The Faculty Lounge

Wartime Art Repatriation Symposium at Case

On Friday, March 1, 2013 the Journal of Law, Technology, & the Internet at Case Western will host a symposium on "Wartime Art Repatriation."  Cribbing now from Case Western's announcement:

Art theft during wartime has existed since ancient times.  As modern society presses onward, victimized countries are beginning to demand the return of pieces stolen from them at times of war.  However, museums throughout the world have integrated these piecs of art into their collections, often as the cornerstone of an exhibit or collection that draws thousands of visitors every year.  Can museums be required to return such artowrk, when they acquired the pieces through legal means?  What role does law play in wartime art repatriation?

This is, I think, further evidence of a resurgence in academic interest in reparations.

Title 38 Section 2306

File this post under the heading "Reparations for the Era of Civil War." 

Recently I had the chance to visit the Oakwood Cemetery in Richmond.  It's one of the largest Confederate cemeteries; there are something on the order of 17,000 soldiers buried there.  It's a pretty interesting place, in part because the people buried there are almost all enlisted men -- the officers were apparently buried in Hollywood Cemetery and Shockoe Hill Cemetery.  There is also relatively little in the way of monuments there, which I guess goes to show that in death, as in life, the little people are often forgotten.  I guess I'm not surprised by this.  There's a pretty modest obelisk put up around 1866 and also a granite monument put up in 2007 by the Sons of Confederate Veterans.  But not a lot in between. There are a number of very small, foot- stones that dot the Confederate part of the cemetery; it's a quiet and I would add dignified, space.  It reminds me a lot of the National cemeteries around Richmond that have U.S. soldiers buried in them.  

Old friends may recall a blog post I wrote years ago on the money that the Virginia legislature gives to cemeteries with Confederate soldiers buried in them -- I think it's $5 per year per person.  What I did not realize until recently is that the United States Veterans administration is also charged with providing some monuments for Confederate cemeteries.   Title 38, section 2036(a) provides as follows:

The Secretary shall furnish, when requested, appropriate Government headstones or markers at the expense of the United States for the unmarked graves of the following:

(1) Any individual buried in a national cemetery or in a post cemetery.

(2) Any individual eligible for burial in a national cemetery (but not buried there), except for those persons or classes of persons enumerated in section 2402(a)(4), (5), and (6) of this title.

(3) Soldiers of the Union and Confederate Armies of the Civil War.

(4) Any individual described in section 2402(a)(5) of this title who is buried in a veterans’ cemetery owned by a State.

(5) Any individual who at the time of death was entitled to retired pay under chapter 1223 of title  10 or would have been entitled to retired pay under that chapter but for the fact that the person was under 60 years of age.

Now the Sons of the Confederate Veterans are hoping to get the  Veterans Administration to do more in terms of monuments.  I  think tha the cemetery is better off as it is without more monuments marring the landscape; but I'd also add -- as I guess is clear from my scholarship -- I'm not a huge fan of spending more federal government money to commemorate the Confederacy.   Thus, I'm not enthusiastic about the Veterans Administration doing more with Oakwood -- for both aesthetic and moral reasons.  If private individuals want to put up a new monument, as the United Daughters of the Confederacy seem to be doing at Oakwood, that's obviously something they have the right to do. 

Nguyen on Apologies: The Case of Intellectual Property in China

One of the things I'd planned to do this summer is talk about scholarship I've been enjoying -- or at least flag it here in the lounge.  I haven't done much of that yet, so let me start with SMU Law Professor Xuan-Thao Nguyen's "Apologies as Intellectual Property Remedies: Lessons from China," which appeared recently in the Connecticut Law Review.  Here is the abstract:

It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of introducing apology as a remedy in U.S. intellectual property law. There are, however, limits to the effectiveness of injunctions and damages (currently the predominant remedies in U.S. intellectual property law), and tangible benefits to apology. This Article uses Chinese intellectual property law as an example and addresses the limits of the current U.S. intellectual property regime, as well as the potential benefits of a change. The Article concludes that it is time for the United States to learn from beyond its boundaries in order to provide just recourse in intellectual property disputes.

Download the paper from ssrn here.  Close readers of the faculty lounge may intuit that I'm returning to my interest in apologies, reparations, and transitional justice.

Latest on the North Carolina Sterilization Victims Compensation Act

Thanks to Mark Bold I see that the House has just passed an act to compensation people sterilized under the authority of the North Carolina Eugenics Board.  Today's Reuters story quotes Republican Representative Paul Stam, the North Carolina House majority leader:

Whoever they are, they deserve compensation .... We owe it to them, not in a legal sense, but in a moral sense. It was a sad program that lasted for several decades and had its genesis in a philosophy that is alien to the American spirit.

Representative Tom Tillis focused on the state's role in making the case for payments: "We had elected officials and leaders who had the audacity to know what the great race was .... There are people living today, all around this community, who have had this done to them and we have a chance to put it at rest."

