The Faculty Lounge

“Is there anything more to learn from The Federalist Papers?”

The following is a guest post by Christian Fritz, Professor Emeritus at the University of New Mexico School of Law:

As every student of American constitutional history and political theory knows, the literature on The Federalist Papers is enormous. Given the dozens of editions with scholarly introductions, countless collections of essays on the meaning of Publius, and the ubiquitous citations to Federalist essays by the courts and researchers, it would seem likely that the answer to the question posed in the title would be no.

Despite their exhaustive treatment, something crucial has been overlooked in the famous essays: an articulation of a constitutional tool that would emerge in practice in the hands of state legislatures after the ratification of the Constitution and one that has played an important part in thinking about the proper balance of authority between the federal government and those of the states.

In Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023), I trace the genesis of that constitutional tool to several essays by both James Madison and Alexander Hamilton in which they described—without using the term interposition—a mechanism that state legislatures might employ in their role as monitors of the federalism created by the Constitution to ensure that the new national government would not overreach its constitutional authority and intrude upon the powers retained by the states. What began as a debate-like response to opponents of ratification, eventually took on a life of its own, producing a tradition of monitoring federalism that had a vibrant life in American constitutional history until and during the Civil War and even for a time thereafter, before suffering a demise.

The Constitution’s shared sovereignty between nation and states created a dynamic federalism that stimulated continuous debates over the balance of power, including debates over slavery and taxation. Thus, state interposition was fundamental in shaping the American political conversation about our constitutional rights and illustrated a strength and not a weakness of the framers’ constitutional design, inviting each generation to consider what the appropriate constitutional balance should be. 

Monitoring American Federalism demonstrates how states played a crucial role from the beginning of the republic in assessing the equilibrium of federalism within the American constitutional order. Unlike judicial review, interposition did not have immediate constitutional effect, but was designed to work through political pressure in attempting to maintain an equilibrium between the national and state governments by enabling state legislatures to express and coordinate their discontent over federal laws and measures. State legislatures would sound the alarm about a perceived constitutional overreach, pass interposition resolutions, and share the resolutions with other states to exert maximum political pressure on whatever branch of the federal government was responsible for the overreach.

In its use before the Civil War, interposition by states involved the conviction that elected officials, especially state legislators, but also individual citizens, juries, and the press, could properly scrutinize any expansive assertions by the federal government, not simply the Supreme Court. Indeed, state interposition would be used to oppose many perceived threats, including the Alien and Sedition Acts, the War of 1812, federal tariffs, internal improvements, and pro-slavery laws.

Interposition emerged as a response to critics worried that the Constitution’s grant of national powers would obliterate state authority. This early interposition formed an institutional and intentional way to acknowledge divided sovereignty under the Constitution and to preserve the equilibrium of federalism. Properly understood at the time, interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority. Moreover, interposition was not a claim for the constitutional independence of state legislatures.

Interposition as a constitutional tool became distorted with the rise of South Carolinian John C. Calhoun’s claims during the Nullification crisis of the 1830s. Historians today describe interposition as inherent in the states’ rights political tradition of defending slavery, which inexorably led to Southern secession and Civil War. This narrative ignores the practice of interposition before its appropriation by nullifiers and those invested in slavery who claimed the right of individual states to defy national laws and decisions of the Supreme Court. Nonetheless, there was a great divide between those who advocated for the rights of state legislatures to question the federal government on any constitutional issue through interposition—and those who supported nullification. The gulf between the two invocations of state interposition was underscored in the 1830s, when many of those who embraced interposition rejected nullification.

Fall Facebook/OKCupid & the Future of Research Tour

I’m participating in several public events this fall pertaining to research ethics and regulation, most of them arising out of my recent work (in Wired and in Nature and elsewhere) on how to think about corporations conducting behavioral testing (in collaboration with academic researchers or not) on users and their online environments (think the recent Facebook and OKCupid experiments). These issues raise legal and ethical questions at the intersection of research, business, informational privacy, and innovation policy, and the mix of speakers in most of these events reflect that.

The first, and most accessible, is a “tweet chat” today, from 1-2 p.m. EST, on “Research Ethics in a Modern World.” It’s being sponsored by the Milken Institute’s FasterCures, “an action tank driven by a singular goal — to save lives by speeding up and improving the medical research system.” Other participants are Susannah Fox (RWJF's first Entrepreneur in Residence), John Wilbanks (a very interesting guy whose work, largely on empowering patients and research participants to share their data in ways that are consistent with their values, and bio defy concise description), and Margaret Anderson (FasterCures’s Executive Director).

Likely discussion topics include the impact of social media on research and research ethics; the ethics of A/B testing and similar behavioral testing of user environments (i.e., websites) by corporations, and who should be empowered to conduct research risk-benefit analysis (patients/participants? scientists? legal systems?). You don’t need to have a Twitter account to read the conversation, either as it unfolds in real time or at any time thereafter. Just point your web browser to this URL. But to ask a question or otherwise participate in the discussion (which is encouraged!), you do need a Twitter account.

