The Faculty Lounge

Towards a Bibliography of Applied Legal History

Continuing on the talk of "applied legal history" here, over at the legal history blog by Karen Tani (and here), and in the Law and History Review, (download it now if you're interested in this -- a subscription wall goes up at the end of February!) I want to talk about the varieties of applied legal history.  I'm now thinking that I like the following categories, though obviously there's a lot of refining that one could do.  And I'm also going to try to start listing work that fits into each one.  One of the things that I'm realizing is that a lot -- perhaps the majority -- of recent legal history fits into one of these categories.  So this list is going to be suggestive of the kinds of work I'm thinking about and I'm also recycling parts of posts from last summer on applied legal history (and here).

(1) Work that uses legal history for constitutional or statutory interpretation.  A lot of this will include work that's aimed at original intent.  But I don't want to include every work of "originalism" here, because one of my points is that "applied legal history" maintains the standards of the history profession in gauging the context, rather than selectively pulls out data to serve its purposes.

Some examples that come immediately to mind are Paul Halliday and G. Edward White, "The Suspension Clause: English Text, Imperial Contexts, American Implications," 94 Va. L. Rev. 575 (2008); David Konig, "Arms and the Man: What Did the Right to "Keep" Arms Mean in the Early Republic?,"25 L & Hist. Rev. 177 (2007); Saul Cornell, "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate Over Originalism" 23 Yale Journal of Law and Humanities 295 (2011); Robert J.Kaczorowski, "The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary" 98 Yale Law Journal 565 (1989).

(2) work that normalizes (or in some cases destabilizes) some contemporary practice by showing that it has antecedents (or lacks antecedents).  I think of Larry Kramer's The People Themselves; Richard Posner's very early work on the economics implicit in nineteenth century tort law.

(3) work on historical practices that is inspired by a contemporary issue and seeks to understand or critique those practices.  This is closely related to 2, but perhaps deserves separate treatment.  Because I think there's important work that isn't so much about showing that past history is consistent (or inconsistent) with current practices, but that legal history can tell us something about present legal practices or the morality and wisdom of them.  Robert Cover's Justice Accused: Anti-Slavery and the Judicial Process (1975).  And maybe I'd put Michael Klarman's From Jim Crow to Civil Rights here, because of its caution about the problems with backlash (he also appears in the fifth category below).

(4) work that asks "how we got where we are now."  I'm thinking particularly of Felicia Kornbluh's work on poverty and welfare rights in the 1960s, The Battle for Welfare Rights.  (And I think Karen Tani's work on Flemming v. Nestor fits here, too.)  David Tanenhaus' The Constitutional Rights of Children recovers the context of In re Gault and teaches us, in that way, about the state of juvenile justice now.

(5) "useable legal history," a sort of catch-all category, which teaches us something about contemporary law reform.  What really interests me here are studies of how people have remade the law.  Again, Felicia Kornbluh's work comes to mind, as well as that of Ken Mack and Tomiko Brown-Nagin.   But I suppose that Michael Klarman's From Jim Crow to Civil Rights fits here, too.  A lot of this literature is far from the core of applied legal history, but I think what often motivates that kind of scholarship is at least some desire to show how people outside of the traditional seats of power have thought about law and used it, and remade it.  And maybe therein lie possibilities for inspiring more activism -- but even if not that, in letting us know that positive legal change happens in many ways.

There are a lot more examples one could add here -- and I'd be most interested in hearing in the comments about readers' favorite work that should be added here.

Applied Legal History

Last summer Karen Tani over at legal history blog (and here) and I had a couple of posts (and here) about the idea of "applied legal history" -- that is, legal history scholarship that speaks to contemporary issues.  Now I have a brief essay on applied legal history in the current issue of Law and History Review.  It introduces an article by James Oldham and Su Jin Kim on arbitration in the late eighteenth century.  Oldham and Kim recover a robust arbitration culture, which may have some implications for how courts think about the historical roots of this increasingly controversial practice.  Elizabeth Dale, the editor-in-chief of LHR, is planning on other occasional pieces in this series.

My essay aims to label the varieties of applied legal history -- some are quite direct in their application (like the work that suggests how to think about a constitutional amendment or presidential power) and others are more remotely connected to the present -- such as work that normalizes (or in other cases destabilizes) a contemporary practice by showing that it has (or perhaps lacked) antecedents. One classic work of this genre is C. Vann Woodward's Strange Career of Jim Crow. Woodward recognized that the “twilight zone that lies between living memory and written history is one of the favorite breeding grounds of mythology.”  I suggest a few other categories as well -- that which seeks to tell us how we got where we are (and either a subcategory or closely related other category that is inspired by concern over contemporary issues and looks back at their antecedents), and one that seeks a “useable legal history,” which teaches us something about contemporary law reform.  Cribbing now from the essay:

