The Faculty Lounge

Justice

Karen Tani at the Legal History Blog has drawn attention to Allan Beever's new book, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (OUP, 2013). The argument fron the publisher:

    Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state.

    In the modern view, private law is understood as a method for achieving certain social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard.

    A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.

Strictly speaking of the historical argument- that sounds rather pursuasvie to me. We have a very difficult time thinking about the relationship between political philosophy and public law (or "public philosophy") on the one hand and private law on the other. The most striking example of this difficulty that comes to mind, at least for me, is the concept of equity. We have strong, broad historical and theoretical treatments of the subject (think of Peter Hoffer's Law's Concience, David Lieberman's The Province of Legislation Determined (a personal favorite of mine), or the work of Drucilla Cornell, or along those lines Derrida's famous essay in Deconstruction and the Possibility of Justice. That being said, the relationship between the concept of equity and the jurisdiction of equity is understudied. Good places to look right now, I have found, are in law and literature- Daniela Carpi's own work and edited volumes, including The Concept of Equity and Practiging Equity, Addressing Law, and Bradin Cormack's A Power to do Justice, and in legal history- Ian Williams of University College, London on the practical creation of maxims in late medieval and early modern legal theory.

Chancery courts at all levels of various constitional orders were controversial in the early modern British Atlantic world precisely because they were local sites for configuring jurisdictional and judical power (think of the political situation behind the Zenger case, or Jefferson's pet project of instituting a High Court of Chancery in Virginia, to say nothing of his equity commonplace book). Chancery, in other words, was shot through with larger, open-ended questions at play in English, British, and British American constitutionalism about who judges and where (and for whom and for where) they get to do it. Contests over conciliar courts (from the Star Chamber on down) were fundamental fights about sovereignty itself. 

Now in terms of political theory, one of the many reasons I remain skeptical of the perpetually asserted importance of Carl Schmitt is that his notions of the state of excpetion and political theology would not have struck anyone in the early modern world thinking about equity as particularly insightful or original. It has long been understood that there is a point at which positive if not all of customary law breaks down, loses coherence, or becomes suspended, and a good deal of the history of legal and political thought has been concerned to identify just what that point is and when or where it should be or simply is reached, and what should happen when it is reached. Are we standing then in the presence of natural law, a transcendent justice, and how do human institutions, or human beings themselves, acknowledge that point and deliver that justice without becoming, or at least appearing to become, either the object or instrument of sheer force of sovereign will? These are questions broached by More and Hobbes among others in their days and in our own age of "governmentality" and the security state these questions are hardly irrelevant. But, so the argument might go, we ask and answer such questions not only in political philosophy or high constitutional (or unconstitutional) politics, but in our relationships with one another, in everyday practices and in private law. Bonnie Honig of the American Bar Foundation makes something of a similar point in her book, Emergency Politics: Paradox, Law, Democracy.

One could speak here of a need for ordinary legal philosophy. 

Anyway, I will discuss Jefferson's place in all this in another post before signing off. Beever's book sounds quite interesting, and it seems to be part of a trend to refocus legal scholarship on big questions that involve the long history of thought- it is worth noting that scholars are getting over our ingrained (and I would want to say in many cases still justified) concerns about metanarratives.

 

 

 

History Office History

 

 

            Fellow UCLA History PhD and current JD student at Yale Law School, Twitter enthusiast Josh Stein, has recently posted a note over at the Legal History Blog, and the piece definitely merits attention here. Josh welcomed me to the department at UCLA when I got started as a student of Ruth Bloch and later Michael Meranze, so he will always have my personal gratitude and professional admiration, and that is despite the fact that we would spend the next few years arguing from very different intellectual backgrounds and concerns.

 

            In his article, Historians Before the Bench: Friends of the Court, Foes of Originalism, Josh critiques a tendency of historians writing amicus briefs in recent US Supreme Court Cases to accept the originalist and conservative premise of the normative weight of the past. As an alternative to the understandable desire to offer historical critique in the face of what many historians take to be dangerously reactionary judicial philosophy and politics, Josh outlines three interrelated approaches legal historians might take: destabilization, fidelity (something very close to constitutional redemption as outlined by Jack Balkin), and what historian Peter Hoffer calls a “special master approach,” or narrowly focused expert testimony on specific historical questions as opposed to broad, ideological advocacy.

 

            Josh takes the historical profession to speak with one voice and to share a consensus that its special expertise, or “mastery,” is in the art of historicizing, or destabilizing the only-apparently authoritative narratives in which scholars of other disciplines and the public continue to constitute themselves as jurists, philosophers, theorists, or citizens. If this is true, I think it is unfortunate. It seems to me that if Josh is right that we are in an “opportune” moment to rethink how historians interact with the court, it is equally an opportune moment to think what it means to be doing history in the first place. This project, it seems to me, would fruitfully start by extending the historical awareness of context, complexity, and plurality to the conditions of our own intellectual practice. Historians take it for granted that destabilization is an unmitigated good and that the authority of the discipline rests on precisely their special mastery and license to render the past complex and therefore only understandable and relatable with the help of professional historians.

