The Faculty Lounge

UPDATE: The Breaching of Macomb’s Dam(n) Bridge

One writing truth that I learned (relearned?) writing Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names is that book publishers are serious about word limits. Unlike a law review article where the word limit is more of a suggestion, my publisher gave me a hard upper limit for words in the book. I ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell. This is one of them. You can read about the book project here, and the first installment of this saga here. 

When we last met, Robert Macomb had constructed his dam(n) bridge across the Harlem River . The New York legislature had granted him the right to build the dam so long as it did not impede navigation. Legislation authorizing the dam explicilty required Macomb to build and maintain a lock to ensure that the river remained navigable. 

Macomb ignored this injunction, much to the fury of the growing population of Westchester that was now cut off from New York harbor.  After Macomb’s dam was completed, boats seeking to traverse this portion of the river had to unload above the dam, haul the boat over the bridge, and then reload the boat. This was hard, dangerous work that made navigation well nigh impossible.

Enter Lewis Gouverneur Morris, scion of the wealthy Morris family that owned parts of Westchester and much of the Bronx, including the areas presently known as Port Morris and Mott Haven.  The family was extremely politically powerful. Lewis’s grandfather was Chief Judge of the New York Supreme Court, and his great-uncle Gouverneur Morris not only signed the Declaration of Independence, but also wrote the preamble to the Constitution.

Westchester landowners  drafted a Remonstrance to the State Legislature. This Remonstrance, signed by more than 100 people, averred that before the construction of Macomb’s dam the Harlem River was navigated by schooners, sloops and other vessels. Although the main thrust of this Remonstrance dealt with the High Bridge and the Croton aqueduct, it also documented and complained of the navigation problems caused by Macomb’s dam. They appointed Lewis G. Morris as their agent for addressing this problem.  Lewis brought the Remonstrance to Albany, but also took on a less orthodox role in solving the navigational challenges.

Characterizing Macomb’s dam as a public nuisance, these leading citizens of Westchester decided to take matters into their own hands. Declaring that “any person injured or incommoded by said nuisance [could] abate the same,” they deputized Lewis G. Morris and vested him with authority to remove enough of it to allow navigation. They not only agreed to pay the costs of this direct action, promised to bail out anyone who was arrested, but also advised “We recommend the employment of a strong force of men and scows, that the work may be promptly effected, and to the end of obviating opposition.” 

On August 31st 1838, Morris and his entourage boarded the Schooner Superior and sailed up to Macomb's dam. They demanded passage through the dam to deliver a load of bricks upstream.  The Bridge keeper (remember there was an illegal toll bridge atop the dam) stated the obvious—that he could not let them through because the bridge had no lock and thus there was no way for a schooner to pass.  

On September 8^th, Morris and entourage again returned in a sailboat and demanded passage through Macomb’s dam. Again they were denied, there being no lock that could afford them passage.

Finally, on the evening of September 14^th, Morris and his entourage returned once more, this time on Nonarpiel, a vessel hired to transport coal from New Jersey to Morris’s residence upriver from the dam. Morris again demanded passage through the dam.  Upon being denied passage, Morris and his men began “quietly and in a peaceable manner commence taking down part of said dam and bridge, and did take up sufficient thereof to let said vessel pass through.”

Under Morris’s direction, 63 men spent much of the next week dismantling Macomb’s dam, ultimately removing roughly three spans of the dam and demolishing one of the abutments. Through her trustee, Mary Pell Cornell Macomb sued (Robert had already died) alleging a trespass. After a trial on the merits, the judge instructed that “if the jury should find [the dam] was a public nuisance then the defendant had a right to abate it by his own act” and “that in doing so, the defendant had a right to remove so much of the dam as was necessary to make a safe and convenient passage for all vessels.”  The jury ruled for Morris on all counts. The appeals court not only affirmed but also awarded Morris roughly $400--the cost of dismantling the dam.

In 1854, the City of New York repossessed Macomb’s dam, and four years later, the New York legislature finally directed New York City and Westchester County to remove the dam and build a new toll-free bridge. To facilitate navigation, this bridge was built as a swing bridge. The bridge was landmarked in 1992. 

Check out Naming Gotham to learn more about the gossipy backstory behind New York City infrastructure.