Sometimes there is a direct lesson, such as in Michael Klarman's From Jim Crow to Civil Rights, which has a fairly stark message about the dangers of looking to the courts for social reform.  Often the lesson is more indirect, such as how people have remade the law. Felicia Kornbluh's work on welfare comes to mind, because that shows us something about how reform takes place. Kenneth Mack's Representing the Race and Tomiko Brown-Nagin's Courage to Dissent both teach us lessons about how reform happened, from lawyers' offices to civil rights protesters who took to the streets to remake their world. Mack's and Brown-Nagin's work is far from the core of applied legal history, but what often motivates that kind of “useable past” is some desire to show how people outside of the traditional seats of power have thought about law and used it, and remade it. Perhaps therein lie possibilities for inspiring more activism. But even if inspiring activism is not the goal, it lets us know that positive legal change happens in many ways; that literature legitimizes activism and, perhaps, change.

Until the end of February "Introducing Applied Legal History" is available without a subscription on the Law and History Review website, along with a couple of other articles from the current issue, Kristin Collins' "'Petitions Without Number': Widows' Petitions and the Early Nineteenth-Century Origins of Public Marriage-Based Entitlements" and Kimberley Reilly's "Wronged in Her Dearest Rights: Plaintiff Wives and the Transformation of Marital Consortium, 1870–1920".  After that you'll need a subscription (which is included as part of the annual dues for the American Society for Legal History).  If you already have a subscription I'd urge you to check out the entire content of this month's LHR, which includes Roman Hoyos' very good article "The People's Privilege: The Franking Privilege, Constituent Correspondence, and Political Representation in Mid-Nineteenth Century America."

St. Louis Circuit Court Historical Records Project

Here's the latest on the St. Louis Circuit Court Historical Records Project, which contains a lot of freedom suits, that are now available on-line at Washington University's library.  The video features David Konig talking about the project and its significance.

I'm deeply interested in ways that enslaved people brought their owners to account, even if they're free and far between.  And also important is making original sources available to researchers everywhere -- I've written some about this in the context of the Library of Virginia, which has a fabulous website with chancery cases and also has microfilm of lots more court records.  They are real treasures.

Thanks to Liz Sepper for the pointer to this.

Tera Hunter on African American Marriage in Slavery and Freedom

I'm delighted to announce that Tera Hunter, Professor of History and African American Studies at Princeton University, will be delivering the 9th annual African American history month lecture here at UNC on February 21.  Her talk is entitled "“‘Bound As Fast In Wedlock As A Slave Can Be’: African-American Marriage, Slavery, and Freedom."  And she will be speaking in Wilson Library's Pleasants Family Room at 7 pm.  Here is a poster annoucing the lecture.

Some Keys to Django?

I think people are over-doing it with the comparisons of Samuel L. Jackson's character (Stephen) in Django Unchained to Uncle Tom.  I mean, have the people drawing these parallels ever read Uncle Tom's Cabin?  I'm guessing no.  If they had, they'd know that Uncle Tom was tortured to death because he refused to tell Simon Legree where two of Legree's runaway slaves, Cassy and Emmeline, were.  That is, the Uncle Tom of Stowe's novel has more in common with Django Freeman than with Stephen.  There were a few slaves in Stowe's novel who were complicit with Legree -- Sambo and Quimbo -- though they later repented their role in torturing Uncle Tom.  And therein makes me wonder about Stephen planting the idea in the mind of the white people at Candyland about what to do with Django.  I wonder if Stephen's suggestion that Django be sold to the LeQuint Dickey Mining Company might have been a way of saving Django in some way?  It certainly spared him from immediate mutiliation and death shortly afterwards and ended up being the means for his escape.  I'm just wondering if there is something buried deep in Stephen that was trying to help out Django in some way.  Maybe not -- I confess that I could too optimistic in my interpreation here.

All of this leads me to wonder, though, which sources did Tarantino read when he was writing Django? (The title of this post leans on Stowe's A Key to Uncle Tom's Cabin, which she published to discuss the sources she drew upon for the novel.) I'm guessing Uncle Tom's Cabin, because Calvin Candie's statement that "Under the laws of Chicakasaw County, Broomhilda is my property.  And I can do anything with my property I so desire" he's paralleling Legree's statement that "isn't he MINE?  Can't I do what I like with him?  Who's to hinder, I wonder?"  (More on Uncle Tom's Cabin here.)  And maybe some of the other antebellum literature, like William Goodell's non-fiction American Slave Code in Theory and Practice.  If you're looking for evidence of the brutality of slavery and the legal system, that's one place to start.