 

            This mode of practice has come under tough (and indeed, historical) criticism recently from Christopher Tomlins and Kunal Parker. Despite these criticisms, I continue to identify with (among other things) a contextualist approach to legal and political thought, and I take the work of Pocock on Gibbon and history, of Tully and Brett on empire, and of Geuss on politics and philosophy to be evidence of the continued efficacy of that kind of work. But the promises of contextualism, broadly defined, rest on the willingness of historians to extend such awareness to themselves, and to accept the fact that there are multiple roads to the past and a plurality of ways of responding to the presence of the past in the present. The failure to attend to the conditions of intellectual practice on the part of historians is ironic, perhaps, but it is also deeply problematic. Historical practice that is defined by its practitioners as the sole domain of constituted professional expertise is one that is by definition and with increasing intensity not even remotely civic.

 

            Against the bureaucratic faith in the special knowledge-production of the expert and their office, I want to rescue a Jeffersonian and radical common-law awareness of use and transformation. A substantively democratic constitutionalism would require a faith not in the ultimate redemption of the text of the US Constitution itself so much as an appreciation for the potentially redemptive work of people and peoples working on the material of their civic inheritance. To participate in history is to make transformative use of the stuff of historical representation, and from this perspective, the task of the historian might be less to destabilize authoritative narratives than to render their constituent components open to thought and action, to consideration and to use. I take this to be roughly in the spirit of S. Levinson’s work and to be looking for a protestant reformation in jurisprudence and history both- one particularly oriented around recovering the priesthood of all believers, or the responsibility for legal and political judgment of all citizens. This is also basically, even if softly, Marxist- it is to insist that we attend to the at once subjective and objective quality of the sensuous, material, and revolutionary domain of practice.

 

“Facts are but the Play-things of lawyers,- Tops and Hoops, forever a-spin… Alas, the Historian may indulge no such idle Rotating, History is not Chronology, for that is left to lawyers- nor is it Remembrance, for Remembrance belongs to the People. History can as little pretend to the Veracity of the one, as claim the Power of the other, - her Practitioners, to survive, must soon learn the arts of the quidnunc, spy, and Taproom Wit,- that there may ever continue more than one life-line back into a Past we risk, each Day, losing our forebears in forever,- not a Chain of single Links, for one broken Link could lose us All,- rather, a great disorderly Tangle of Lines, long and short, weak and strong, vanishing into a the Mnemonick Deep, with only their Destination in common.”

 

- Thomas Pynchon, Mason and Dixon, p. 349

 

 

 

 

 

 

 

Caleb Smith's The Oracle and The Curse

I recently had the pleasure of reading Yale English Professor Caleb Smith's The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War.  It's about the conflict between oracles (judges) and cursers (people on the outside of "the system" -- like antislavery advocates, especially people like Nat Turner and John Brown).  Thus this is an interpretation of American literature as it relates to the clash of visions of law and justice in the years leading into Civil War.  Cribbing now from Harvard University Press' website:

Condemned to hang after his raid on Harper’s Ferry, John Brown prophesied that the crimes of a slave-holding land would be purged away only with blood. A study of omens, maledictions, and inspired invocations, The Oracle and the Curse examines how utterances such as Brown’s shaped American literature between the Revolution and the Civil War.

In nineteenth-century criminal trials, judges played the role of law’s living oracles, but offenders were also given an opportunity to address the public. When the accused began to turn the tables on their judges, they did so not through rational arguments but by calling down a divine retribution. Widely circulated in newspapers and pamphlets, these curses appeared to channel an otherworldly power, condemning an unjust legal system and summoning readers to the side of righteousness.

Exploring the modes of address that communicated the authority of law and the dictates of conscience in antebellum America’s court of public opinion, Caleb Smith offers a new poetics of justice which assesses the nonrational influence that these printed confessions, trial reports, and martyr narratives exerted on their first audiences. Smith shows how writers portrayed struggles for justice as clashes between human law and higher authority, giving voice to a moral protest that transformed American literature.

I have some more thoughts on The Oracle and the Curse in the spring 2013 issue of the Civil War Book Review.  I note that Caleb Smith’s The Oracle and The Law speaks to huge issues, such how pre-Civil War American law gained and maintained legitimacy? How authority shifted from legal and religious elites to popular sovereignty from Revolution through Civil War? And how our country reconciled the higher law arguments of abolitionists with the principles of law and constitutionalism that so widely supported property rights in enslaved humans? It speaks to timeless questions of obedience to law, even as the law is unjust. And our nation continues to struggle with them, as our citizens turn sometimes to the streets and occasionally even to violence, as they challenge everything from environmental development to our wars abroad.  The rest of my review is available here.

Final Call for Nominations for Cromwell Article Prize

The deadline (May 31) for the William Nelson Cromwell Foundation's prize for an outstanding article published by an early career scholar is rapidly approaching.  By way of background, the William Nelson Cromwell Foundation has generously funded a prize of $2,500 for an excellent article in American legal history published by an early career scholar in 2012.  Articles published in 2012 in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History.  This subcommittee invites nominations for the article prize; authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed. Please send a brief letter of nomination, no longer than a page, along with an electronic or hard copy of the article, by May 31, 2013, to the subcommittee's chair, Alfred Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC 27599-3380 or via email at abrophy@email.unc.edu. Other members of the Articles Subcomittee of the Cromwell Prizes Advisory Committee are Mary Sarah Bilder of Boston College, Dean Daniel W. Hamilton of the UNLV, and Kristin A. Olbertson of Alma College.

