours of Whig constitutional thought and as seeing the addresses and the cemeteries as vehicles of propagating constitutional thought.
There is one other source that legitimizes the antebellum cemetery as site of constitutional thought: I want to draw on Lincoln before Gettysburg here, to show that Whigs (then Republicans) saw cemeteries as central parts of their constitutional world. For Lincoln's first inaugural address concludes with an appeal to the sentiments of Union that were nurtured by -- among other images -- patriot graves. "The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature." Lincoln taps into the affection for historical sites -- the Revolutionary war battlefields and graves. And though he does not mention them, memory was also preserved by the monuments that were beginning to appear -- like the Washington monument then under construction in the District of Columbia, as well as the Washington Equine Statue in Richmond, and the Washington statutes that were in Lexington, Virginia at VMI, and the Columbia, South Carolina state house. The distinguished constitutional historian Michael Kammen titled his 1991 book about the respect and affection for history in American culture Mystic Chords of Memory.
In case you're interested in more about this, here's my full paper, "'These Great and Beautiful Republics of the Dead': Public Constitutionalism and the Antebellum Cemetery." Sometime soon I want to talk about another cemetery address or two and also how cemetery dedication addresses can contribute to the project of studying public constitutional thought. The image is of the Soldier's National Memorial at Gettysburg, which is supposed to mark the spot where Lincoln delivered his address (though subsequent research has revealed a different location, which may be in the Evergreen Cemetery.)
Loyola Law School Professor Yxta Maya Murray's article "From Here I Saw What Happened and I Cried: Carrie Mae Weems’ Challenge to the Harvard Archive" has just appeared in volume 8 of Unbound: Harvard Journal of the Legal Left. It tells the really interesting story of a dispute between the artist Carrie Mae Weems and Harvard's Peabody musuem over the use of photographs that Louis Agassiz took of enslaved people that he hoped would support the theory of poly-genesis that he embraced (along, I might note with Alabama's Josiah Nott). The article explores Agassiz' purpose in collecting the pictures, their re-discovering in the 1970s at Harvard, and the controversy over their use. While I usually emphasize Harvard's contributions to the anti-slavery cause, this story reminds us again of the connections between Harvard and racial thought in the pre-Civil War era.
Cribbing a little from the article:
In the same year as the enactment of the 1850 Fugitive Slave Act, Agassiz toured South Carolina plantations and decided to defend his polygenesist position by resuming his collecting habit. But this time he would collect live people, not animals, bones, or plants. For this purpose he enlisted Dr. Robert Gibbes, a Morton acolyte, who led Agassiz on a tour of the plantations. On this expedition Agassiz selected Delia, Jack, Renty, Drana, and others for their supposedly instructive appearances. He ordered Gibbes to “gather corroborative photographic evidence” of them, and then retreated to Harvard. Gibbes hired one J.T. Zealy to take nude pictures of them at Zealy’s studio in the two attitudes that make up the series, being headshots and full body shots. The record of what happened to the pictures here dwindles. .... [T]he daguerreotypes fade from history until their discovery in the Peabody attic in 1976. ....
Agassiz would trigger .... [Carrie Mae Weems' show] From Here I Saw What Happened. Weems found much to comment on with photo-metrists like Galton. ... Inspired by Georges Cuvier’s 1815 dissection of Sarah Baartman, the original, doomed Hottentot Venus, Galton conducted his own infamous study of yet another “Venus.” He encountered this second goddess on his journeys, and measured her every square inch with a sextant. In 1859, when his cousin, Charles Darwin, had published The Origin of Species, Galton’s enthusiasm for measuring racial attributes merged with a conviction in White supremacy he felt was assured by Darwin’s work. Back in Europe, Galton expanded on his practice of measuring people he believed resided on the lower reaches of the Great Chain of Being. ...
The Getty Museum commissioned From Here I Saw What Happened and I Cried from Weems, asking her to react to its 1995 show Hidden Witness: African Americans in Early Photography. Hidden Witness displayed photographs of African Americans from the 1840s through the 1860s owned by the Getty itself as well as a Detroit collector named Jackie Napoleon Wilson. Weems assembled a presentation based on thirty prints, which she tinted red (signifying the outrages evidenced by the appropriated, violent images) and blue (signaling the confessional thoughts of the bookending Nubian observer) and emblazoned with her texts.
This sets up a question that Murray explores at the end of the article: does Harvard own these images?
