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)),

Bringing History into the Law School Classroom

Teaching is a fairly private experience, which may be an odd thing to say about something we do in front of a large group of people. Beyond talking with colleagues (both in person and in the very useful space Facebook provides to gather teaching advice), there are too few opportunities to see or hear what happens in other people’s classrooms, which is why I was looking forward to reading the essays in Teaching Legal History: Comparative Perspectives. The volume, an expansion of a special volume of the American Journal for Legal History, includes 63 short essays by law professors about how they teach legal history (and one longer essay on the history of teaching legal history in law schools). Some of the contributors have been trained specifically as legal historians, while others came to legal history teaching later in their careers. (Only thirteen of the 65 contributors are women, which raises questions either about the selection of contributors or about law school hiring more generally.) I should state here that I know several of the contributors to this volume—not surprising, as American legal history is my own research field.

There is significant breadth among the 63 essays (although not a lot of depth; by design, most are approximately four pages long). Taken together, they indicate the diversity of legal history courses and methods. Courses discussed range from the standard survey of American legal history to specialized courses on law in the Civil War, Latin American legal history, the history of corporate law, and the legal history of Hawaii. Some authors strive for coverage (some courses cover American legal history since Reconstruction, while others begin with the American Revolution, the Magna Carta, or ancient Mesopotamia); many others focus their courses on students’ own research papers. (I was impressed by how many contributors have their students tackle independent research in local and online archives.) Most contributors assign at least some primary sources (and many use primary sources almost exclusively); it is clear that the ease of gathering primary sources (through online databases and archives) has allowed many to complement or move beyond the few casebooks/sourcebooks that dominate the market. Several other contributors focus instead on secondary materials, and it was encouraging to see many forsake textbooks to expose students to the extremely vibrant recent scholarship in legal history.

As someone who teaches American legal history at the undergraduate level, I was especially interested in those essays that explicitly discussed how they thought through the syllabus, what the themes of the course were, and what materials they assigned to that end. I particularly appreciated those contributors who named (and offered citations to) the primary and secondary sources they use in the classroom. (Amitai Aviram went one better and included a link to his syllabus and course materials for his course on “Evolution of Corporate Law & Finance.”) Herbert Hovenkamp makes a strong argument for bringing intellectual history back into legal history courses (to counterbalance the interest group narratives that have dominated the scholarship). Daniel R. Ernst walks the reader through how he teaches the development of federal administrative agencies and offers concrete examples drawn from the Department of Agriculture, the Bureau of Immigration, and the Agricultural Adjustment Administration. David S. Tanenhaus’s essay on his Brown v. Board of Education seminar offers a detailed guide to managing a course organized around a single case. Arthur F. McEvoy’s essay explains how he organizes the late twentieth century around the rise, and then fall, of the four themes in Footnote Four of Carolene Products: the regulatory state, individual rights, voting, and equal protection. I may well borrow this formulation, and some of the sources he uses (including President Johnson’s commencement speech at Howard University and California’s Proposition 13) the next time I teach this.

Several contributors describe how they place race at the center of their legal history courses. Stephanie Hunter McMahon frames her course as an explicit dialogue between the law of the marketplace and legal categories of class, race, and gender—topics too often taught on separate tracks. Stephanie L. Phillips describes how, in her seminar on Jim Crow, she contrasts the massive expansion of political participation and economic regulation for white interests during the Progressive era with the condition of blacks in the South at the period, indicating that “there is no single American legal history, but a multiplicity of histories.” (P. 188.)

Multiple essays make clear that primary sources can guide a course in interesting ways. James L. Hunt describes how he interests his Georgia students in American legal history by swapping out ubiquitous cases and statutes for local ones. Anders Walker goes further and describes how, by using Missouri examples as a counterpoint to traditional materials, the story itself changes. Similarly, in her course on women’s legal history, Tracy A. Thomas teaches traditional subjects through sources involving women and gender (teaching nineteenth-century market relations through the Married Women’s Property Acts, for example); through these sources she “seeks to reverse engineer that history so that women’s history becomes part of the regular story.” (P. 201.) Including non-legal sources alongside cases, statutes, and treatises further broadens the story; McEvoy pairs the Civil Rights Cases with a sociological study of lynching, while Jason A. Gillmer teaches Harriet Jacobs’s Incidents in the Life of a Slave Girl and the art of Kara Walker alongside Dred Scott and State v. Mann in his course on “Race and the Law: Slavery, Jim Crow, and the Conquest of the American West.” Catherine J. Lanctot and J. Gordon Hylton are among those who describe how they use movies and videos (inside and outside the classroom) to dramatize the legal issues they teach, and Timothy J. Innes describes his use of paintings, photos, plays, and literature to make clear the relevance of the material outside the courtroom.