Bonus: The multiple civil proceedings that emerged from this incident were among the earliest affirmations of the federally guaranteed freedom of navigation and an early definition of waters of the United States. These cases also framed a robust theory of public nuisance that might be of interest to environmental lawyers today.

Added Bonus for Property Professors: Robert and Mary Macomb were extremely litigious.  One of their many cases, Baker v. Lorillard, provides a remarkable tour of estates in land, including how to interpret ambiguous grants after the legislative elimination of fee tails, the consequences of partitioning estates encumbered by life estates, and the various ways vested remainders might be divested by executory interests.

Harvard's Magna Carta Bargain

By now many of you will have already seen the news that a Magna Carta "copy" owned by Harvard Law School is actually an original. But in case you didn't see the bargain price they bought it for . . . From the Harvard Law website:

British researchers have discovered that a ‘copy’ of Magna Carta owned by Harvard Law School is in fact an extraordinarily rare original from 1300.

The discovery by leading Magna Carta experts from King’s College London and the University of East Anglia (UEA) means the document, which Harvard Law School acquired in the 1940s, is just one of just seven from King Edward I’s 1300 issue of Magna Carta that still survive.

The Harvard Law School Library bought the document known as ‘HLS MS 172’ in 1946 for a sum of $27.50, according to the library’s accession register. The auction catalogue described the manuscript as a “copy … made in 1327 … somewhat rubbed and damp-stained.” It had been purchased a month or so earlier by the London bookdealers Sweet & Maxwell, via Sotheby’s, from a Royal Air Force war hero for a mere £42.

See also the interesting video below:

Hello, Introductions, and Where to?

I want to thank you for inviting me here to blog for the next month. I want to introduce you to my co-author, collaborator, and the other half of my brain Lorna Fox O'Mahony. Lorna is at the University of Essex in the UK.  Lorna and started working together in 2017 on a project that would ultimately become our book Squatting and the State: Resilient Property in an Age of Crisis available at Cambridge University Press.  I am going to spend my time (with help from Lorna) blogging about a methodological intervention we have been making on property law and the need to rethink how we think about property problems.  We have 12-13 posts planned out to introduce you to RPT and its approach including a future post about Squatting and the State.  We may also post a dialogue about co-authorship and what makes it work 

Today we want to talk about our changing world.  Liberal property law was developed in a time that is very different from our time today. Advances in technology in the last two centuries have transformed our economies from rural/agriculture production, to industrial production, to knowledge economies. Likewise, advances in travel and the shift to the network society has meant that individuals engage with a broader audience, different cultures and unique perspectives.

In this time, the mechanics for how we engage with property have not stood still, even as the narratives, justifications and ideologies on which property interests are based appear timeless and unassailable. We have seen the transition of property norms from the utility of possession to the legal certainty of recorded title. That transition enabled the increased financialization of property assets with benefits and crises emerging as a result. The 2008 financial crisis was triggered by the over-abstraction of property interests in ways that strained the lived realities of property on the ground.(More on this in future posts).

Since the 1970s, the growth of globalization has increased in both scope and intensity, bringing new paradigms of power, alignments of institutional competencies, and values into view. Both the utility crisis and the currency crisis that erupted in the 1970s placed new strains on a housing infrastructure that was already reeling from disinvestment after federal policy stepped back from investments in public housing infrastructure. And today - those three moments of housing crisis, utility crisis, and financial crisis continue to resonate in a fourth context of environmental stewardship. We face interlocking dilemmas:

• The growth of housing as a financial tool rather than a site for home and family contribute to the erosion of communities, while also making home ownership riskier due to over leveraging;
• Increasing housing demands place pressure to build cheaper housing in environmentally fragile areas, raising the risk of disaster;
• And the demands for more energy consumption in communities have prompted similar questions about the role of private finance and accessibility to new technologies - particularly for poor or disadvantaged communities.

Each of these problems are not ‘private’ but shared, and require, on some level, the participation of the state. Property is implicated in ways that challenge us to think differently about how we understand and work with complexity, and to recognize the effects of our methodological approaches. Most notably, we are interested in how the frames we use to articulate property problems distort our perceptions in ways that undermine our capacity to address these problems in meaningful ways. What we suggest across our research, and through a range of case studies, is a more realistic way of grappling with property as a complex system in which the state’s support for individuals, communities, and institutions (like private property) is not merely an allocation of publicly-backed resilience but embedded in the state’s own resilience needs.