Assuming that the copyright did belong to Agassiz, and that Agassiz or his heir transferred it to Harvard when his collection of “accumulated specimens” was purchased for the University around 1858, or when Alexander Agassiz gave Agassiz properties to the University in 1935, the question next becomes whether the duration of the right extended until the 1990s. One problem is the lack of publication history. Moreover, Harvard counsel refuses to enlighten me about this record. If the images were published around 1850, the copyright would certainly have run out by the 1990s. However, if the daguerreotypes malingered in the obscurity of the Peabody’s attic until their discovery in 1976, then Harvard could have claimed sole copyright in the images until well into the 2000s.
Recently I had the honor of co-editing a book with my friend Professor Cynthia Baker of Indiana University Robert H. McKinney School of Law entitled “Town and Gown: Legal Strategies for Effective Collaboration” (ABA 2013). Our colleague Judith Welch Wegner of the University of North Carolina Law School contributed a chapter on the continuum of relationships between institutions and their host municipalities and communities where among other things, she describes partnerships that can both advance the educational mission of colleges and universities as well as the welfare of the communities in which they are situated. Professor Wegner explains how these tend to be more decentralized collaborations that may include faculty research, student internships including instruction and engagement in the work of the local government, and other service initiatives.
Albany Law School’s Professor Mary Lynch and her co-author Jennifer Jack make the point in their chapter of the value that law school clinics provide as they connect with and affect their host communities. Specifically, they identify four ways in which law school clinics may be beneficial to their connected municipality: 1) through educational outreach and awareness, technical assistance, and referral information about governmental and other benefits that members of the community may be entitled to – which, they explain, may result in the law school serving as a referring entity or effective triage for community problems; 2) by solving unmet legal needs in the community through the provision of free legal services (and noting that this is especially critical in challenging economic climates where there is a shrinkage in federal and state funding for legal services); 3) through externships where students can provide needed support for the localpublic legal system including courts, government agencies and legal service providers; and 4) through clinical education many schools produce community-centered lawyers who often pursue careers in public interest, government, legal services and pro bono work.
The chapter on clinics was written before Superstorm Sandy ravaged the New York metropolitan area and Long Island, along with the Jersey Shore just under a year ago, yet the authors give as an example how law school clinics respond to disasters within communities such as was the case following Katrina in New Orleans and Mississippi and the disaster in Haiti. The Student Hurricane Relief Network, later renamed Student Disaster Relief Network was born out of the commitment of law students from across the country to make trips, at their own expense, to ravaged areas in the Gulf Coast. Following Sandy, Touro Law Center set up TLC-HEART or the Hurricane Emergency Assistance Referral Team, which quickly grew into a clinic under the leadership of Professor Ben Rajotte. With over 1,400 intakes from the community in a relatively short period of time and ongoing daily demand for its services, the capacity of the law school to serve the community has been enhanced by the commitment of students from across the country and Europe from approximately 20 different law schools who have already visited to provide pro bono hours (or who plan to visit between now and spring break). This number of quality volunteer hours given by law students and law faculty is an ongoing demonstration of law schools’ investment of educational resources can and often do serve the needs of both students and the members of the host community. This is but one example illustrating how quickly law schools can mobilize to serve a valid educational mission and meet a valuable and immediate and critical community legal need.
When the media and others start the chatter about too many law schools, one of the many responses the academy might offer is the value proposition law schools, particularly through clinics and externships, bring to the community.
PURPOSE: The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics is an interdisciplinary research program at Harvard Law School dedicated to scholarly research at the intersection of law and health policy, including issues of health care financing and market regulation, biomedical research and innovation, and bioethics. The Academic Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Center pursuing publishable research that is likely to make a significant contribution to the field of health law policy, medical innovation policy, or bioethics. Our prior fellows have found employment as law professors at institutions such as Harvard, UC Berkeley, BU, UCLA, Cornell, the University of Illinois, and the University of Arizona. More information on the Center can be found at: http://www.law.harvard.edu/programs/petrie-flom/.
Details after the jump...
CALL FOR PAPERS ANNOUNCEMENT:
Inaugural Meeting of the AALS Section on Economic Globalization and Governance
2014 AALS Annual Meeting
Section Meeting: January 3rd, 8:30 am to 10:15 a.m.
