Health Care in the Shadow of the Law: The Impact of Abortion Jurisprudence

Johanna Schoen, Abortion After Roe (2015).

The Supreme Court’s latest abortion case, Whole Women’s Health v. Cole, involves a challenge to a Texas law targeting not women seeking abortions but the clinics that provide them. Yet, as Johanna Schoen’s Abortion After Roe reminds us, we know little about how abortion regulations affect those who deliver reproductive health services. Schoen carefully documents how the Court’s abortion jurisprudence has transformed what goes on in American clinics. While historians and legal scholars have often focused on the effect of the Supreme Court’s jurisprudence on access to abortion, Schoen, by focusing on law’s impact on abortion providers, tells a far more nuanced story.

Throughout Abortion After Roe, Schoen focuses on the experience of providers and patients at independent abortion clinics. While the story of Planned Parenthood and other major abortion providers deserves scholarly attention, Schoen persuasively uses the experiences of independent clinics to understand the complex relationship between feminist politics, potential profit, and legal interference that dictated practice at many American clinics. The vast majority of clinics that opened their doors in the 1970s were independent, and by telling their story, Schoen provides a valuable picture of how the medical practice and business of abortion care developed over the course of several decades in an increasingly hostile climate. Independent clinics also often challenged the strategic priorities of the political pro-choice movement. Their experiences expose the disconnect between the reality of abortion care and the rights won and lost by pro-choice lawyers.

She begins in the 1970s, a forgotten heyday for the business of abortion care. With the release of pent-up demand for legal abortion after the Roe decision, entrepreneurs recognized a valuable opportunity. At the same time, feminists frustrated by the apparent sexism of the medical profession pioneered woman-centered forms of care. In describing the founding of the National Abortion Federation (NAF), Schoen sheds light on the difficult partnership between the feminists, physicians, and businessmen creating a new industry. The 1970s also represented a high-water mark for technological and medical innovation in abortion care. Free for the first time from the threat of criminal prosecution, physicians inside and outside the United States developed safer abortion methods.

Schoen shows that it was pro-lifers’ focus on “the aesthetic characteristics of fetal research” that initially prompted the courts to cast a long shadow over abortion practice (P. 72.) After investigating the legality of fetal research at area hospitals in the mid-1970s, Boston prosecutors brought manslaughter charges against Dr. Kenneth Edelin for performing an abortion by hysterotomy, a second-trimester procedure similar to a cesarean section. Prosecutors argued that Edelin had killed a viable baby that was still alive when he separated the placenta and would still be alive if Edelin had immediately removed it from the uterus. Edelin’s conviction was ultimately overturned on appeal, but the threat of legal intervention spooked abortion providers, many of whom began privileging techniques that would eliminate the risk of a live birth during abortion—the contested issue in Edelin. NAF members and other providers later developed and commonly performed saline abortion, a technique that would all but eliminate the possibility of live birth.

The Edelin episode would set a pattern for the decades to come. Judicial involvement frightened off some of the less-committed providers and entrepreneurs unwilling to grapple with legal risk and political unpopularity. However, the possibility of judicial interference encouraged abortion providers to develop their own best practices and internal regulations, often improving the care patients received.

As Schoen shows, providers and patients were hardly passive victims. In the 1970s, providers became aware that saline abortions were often emotionally exhausting for patients and clinic staff. Providers responded by refining dilation and evacuation (D&E), a safer and less taxing procedure. The rise of D&E shows how providers sometimes successfully created room for experimentation, prioritizing “a female patient’s safety and the wellbeing of patients and staff” (P. 123.)

In the 1980s, with the spread of anti-clinic blockades and violence against abortion providers, the gap between abortion politics and medical care grew. Together with major pro-choice organizations, NAF recognized that the major protests launched by Operation Rescue represented an indispensable opportunity to raise money and rally supporters. Clinic providers argued that lobbyists and lawyers’ fixation on preserving a legal right to abortion took the spotlight off the fear experienced by providers and women braving pro-life picket lines.

Conflict between providers and the pro-choice movement came to a head during the partial-birth abortion debate. Pro-choice attorneys and lobbyists argued that physicians performed D&X only in cases of severe abnormality or a threat to the health of the woman. Independent providers characterized this approach as disingenuous and stigmatizing. Calls for more honesty about partial birth abortion ultimately backfired, further fragmenting the pro-choice community and energizing those intent on banning D&X. Nevertheless, in the wake of the partial-birth abortion wars, providers continued working to create a space for abortion counseling and medical innovation that was not so heavily influenced by constitutional doctrine or social-movement politics.

Schoen’s well-paced social, medical, and legal history makes an important contribution to scholarship on the Court’s abortion jurisprudence. But Abortion After Roe is also well worth reading for other reasons. Legal historians have studied the ways in which attorneys shape their clients’ ambitions. Schoen maps out the tangled relationship between providers and the many social-movement members charged with representing them. In Schoen’s story, legal constraints and political pressures inspired providers to develop safer procedures and internal regulations. At the same time, the threat of judicial involvement and political blowback forced providers to abandon certain techniques and tested the relationship between medical professionals and lobbyists, lawyers, and grassroots activists. Abortion After Roe suggests that the connection between law and social change is even messier than many current studies suggest

Schoen illuminates a less familiar price paid by medical professionals and patients for the constitutional victory won in Roe and the social movement politics that followed it. Over time, those living day-to-day with the practice of abortion would hardly recognize the medical procedure that the Supreme Court constitutionalized in 1973. Thoughtfully weaving together the history of law, politics, and medicine, the lessons offered in Abortion After Roe should make a difference to studies of the courts’ role in social change, even beyond the context of reproductive health.

Cite as: Mary Ziegler, Health Care in the Shadow of the Law: The Impact of Abortion Jurisprudence, JOTWELL (January 20, 2016) (reviewing Johanna Schoen, Abortion After Roe (2015)),

Legal Export and the Transformation of American Identity

Today, as a matter of both foreign policy and legal practice, comparative law tends to be a one-way street in the United States. In recent decades, the U.S. has been involved in countless constitution-writing and rule of law projects across the globe. But few foreign frameworks have migrated home, where foreign law is often met with outright judicial and political hostility.

Jedidiah Kroncke, in his learned and incredibly incisive new book, The Futility of Law and Development: China and the Dangers of Exporting American Law, reminds us that this is hardly how American policymakers have always approached the international community. In fact, during the revolutionary period many of the founders like Benjamin Franklin, Thomas Jefferson, and James Madison were avowed legal cosmopolitans, curious to draw from foreign experiences for American republican institutions, including the example of China’s civil service system, national taxation structure, and methods of centralized resource management. Indeed, as late as the Progressive period, a “transatlantic moment” led American reformers–confronting shared problems of industrialization and inequality— to see new European innovations as worthy of replication at home. How did this change and what has it meant for American legal culture and reform politics?