Next stop is the Senate.  As the Senate takes this up, I hope they will focus on a couple of key points -- that this was state action, done in most cases for the convenience of the state, so the state could save money; that many people at the time knew this was wrong, even though the dominant mindset in the state was that sterilization was for the improvement of the human race -- and in some cases the white race; and that compensation is only going to people who are still alive, so it goes to the most direct victims.  As to opposition at the time, here is a chapter from a book on sterilization in North Carolina published in 1950 that discusses the opposition to sterilization, particularly by people who're its likely victims.

If you'd like a brief sense of the sterilization mindset in North Carolina, here is a pamphlet published by the Eugenics Board, which details the case for sterilization and also contains the administrative forms at the end of the pamphlet, which show just how much this was turned into routine bureaucratic work.

My previous posts on North Carolina's history with sterilization and the movement for compensation are available here.

Greensboro Massacre

I was talking recently with my friend Jayne Thompson, who's writing a novel that touches on the November 3, 1979, Greensboro massacre.  That inspired a trip out to Greensboro to visit the site of the massacre and, a few blocks away, the cemetery where four of the five people who were killed are buried.

The massacre was a day before the Iran Hostage crisis began, so I think that goes a long way to explain why you've probably never heard of it.  The short version is that Klansmen showed up at an anti-Klan rally (run largely by the Communist Workers Party) in an African American neighborhood in Greensboro known as Morningside Homes and started killing demonstrators.  Even though there is extensive video evidence, no one was ever convicted in either the state or federal prosecutions that followed.  More recently the Greensboro truth and reconciliation commission revisited those events and their aftermath.

I am interested in the motivations, politics, and possibilities of TRCs, though I am also skeptical of them.  Someone commenting about Greensboro a few years back said something like, it's the usual crowd coming together -- Nuns, Reconstruction Rabbis, Unitarian and UCC ministers, some Quakers, and social workers.  (And one might add community activists and perhaps even a law professor or two.)  My sense from a distance is that the people on the TRC did a very good job of gathering the evidence and shifting through what happened and of making some serious efforts towards reconciliation.  There was -- quite unsurprisingly -- little engagement from the crowd who committed the attrocities, though at least one of them expressed remorse.  If you're interested in this, Lisa Magarrel and Joya Wesley wrote a very good book on the Greensboro TRC, which I think has the potential to get other communities to follow in the wake of Greensboro.

Yet -- and this is what's motivating this post -- I'm not sure that we have even the most basic issue for a TRC: truth.  For as I was trying to figure out where the massacre occured so I could go visit it, I turned to my usual starting point for research: wikipedia.  The wikipedia entry for the Greensboro massacre makes it almost sound like the demonstrators were to blame for starting the violence that day.  Nor does it portray in detail the complicity of the city.  What for me is perhaps the most harrowering of many disturbing stories, though, is the breakdown of the rule of law in the aftermath of the massacre.  The local prosecutor seems to have suffered from a lack of resolve in the prosecutions, though I have no sense that mattered to the outcome of the trial.  So I am bothered that even now we do not have an accurate public history of the massacre.  I hope to return to several issues here down the road, including the case for making a moral claim on the city by the victims' family members, perhaps even now; the difficulty of telling an accurate history of racial crimes; and whether anything else should or could be done now.

The photo is the tombstone in Greensboro's Maplewood Cemetery.  If you're interested in visiting the site of the massacre or the cemetery, here is UNC-G's tour.  (But note that you go RIGHT, not left, at the first intersection in the cemetery to get to the tombstone.)

The Administrative Forms for Sterilization

Well, the hearing on the bill to provide compensation to sterilization victims went well.  Several survivors and family members spoke, as well as several middle school students.   As I was driving back with a couple of law students we remarked those students and their teacher really had their act together!

The committee had a thoughtful debate about the bill.  The anti-reparations arguments rested largely on this isn't the responsibility of the current generation (and also to some extent, a lot of other states did this, so North Carolina shouldn't be singled out).  That was countered by the argument that are people still living who are suffering as a result of the state's action.  I wasn't surprised by any of the arguments; but I was pleasantly surprised by the outcome.

The house judiciary committee passed the bill, so it's on its way.  Looks like this is actually going to make it -- and will be just another episode of realistic reparations.

Along the lines of the "this was done by the state" argument, I thought you might find the forms that the state prepared to facilitate the petitions for sterilization of particular interest.   The forms were reprinted in a lot of places, including a 1938 pamphlet from the Eugenics Board that made the case for sterilization.  It never ceases to surprise me how technology is harnessed to effect the ends of the state.  And how much those forms were designed to stream-line the process.  And perhaps you'd find also of interest the appendix to Moya Woodside's 1950 study of sterilization in North Carolina, Sterilization in North Carolina: A Sociological and Psychological Study, which tells the story of "illustrative cases" of people who were sterilized in the 1940s.

The illustration is the Judiciary Committee hearing, where Representative Larry Womble, who's been the champion of this issue for about a decade now, moved the bill.  This was his first appearance in the legislature, I think, since he was in a car accident last fall.

