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November 09, 2015


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Tim Riggins

Serious question. How is it OK for you to guess that the commenter is male? If you had guessed, for example, that the commenter was black or was female, your friends in the academy would be calling for your head, and rightfully so.

Al Brophy

This post has obviously touched a nerve. Two comments on a post on legal history within an hour of posting. Neither of them have been serious engagements with the topic, but I think that's an important part of the story as well. This most recent question is another way of distracting from the substance of the post.

To answer your question: I was making a guess about the poster's gender because I was using a pronoun. So calls for my "head" are sort of out of place here. Why do I think the now-deleted comment was from a man? It's an educated guess based on the gender breakdown of commenters here.

Jack Chin

Thanks, Al, for this important post. I will add that both the Harvard Law Review and the Yale Law Journal argued that the Fifteenth Amendment was void, or at least so unwise as to be justifiably ignored. Arthur W. Machen, Jr., Is the Fifteenth Amendment Void?, 23 Harv. L. Rev. 169, 178 (1910) (; John R. Dos Passos, The Negro Question, 12 Yale L.J. 467, 472 (1903)(

Al Brophy

Really interesting, Jack -- as usual you're informed me of things I didn't know. And I now realize that there's an interesting story to JR Dos Passos, the father of the better-known John Dos Passos. Yet another inter-generational story, where the parent and child are very different in views.
Closer to the time of Allen Johnson's article, the Virginia Law Review (and Michigan, too) stood in favor of sterilization. And in 1921 -- a little aside here -- the Harvard Law Review ran an article on the occult and law (or maybe it was fortune tellers and law, something like that).

Matthew Reid Krell

Is it fair to ascribe these arguments to the journals in which they appeared? I would expect us to ascribe them to the authors. Nobody is suggesting that the National Security Law Journal should have yanked the West Point professor whose name I'm forgetting's article because they didn't want the arguments to be theirs (or at least, nobody should be suggesting that); the real argument was that the article was tripe, and deserved to be published nowhere. I wonder if ascribing these views to the journals rather than the authors lends them legitimacy.

Speaking substantively to the matter in the post, I wonder how much of this fits into the critical ideational development that King and Smith describe as the new racial rhetoric.

Al Brophy

Actually, I think it makes a lot of sense to judge a journal by what it publishes. The editors at YLJ selected this article; they lent their good name to it; they legitimized the thesis by publishing it. And, perhaps, their reputation was also enhanced by this. It's been cited a bunch, including fairly recently.

I think it's important to understand the relationship between Johnson's thesis and the intellectual support he gave to the Jim Crow era. Just to take a look around the country in December 1921. In that month, victims of the Tulsa riot were living in tents and struggling to stay warm six months after that tragic riot. The House of Representatives was debating the Dyer Anti-Lynching bill and some members of Congress provided defenses of lynching. In New Haven there was a more genteel and academic exploration of the memory of slavery. Johnson subtly criticized the abolitionists and the historians who'd defended them by suggesting that the Fugitive Slave Act was constitutional. (In the essay I go through way Johnson was wrong on some of his analogy to the post-war administrative state as a justification for the act. Pretty interesting story there.) Johnson's defense sought to bolster the case for reconciliation between North and South, which worked to the detriment of African Americans.

In a separate note, very much looking forward to hearing your paper at the Duke conference on the present and future of Civil Rights conference in a week and a half.

Derek Tokaz


I agree that it makes sense to judge a journal by what it publishes, but not that it should be judged based on the substantive positions argued. Instead, I think it makes sense to judge them based on whether their articles are well-researched and well-reasoned.

There's a lot of negative consequences that come from using law journals as a political tool and right-think filter.

Al Brophy

My primary interest in Johnson and his article in the Yale Law Journal are as a gauge of the ideas of people in power in the 1920s, not criticism of either of them. Johnson was a product of his time -- and actually produced a lot of important scholarship, leaving aside for a moment this piece, which I think made some substantive errors (as well as promoting an ideology that held down African Americans). I think it's important to understand the many (and often forgotten) ways that those in power mocked the ideas of the abolitionists, then blamed them for the Civil War, and later depicted Reconstruction as an era of corruption. Such interpretations lent support to the Jim Crow era and its disfranchisement and segregation in housing, jobs, and schools. (I think the defenses like this are more the product of Jim Crow thinking than the causes of them, but my essay is not about which way the arrows indicating influence pointed.)