Kroncke argues that this shift was a product of how Americans came to justify their global authority in the first half of the twentieth century. Legal and political elites were at pains to differentiate U.S. power from European imperialism. In the process, they sought to do two things: 1) highlight how unlike European colonizers the U.S. was fundamentally non-colonial and politically respectful of local peoples; and 2) explain nonetheless why Americans deserved global preeminence. In developing their arguments Americans ended up drawing especially from the domestic community most directly involved in overseas endeavors: white religious missionaries.

Against the backdrop of internal industrial strife, the post-Civil War period witnessed a massive religious revival (the “Third Great Awakening”). This revival created a national network of grassroots Protestant churches and organizations interested in spreading American religious and political values across the world. These missionaries viewed the U.S. in exceptionalist and millennial terms—as a nation committed to replacing chaos abroad with peace and tranquility through the promotion of Christian principles (such as those of self-discipline and spiritual self-rule) as well as related liberal legal institutions. Moreover, because of the sheer scope of missionary work during the era, many Americans—including elite policymakers—came to understand the world outside through their books, reports back home, and religious projects.

For such missionaries, the great test case of their redemptive spiritual and legal enterprise was China. China not only had its own extensive civilizational history, but it also lacked any direct imperial overseer. As a consequence, it was a perfect setting for missionaries to “Americanize” and revitalize a once powerful, but now declining nation through practices of legal and cultural export—and to do it without actual formal colonial control.

Over time, an increasingly secularized version of the missionary project came to dominate ideas about the purpose and specialness of American power. Moreover, as such exceptionalism grew, legal export become both a one-way street for U.S. policymakers as well as a critical instrument in the extension of U.S. influence. In all this, Kroncke very convincingly suggests that China remained a key touchstone for legal and political elites, not to mention broader civil society groups. In each given historical era, China served as a site for rehearsing that period’s defining export initiatives. At the same time, the relationship with China also constituted a central lens through which Americans grew to understand their interactions in general with the non-white world.

In developing these arguments, Kroncke’s work does three remarkable things. First, his excavation uncovers a hidden history of today’s rule of law promotion. This hidden history cuts against certain ingrained presumptions that Americans have always been legal exceptionalists. Instead, in highlighting how U.S. views about legal export have shifted, Kroncke emphasizes the relative newness of this brand of exceptionalism and forces scholars to ask why the contemporary vision has diverged so dramatically from the founding one.

Second, the book offers a beautiful reconstruction of the American legal imagination and approach to China. This reconstruction provides a treasure trove of information about the various U.S. legal export projects in the country, highlighted by two wonderful case studies of Frank Goodnow and Roscoe Pound. Kroncke finds in their export efforts a powerful encapsulation of how Americans carried with them to China the (oftentimes deeply contentious) domestic debates over the meaning and value of U.S. legal practices.

And, finally, the book is a sophisticated critical dissection of the drawbacks of American legal export—today as much as in the early twentieth century. It has become almost trite to note the repeated failure of legal export initiatives to succeed on their own terms—from Iraq to China itself. These failures are usually explained as a product of poor intentions and/or poor execution. By contrast, what Kroncke shows is that in a deep sense such failure is the result of the very exceptionalist imagination that has persistently presented the world as a domain for Americanization. Above all, American policymakers failed to come to grips with the complexity and sophistication of local legal customs and commitments to self-determination. In Kroncke’s mind, this has been as a much a loss for the U.S. as for the world, because it has foreclosed the willingness of politicians and lawyers to see such complexity as an invitation for U.S. internal domestic experimentation and renewal.

In all these ways, Kroncke offers a provocative retelling of the history of American legal export, one that no doubt will generate fruitful debate and will have to be reckoned with by legal historians, legal comparativists, and scholars of U.S. foreign policy.

Cite as: Aziz Rana, Legal Export and the Transformation of American Identity, JOTWELL (December 9, 2015) (reviewing Jedidiah Kroncke, The Futility of Law and Development: China and the Dangers of Exporting American Law (Oxford University Press, 2015)),

The World War II Roots of the Modern American Administrative State

Mariano-Florentino Cuéllar, Administrative War, 82 Geo. Wash. L. Rev. 13431445 (2014), available at SSRN.

The study of administration is thriving – so much so that even people outside the field are taking note. A recent review essay in the Boston Review (and a cautionary response by Karen Tani) demonstrate the breadth of this scholarship, which includes studies that push the origins of the administrative state back to the early republic and studies that examine (in a term coined by Sophia Lee) administrative constitutionalism throughout the federal government. The New Deal continues to loom large, however, in research into the expansion and entrenchment of the modern administrative state; according to Mariano-Florentino Cuéllar, this account is incorrect. As he argues, “during the 1930s the federal administrative state remained a pale shadow of its future self.” (P. 1354.) Instead, much as James T. Sparrow argues that World War II made the modern American state, Cuéllar argues that World War II made the modern American administrative state.

Cuéllar describes how pre-World War II agencies were hamstrung by limited powers and limited resources, limits which soon became impractical. World War II changed the political and economic context in which agencies operated, opening the door to legal changes that strengthened the agencies. Mobilization for war required greater administrative capacity, which in turn required more money to pay for agency operations. In response, federal courts expanded agencies’ subpoena powers, which markedly improved agencies’ ability to investigate. Courts also moved from a formalist understanding of the non-delegation doctrine (Schechter) to a functionalist one (Yakus) that legitimated broad congressional delegations of authority to agencies. And Congress enabled mass taxation to pay for expanded administration. (Funding is key to any discussion of administrative capacity; a chart in Cuéllar’s appendix showing the increase in federal employees during the war make this clear.) By giving agencies the tools they needed to endure, Cuéllar argues, wartime actors embedded administrative governance in American political life.

How did such an expansion of the administrative state occur, given the contentious nature of debates over administrative authority only a few years earlier? The wartime context made the legislative and judicial branches more willing to empower the agencies, Cuéllar argues, and the nature of total war meant that existing domestic agencies (like the National Labor Relations Board and the U.S. Department of Agriculture) were as important to the war effort as the Office of Price Administration and the War Production Board. At the same time, however, the Roosevelt White House had learned important lessons from its earlier political battles. Recognizing that the federal government needed both “organizational capacity and legal legitimacy” (P. 1352.) to fight the war, Roosevelt pushed for changes that were “evolutionary instead of revolutionary.” (P. 1387.) He declined to use the war crisis to refight New Deal battles, refusing to seek either government control of industry or full administrative autonomy. And expanding administrative capacity was less controversial than it could have been, given the existing proceduralism of the administrative state. Cuéllar argues – as Dan Ernst has here, and I have here – that even before the Administrative Procedure Act of 1946, agencies were bound by procedural limits, imposed by reviewing courts and by agencies themselves.

The result was a legitimation of the administrative state going forward. Americans found it hard to oppose administrative power, Cuéllar argues, when that power had been central to winning the war. It was particularly hard to oppose administrative power that shied away from the most extreme models and built in participation for business, labor, and consumer interests. Thus, he argues: “However distant the resulting structures were from some abstract ideal response, those structures facilitated staggering increases in production and allowed Americans to harmonize national goals with private interests during the war. It was a sufficient enough workable accommodation that it stuck.” (P. 1436.)