On October 22, I’ll be at Harvard Law participating in a panel discussion of the Petrie-Flom Center’s latest anthology, “Human Subjects Research Regulation: Perspectives on the Future,” with Glenn Cohen, Holly Fernandez Lynch, and Barbara Bierer.

On December 4, I’ll be at Colorado Law participating in a day-long conference, “When Companies Study Their Customers: The Changing Face of Science, Research, and Ethics,” sponsored by the Silicon Flatirons Center for Law, Technology, and Entrepreneurship and the Tech Policy Lab at the University of Washington. Other participants include law profs Paul Ohm, Ryan Calo, and James Grimmelman, Princeton Center for Internet Technology Policy Director Edward Felten, FTC Commissioner Julie Brill, and UT-Austin psychologist Tal Yarkoni.

On December 5, I’ll be in Baltimore participating in a Meet the Authors lunch event at the annual PRIM&R conference with the editors and several other contributors to the aforementioned book.

And on December 6, I’ll be participating in a PRIM&R session on “Manipulating Emotions on the Internet: The Cases of Facebook, OkCupid,” with OHRP Director Jerry Menikoff, privacy and Internet research ethics scholar Michael Zimmer, and Berkeley Director of Research Subject Protection Rebecca Armstrong.

On April 13, I’ll be giving a seminar at Wharton in the Legal Studies and Business Ethics Speaker Series, in which I may present something related to these themes.

Many thanks to the organizers for including me in these very interesting events (interesting least of all due to my inclusion, needless to say), and I hope to see some readers at some of them.

The Geography of Legal Thought

Each year I spend the first few minutes of my Civ Pro class, as I expect so many other profs must do, showing my students the death cage match from Mad Max Beyond Thunderdome. The battle between the “man with no name” and the baby-faced giant, all to decide who really owns a vehicle, sets up a lively discussion about procedural justice and modes of dispute resolution.

The second day I turn away from no-holds-barred adversarial battles and towards topics that are less traditional for Civ Pro classes. For reasons that at first clearly perplex my students, we take our second day in Civ Pro to discuss a book called The Geography of Thought, written by a psychology professor named Richard Nisbett. The book collects the results of decades of research by Nisbett and others, in which experiments are run on the cognitive styles of different cultures. In particular, he contrasts the cognitive style of east Asians – such as my students – with the cognitive styles of Europeans and Americans, such as myself.

The first interesting thing about Nisbett’s results is that cognitive differences are notable in very early childhood. They are in no way genetic – Chinese Americans, for example, test as Americans after a generation or two – but they are sufficiently deeply rooted in cultures that they show up before philosophies or dogmas can be taught with any sophistication.

Luis Chiesa, "Substantive Criminal Law: Cases, Comments and Comparative Materials"

Luís Chiesa (SUNY Buffalo) has published a new casebook, Substantive Criminal Law: Cases, Comments and Comparative Materials (Carolina Academic Press 2014).  Here is a description from the publisher's website:

The strength of this casebook is the uniformity of each chapter’s structure, which makes it easier to approach the chapter’s topic systematically. Each chapter begins with several sections that discuss the applicable law, followed by a separate section that discusses the Model Penal Code’s approach to the topic. This is then followed by a “Comparative Perspectives” section that encourages students to think about alternative ways of approaching the topic. The richness of the comparative materials used in the casebook is unmatched by its competitors, as many of the materials have been translated by the author. Finally, each chapter ends with a section titled “Scholarly Debates” that introduces the student to some of the philosophical discussions related to the topic.

Professor Chiesa was my colleague at Pace before he moved to SUNY Buffalo, and so I knew of the idea for this book and heard about its progression -- so glad to see it in print!

Robert Post on Who Owns America's Past

Belated congratulations to Robert Post on his re-appointment as dean at Yale Law School.  I want to talk now about a book by another Robert C. Post.  This is a book that looks terrific: "Who Owns America's Past?  The Smithsonian and the Problem of History."  Cribbing now from John Hopkins University Press' catalog:

In 1994, when the National Air and Space Museum announced plans to display the Enola Gay, the B-29 sent to destroy Hiroshima with an atomic bomb, the ensuing political uproar left the museum's parent Smithsonian Institution entirely unprepared. As the largest such complex in the world, the Smithsonian cares for millions of objects and has displayed everything from George Washington's sword to moon rocks to Dorothy's ruby slippers from The Wizard of Oz. Why did this particular object arouse such controversy? From an insider's perspective, Robert C. Post's Who Owns America's Past? offers insight into the politics of display and the interpretation of history.

Never before has a book about the Smithsonian detailed the recent and dramatic shift from collection-driven shows, with artifacts meant to speak for themselves, to concept-driven exhibitions, in which objects aim to tell a story, displayed like illustrations in a book. Even more recently, the trend is to show artifacts along with props, sound effects, and interactive elements in order to create an immersive environment. Rather than looking at history, visitors are invited to experience it.

Whenever I think about the Smithsonian I also think about Smithson's will.

The image is from Chicago's Midway Airport.