However, just because I'm not terribly interested in assigning blame to individuals (or institutions for that matter), why shouldn't we judge a journal based on what they publish? There were people at the time who realized that an attempt at reconciliation of North and South at the expense of the formerly enslaved and their descendants was wrong. I think it's a mistake to give a complete pass to the Yale Law Journal. They were part of the defense of something we now realize is wrong, and that some people at the time understood was wrong, and I think that's part of the story.

Brian Frye

This is a really great post & paper, thanks! I think the HLR article you mentioned is "Psychic Phenomena & the Law," available here:

[Thanks for the kind words -- and, yes, that's the article I was thinking about. AB]

Derek Tokaz


Are there ideas that you believe current law journals should not publish because they're defending something that is wrong?

For instance, if a professor were to write a well-reasoned and researched paper defending the sole-investigator model for campus disciplinary proceedings, ought a journal to reject the paper simply for being on the wrong side of the issue?



IMHO, a historian who relates every issue to others filtered beyond recognition thru the lens of a heavy ideology (whether his own, or that of a political movement) is not truly engaging with “history”: instead, he is engaged in a constant effort to prove a point, as a lawyer might in court, by selecting out the facts that support his views and ridiculing those that don’t.

Of course, all history is political. But, when a “historian” selects as examples of those points that do not support his views only objects that he subjects to derision and opprobrium, then, IMHO, the work can no longer be called that of a “historian.” This is more like Winston’s job.

IMHO, a case in point is your piece excoriating the Johnson piece. The quibbles you had with his analysis were not material in my view, except, perhaps with respect to the habeas issue: and in that, you not only failed to mention Lincoln’s actions, but appeared to attack a piece that did (forgive me if this latter statement overlooked some part of your paper, which I read quickly).

Al, you are a great scholar and I believe an honest intellectual engaged in a laudable effort most of the time. But you sometimes appear to be engaged in polemics when it comes to certain issues.

You and I once debated about the fact that I viewed your refusal to praise the “all white” courts that reversed the conviction of an accused murderer TWICE (including the Supreme Court) as a bit prejudiced; further, I believed that your refusal to admit that perhaps the defendant was in fact guilty was not based on fact, but rather, on ideology and again, prejudice (you were quite willing to judge all the courts and all the jurors as racists).

Your clear outrage about the evils of slavery and its aftermath is well-taken: and, there are plenty of facts to keep you busy for as long as you care to be expressing that outrage.

But your fulminations, again IMHO, should remain grounded in fact, not selective and often unfair imputations of the politically correct views of these times to actors in the past. This sometimes comes across as a one-sided and sometimes obviously unfair pov; sometimes, it comes across as sort of ridiculous!

You say that anyone who said in the Yale Law Journal sixty years after the Civil War, that the Fugitive Slave Act was “constitutional” was “part of the academic re-writing of the history of the eras of slavery and Civil War, which portrayed the south in a positive light,” and that we should “ judge a journal based on what they publish[ed].”

Really? What, exactly, is that judgment?

Matthew Reid Krell

I'm looking forward to your comments as well; I just hope that the conference provides Powerpoint. Otherwise, the whole presentation is likely to be somewhat anticlimactic.

I get your argument that the editors are as responsible as the author; and I understand the reputational issue. But I wonder if as activists there is a helpful argument to be had in stripping the journal's reputation from the odiousness of the ideas. As you say about Johnson himself, the editors were "products of their time," and so I wonder if it does more good to the cause of racial reconciliation to say, "That's not how the Yale Law Journal operates today, and it's not how they should have operated in December 1921," than to say something more along the lines of, "What do you expect from a bastion of white male privilege like the Yale Law Journal in 1921?"

And let's be clear: I'm not criticizing your arguments regarding Johnson's position in the academic discourse of the time. For one thing, I don't know enough to criticize it intelligently. My criticism, to the extent that I have one, lies with the (possibly unintended) implication that our judgment of these journals today should be colored by the behavior of a long-dead editorial board. I'll grant path-dependence as a factor, but I can't imagine that even the longest reasonable lag would show a significant influence between modern editorial decisions and eighty-five-year-old boards.

I'm more than happy to be wrong, of course; and would be delighted to talk about this more next week in person.

Al Brophy

So much to talk about; thanks for everyone for their comments -- critical as they are -- because this is convincing me that there's a lot to talk about here.

