Here at the faculty lounge we're putting together a blog symposium on Go Set a Watchman. Faculty lounge blogger Steve Lubet's essay, "Reconstructing Atticus Finch," in the Michigan Law Review back in 1999 was part of the movement to question Atticus' ideas when he was seen as a heroic figure by so many. Now that Watchman has moved the story forward two decades to the post-Brown v. Board of Education struggle over civil rights, we see Atticus in a very different light -- as a supporter of the White Citizens Council and as a critic of the NAACP and the Supreme Court. And we also see Scout (now known as Jean Louise) in a new light, too -- as someone at odds with her father and his world. They had a clash of visions of constitutional law; Jean Louise had a theory appropriate for the Atomic Age (what a quaint throw-back to 1950s, dialog, isn't it?).
We want to post some of our readers' thoughts on this and are casting the net broadly for takes on Watchman, as well as reassessments of Mockingbird. Given that our focus here in the faculty lounge is on law, we're particularly interested in assessment of the legal ideas on display in Harper Lee's work, but we welcome assessments from others vantages, such as literature, history, and race.
Steven Lubet, as our resident expert on Harper Lee, will be providing commentary at the conclusion of the symposium.
If you're interested in participating, please send a brief proposal to Al Brophy, firstname.lastname@example.org. In keeping with the faculty lounge's blog format, there will be no footnotes, but hyperlinks are welcome. Posts should be in the range of 500-1500 words and we're hoping to have the symposium run July 27 to August 1.
I want to take a break from the law and morality of Confederate flagsand monuments and ask a question related to an African American lawyer who is a real hero of mine. Who lived in the house on the corner? (The other photos that I took, which look at the house straight-on might give this away too much, so I decided not to use them. If you want a hint, you can look at this photo.) I've gone by this house dozens of times and finally had a chance to stop and take a picture. I don't think it's making it too easy to say that I once lived on this street, some blocks away.
And happy first of July. For my part, I need this month to be a productive one. I'm expecting it to involve lots of work on eugenics, universities and slavery, and trusts and estates. Please don't laugh at my if at the end of this month that turns out to have been too ambitious.
The Cumberland Law Review is doggedly searching for articles, insights, and ideas that implicate a subject that we believe our journal is uniquely situated (and arguably obligated) to explore: a sort of retrospective of the Voting Rights Act of 1965. Our host city, Birmingham, Alabama, is one of the more prominent characters in our national recollection of the Civil Rights era and the 20th century ills that necessitated legislation such as the VRA and the Civil Rights Act.
In light of the VRA’s 50th anniversary and recent SCOTUS decisions (from Shelby Co. to Ala. Legislative Black Caucus), we think it appropriate to devote enough space in one of our forthcoming editions to an articles symposium on point. As of now, though, the quantity and quality of articles we’ve received along this vein have been underwhelming, so we’re casting a wide net in soliciting contributions.
If you have the time or interest in submitting or pitching articles, or just touching base with thoughts and suggestions re: other people to reach out to, please reach out to either Walker Mason Beauchamp, Editor-in-Chief, Cumberland Law Review email@example.com, 205-821-5800 or our Articles Editor, Stewart Alvis. Stewart J. Alvis, Acquisitions Editor, Cumberland Law Review firstname.lastname@example.org
The editors are also publishing work related to civil rights and legal history more broadly, including some never-before published papers of Judge Horton (who presided over the Scottsboro case) and also a short essay from me on graduation addresses at Howard College (a predecessor of Samford University) in Marion, Alabama, before the Civil War. This is a companion to longer articles I've published on graduation and literary addresses at the University of Alabama and at UNC. There are fewer addresses available for Howard College in this era, so I'm going to focus on the ways that the addresses linked economic progress, law, and slavery. I think this will allow us to see in a small compass some central tendencies of southern thought in the decade before Civil War.
In my last post I discussed the Nineteenth Century Black Convention Movement and how the 1864 National Convention in Syracuse started a brief but important series of conventions. For this post I look at one of the more prominent of the state conventions, held in Charleston, South Carolina, in November of 1865.