Coxsackie

I'm reading Joseph Spillane's beautifully written and haunting book Coxsackie, which is nominally about a reformatory for young male offenders but is more generally about the trajectory of prison reform from the New Deal to the Age of Reagan.  Damn it's compelling, though unsurprisingly depressing.  It's just out from Johns Hopkins University Press.  If you're interested in the historical roots of our prison system, you ought to spend an evening with this book.  Very little talk of Foucault in here, but a lot of compelling writing about our nation's hopes for reform, the grim reality of prison life, and the cratering of the ideal of reform.

Letters to My Younger Self

I want to mention that a powerful and moving collection, Letters to My Younger Self, is now out from Serving House Press.  It consists of letters written as part of an English class that my friend Jayne Thompson taught at Graterford Prison; they are written from the perspective of the students giving advice to themselves at a younger age, or sometimes to their children or parents.  I highly, highly recommend the volume.  The letters are powerfully and beautifully written and set loose a wide range of emotions.  You really get a sense of how the students have thought about what set them on the path they're on and how they'd try to redirect others.  Many sometimes talk about the extraordinary violence of their pasts and they in no way are making excuses or minimizing their violence -- but you do get a powerful sense of the humanity of the authors, which I don't think often comes through in the academic writing about the prison system in our country.

Several of the letters particularly stuck in my mind -- one is about a child who received a dog (a pit bull, as it happens) for his eleventh birthday.  He took the dog with him when he fought other children because it wouldn't run away -- as his friends did; and when he got in serious trouble a few years later and was sent away, his grandmother got rid of the dog.  The last line of the letter is "when I realized the dog was gone for good, I realized my heart was gone, too."

Another letter is about life inside Graterford, where the writer observes a flock of canadian geese flying overhead.  "Beauty knows no boundaries" is one of the writer's insights from this.

For me the most powerful is a lengthy letter by a man who stabbed and seriously wounded a rival gang member, then was attacked by the rival gang.  The man's brother was almost killed in the attack.  I can't begin to do justice to the compelling writing.  You should check it out yourself -- and I highly recommend this and I hope you'll pass this recommendation along to your favorite librarian, too.

Foreign Corrupt Practices Act

Readers with an interest in the FCPA may wish to add a just-published book to their professional library:  The Foreign Corrupt Practices Act in a New Era, written by Southern Illinois law professor Mike Koehler.  You can find details on the book here. 

Summer Reading: The Laws of Late Medieval Italy

I would like to thank Faculty Lounge for letting me blog here for a time.  My first post deals with the first book on my summer reading list:  The Laws of Late Medieval Italy by Mario Ascheri.  Though it was released in 2000 in Italian, the English translation became available last year by Brill Press.  It is written for someone generally unfamiliar with the late middle ages, providing details concerning the political, legal, religious, and intellectual currents of the time.  Ascheri does a wonderful job engaging the reader, providing useful footnotes for further study.  Many of the legal terms and forms (e.g., notatires) we still use today are derived from this era in legal history, with this book providing a concise means to access that material.  I will be publishing a more thorough book review in the Sixteenth Century Journal later this year. 

Alan Taylor Wins Pulitzer Prize in History

Congratulations to University of Virginia history professor Alan Taylor on the Pulitzer Prize in History for 2014 for his expansive volume, The Internal Enemy: Slavery and War in Virginia, 1772-1832.  The prize was announced yesterday.  Cribbing now from W.W. Norton's website:

This searing story of slavery and freedom in the Chesapeake by a Pulitzer Prize–winning historian reveals the pivot in the nation’s path between the founding and civil war.

Frederick Douglass recalled that slaves living along Chesapeake Bay longingly viewed sailing ships as "freedom’s swift-winged angels." In 1813 those angels appeared in the bay as British warships coming to punish the Americans for declaring war on the empire. Over many nights, hundreds of slaves paddled out to the warships seeking protection for their families from the ravages of slavery. The runaways pressured the British admirals into becoming liberators. As guides, pilots, sailors, and marines, the former slaves used their intimate knowledge of the countryside to transform the war. They enabled the British to escalate their onshore attacks and to capture and burn Washington, D.C. Tidewater masters had long dreaded their slaves as "an internal enemy." By mobilizing that enemy, the war ignited the deepest fears of Chesapeake slaveholders. It also alienated Virginians from a national government that had neglected their defense. Instead they turned south, their interests aligning more and more with their section. In 1820 Thomas Jefferson observed of sectionalism: "Like a firebell in the night [it] awakened and filled me with terror. I considered it at once the knell of the union." The notes of alarm in Jefferson's comment speak of the fear aroused by the recent crisis over slavery in his home state. His vision of a cataclysm to come proved prescient. Jefferson's startling observation registered a turn in the nation’s course, a pivot from the national purpose of the founding toward the threat of disunion. Drawn from new sources, Alan Taylor's riveting narrative re-creates the events that inspired black Virginians, haunted slaveholders, and set the nation on a new and dangerous course.