The Sterilization Mindset, Circa 1976

One of the things I've been talking about of late is the mindset of people from the 1920s and 1930s about sterilization.  They justified it in two ways.  First, on the basis of the cost to society of the children of those who would be sterilized.  The good to society outweighed the harm to the individual.  Holmes' statement in Buck v. Bell is the best known of the many utilitarian statements made by courts supporting sterilization.

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

Though Holmes' statement is the best-known, there were others.  This was a more extreme version of the sentiments the Virginia Supreme Court expressed in Buck v. Bell in 1925, which observed that Carrie Buck's welfare and that of Virginia were both promoted by sterilization.  Similarly, in Smith v. Command, a 1925 Michigan decision that upheld the state's sterilization statute, Justice McDonald emphasized the costs to the community: "That they [the people to be sterilized] are a serious menace to society no one will question."  "Under the existing circumstances it was not only its undoubted right, but it was its duty, to enact some legisaltion that would protect the people and preserve the reace from the known effects of the procreation of children by the feeble-minded, the idiots, and the embeciles."  "It is an historic fact that every forward step in the progres of the race is marked by an interference with individual liberties."

Second, on the supposed value to the people to be sterilized.  The supposed advantage was that the sterilized individuals could return to the community and not have to care for children. I'm guessing we're all skeptical of such justifications.

But what really interests me is how long a tail these justifications have -- right up to the middle of the 1970s in one case.  In re Moore, a 1976 decision in the North Carolina Supreme Court, quoted Buck v. Bell for the proposition that the state has an interest in preventing births of children who will be charges on the state.  There was no heightened scrutiny for impositions on reproductive rights.  It's a shocking opinion, really -- much better suited to the era of the 1920s then the era of modern equal protection.  Mind you, this is three years after Roe -- which was also cited, not for the proposition that individuals have fundamental rights to control reproductive decisions, but for the proposition that the state may regulate those decisions.  (In re Moore at 102 ("The right to procreate is not absolute but is vulnerable to a certain degree of state regulation.  Roe v. Wade, supra; Buck v. Bell.")).  That's astonishing that Roe v. Wade and Buck v. Bell were cited together.

The illustration is the hospital building at the what was then known as the "State Colony for Epileptics and Feebleminded," where Carrie Buck was sterilized in the wake of Buck v. Bell.

North Carolina Sterilization Victims Compensation: Draft Act

Thanks to a pointer from Daniel Goldberg, here is the current version of the North Carolina bill to provide compensation for sterilization victims.

A key part of the bill is that each "qualified recipient" shall receive $50,000.  A "qualified recipient" is: "An individual who was asexualized or sterilized under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937, and who was living on March 1, 2010."  So anyone -- without distinction regarding the circumstances -- who was sterilized by order of the Eugenics Board and surived until March 2010 is entitled to compensation.

The trusts and estates professor in me is particularly interested in this part of the bill, which excludes compensation as available assets for determination of eligibility for government assistance programs:

§ 143B‑426.56.  Compensation excluded as income, resources, or assets.

(a)        Any payment made under this section is not subject to income tax as provided in G.S. 105‑134.6(b)(23), nor to be considered income or assets for purposes of determining the eligibility for, or the amount of, any benefits or assistance under any State or local program financed in whole or in part with State funds.

(b)        Pursuant to G.S. 108A‑26.1, the Department of Health and Human Services shall do the following:

(1)        Provide income, resource, and asset disregard to an applicant for or recipient of public assistance who receives compensation under this Part. The amount of the income, resource, and asset disregard shall be equal to the total compensation paid to the individual from the Eugenics Sterilization Compensation Fund.

(2)        Provide resource protection by reducing any subsequent recovery by the State under G.S. 108A‑70.5 from a deceased recipient's estate for payment of Medicaid‑paid services by the amount of resource disregard given under subdivision (1) of this subsection.

(3)        Adopt rules to implement the provisions of subdivisions (1) and (2) of this subsection.

Chanbonpin on Apology, Truth, Narrative, and Torture

Close readers of faculty lounge may have intuited that I am returning to writing about reparations after about a half dozen years away; and in many ways I feel like Rip Van Winkle returned to his much-changed village.  There's been some scholarship that looks much more deeply at issues -- especially apologies and truth commissions -- than we had a decade ago.  And also scholarship is looking at the case for reparations in different areas.  John Marshall Law School Professor Kim Chanbonpin's article "'We don't want dollars, just change': Narrative Counter-Terrorism Strategy, an Inclusive Model for Social Healing, and the Truth About Torture Convention," in the Northwestern Journal of Law and Social Policy is an example of both of those trends.  Here is Chanbonpin's abstract:

In 2007, Professor Eric K. Yamamoto acknowledged that reparations theory and practice had reached a crossroads and called for a new strategic framework that reparations advocates could utilize in working to achieve redress for social and historical wrongs. This Article attempts to answer Yamamoto's call. In it, I situate my proposal for a truth commission to redress the post-9/11 torture program in a new Inclusive Model for Social Healing. In the past, reparations advocates have relied on litigationa strategic model that excludes participants other than the named partiesto obtain redress. By increasing the number of stakeholders in a reparations scheme, the Inclusive Model for Social Healing has the potential to attract more widespread support from the public and is more resilient to criticism than exclusive litigation models.