The Charleston Convention is frequently cited both because it produced an interesting set of substantive documents and because it included several future political leaders in Reconstruction South Carolina, such as Richard H. Cain, Francis L. Cardozo, and Alonzo J. Ransier.
This convention has received some attention by originalists because it mentions the right to bear arms, and it is the one black convention from the period to have made its way into a Supreme Court footnote (in McDonald). The problem, however, as I discuss below the fold, is that extracting the right to bear arms from the document in this way does not do justice to either the richness of the document or the role and context of the right to bear arms for the members of the convention.
This is just a reminder that the Faculty Lounge mini-symposium on board diversity will be held next week. Regular Lounge readers know that we occasionally host mini-symposia on special topics here, such as the recent Taxing Eggs symposium. And next week’s topic will be board diversity.
Efforts to encourage greater corporate board diversity are now nearly universal. Though different jurisdictions employ different methods – from reporting to quotas to more informal public, market, or government pressure – the drive to diversify the boardroom is being felt around the world. But why?
The Faculty Lounge will host a special mini-symposium on corporate board diversity with guest experts in the field. What methods are different jurisdictions using to promote board diversity and with what effect? More importantly, what do board diversity advocates hope to achieve with these changes? Finally, what do our panel of experts believe will be the ultimate result of these efforts?
Join us in the Lounge next week as our panel of experts address these and other issues. Panelists include:
In prior posts I wrote about two speeches/dialogues from 1865: Henry Garnett’s speech and sermon in the House (here and here), and the exchange between William Sherman and Garrison Frazier in Savannah. As I mentioned, these are two sources that I am looking at in my project of exploring African-American writings, speeches, and actions from the period to help think about the possible meanings of the Reconstruction Amendments. I'll now take a break from my 150-year anniversary posts to give an overview of the project.
By the 1860s African Americans had built a well-established discourse and activist community in the North. It developed with the abolitionist movement, but it also functioned as a support network for building African-American civil society in the Jim Crow culture of the North. With the end of slavery, southern black communities immediately engaged in public discussions and debates about the meaning and implementation of freedom and citizenship. And with Reconstruction, black representation in local, state, and national government was brief but substantial. The ideas discussed and advanced within the black public sphere provide an important source for how freedom and citizenship were being thought about at the time by the people for whom it meant the most. And while historians have been exploring black history from this period for a number of years, very little of this has made its way into legal or constitutional analysis.
The main exception to this has been the use of African-American sources in the Second Amendment cases, Heller and McDonald, relying in part on work by scholars (Akhil Amar, Robert Cottrol & Raymond Diamond, and others), and in Justice Thomas’s opinions on affirmative action (e.g. Grutter). Both the majority opinion and Justice Thomas’s concurrence in McDonald cite black newspapers and black conventions to support an individual rights reading of the amendment as incorporated through the Fourteenth Amendment. I don’t know about you, but this struck me as odd.
I am thankful that individuals assume the responsibility and risks of becoming law enforcement officers. There is no doubt that these people put their lives on the line daily when they wear the uniform and answer the call of duty to protect all of us and ensure a law abiding order. However, the badge does not entitle law enforcement personnel to be above the law. Sure there are often tough calls requiring split second decisions that could mean the difference between life and death for the officer or for one or more members of the public (and this is why there is extensive and ongoing training). Of course in hindsight it is easy see mistakes can be and are made, and sometimes actions are taken that deserve greater public scrutiny. Just like the public sector workforce, who are for the most part, honest and hard-working, so are members of the law enforcement community. But, when errors of judgment happen, whether intentional or accidental, the public must be assured that full, transparent and unbiased investigations occur. This is essential to maintaining the public trust.