What about secondary sources?  I'm guessing a big no to U.B. Phillips' American Negro Slavery.  And I'm going to have to say no to the portrayal of slavery from Robert Fogel and Stanley Engerman's Time on the Cross.  I think Tarantino drew a bunch on works about slave life that emphasize brutality but also the strength of enslaved people.  What about Eugene Genovese's Roll, Jordan, Roll?  And though it's been largely rejected by literature written in the wake of the Civil Rights movement, I'm wondering if Stanley Elkins'  Slavery: A Problem in American Institutional and Intellectual Life might have been the basis for some of Stephen's character?  That's been a classic for generations.  Walter Johnson's Soul by Soul: Life Inside the Antebellum Slave Market's a distinct possibility.  Maybe Ariela Gross's Double Character because there's all that talk about warranties and contracts for sale of slaves.  Someone who know a fair amount about law obviously consulted on this.  I continue to be deeply interested in Schutlz' adherence to law -- in part that's obviously self-interest -- and his final act in violation of the law.  This part of the movie correlates with themes in Melville's Billy Budd and Stowe's Dred: A Tale of the Great Dismal Swamp (and debates over the Fugitive Slave Act of 1850).

And what about slaves and mining?  I'm wondering if Taratino drew upon the evidence of the California Slavery-Era Insurance Registry, which reveals that mine owners were frequent customrs of life insurance companies for their slaves.

All of this reminds me, though, of a suggestion of a friend of mine who's a fabulous historian of slavery that there's some excellent work to be done on "loyal slaves."  Perhaps the character of Stephen will provide an impetus to work on that important and strangely neglected topic.

The illustration of this post is the cover of Maurie McInnis' fabulous book, Slaves Waiting for Sale.

The Resurrection of Nat Turner

I'm preparing for a CLE lecture I'm giving tomorrow afternoon on the trials in the wake of the Nat Turner rebellion.  Because I frame the lectures between two North Carolina cases -- State v. Mann in 1830 and State v. Will in 1834, I'm calling the lecture "Slave Trials in Virginia and North Carolina, 1830-1834."  But this is mostly about the trials in Southampton County in the wake of the rebellion.  There's some surprising stuff in those trials.  For instance, some people were actually acquitted.  But that's a story for later.  

Right now I want to talk about a two volume novel by my Durham neighbor Sharon Ewell Foster: The Resurrection of Nat Turner.  Foster's books are really interesting to me because she is grounded in many ways in the history of the rebellion and antebellum America.  The novel is framed by the efforts of Harriet Beecher Stowe to write about the rebellion in her novel Dred: A Tale of the Great Dismal Swamp.  And so Stowe and some other abolitionists -- including Fredrick Douglass -- are in the book.  Thus, Foster populates her book with actual historical actors -- and very exciting for me -- she bases a lot of this on data of how those people actually behaved.  Thus, a lot of the characters from the Turner rebellion are in the novel -- from the rebels to the white people of Southampton.  There are some of the key witnesses to the rebellion, who testified at the trials, and even some of the lawyers and judges.  As I historian I'm excited that the people I've come to know through the trial records are also people that Foster has come to know.  Of course as a novelist she has license to move well beyond what the historical record shows and to fill in gaps.  Even to extend into the world of what might have happened -- or how she thinks things should have happened.

Foster portrays Nat Turner as the son of a slaveowner who had promised Nat his freedom.  Nat's father even -- Foster supposes -- made him a trustee of the Turner Baptist Church.  But Nat's family members refused to honor his father's wishes and kept him in slavery.  Nat, though, who has heard about the cities of Ethiopia where his mother came from, plans to lead slaves out of Southampton County, to freedom.  Foster then turns to the trials afterwards and portrays the white slaveowners as claiming that more slaves were involved in the rebellion than actually were -- and they did this so that they would receive compensation from the state when their slaves were executed.   Thus, one of the key witnesses -- Levi Waller -- whose family suffered the worst losses of anyone in the rebellion, appears in Foster's novel as a person who lied on the witness stand in order to convict slaves, so that he could receive money for them.  Turner's lawyer, William Parker, as well as the lawyer Thomas Gray (who published the Confessions of Nat Turner) appear in the novel, as does the prosecutor William Brodnax and defense attorney William French.

As I say, Foster bases her characters on historical figures, but she also departs from the historical record -- some of this I've already discussed, as in Turner was promised his freedom by his father.  That may have happened, but there's not evidence of this.  Another example of this is Foster's treatment of Will ("the executioner"), one of the rebels who Foster supposes survived the rebellion and fled north.  As part of the process of investigating the rebellion, Stowe meets with Will.  I'm thinking that Will died during the rebellion, probably at the first clash with the local militia at Parker's field.  And Foster turns Thomas Gray, who published the "Confessions of Nat Turner" into someone who was in on the conspiracy to make Turner into more of a rebel than he was.

I think Foster's novel is important not just for her reconstruction of the lives of the actors in the Turner rebellion, but for how she interprets the motives behind the rebellion and the trials afterwards.  There was violence aplenty during and in the wake of the Turner rebellion.  Foster makes judgments about the nature of the trials -- and the motives behind them: this was not so much about restoring order through violence (how's that for a riff onRichard Slotkin's book?) as about making money from the execution of innocent slaves.  