We look forward to hearing from you along the way and hope you engage with comments as we set the development of ‘Resilient Property Theory’ (RPT) through the research agenda we have been on for the last 8 years. In doing so we will highlight works we have written as well as others’ writings that have engaged with RPT to re-imagine a property space for the 21st century.

 

 

 

 

 

Union College in Pre-Civil War Phi Beta Kappa Addresses

Phi Beta Kappa Addresses during the pre-Civil War in Union College.

Union College is in Schenectady, New York. A number of them were religious figures and those were conservative.  Yet, Union College was in politicians' addresses -- and  The ex-Governor DeWitt Clinton of New York was addressing at Union College in 1823. Clinton was a key figure in the Erie Canal. And he talked about technology and morality, and said “unlimited in space, and infinite in duration." Optimistic, very optimistic.

Gulian C. Verplanck, a former United States Congresses for New York, wrote about The Advantages and Dangers of the American Scholar before Union College in 1836. Verplanck wrote about the advantages—and dangers–of the American Scholar. William Kent (James Kent was his father), told Union College students in 1841, that there would be “no essential change in the institutions, whose operations come home to the business and bosoms of men, from the ultraism of Democracy on the one hand, or from a reaction on the other of a spirit adverse to republican equality."

Charles Sumner, a lawyer and abolitionist from Boston (and future United States Senator from Massachusetts), spoke at Union College in 1848 on The Law of Human Progress. William H. Seward spoke about The Elements of Empire in America. Seward was a United States Senator, for New York. And, he was a Lincoln's cabinet.

The Jurisprudence of Antebellum Phi Beta Kappa Addresses is available at ssrn.com.

 

Glamour and United Daughters of Confederacy

Here's that is unusual: the Glamour magazine and an article on the United Daughters Confederacy.  It is here.  I think that UDC is an innocuous institution; the biggest hat-making becomes the leader of the institution or something like that. Former students and clients were sometimes eligible for UDC. Based on these people, I think that is innocuous. (Sons of Confederate Veterans was a different UDC in 1900-1925. SCV even recognized slavery as the subject in the 21st century.)

They Were Her Property: Frequency of Female Ownership

I have a fan of Stephanie Jones-Rogers, They Were Her Property: White Women as Slave Owners in the American South.  (I have blogged about three years ago.)  And I want to write some Jones-Rogers. But this concerns Benton Wishart and Trevon D Logan's Her Property Transactions: White Women and the Frequency of Female Ownership in the Antebellum Era (National Bureau Economic Research).

Wishart and Logan are crucial for understanding white women as slave owners in the South. In the antebellum New Orleans market, the women were about 16% sellers and 17% buyers. Pp. 17-18. That is an extraordinary number of white women's slavery transactions, but that is less than 40% of white women's slavery transactions. That is 16% sellers or 17% buyers. Substantial and important.

 

Harvard and Yale in Jurisprudence of Antebellum Phi Beta Kappa Addresses

Harvard University was much Transcendentalism in Phi Beta Kappa addresses and Yale University was much anti-Transcendentalism very often, at least conservatism or conservatism religion in antebellum Phi Beta Kappa addresses. Harvard was providing Transcendentalism in Edward Everett (more or less) in 1825, and Reverend Orville Dewey in 1830. Emerson was providing the American Scholar in 1837.  Post-American Scholar Transcendentalism were Frederick Henry Hedge in 1843, George Putnam in 1844, Andrew Peabody in 1845, George Marsh in 1847, and more or less, Horace Bushnell in 1848. But Harvard University was also providing Theophilus Parson in 1835 and Timothy Walker in 1850 were conservative -- and both of them were legal scholars.

And Yale University had Heman Humphrey in 1838, Daniel Barnard in 1846, S. Henry Dickson in 1842, President Simeon North of Hamilton College in 1847, Charles Haddock in 1848, Ashbel Smith in 1849, and Daniel Lord in 1851 were conservative. A number of them are optimists, including Willis Hall and John W. Andrews. The exceptions are Edward Everett in 1833, (more or less) Horace Bushnell in 1837, and William Seward in 1854. Yale was more conservative than Harvard, although changes were afoot.