While much of his discussion of wartime dynamics comes from historical monographs, Cuéllar grounds his doctrinal analysis in a broad survey of relevant case law. However, his discussion of the political constraints and ideological concerns that shaped the decision making of the Roosevelt White House is glancing at best. Cuéllar argues that Roosevelt’s approach “accommodated American political, ideological, economic, and legal values and realities”; this is a plausible but bloodless account, since those values and realities are never fleshed out. (P. 1422–23.) Cuéllar also invokes “business,” “labor,” and “Americans” without much explanation of who was in those categories or how their interests were at odds. These criticisms aside, however, Cuéllar does the field a service in reframing the discussion of administrative capacity around World War II and examining wartime’s doctrinal changes across the administrative state.

Cite as: Joanna Grisinger, The World War II Roots of the Modern American Administrative State, JOTWELL (November 11, 2015) (reviewing Mariano-Florentino Cuéllar, Administrative War, 82 Geo. Wash. L. Rev. 1343–1445 (2014), available at SSRN),

Untangling the Relationship between Rights, Federal Power, and Inequality: The Legal Legacy of Reconstruction

“Black lives matter.” When spoken in law schools, these words have had a particular subtext. They expressed outrage at the lives taken in the name of the law, and despair at the distance between our legal ideals and the everyday legal encounters of people like Michael Brown, Eric Garner, and Freddie Gray. In the words of a statement signed by many of my UC Berkeley colleagues, law school communities “struggle to reconcile the constitutional values [taught] in the classroom with the reality that race determines how communities of color experience our legal system.”

Helping our students make sense of this dissonance requires that we bring history into our teaching, and further, that we go beyond stock narratives about the evils of Jim Crow and the victories of the modern civil rights movement. High on my list of teaching aides, going forward, will be Laura F. EdwardsA Legal History of the Civil War and Reconstruction. It offers both a concise overview of an important legal-historical moment and a bold argument. Reconstruction did more than “abolish slavery and bring Confederate states back into the Union,” Edwards explains; it “unsettled the nation’s entire legal order.” (P. 13.) The resulting legal changes encouraged all Americans—not just freed slaves—to see the world around them in terms of individual rights and to champion the value of equality. This is the very same vision that many entering law students carry with them today.

Embedded within this new legal order, however, were seeds of disappointment, resentment, and conflict. The Reconstruction Amendments and related civil rights legislation implied a nation of equal citizens at a time when inequality pervaded American life. Similarly, the new legal order encouraged people to look to the federal government for aid and protection, even though states and localities still provided the bundle of goods, services, and opportunities that gave content to the notion of citizenship. Helping readers see this emergent legal order, complete with its built-in contradictions, is Edwards’ main task. In what follows I’ll emphasize how she so deftly accomplishes her goal and why her success is our gain.

A crucial first move is to disrupt some common assumptions about rights. Americans today rely heavily on the language of rights, using it to discuss everything from mass murder to healthcare to same-sex marriage. Frequently, the specter of the federal government hovers over these conversations, as the assumed guarantor and enforcer of rights claims. Edwards reminds readers that before the Civil War, rights did not operate in the same way. Americans generally looked to state and local governments to define their rights, as part of the larger project of advancing and protecting the public welfare. Perceived rights violations were a matter for local courts, not federal ones, and were adjudicated with an eye towards preserving a locally defined sense of order. With this background, Edwards sets readers up to appreciate the broad significance of the Reconstruction Amendments. The Thirteenth Amendment, in Edwards’ telling, did not simply abolish slavery; it “gave the federal government the power to trump the authority of the states in matters of individual rights.” (P. 88.) The Fourteenth Amendment broke ground in a similar way: by asserting federal authority over the legal status of citizenship and by characterizing citizens’ rights as a matter federal concern. Of course, neither of these amendments, nor the Fifteenth Amendment, actually required the states to extend particular civil and political rights to their residents, but by establishing the federal government as the enforcer of a new non-discrimination guarantee, they fundamentally reconfigured individuals’ relationships to the authorities around them.

Edwards’ second key move is to show, as only a social historian could, how these formal changes affected real people. Lots of scholars have written about the consequences of the Reconstruction Amendments, but often their gaze has been set on the civil rights gains of the mid-to-late twentieth century. They have tended to portray the intervening decades as a time when, thanks to a hostile Supreme Court, the transformative potential of the Reconstruction Amendments was inaccessible to the people who most needed it. While acknowledging the narrowing effect of Supreme Court decisions, Edwards directs readers’ attention to the new dynamics that the Reconstruction Amendments nonetheless created at the ground level. Ordinary African Americans, she finds, “stretched” the new “framework of rights,” to cover education, government jobs, and access to public venues. (Pp. 131-32.) Women and wage workers showed similar imagination. White men, meanwhile, sometimes responded with extralegal violence. Before the Civil War, Edwards explains, white men’s privileged legal status was based on their “rights over those without rights,” such as their slaves and wives. (P. 125.) A world in which women and racial minorities possessed legal rights—rights tied to federal authority—was a changed world indeed, even when those rights remained more theoretical than real.

Probing the gap between theory and reality is Edwards’ third important move. Her key point here is that from the start (before the Supreme Court got involved), the Reconstruction Amendments created the conditions for deep and enduring conflict. They did so by announcing new reigning principles without “alter[ing] the logic that structured so much of American law,” a logic that “subordinated all people of color, all women, and all working people.” (P. 149.) Inspired by the Reconstruction Amendments, some Americans attempted to reform this wider legal universe—for example, the doctrines governing marriage, employment relationships, and real property—but such reforms generally proceeded slowly, in a piecemeal fashion. Phrased differently, Edwards reminds readers that Reconstruction was not only a political project but also a legal project, and that the latter rippled through the legal landscape long after the political winds had shifted.

In the end, this is a book about great changes and changes that were never great enough. One thing that had not changed by the end of the nineteenth century, Edwards emphasizes, was structural inequality. The new legal order had enabled Americans to perceive race, class, and gender inequality as injustice and to call upon the federal government for help, but that same legal order channeled dissent into fights to define and protect individual rights, and thereby away from structural solutions.

Edwards’ historical critique could lead readers to take a dark view of the present. It need not. While surely inspired by the promise of the Reconstruction Amendments, the recent insistence that “Black lives matter” is notable for finally escaping the limiting frame that Edwards has described. While protesters have welcomed the help of the federal government, they have directed their energies largely at local authorities—the ones who continue to control many Americans’ sense of belonging (or lack thereof) in the broader political community. And while protesters have decried particular civil rights violations, they have resisted efforts to individualize their grievances. Theirs, like Edwards’, is a narrative of systemic racism, demanding the sort of systemic legal changes that the abolition of slavery once ushered in.

Cite as: Karen Tani, Untangling the Relationship between Rights, Federal Power, and Inequality: The Legal Legacy of Reconstruction, JOTWELL (July 31, 2015) (reviewing Laura Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (2015)),

To Enumerate or Not To Enumerate: A Theory of Congressional “Great Powers”

Daniel Rice, Territorial Annexation as a "Great Power", 64 Duke L.J. 717 (2015).