Read the article here.

Reparations Trivia Question

I'm looking forward to Attorney General Eric Holder's graduation speech tomorrow in Chapel Hill. Perhaps this is the reason that I thought that I'd post a trivia question related to reparations.  Who wrote the following:

Given the perceived failures of the traditional civil rights agenda in bringing about racial equality in the US, a number of black commentators argue that a program of reparations is the only legitimate means of making up for three-hundred plus years of slavery.  More recently, some white commenatators have also supported a variant of the reparations concept -- for example, the government financing a Community Reinvestment fund that would be controlled by the black community and render affirmative action obsolete.   Do such proposals have any realistic chance of working their way through the political system?  Would there be any legal impediments to such a broadly-conceived reparations policy?

One hint here -- it wasn't me.  Though I think those are really critical questions.

Update, as of August 2012: Stacey Gahagan and I have our paper on Obama's syllabus up on ssrn.

Kahrl's The Land Was Ours

Andrew W. Kahrl's The Land Was Ours: African American Beaches from Jim Crow to the Sunbelt South (Harvard University Press, 2012) has just arrived in my mail box.  This is a really terrific study of segregated beaches in the South during Jim Crow and the transition to integration and the related loss of African American land along those beaches. It's a beautifully written and haunting story.  I highly recommend this book to property and land use professors.  I hope it gets a lot of attention in law schools as well as history departments.

Cribbing now from HUP's website:

Driving along the coasts of the American South, we see miles of luxury condominiums, timeshare resorts, and gated communities. Yet, a century ago, a surprising amount of beachfront property in the Chesapeake, along the Carolina shore, and around the Gulf of Mexico was owned and populated by African Americans. In a pathbreaking combination of social and environmental history, Andrew W. Kahrl shows how the rise and fall of Jim Crow and the growing prosperity of the Sunbelt have transformed both communities and ecosystems along the southern seaboard.

Kahrl traces the history of these dynamic coastlines in all their incarnations, from unimproved marshlands to segregated beaches, from exclusive resorts for the black elite to campgrounds for religious revival. His careful reconstruction of African American life, labor, and leisure in small oceanside communities reveals the variety of ways African Americans pursued freedom and mobility through the land under their feet.

The Land Was Ours makes unexpected connections between two seemingly diverse topics: African Americans’ struggles for economic empowerment and the ecology of coastal lands. Kahrl’s innovative approach allows him fresh insights into the rise of African American consumers and the widespread campaigns to dispossess blacks of their property. His skillful portrayal of African American landowners and real-estate developers rescues the stories of these architects of the southern landscape from historical neglect. Ultimately, Kahrl offers readers a thoughtful, judicious appraisal of the ambiguous legacy of racial progress in the Sunbelt.

 

 

The Administrative Law of Sterilization

Continuing on a series of posts on the North Carolina sterilization victims compensation movement, I want to talk  some about the administrative law of sterilization -- particularly the process by which people were selected for sterilization and how the approval process worked.  This is a topic on which there is less information than I'd like, because -- completely understandably -- the patient records are not generally available.  Johanna Schoen provides important information on this in her book Choice & Coercion: Birth Contrl, Sterilization and Abortion in Public Health and Welfare.  

What we do have, in addition to the statute, are two administrative manuals that told state officials how to proceed with sterilization petitions before the Eugenics Board, which was the body that had to give approval for publicly-funded sterilization.  The 1948 Administrative Manual is here, courtesy of the fabulous North Carolina State Library.  It's the first one that the state produced.  It has a brief history of the North Carolina movement for sterilization -- and points out in particular that North Carolina was influenced by California's experience.  The Manual cites the 1935 pamphlet, Eugenical Sterilization in North Carolina, which relies on Gosney's and Popenoe's study of 6000 sterilizations in California.

Following the North Carolina statute, the 1948 manual details who may be sterilized -- the "feebleminded, epileptic, and mentally diseased" -- and the circumstances in which this may happen: "when it is believed that such an operation would be for the best interests of the individual concerned, or for the public good, or when it is believed a child or children might be born who would have a tendency to serious mental or nervous disease or deficiency."

Then the manual gives specific instructions regarding who has the responsibility and power to file sterilization petitions --  the executive head of a penal or charitable organization or the county superintendent of public welfare and it gives instructions regarding the forms to use depending on whether the person to be sterilized is institutionalized or resident in the community.  Form 1 was for institutionalized individuals; form 2 was for people resident in the community.  The instructions for filing out those forms note that "the social information presented by the petitioner should contain all of the circumstances surrounding the person's life insofar as they have a bearing upon ... A.  The likelihood of the person to procreate a child or children who would have a tendency to serious physical, mental, or nervous disease or deficiency, and B. The reasons why it is considered to be for the public good that the individual have the operation."  I guess it's telling that the instructions do not call for specific evidence of why this is in the best interest of the individual, even though the sterilization statute says that is one reason supporting sterilization.