The book stretches from the days before the Revolution to the Nat Turner rebellion, but it is focused around the War of 1812 and the efforts of the British to undermine the United States by, among other things, offering freedom to enslaved people.  The book concludes with a story about the compensation that some of the owners eventually received in the 1820s for the losses of their slaves.  One plantation owner received something like $18,000 for the slaves who escaped his Virginia plantation.  He wrote his lawyer (I think it was William Wirt) to express his gratitude at how the money saved him from financial ruin and from the need to sell his remaining slaves.  This is yet another example of reparations for slavery in our history, just not the kind we usually think about these days.  That is, it's about reparations for slave-owners.  This also puts into some context the claims made by the slave-owners in Southampton, Virginia, who sought legislative compensation for the slaves killed as part of putting down the rebellion.  I have some more to say about this in the Nat Turner trials.

I hope to have some more to say about this shortly.  And I also hope that some important law journal will review this -- I think there's a lot here that's relevant to legal history.  The image is of the Monumental Church in Richmond, Va.  The fire that the church commemorates figures early in Taylor's book.

Black Power in the Prison Library

In honor of National Library Week, perhaps it's time to reprise a post from a while back on a list of books that prisoners wanted added to their library:

The Patriot Act’s ability to require librarians to disclose the books that individuals have borrowed gives us a lesson in the importance of books.   The FBI’s interest in who is reading what is only the most recent evidence that books are both important ways of transmitting ideas and important signifiers of which ideas readers find important.  (I know there's some question about the number of times that libraries have been asked to disclose lists of what individuals have borrowed and I hope to learn a little more about this.)  It is not just law enforcement that is interested in reading habits, however. 

We are hearing a great deal about the project of “the history of the Book” these days.  It aims to understand the role of books as vehicles of change: how do books contribute to changes in society, how do they help to create and sustain identity.   Sometimes historians look at books, to measure a culture.  What does Invisible Man say about the culture of the United States on the eve of Brown?  What do Booker T. Washington’s Up From Slavery and W.E.B. DuBois’ Souls of Black Folk say about Jim Crow?

At other times, historians draw inferences about people from their libraries.  This post talks about a list of about 120 books on the "black experience" that Judge Don Young ordered to be placed into the Marion, Ohio prison library back in 1972,  Taylor v. Perini, 413 F.Supp. 189, 215-19 (D.C. Ohio 1976).  What interests me about the list is its potential for mapping the sources of identity in the late 1960s and early 1970s.  What, then, are the books that the judge ordered added?  More below the fold.

"Things I've Learned From Dying" (David Dow)

I realized that it's been a while since I read a law-related book outside of texts, scholarly articles etc, so I picked up David Dow's "Things I've Learned From Dying" on the recommendation of some of my colleagues. This is not a book to be taken lightly as it reflects on death from a number of perspectives - the death of Dow's father-in-law from cancer, deaths of inmates he has represented on death row, as well as the death of a beloved family pet. The themes are heavy. Nevertheless in Dow's capable authorial hands the book is difficult to put down.

It's interesting that the sub-title of the book is "a book about life" because it explores the themes in our lives that matter the most - our relationships with those closest to us, how we (and they) deal with stress and impossible challenges, and how we can be our best (and sometimes our worst) selves in managing the most difficult events we face. While most of us do not deal on a daily basis with the kinds of issues Dow deals with in his clinical practice, we do deal with the work/life balance, we struggle to keep everything in some semblance of perspective, and to protect and support those we love through the inevitability of sickness and death.

Whatever your perspective on the more political themes in this book, it's not ultimately a book about politics. It's a book about people, in which Dow shares raw and honest, and at times very personal, reflections from his own life. I would highly recommend this book to lawyers and non-lawyers alike. It's a challenging memoir, but I found it very accessible and valuable, filled with insights that I'm sure will stay with me for a long time.

Like Blacks after Slavery

In the South in the decades following slavery, everyone appreciated that blacks were denied the opportunity to fully compete in the economic marketplace and denied the full value of their labor. That system was allowed to carry on, however, because it harmed blacks, a politically disfavored race.  Racism, that is, allowed the system to stay in place.

Something very similar is occurring in college sports.  Everyone (almost everyone?) appreciates that the so-called “student athlete” is likewise denied the opportunity to fully compete in the economic marketplace and  denied the full value of their labor.  But this system is allowed to carry on because it supposedly benefits college athletes.  Paternalism towards “student athletes,” that is, allows the system to stay in place.  The South purposefully used anti-black bigotry to protect their exploitation much the same way the NCAA is purposefully using paternalism.

A lot of the tools of exploitation between the two systems is, moreover, eerily similar as my chart indicates (I can’t prove that the NCAA actually looked to the Jim Crow south for ideas but I will be investigating that for sure).

