Legal History
Democratic Policing Before the Due Process Revolution
Prevailing narratives of the Warren Court’s Due Process Revolution emphasize how it constrained police behavior. This Essay questions this account. It returns to the legal culture before the Revolution, focusing on three lectures by the prominent scholar Jerome Hall. Due process, it concludes, as much justified as restrained police discretion.
The Forgotten History of Metes and Bounds
Property scholarship has long derided metes and bounds systems of land demarcation, largely accepting that standardized boundaries best facilitate economic growth. Through a case study of colonial New Haven, Connecticut, this Article suggests that metes and bounds descriptions actually provided early Americans significant social and economic benefits.
An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act
This Article recovers an institutional experiment in the early history of the Fair Labor Standards Act as an example of democratic and egalitarian administrative law. The Act’s wage boards, the Article suggests, offer an alternative, participatory vision of governance in today’s age of growing political and social inequality.
Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony
In the wake of Hurricanes Irma and Maria, Puerto Ricans were faced with a stark reminder of their second-class citizenship. This Note traces the development of the island’s civil rights movement through the little-known history of the Puerto Rico Legal Project, revealing the power (and limits) of rights in a colony.
Transparency’s Ideological Drift
From the early twentieth century to the present, the concept of transparency in American law has drifted across the political spectrum. Originally linked with progressive causes, it is now associated primarily with libertarian or neoliberal aims. This Article traces this multigenerational transformation.
Petitioning and the Making of the Administrative State
This Article traces the roots of the modern administrative state to the petition process, drawing on an original database of over 500,000 petitions submitted to Congress from the Founding until 1950. This institutional history provides a deeper functional and textual understanding of the administrative state within our constitutional framework.
The Original Theory of Constitutionalism
The conflict between various versions of “originalism” and “living constitutionalism” has long defined the landscape of constitutional theory and practice. In this Review of Richard Tuck’s The Sleeping Sovereign, David Grewal and Jedediah Purdy adapt the sovereignty-government distinction at the heart of the theory of the modern democratic state.
Before (and After) Roe v. Wade: New Questions About Backlash
120 Yale L.J. 2028 (2011). Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash narrative. Where others have deplored the abortion conflict as resulting from courts “shutting down” politics, we approach the abortion conflict as an expression of politics—a conflict in which the Supreme Court was not the only or even the most important actor. In this essay, we ask what escalation of the abortion conflict in the decade before the Supreme Court decided Roe might teach about the logic of conflict in the decades after Roe. To do so, we draw on sources we collected for our recently published documentary history, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (2010). We begin our story at a time when more Republicans than Democrats supported abortion’s decriminalization, when Catholics mobilized against abortion reform but evangelical Protestants did not, when feminists were only beginning to claim access to abortion as a right. We show how Republicans campaigning for Richard Nixon in 1972 took new positions on abortion to draw Catholics and social conservatives away from the Democratic Party. Evidence from the post-Roe period suggests that it was party realignment that helped escalate and shape conflict over Roe in the ensuing decades. The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive, and that adjudication is to be avoided at all costs. We are not ready to accept this grim diagnosis at face value, and we urge further research into the dynamics of conflict in the decades after Roe. The stakes in understanding this history are high.
Publius and the Petition: Doe v. Reed and the History of Anonymous Speech
120 Yale L.J. 2140 (2011). This Note argues that signatures on petitions intended for use in direct democracy processes such as ballot initiatives should be subject to public scrutiny and disclosure. They should not benefit from free speech protections allowing for anonymity. Signatures used in these proceedings should not be considered petitions or speech at all, but rather lawmaking. Through historical, doctrinal, and prudential analysis, this Note distinguishes between core First Amendment rights, which might include signatures on a general petition with no legislative implications or minority associational rights, and speech-like activity that forms part of the regulated lawmaking process.