Derek, there's room for plausible but ultimately unconvincing defenses. Johnson was stretching to make a political point that tended to subordinate African Americans and vindicate slave-owners. That this was given a prominent place tells us something about the ideas of people in power.

anon, thanks for the kind words (mostly) about my work. Really appreciate them. One small point, then a major one. I thought my use of Toumey was the most telling criticism of Johnson. There the Supreme Court decided (shortly after Johnson's article) exactly the opposite from his argument and in favor of one of the key points made against the Act by anti-slavery advocates. Habeas is interesting, too -- but maybe not as 100% clear.

As to your defense of the Oklahoma legal system in the Jess Hollins case, I'm going to respond to your critique that my ideology causes me to criticize too harshly the Oklahoma legal system by saying that I think your ideology prevents you from acknowledging the gross unfairness in that case. Remember, the U.S. Supreme Court had to intervene after there was a failure to have an integrated jury pool; and Hollins ended up dying in prison. There's no triumph of justice there. Your pressing me on this caused me to look further into it and I appreciate the encouragement because, holy cow, is there some important material in there. I'm looking forward to having a chapter on that in Reading the Great Constitutional Dream Book. (Along with some on the Oklahoma courts' approach to restrictive covenants, which is more ambiguous, even pro-Civil Rights, at some points but not all.)

Now the major point, as to Johnson's article: this was an important and much-cited article that defended a Jim Crow interpretation of the era of slavery in a prominent journal. This was not an obscure piece in a journal that no one read at the time or since. And just to be clear, Johnson started the article by talking about scholarship that replaced the heated passions of Northern and Southern partisans. That is, he was writing as part of the reconciliation. (And as I note later in the essay, this was a long-standing theme with him -- his readings on constitutional history referred to Lincoln's despotism.)



I appreciate your response. A few words in rejoinder!

The rule in Tumey v. Ohio could not materially discredit Johnson's overall analysis of the constitutionality of the FSA in my view. Was this the incentive to rule in favor of rendition for a bribe of 5 dollars? That seems a bit less significant to me than other, deeper critiques.

Anyway, that was not my point. My point was you faulted Johnson's view on the habeas issue without mentioning Lincoln, and in fact, seemed also to have lambasted a piece that appeared to rightly do otherwise (as I recall). My point was that you seemed too quick to be critical of Johnson's position on habeas while accepting a far worse position in a different context (dismissing contra authorities too boot)!

As for Jess, you and I still are speaking past each other. I did not "defend the OK legal system." I praised the all white appellate court, and the all white Supreme Court, that reversed two of his convictions. Why is it that you have consistently and repeatedly refused to admit that all white appellate courts did right by Jess? It is incredible! Is it because every white person must be a racist?

Al, you seem unable, to this day, to admit that, if the convictions were wrong, then it was the all white appellate courts, including the Supreme Court, that were right - and just. Your refusal to just say so, after perhaps a dozen requests, is so telling: you seem perfectly content to dwell on the disease, but won't admit that fair minded persons worked to effect a cure - because the doctors were white.

And, in the end, the third conviction (the second by a jury) stood. You also appear to adhere to your view that the jurors were all racists, because otherwise, it seems, you believe that the innocent Jess would have been acquitted. I doubt very seriously you can prove his innocence *just as I can't prove his guilt*, and your refusal to admit that it is highly unlikely that every juror voted solely out of racial animus is circumstantial evidence of a prejudiced view of the jurors (was the second jury all white?).

Finally, you elide the most question most relevant to your post.

You say that anyone who said in the Yale Law Journal sixty years after the Civil War, that the Fugitive Slave Act was “constitutional” was “part of the academic re-writing of the history of the eras of slavery and Civil War, which portrayed the south in a positive light,” and that we should “ judge a journal based on what they publish[ed].”

Really? What, exactly, is that judgment?

Derek Tokaz


Is the problem that he was using a law article to make a political point? Or that his political point was on the wrong side of the debate?

If the problem is just that his point was on the wrong side, would you be okay with journals rejecting articles on similar grounds today?


Al seems to fault Johnson because he "argued that the Fugitive Slave Act of 1850 was constitutional" sixty years after the end of the Civil War.

Enrique Guerra-Pujol

What a fascinating chapter of post-Civil War legal history. I liked Al's short essay, especially how it situates Johnson's 1921 paper with the events occurring at the same time, such as the Tulsa riots.

Al Brophy

Enrique, thanks for the kind words.