Last year's prize, awarded at the annual meeting of the American Society for Legal History in St. Louis, went to David Engstom's “The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972,” which appeared in volume 63 of the Stanford Law Review in 2011.  Cribbing now from the Cromwell Foundation's citation:

During deliberations Committee members praised Engstrom’s deep look at the strategies employed by various civil rights groups to craft fair employment law, along with his intensive archival work across a wide range of sources, to tell a new story about how civil rights emerged not just from statutes and from judicial interpretation, but from the administrative state as well. Recent monographs have begun to open up the story of civil rights in the post-War period by showing that civil rights action activism emerged in many places, not just on southern streets in the wake of Brown v. Board of Education, and not just in education and in public accommodations.  Engstrom, an assistant professor at Stanford Law School, extends that analysis to the employment setting.  In telling this new story, he extensively mined the federal archives. This is an important and neglected story that stretches across decades as our nation moved from the Second World War through the Civil Rights movement and then its ending. It is also an extraordinary work of research, which invites us to see how administrative law functions and is central to our legal history.

Further information on this and other awards and fellowships in legal history is available at the American Society for Legal History's webpage.

Antebellum Courthouse Trivia

Very soon I'm going to have some trivia related to the Nat Turner rebellion (broadly construed).  But I thought that I'd start the summer off with a trivia question about an antebellum courthouse.

Good luck, this isn't the easiest in the world -- but it's a heck of lot easier than the next one I have lined up.

Great Gatsby and the 1920s version of Product Placement?

I mentioned yesterday the inept reference that Tom Buchanan made in The Great Gatsby to Lothrop Stoddard's The Rising Tide of Color -- which is really a scary book.  

Right now I want to focus on something else -- the publisher of Stoddard's book.  I've been wondering why Charles Scribner's published eugenics literature (in addition to Stoddard, they published Madison Grant's The Passing of the Great Race).  Perhaps they were publishing whatever they thought would sell?  Maybe there's something deeper here.  

But then I realized that Gatsby was also published by Scribner's!  So now I'm wondering if the reference to Stoddard's book (which Tom incorrectly referred to as written by Goddard, who was another of the writers on eugenics -- though his work was published by MacMillan) was really a product placement in the novel?  That is, was Fitzgerald writing an advertisement for his press' book into the novel?  I was talking with one of my students, Thomas Thurman, about this -- and he said, quite astutely, if Fiztgerald was serious about a product placement he would have given the author's correct name and the full title of the book.  Thomas might have added that he wouldn't have made Tom look like such a fool, too.  Though maybe this was Fitzgerald's effort to subtly influence readers?

Update:  I see that the Financial Times has the rundown on how the movie's pushing clothes and jewelry.  No word yet on whether The Rising Tide of Color appears in the movie.

Update 2: Holy Cow!  Later on in the novel, it turns out that Gatsby has the Stoddard Lectures, a series of books on travel by Lothrop Stoddard's father, John Stoddard.  (Never read, of course, because the pages were never cut.)  And guess what?  John Stoddard taught at Boston Latin School and you know what Lothrop's profession was?  Legal historian.  This deserves some more commentary down the road.

Property Law and American Empire

Michael Burger and Paul Frymer have a new paper up on ssrn, "Property Law and American Empire," which is about to appear in the University of Hawaii Law Review.  Cribbing now from their abstract:

Current scholarship by legal commentators and political scientists recognizes that the weapons of American empire have involved non-militaristic activities as much as militaristic ones. Such non-militaristic activities include the hegemonic influence of trade agreements, the imposition of legal and procedural norms, and the dissemination of ideological and cultural predispositions through corporations and diverse medias. In this paper, we examine an under-explored area on the “soft” belly of the American leviathan, focusing specifically on how property and intellectual property law have operated on physical and ideological frontiers to comprehend, participate in, and legitimate the expansion of American empire. We offer new accounts of two historical instances of empire-building: the acquisition and seizure of property from Native Americans in the early- and mid-19th century, and the expropriation of intellectual property rights to plant genetic resources from indigenous communities in the global South in the late 20th century. These two stories, taken together, offer unique insights into both the process and the substance of law’s operation on the frontier of empire. They illuminate how the authority of law has fused with private power and legal legitimacy to enable the nation to expand swiftly, energetically, and powerfully. These insights, in turn, lead toward the more general conclusion that the rhetoric of property has functioned to subjugate peoples and places, cultures and natures, to an imperial regime.

This is an exciting and obviously wide-ranging article, which a lot of property professors will enjoy reading -- it fits well with Jed Purdy's article from a while back that focused on Johnson v. M'Intosh and the law of imperialism.  

And because it's going to be in the Hawaii Law Review, this reminds me that when missionaries went to Hawaii in the 1820s they brought with them the market and property rights.  The missionaries were bringing western property law to Hawaii in the era when the Supreme Court was issuing Johnson v. M'Intosh (and the parallel opinion in The Antelope). Property law served as a tool of empire in Hawaii, just as did law generally.  Law, like the transatlantic ship, the printing press, and the gun, worked as a technology to expand the power and reach of the empire.

The image is of a sugar factory in Hawaii in the pre-Civil War period, which I think relates well how western technology appeared on the land in Hawaii.  And of course I always love talk of the use of landscape art to understand property law.

The Great Gatsby and Anti-Feudalism in American Property Law

No sooner have I written about jurisprudence and Django than I see that everyone's talking about The Great Gatsby.  Perhaps it's time to revisit a property question from the book, which I posed in a short article on teaching servitudes in the St. Louis University Law Review back in 2002 :

The man who built Gatsby's house was rumored to have offered to pay the taxes of the surrounding houses for five years if they would thatch their roofs.  That would have made their property look like peasant cottages and his house, by comparison, like a manor house. The neighbors did not take him up on the offer, for “Americans, while willing, even eager, to be serfs, have always been obstinate about being peasantry.” And so, while we are deprived of an example of such a servitude, because of the independence of the neighbors, I wonder whether such a servitude would run with the land? There are affirmative promises going both ways: the neighbors agree to thatch their roofs and the owner of the “manor house” agrees to pay the taxes.