New York, New York
After several years of consideration, in August, 2013 the Section on Economic Globalization and Governance (“SEGG”) received approval as a provisional section of the AALS. SEGG is sponsoring a Call for Papers for its program during the AALS 2014 Annual Meeting in New York City. A description of the subject of the Call for Papers appears below.
Comparative Corporate Governance Meets Demands for Greater Diversity:
In Favor of Hard, Soft or No Legal Supports for Enhancing Board Diversity?
The centerpiece of SEGG’s inaugural panel is the legislative and regulatory efforts to promote greater ethnic and gender diversity on corporate boards which have been launched around the world in the past few years. The international drive to enhance board diversity is of paramount importance because board-centric governance remains preeminent in virtually all business entities of substantial scope. Second, globalization has enhanced the breadth and influence of corporate affairs, and hence the power of corporate boards of directors worldwide. Third, the project of enhancing board diversity remains complex and contested, as is evident in the variety of approaches extant, their results, and the myriad opinions surrounding them. For this reason, greater academic attention to this subject is warranted.
Gender-parity laws appear to be achieving particular prominence. Parliaments in Italy, the Netherlands, Iceland and Belgium have enacted gender-based laws recently; Norway’s and Spain’s (very different) quota laws have existed for several years. France adopted a 40% quota law in 2011. Australia adopted a “comply or explain” law effective January, 2012; and last year the UK also endorsed a similar disclosure-based rule. In November 2012 the EU Commission proposed legislation embracing 40% representation of “the under-represented sex” in non-executive board positions by 2020.
Here in the U.S., the SEC now requires public companies to enunciate whether they consider diversity in evaluating board candidates and “how diversity is considered.” Finally, in response to data emerging from a UC Davis study, in August 2013 the California Senate passed a resolution calling for the state’s companies to have more women on their boards. Mirroring this increase in hard and soft regulations to promote diversity, there is greater study of board diversity and its effects in management and law journals and by management consultants. For example, studies by McKinsey, the Conference Board and Catalyst support the value-added of greater board diversity.
Perhaps ironically, alongside this push for greater demographic diversity on boards, there is greater pluralism in conceptualizing the role and functions of corporate directors, consistent with the waning absolutism of shareholder primacy theory. In sum, international interest in corporate governance has never been greater, and it is paralleled by interest in enhancing the demographic diversity of corporate boards. This drive reflects a twin concern for promoting both economic growth (diverse boards may better counter wealth-destroying groupthink and perhaps even excessive managerial agency costs) and also promoting social justice (diverse boards reflect meritocratic values and may bolster more sustainable, socially responsible business practices).
Nevertheless, controversies abound. Will diversity lead to unproductive dissension on boards? Must diversity come at the cost of wealth-enhancing “experience”? Can the disclosure approach achieve meaningful results or are quotas or other substantive requirements warranted? What forms of diversity are most important to achieving particular corporate and social welfare objectives relevant to business? What legal approaches, if any, are optimal for enhancing the kind of board diversity that matters? In what fashion do experiments in enhanced diversity signal evolution in international models of corporate governance? What patterns emerge with clarity from the complex academic studies of board function, and operation – and how do these relate to enhanced calls for more diverse board composition? This inaugural panel of SEGG seeks to address these questions through a discussion incorporating the results from this Call for Papers with expert commentary.
If you are interested in presenting a paper, please submit a summary of no more than three double-spaced pages, by e-mail, on or before Friday, October 25th, 2013. In addition to the summary, you may also submit a complete draft of your paper. Direct your submission and any inquiries about this Call for Papers to:
Professor Faith Stevelman
Professor of Law, New York Law School
Visiting Professor; Director, Center on Law, Business and Entrepreneurship,
University of Washington School of Law
Papers may be accepted for publication but must not be published prior to the Annual Meeting. The Executive Committee of the SEGG will review and select papers for presentation at the program. The authors of the selected paper will be notified in or before Monday, November 11th, 2013; commentators will be selected by the Executive Committee. Call for Papers participants in the Section’s program will be responsible for paying their annual meeting registration fee and travel expenses.
Regrettably, only full-time faculty members of AALS member law schools are eligible to submit papers. Foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members; graduate students; fellows and non-law school faculty are not eligible to submit. Faculty members at fee-paid non-member schools are also ineligible.
Suggestions for future SEGG programs may also be directed to the Executive Committee via Professor Stevelman’s email.