A common thread through many of the essays was the question of how to justify teaching legal history in law schools as they increasingly turn toward practice-oriented skills. The authors agree that it should be taught, but offer different reasons why. Some argue that legal history offers law students a different perspective from that of doctrinal courses. Christian G. Fritz, who teaches legal history as a 1L course, argues that the course “challenges students to become ‘flying fish’ who rise above the legal sea they find themselves in and attain a critical perspective from which they are encouraged to ask what they are doing in their other first-year classes, how they are doing it, and why they are doing it.” (P. 20.) Legal history thus demonstrates to law students that legal rules and doctrines exist in context; that law is neither static nor autonomous, and changes in reaction to political, economic, and social forces (or, as John V. Orth puts it, “past performance is no guarantee of future results” (P. 36)); and that law does political, economic, social and cultural work of its own (that future lawyers should be aware of and take responsibility for).

Others focus on the skills legal history students learn, arguing that reading diverse sources and making sense of conflicting narratives is central to legal training, whatever the subject. Howard Bromberg asks his students to write briefs and oral arguments regarding historical disputes (including the trial of Anne Hutchinson, Johnson v. M’Intosh, and the investigations of the House Un-American Activities Committee). As he argues, both history and law “marshal evidence from past events to draw logical conclusions, to argue for theses, and to recreate compelling stories that render human actions of yesterday meaningful for today.” (P. 278.) Richard A. Paschal argues that historical research “is much like the document review that any practicing lawyer would conduct.” (P. 107.) Gregory F. Jacob co-teaches a course that focuses on a different historical decade each term (so far, the 1790s, 1820s, and 1880s) and requires students to engage with contemporary primary sources to understand what it means to be a lawyer in that period (how to get a legal education, how to file a lawsuit, how to appeal, etc.). As he argues, students do not just learn legal history; “I can honestly say that a seminar like ours provides a real opportunity to transmit more knowledge to students about how to practice law than perhaps any class I ever took in law school.” (P. 256 [emphasis in the original].)

Others argue for the importance of teaching law students the differences between making historical arguments and making legal arguments based in historical materials. Several authors demonstrate how they push their students to read as historians, letting arguments emerge from primary sources rather than looking through primary sources for evidence of a claim. Peter L. Reich has his students compare historical scholarship to an amicus brief so that “the class can thus evaluate the benefits and pitfalls of deploying historical evidence for a litigation goal[.]” (P. 240.) As several authors argue, understanding historical complexity is critical for lawyers who are often pushed in the other direction. William G. Merkel’s course on the drafting history of the U.S. Constitution forces students to grapple with the fact that there may be no single authoritative interpretation of any part of the Constitution. Evan C. Zoldan hopes that students immersed in primary sources “have learned to become more comfortable with the ambiguity inherent in historical as well as in legal analysis. I explain that it is in the realm of the ambiguous that lawyers make their mark.” (P. 111.)

Finally, some reject this question altogether. Christopher Tomlins finds that students in his course (which he models on a graduate school seminar) are “freed to enjoy the intellectual experience of reading and discussing intelligently-written material unconstrained by the necessity that it be directly ‘relevant’ to bar admission.” (P. 62.)

Overall, while I do wish that many of the essays had offered more details (and syllabi, or links to syllabi), this is a valuable volume for anyone teaching or thinking about teaching legal history (especially those without graduate training in legal history).

Cite as: Joanna Grisinger, Bringing History into the Law School Classroom, JOTWELL (November 13, 2014) (reviewing Teaching Legal History: Comparative Perspectives (Robert M. Jarvis ed., 2014)),

Citizenship by Descent

There are three paths to citizenship in the United States: birth, naturalization, and descent. In recent political debates, birthright citizenship gets all the attention. Republican lawmakers perennially propose amendments that would make the children of undocumented immigrants ineligible for citizenship, relying on an interpretation of the Fourteenth Amendment that assumes such immigrants are not “subject to the jurisdiction thereof” and are therefore not within the protections of jus soli. But what of citizenship by descent, also known as jus sanguinis or derivative citizenship? This is a powerful mode of acquiring citizenship: it allows U.S. citizen parents living abroad to pass their citizenship status to their children who are not born on U.S. soil. This is literally citizenship “by blood.” This method of transmission is not provided for in the Constitution but has been recognized in the U.S. by statute since 1790. The current jus sanguinis statute does not receive much press or scholarly attention, which is surprising given that it is clearly discriminatory when it comes to children born out of wedlock to a U.S. citizen parent and a foreign parent. If the U.S. citizen is the mother, transmission of U.S. citizenship is virtually automatic. If the U.S. citizen is the father, transmission is not automatic: the father must demonstrate a range of prerequisites, including blood tests and proof of legitimation, among other requirements. Fathers and their illegitimate offspring have challenged this unequal treatment, but the Supreme Court has thus far failed to overturn the provision. In one seminal case, Nguyen v. INS (2001), the Immigration & Naturalization Service defended the provision by arguing that the differential treatment of mothers and fathers was necessary for “administrative convenience.” They argued, in so many words, that the law is justified in requiring fathers to provide more proof of the relationship to their illegitimate child since it is harder to tell if the father is really the father, even if his name is on the birth certificate.