Now let's try a somewhat more outrageous example. Suppose Gatsby's predecessor did not want the continuing burden of paying taxes, so he offers to sell the property at a reduced rate up front and in return extracts a promise (an affirmative covenant) that whenever people appear on the property outside of the house they will wear peasant clothes. Does that affirmative covenant touch and concern the land? To make it look even more like a feudal incident, suppose they must appear on the first day of June and pay homage to the owner of the manor house? Such servitudes certainly affect people in their use of the property, but perhaps they provide an insufficient current benefit to landholders for us to say that the servitude touches and concerns the land.

Funny how references to servitudes keep coming up in motion pictures, isn't it?  The image is of Oheka Castle, which wikipedia informs me was a partial inspiration for Gatsby's house.  I can't quite make out any thatched roofs around the estate, so I'm not sure where that inspiration came from!  

Never can tell where you're going to hear talk about the anti-feudal impulse in American property law, can you?  And on that Stacey Gahagan and I hope to say something more soon.  And when I have some more time I want to talk about another feature of Gatsby -- Tom's inept reference to Lothrop Stoddard's The Rising Tide of Color, which is a book I've been reading of late for a paper that Elizabeth Troutman and I are writing on the eugenics movement in North Carolina.  Pretty scary stuff in that book.  

Meanwhile, I guess Gatsby is just further evidence that if you wait long enough scholarship will come into fashion.  I'm just waiting for a movie about the Tulsa race riot of 1921, which I'm sure is coming one of these years.  

Public Constitutionalism in the Antebellum Era and Gun Regulation

Robert Leider has a very exciting paper up on ssrn, "Our Non-Originalist Right to Bear Arms: How Public Opinion Has Shaped the Second Amendment."  Cribbing now from his abstract:

District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.

This paper challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions — an approach that sounds more in popular constitutionalism than originalism.

Debating the Second Amendment

Fordham University history professor Saul Cornell, George Mason University law professor Joyce Lee Malcom, and Craig Whitney, former foreign correspondent at the New York Times discuss the second amendment on the PBS show "Need to Know."

Slave Quarters and Student Tours

They're talking about adding the slave quarters to the tour at the University of Alabama again.  The physical surroundings at the campus -- like the slave quarters -- really convey well the connections of the University to slavery.

For those who can't make it to Tuscaloosa for the tour, here's an article that discusses the ideas of education, slavery, and politics in circulation on that campus before the war.  I focus on the addresses -- often given at the beginning of the school year, though also on July Fourth -- that distinguished visitors gave to the students and faculty.  Women and enslaved people were sometimes in the audience at those addresses as well.  Those addresses illustrate the intellectual connections between the University and the defense of slavery.

If you're interested in the ideas in circulation at southern universities before the war, here's an article on addresses at UNC and another one on the ideas of William and Mary history professor Thomas Dew, who wrote a proslavery pamphlet in the wake of Nat Turner's rebellion.

The illustration is from the Library of Congress' fabulous Historic Buildings Survey.  It's one of the slave quarters behind the President's Mansion.

Companion to American Legal History: Subjects and Methods

Now that the Companion to American Legal History that Sally Hadden and I co-edited is available, I want to talk a little more about what it says about the field of legal history.  By way of background, the Blackwell-Wiley companion volumes are designed to survey the field and give review essays that talk about what historians have written about; and sometimes at the end they point towards new directions in the field, as well.

I think the volume comes at precisely the right moment for American legal history, because the field is going in so many different directions at once.  A while back -- like when I was in graduate school -- the field was still dominated by studies of appellate opinions and jurisprudence.  So judges, treatise writers, and high brow legal thinkers predominated in the field.  There has been an extraordinary expansion in subjects over the past several decades.  Legal historians are looking closely at enslaved people, women, gay people, immigrants, workers, welfare recipients, as well as lawyers in big firms and small.  And they're looking at the procedures of justice of the peace and police courts, local trial courts, as well as state supreme courts and the United States Supreme Court.  The methods have broadened dramatically, too: we're interested in how fictional literature critiqued law (and in some cases supported it); how the technology of law brought down irrational authority and (more commonly) supported it.  As Sally and I say in the introduction -- and as I've observed elsewhere -- legal history is expanding so much in subjects and methods that it is beginning to look like almost all of history fits somewhere in its boundaries.

There's just a lot of literature to deal with and a great many moving parts.  Most of this is positive -- it's great to be in such a broad field.  One thing, however, is negative here.  And that is that the field is going in search of unifying principles.  Where once we knew how to talk about the pre-Civil War period, now there are so many different themes that it's sometimes hard to see how one important and deep book relates to another, even though they may be on what look like a similar topic.  One of my hopes is that in bringing a lot of the recent literature of legal history together in one place we'll see how people working in different periods are asking similar questions and how people working in the same period but from different vantages (either of sources or subjects) may have something to say to one another.  One of the topics that I'm increasingly interested in, for instance, is how the technology of law is used throughout our history to bring order to the community.

I'm hoping that the volume will spark some serious discussion of unifying questions.