The Jurisprudence of Antebellum Phi Beta Kappa Addresses is available on ssrn.com. Next up are Union College, Brown University, and Dartmouth College in antebellum Phi Beta Kappa addresses. 

Black Gaius

I am impressed with this one: P. G. Monateri, Black Gaius: A Quest for the Multicultural Origins of the "Western Legal Tradition," 51 Hastings Law Journal (2000). His abstract reads:

In this paper I intend to signal an independent appraisal of the roots of the Western Legal Tradition as both a critique of this tradition's originalism, and of its being a tradition at all, thereby challenging the premises behind new projects of international cultural governance in the context of globalisation. From the standpoint of legal history and comparative law this paper shows that Roman Law has no claim to supremacy in the ancient world. The myth of this supremacy was manufactured by the biases of xix century European historicism so that the Western indebtedness toward non-Western civilizations was denied. The rejection of conventional unsound picture has important consequences for the consciousness of the Western legal tradition as such, which is to be seen more as a multicultural enterprise than as the peculiar evolution of one culture. This implies that the projects of governance based on the conventional picture are untenable, and must be abandoned.

Shades of Martin Bernal.

Feminism and Legal Theory Project 40th Anniversary Celebration

On April 5, 2024, the Feminism and Legal Theory Project at Emory University School of Law will celebrate its 40^th Anniversary and the dedication of the FLT Archive to MacMillan Law Library at Emory.

Click here to see the tentative schedule of the full-day academic program and register to attend. It is a fantastic line-up of speakers.

The archive may be of particular interest to anyone doing work on the history of feminist thought. Details on the archive appear after the fold. 

2 Law Profs Appointed to Smithsonian American Women’s History Museum's Committee of Scholars

The Smithsonian American Women’s History Museum recently announced (here) a Committee of Scholars "to guide the museum on content and provide input on the museum’s comprehensive plan to document the full spectrum of the experiences of women in the United States through exhibitions, public programs, research initiatives and education resources."

Among the Committee's fifteen members are law professors Nadia Ahmad (Barry) and Mary Ziegler (UC Davis).  This is a great honor. Congratulations to Professor Ahmad and Professor Ziegler!

Bi+ Visibility Day and Marjorie Rowland

In honor of today being Celebrate Bisexuality Day (aka Bi+ Visibility Day or Bi Visibility Day), I thought I would post about bisexual rights pioneer Marjorie Rowland, who sued way back in 1975 when she was suspended and then faced nonrenewal of of her contract as a school guidance counselor because she had acknoweledged her bisexuality to a school secretary. Although she first had to appeal dismissal of her case to the Sixth Circuit, she ultimately won a jury verdict based on her equal protection and First Amendment claims, only to have it cursorily reversed by the Sixth Circuit. The Supreme Court denied review, over a powerful dissent by Justice Brennan, and Ms. Rowland, who had enrolled in and graduated from law school during the pendency of the case, was left to deal with the considerable fall-out from the case, including an apparently retaliatory charge of welfare fraud and an initial denial of her moral character application to the Arizona Bar. Ms. Rowland, however, persevered and ultimately had a successful family law and bankruptcy practice in Tucson for decades. 

My article about the case, forthcoming in Harvard Journal of Law and Gender, brings to light little-known facts gleaned from the trial transcript, explores the flaws in the Sixth Circuit opinion, and also argues that part of the reason that Ms. Rowland's case, Rowland v. Mad River Local School District, did not receive the attention it deserved in scholarship and case law was likely bisexual erasure. The article looks at areas where bisexual erasure continues to be prevalent, including the relatively scant coverage of bisexuality in Law & Sexuality textbooks, and briefly touches on how far we have come--and in some areas, how little progress has been made--since Ms. Rowland brought her case. Remarkably (or perhaps not at all remarkably, given the times we're in), a very similar case brought by a Kentucky choral teacher who was fired based on disclosing his bisexuality on his Instagram account is pending today.  

Happy Celebrate Bisexuality Day!

Richard B. Bernstein (1956-2023)

Richard B. Bernstein has passed away. It was my pleasure working with Bernstein. He was a most important and most humble person. Joanne Freeman and Annette Gordon-Reed have excellent biographies today.