As to the Jess Hollins case, my indictment is not just the jury, or probably even primarily the jury. From the start Hollins was grossly mistreated -- he didn't have a lawyer; pled guilty within a few days of arrest after being told that the mob was out to get him; the court held a special evening session to take his guilty plea because the judge was concerned that there'd be a repeat of the Tulsa riot if Hollins wasn't sentenced immediately and taken out of the county. The Oklahoma Court of Criminal Appeals overturned this guilty plea, then sent it back for a trial, from which African Americans were excluded from the jury pool. The U.S. Supreme Court overturned that because of the tainted jury pool and at a retrial, Hollins was sentenced to life imprisonment. He didn't appeal this because of fear that the next sentence could be worse. He died in prison. Jim Crow "justice" in operation. Whether Hollins was guilty or not -- and there's reason to doubt his guilt -- the process was rigged against him.

As to Johnson's article, it's a story now because it was defending one of the most odious parts of the slave system -- and gets that story wrong, at least in significant part. And thus it is an illustration of the early 20th century scholarship that defended the south and supported reconciliation.

There's certainly room for debating the merits of things like whether Dred Scott was correctly decided. As I note in the essay, Mark Graber's fabulous book, Dred Scott and the Problem of Constitutional Evil, goes back to examine that issue. But Mark isn't motivated by the spirit of reconciliation that joins North and South and abandons African American rights. He didn't write that Dred Scott was correct under the law of the time [there's something to debate here, but I'll leave that for another time] as part of propping up the Jim Crow system.

There are a couple of important points to my essay -- some of it is that Johnson's wrong substantively. But I think more important than that, is what it says about the academic defense of the era of slavery. While some people at the time -- like DuBois -- were challenging the Jim Crow system, others (like Johnson and his Yale colleague UB Phillips) had a different vision. The important story here, I think, is that powerful and respected people in the academy, from professors to students making editorial decisions, believed in this view of history.

One of the things that this discussion is pointing is just how controversial the study of race and history is. I appreciate that work that everyone's put into this discussion.



How studiously you have elided the most salient questions!

the process was rigged against Jess. Yes, perhaps, at the trial level. Why, oh why, can't you laud the all white appellate courts that held in his favor, reversing TWO convictions on grounds that you support? WHy can't you even imagine that two juries found Jess guilty, and that it is possible that not every white person on those juries was a racist (i.e., perhaps, and we underline perhaps, he was guilty and your whole premise that he "died in prison" needlessly is simply based on conjecture, wishful thinking, prejudice, and ideology.)

YOu say the process was rigged, but won't acknowledge or admit that he got two convictions reversed, including one by the all white Supreme Court. Were those "processes" rigged against him too? All you do is repeat the bad: you won't admit the beneficial, and it seems this is because you are wedded to the notion that Jess was innocent and racists were responsible - top to bottom - for his ultimate and third conviction. Stunning.

As for the Johnson piece, wow, now you really are moving the goal posts to avoid a simple truth. Thank you for acknowledging the US Constitution had something to do with the way the USSCT ruled on the FSA. You objected to Johnson because he "argued that the Fugitive Slave Act of 1850 was constitutional" sixty years after the end of the Civil War. So, at least now we have narrowed the issue.

Now, it appears that for you it is all a matter of timing. It is the "sixty years after the Civil War" part of it, not the ruling on the merits (which I understood to be your objection in the piece I read quickly, linked above.)

So, your point appears to be that we should now say that Johnson should have written that the FSA was "Constitutional" because a Civil War and amendments to the Constitution changed the analysis. Or, perhaps we should conclude, as you appear to conclude, that Johnson shouldn't have written at all, and because he did, he was a despicable tool of racists engaged in a "defense of slavery" because he dared to say that the decision was correct when it was decided. All this because to have said otherwise was, in your opinion, politically disadvantageous to an ideology of reconciliation that you seem to believe was in play and undermined by Johnson's piece.

Really? I suppose, as narrowed, your point about the politics of it all (you've abandoned, it seems, excoriating Johnson on the merits) might be at least tenable in some narrow sense.

But, you also have refused, now repeatedly enough to establish your reluctance, to back up a slam on the Yale Law Journal as well. You have said, and doubled down on this claim, that we should “ judge a journal based on what they publish[ed].”

Again. What, exactly, is that judgment? Racists and defenders of slavery, all?



"So, your point appears to be that we should now say that Johnson should have written that the FSA was "unconstitutional" because a Civil War and amendments to the Constitution changed the analysis.

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