Empirical Studies of Law and Social Change

Scott Cummings of UCLA Law School has an important and very useful field review essay on "Empirical Studies of Law and Social Change" in the Wisconsin Law Review.  One footnote here -- I don't mean to sound like one obsessed with slavery and Jim Crow (which of course I am).  But I think the law and social change literture is about (or should be about) how law stands in the way of social change as well as how law can impel it (or be used by those who seek it).  And related in some ways to Cummings -- and as long as I'm talking about recent work in law reviews -- let me call your attention to Emily Prifogle's Law and Local Activism Uncovering the Civil Rights History of Chambers v. Mississippi, which appeared in the California Law Review.  I hope to say more about Prifogle's piece shortly, because I'm deeply interested in her method -- what one might think of as the social history of constitutional law.  This is an important work in framing how "great cases" affect the local community and draw out reactions from that community.

Legal Theory and Legal History: To Think What We Are Doing

 

 

“What I propose, therefore, is very simple: it is nothing more than to think what we are doing.”

 

- Hannah Arendt, The Human Condition (Chicago, 1958)

 

I want to start off my time here at the lounge by sharing some thoughts on the relationship between theoretical reflection, jurisprudence, and legal history. I want to do that because I just got back from a conference where this relationship was the topic of much discussion(Legal Theory and Legal History: A Neglected Dialogue? Queen Mary, University of London, April 12-13, 2013), and one particular entry into these discussions and others like them struck me as warranting further exploration.

 

And that is the work of Christopher Tomlins, with whom I had the pleasure of an all too brief (at least for me) conversation about his reading of Walter Benjamin, and in particular, his effort to imagine and practice a materialist (and because materialist a post-critical) study of the law. Tomlins, Chancellor’s Professor of Law at UC Irvine, has for some time been urging scholars across a variety of related fields to move beyond the model of scholarly practice associated with Critical Legal Studies, its equivalent in what Tomlins calls Critical Legal History, and the broader, basic idea that the job of the historian is to historicize- to situate chosen objects of study within an ever-multiplying series of contexts that are declared by the historian or other self-proclaimed critical scholar to be specific, plural, and complex, and only responsibly understood as such. The effect of this kind of practice is to neutralize the political potentiality of the material at hand, and it has been part of Tomlins’ project to suggest that this has to do with the ideological situation of the historical profession- it is in the interest of a historian to show up and say “no, no, its more complicated than that,” to display their specialized erudition, and to pave the way for a practice explicitly limited to the further extension of the complicating, contextualizing work that only we critical historicists are equipped to carry out. For Tomlins, I take it, this enlists the historian in the perpetuation of Benjamin’s “empty and homogenous time,” the result of which is a historical profession that constructs a celebratory, progressive, and ironically uncritical narrative of itself as doing the necessary work of recovering other contexts, other voices, other agencies, and other identities, and we can be assured, so the thinking goes, that this is self-evidently politically efficacious in and of itself.

 

Against critique and contextualization, Tomlins presents Benjamin’s concept of constellation: “There could be no apter evocation of the disquiet that marks the beginning of any critique of history worthy to be called dialectical, which must renounce a calm, contemplative attitude towards its subject to become aware of the critical constellation in which precisely this fragment of the past is found with precisely this present.”(1) The goal here is to build a relationship to the past that is aware of just why this particular thing is before us to consider at this particular moment- in short, what its doing here, and how should we understand the fact that it is here- as Benjamin elsewhere writes, of how this fragment of the past flashes up in the moment of danger in which we find ourselves. Cultural history, Benjamin writes, “may increase the burden of the treasures that are piled up on humanity’s back. But it does not give mankind the strength to shake them off, so as to get its hands on them.” (2) The historical practice of actualizing constellations is explosive- it remembers and recovers something, a fragment of the past that punches through the bounded character of the present. Tomlins is currently moving beyond the expansiveness of his incredible recent book, Freedom Bound, and focusing on Nat Turner and the 1831 slave revolt that he led in Virginia. In our own moment of the confrontation of liberalism’s self-understanding with theological and political violence, Turner explodes the image of the American past as the perpetually expanding demand for and use of the language of liberty, even as that image includes the history of active resistance to slavery. Like John Brown, there is something unclassifiable about Turner- you cannot understand him simply by describing the context or contexts in which he acted, social, linguistic, or otherwise, if you can hope to understand him at all, and in this age of creating and recovering multiplying alternative agencies and identities there is something profoundly discomforting about that. To speak of redemption in this case is to blow open what we would mean by redemptive constitutionalism.

 

I hope I have done justice to the arguments Chris Tomlins has been making. Where he and I touched bases was on the mutually felt need for historians in particular to attend to the conditions of their own intellectual practice, and to do so, in part, by attending to the history of intellectual practice. Quite simply, we need to “think what we are doing,” to use the words of another reader of Benjamin’s (I don’t know how much use Tomlins would have for Arendt, but the fragment I’ve provided here seems apt).

 

Tomlins’ both historical and more explicitly methodological work has been provocative for me, and I want to just note some of my reactions to it as a way of opening up space for future thinking. I cut my teeth, or am still cutting my teeth I suppose on a civically and historically conscious approach to legal and political thinking in time that we can see mot significantly (for me) in the work of J.G.A. Pocock. For Tomlins, I take it, “Cambridge” historiography has become conventional and is reaching a point of diminishing returns- a kind of conservative philosophical version of the critical historicism practiced by CLS and CLH. There is a minor point to be made that I don’t think there is a unitary school beyond what we generally call Cambridge school history of political thought, but the larger point I want to make is that it is difficult to actually rethink one’s practice without confronting conditions of historicity and plurality, although that does not stop us from trying. I take Pocock’s Gibbon project, soon to be consummated in a sixth volume of Barbarism and Religion, to be evidence enough that there is quite a bit to be done with the history of thinking and writing in contexts. An even more important point is this- a study of the past that is aware of the conditions of its practice will be one drawn into confronting histories of thinking and acting differently as a crucial part of any effort to do the same in the present. Benjamin’s constellations are still critical, and it might be said that this time of multiplying and reverberating fundamentalisms can ill afford to an age after critique, howsoever we might reimagine the method and locations of critical activity.