SEGG EXECUTIVE COMMITTEE, 2013
Chair, Faith Stevelman, Professor, NYLS; Visiting, University of Washington School of Law
David Hunter, Professor, American University, Washington College of Law
Tayyab Mahmoud, Professor, Seattle University School of Law
Geoffrey P. Miller, Professor, NYU Law School
Anita Ramisastry, Professor, University of Washington School of Law
Edward L. Rubin, Professor, Vanderbilt University School of Law
This just in:
Registration is now open for the 2nd annual Local Government Law Works-in-Progress Conference, which will take place on October 25, 2013 and October 26, 2013, at the newly renamed Dale E. Fowler Law School at Chapman University in Orange, California. You can access the registration form and hotel information here.
Please register for the conference by September 18, 2013. Participants will have the option of either presenting a full draft or an early work in progress/abstract. Draft papers will be due October 7, 2013. Questions should be directed to Kenneth Stahl at email@example.com.
That's the claim of this article, which notes James M. Buchanan (he, too, a future Nobel Prize winner) as a second victim. Both were faculty in what was then called UVa's Thomas Jefferson Center for Studies in Political Economy, and according to the article, their offense (and, the article suggests, the offense of the Center more broadly) was exploring the use of "markets to achieve efficient and beneficent goals."
Besides the dispiriting possibility that Coase and Buchanan were edged out for conducting unpopular research, the other (intertwined) thing of note here is the apparent assumption that was made about Coase's personal politics on the basis of his scholarly methodology. Coase reportedly said, of the "secret dossier compiled by then Dean of the Faculty Robert Harris in which Harris outlined a plan to change the economics faculty," that it
was very damning because it makes quite clear what their attitude was and there was actually a policy to get rid of us. . . . My wife once heard someone at a cocktail party describe me as someone to the right of the John Birch society. It wasn't true. You know, I'm English and have a completely different history from most of the other people and am not really much involved at all in American politics.
Would that scholars' work and the arguments contained therein were evaluated on their own terms.
At Duke, at least, six of their nine journals - yes, nine journals - are moving to a digital-only format. Only the Alaska Law Journal, Law and Contemporary Problems, and the Duke Law Journal will continue to appear in paper.
I haven't done any research on this issue, but I imagine that increasing numbers of secondary journals are moving online. This decision could trigger reconsideration of this issue by a flock of other law schools. In tight budget times, paper journals may seem like a pretty ripe target.
This one just came in. The AALS section on Legislation and Law of the Political Process will be having a panel titled From Reynolds v. Simms to Shelby County and Beyond at the annual meeting in New York this January. Scholars are invited to submit abstracts; they must be received by September 20, 2013 to be considered. More details here.
You can find the complete AALS Call for Papers list here.
After noticing the cyclical start of announcements of deans stepping down and new search committees being formed, short-term memories of what actually got me to answer the question of “Why be a law dean now?” started coming back. I have been asked by friends and former colleagues whether I regret having abandoned a relatively safe and secure faculty job with administrative responsibilities in a community filled with the comfort of friends and contacts for a deanship “at this time.” My answer is that this is the best time to be a law school dean and I would encourage all creative and hard-working faculty and practitioners to consider taking part in this journey.
My own motivation for deciding to go to law school was steeped in law and public policy. I figured if I had to live by the laws, which sometimes work well and sometimes result in injustices and unintended consequences, then I wanted to be a part of making those laws better. That left the choice of running for public office or serving in a creative advisory and advocacy role to lawmakers and policymakers.
After short contemplation given the public perception of and jokes about lawyers and politicians, I decided the more meaningful avenue of helping to promote meaningful reform was by advising those in positions to actually make the decision. After law school, having secured what I thought was my dream job in government, I quickly realized the importance of not just being a government lawyer, but being a government lawyer in a position with an avenue to actually accomplish something meaningful to correct an injustice, to protect the environment and to simply leave the community better off than it was before I got here. The best career decision I made was to move from the public sector into academia.
The bulk of my academic career has been spent researching, discussing, debating and advocating ideas for all kinds of legislative and regulatory change in dozens of areas of law. I often wonder why some find engaging in scholarship to be a particular challenge – for me it represents a constant vehicle for communicating ideas and preserving these ideas and justifications in support thereof for present and future generations of change agents. There is an indescribable rush of adrenaline when a government or a court embraces the reform concept that you know germinated in your work. The adrenaline feeds the passion to take on the next issue with equal intensity. Not all ideas can be addressed at once and not every government chooses to experiment with the same option for reform. Before assuming the deanship at Touro Law Center I started to move some of my scholarly interests to law teaching, discussing innovative strategies to incorporate Carnegie’s best practices approach in doctrinal classes and sharing observations gleaned from moving one of my courses to an all on-line format.