 

Blacks	College Athletes
Anti-Enticement Statutes- employers not allowed to hire another employer's workers away.  This inhibits blacks in hunting for better employment opportunities.	Other schools  can’t poach student after he/she already signs with another school.  This inhibits college athletes in hunting for better employment opportunities.
Emigrant Agent Laws- agents not allowed to recruit labor for out of state jobs or out of   local area jobs.	College athletes cannot have agents search for economic opportunities on their behalf.
Blacks are denied  due process by biased judges, unavailable courts, etc.	College athletes do not have due process rights/ can't appeal unfavorable NCAA rulings
Blacks don't have  legal tools to remedy deceit by employer (black wage workers were often not given wages,  black sharecroppers were often lied to about about how much their crops were worth, etc.)	College athletes don't have legal tools to remedy deceit by coaches.  In high school, kids are made promises about how much playing time they will get,  being able to play certain positions, etc. that often turn out to be false.
Licensing laws: can only work in certain professions if one has a license.  Licenses were often denied to blacks.	Can't sign one's   own name or sale one's own jersey, etc. That is, have skill, can't make money   off it, because they don't have the professional designation (not sure this   is convincing)
Contract   Enforcement Laws: go through w/ agricultural labor contract or face punishment (jail).  Southern states made laws to force completion of a contract.	Contract   Enforcement NCAA rules: go through w/ contract or face punishment (sit out a   year).  Can only transfer to a particular school if coach/school allows   it.  Don’t play, lose your scholarship.    NCAA rules essentially compels service.   Schools, however,   can deny students scholarship after each year. And coaches can leave whenever   they want and take whatever job they want.
Can't vote/ Can't   participate in the making of rules/ Lack of due process	Can't participate   in the making of rules/ No due process
Share cropping,   tenancy, wage earners = largely poor	Tuition,   books, room and board = largely poor
White Solidarity   & Collusion to hold down black wages --> increase their own profits   and solidify white supremacy	School solidarity   & Collusion to limit the money given to amateurs --> increase their   own profits and solidify the dominant position of their schools
One Party   Dominance --> Southern Democrats	NCAA
Both learning   marketable skill/ agricultural skills but not able to profit much from them   at the time.  Blacks - Agricultural	Sports/education
Largely denied   access to unions	Can’t unionize

Also, I think critics of the NCAA should discard the slavery analogy. So, in full,  in my new book project Like Blacks after Slavery: How the NCAA Reproduced the Economic Exploitation of the Jim Crow South (still not sure about that title) I want get rid of the slavery analogy and offer up a much better one:  NCAA = the Jim Crow South’s economic regulation of blacks.

Surprisingly, no one has made this argument before as far as I can tell. And I’ve been doing a lot of research into it.

Like Blacks after Slavery: How the NCAA Reproduced the Economic Exploitation of the Jim Crow South

I turned in the final version of In Defense of Uncle Tom: Why Blacks Must Police Racial Loyalty on February 7th.  I’m really happy with it and I think many will be interested to read it.  Cambridge University Press will publish it in Sep./Oct., I think.  I’ll be talking more about it then.

Now I’m turning my attention to my next book project Like Blacks after Slavery: How the NCAA Reproduced the Economic Exploitation of the Jim Crow South (working title; not sure it's any good).

As the title implies, I want to draw parallels between various Jim Crow era laws/economic regulations/norms—anti-enticement statutes, emigrant agent laws, inability to participate in the making of rules, lack of full due process, inability to participate in unions etc. –and NCAA regulations.  I think similarities abound.

It’s all very fluid right now.  But, I think my basic thesis will be as follows.

The NCAA and its member schools, like the Jim Crow South, fueled by solidarity (school solidarity vs white solidarity), colluded to install regulations (Jim Crow era economic laws/norms vs NCAA regulations) that enabled them to economically exploit a class of individuals.  The NCAA created the designation “student-athlete” and a surrounding mythology that caused to people excuse the various ways in which the NCAA prevents collegiate athletes from participating fully in the free market system.  The Jim Crow south targeted blacks, and because of racism, many excused the various ways the South prevented blacks from participating fully in the free market system.  

Forbidding agents from talking to college football players is fine; they’re “student athletes.” Stopping agents from coming into the South to hire black workers is fine; they’re “black.”

Of course, life for blacks in the Jim Crow south was far worse than that experienced by college athletes.  But I think the economic exploitation models between the two are quite similar and viewing it through this prism reveals the immorality flowing through the veins of NCAA.  Also, I want to argue against the slavery analogy commonly deployed by  scholars and average folk alike.   It's inapt and many reject it summarily.   And thus, I think the analogy often hurts, rather than helps, the cause of college athletes.

The Thrilling Nature of Legal Academia?

On March 1, the sequel to Charles Rosenberg’s legal thriller Death on a High Floor — Long Knives — will be published. Although I’ve not read either book, Death on a High Floor apparently involves the death of a Big Law partner — and the trial of a second partner, Robert Tarza, for his murder. The protagonist is associate Jenna James, whose “untested trial skills” are the only thing standing between Tarza and prison.