I have a soft spot for any argument that tends to show the relevance of long-settled constitutional controversies over territorial annexation to hotly debated current events. Even so, I wouldn’t write about this piece if I didn’t think it was well worth reading regardless of how much one cares about the United States’ imperial adventures of over a century ago—or about any given headline today, for that matter. The piece is a student Note by Daniel Rice in a recent issue of the Duke Law Review entitled Territorial Annexation as a “Great Power.” The annexations in question are those of Texas in 1845 and Hawaii in 1898—statutory annexations accomplished by Congressional joint resolution instead of by treaty. And the current event is Supreme Court’s decision in NFIB v. Sebelius in 2012. Rice’s Note makes a convincing case that the basic significance of the healthcare decision cannot be properly understood without a solid grasp of the debates around the constitutionality of Texas’ and Hawaii’s annexation. As Rice describes the evolution of doctrine on Congressional power and the Necessary and Proper Clause from McCulloch v. Maryland to NFIB v. Sebelius, it simply isn’t possible to get from the former to the latter, and fully understand where we’ve been and where we’re headed, without stopping to consider nineteenth-century territorial expansion.

Rice’s Note contributes to the debate on Chief Justice Roberts’ claim in NFIB v. Sebelius that, as Rice paraphrases it, “some powers are too important to be exercised merely through implication, even if they might be the most convenient means imaginable for executing Congress’ enumerated powers. These so-called ‘great powers’ are off-limits to Congress unless the Constitution specifically mentions them.” (P. 718.) Applying what Rice describes as this “conceptual bombshell” to the Affordable Care Act’s minimum-coverage provision, Roberts explained that the power to require individuals either to purchase health care or pay a fine—“the ability to create commerce, rather than regulate preexisting commerce” (again in Rice’s words)—qualifies as a “great power,” that is, a power “incapable of being claimed inferentially.” (P 720.)

Although the idea of “great substantive and independent powers” features prominently, and in those words, in Chief Justice Marshall’s opinion in the foundational McCulloch v. Maryland (1819), the phrase appears in only two pre-NFIB v. Sebelius cases decided since McCulloch. As a result, Rice observes, Roberts’ invocation of it seemed to come out of nowhere. Critics responded with skepticism concerning the workability of the concept: What counts as a “great power”? Why? How would we know? But Rice argues that whatever the answers turn out to be, we won’t find them using keyword searches. Instead, Rice proposes that we start by examining a power we all surely agree counts as a “great substantive and independent” one: the power to annex foreign territory.

Rice’s basic insight is simple and powerful: “[T]he annexation of foreign territory is exactly the sort of power that is too important to be left to implication through the Necessary and Proper Clause.” (P. 722.) Obvious, right? Equally obvious, the power to annex foreign territory appears nowhere on the list of Congress’ enumerated powers. Yet Congress annexed both Texas and Hawaii statutorily, by joint resolution; unlike other foreign territory before and after, these territories were not acquired by treaty (because, in a nutshell, the votes for a treaty weren’t there). Having identified a power that most people would likely agree counts as “great,” Rice briefly reviews the relevant case law (such as it is), before turning his attention to more fruitful material: the congressional debates on the annexations of Texas and Hawaii. As Rice shows, these debates featured “great-powers rhetoric” (P. 723) and therefore constitute a rich source of nonjudicial constitutional interpretation of the concept.

Rice’s discussion of these debates and their implications for Roberts’ view in NFIB v. Sebelius is a pleasure to read: descriptively elegant, analytically convincing, thoroughly informed. Moving easily from historical materials to current case law and back, Rice weaves McCulloch, Texas, Hawaii, and NFIB v. Sebelius into a coherent doctrinal arc. Teachers of first-year constitutional law who read Rice’s Note will be left wondering how to fit the annexations of Texas and Hawaii into a syllabus that is already so bursting at the seams that most of what’s on it has been crammed into it by aggressive editing. One cannot truly grapple with the implications of NFIB v. Sebelius, or even more ambitiously, think clearly at all about the scope of Congressional powers, without first examining the “great” power to annex foreign territory that Congress exercised when it took the dramatic steps of annexing first Texas and then Hawaii to the United States.

Rice’s conclusion is equally compelling, and refreshingly straightforward: If the annexation of foreign territory is too great a power to be inferred from another power, then the great-power doctrine “simply cannot be applied consistently.” (P. 723.) There—he said it. Before wrapping things up, though, he gives us just a little more, teeing up the first step in the next stage of the inquiry. Circling back around to the question of whether there is any Supreme Court case law on point, he once again overcomes the obstacle of the missing keywords: “It seems extremely improbable that a structural principle so theoretically sensible, so substantiated by Founding-era legal authorities, must have taken a two-hundred-year vacation after McCulloch merely because the phrase ‘great substantive and independent’ yields almost no search results.” (P. 763.) To prove the point, he points us in the direction of a plausible next step in our effort to understand the scope and content of the concept of a “great substantive and independent” power: Afroyim v. Rusk, the 1967 Supreme Court decision holding that U.S. citizens may not be stripped of their citizenship involuntarily. Surely involuntary expatriation is a great power as defined by Roberts—one simply too important to be inferred, right? The Court’s decision in Afroyim v. Rusk confirms that instinct.

And yet the turn to the topic of citizenship at the close of the Note brings to mind the related jurisprudence on immigration, which in contrast to cases on citizenship like Afroyim is a fertile source of decisions upholding, not striking down, exercises of powers too great to be inferred, yet nowhere enumerated. Once Afroyim has been invoked, surely the next step in our inquiry into the scope and content of “great powers” will be the Court’s foundational decision in Chae Chan Ping v. United States (the Chinese Exclusion Case), right? The 1889 Chinese Exclusion Case upheld Congress’ power to exclude aliens from its sovereign territory. We agree that the power to exclude aliens is a “great power,” yes? Yet not only was the Court in the Chinese Exclusion Case undaunted by its absence from Article I, section 8, but it grounded its decision instead on the proposition that the power to exclude is, quite simply, essential to the existence and survival of the nation and, therefore, must be “inherent in sovereignty.” In other words… it’s a power too great to enumerate? Are we thus left with not one but two kinds of great powers—those too great to enumerate, and those too great not to enumerate? Could be: as Rice put it in an earlier passage discussing the view that the power of territorial annexation is, like the power to exclude aliens, “inherent in sovereignty,” “when a congressional power can be defended only on such flimsy extraconstitutional grounds” as that of being “inherent in sovereignty,” “it is an especially fine candidate for great-power status.” (P. 723.) If the result of our inquiry will be that we have two apparently irreconcilable doctrinal lines on great powers—those too great to enumerate and those too great not to enumerate—then I believe we would all benefit if Rice decides to take up the project of making sense of it all.