Over at legal history blog R.B. Bernstein has funeral service this Friday at 12-1 p.m.

At Williamjames Hoffer is posting R.B. Bernstein's obit notice H-Law.

Robert Macomb—Lawyer for the Ages?

In writing Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names I discovered that ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell. This is one of them. You can read about the book project here, and the next installment of this saga here.

If you drive up FDR Drive on your way to the George Washington Bridge, you will pass Macombs Dam Bridge (at one time there was an apostrophe--Macomb's Dam Bridge because it belonged to Robert Macomb--but the apostrophe was lost to history.) The current iteration of Macombs Dam Bridge is a swing bridge, built in 1896.  At the time, it was the worlds heaviest movable object. It is also very beautiful (photo of Edward Hopper 1935 photo courtesy of Wikimedia Commons)

The story behind the bridge, like so much our our named New York infrastructure, is a window into history.  Few New Yorkers have even heard of the Macomb family, or the outsized role they played in New York and United States history.  While Naming Gotham goes into detail about Alexander Macomb Sr.'s shady financial dealings, and Alexander Macomb Jr.'s military exploits, today I want to talk about the youngest male member of the Macomb clan and his own special brand of sleaze.  Maybe a better name would have been Macombs Damn Bridge

Meet Robert Macomb: Grifter Extraordinaire  

Born in 1783, Robert Macomb was the youngest son of Alexander Macomb Sr., a Revolutionary war-profiter who made a fortune  supplying the British forces in Ohio with food and arms. After the war, Alexander moved his family to New York City where he turned his talents for grift to land speculation. For a brief period Alexander owned most of the Adirondacks, and all of the Thousand Lakes, until his scheme with William Duer to corner the US debt market backfired, causing the Panic of 1792 and landing him in debtors prison.

Despite his father's drama, Robert grew up in the lap of post-revolution luxury. In fact, the Macomb family house became the first official residence for President George Washington. The family enslaved at least 12 Black people, making them the third-largest slaveholders in New York City.

Robert studied law at Columbia. Family political connections got him appointed clerk of the New York criminal court in 1811.
This involved first ousting the sitting clerk, John W. Wyman a move the New York Morning Post called “an instance of injustice and oppression scarcely paralleled in the annals of our state affairs.” (Robert Macomb painting by Edward Green Malbone, CCO, donated to Wikimedia Commons by the Metropolitan Museum of Art)

He didn’t last long in the job.  

In 1817, the New York Evening Post published multiple articles accusing Robert of malfeasance, alleging that Robert was “prostituting” his office as clerk of court “to the vilest, meanest, most mercenary and even dishonest purposes.” Specifically, the paper alleged that Robert sold pardons to convicted criminals, and pocketed fines and bail money paid into the court. Robert brought a libel action and lost spectacularly—the paper’s editor easily persuading a jury to rule in his favor on the ground that that truth was an absolute defense to libel. (People v. William Coleman). Robert was forced to resign his post. Attempts to get him to pay back the money floundered, with the committee formed to recoup funds characterizing Robert as "shuffling and evasive."

 

Forced out of public service, Macomb turned his hand to industrial and land development. Most notably, he obtained legislative approval to build a dam across the Harlem River to power a grist mill his father had build and then lost in bankruptcy. Robert bought it at the Tontine House bankruptcy sale. Article II of the legislative act approving the dam expressly required "[t]hat said dam shall be made and built as to admit the passage of boats and vessels accustomed to navigating the same, by means of a good and sufficient lock, gate, or apron or other contrivance and the said Robert Macomb, his heirs and assigns, at his or their own expense, shall keep and provide a suitable person to attend the same, so that no unnecessary delay may happen to those who may have occasion to pass the same." Article III provided a fine of $5 per instance for every time someone incurred "unnecessary delay." And, he was denied permission to build a toll bridge atop the dam. Robert was never one to let a legal technicality (in this case an express limitation in his legislative deed) stop him from making a buck. So, he built Macombs Dam Bridge without a lock, low enough to block navigation, and then built a toll bridge anyway. 

 After all, when your father’s “mad speculation” caused the Panic of 1792, and you are continually overshadowed by your older brother’s military exploits that helped save the Republic, AND you’ve just been forced out of your cushy government job, why not build an illegal dam and then add an illegal toll bridge on top.

