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.
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.
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.
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.
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.
Continue reading "Public Constitutionalism in the Antebellum Era and Gun Regulation" »
A Facebook friend of mine who is a law teacher recently posted a status update expressing understandable pleasure over a couple of dozen end-of-semester thank-you notes, emails, and other tokens of gratitude from students.
The post got me musing about what you might call the culture of expressed gratitude in law schools. I've been in this business full-time since 1994. Over the years I have noticed that some faculty members seem to attract expressions of gratitude from students, and others don't. You see the telltale signs lying about: the little envelopes stuffed into doorframes or slipped partly under doors, the little packages and Hallmark envelopes left in faculty mailboxes. And there are a couple of things that have struck me about this. First, as I say, there are clear patterns -- if you pay attention, you can see that there are some who attract concrete expressions of gratitude, and others who don't. Second, the faculty member's reputation for excellence in teaching correlates at best imperfectly with the pattern. Some who appear to receive lots of student love are reputed to be great teachers, but many reputedly great teachers don't ever seem to have the little-package-stuffed mailbox or the telltale envelope stuffed in the doorframe.
This is an interesting thing. Is there something in the student-faculty relationship that helps explain the patterns?
I hasten to add that I'm musing about this out of a genuine sense of curiosity, not out of resentment. Though I've never been among those who receive the cards and emails and little gifts, I know that the students in my classes have enjoyed them and felt that they've learned a lot.
Greg Alexander has a paper up on ssrn, "Unborn Communities," that engages a topic of much interest to me: whether we owe a duty to future generations. I blogged about this topic a few years back when the GW Law Review had a symposium on "What does our legal system owe future generations." I framed the issue somewhat differently: by asking did previous generations owe us anything? The trusts and estates professor in my is interested in ways that previous generations bound themselves for our benefit. Obviously trust provide one example of a previous generation binding itself -- voluntarily, I know -- for the benefit of a later generation.
Alexander is interested in moral, rather than legal, obligations. But Alexander uses analogies to trusts, too, to try to shift out the property we leave to later generations and some of the limits we try to impose on that property (such as limitations on whether the property can be sold). Here is his abstract:
Do property owners owe obligations to members of future generations? Although the question can be reframed in rights-terms so that it faces rights-oriented theories of property, it seems to pose a greater challenge to those theories of property that directly focus on the obligations that property owners owe to others rather than (or, better, along with the rights of owner). The challenge is compounded where such theories emphasize the relationships between individual property owners and the various communities to which they belong. Do those communities include members of future generations? This paper addresses these questions as they apply to a property theory that I have developed in recent work, a theory that we can call the human-flourishing theory of property.
The conclusion drawn here is that property owners do indeed owe moral obligations to future generations. But the scope of those obligations is restricted, certainly more so than some theorists, such as Jeremy Waldron, have claimed. Unlike Waldron, for whom such obligations are a matter of rights, I argue that the obligations that property owners owe to past generations are grounded on dependence. Specifically, I argue that if we expect fellow members of our communities in future generations to continue what I call the life-transcending projects that we began, then it is incumbent on us to provide that same background conditions that we enjoyed to those future generation community members to whom we transfer the responsibility of continuing or fulfilling our life-transcending projects. Moreover, as the distance between the living and the unborn increases, our obligations to future generational communities generally weaken. Our obligations to them are limited to the background conditions that enable them to continue the life-transcending projects transferred to them. These conclusions place me in an intermediate position between those who take a robust view of the obligations that the living owe to future generations and those who think that the living owe no such obligations at all.
As I said in my blog post back in 2009, previous generations have done a heck of a lot for us, no doubt. And they did so in part, perhaps large part, because they were building something better for the future. One of my favorite quotes along these lines is Ralph Waldo Emerson's observation in "The American Scholar" that insects store up for future generations. He found the common elements of the human mind to store up knowledge "like the fact observed in insects, who lay up food before death for the young grub they shall never see." There's a great tradition in America--and in human society more generally, I suppose, though I don't have the expertise to testify to it--of making sacrifices for future generations, of doing something so that people whose names we will never know can have a better life. One thinks, of course, of the American Revolution here -- and of course the Puritans' Errand into the Wilderness. (The image is of the Sycamore tree at the Brandywine Battlefield Park.)
This week, Bloomberg Business Week published a graphic showing "underemployment range of the 20 cheapest vs. most expensive law schools." Unfortunately, their editors didn't know the difference between NYU Law and New York Law. Or maybe Mike Bloomberg just hates John Sexton.
(Yes, it's been corrected online. But for all the old-timers who read Business Week on paper - also known as parents-of-propsectives - the correction is unlikely to get noticed.)
Susan Westerberg Prager, the executive director and chief executive officer of the AALS - and former dean of UCLA Law School - has announced that she will be leaving Washington, DC and returning to Los Angeles. She will be the new Dean and Chief Executive Officer at Southwestern Law School. The huge loss for the AALS is Southwestern's incredible gain. Congratulations to all.
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