Consent?

The Sterilization Mindset

I've been working of late on the administrative law of sterilization: how the law provided a framework for the selection of people to be sterilized and how it dealt with their objections.  And also thinking some on courts' deference to legislatures....

One article that interests me in particular is Michigan Law Professor Burke Shartel's "Sterilization of Mental Defectives," which appeared in the Michigan Law Review in 1925.  Shartel apparently wrote the Michigan law for sterilization and his article was largely an explanation of the statute and also a discussion of the 1925 Michigan Supreme Court's 1925 decision in Smith v. Command, which upheld the Michigan sterilization statute only over the vigorous dissent of three justices.

Shartel was writing a couple of years even before Buck v. Bell -- and like many other writers in the 1920s, saw a cost-benefit analysis as one essential part of sustaining a forced sterilization statute.  He minimized the problem -- for instance, at one point he wrote that though there are 20,000 "feeble-minded" persons in the state, "[t]his would not be too many to sterilize, considering the population as a whole...."  Then -- following the lead of the Michigan Supreme Court -- Shartel suggested that the issue involved calculating society's need.  "If the social need be great enough the state can deprive of liberty (as it does do with the insane, the criminal, the man who objects to vaccination and so on) or it may take life (as it does as a penalty for crime or by drafting into the military service and exposing to death, etc.)."  That was a cost-benefit analysis that admitted of little room for humanity.  

Perhaps this should not surprise anyone, but Shartel (and others at the time) approached the act with great deference:

Simple doubt of the wisdom or policy of a statute is not decisive against its constitutionality.  The sterilization statute is "expressive of a state policy apparently based on the growing belief that, due to the alarming increase in the number of degenerates, criminals, feeble-minded, and insane, our race is facing the greatest peril of all time.  ... Unless for the soundest constitutional reasons, it is our duty to sustain the policy which the state has adopted." (quoting Smith)

This was an era of deference to legislatures on issues of individual rights and of the subordination of individual rights to the claims of the state.  Even before Smith, Aubrey Strode, the lawyer for the state in Buck v. Bell published a short examination and defense of the Virginia statute, "Sterilization for Defectives," in the Virginia Law Review in 1924.

When the Virginia Law Review  discussed the Virgina Supreme Court's 1925 decision in Buck v. Bell, it suggested that great deference was due the legislature: "Every possible presumption is in favor of the validity of an act until overcome beyond rational doubt."  That was the nature of constitutional law at the time, even though some -- like Harvard Law Professor Thomas Reed Powell -- understood that "calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls."  Later in that same work, Powell questioned the utilitarian calculus so many employed: "Calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls."  There were other voices calling for reason, too.  Clarence Ruddy's article in the Notre Dame Lawyer in 1927  was probably the strongest case in a law review in the 1920s against sterilization.  A year earlier, Jacob Broches Aronoff wrote in the St. Johns Law Review about the reasons for public opposition to eugenics legislation.  For instance, it "looks like a heartless method on the part of the tax-paying classes of getting rid of a duty of caring for the helpless and unfortunate of the poorer strata of society...."

Ruddy's article appeared just after Buck v. Bell was decided; one of the pernicious aspects of that case, I think, was its legitimation of sterilization.  For in the few years after it, law reviews frequently pointed to it to sustain their arguments.  For instance, William Renwick Riddell reviewing Sterilization for Human Betterment in the ABA Journal  in 1930 invoked Bell and then added that "the appalling prevalence of imbecility and the consequent drain upon the resources of the people have imprelled many to consider sterilization of the imbecile as called for ...." Riddell concluded "other jurisdictions may well profit by the example of California."  Similarly, University of Illinois Sociology Professor Donald R. Taft's review of Sterilization for Human Betterment  in the Illinois Law Review concluded that "Sterilization will eliminate many socially dangerous homes.  If, as is quite probable, a race somewhat sounder eugenically also results, we can all rejoice." 

On a related note, I saw Judge S.F. Hobbs' address in the Alabama Law Journal in 1929, "A Law Which is not in the Law Books, Yet Fills Them," which is supports eugenics.