Ah New York  . . .  Lawyers deciding they are above the law.  Real estate developers doing whatever they please, regardless of the public’s interest. Well-connected grifters leveraging old family ties into sinecures and then abusing their authority to line their pockets.  Plus ça change, plus c'est la même chose.  

Next Installment—The Breaching of  Macombs Dam Bridge—Enter Lewis Gouverneur Morris.

If you enjoy this kind of gossipy history, be sure to check out Naming Gotham!

Introducing Naming Gotham

Thank you Dan and Bridget for inviting me to step into the Faculty Lounge.  I am going to be blogging about my new book Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names. One writing truth that I learned (relearned?) writing is that book publishers are serious about word limits. Unlike a law review article where the word limit is more of a suggestion, my publisher gave me a hard upper limit for words in the book. I ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell.

First let me introduce the project.  Then in subsequent blog posts, I will share some of the stories and details that I had to cut from the book because of space constraints.

About Naming Gotham

Each day, millions of people “take” the Major Deegan, the Hutchinson Expressway, the Outerbridge Crossing, and the Holland Tunnel. Few travelers remember that, before these names became an urban shorthand for congestion, they were actual people. This quirky New York City history uses the naming of New York City’s roads, bridges, and civic institutions as a unique window into urban social structure and the City’s ever-changing inhabitants. The lives of Revolutionary War heroes, robber barons and Tammany Hall politicos introduce readers to the outsized roles that power politics, corruption, and the slave economy played and continue to play in New York City.

The names in this book tell only a small sliver of the City’s story. To date, New York City has chosen to commemorate mostly white men. In a city as diverse as New York, that fact is telling. It reflects the historical balance of power in the City—both in terms of who had the power to name things and who got to define what counts as history. As I was researching and writing this book, that began to change. Most significantly, the Shirley Chisholm State Park, named after the first Black woman elected to Congress, opened in 2019. This shift in who the City memorializes reflects the changing narrative that New Yorkers tell themselves about their city. It remains to be seen how this changing story will translate into the policies the City adopts for its schools, its roads, and its neighborhoods.

Here is the short (very funny) book trailer that artist and writer Jeff LaGreca made for Naming Gotham. 

 

poem on Pierson v. Post

My poem on Pierson v. Post, written from the fox's perspective, is out in Hastings Journal on Gender & the Law. The full cite is 34 Hastings Women's L.J. 113 (2023), and the poem is available here:  Download Poem

American Society Legal History Program, November 10-12, 2022

American Society Legal History program running from November 10 to November 12, 2022.  Have fun!

Miranda Warnings Date Back to 1748

I filed this brief of Historians of Criminal Procedure in Vega v. Tekoh this week that shows Miranda warnings date back to 1748.  (Thanks to Steve Lubet for asking me to post this.  Steve is no stranger to discovering fascinating history of the warnings -- Gov. Wise gave them to John Brown in 1860, Lubet, 52 Ala. L. Rev. 425 (2001).)  A true pleasure to work with Mark Godsey (Cincinnati), Tim Hitchcock (U of Sussex and a co-curator of the Old Bailey Session Papers), Tracey Maclin (BU), Robert Shoemaker (U of Sheffield and co-curator of the Old Bailey Session Papers), Simon Stern (Toronto), and George Thomas (Rutgers).   There were five examples we found that pre-dated the Bill of Rights -- research in the Old Bailey Papers is not easy.   So I want to particularly recognize Tim Hitchcock who located the 1748 case and my research assistant, Nicole Singleton (2L Duquesne), who found two of the pre-Framing cases.  

https://www.supremecourt.gov/DocketPDF/21/21-499/220472/20220406170837528_Tekoh%20final%20brief%2042283%20pdf%20Oliver%20--%20filed.pdf

Hamann, "K is for Contract—Why is it, Though?