Federal Administration and Administrative Law in the Gilded Age
119 Yale L.J. 1362 (2010). The dominant story of America’s so-called “Gilded Age” describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding to the emerging social and economic needs of the day. Only toward the end of this era, with the passage of the Interstate Commerce Act of 1887, did the national government begin to break free from a laissez-faire ideology that was antithetical to state building in virtually all of its forms. Indeed, on this conventional account, the American administrative state, and with it administrative law, only began to emerge in the early twentieth century. And both remained underdeveloped until the New Deal constitutional revolution. There is much truth to this familiar narrative, but it is far from the whole truth. State capacities built steadily throughout the post-Reconstruction era. Congress created multiple new departments, bureaus, and programs, and federal civilian employment grew much more rapidly than population. Just as today, conflicts between political parties, the drama of electoral politics, and the vagaries of congressional lawmaking dominated the headlines. But the day-to-day activities of government were in the charge of administrative departments and bureaus. Operating under broad delegations of authority, administrators developed a rich internal law of administration that guided massive administrative adjudicatory activity and substantial regulatory action as well. Moreover, policy innovation at the legislative level depended heavily on the research and recommendations of existing administrative agencies. In short, if we look at legislative and administrative practice rather than at constitutional ideology or political rhetoric, we can see the emergence of a national administrative state and national administrative law before either had a name.
The Politics of Nature: Climate Change, Environmental Law, and Democracy
119 Yale L.J. 1122 (2010). Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and scale of government. This Article traces several major episodes in those developments: the rise of a Romantic attachment to spectacular landscapes, a utilitarian ideal of rational management of resources, the legal and cultural concept of “wilderness,” and the innovation of “the environment” as a centerpiece of public debate at the end of the 1960s. The Article connects each development to changes in background culture and values and the social movements and political actors that brought them into public debate and, eventually, legislation. The result is both a set of specific studies and the outline of an account of the ways that the political struggles of a democratic community have created new, and always contested, ideas of “nature” throughout American history. The Article then shows how past episodes cast light on the present: today’s climate politics, including the seemingly anomalous (even “irrational”) choices by municipalities to adopt the Kyoto carbon-emissions goals, makes most sense when understood as an extension of a long tradition of political argument about nature, which does not simply take “interests” as fixed, but changes both interests and values by changing how citizens understand themselves, the country, and the natural world.
The Significance of Domicile in Lyman Trumbull's Conception of Citizenship
119 Yale L.J. 1351 (2010).
The Significance of Signatures: Why the Framers Signed the Constitution and What They Meant by Doing So
119 Yale L.J. 966 (2010). The signing of the U.S. Constitution is traditionally understood as the closing act of the Constitutional Convention. This Note provides an alternative account, one that understands the Constitution’s signing as the opening act of the ratification campaign that followed in the Convention’s wake. To begin, the Note explains the signatures’ ambiguous form as the product of political maneuvering designed to win support for the Constitution during ratification. The Note then hypothesizes two ways in which the signatures may have helped to secure this support: (1) by highlighting pro-Constitution selling-points likely to resonate with the ratifying public; and (2) by limiting the ability of the signers to distance themselves from the Constitution once ratification battles had begun. Finally, the Note identifies a few respects in which this ratification-centered account of the Constitution’s signing may influence our modern-day understanding of the document.
How Much Redistribution Should There Be?
112 Yale L.J. 2291 (2003) Egalitarianism ties people's fortunes together. It takes the good and bad things in people's lives--their blessings and their afflictions--and shares them out, or redistributes them, among their fellows. Where egalitarianism operates, each person's fortunes and misfortunes cease to be just her own and become, to the extent egalitarianism recommends, a part of communal fortunes and misfortunes, shared in by all those who come under egalitarianism's purview. Egalitarian political theories are not the only ones to tie people's fortunes together; feudal theories, for example, do so as well. But egalitarianism differs from these and other political theories in the manner of its tying. Egalitarianism insists that all people's lives are equally important and, accordingly, that no person's fortune may be subordinated to anyone else's. Egalitarian intuitions call for redistribution that takes from the better-off--the rich, the healthy, and the fulfilled--and gives to the worse-off--the poor, the sick, and the desolate. But these intuitions stand in need of elaboration, and an egalitarian theory answers this need by presenting an articulate account of nonsubordination among persons. A fully developed conception of nonsubordination must address many practical or applied problems, including many problems that are familiar in the law, and egalitarian political theory has indeed been brought to bear on such problems in legal scholarship. Thus lawyers have, for example, considered egalitarianism's implications for the choice