 

What I take to be at issue here is the contested nature of the common Nietzschean inheritance to the metatheoretical and metahistorical project of Tomlins and the genealogical, historical, and sometimes archaeological project (think of Foucault) that Tomlins is trying to get out of or away from. But that is a discussion for another time. Chris Tomlins’ evocation of Benjamin’s unique materialism is the place from which thinking about law and legal history has to begin today- and that is because by materialism Benjamin meant not just Historical Materialism but the actual stuff we use to make a world. Benjamin’s writings invite a history of thought, and in particular, a history of legal thought that is attentive to the material and revolutionary dimension of practice. This would be a history of fragments, of texts and their readings and rewritings, of materials and their collection and recollection. It would be a history of law, but it would also be a history of the uses to which the material of that history is put. When everyone is an originalist of one kind or another, perhaps it is this emphasis on materiality itself, the idea of getting one’s hands on the law, that flashes up as a memory fragment for our own moment of danger.

 

In a few future posts, I’ll be discussing my own work on Jefferson and the history legal and political thought, and how that fits into this, among other things that pop up.

 

 

 

 

1. Benjamin, “Edward Fuchs: Collector and Historian,” One-Way Street and Other Writings, Jephcott and Shorter, trans. (Verso, 1979), p. 351.

 

2. Ibid, p. 361. 

Matthew Crow Stepping into the Faculty Lounge

It's my pleasure to announce that Matthew Crow is stepping into the Faculty Lounge to sit with us for a spell.  Matthew is an assistant professor of history at Hobart and William Smith Colleges.  He teaches about the colonial and revolutionary history of the United States, as well as on the intellectual history of the United States and the legal and constitutional history of the United States from its European antecedents to the present.  His publications include "History, Politics, and the Self: Jefferson's 'Anas' and Autobiography," in the Blackwell Companion to Thomas Jefferson (Wiley-Blackwell, 2011).   Matthew was educated at the University of California -- San Diego and took his Ph.D. at UCLA.  Cribbing now a little from Matthew's webpage:

I see my research and teaching interests as intertwined- in both I focus on the history of legal and political thought and constitutionalism in the early modern Atlantic world, including the colonial, revolutionary, and early national history of the United States. My current research looks at the history of thought from the standpoint of the history of intellectual practice, with particular (although not exclusive) attention to the figure of Thomas Jefferson. Other interests include the history of empire, the history of historiography, American intellectual history, the history of thought more broadly, and in that vein the writings of Wittgenstein, Arendt and Foucault, and their British and American readers. 

I'm delighed to welcome Matthew to the lounge and am very much looking forward to his posts on legal and constitutional history and political theory.

Signposts: The Chapters

Last week I talked some about Signposts: New Directions in Southern Legal History, which Sally Hadden and Patti Minter co-edited.  It has  just appeared from the University of Georgia Press (and is available at a nice discount at amazon and Barnes and Noble).  The book is designed to highlight the extraordinary breadth of work going on in southern legal history -- which spans a huge amount of time (from the seventeenth through the late twentieth century), as well as subjects of study (from local courts through appellate courts, to legislatures, treatise-writers, and humble litigants), and methods (often social history these days, but also intellectual and cultural history).  At some point I hope to talk a lot more about just how expansive legal history is these days -- and the challenges that poses for those of us looking for unifying themes.  I want to talk about the problems legal historians face; I've been thinking about this in particular as I've been reading the Companion to American Legal History.  I think the Companion really helps pull together those themes, but that's a story for another time.

Right now I want to mention each of the individual chapters, because I think this gives a sense of the scope of the work in this volume.  The chapters are "In my mother's house: Dowry Property and Female Inheritance Patterns in Spanish Florida" by Susan Richbourg Parker; " The Law and Order campaign in New Orleans, 1763-1765 : A Comparative View" by Thomas N. Ingersoll;  "'Using the faculties conceded to her by law': Slavery, Law, and Agency in Spanish New Orleans, 1763-1803" by Jennifer M. Spear; "South Carolina's Grand Jury Presentments: The Eighteenth-Century Experience" by Sally E. Hadden; "Guarding Republican Liberty : St. George Tucker and Judging in Federal Virginia" by Jessica K. Lowe; "The Shades of Loyalty: Elisha W. Chester and the Cherokee Removal" by Tim Alan Garrison; " The Material Conditions of Dependency: The Hidden History of Free Women's Control of Property in the Early Nineteenth-Century South" by Laura F. Edwards; "Democracy, and Lynching, in America," by Christopher R. Waldrep; "The World Made by Laws and the Laws Made by the World of the Old South," by me; "Peaceful Revolution and Popular Sovereignty: Reassessing the Constitutionality of Southern Secession," by Roman J. Hoyos; "Strategic Litigation and the Death of reconstruction," by Cynthia Nicoletti; "The Homestead Exemption and Southern Legal Culture," by James W. Ely, Jr; "A Place for Themselves in the Modern World: Southern Women and Alcohol in the Age of Prohibition, 1912-1933" by Lisa Lindquist Dorr; "Race, Property, and Negotiated Space in the American South: A Reconsideration of Buchanan v. Warley," by Patricia Hagler Minter; "Race, Law, and Southern Public Higher Education, 1860s-1960s," by Peter Wallenstein; "The Southern Roots of the Reapportionment Revolution," by Charles L. Zelden; and "Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement," by Christopher W. Schmidt.