Rosenberg, a graduate of Harvard Law, “has taught extensively as an adjunct law professor, including at Loyola Law School in Los Angeles (where he teaches the course "Law and Popular Culture"), the Loyola Law School International LLM Program in Bologna, Italy, the UCLA School of Law, the Pepperdine School of Law, and the Anderson Graduate School of Management at UCLA.” And so naturally, for the sequel, he’s moved his feisty heroine to the (thrilling?) halls of legal academia. From the prologue and first chapter:

Five years [ago], I had decided, let’s face it, on a whim, that I was done with Big Law. And so, aided by a bit of luck and the dwindling memory of my fifteen minutes of fame from saving Robert Tarza’s butt from San Quentin, I left my law firm, Marbury Marfan, and transformed myself—poof!—into a tenure-track law professor at UCLA. I still worked hard, but I no longer spent my nights preparing for trial or my days battling the jerks, most of them of the male persuasion, who seemed to appear like clockwork on the other side of my cases.

. . . Another way to put it is that after lunging at every carrot dangled in front of me from the age of five—the need to ace grade school, stride down the aisle as the valedictorian of my high school, nail acceptance to an Ivy League college and then go on to Harvard Law School and make the law review—I finally had a life instead of a résumé.

Okay, that’s not quite true. There was still one last carrot dangling out there. I was up for tenure. It was November, and the decisions would come no later than April. But with four well-received law review articles published in less than four years—two on civil procedure and two on admiralty law—I was pretty confident I had that final carrot nailed, too, if you can nail a carrot.

Teaching and writing about civil procedure, with eight long trials under my belt, was a natural for me. Teaching admiralty law had come as a surprise; I’d never even been on a sailboat prior to arriving at UCLA. But fate twists your life in funny ways. The week before classes started for my first year of teaching, Charles Karno, who looked the picture of health and had been teaching the admiralty course for more than twenty years, dropped dead of a heart attack while running a half marathon. The dean had prevailed on me to teach it. “You can learn it along with the students,” he said.

I did and found I loved it, and particular liked teaching the law of salvage—who has what rights to ships, and everything in them, when they sink to the bottom of the sea. In order to live the law and understand it better I had even spent the past summer at sea as a lowly deckhand on a treasure salvor ship. And now, instead of my formerly pasty-skinned self, I was bronzed and, well, if not ripped, at least the most toned and buff I’d ever been in my life. . . .

James then heads off to a meeting with “Primo Giordano, a student in my Law of Sunken Treasure seminar,” whom she describes as “nice to look at,” “tall, dark and chunky handsome,” with “a terrific smile.” Alas, poor Primo soon turns up dead. Here’s the publisher’s description of the book:

Jenna James’s life has been smooth sailing since she left the high-powered law firm of Marbury Marfan. She’s happily ensconced as a professor at a prestigious law school, where she’s well liked by her students, coupled-up with a handsome colleague, and on track for tenure. But things take a shocking turn one morning when a student, Primo, comes to Jenna’s office seeking her advice about a treasure map he recently inherited. When Primo turns up dead and Jenna is suddenly the prime suspect in a murder investigation, everyone turns on her. Desperate for help, she calls on two old friends: Robert Tarza, her old law partner from Marbury Marfan, and Oscar Quesana, an odd-duck solo practitioner. The three race to save Jenna’s career—and perhaps her life—in this whip-smart thriller of treasure maps, murder, and law school politics.

With a Big Law partner, an “odd-duck solo practitioner,” and a tenure-track law prof at an elite school as the novel’s leads, the allegorical interpretations practically write themselves.

West Chester University Special Collections

I was really pleased to see this short piece at philly.com on the West Chester University library's special collections.  I grew up in West Chester and benefitted over many years from their libraries -- as recently as 2011 when I used an 1854 pamplet they have on the dedication of the Oaklands Cemetery in West Chester.  I did not realize that they have an early edition of Shakespeare's work -- nor did I realize how valuable they are.  (Sorry I don't have a picture of the library -- I'll fix that next time I'm home, I hope.)

Heymann, Stein, and Moreno on Disability and Equity at Work

Following up on some other recent posts on books I'm looking forward to seeing this spring (like Sarah Roth's Gender and Race in Antebellum America) I want to mention an edited volume by Jody Heymann, Michael Ashley Stein, and Gonzalo Moreno, Disability and Equity at Work.  Cribbing now from the description at Oxford University Press' webpage:

Despite international and national guarantees of equal rights, there remains a great deal to be done to achieve global employment equality for individuals with disabilities. In OECD countries, the employment rate of persons with disabilities was just over 40%, compared to 75% for persons without a disability; in many low- and middle-income countries, the employment rates are even lower. 

There are numerous reasons why persons with disabilities fare poorly in the labor market; Disability and Equity at Work is the first book to document what can be done to improve this imbalance. 

A preview is available at books.google.

Representing the Race

Over the Christmas holiday I was introduced to a local (Norfolk, Virginia) Chapter 7 bankruptcy trustee. In the course of our conversation John McLemore told me about a newly published book that featured an account of a trial held in Loundoun County in 1933 over which his grandfather had presided. The book by Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Harvard 2012) is a painstaking account of the evolution--in both the black and white communities of America--of what it meant for a black man (and later a black woman) to  "represent" his (or her) race and client in the American courtroom.