of the tax base, the legal treatment of disabilities, health-care policy, and even the role that cost-benefit analysis should play in administrative practice. But before these and other more specific issues can be approached with any measure of confidence or clarity, an egalitarian theory must address two more general, theoretical questions, and efforts to answer these questions must proceed in a more broadly philosophical vein. The first question was made famous by Amartya Sen in the title of his 1979 Tanner Lecture Equality of What? This question asks, in G.A. Cohen's words, "What aspect(s) of a person's condition should count in a fundamental way for egalitarians . . . ?" It suggests that egalitarians search, as Cohen put it, for an equalisandum, a thing whose equal distribution secures nonsubordination. Here it is critical that egalitarianism calls for the nonsubordination of persons, and the equalisandum must be chosen bearing this in mind. The proposal, for example, that everyone should be given an equally long name fails as a conception of egalitarianism because the length of someone's name does not capture what is important about her person, so that equality among name lengths is entirely consistent with subordination among persons. An egalitarian theory must also answer a second question, the question posed in my title, namely "How Much Redistribution Should There Be?" To do this, an egalitarian theory must develop a conception of nonsubordination that explains how the equalisandum, whatever it is, must be distributed in order for no person's fortune to be subordinated to any other's. Put slightly differently, an egalitarian theory must develop a view of what counts as an equal distribution of the equalisandum. Because the equal distribution will almost certainly not be the distribution produced in the ordinary course of economic and social activity, this means that an egalitarian theory must develop an account of redistribution. This second question (the question concerning how much redistribution there should be) has been less intensively investigated than the first question (concerning the proper equalisandum). However, the second question is not any less central to egalitarianism (or any less important generally) than the first, and, as my title indicates, it is the question I explore here. I shall develop a view that is implicitly accepted by most egalitarians, namely that nonsubordination requires redistribution to follow moral responsibility, specifically by eliminating luck's differential effects on persons' fortunes while leaving persons fully to bear the consequences of their (morally responsible) choices. I shall consider certain central features of this responsibility-tracking egalitarianism more carefully and completely than others have done, and this will lead me to conclude that the view's dual ambitions are unattainable, so that much of the most prominent philosophical discussion of egalitarianism involves a fundamental mistake. Finally, I shall introduce a new account of egalitarianism based on a new conception of nonsubordination that avoids some of the errors of the responsibility-tracking view.
The Secret History of Race in the United States
112 Yale L.J. 1473 (2003) In the beginning, there was a man named Looney. George Looney's world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, Looney owned a mill and a store. He had a thriving family. His home was near Looney's Creek. But Looney's world was changing. Outsiders were moving to Appalachia to chop, saw, dynamite, and chisel the countryside. Among them were black people, never a common sight in Buchanan, "one of the whitest counties, not only in Virginia, but in the entire South." The locals proved hostile to the newcomers. Although southwestern Virginia had an extremely small African-American population, more lynchings occurred there between 1880 and 1930 than in any other part of the state. The violence was most common in the more industrialized counties immediately to the east. Even so, in early 1893, after mobs lynched five blacks in neighboring Tazewell, vigilantes and rioters rode through Buchanan, declaring it "altogether a white county." About five years after the mob violence in Buchanan, a young man named George Spencer crossed the Kentucky line into Virginia. Over the next decade, he married a local woman, had six children, and settled near the Looneys. Spencer, a farmer, worked for Looney at times, and the families often ate together, stayed over at each other's houses, and sent their children to the same schools. Their community was small; the local teacher was a third cousin to the Looneys and kin by marriage to the Spencers. However, when Spencer's brother was accused of killing Looney's brother, the families stopped talking. And then Looney started talking, to just about anyone who would listen: "[The Spencers] are nothing but God damned negroes, and I can prove they are God damned negroes." Adopting these words as a mantra, Looney--"thoroughly addicted to the abominable habit" of profanity --uttered them at the mill, at his store, at home, and in town. In the summer of 1911, his words flowed down the branches and forks and creeks wrinkling through Buchanan. Before the local school opened for the fall term, Looney approached his cousin, the teacher, told him to tell the Spencers that he called them "damned niggers," and declared that he would take his children out of school. "They shan't go with negroes," he said. Then Looney sharpened his attack. He traveled to nearby Johnson County, Kentucky. "[T]hrough strenuous efforts, involving costs and expenses," Looney found men who knew Spencer's grandfather--old men, on either side of eighty, who lived in places with names like Paintsville, Jennies Creek, Burnt Cabin, and Lick Fork, and knew Jordan Spencer, Sr., "[e]ver since the war, and before too." These men remembered his thin lips, blue eyes, and "tolerably straight," long red hair, quite possibly "painted," with "a kind of a slick rim where his hat went." One recalled that "a wild, drinking kind of a