Cite as: Christina Duffy Ponsa, To Enumerate or Not To Enumerate: A Theory of Congressional “Great Powers”, JOTWELL (June 22, 2015) (reviewing Daniel Rice, Territorial Annexation as a "Great Power", 64 Duke L.J. 717 (2015)),

The Effective Early American State

For those of us working on the relationship between law and the American state, Max Edling’s first book, A Revolution in Favor of Government, was a welcome and necessary intervention. Work on the nineteenth-century state was slowly moving beyond the “courts and parties” thesis that portrayed the early American state as “weak.” But we lacked a systematic study of the United States Constitution as a blueprint for a strong American state. Edling filled that gap by demonstrating that the Constitution of 1787 established the foundations for a fiscal-military state that looked strikingly similar to its European competitors. A crucial piece to revising our understanding of the early American state was in place.

Traditional views die hard, however. For example, Sheldon Pollack, in War, Revenue, and State Building, argues that the early American fiscal-military state “remained extraordinarily weak” until the Civil War, and concludes that it “must be viewed as a notable failure” because of its lack of substantial fiscal-military powers (100-101). In A Hercules in the Cradle Edling challenges this construction by demonstrating how the federal government used the powers delegated to it by the 1789 Constitution to build a state with enormous extractive powers. Instead of reading the story of the American state backwards and comparing it to modern states, or evaluating it in light of modern theories of the state, Edling reads it forward comparing it to its contemporaries. Most fundamentally Edling interrogates the objectives of the early American state, and its ability to accomplish them. In other words, rather than asking whether the early American fiscal-military state was “weak” or “strong”, he asks whether it was effective.

That these newfound powers enabled it to compete in a world of European monarchies and to conquer a continent suggests that it was.

Hercules in the Cradle is essentially divided into two parts. The first part deals with the creation of an American fiscal regime, comparing it to contemporary European ideas and practices. It focuses on the key power delegated to Congress by the new constitution, the power “to lay and collect Taxes, Duties, Imposts, and Excises.” This power to act directly upon individuals to collect revenue rather than rely upon the inefficient requisition system under the Articles of Confederation had several important consequences.

The tax power increased the new government’s extractive power, but only as it facilitated the introduction of modern European ideas about public finance. Printing money and levying direct taxes on property and polls had been the American method of war finance during both the Seven Years’ War and the Revolutionary War. Yet this method threatened the new nation’s political stability at home and abroad following the War for American Independence. With the new tax power in hand, Treasury Secretary Alexander Hamilton introduced modern ideas of public finance that focused on loans and public credit rather than printing money .

Public credit created the ligaments for the new state to be able to protect itself both nationally and internationally. Internationally, it enabled the government to raise vast amounts of money in case of war. Hamilton thus devised a finance system to restore and ensure the faith of creditors in the ability of the American state to pay its debts. He accomplished this by renegotiating for lower interest rates and terms of repayment, redefining securities as redeemable annuities with no fixed maturation date, which allowed the government to pay only the interest, free from claims of entitlement to the repayment of the entire principle, and allowing creditors to sell their securities to third parties so they could liquidate their assets.

The new system of public credit had effects at home, too. Hamilton not only restructured the debt, he used the impost, land sales, and other forms of indirect taxes to make the payments. This method mitigated tax politics within the states, After the federal government assumed the major portion of state war debts, the states were able to reduce the tax burden on their residents to nominal sums. The effect was substantial as there were no tax revolts following the major wars of the nineteenth century.

The proving ground for this new fiscal regime was America’s subsequent wars — the War of 1812, the Mexican War, and the Civil War — that Edling takes up in the second part of his book. In the realm of war finance the War of 1812 marked a sharp break for Americans. For the first time Americans financed a war through use of long-term securities rather than printing money, which would become the method by which the United States would finance its subsequent wars. The Mexican War allows Edling to compare the fiscal-military regimes of Mexico and the U.S. Lack of credit and a poorly-organized army (despite spending more on its army than the United States) doomed the Mexican war effort. By contrast, American war finance methods enabled them to finance the war at little cost, and without placing an onerous tax burden on its citizenry, which likely would have stimulated sustained resistance to the war effort. As a result, Mexico lost half of its national territory despite the fact that the United States mobilized only a fraction of its resources.

The Civil War demonstrated that, though difficult, the American government could extract enormous amounts of resources to prosecute a major war. The national debt increased enormously from $90m in 1861 to $2.7b in 1866. The ability to finance such massive sums should itself go a long way toward undermining the weak state thesis. But more than that, the ability to finance such a large-scale war, Edling argues, demonstrated to the rest of the world the extent of American power, and consolidated American aspirations to a continental empire.

Edling’s works demonstrate that it is time to abandon questions about whether the early American state was “strong” or “weak,” and begin to evaluate it on its own terms. The early American state was distinct in terms of both norms and techniques. This is something that we miss if we simply ask whether it was strong or weak, especially if we evaluate that question in comparison to modern practices or theories. What were the aims of the early American state, how did it go about achieving those aims, and what were the consequences of those efforts? These seem to me to be the most basic questions to be asked, and exactly what Edling has done here.

Cite as: Roman Hoyos, The Effective Early American State, JOTWELL (May 27, 2015) (reviewing Max Edling, A Hercules in the Cradle: War, Money, and the American State (2014)),

Queering the History of Sex Discrimination

In my employment discrimination course, I use Diaz v. Pan American Airlines (5th Cir. 1971), overturning Pan Am’s ban on male flight attendants, to illustrate how airlines and other employers tried and failed to exploit Title VII’s bona fide occupational qualification (BFOQ) exception in the years after the Civil Rights Act’s enactment. Pan Am defended its female-only policy as necessary to satisfy the “psychological needs” of its mostly male passengers, who “overwhelmingly” preferred to be served by “young girls.” In Diaz, the court ruled that the “essence” of an airline’s business was not to titillate male travelers, nor to offer maternal comfort to anxious fliers, but rather to keep passengers safe from harm. Excluding men, therefore, could not be “reasonably necessary to the normal operation” of an airline.

Phil Tiemeyer’s Plane Queer reveals that Pan Am’s defense of the male steward ban was even more insidious than previously understood. The airline argued that male flight attendants performing traditionally female ministrations, such as tucking blankets around dozing passengers, would repulse their (assumedly) male, heterosexual, and homophobic customers. Tiemeyer argues persuasively that Diaz and the other early challenges to airlines’ sex BFOQs are properly seen as queer equality cases, belying conventional assumptions that gay employment rights advocacy merely piggybacked on, or at least postdated, movements for racial justice and women’s rights.

Tiemeyer’s engaging, often riveting social and legal history of male flight attendants is valuable for the light it sheds on Diaz and other early Title VII cases. But Plane Queer does more than that. Revealing the intertwined impact of technological change, political and economic imperatives, legal advocacy, sexism, racism, and homophobia, Tiemeyer offers an account of workplace transformation with deeper resonance for historians of twentieth-century social movements and the law.

Throughout Plane Queer, Tiemeyer underscores the complex interplay of ideological and material motives in airlines’ evolving treatment of their airborne workforce. He begins in the 1930s, a forgotten heyday for male stewards, and chronicles their decline and resurgence in subsequent decades. Tiemeyer attributes the occupational feminization of the 1950s and 1960s to a diverse array of economic and attitudinal factors. The rise of the military-industrial complex produced larger, more comfortable aircraft, allowing airlines to appeal to a broader customer base. Airlines’ desire to soften and domesticate the commercial flight experience to attract women and children as passengers created a demand for female stewardesses, as did discomfort with white men performing “servile” roles that supposedly undermined their masculinity.Importantly, stewardesses—fired by many airlines when they married or reached the ripe old age of thirty-two—accrued little seniority and were more easily exploited as cheap labor.