Hanjo Hamann (Max Planck Institute for Research on Collective Goods, Germany) has posted to SSRN K is for Contract—Why is it, Though? 106 Minn. L. Rev. Headnotes (2022). Here is the abstract:

Just like Supreme Court justices, law students in the United States almost unanimously abbreviate the word “contract” using the capital letter K. Despite this consensus, no writer has ever explained why a word that starts with “c” should be abbreviated to “K” instead. The present paper investigates this question, following threads of legal discourse into various interconnected societal contexts―including Boston high society, 19th century baseball, German intellectual property law, the neuroscience of sleep, and Civil War contract management. I show that the K-for-Contract convention probably originated between 1900 and 1949, and may have come, of all places, from satirical military lingo. In arriving at this finding, the present essay offers an intriguing case study of legal narratology and the propagation of lawyerly conventions. By empirically surveying contract law professors to trace the origins of K-for-Contract, the study also shows that even seasoned instructors who use and teach this legal shorthand can no longer justify its usage. This proves to be an instructive illustration of boilerplate effects, or what one Contracts professor called the “arcane underpinnings of the rules we all follow."

The full essay is available here.

I've always wondered about that K! 

They Were Her Property: White Women as Slave Owners in the American South

Stephanie E. Jones-Roger "makes a bold argument about the role of white women in American slavery.... Stephanie E. Jones-Rogers draws on a variety of sources to show that slave-owning women were sophisticated economic actors who directly engaged in and benefited from the South’s slave market. ... [E]nslaved people were often their primary source of wealth. Not only did white women often refuse to cede ownership of their slaves to their husbands, they employed management techniques that were as effective and brutal as those used by slave-owning men. White women actively participated in the slave market, profited from it, and used it for economic and social empowerment. By examining the economically entangled lives of enslaved people and slave-owning women, Jones-Rogers presents a narrative that forces us to rethink the economics and social conventions of slaveholding America." (Yale University Press.)

This is an important book. A very important book. A couple of thoughts. First, a few white women Southerners were disgusted by slavery. Stephanie Jones-Rogers recognizes this; Angelina and Sarah Grimke sisters were very against slavery. (212 n.40.) Second, Southern slave-owner females were (for the most part) proslavery. Third, Southern white slave-owners males were worse than Southern white women slave-owners mostly (e.g., 8-10, Martin v. Georgia, 25 Georgia 494 (1858)).

Slavery and the History of Federal Powers

Revisionist scholars like Jack Balkin and Richard Primus argue that expansive federal powers are consistent with the principles of the Founding, the views of the early Congress, and/or Marshall Court decisions like McCulloch.  In a forthcoming article, I argue that this scholarship ignores slavery’s profound influence on the Constitution. Before the Civil War, virtually everyone agreed that Congress had no power to interfere with slavery in existing states. Because slavery was fundamental to the political, social, and economic order of the South, this national consensus on slavery dictated that Congress’s powers were extraordinarily narrow by today’s standards.

Of course, slavery’s influence on federal powers is well-known and widely accepted among historians.  My article seeks to “move the ball” by connecting this historical scholarship to the revisionist work of Balkin, Primus, and others. Although I am sure that they are well versed in history, this only makes their lack of any serious engagement with slavery so difficult to understand. (For example, in five articles on the topic, Primus’s most in-depth consideration is found in his most recent essay, which has only 3 pages of discussion). I hope my article encourages them to give more serious consideration to slavery’s influence moving forward.  As the current debates over teaching critical race theory have made clear, we must acknowledge and understand the implications of racism in the law in order to fight against it.  In fact, I argue that slavery’s influence on the historical understanding of federal powers provides a strong reason to reject any theory of interpretation that makes history dispositive of constitutional meaning (including Balkin’s Living Originalism, at least with respect to powers).

My article also engages with the work of David Schwartz, who, unlike Balkin and Primus, does seriously engage with slavery while still arguing that history supports expansive federal powers. In my opinion, however, he does so only by underestimating slavery’s influence.  In sum, Schwartz seems to suggest that, at least for the early Congress and Marshall Court, slavery was an exception to otherwise broad federal powers. His argument, however, gets it exactly backwards. Slavery did not operate as an external constraint on otherwise broad federal power. Instead, slavery was a powerful motivation for the antebellum consensus that all federal powers were limited in scope. This distinction matters, and we do a disservice to history by minimizing slavery’s pervasive influence on constitutional history. Only by fully acknowledging slavery's role can we  build the best case for the type of living constitution that would allow for meaningful change in the Supreme Court's federalism doctrine.