The Latest on the North Carolina Sterilization Victims Compensation Movement

Here is an editorial from yesterday's Winston Salem Journal on the movement for compensation for victims of North Carolina's sterilization movement and here is an editorial from John Hood, the head of the John Locke Foundation.  Next month promises to be very important in the legislature; I'm looking forward to the discussion.  Previous posts here at the faculty lounge on this topic include:

Two Eugenics Memorials

The Presumption of Constitutionality and Sterilization Legislation

Gauging Attitudes from Law Reviews: The Case of Sterilization

Designing Compensation for Sterilization Victims, part I

Designing Compensation for Sterilization Victims, part II

North Carolina Sterilization Victims Compensation

Update as of June 5:  here are my other posts:

The Administrative Forms for Sterilization

North Carolina Sterilization Victims Compensation: Draft Act

The Sterilization Mindset, Circa 1976

 

 

The Presumption of Constitutionality and Sterilization Legislation

As I was reading General Holder's letter to the Fifrth Circuit earlier today, I was struck by a parallel to some of the debate regarding sterilization legislation.  Holder remarked that "Acts of Congress are 'presumptively constitutional,' Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Court stressed that the presumption of constitutionality accorded to Acts of Congress is 'strong.'”  This is reminds me of an argument made -- repeatedly -- by advocates of sterilization that there should be deference (sometimes on the factual question of whether sterilization is a good way of limiting the burden on the public and at other times whether sterilization is a reasonable exercise of the police power).  Consider, for instance, the Virginia Law Review's discussion of the Virgina Supreme Court's 1925 decision in Buck v. Bell.  It suggested (at 421) that great deference was due the legislature: "Every possible presumption is in favor of the validity of an act until overcome beyond rational doubt."  That was the nature of constitutional law at the time, even though some -- like Harvard Law Professor Thomas Reed Powell, writing a few years later, also in the Virginia Law Review -- understood that "calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls."

Moreover, Michigan Law Professor Burke Shartel's "Sterilization of Mental Defectives," which appeared in the Michigan Law Review in 1925, focused on the Michigan's legislature's finding of "facts" regarding the effects of sterilization.  Shartel's article was, in essence, a defense of the Michigan Supreme Court's 1925 decision in Smith v. Command, which upheld the Michigan sterilization statute only over the vigorous dissent of three justices.  Shartel argued (at 21) that "the court ought to require the facts on the basis of which the constitutionality of a law is assailed to be established by the assailant 'beyond a reasonable doubt.'"  Shartel was asking for deference on issues of "fact," whereas the Virginia Law Review note had a broader sense of deference, I think -- deference regarding the scope of the police power (or at least on the "reasonableness" of sterilization, which I take it was central to deciding whether that was sterilization was a valid exercise of the police power).  Therein was a huge problem, given the deference that many courts showed to what was "known" about the desirability of sterilization and the costs and benefits of eugenics.  I'll have a lot more to say about the sterilization mindset shortly.

Gauging Attitudes from Law Reviews: The Case of Sterilization

I'm now getting a chance to get back to working on the growing movement for compensation for victims of North Carolina's state-ordered sterilization.  (I've previously written a couple of posts on designing a compensation plan and a couple of other posts discussing North Carolina's practices.)  I've been thinking a lot about the varying levels of coercion that were involved here.  Some of the cases were among the most egregious state-sponsored intrusions on personal autonomy anywhere in the United States in the twentieth century; in other cases (perhaps not many, but at least some) those who were sterilized actively sought out the sterilization.

One thing that is important to making a case here is that there were a lot of people at the time -- like as far back in the 1930s -- who argued that involuntary sterilizations were improper.  That is, people at the time realized that this was wrong.  This is not a case of us reading back our early twenty-first century sense of what's right onto decisions made by legislators in the 1930s when North Carolina passed a sterilization act that passed constitutional muster.  (Recall that the first North Carolina sterilization act was struck down in 1933 by the North Carolina Supreme Court because it had a shocking lack of due process.)

So that leads me to two issues.  First, who were those who argued against sterilization?  Well, some of them were professors and law students writing in law reviews.  If there were debate today, one might look to blogs to gauge the ideas of law students and faculty -- maybe.  (There's some work that needs to be done on legal academic blogging -- we had a lot of that about half a dozen years ago; it may be time to revisit that.)  But back in the 1930s?  Looking at law reviews is a good way to get a rough gauge of the legal profession's attitudes towards sterilization.  For instance, J. H. Landman's 1932 book Human Sterilization was reviewed in a number of journals.  Landman was somewhat skeptical of sterilization, but often the reviews went beyond him and were quite critical of sterilization.  To take a few examples, George Roche's review in the California Law Review (22 Cal. L. Rev. 129 (1933) was quite critical of Landman for failing to engage more fully the deep moral qualms about sterilization.  For instance, Roche wrote that we get the impression that, while consciously rejecting the more extreme and doctrinaire point of view, the author does not always recognize the Devil in disguise."  Reviews in the University of Pennsylvania Law Review (81 U. Pa. L. Rev. 653 (1932-1933)) and the Boston University Law Review (12 B.U. L. Rev 749 (1932)) said -- in essence -- let's slow this down.  And a few years before, the Yale Law Journal had a somewhat more mild approach -- still a "could we please look at the evidence first"  approach -- in a review of a 1930 book, E.S. Gosney's and Paul Popenoe's Sterilization for Human Betterment (39 Yale L.J. 592 (1929-1930)).  The Harvard Law Review's even shorter review of Sterilization for Human Betterment concluded with an observation that the imminence of eugenic legislation was disturbing  (43 Harv. L. Rev. 162 (1929-1930)).  Not wild criticisms by any means, but certainly concern about what was coming.