Cases such as Diaz opened the door not only for male stewards, but also for many women seeking jobs in exclusively male domains. Forcing airlines to hire male flight attendants—and to remove sex-specific marriage, age, and later pregnancy bars—also undercut airlines’ undercompensation of cabin crew generally. As Tiemeyer underscores, this reform allowed “significant numbers of gay men” to “secure[] their first unionized, middle-class job,” an unusual and precious opportunity during this period. (P. 83.)

The removal of these formal barriers did not, of course, transform the airline industry into a gender egalitarian queer-friendly paradise, and indeed, the “culture wars” were just beginning.Further, as Tiemeyer notes in an intriguing passage, the interests of feminists who promoted the desexualization of traditionally female careers existed in some tension with gay liberation activists’ celebration of sexual freedom of expression in public. Tiemeyer also suggests that “the middle-class men who were the most well-heeled gay rights advocates” were “often more concerned with liberating their libidos from homophobia than rectifying economic injustices.” (P. 116.) And some gay rights activists preferred to champion access to traditionally male occupations where gay men could exhibit their masculinity and virility. Indeed, “male stewardesses may have been too queer for much of the gay community as well.” (P. 117.)

Notwithstanding these tensions and obstacles, gay men flooded airlines’ flight attendant corps in the 1970s. Under the cover of media depictions that relentlessly “heterosexualized” male stewards, defusing the threat they posed to airlines’ image, gay stewards built a discreet but vibrant national social network that encompassed gay passengers as well as crew members. What made airplane cabins a haven for gay men? Tiemeyer’s interviews with former flight attendants suggest several factors. A decent middle-class job with good benefits that did not require gay men to remain closeted remained rare and prized in the 1970s. Some recalled reveling in the sartorial flair and prestige associated with top-flight airlines like Pan Am. Moreover, Tiemeyer and his subjects speculate, gay men may have been more willing than their straight counterparts to work with and be supervised by women. For their part, female flight attendants generally seemed happy to work and socialize with gay men, preferring their society to that of pilots, who tended to be older, married, and more prone to unwanted sexual advances and other abuses of power.

Indeed, any tensions that surfaced in advocacy for workplace rights seemed to have little effect on the camaraderie between female and male flight attendants.The influx of men also produced welcome improvements in female flight attendants’ uniforms, as more professional, comfortable, androgynous outfits replaced sexualized costumes featuring revealing mini-skirts and constrictive girdles. In short, in the 1970s male and female flight attendants enjoyed a level of workplace parity rare in an American workforce stratified and segregated along gender lines. Through collective bargaining and other exertions of pressure on the airlines, flight attendants successfully challenged the vestiges of overt sex discrimination, such as weight limits, and eventually won concessions including “buddy passes” for unmarried employees, which enabled gay and straight partners to enjoy travel benefits formerly available only to spouses and other legally recognized relatives.

For gay stewards, however, the AIDS epidemic of the 1980s overshadowed the previous decade’s advances. Tiemeyer records the heartbreaking reply of a steward asked how many he knew who perished from the disease:“I stopped counting at 162.” (P. 136.) Not only did male flight attendants disproportionately lose friends and loved ones, and suffer and die from AIDS themselves, but they also became targets of a new wave of fear and scapegoating. This backlash was exacerbated by hyperbolic and downright false accounts purporting to identify flight attendant Gäetan Dugas, as the “Patient Zero” responsible for spreading HIV across North America; by scientifically discredited but persistent fears that AIDS could be spread through casual contact; and by anti-gay propaganda. Airlines’ initial response to the AIDS crisis varied. Some grounded flight attendants suspected of having the virus, while others allowed employees to continue working until they became too ill to perform their jobs. Grounded flight attendants such as Gär Traynor enlisted their unions to fight back in arbitration and court proceedings, with Traynor winning an important early victory. Then, for approximately two years in the mid-1980s, United essentially paid HIV-positive flight attendants to stay off the job.

In the late 1980s and early 1990s, airlines became corporate leaders in an emerging ethos friendlier to gay employees. Activism and lawsuits by people with AIDS contributed to this about-face, but so did airlines’ bottom line: harboring AIDS phobia became costlier as high-profile incidents of homophobic hysteria tarnished airlines’ reputation, and misinformation about how the disease spread compromised relationships among employees and threatened to alienate passengers. Guided by public relations firms, airlines began to require HIV/AIDS training for employees, to allow accommodations for employees who had AIDS or were HIV-positive, and to launch marketing campaigns designed to appeal to gay customers. “Doing the right thing,” concluded one gay PR consultant and industry observer, “is truly good for business.” (P. 191.) By the turn of the twenty-first century, airline employees “possessed greater economic advantages in their workplace than they did as U.S. citizens and residents of most states,” enjoying domestic partner benefits and the protection of non-discrimination clauses unavailable to most gay and lesbian Americans.

Tiemeyer’s narrative is far from whiggish, however. His final chapter explores how neoliberal economic policies produced a limited version of “queer equality,” one that privileged civil liberties and consumerism over economic justice, and ultimately granted equality in benefits just as many of the most valuable employment benefits—job security, affordable health insurance, unionized jobs—were slipping away. Significantly, courts, local governments, and unions no longer drove reforms, or codified them. Instead, gay flight attendants depended upon the goodwill of corporations driven by profits rather than principle or legal imperative, rendering their gains more tenuous, less valuable, and unavailable to those not fortunate enough to find airline employment. As Tiemeyer sums it up: “[G]one is the most overt sexism and homophobia of previous decades, but gone as well are the prospects for flight attendants—whether male or female, straight or gay—to attain a middle-class standard of living.” (P. 226.) In that respect, the story of male flight attendants, for all of its fascinating particularity, is the story of the larger political and economic shifts that engulfed American workers at the turn of the twenty-first century. Deftly synthesizing the histories of sexuality, labor, and law, Plane Queer offers insights that resonate far beyond the flight deck.

Cite as: Serena Mayeri, Queering the History of Sex Discrimination, JOTWELL (March 30, 2015) (reviewing Phil Tiemeyer, Plane Queer: Labor, Sexuality, and AIDS in the History of Male Flight Attendants (2013)),

The Law and Economics of the Civil Rights Revolution

Quantitative scholars too often seem intent on sucking the complexities and nuances out of history. Sometimes, however, throwing numbers at history can have the reverse effect. Historians get themselves into ruts, embracing assumptions and approaches that ultimately shorten the horizons of analysis. A certain predictability develops in the scholarship. New contributions add more bricks to a building whose dimensions have already been charted. What may be needed is a jolt to these assumptions and approaches, a compelling case for reconceiving the central issues. At its best quantitative analysis delves beneath the surface of the familiar, revealing unfamiliar patterns or connections. And in the unfamiliar may be the complexities, contradictions, and puzzles that suggest productive new directions for scholars of all methodological proclivities to explore.