Demands for transparency are often thwarted by little known statutes that counter the promise of open government (e.g., open meetings law and freedom of information laws). For example, New York Civil Rights Law 50-a, protects certain police records, including information about internal investigations and discipline, from being disclosed (although when reading the language it appears to apply to the narrow circumstance of personnel records, court interpretations since 1976 have interpreted it more broadly to protect just about anything that could be used to evaluate an officer’s performance). In it's December 2014 40th anniversary report, the NYS Committee on Open Government implored the Governor and the Legislature to make it a top priority in 2015 to reform this law, noting that due to the effect of this statute, “The Freedom of Information Law (FOIL) today affords the public far less access to information about the activities of police departments than virtually any other public agency—even though police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees.” Yesterday’s NYT editorial called for ending the secrecy on police misconduct, fully endorsing the report’s recommendation.
So, what does all of this have to do with law schools? The City of Albany’s Citizens Police Review Board is the only police oversight board in the United States at this time that is staffed by a law school, designated by City Law in 2000. I had the privilege and responsibility of setting this up (see pp 1013-1015). The experience enabled the law school faculty and students to design and implement an oversight body and process that was accepted and supported by all impacted stakeholders (City Hall both Executive and Legislative branches, Police Department, Police Union, the Community – advocacy groups and individuals). Scholarship resulted such as a 2003 issue of the State Bar Government Law & Policy Journal (this may be password protected) and the only book exclusively on police oversight published by the profession. The existence of a research team for the Board that included law students and faculty enabled the development of significant policing policies in the City addressing things such as racial profiling, early warning systems to identify “rouge” officers (very important given the Court’s interpretation of Civil Rights Law 50-a), cameras in police cars, and the negotiation of the implementation of a mediation program as envisioned in the legislation. Above all, the law school created a system of transparency through the posting of comprehensive and detailed minutes, ongoing public outreach well beyond the monthly board meetings, and the school was and still is a neutral, non-governmental office where people in the community can feel safe discussing alleged police misconduct. Working with the independent Board members and contract investigators, excellent working relationships were established with the City, the Police Department and the Union. A former student even served on the Board after having been exposed to it as a law student. With more than 100 oversight agencies in the U.S (and there should be more), it is surprising that there are no other partnerships between law schools and their host communities to work on these issues. I urge interested law schools to reach out to explore potential opportunities.
Recently I had the honor of addressing students at the NEBLSA annual convention. In reflecting on the current events in Missouri and New York that highlighted, among other things, the lack of transparency in the grand jury process, I shared the short story of how law schools could work with communities and law enforcement on oversight issues. More important, attendees were reminded of the important long-lasting power they have to make a difference. Immediately following the Michael Brown and Eric Garner grand jury decisions, rallies were organized at various law schools and people participated in marches and “lay-downs,” but then what? Our advocacy surely can’t begin and end with rallies in December 2014. It is now February 2015. Some law schools have sponsored speakers and organized symposia. This is a start. Students and faculty so inclined could populate the law reviews and journals with legal and policy analysis that points to options for reform. Shorter articles in state and local bar journals and newspapers and op eds and postings on appropriate blogs could help to focus ongoing attention to the issue. Student groups can continue to invite speakers to remind us of the need for reform and to continue to inspire written and verbal advocacy. In certain courses, such as legislative drafting, students may choose to draft proposed laws to address the needed reform, and then rather than being a mere “academic exercise,” the drafting can be shared with key lawmakers. In other courses where aspects of the topic are appropriate, students may choose to complete writing requirements that address these issues, and then use these products to not only publish in outlets described above, but enter them into relevant writing competitions. The above are but a sprinkling of opportunities, and it should be noted, that while my lens in this post is police oversight, the suggestions can more broadly be viewed as ways in which law schools, faculty and students can lead needed reform in myriad areas. This is absolutely an important part of advanced legal education. Lawyers are leaders in government and in the community. People look to us to not only apply the law, but to ensure that when the laws are no longer adequate, we help to refine and reform them.