I see the world somewhat differently from her -- there are different motives (I see the trials more about control and less about economics).  I struggle with trying to make sense of Turner.  Was he, as an antebellum observer in Richmond asked, motivated by a desire for freedom or for vengeance?  It's hard to make someone who kills indiscriminately into a hero -- even as we may seek to understand the world of violence from which he emerged.  I'm deeply interested in why Turner chose the families he did to attack -- was this an issue of proximity or revenge?  Both?  And it's important to remember the violence in the wake of the rebellion, too.  Enslaved people were indiscriminately shot and, of course, tortured.  (This is part of the context for my observation that Django Unchained had less violence than I expected.)  As happens so often in history, the violence of slavery led to the violence of resistance, which led to even greater violence as the rebellion was put down and vengeance was extracted on those least able to bear it.

The purposes of history and literature differ, often -- though in a lot of ways they also overlap.  We can learn a lot from Foster's reconstruction of the Turner rebellion and the responses to it, especially as her re-interpretation of it challenges us to see the motives behind the system of slavery and the impulses towards freedom that clashed in Southampton from August through November 1831.

The Duel in Django

Had a very fun dinner the other night with a few friends who are legal historians (and one philosopher) and the discussion turned to Django.  I said something along the lines of, if anything Tarantino under-played the violence in the institution of slavery.  And from the looks at the table -- even from my friend who's an expert on the sexual violence of slavery -- I may be the only person around who feels that way about the movie.

But that set me to thinking some more about the movie.  Did you know that the screenplay is on the internet?  The screenplay does not entirely match the movie.  And in one respect, there is an important difference: whereas in the movie Calvin Candie purchased Broomhilda (and Django and Schultz find out about this through a title search), in the screenplay Broomhilda came into Candie's possession through a card game at the Cleopatra Club, in which Broomhilda's owner (and lover) bet her.  The owner than protested that Candie had cheated at cards and Candie threw a revolver on the table to challenge him to a duel. 

Now, I'm somewhat skeptical of the role we can properly assign to honor in the old South -- but no one can dispute that the duel is central to culture in the old South.  Bertram Wyatt-Brown's Southern Honor certainly demonstrates the importance of duels to southern life.  And it's really interesting to me that Tarantino had planned one for Django.  This is further evidence that some serious historical work went into this movie.

The Jurisprudence of Django

Well, I've finally been able to set aside time to see Django.  Though I rarely see first run movies, I make an exception when they relate to Jim Crow or  slavery.  Wow.  So much to talk about, like the depiction of slavery -- and especially the law of slavery and slave sales.  I was pleasantly surprised -- shocked might even be the right word -- with how much law is in that movie; jurisprudence even more so.

As we were walking into the theater, my colleague Rob Smith asked if I thought there'd be a character like Fed in it?  I paused for a moment and said, probably.  That requires a little explanation.... Turn back to the late summer of 1831 during the Nat Turner rebellion.  As panic swept Southampton where the rebellion was taking place, in neighboring Sussex County slave-owners worried what would happen when the rebels reached their county.  The rebellion never got there, but that didn't stop people from preparing to meet rebellion with violence -- and with violently responding to perceived threats to slavery.

One slave-owning family was convinced that their slave Fed would join the rebels and they repeatedly spoke about it in the presence of their slaves.   I wonder about who Fed was and why his owners were so convinced he would join the rebels.  Upon hearing the speculation that Fed would join the rebels, one slave said in essence -- yes, and I'd join them too.   At trial a few weeks later, as the white community sought to regain control and retribution, that slave who said he would join the rebels was sentenced to death.  Fed, however, was not convicted -- for he had never said anything.  Fed's fellow slave was convicted of plotting rebellion; Fed, who may very well have harbored designs of freedom through rebellion, was returned to his owner to suffer what fate we will never know.

I suppose Django's character has a lot in common with Fed -- and maybe with Nat Turner, too.  What surprised me about the movie was not the violence -- in fact, if anything it was less than I expected.  I guess it's because these days I'm so used to the extraordinary violence that lay at the heart of slavery that the scene of the slaves fighting to the death for the amusement of Candie -- or the dogs tearing the run-away slave apart wasn't all that suprising.  (I had initially written disturbing, but that's obviously the wrong word -- it was incredibly disturbing, just not out of keeping with what one might expect in this kind of movie.)  I'm used to reading descriptions of extra-ordinary brutality -- not so much for amusement of the owners, though it wouldn't surprise me if that was part of slavery -- as for money and control.  I mean, "Blackhead Signpost Road" got its name from the head of a supposed rebel that was placed on the road into Jerusalem, Virginia, as a warning to other rebels.