I often explain that being a law dean, especially now, is little different from the skill-set honed over two decades running a research center focused on legal aspects of public policy reform. Over the last several years the economic issues and challenges posed to law practice in all sectors, the shifting demands for legal services, the impact of technology, changing demographics and other factors have forced the business models behind the practice to undergo continuing change. The pressures facing the profession have joined what had been a quieter discussion ruminating for a long time about legal education reform. Now that discussion is a front-and-center debate within the academy, the profession, the media and most recently with President Obama offering an opinion, perhaps the government.
This is the best time to be a law dean. There will always be pressures and demands from multiple constituencies and while the economic challenges may be greater than in the past, the chance to thoughtfully work together with smart and creative groups of professionals to develop innovative initiatives that will lay a foundation today for lawyering in the future is too great an opportunity to pass up. The legal education experience we provide today is the investment for the future of our profession
- a profession that protects rule of law, ensures that all people have access to civil and criminal legal services, and ensures a sustainable tomorrow across the globe. Similar to legal aspects of public policy reform, there is not one “right way” to accomplish meaningful reform. Dozens of different approaches have already been adopted and are being implemented in law schools across the country and more will be introduced. This is the time for law schools to be laboratories of innovation and reform, to learn from each other and to continue to develop and refine new approaches to foundational doctrinal and skills education needed to produce the lawyers of tomorrow. The tag line used often by those in government “There is no higher calling,” seems to be equally applicable now to law school deans who have access to a special platform to foster sustainability.
We're getting the first information on the actual size of the law school Class of 2017 entering this fall. Overall, the number of applicants declined by about 12.3% from last year.
An article in the George Washington Hatchet gives us this:
GW - up 80 to 484
NYU - down 10 to 440
Virginia - down 20 to 336
Duke - up 1.4% (presumably up 3 to 211)
Vanderbilt - up 1 to 175
Independently, comparing to last year's numbers located in the LSAC Official Guide, I've found that New York Law School seems to have contracted: down 120 to 326. Yale is at down 5 to 199. Berkeley is up 23 to 286. Washington and Lee is down 76 to 111. Nebraska down 7 to 127. Albany is down 15 to 187. William and Mary is up 31 to 227.
Lincoln's Gettysburg Address helped secure the focus on equality and democracy in American constitutional thought. What interests me about the pre-Civil War cemetery dedication addresses is that they, too, spoke to constitutional values. Garry Wills' magnificent book about the Gettysburg Address began by talking about Justice Joseph Story's 1831 address at Mount Auburn's dedication. But the rest -- even Ralph Waldo Emerson's 1855 address at Sleepy Hollow Cemetery -- haven't received much attention. Down the road I want to talk about Emerson's address, because it is out of keeping with most of the others (no surprise). Right now I want to talk about the address that New York politician Daniel Dewey Barnard delivered at Albany's rural cemetery in 1844.
I'm drawn to this for several reasons. First, a rather mundane one -- some decades ago I was reading Phi Beta Kappa addresses for what they revealed about pre-War, Northern jurisprudence. A surprisingly large number were delivered by lawyers and judges. (A preliminary sketch of that project appears here and longer papers on southern oratory are here and here.) Some of the college addresses reflected ideas of rejection of irrational precedent made famous by Emerson's "American Scholar" address. Others, more numerous, supported hierarchy (and what I might term irrational precedent). I was interested in Barnard because he gave several Phi Beta Kappa addresses -- one at Amherst in 1839 and another at Yale in 1846. I pulled from the Widener stacks Barnard's dedication address at the Albany rural cemetery. I remember thinking this was an unusual kind of address (now I know that's not correct), but I was excited to see him talking about constitutional ideas in it. So I made a copy of it and stuck it in my filing drawer with the other pre-War oratory with the idea that I'd come back to it at some point.