Then again, the review in the Southern California Law Review,  (6 S. Cal. L. Rev. 349), in 1933 began with an epigraph from Nietzsche!

I teach you the Superman! Man is something that shall be surpassed. What have ye done to surpass him? All beings that have come into the world heretofore have created some- thing beyond themselves. Are ye going to be the ebb of the tide? Are ye going back to the animal Or ahead to the superman?

Behold, I teach you the superman!

Also sprach Zarathustra, I. Nietzsche.

With such a beginning, one might have expected support for eugenics; in fact, the review criticized Landsman for not considering a stronger argument for sterilization:

Dr. Landman proposes that segregation rather than sterilization might more properly solve the problem of what is to be done with the socially inadequate people.  But he does not at all discuss what must be a foremost question in any consideration which presumes that our present arbitrary standards are the ones upon which to build the normal man, and which on the basis of that standard designates certain individuals as mental deficients.  I refer to the question of outright extermination of the "unfit."  One of the leading reasons assigned for the necessity of human sterilization of the incompetent is state economy.  It is urged that caring for these cacogenic persons--whether in hospitals, insane asylums, prisons or institutions for the feeble-minded--costs the State vast sums of money.  Besides there is the damage done by defective abroad in society.  If individuals are so imperfect that society feels it necessary to prevent them from perpetuating themselves in the race lest they burden future generations with the care of their offspring, why not just exterminate them now and rid the State once and for all of the burden?  Surely a survey which purports to outline the field of inquiry into the problem of human sterilization and its ramifications is incomplete unless it considers this possibility.

I take it the author of the review, Ernestine Tinsley, understood the absurdity of this proposal and that she was using it to undermine the idea of eugenics.

Roundup of North Carolina Sterilization Victims Compensation

Here is a video of Charmaine Fuller-Cooper speaking to the UNC Center for Civil Rights about the movement for compensation for North Carolina sterilization victims.  I'm excited to have the sense that things are moving forward.  This is a topic I've been talking about here for some time now.  I continue to think there are some important issues in designing a compensation plan (and here).  Also, here's Debra Goldschmidt's CNN story on compensation and also a link to a discussion I had at the legal talk network with James Bowden and Craig Williams about compensation.

Designing Compensation for Sterilization Victims, Part II

Following up on a post from a few days back on how we could approach the problem of designing a compensation plan for victims of North Carolina's sterilization program, I want to try out an idea.  What's on the table now is $50,000 for every now-living survivor -- that's what the Governor's Task Force is recommending.  There are some obvious advantages to these kinds of payments.  No amount of money will return victims to the position they were in, so we have to settle on some rather arbitrary figure in every case and rather than trying to gauge varying levels of suffering, it makes everyone's life easier to give the same amount.  This may work particularly well where everyone has suffered in pretty much the same way.  That flat approach was used in the compensation of Japanese Americans interned during World War II who survived until 1986.  

There are, however, other compensation schemes.  The 9.11 Victims Compensation Act (also known  -- revealingly -- as the Air Transportation Safety and System Stabilization Act) is one that provided differential amounts -- vastly differential, actually -- based on the lost income of 9.11 victims.  That bothers me in a lot of ways, in that it compensated families differently based on how much their loved ones made.  (Even with that differential, I understand that some of the families of high-earning victims thought that they were under-compensated.)  Without wading too much into a topic that's a distant analogy to this issue, it seems like if you're going to have a compensation program like this and not going to give everyone the same, perhaps some of the differential should be based on how much the survivors were dependent on the deceased.

I have already raised the possibility, however, that there may be some significant differences between the sterilization cases in North Carolina.   That is, that the levels of intrusion on personal autonomy varied -- perhaps dramatically -- in some of these cases.  There are well-documented instances of shameful interference with personal autonomy.  But what I'm less clear on are the "voluntary" cases, where at least some people seem to have sought out state-supported sterilization.  And so that leads to a question, which a friend asked recently, would some kind of program more akin to 9-11 be appropriate here?  Because we do not have a good estimate of the number of still-living victims (and thus are not quite sure what the cost of the program will be) and there are some important (though potentially not resolvable) questions about the level of coercion involved, perhaps we should think about setting aside an appropriate amount of compensation and then have a special master try to make more focused determinations based on whatever records are available.  I'm wondering if something like that might well address the differences between the cases?

The illustration is from the North Carolina Historical Highway Marker Program, on McDowell Street between Jones and Edenton Streets in Raleigh.  What particularly interests me about this marker is they got the story right in a very few number of words -- the program was state-sponsored and some were sterilized involuntarily -- through varying levels of coercion -- and others by "consent."  Though "consent" may often have involved a lot of coercion.  Next time I'm over in Raleigh I'll have to get a picture of that.  And also a picture of the NC Department of Justice, which -- irony of ironies -- now occupies the Old Education Building.  That is the building where the Eugenics Board met.