Two things particularly interested me about this, which I want to talk about now.  First -- and some of this is sort of transparent -- is the role of law.  There are three scenes of slave sales, where contracts (and particular warranties) loom large.  Maybe Ariela Gross should be writing about this instead of me, because she is the leading scholar on slave warranties, but wow I find it interesting that the movie is so framed by law.  There's the opening scene with the "sale," the talk of drawing up a contract for the sale of "Eskimo Joe," and the bill of sale and manumission document of Broomhilda.  But law is present in a lot of other places, too.  It frames what bounty hunters can do and on several occasions the community that's rising up against the bounty hunters accepts that there was a legal justification for killing.  They even go to a local records office to see who purchase Broomhilda.  I mean, how unexpected to find a title search in a Tarantino movie?!  And then there's the pervasive talk of property -- of how Candy can do whatever he wants with his property.  Tis is straight out of Harriet Beecher Stowe's Uncle Tom's Cabin.  And pretty closely related to Thomas Ruffin's State v. Mann.

Second is the jurisprudence of all of this, such as how the bounty hunters justified their killings of both the people they're seeking and the slave-owners at Candyland.  Maybe the most poignant scene of several in this regard is when Django kills a man who's plowing a field.  Obviously Django is doing his job (and also extracting punishment for past crimes), but he's bothered that he's killing a person with a family.  This may inspire people to go back and think again about the duties of people caught up in a system that is violent -- or in the case brutally oppressive.  I guess Django is in some ways like the anti-slavery judges that Robert Cover (and Harriet Beecher Stowe) wrote about, who recognize inhumanity, but still engage in the system.  Or maybe like lawyers for slaves, who try to work within a system that is unfair but still seek some balance for their clients.  Shades of Melville's statement in Moby Dick, "who ain't a slave?"

And what do we make of Dr. Schultz' final words after shooting Candie, "I had to do it."  (Or maybe it was "I couldn't resist.") In the moments leading up to the shooting, he was turning over in his mind Candie's order to have D'Artagnan fed to the dogs.  Schultz, though quite dependent on law for his living -- and someone who recognized the constraints of law (he convinced Django that they couldn't just go and rescue Broomhilda) -- he stepped outside of the southern law and he did so because he believed he had to.

I'm going to think on this some more.  Books and writing are all over this movie -- the contracts and receipts for sale; the record books; the wanted handbills; ... even the library at Candyland, where Dr. Schultz went to look for a copy of Alexandre Dumas' Three Muskateers.  God I love the history of the book.  One final thought -- don't you love how Broomhilda's emancipation papers were a pre-printed form?!  Further evidence of how far the technology of printing was put to use by law.  And one of these days I'll talk about the cemetery scene, too!

Reading Professor Obama

I want to talk a little bit more about a paper that Stacey Gahagan and I posted last fall, which we call "Reading Professor Obama." The title is a riff on James Kloppenberg's fabulous intellectual history of Obama, Obama Reading: Dreams, Hope, and the American Political Tradition, which reconstructs the Obama's intellectual culture from college through the presidency.

We looked at the syllabus for his 1994 course on "Current Issues on Racism and the Law" at the University of Chicago.  This got some attention back in 2008 when theNew York Times first posted on it and then ran commentary by a number of distinguished law professors -- like Pam Karlen, Akhil Amar, and Randy Barnett.  (I blogged about it back in August 2008.)  We contribute two things to the discussion that I think are important.  First, we tried as best we could to see just exactly what he assigned -- often it was a little unclear what pieces of articles and books he was assigning, but we made an educated guess about this.  And then we read that work to see what kind of ideas students would likely take away.  In contrast to those who link Obama closely to Derrick Bell -- and in spite of the fact that Obama assigned a lot of excerpts from Bell's Race, Racism, and American Law casebook -- Obama's readings from people like Anthony Appiah and George Fredrickson reveal that he likely departed from Bell's ideas about the permanence of racial classifications and of racism.  Moreover, his concluding assignment was Cornell West's essay written in the wake of the 1992 LA riot.  West's final sentences -- and therefore the last words that Obama assigned -- are “Let us hope and pray that the vast intelligence, imagination, humor and courage in this country will not fail us. Either we learn a new language of empathy and compassion, or the fire this time will consume us all.”

Our second insight -- really Stacey Gahagan deserves the credit for this -- was to look pretty closely at the class presentation topics that Obama suggested for the students.  For after the first four classes, groups of students made presentations on topics of their choice, though Obama provided twelve broad categories for them to choose from, including "the all-black, all male school," "racial gerrymandering," "welfare policy and reproductive freedom" and "reparations."  We looked closely at the topics and the questions Obama posed for the students on each one.  Stacey Gahagan linked those questions to the burgeoning critical race theory (CRT) literature in the early 1990s.  This suggests that Obama was deeply interested in issues that were in discussion in CRT circles.  Now, I think that no matter one's orientation towards CRT, a course on "current issues in racism and the law" should address a lot of these same issues.  Still, reading this syllabus makes me think that Obama had a closer affinity for CRT than one might expect given his usual and well-known posture of refusing to take sides on controversial issues.