While not a discipline-shaking work of scholarship, Gavin Wright’s Sharing the Prize: The Economics of the Civil Rights Revolution in the American South does use quantitative analysis to make a persuasive case for reconsidering several tenets that have become accepted wisdom among scholars of the civil rights movement. Wright, an economic historian, synthesizes an array of quantitative research—some his own, some the work of others—in support of a claim that is both striking and important: the landmark federal civil rights policies of the 1960s marked not just a revolution in legal rights for African Americans, but also a significant advancement in their economic wellbeing.

Improvements in the material welfare of African Americans in the South cannot be reduced to the product of larger economic trends, Wright argues. The civil rights movement was a “true revolution,” which he defines as “a fundamental break with past trends and behavior that cannot be explained away as the inevitable consequence of market forces or modernization.” (P. 4.) The heart of Sharing the Prize is an assessment of the economic effects of the “historic, game-changing breakthroughs” (P. 20) of the Civil Rights Act of 1964 and Voting Rights Act of 1965. In each area he explores—public accommodations, employment, schools, and voting—Wright finds the same basic dynamic: Jim Crow’s demise brought substantial economic benefits for black America. Incomes increased, and African Americans were able to take advantage of better jobs, schools, health care, and social services.

Wright argues further that these advances in the economic status of blacks did not come at the expense of whites. Southern whites assumed that civil rights reforms would cost them. Lunch counter operators, for example, believed that integration would scare away their white clientele. But their fears proved wrong. In the wake of desegregation department store profits increased. The fall of Jim Crow bolstered the economic growth of the entire South. The post-civil rights movement era saw increased investment in education, social services, and public works, which benefited southerners of all races. The civil rights movement turned out to be good for whites, not just in terms of their moral health, but also in terms of their bottom line. “[T]his was a revolution in which almost all parties gained.” (P. xi.)

Wright is not alone in drawing attention to the economic component of the civil rights movement, of course. Historians have recognized that economic justice was a key component of the civil rights struggle, particularly at the grassroots level. Yet most scholarship emphasizes the limits of substantive change, highlighting the vast chasm between activists’ bold claims for economic equality and the actual changes in the economic status of African Americans. Social welfare is often assumed to be the issue on which the movement foundered. Wright argues that these scholarly lamentations are overstated. Not only were economic goals part of the movement from the start, advances in economic justice were among the most impressive achievements of the civil rights movement.

To arrive at this notably optimistic assessment, Wright makes several key decisions at the outset. Most significantly, he confines his analysis to the movement’s impact in the American South. In sharp contrast to historians who have attacked the “myth” of southern exceptionalism in the civil rights era, emphasizing instead the movement as a national experience, Wright argues that the barriers to political and economic advancement for African Americans in the Jim Crow South were categorically different. Outside of the South, economic development tended to lessen racial inequalities. In the South of the 1940s and 1950s, segregationists found ways to maintain white supremacy alongside economic development. The distinctive nature of Jim Crow in the South requires a regional analysis to fully capture the effects of its downfall, Wright argues.

Wright’s other threshold decisions are more in line with the work of other scholars of the civil rights movement. His insistence on placing economics in the foreground is in line with much recent historical scholarship on the movement. And his willingness to push aside the traditional end dates of the civil rights movement (usually some time in the late 1960s) in order to examines the struggles to implement civil rights policies in the 1970s and 1980s places him in line with the “long civil rights movement” framework that has become commonplace among scholars.

Having defined his scope of inquiry in this way, Wright argues that scholars have failed to fully capture the achievements of the civil rights movement. Considered as a national reform campaign, the movement’s failures loom large. Racially balkanized schools persist across the country, as do racial wealth disparities, inequities in the criminal justice system, and patterns of residential segregation. Civil rights policy made only modest inroads against the resilient dynamics of structural racial inequality in the North. Yet if we confine our focus to the South—which was, after all, the primary target of most civil rights era reforms—and broaden our focus to include the 1970s and 1980s, a more hopeful picture emerges.

The civil rights movement improved the lives southern blacks, ensuring them not only new legal rights but also, over time, a marked improvement their economic status. Wright concludes that the civil rights revolution offers “an example of a strong interventionist central government policy that worked.” (P. 262.) To make this point, he emphasizes, is not to diminish the work that remains to be done to achieve racial equality. It is to recognize what the movement actually accomplished. In an area of scholarship overpopulated by triumphalism on the one side and lamentations on the other, to write an account of the civil rights movement that is optimistic without being naïve is no small feat.

Cite as: Christopher Schmidt, The Law and Economics of the Civil Rights Revolution, JOTWELL (March 2, 2015) (reviewing Gavin Wright, Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (2013)),

Racialized Violence and American Liberalism

Daniel Kato, Constitutionalizing Anarchy: Liberalism, Lynching, and the Law, 10 J. of Hate Stud. 143 (2012).

For nearly a century in the American South, lynching as a practice of racialized violence persisted openly and with minimal federal intervention. In his article, “Constitutionalizing Anarchy,” the center-piece of a book forthcoming from Oxford University Press titled Liberalizing Lynching: Building a New Racialized State, 1883-1966, Daniel Kato not only provides a compelling and novel explanation for the reasons why. He also forcefully argues that one cannot understand either the character of American liberalism or how the American state developed over the course of the twentieth century without placing the question of racial violence at the center.

In studies on American political development, accounts of lynching and its persistence abound. Some scholars argue that the American state in the post-Civil War period was “weak,” institutionally limited in its capacity to address rampant violence against African Americans—especially given the divided and federalist nature of the constitutional system. By contrast, others contend that rather than being incapable of stopping lynching, the federal government actually implicitly sanctioned the activity.

By contrast, Kato draws from Ernst Fraenkel’s account of the dual state to develop a complex and creative theory of what he calls constitutional anarchy to explain federal permissiveness. According to Kato, federal officials (especially the Supreme Court) viewed lynching as a legally bounded region of lawlessness, in which officials maintained a policy of non-interference while always retaining the sovereign authority to intercede to stop the practice. Moreover, Kato goes further and highlights how the federal government’s response to lynching was not simply an oversight due to racist sentiment. Rather, the question of lynching and black rights more generally was central to the very development of the American state during the late nineteenth and early twentieth centuries. Through the concept of constitutional anarchy, Kato beautifully shows how the federal government’s inaction was actually part of a calculated set of judgments by an increasingly activist state.

As a consequence, Kato’s theory of constitutional anarchy suggests the real limitations of the dominant explanations in the political development literature. The weak state thesis seemingly ignores the fact that the U.S. federal government actually expanded its administrative capacities and regulatory reach dramatically during precisely the same period that it contracted its power in the arena of race. The weakness thesis thus leaves unanswered the key question of why the nation state became weak in federal rights enforcements for Southern blacks (especially by comparison with the heyday of Reconstruction) just as it was gaining significant strength in other domains. As for the argument that the government affirmatively legitimated the practice, such a view fails to address why federal officials (across the three branches) refused to give explicit legal sanction to lynching and often directly attacked such violence as barbaric—opponents even included committed white supremacists like Woodrow Wilson.