dissipated man" named Letcher Davis used to tell the Johnson County locals that Spencer had mixed blood, and others talked about nagging rumors that would pop up every now and then. Looney paid for a school official to accompany him on his expeditions. With affidavits in hand, Looney convinced the Rock Lick School District to expel Melvin Spencer from the third grade. George Spencer then sued Looney for slander, seeking damages of ten thousand dollars. Spencer v. Looney was one of dozens of cases decided in the eras of slavery and segregation that hinged on the question of whether a plaintiff or defendant was white or black. During the past decade, legal historians have begun to excavate these bygone disputes, which involved wills, marriage and divorce, transportation, immigration and naturalization, and libel and slander. With few exceptions, two goals have motivated recent scholarship: proving that race is a social construction and showing how courts in the nineteenth and early twentieth centuries helped build America's racial infrastructure. This Essay presents a more complex picture of race in the post-Reconstruction South in an attempt to develop a richer understanding of how the law of race worked. Cases that required a determination of a plaintiff's or defendant's racial identity provide rare glimpses into the private lives and worldviews of real people. Although contained within the conventions of briefs, legal opinions, and direct and cross examination, their voices vividly express a largely unexplored degree of self-consciousness about what race does and does not mean. Making sense of the private beliefs aired in courtrooms is an essential task of the legal history of race. Cases like Spencer v. Looney show people who exercised a surprising degree of tolerance in their everyday lives at a time of massive racial hysteria and who had a basic awareness that racial identity was something that could be disputed and creatively argued, at least in the courtroom. After surveying the legal historiography, I explore what current scholars, with a few notable exceptions, have missed: that many of the historical actors understood that race is a social construction. For most legal historians, the actors in cases such as Spencer v. Looney--parties, lawyers, witnesses, judges, spectators, and contemporaneous commentators--have been useful only to the extent that their doings, presumably unconscious or unintentional, reveal inconsistencies about, and thus the socially constructed nature of, race. In fact, at the turn of the twentieth century, there was widespread discussion of the artificiality of the color line, in courtrooms, legal commentary, social science literature, journalism, and fiction. It is no exaggeration to say that at the height of Jim Crow, people--even and perhaps especially the most rabid of racists--understood what a legal fiction was. At the root of at least some of this self-consciousness is a phenomenon in American social history that the law, as a forum where family secrets were uttered aloud, is uniquely positioned to reveal. Over the course of the nineteenth century, the United States shifted from an identity regime that recognized "mulattoes" as a distinct racial category to one that divided the world strictly into black and white. Although this transition has been generally regarded as a time when mulattoes were absorbed into a black world, it was also a time when many established themselves as white. That is to say, across the South at the turn of the twentieth century, ostensibly white people who were socially accepted as white had African ancestry. This racially porous status quo was at odds with the extreme and often violent politics of segregation. While the most paranoid ideologies of "racial integrity" sought to classify every person with any African ancestry as black, this "one-drop rule" had the broad potential to be destabilizing for the white South. If no one's racial status was secure without an exhaustive genealogy, the governmental apparatus of segregation and white supremacy would be perpetually threatening to whites. Instead, statutory definitions of race reflected the status quo, defining as white those people who had as much as one-fourth or one-eighth "Negro blood." Formalistic judicial enforcement of the color line preserved this status quo, making it difficult to prove that people who were accepted as white were in fact black and encouraging actions for damages such as Spencer v. Looney. As a result, extreme segregationists sought to push the color line toward a one-drop rule by arguing that the more generous statutory definitions of race were absurd, illogical, and socially constructed--an ironic contrast to quite similar observations made by progressive scholars today. This complicated picture of race in the turn-of-the-century South has been absent from legal scholarship. At the heart of this Essay is an attempt to take race beyond conventional legal history and view cases about the color line as portals into a world of secret histories--whispered gossip, unstated understandings, and stories purposely forgotten.
Friedman's Law
112 Yale L.J. 925 (2003) In this appraisal of Lawrence M. Friedman's American Law in the Twentieth Century, I begin in Part I with a survey of the several "schools" of American legal history that have risen to prominence in the years since World War II, utilizing a suggestive framework first offered by Professor Stephen Presser two decades ago. In Part II, I discuss Professor Friedman's intellectual debt to Willard Hurst, as well as his previous scholarly efforts to synthesize major developments in American law over the last century. Part III assesses the organizational framework, methodology, and interpretations of evidence offered by Friedman in the present book, while Part IV provides a critical discussion of these strategies. Part V raises the question of the relationship of American legal history to what has been characterized, and criticized, by some historians as "Whig" history, and offers a final assessment of Friedman's newest volume.