One of the things I particularly like about the paper is our methodology -- we're trying to draw inferences from the documents Obama included in the syllabus.  And while certainly there are ideas in there he disagreed with -- such as, one imagines, Robert Bork's New Republic essay on federal civil rights law -- we get a sense of the ideas that were discussed.  That gives us a sense of what he was interested in; and I think we can draw some inferences from the central directions of the readings.  This is core intellectual history material -- and I've used a similar method in recovering the ideas about jurisprudence and constitutionalism at southern universities before the Civil War.

Our paper received some attention during the election season when the Daily Caller discussed it in an article on Obama's ideas about race.  They used our article to suggest that Obama was closely linked to CRT.  And while I agree that's one upshot of the paper, I think the central tendency of our finding is that there are significant differences between Obama and Derrick Bell.  This distance from Bell is particularly important given the discussion last spring about the "rediscovered" tape of Obama introducing Bell.  Our hope is that people will turn to the syllabus and our paper as they continue to seek the origins and contours of Obama's thinking about race.

Anyway, the paper's on ssrn and we'd be most interested in your thoughts.  David Garrow was kind enough to give me a detailed critique of the paper.  He emphasized Obama's interested in the practical rather than the theoreotical (in this case the CRT literature), among other points.  And as I said last August when I posted on this, we'd be most, most interested in the thoughts of people who took that course -- especially if any of you still have the readings packet.

The image of the University of Chicago Law School is from wikipedia.

American Folk Art in the Nineteenth Century

I think you may enjoy Roberta Smith's article in today's New York Times, "Curator Tear Down These Walls," which argues for the integration of pre-twentieth century folk landscape paintings into the display of more stylized, high-brow landscapes.  But, hey, legal historians have been studying the two genres side-by-side (as if there were not difference between them) for a while.  Or, perhaps I should say, pre-Civil War landscape art of all types reflected the ideas and aspirations of the ownership of -- and dominion over -- property.

I was thinking about how landscape art reflected the pre-war concern with dominion over the land as I was reading Steven Brown's charming new volume on Supreme Court Justice John McKinley.  While in the Senate, McKinley stood up for the rights of squatters who'd improved public land and then sought title to them.  As Brown points out, "the very improvements wrought by squatters that gave 'purpose to the soil' also made the land much more valuable.  Consequently, squatters on public lands often faced the worst possible combination of circumstances: they had cleared the land, built their homes and barns, established their crops, and then found out that the land they had improved was now too valuable for them to purchase at public sale."  The image of property conveys well the work that squatters -- and other settlers -- did to clear the land and links the law to those practices.

The image of "Lake George and the Village of Caldwell" is in the collection of the Metropolitan Museum.  It's one of the illustrations of the Times article, though I think I might have used something from, oh, American Scenery.

Empowering Words

As I'm sitting here trying to draw inferences about constitutional culture from college literary society debates, I'm thinking about some of the other literature that looks to the views of "outsiders."   And I'm excited to see that Karen Weyler's new book, Empowering Words: Outsiders and Authorship in Early America, will be appearing from the University of Georgia this spring, along with a book on southern legal history!

Cribbing now a little from the UGA Press website:

Standing outside elite or even middling circles, outsiders who were marginalized by limitations on their freedom and their need to labor for a living had a unique grasp on the profoundly social nature of print and its power to influence public opinion. In Empowering Words, Karen A. Weyler explores how outsiders used ephemeral formats such as broadsides, pamphlets, and newspapers to publish poetry, captivity narratives, formal addresses, and other genres with wide appeal in early America.

To gain access to print, outsiders collaborated with amanuenses and editors, inserted their stories into popular genres and cheap media, tapped into existing social and religious networks, and sought sponsors and patrons. They wrote individually, collaboratively, and even corporately, but writing for them was almost always an act of connection. Disparate levels of literacy did not necessarily entail subordination on the part of the lessliterate collaborator. Even the minimally literate and the illiterate understood the potential for print to be life changing, and outsiders shrewdly employed strategies to assert themselves within collaborative dynamics.

Empowering Words covers an array of outsiders including artisans; the minimally literate; the poor, indentured, or enslaved; and racial minorities. By focusing not only on New England, the traditional stronghold of early American literacy, but also on southern towns such as Williamsburg and Charleston, Weyler limns a more expansive map of early American authorship.

Weyler's subjects are more outside of the mainstream of American culture than college literary societies in the pre-Civil War era -- in fact, I guess that's part of my point that at least speakers to college literary societies are themselves pretty well connected to the powerful in southern society before the Civil War.  But I'm optimistic about how frequently legal historians are looking outside of the Supreme Court for evidence of constitutional thought -- and I expect that Weyler's book will have some important insights into the ways that outsiders talk with and influence those at the center of power, just as some other recent work on oratory and literature in the nineteenth century does.