Second and really more importantly, I'm interested in how this address fits with the rest of Barnard's constitutional thought. And he is a person who's left us an extended legacy -- for he was a central figure in the legal response to New York's anti-rent movement. That is, he was arguing in favor of the property rights of the "landlords" (really beneficiaries of servitudes -- but that's a story for another time). Barnard's oratory is useful in reconstructing the intellectual world of conservative Whigs, which focused on property and also on the state in promoting economic development and a well-ordered community. Barnard spoke and wrote across the range of property and civil government, I turn to him a lot. He's easy to put into opposition to Democrats who were less interested in property rights created by state-charters and also less concerned with order than were Whigs.
I focus on Barnard in my paper on pre-Civil War constitutionalism and cemetery dedication addresses as a way of showing how the cemetery addresses fit into a larger Whig world of constitutional thought and jurisprudence. For Barnard we can see the cemetery address as part of a well-developed world of thought.
In fact, Barnard's address drew upon key parts of Whig thought -- he spoke of the sacred trust and the duties owed to the dead to give them property, where they might return to the earth. This was a right grounded in natural law. He knew it was the law because it was founded on sentiment, even more than reason. The "sentiment which the mass of mankind entertain" is burial in the earth. Such sentiment was universal, or close to universal. For Christians it received the extra authority. "It has been the mode almost universally adopted. No law of nature that we know of, no law of propriety or convenience, no law of God, fordids it, or discountenances it. No discovery of science or of philosophy condemns it. On the contrary, without violent or strained constructions, it may be thought to have been the mode originally prescribed by the great Author of nature himself...."
There was an additional duty beyond burial in the erath -- which was to create beautiful places of repose. The cemetery's buildings would take the beauty of nature and refine it through cultivation. That beautiful place of repose reflected the values of a republic -- a place where there were people of different classes and political affiliation mingled, free from faction. "Yonder city, where, as every where in life, the harmonies of society are apt to be broken by petty feuds, by ungentle rivalries, by disturbing jealousies, by party animosities, by religious dissensions, shall, one after another, as death singles them out, send up her multitudinous populations to these grounds, and they shall have their respective places in amiable proximity to each other, peaceful, harmonious, undisturbed and undisturbing ...." In discharging this sacred trust of building a place of honor and repose for the dead, the living also discharged a duty to themselves and future generations. For the cemetery would "become a great moral Teacher; and many valuable lessons ... may be learned here -- lessons of humility, of moderation, of charity, of contentment, of mercy, of peace -- lessons touching nearly all that concerns life, touching death and touching immortality."
I want to talk soon about Emerson's Sleepy Hollow address, about Amory Mayo's 1858 address at Green Hill in Amsterdam, New York, which saw cemeteries as fulfilling the dream of a Christian republic, about cemetery addresses as a vehicle for studying public constitutional thought, and most importantly about how Lincoln's first inaugual address validates the study of cemetery dedication addresses. And if you want to hear more about this right now, I have a paper up on ssrn, "'These Great and Beautiful Republics of the Dead': Public Constitutionalism and the Antebellum Cemetery."
The image is an 1846 map of the Albany Rural Cemetery from the New York Public Library's collection.
I just returned from a week-long trip to Washington D.C., the highlight of which was a day on the Mall listening to speeches commemorating the 1963 March on Washington and MLK's "I have a Dream" speech from 50 years ago. I was reminded that a week ago, I suggested to our entering 1L students that one aspect of being a law student is that they will never read (or listen) to the news again in the same way. As I listened to speakers who reflected on the changes in American law and policy over the past 50 years, it was an opportunity to reflect on my role as a legal educator.
If I had been a law professor in 1963 (I was only 8 years-old at the time), would I have marched? Would I have been a freedom rider? Would I have used the law school classroom to encourage students to find their voice in the civil rights debate?
. . . and as I considered these questions, I realized that they are as pertinent today as they were 50 years ago. We may not know which issues of our time will be remembered 50 years from now as a crossroad of social change . . . but we certainly have no shortage of issues facing our country . . . immigration, gun control, campaign finance reform, civilian use of drones, NSA surveillance, fair wages, health care, "stand your ground laws", abortion restrictions . . . and the pending question this week . . . possible US military action in Syria.
As law professors, what is our role in these current debates? Will we march? Will we ride? Will we incite civil debate in our classrooms and in our communities?
If you haven't taken the opportunity to listen to the speeches from Wednesday, August 28th (all easily available on YouTube by searching for "50th Anniversary of the March on Washington"), I highly recommend doing so. Most are 2-10 minutes long and are quite though provoking.
I would be interested in your reactions . . .