This is not a review of Mack's book (for that you can go to Al Brophy's post and embedded link here) but rather a strong recommendation that anyone interested in the saga of race relations in America should read it. Mack has read the primary sources and is a fine interpreter of the strategy and tactics of successive generations of civil rights lawyers. Nor does Mack shy away from the foibles and personal antagonism that existed among the black civil rights bar as it struggled to answer to an increasingly fractious constituency in an overwhelmingly white legal system.

Let me quote several passages from Mack's conclusion:

In the [early] twentieth century, the civil rights courtroom slowly etched itself into American memory as a place where worthy representatives of a unified minority group made claims on a society that often did not want to hear them. But, in a lesser-known story, that same courtroom also stood at the center of a debate over race and representation, as a generation of black lawyers came to court and demanded to be treated like white men--even if things were different just outside the courtroom.

Yet, as the twentieth century progressed, "others asked a different question, and inevitably turned to problem of authenticity. ... Lawyers who only a few years before had seemed like brave representatives of a repressed minority group now seemed inauthentic." Nonetheless, "a new group of black lawyers emerged as the changing politics of Washington during the Kennedy-Johnson years once more put black lawyers into a context where no one had seen anyone like them before."

And what of the twenty-first century? Here Mack's deft touch wanders as he jumps to 2008 and the election of Barack Obama. Not enough time has elapsed to let historians evaluate the contemporary meanings of racial representation in the putatively "post-racial" America. Even though Mack's leap from the 1960s to 2008 falls short, Representing the Race is a valuable resource to understand the space the practice of law provided both to seek and to enact civil rights in America.

Roth on Gender and Race in Antebellum America

I've already written about some of the books I'm looking forward to reading this spring, such as Robert Ferguson's Inferno: Anatomy of American Punishment and John W. Compton's The Evangelical Origins of the Living Constitution.  Both of those will be published by Harvard University Press in the spring.  I now want to branch out to Cambridge University Press' spring list and talk about Sarah N. Roth's expansive volume, Gender and Race in Antebellum Popular Culture.  Cribbing now from the CUP website: 

In the decades leading to the Civil War, popular conceptions of African American men shifted dramatically. The savage slave featured in 1830s' novels and stories gave way by the 1850s to the less-threatening humble black martyr. This radical reshaping of black masculinity in American culture occurred at the same time that the reading and writing of popular narratives were emerging as largely feminine enterprises. In a society where women wielded little official power, white female authors exalted white femininity, using narrative forms such as autobiographies, novels, short stories, visual images, and plays, by stressing differences that made white women appear superior to male slaves. This book argues that white women, as creators and consumers of popular culture media, played a pivotal role in the demasculinization of black men during the antebellum period, and consequently had a vital impact on the political landscape of antebellum and Civil War–era America through their powerful influence on popular culture.

I had the chance to read an earlier draft of this book and I have to say that I'm really excited to see the final version.  She talks about a lot of literature that I'd never heard of -- including some outrageously proslavery science fiction and some other really obscure work.  This will expand dramatically the sense of antebellum fictional literature.  Though Roth's interest is largely in the fictional literature of both the anti-slavery and the pro-slavery sides, I think the dramatically changing images of men of African descent can be very readily and profitably applied to the judiciary.  (The short version here is that in the 1820s/1830s enslaved men were depicted as savages by both anti-slavery and proslavery literature.  That shifted in the 1840s and 1850s as abolitionists depicted enslaved men (and other men of African descent) as people deserving citizenship.  The proslavery forces responded to that critique by accepting -- largely -- that men of African descent were not savages.  The proslavery forces replaced that with an image of enslaved people generally as happy and child-like, not vicious and rebellious.)

What interests me is that this framework correlates with what was happening in state legislatures and also in the judiciary.  I want to look closely at cases where judges discuss slaves' character -- such as cases involving torts by slaves against white people and against each other, cases invovling slaves' rights to freedom following travel in free states and because of the wills of their owners, and even criminal prosecutions.  Based on some as yet unscientific looks at judicial opinions I think that southern judges were talking in similar terms to Roth's subjects about slave personality over the period 1830 to the mid-1850s.  (And I think this follows, generally, academic thought, too.  On this I'm going to have a lot more to say right soon.)  But one thing that I notice in particular is that as the Civil War approached -- like in the late 1850s -- southern judges were talking again in dramatic terms about men of African decsent as savages.  That is, as they prepared for war the talk turned -- unsurprisingly -- to enslaved men as savages who had the power to wreck havoc and maybe even destroy the white slave-owning south.  Justice Harris' viciously proslavery opinion in Mitchell v. Wells in 1859 is an example of this.  I'd like to write an essay about this once the book comes out, because I think this is a very good way of thinking about the sine curve of proslavery southern thought, 1830 to 1860, especially in the judiciary.