Designing Compensation for Sterilization Victims

In 1943 the North Carolina Law Review published an article by Harvard Law Professor Thomas Reed Powell on "Compulsory Vaccination and Sterilization: Constitutional Aspects. "  Powell was trying to provide guidance on just what the Constitution  permitted in terms of public health measures, from vaccination through sterilization.  The article reads very much like the opinion of a realist; there are several references to how ambiguous the law is and how difficult it is to predict what will happen in subsequent cases.  "If all this seems sadly vague and amorphous to those who extract certainties out of test tues, it can only be answered that of such is the kingdom of jurisprudence," Powell wrote towards the end.  He thought that the twin Supreme Court precedents of Buck v. Bell (1927) and Skinner v. Oklahoma (1942) offered little "light on what they or their successors would do with milder measures, except to make clear that they would be zealous in insisting upon strong scientific support for the necessity and the efficacy of prophylactic prescriptions and upon adequate procedural safeguards in picking the persons subjected to them."  Later Powell observed that Skinner v. Oklahoma -- which struck down Oklahoma's law that permitted sterilization of those convicted of three felonies -- would not be a "stumbling block in the way of any sane public health program however much it may intrude on privacy and preclude self-determination."

Powell's article was published while North Carolina was in the midst of a decades-long program of sterilization.  Several years after that Duke Law Professor James Bradway -- a famous figure in the development of legal aid and also clinical education -- published a brief article that summarized North Carolina's law regarding involuntary and voluntary sterilization.  He included  the good news for physicians that there were immune from civil liability for participation in what Bradway termed involuntary sterilizations (those ordered by the Eugenics Board), "except in the case of negligence in the performance of said operation."

Now North Carolina is debating what, if anything, it ought to do about that.  In 2003 then Governor Mike Easley issued an apology to victims.  At the end of last month the "Governor’s Task Force to Determine the Method of Compensation for Victims of North Carolina’s Eugenics" recommended that each now-living person who was sterilized receive $50,000.  The kin of those who have already passed away will receive nothing under this plan.  And while one might think that the victims would have no children, a fair number of people who were sterilized had already had children.

I've been following this with increasing interest over the last six months or so and am now mightily interested in it.  (Here's Debra Goldschmidt's CNN story on this and also a link to a discussion I had earlier in the week at the legal talk network with James Bowden and Craig Williams on this).  There are several issues that especially interest me in all of this.  First, just how did the government's program function?  Who was selected for sterilization; how did the administrative agency -- the state Eugenics Board -- operate; what are the demographic data on the gender, age, race, and family status of those sterilized?   (North Carolina's first sterilization act, passed in 1929, was struck down by the North Carolina Supreme Court in Brewer v. Valk in 1933 because it didn't afford enough due process.)  Judging from the Eugenics Board Meeting minutes that are on the North Carolina Sterilization Victims Compensation Fund website the hearings were perfunctory and often no family members challenged the petition for sterilization.  And rather hauntingly -- though understandably -- there were well-established administrative procedures for this, including a type-script manual produced in 1948, and pre-printed sterilization petitions for state officials to fill out.

North Carolina Sterilization Victims Compensation

I'm going to be talking on Wednesday about two topics I was once mightily interested in -- the history of sterilization and reparations.  First a little background: North Carolina has been for several decades now revisiting its history with sterilization from the late 1920s to the early 1970s.  In 1992 the state issued an apology and more recently the movement to provide some sort of compensation to vicitms has been gathering stream.  Back in 2010 North Carolina Governor Bev Perdue established the North Carolina Justice for Sterilization Victims Foundation, with the goal of providing some sort of justice and to make recommendations regarding compensation.  The NCJSVF had a number of public meetings and has been studying both what happened and what should be done now.  The published their extensive final report at the end of last month.

The NCJSVF website has a lot of resources, including some case files of people who were sterilized and minutes of the Sterilization Board, which summarize their deliberations.  I find this particularly haunting, especially the pre-printed forms used to collect information on people who were being recommended for sterilization.  The NCJSVF's report builds on a lot of work that has been done by journalists -- like the Winston Salem Journal's extensive coverage back in 2002, which was based on historian Johanna Schoen's extensive and important work.  (Schoen's book, Choice and Coercion, appeared from UNC Press in 2005).

North Carolina has been one of the leaders in revisiting historical injustice.  We had a state commission to study the 1898 Wilmington riot and also a truth and reconciliation committee to revisit the 1979 Greensboro massacre.  The current proposal is to provide $50,000 to every now-living victim of sterilization.  This has a long way to go before it becomes law, of course; but that's what's being discussed now.  There is an important discussion that should take place here about what happened and why; I think we need to delve more deeply who was selected for sterilization and why.  And then there's a very important discussion about the moral case for payments and why the current generation should pay for the crimes of past.

Here's a recent article on this from CNN and here is a recent NPR story.  Michael Waterstone of Loyola Law School has more on this at Huffington Post.  Also, here's a link to the State Library's digital collections page with extensive documents on North Carolina Sterilization.