I should probably leave it to Steven Lubet, the faculty lounge's resident expert on Harper Lee and To Kill a Mockingbird to discuss this.... The internets are lighting up right now with the announcement that a novel written by Harper Lee before To Kill a Mockingbird is set for publication this July. The novel is called Go Set a Watchman. It deals with Scout as an adult and is set in the 1950s -- some years after the plot of To Kill a Mockingbird. Actually, it was this novel that led to Mockingbird when an editor, intrigued by flashbacks to Scout's early life in Go Set a Watchman suggested that Lee write a novel about Scout's early life. Lee thought the novel was lost, though a copy was recently found by her lawyer, apparently attached to a manuscript of Mockingbird.
I'm going to be mighty interested in this -- for all sorts of reasons. First, I'll be interested in the amount of law there -- and particularly whether there are the kinds of issues raised by Mockingbird, where the focus on civil rights advocacy may have overshadowed the efforts to free Tom Robinson. If there's any significant amount of law in the novel, there's going to be a feeding frenzy among professional responsibility, trial advocacy, civil rights, and critical race scholars. Second, I'm going to be interested in seeing how the depictions of the civil rights movement appear and what Lee makes of the generational divide between Scout and her father and whoever else populates the novel.
I was talking recently with one of my colleagues about Tony Amsterdam's legendary memo from the mid-1970s about the future of challenges to the death penalty and how many of those challenges he accurately forecast. It'll be exciting to see how the views that Lee lays out in the novel match up with our understanding of those difficult -- but still optimistic years -- and also how they match up with our current understandings of the options and challenges of race and equality today.
Ladies and Gentlemen, start your word processors. The image is of the Monroe County Courthouse in Harper Lee's hometown of Monroeville, Alabama. It's from our friends at wikipedia.
Update:Richard McAdams speculates on how our view of Atticus Finch may change when we view him in the setting of the 1950s rather than the 1930s at Huffington Post.
I signed up to guest at Prawfs this month and - what do you know - I haven't managed to get much momentum going. Today, though, I posted some thoughts and questions about how we might think about the recent extension of Second Amendment rights in the context of existing race disparities in formal, and informal, policing. If you're interested, check it out here.
A full-day program with three separate panels and a keynote speaker will provide a forum for discussion of police violence and the legal system, the history and context of police brutality, and activism in the face of police violence. Panelists will include academics, lawyers, journalists, and community activists. The luncheon keynote speaker is Ms. Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense Fund. The program will take place on Friday, January 23, 2015, in room #5052 of UNC School of Law. It opens at 9 a.m. and will close at 3 p.m. and is co-sponsored by UNC Law Clinical Programs and the UNC Center for Civil Rights. Please contact Prof. Tamar Birckhead with any questions: email@example.com.
Just in time for the beginning of property class comes this article from the Washington Post on an estate that LBJ and Lady Bird Johnson purchased in -- do I have this right, 1961 -- with a racially restrictive covenant on it. The Johnsons filed a declaration that the covenants were not enforceable legally or morally. Of course that was true. By 1961 the covenants had been unenforceable for nearly fifteen years. Perhaps this article should have mentioned that, rather than repeating one of the Johnsons' lawyers statements that he could not have purchased a home in the area at the time.
I'm going to see Selma when it opens in Chapel Hill. Though I almost never see movies in the theater I make and exception for ones about slavery (even when they are fiction) and Jim Crow so I need to reserve my though on just how unfair the movie is to Johnson. I'm always sad when historical figures are unfairly maligned and it seems that Selma may be particularly unfair. But I'm not convinced that the restrictive covenant in this case robustly tests Johnson's attitudes towards integration.
Still, all of this reminds me of some work I'm doing on the fight against racially restrictive covenants in Oklahoma City from the late 1920s through and just past Shelley v. Kraemer. While the house the Johnsons purchased was quite expensive, what strikes me as particularly poignant is that much of the fight against integration in Oklahoma City took place over relatively modest housing stock. The illustration, for instance, is the home of one of the plaintiffs in a suit to enforce covenants in northeast Oklahoma City back in the 1930s. I hope to post a bunch more photos from the 1930s and also of the neighborhood today later in the semester when I talk about the work I'm doing on the suits regarding restrictive covenants.