In Memoriam of Robert Francis Engs (1943-2013)

It is with great sadness that I write about the sudden passing of a terrific historian and a very generous and humane man, Robert F. Engs.  Dr. Engs was educated at Princeton and then Yale and taught at the University of Pennsylvania for many years (including the time when I was there; I was the beneficiary of his wonderful lecture class on the era of Civil War).  Then after his retirement from Penn he returned to his native Virginia and was teaching at William and Mary, where he was working on the school's Lemon Project.  That project is revisiting William and Mary's long history with the institution of slavery.  Though Dr. Engs was so much more important to his students and those of us who came within his orbit than a catalog his scholarship would convey, I would like to mention several of his path-breaking books were Freedom's First Generation: Black Hampton, Va., 1861-1890 and Educating the Disfranchised and Disinherited; Samuel Chapman Armstrong and Hampton Institute, 1839-1893.  He also co-edited with Randall Miller The Birth of the Grand Old Party.  And because this is the internet I will also mention the electronic archive he developed on the coming of Civil War.

I had the pleasure of having dinner with Dr. Engs last spring and he was in classic form -- telling stories about his time as a graduate student and as a professor at Penn, about the days when African American history was so new, as well as all the work he had in process.  He was recovering from some lingering health problems, but very much looking forward to the work of the Lemon Project and to travels.  And we had a grand time at dinner.  Wow, what an evening!  Of course in his characteristically generous fashion he patiently listened to my talk about University, Court, and Slave -- and we had the chance to trade stories about the ways that institutions north and south (but mostly south) had promoted the cause of proslavery as well as benefitted from enslaved labor.

We have lost a wonderful person, a wonderful mentor, and a steadfast advocate for African American history.  He cared deeply about his students and the future of the historical profession, and worked to recover African American history, particularly in the south.  His writing was directed at recovering the full scope of African American life in the era as our nation emerged from generations of slavery and made the robust ideas of freedom an economic and social reality.  I hope to talk a little bit more about Engs' influence and his work soon.  

Rob Gregg, who was also one of my teachers, has an extensive remembrance at Histrionics.  Sherman Dorn recalls his days teaching with Engs here.  W&M's Provost, Michael Halleran, has a tribute here, and here is the Flat Hat's story.  Further details about funeral arrangements are at the Daily Press' website.  The family asks that in lieu of flowers a contribution be made to an organization of your choice that benefits at-risk youth.

Cromwell Foundation Article Prize in Legal History

It's my pleasure to post the following call for nominations for the Cromwell Foundation's article prize in American legal history for early career scholars:

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 L. Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC  27599-3380 or via email at abrophy@email.unc.edu

To emphasize what is probably obvious, the subcommittee encourages folks to submit nominations of articles they've read and enjoyed.  Authors should also nominate themselves.  This is a moment where we want to recognize and celebrate the outstanding work that is being done in legal history by newer scholars.  If I might add a personal note, I'd like to say that I'm very much looking forward to reading the entries for this prize. 

The Cromwell Foundation also has a book prize and a dissertation prize in legal history.  Dan Ernst has posted information on the Cromwell Foundation Book Prize (for early career scholars) and also its companion the Reid Book Prize (for more senior scholars) at the legal history blog.  Here's information on last year's Cromwell Foundation prizes.

Faulkner and the Interpretation of the Voting Rights Act

Joel Heller's article on "Faulkner’s Voting Rights Act: The Sound and Fury of Section Five" is out in the Hofstra Law Review (and on ssrn).  Here is his abstract:

In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”

One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. 

This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.

The Geography of Lynching

Joan Shaughnessy at Washington and Lee sent along a link to a Salon article, "A Lynching Map of the United States, 1900-1931," which reprints a map of the United States put together from data at the Tuskegee Institute to document the places where lynchings took place over that time.  It's worth a look.

Thomas on Stanton on Abortion

Tracy Thomas' new paper, "Misappropriating Women's History in the Law and Politics of Abortion," is likely to get some attention in the on-going debate about late nineteenth century feminists' attitudes towards abortion.  Cribbing now from her abstract:

Over the past twenty years, prolife advocates have sought to control the political and legal narrative of abortion by misappropriating women’s history. They claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” Conservatives, led by the lobbying group Feminists for Life, have used historical feminist icons like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul, to support their anti-abortion advocacy. Federal anti-abortion legislation has been named after these feminist heroines, amicus briefs to the U.S. Supreme Court proffer evidence that these women were outspokenly against abortion, and political forums for college students popularize the notion that feminists historically opposed abortion. The need to create a history of anti-abortion feminists seems important today because abortion has come to be equated with women’s rights. The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. 

This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. This paper tests the veracity of the claims of a feminist history against abortion by focusing on Elizabeth Cady Stanton, “the brilliant chief philosopher and leader” of the nineteenth-century women’s rights movement. Stanton has quite literally been the poster child for the historical campaign against abortion, appearing on posters, commemorative coffee mugs and federal legislation. This analysis offers a detailed account of Stanton’s views related to abortion based on original historical research into the archives of Stanton’s papers. Like other works of legal history, it is fundamentally concerned with recovering all of the legally relevant facts and placing those facts in appropriate historical and legal context. 