But that's dealing really with only a part of Roth's book; the majority of it is focused on the depiction of enslaved men in antislavery literature.  One thing that I like about this -- and I should also say I find bold (or maybe brave is a better word?!) -- is the sense that white women were not just gauges of changing attitudes towards enslaved men, but their widely-read literature helped change the dominant image of them.  That is, white women in particular helped free enslaved men.  This is certainly true to some extent -- Harriet Beecher Stowe is a key person here.  (I've written some about her assessment of jurisprudence and I think it a fairly easily supported case that she not only critiqued law but helped change attitudes towards it.  Caleb Smith's written about this too, of late.)  The key question is just how much the independent variable of antislavery fictional literature produced by white women contributed to the the multiple regression equation that explains the huge change in our nation's attitudes towards enslaved people (and men in particular).  On this I suspect there will be a very lively debate coming soon to the history journals.

And with that I'll say happy new year!

The illustration is a print of the Nat Turner rebellion, which is from the early era of Roth's study, when enslaved men were depicted as savages.

Update: As of July 2015 I've posted an essay review of Roth, which uses her framework to view how southern judges drew upon changing images of enslaved people from the 1830s to the late 1850s.

And here's a link to the review, which appeared in the November 2015 issue of the Texas Law Review.

Ferguson on Inferno: An Anatomy of American Punishment

Robert A. Ferguson is one of my most favorite authors.  I always learn a lot whenever I return to his capacious Law and Letters in American Culture and though I've spent far less time with them I love The Enlightenment in America and Reading the Early Republic (minor disagreements on the interpretation of Supreme Court trust jurisprudence notwithstanding).  Now I see that he has an important book forthcoming from Harvard University Press in the spring: Inferno: An Anatomy of American Punishment.  Cribbing now from the HUP website:

America’s criminal justice system is broken. The United States punishes at a higher per capita rate than any other country in the world. In the last twenty years, incarceration rates have risen 500 percent. Sentences are harsh, prisons are overcrowded, life inside is dangerous, and rehabilitation programs are ineffective. Police and prosecutors operate in the dark shadows of the legal process—sometimes resigning themselves to the status quo, sometimes turning a profit from it. The courts define punishment as “time served,” but that hardly begins to explain the suffering of prisoners.

Looking not only to court records but to works of philosophy, history, and literature for illumination, Robert Ferguson, a distinguished law professor, diagnoses all parts of a now massive, out-of-control punishment regime. He reveals the veiled pleasure behind the impulse to punish (which confuses our thinking about the purpose of punishment), explains why over time all punishment regimes impose greater levels of punishment than originally intended, and traces a disturbing gap between our ability to quantify pain and the precision with which penalties are handed down.

Ferguson turns the spotlight from the debate over legal issues to the real plight of prisoners, addressing not law professionals but the American people. Do we want our prisons to be this way? Or are we unaware, or confused, or indifferent, or misinformed about what is happening? Acknowledging the suffering of prisoners and understanding what punishers do when they punish are the first steps toward a better, more just system.

I guess in this case I'm tempted to say -- in addition to that I'm very much looking forward to reading this -- good luck.  It's a very long road to meaningful reform of punishment.

Evangelical Origins of the Living Constitution

I'm very much looking forward to next March when I can read John W. Compton's Evangelical Origins of the Living Constitution.  Cribbing now from Harvard University Press' website:

The New Deal is often said to represent a sea change in American constitutional history, overturning a century of precedent to permit an expanded federal government, increased regulation of the economy, and eroded property protections. John Compton offers a surprising revision of this familiar narrative, showing that nineteenth-century evangelical Protestants, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century.

Following the great religious revivals of the early 1800s, American evangelicals embarked on a crusade to eradicate immorality from national life by destroying the property that made it possible. Their cause represented a direct challenge to founding-era legal protections of sinful practices such as slavery, lottery gambling, and buying and selling liquor. Although evangelicals urged the judiciary to bend the rules of constitutional adjudication on behalf of moral reform, antebellum judges usually resisted their overtures. But after the Civil War, American jurists increasingly acquiesced in the destruction of property on moral grounds.

In the early twentieth century, Oliver Wendell Holmes and other critics of laissez-faire constitutionalism used the judiciary’s acceptance of evangelical moral values to demonstrate that conceptions of property rights and federalism were fluid, socially constructed, and subject to modification by democratic majorities. The result was a progressive constitutional regime—rooted in evangelical Protestantism—that would hold sway for the rest of the twentieth century.

I'm going to be very interested in two things.  First, how the Transcendentalists (and to a lesser extent Unitarians) fit into this -- they, too, have a fluid sense of the Constitution and yet we don't generally think of them as evangelical.  Second, whether this is an instance of biblical interpretation correlating with (and perhaps driving) constitutional interpretation independent of its relationship to property.  That is, I see a lot of antislavery religious thought as having a fairly non-originalist bent.  Francis Wayland, for instance, had an evolving sense of what was prohibited by Christianity.  This is independent of his critique of property.  I wonder if those ideas about evolution of religious doctrine are more directly related to the evolving constitutional thought than the evangelical critique of property per se.  But I'm very excited to see this book.  It looks fabulous.

On further reflection, I'll also be interested in putting this book in conversation with William Nelson's article from forty years back on "The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America."  That's an article I've spent a lot of time with -- but rather long ago.  Obviously Compton will be skeptical of Nelson's argument that antislavery thought led to post-war formalism.