Customers discriminate. They discriminate in whom they buy from, how much they are willing to pay for what they buy, and how they evaluate those with whom they do business—among other things. Anti-discrimination norms in contemporary U.S. society are strong, as reflected by legal constraints on discrimination by employers, providers of public accommodation and so on. But there seems to be an exemption for customers. Why?
One of their proposals might require bundling of purchases as a response to discrimination (such as requiring the purchase of tickets to women's sports teams at the same time customers purchase tickets to men's sports teams.). This leads me to ask if this is really more about redistribution of wealth than about prohibiting/punishing customer discrimination. And if that is the case, perhaps we should just redistribute property outright? A second thought here -- and this likely the only time in my life I have found myself in agreement with Robert Bork; savor this because the moment is unlikely to recur -- but I think we allow customer discrimination because of the core ideology in our country that permits individuals to make choices about how to spend money, whom to associate with, and in what ways.
About six months ago, Al Brophy posted an interesting short piece on African Americans’ difficulties in finding accommodations during the Jim Crow era. In the article, he included a link to the Green Book, a publication from the era that listed where success could be had.
Al’s piece and the Green Book itself made me wonder about the similar issues that supposedly occurred for Jews as they traveled around the U.S. in the early 1900s. During my upbringing in the 1950s and 60s, I was often told stories, particularly by my grandparents, of how difficult travel was as so many facilities had signs that stated that they were for “Christians only” or other similar verbiage. Similarly, the Green Book stated that “[the] Jewish press has long published information about places that are restricted ...” Well, after an unexpected months-long search, maybe not so much.
Without a doubt, there are some examples of travel establishments refusing to serve someone because they were Jewish. The most widely known of these events would be the Hilton-Seligman controversy of the 1870s surrounding the Grand Union Hotel in Saratoga, NY. Mr. Seligman, a well-established member of the New York City business community and a Jew, was denied a room in the hotel specifically because of his religion. To assert that this was commonplace, however, cannot be sustained, at least based on the records I have been able to find.
First, I examined the reference in the Green Book to comparable publications from the Jewish press. I found numerous travel books published during the early to mid-1900s with a Jewish audience in mind. All of these, however, were not oriented towards where Jews could find facilities that would be willing to serve them despite their religion; rather, they were oriented towards where synagogues and Kosher restaurants could be found. Unlike the Green Book, therefore, these travel guides were not to help Jews avoid discrimination, they were designed to help them find religiously compliant facilities.
Second, although there are examples of antisemitism being practiced by travel facilities from the 1800 and 1900s (and even from the 2000s), these examples appear to be just that—individual decisions by a particular facility to discriminate based on religion. No state adopted laws designed to create a Jim Crow-like system of discrimination against Jews as was done against African Americans just as there were no “Jewish divisions” in the miliary of the 1940s as was required of African-Americans. My relatives have served in the Army, Navy and Marines without any limitations because of their religion.
Since I found nothing, you may be wondering about why I have bothered to post anything on the Lounge. Again, there are two reasons. As I did the research, numerous people and organizations unselfishly gave of their time to assist me. This openness stands in stark contrast to a country where discrimination is acceptable and should be noted. More importantly, however, was the broader reminder that my research gave me. All too often we tend to compare our histories of discrimination. Comparison here means nothing—all group-based discrimination achieves nothing.
This was recently reinforced in several episodes of Henry Louis Gates’s PBS show, Finding Your Roots. It became explicit as Tony Kushner’s roots were explored. The trail of his family ended with the information from the time his family immigrated to the United States as all of the records before that were destroyed by the Nazis. Only one Jewish guest’s roots could be extended back (Carol King) as there were some Russian records that had survived. Similarly, for all of the African Americans who have been on the show, the family roots ended with slavery. Here, however, DNA has allowed some jump across the ocean as it gives some indication of what areas of Africa are represented within each person’s family. Of course, knowing your country of origin is not the same as knowing your family. Kushner and Gates discussed this in the episode. Kushner said:
Genocide is a specific thing. Slavery is a specific thing. [Slavery is] a kind of soul murder that is unlike other forms of oppression. The holocaust is a near successful attempt to obliterate ... [i]n less than a decade an entire civilization. This is beyond human comprehension. And you don’t repress the fact that it happened, but you allow a ring of unknowing to surround it because you can’t… you know what was it like on a slave ship… what was it like in Auschwitz. Our great good fortune in a way is to not actually know directly.