When I have a little more time I want to compare the subject matter of these essays to the subjects in the 1989 volume edited by Kermit Hall and James Ely, An Uncertain Tradition: Constitutionalism and the History of the South.  One obvious difference is that Hadden and Minter deal with legal (as opposed to constitutional) history.  I think that's a good gauge of how interests have broadened over the past twenty-five years. 

books.google has a preview of the book here.

A Companion to American Legal History

I'm delighted to announce that the Companion to American Legal History that Sally Hadden and I have been co-editing for the last few years is now available in ebook format and will be appearing shortly in hardcopy from Blackwell-Wiley.  In the tradition of the other Blackwell Companions to American History, this book surveys recent writing on American history.  It's about the historiography of legal history and the idea is that readers can turn to it for a good introduction to the field and also for pointers from experts about directions for future research.

The Companion is broken down into time period essays, from the seventeenth century through the late twentieth century (by Elizabeth Dale, Sally Hadden, Ellen Pearson, Roman Hoyos, Chris Schmidt, and me); they are followed by essays on groups of people: Native Americans (Christian McMillen), African Americans in the eras of slavery and freedom (by T.J. Davis and James Campbell respectively), Women (Felice Batlan),  Families (David Tanenhaus), Immigrants (Allison Brownell Tirres), and Lawyers (Mark Steiner).  The next and largest section has essays on subject areas, with chapters on the economy in early America (Christine Desan) and in the late nineteenth and twentieth century (Harwell Wells), labor (Deborah Dinner), poverty (Felicia Kornbluh and Karen Tani), taxes (Robin Einhorn), administrative state (Joanna Grisinger), law and religion (Steven Green), military (Elizabeth Hillman), criminal law (Elizabeth Dale), and intellectual property (Steven Wilf).  The final section is on legal thought, with chapters on law and literature (Jeannine DeLombard), early American legal thought (Steven Macias), nineteenth and early twentieth century jurisprudence (James Schmidt), critical legal studies (John Schlegel), and an imperial perspective on American legal thought (Clara Altman).

Even with something this broad there's the question of what more could have been added; I think the next edition should have separate chapters on sexuality, economics, critical race studies, and I'd like to see something on the history of the book, even.  It is testimony to how far leagl history has migrated from where it was a generation ago that we don't have separate chapters on common law doctrine.  I think in a new edition I'd like to have chapters on contracts, property, and torts.  Or at least to think about those.  

Over at legal history blog, Chris Schmidt has some fabulously generous words about the book; he also talks some about his terrific synthesis of American legal history in the twentieth century.  

The publication date for the hard copy is April 15, though my hope is that it'll be rolling out of the warehouse a bit sooner than that.  And, as I noted above, it's available now on kindle and in Wiley's ebook format as well.  The book is priced for library sales -- it lists for around $200 (or $155 for the electronic edition); but if you order it from Wiley directly, use the code ALH13 for a 20% discount.   My hope is that if this interests you you'll pass word along to your favorite librarian.  In the meantime, the table of contents and the first chapter are on Wiley's website.

Baker on Slavery, Law and Incoherence in Antebellum Culture in State v. Hoover

Anthony Baker's article "'For the Murder of His Own Female Slave, a Woman Named Mira…': Slavery, Law and Incoherence in Antebellum Culture" is now up on ssrn.  The abstract is as follows:

On March 28, 1839, a coroner’s inquest presented at the rural Iredell County, North Carolina farm of Mr. John Hoover, to investigate the alleged death of “one Mira a female slave the property of… the said John Hoover…”. An examination of the freshly exhumed body of Mira, then but one short day dead, led to only one conclusion: Mr. Hoover was “taken into penal custody on the spot, under the capital charge of murder.” In trial before the North Carolina Superior Court, Iredell County, Hoover was convicted of the charge and sentenced to hang. This stark verdict was affirmed summarily by the North Carolina Supreme Court in early 1840, Mr. Hoover being publicly executed in May of that year, for “the murder of his own female slave…”. The scant, 3-page 5-paragraph opinion of Mr. Chief Justice Thomas Ruffin for the Court has garnered little academic attention over the years, the few scholars addressing it generally hailing its “progressive stance” in favor of slaves facing institutional mistreatment, reflecting the court’s consistent “liberality toward slaves in all cases involving their personal security as human beings…”. 

Not so fast. For if law was rightly used to hurry Mr. Hoover off into eternity for the taking of a human life, it must not be missed that it was law – the common law of human slavery – that uniquely devalued that life in such a way as to deliver it to that man for the easy taking. In exempting the ‘slave’ victim from the protection of the common law of battery as the state Supreme Court had done in State v. Mann 10 years prior, could it not have imagined the inevitable results where such physical ‘correction’ was wholly undergirded by law? If the law turned a blind eye to every fierce stroke against the flesh of a human being within the legally created and garrisoned institution of ‘slavery’ in the midst of a republican democracy, how could it legitimately be concerned with the one stroke that extinguished that legally diminished life? With regard to the broader matter of justice at the heart of this singular event, what is really going on here? 