The evidence shows that Stanton did not talk about abortion per se. She did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women. Instead Stanton reframed this debate as one of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law. Stanton thus seems an unlikely spokesperson for the modern anti-abortion movement committed to opposite ends.

Work like this impresses me with how sophisticated legal history has become in recent years -- and how much we're now putting historical actors into their context, to understand them on their own terms.

Commemorating and Teaching the Emancipation Proclamation (and Farewell!)

Today marks the 150^th anniversary of the Emancipation Proclamation. In case a primer is in order, the National Archives has posted images and a transcript of the original document. Over the next year, libraries, museums, and universities will be commemorating the Proclamation with public lectures, conferences, workshops, and exhibitions: As an example, the Schomburg Center at the New York Public Library has on display “Visualizing Emancipation,” an exhibit of eighty antebellum and postbellum photographs of enslaved and free persons. It would be great to know if any of you are teaching the Proclamation to your law students; if so, how and in what classes?  I am not teaching Property this semester, but plan to include a mini-module on the Proclamation when I teach it again this Fall.

Today also marks the end of my stint in the Lounge. I have fully enjoyed the community and appreciate the opportunity to engage here; and even though my trivia skills remain lackluster, I look forward to rejoining the ranks of the blog’s avid readership.  Keep those hard-hitting posts coming, fellow Loungers . . . and Happy New Year one and all!

Mill Trivia Question

Well, let's start the new year off right ... that is, with a trivia question.  I've pretty much exhausted my stock of nineteenth century courthouses, so I think I need to branch out a little here.  I'm going to ask a question about a mill, in large part because I have a photograph of it -- but also because I've written now and then a little bit about the law of mills (and the images of mills as indicators of progress).

Where most people who write about mill law are interested in the rights of mill owners to use water -- and this is actually one of my interests -- I am also interested in the financial arrangements that made it possible to get the capital together necessary to build a mill and the agreements between co-owners of a mill.  Francis Daniel Pastorius, for instance, had a form in his Young Country Clerk's Collection (which was written contemporaneously with the mill pictured here -- though I don't think it was related in any way to this mill) for sale of a part interest in a mill.

All of this, then, brings me to the question: where's the mill pictured at right.  Pretty impressive structure when you consider it was built in the early eighteenth century, don't you think?

Teaching Prisons and Slavery (Or, This is Not About Django)

This is not about Django. As much as I am dying to write a post about Tarantino's new film, my academic writing beckons. 

Thank you, Patrick O'Donnell, for your earlier post and bibliography on teaching prison law.  I'd like to add to Professor Dolovich's call for a curricular commitment to bringing prisons and prisoners into legal education:  We should not forget to include a consideration of how antebellum slavery shaped the development of America's early penal institutions.

I am hard at work on a project that looks at the administration of slavery in antebellum Virginia through the institutional prisms of the county jail and the state penitentiary. Many (many) years ago, while trying to nail down a dissertation topic, I became interested in the practice of confining alleged fugitive slaves in local, southern jails until they were "claimed" by their owners. (Many folks confined in antebellum Virginia’s local jails were never accused of any crimes, and were most often merely suspected of being runaways.) Hunted down on the roads and in the countrysides, people of discernible African ancestry were presumed to be fugitive slaves; no law prevented their seizure and confinement upon such suspicion.  

The project tells (what I hope to be) a new story about the history of incarceration in the early national/antebellum south and the emergence of Virginia’s administrative regime, while also offering fresh insight into how these institutions shaped – and were shaped by – the institution of slavery.  Antebellum Virginians relied upon jails to perform functions separate and apart from holding accused persons awaiting indictment or trial; such facilities became sites for the realization of the state’s interests in slave property security. Jails were frequently used throughout this period as holding pens for slave traders; as clearinghouses for putative owners’ property claims in suspected fugitives; and as marketplaces for violence, as slaveowners sought – and paid for – corporal and terroristic punishment to be inflicted upon their recalcitrant bondsmen. No similar security measures were implemented for other forms of antebellum property, reinforcing for us (as modern readers) that slave property was peculiar and that institutions of law helped to create and reinforce this peculiarity. 

Few have considered the experiences of blacks in what might be considered "civil" custody during this period; beyond those excellent monographs on slaves-as-criminal defendants (Schwarz, etc.), this other history has gone (somewhat) untold. Penal institutions in this country have troubled pasts; introducing them to our students will both spark their interests and motivate further scholarly excursions (and activism) into the field.

Colonial Courthouse Trivia

Well, usually my courthouse trivia questions are about courthouses built during the nineteenth century.  But how about one from the colonial era?  Where is the courthouse at right and what important case was tried there?  Here is another view of the courthouse.

After we get that figured out, I'll post the Civil War monument on the courthouse lawn.