I wish I knew more about my family before we came to the U.S. beyond knowing that my Father’s family came from Roumania and my Mother’s family came from Ukraine and Austria. Similarly, I am sure that many African-Americans would love to know their familial background and, for many, their country of origin within Africa. The reality is that none of us will ever know this. So the end of the long search left me knowing, more surely than ever, that there is a great loss when you are cut off from your personal history. At times, to recover from this, we generate a myth that there was a pattern of discrimination. Whether these myths heal or whether they just hide the wounds does not, in the long-term, matter.
From our friends at the University of Wisconsin, comes an announcement that they're looking for a Vice Provost for Diversity (Chief Diversity Officer). Professor Brian Yandell of the Statistics Department is running the search. The position announcement is here.
Siobhan Mukerji interviewed William and Mary history professor Melvin Ely recently about his magisterial book Israel on the Appomattox. The podcast, which is a really terrific discussion, is here. Israel on the Appomattox is about a community of free people of African descent who lived near Farmville, Virginia from the early nineteenth century through the early twentieth century (though Ely stops the story around the time of the Civil War). It's social history on a grand scale, which draws largley from legal records, from deed books to records of civil suits and criminal proscutions to reconstruct that community. And it won a great many prizes, including the prestigious Bancroft Prize awarded annually by Columbia University to several books deemed the best in American history.
Israel on the Appomattox inspired a series of other studies that have revisited the lives of free people in the slave-owning south and suggested that their lives were richer than we had previously known. This builds in many ways on work like John Hope Franklin's The Free Negro in North Carolina published during World War II. And it responds to other studies, like Ira Berlin's Slaves Without Masters, which portrayed the challenges of free people in the slave-owning south.
While I very much admire--indeed am in awe of--Ely's extraordinary research and beautiful prose, I wonder about the representativeness of his community. DuBois wrote about the African American community of Farmville in the early twentieth century, which testifies to how strong and resilient this community was. And when I was talking with Kim Forde-Mazrui recently about this he reminded me that the Farmville community generated one of the cases that went into Brown. (This is also the county that closed its schools in the 1960s rather than integrate -- so there's some really intense struggle in that county that's worthy of comment down the road.) But I also have a question about Ely's story beacuse while he's talking about the ways that the free people were able to participate in the community and acquire property and even sue in court, a few counties over in Southampton the free people I study are being run out of the county in the wake of the Nat Turner rebellion. And this is maybe the most important -- I think there's a different perspective depending on whether one is coming from the vantage of social history (where you're recovering the lives of your subjects independent of law) or legal history (where you're interested in the amount of rights that your subjects have and the meaning of the rule of law). On this part of the story -- the meaning of the rule of law -- Kirt von Daacke's Freedom Has a Facedoes a very nice job of pointing out how the legal system is used both by free people and against them, as he recovers details of the lives of free people, including their property holdings and their work. I have some more thoughts on the rule of law and free people in the old south here, which takes off from Cornelius Sinclair's freedom suit in Tuscaloosa in the 1820s.
The interview is well worth a listen, especially the discussion around minute 16, which engages the power the legal system conferred on white people over free black people. This reminds me a lot of E.P. Thompson's ideas in Whigs and Hunters. Legal historians will really enjoy the conversation.
About the illustration: If you're looking for this historical marker it's at the intersection of Layne Street, West 3rd Street, and Industrial Park Road in Farmville. (Layne Street also intersects West 3rd Street a little further west, but you want where it intersects with Industrial Park Road).