This paper seeks to look carefully at this unique opinion in the context of the developed and developing common law of slavery of that day, recovering a very different view of its ultimate place in the edifice of the relevant legal culture constraining and animating the society in question. Turning from the case’s factual importance to its artifactual significance and value, the paper seeks to consider the place of law in both refining and defining culture, to its benefit or, here, to its ultimate confusion and distress, it is suggested. Though the case at its heart is small in scope and regional in focus, this study suggests that it in fact implicates a much larger and more visceral story, one of intellectual significance and of contemporary importance and application. Sampling from a broad area of intellectual inquiry – legal history, law and society, jurisprudence, justice and the like – the study attempts to place the case at the significant crossroads of law and culture, asking questions of it that are both far-reaching and contemporarily significant. In this way, in sampling broadly from a host of relevant social interests, it should appeal to a broad reading audience.

This is going to get a lot of attention.  I've thought for a long time that given all the attention-- deservedly -- to State v. Mann there should be more attention to State v. Will and to State v. Hoover.  The illustration is of Ruffin Hall on the UNC campus, named in part after Chief Justice Thomas Ruffin.

Signposts: New Directions in Southern Legal History

It's my great pleasure to announce that Signposts: New Directions in Southern Legal History is now available at Barnes and Noble, a few days ahead of the publication date of April 1 and at a very nice price (less than $17).  This volume was co-edited by two of my friends, Sally Hadden (who's also a co-editor with me of A Companion to American Legal History) and Patti Minter.  Cribbing now from the University of Georgia Press website for the book and from a post I put up on this last December:

In Signposts, Sally E. Hadden and Patricia Hagler Minter have assembled seventeen essays, by both established and rising scholars, that showcase new directions in southern legal history across a wide range of topics, time periods, and locales. The essays will inspire today's scholars to dig even more deeply into the southern legal heritage, in much the same way that David Bodenhamer and James Ely's pathbreaking 1984 work, Ambivalent Legacy, inspired an earlier generation to take up the study of southern legal history.

Contributors to Signposts explore a wide range of subjects related to southern constitutional and legal thought, including real and personal property, civil rights, higher education, gender, secession, reapportionment, prohibition, lynching, legal institutions such as the grand jury, and conflicts between bench and bar. A number of the essayists are concerned with transatlantic connections to southern law and with marginalized groups such as women and native peoples. Taken together, the essays in Signposts show us that understanding how law changes over time is essential to understanding the history of the South.

The contributors are Lisa Lindquist Dorr, Laura F. Edwards, James W. Ely, Tim Alan Garrison, Sally E. Hadden, Roman J. Hoyos, Thomas N. Ingersoll, Jessica K. Lowe, Patricia Hagler Minter, Cynthia Nicoletti, Susan Richbourg Parker, Christopher W. Schmidt, Jennifer M. Spear, Christopher R. Waldrep, Peter Wallenstein, Charles L. Zelden, and me.  Here is a flier with more details on Signposts.

Blogging, Writing, and Teaching About Federal Indian Law

Thank you, Al, for inviting and introducing me. I've been reading The Faculty Lounge since you all started it. We started our blog, Turtle Talk in 2007, just before The Faculty Lounge. Though I don't post nearly as much as my colleague, Matthew Fletcher, it's taken some time to be able to tear myself away and write over here. Turtle Talk is comprised mostly of primary source material surrounding cases in federal Indian law (briefs, decisions, news articles, law review articles), though we periodically post commentary. This has the added benefit of keeping us fully engaged in developments in our field, which can at times feel overwhelming.

Al said he wanted to hear a bit about history in federal Indian law, but as a non-Ph.D holding person, this always makes me nervous! I majored in history in undergrad, but did not complete (nor attempt) any graduate work in the field. However, in law school I wrote a small history paper on the Cherokee Freedmen and treaty concerns, and then found myself digging into the issue of laches and Haudenosaunee land claims once I was employed by Michigan State. Tracing the dramatic shift in the equitable defense of laches from its development in England to a series of cases in the Second Circuit, starting with Cayuga Indian Nation v. Pataki, made me antsy to write about legal history and the Supreme Court, at least as it affected American Indian tribes.

My most recent article identifies fundamental problems with originalism interpretation and how the assumptions underlying that interpretation harm tribal interests today. I've had a mixed response, including the argument that the Constitution provides strong language for tribes under an originalist interpretation. I'm not sure that's entirely true, regardless, given the dismal results for tribal interests at the Supreme Court, the argument certainly isn't working, which is what I was (and am) interested in.

To begin my time here, however, I think I'll start with the other area of my focus, the Indian Child Welfare Act (ICWA). The Act, passed by Congress in 1978 and interpreted by the Supreme Court once in Mississippi Band of Choctaw Indians v. Holyfield, is in front of the Supreme Court again this term. This semester I'm also teaching a class on ICWA. I hope to write here about ICWA, how I changed my ICWA class at the last minute to incorporate the case (and what I'd change in the future), how amicus briefs inform my writing and teaching, how my service on the Court Improvement Program in my state provides me with ideas for teaching, and back to how my role at the law school often leads me to base my writing projects on external needs or requests for our Center. I still have writing projects in mind surrounding equity and tribes, the public interest doctrine and tribes, and one with a friend tracing the history of the modern Haudenosaunee land claims cases, which I hope to get back to as our semester winds up.

Till then, thank you again for having me.