In addition to exploring how race affected state structure and development, “Constitutionalizing Anarchy” also speaks to a key issue at the core of the American liberal tradition. In recent years, numerous scholars have explored how American political identity has been marked by an uneasy mix between illiberal and liberal ideologies—what Rogers Smith refers to as the nation’s “multiple traditions.” Yet, scholars have had a much harder time accounting for why avowed American liberals could nonetheless be complicit in deeply oppressive practices. In other words, it is one thing to argue in the abstract that Americans have held contradictory ideas at once, but quite another to be able to explain the process by which individuals actually internally reconciled these contradictions.

Kato implicitly offers an account of the psychology of American liberalism—namely how political actors could persist in thinking of themselves as liberal despite actively permitting extreme racial violence. As he demonstrates, the contours of constitutional anarchy allowed federal officials to view lynchings as savage acts at the edges of federal power; thus they could decry lynching (as Woodrow Wilson did in calling it a “disgraceful evil”) while at the same time perpetuating a political system that systematically refused to address the violence. Even more critically, precisely because lynching was viewed as a realm of lawlessness by federal officials, its very persistence could be juxtaposed against what officials claimed was the real essence of American legality—namely a pristine domain of liberal values and rule-of-law commitments. As a result, lynching counter-intuitively helped to cement for many national elites their own self-conception as liberal.

In placing racial violence at the heart of debates about both American state development and liberal political identity, Kato offers a persuasive reinterpretation of post-Civil War constitutional history. And given the sweep of his claims, I very much look forward to seeing the larger book in print.

Cite as: Aziz Rana, Racialized Violence and American Liberalism, JOTWELL (January 26, 2015) (reviewing Daniel Kato, Constitutionalizing Anarchy: Liberalism, Lynching, and the Law, 10 J. of Hate Stud. 143 (2012)),

The First World War: International Law Mattered More Than You Think

All schoolchildren—even American ones—know that the First World War began with the assassination of Archduke Franz Ferdinand in Sarajevo in June 2014. Not so, according to Isabel V. Hull, a distinguished historian of modern Germany. “The First World War,” she explains, really “began with an international crime: Germany’s violation of Belgian neutrality.” (P. 16.) In her masterful new book, A Scrap of Paper: Breaking and Making International Law during the Great War, Hull retells the history of the First World War as a series of breakings and makings—or remakings—of international law. This is a breathtaking study that may well be the best book ever written about international law in times of war.

The “scrap of paper” in Hull’s title refers to Britain’s 1839 treaty promise to defend Belgian neutrality, dismissed in a conversation on August 4, 1914, between German Chancellor Theobald von Bethmann Hollweg and British ambassador Edward Goschen. “[J]ust for a scrap of paper,” Goschen recalled Bethmann saying, “Great Britain was going to make war on a kindred nation who desired nothing better than to be friends with her.” (P. 42.) That scrap of paper—and the system of international law it reflected—mattered to actors at the time and should concern historians today. It was not simply that Germany or the Allies used international law as a post hoc justification for military actions (although, of course, they did that). Rather, Hull says, from beginning to end, “international law was central to how and why the Great War was fought.” (P. x.)

A Scrap of Paper traces this history through a series of loosely linked, generally chronological chapters. The story begins with the Belgian invasion, which was the critical event that transformed the rocky crisis-filled summer of 1914 into an intractable world war. Hull is interested not only in the question of who started the war, but how it was fought, and in her chapters on the occupation of Belgium and treatment of Belgian civilians, she demonstrates how divergent assumptions about international law shaped the actions of each nation. And with consequences: regardless of whether Germans were right to believe they acted within their legal rights during the Belgian occupation, the move “ruined [Germany’s] reputation in world public opinion,” (P. 41) and made it nearly impossible for the Central Powers to assert a moral high ground before the international community as the war progressed.

Further chapters employ a freshly comparative approach, juxtaposing the British blockade (or, as Hull explains, “blockade”) of Germany with Germany’s choice to pursue unrestricted submarine warfare. New ways of war—chemical weapons and aerial bombardment in particular—challenged existing legal norms and raised questions that landed on the desks of international lawyers. That military and diplomatic lawyers in the warring countries responded differently is, for Hull, the key to understanding “not just the differences between states, but the extent to which international law affected the conduct of the war.” (P. x.) The Great Powers disagreed about the concept of non liquet, or gaps in law. For Germany, the spaces of international law left undetermined at The Hague were free zones of action where Notstand, or necessity, made right, particularly under conditions of rapidly changing warfare. The Allies, by contrast, argued (and, Hull stresses, really believed) that those empty spaces were governed by customary international law.

Hull bases her history on a systematic study of diplomatic correspondence in Britain, France, and Germany (with attention to the crucial role of nonbelligerent powers). She has a gift for presenting international law as both a set of ideas and a pattern of practices, nimbly reading diplomatic archives against the grain to suss out what law does as well as what lawyers say. Not every page of A Scrap of Paper makes for exciting reading—even for a First World War geek like myself—but Hull makes the tepid prose of diplomatic archives come to life and is particularly good at showing readers the serious interests and scurrilous motives at work behind apparently passionless memoranda.

But did international law matter? Cynics will say no, and in the end, it is to “self-styled ‘realists,’ international-legal skeptics, cynics, and pacifists alike” (P. 322) that A Scrap of Paper is addressed. Hull’s conclusion that law mattered more to the British and French—whose law officers offered “inconvenient opinions in clear language much more frequently than in the German records” (P. 323)—thus places greater responsibility for the war on German shoulders than suggested in recent historical accounts such as Christopher Clark’s The Sleepwalkers: How Europe Went to War in 1914 (2012). In his June 5, 2014, review of Hull’s book in the Wall Street Journal, historian Samuel Moyn notes that Hull overlooks the fact that deference to international law was a privilege of British strategy (whereas German military planners could imagine no alternative to an invasion of Belgium). That strikes me as not entirely fair, as Hull notes that German leaders “repeatedly identified both impending defeat and probable victory as the conditions under which they would openly adopt flagrant violations of current international law. … In the first case, they had nothing to lose; in the second, they would be powerful enough to set the new legal foundations of the postwar order.” (P. 321.) But Moyn is right to flag Hull’s unstated assumption that a more lawful war would somehow have been a more moral one.

Indeed, Hull approaches her work with a humble faith in international law, and in the end, many readers will set down A Scrap of Paper with a scrap of hope. Hull sees important legacies emerging from the making of international law that followed World War I’s all-too-frequent breaking of it: “trials for war criminals, including heads of state; the condemnation of aggressive war; the strengthened prohibition of poison; and the elaboration of humane treatment for prisoners of war.” (P. 329.) Mere scraps of paper, yes, but precious ones, with histories that have never been examined so carefully before.

Cite as: Christopher Capozzola, The First World War: International Law Mattered More Than You Think, JOTWELL (December 12, 2014) (reviewing Isabel V. Hull, A Scrap of Paper: Breaking and Making International Law during the Great War (2014)),