In her article “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Kristin Collins looks in depth at the origins, interpretations, and practices of derivative citizenship over the course of the nineteenth and twentieth centuries. In doing so, she not only systematically destroys the simplistic argument provided by the INS in the Nguyen case, but also reveals the deeply racialized nature of jus sanguinis. She demonstrates that throughout much of our history, derivative citizenship was moored in intertwined visions of women’s subordinate place in the family and of nonwhite persons’ subordinate place in the polity. Courts, agencies, administrators and consular officials across decades found ways to interpret and apply the law of derivative citizenship to favor white children over nonwhite children. Sometimes these efforts were explicit but other times they were hidden. It takes a skilled and capable historian like Collins to be able to dig beneath the surface of decades of government documents and court records and put the pieces of the jus sanguinis puzzle together.

Collins starts with an analysis of a key but underappreciated case in the law of citizenship: Guyer v. Smith (1864). Guyer was a property case, in which the Maryland Court of Appeals decided whether two brothers born on an island in the French West Indies could inherit their American father’s property. The brothers could not prove that their American father had been married to their West Indian mother. The jus sanguinis statute then in effect was silent as to the role of marriage: it said merely that fathers could transmit their citizenship to children born abroad. (Mothers, at this time, could not transmit their citizenship at all). The Guyer court interposed a marriage requirement into the jus sanguinis statute. As Collins explains, the court used the domestic relations idea of bastardy: mothers were responsible for illegitimate children, not fathers, and therefore fathers could not, even under this statute that said nothing about legitimacy or marriage, transmit citizenship to their illegitimate children. Because the brothers were aliens, not citizens, they lost their claim to the property under the state’s alien land laws.

References to the marriage requirement of Guyer appeared repeatedly in the ensuing decades, in other cases, administrative memos, attorney general reports, and other sources. The historical insight that Collins brings to the Guyer case is key: it was decided in the context of race, and its legacy has been one of racialized application. Guyer itself involved the sons of a white man and a woman “partly of African blood,” something the opposing counsel did not hesitate to point out as part of the reason the state should not allow the brothers to hold property. Importantly to Collin’s story, the resulting application of Guyer in decisions about citizenship was also racially asymmetrical: government authorities used the marriage requirement created by Guyer to strip children of nonwhite parents of their citizenship rights. This happened in large part because of the way authorities perceived of marriages between persons of different races. As Collins writes, “The marriage requirement was racially exclusionary because marriage was not a race-neutral institution.” (P. 2183.) Authorities repeatedly refused to recognize the relationships of white American fathers and nonwhite foreign mothers as legitimate, even if their marriages conformed to the marriage laws of the jurisdiction in which they were conducted. Because of the Guyer rule, any children born out of this so-called nonmartial relationship were ineligible for jus sanguinis citizenship.

The marriage requirement took on even greater significance in the era of Chinese exclusion. It became a convenient method of avoiding granting citizenship to the foreign-born children of Chinese American immigrant fathers. Yet, remarkably, when it came to marriages of American men to European women, the various agencies and government officials administering jus sanguinis adopted an exception to the Guyer rule, holding that a father could legitimate a child after the fact of his or her birth, even if the parents remained unmarried, and that this would enable the transmission of the father’s citizenship. When it came to the children of American fathers and nonwhite foreign women or the children born abroad of Chinese American fathers, this “legitimation exception” to the Guyer rule was rarely available.

Jus sanguinis took on new significance in the World War II era and in subsequent conflicts, as American soldiers stationed abroad formed relationships and had children with foreign women. In the World War II era, military authorities and Congress went out of their way to welcome European “war brides” and their children. In contrast, military authorities put up significant roadblocks to the marriages of American GIs to Asian women, making it impossible therefore to transmit their citizenship to the children of those relationships. As Collins writes, “Congress and the military marshaled extraordinary political and material resources in order to bring the non-Asian brides and babies of WWII soldiers home to the United States. Meanwhile, military policies that prohibited and limited interracial marriage between U.S. soldiers stationed in Asia and local women frustrated the efforts of those servicemen who sought recognition of, and American citizenship for, their children.” (P. 2232.) Countless numbers of American GIs fathered children abroad and were unable to pass on citizenship due to official military policies that disfavored relationships with nonwhite foreign women.

Collins artfully traces two types of asymmetry in the application of jus sanguinis: not just the racial logic that prioritized claims of white children but also the domestic relations logic that placed mothers as the sole caretakers for illegitimate children. Up until 1934, only American citizen men could transmit citizenship jus sanguinis to their children born abroad to a foreign parent. After 1934, Congress provided that American citizen mothers could do so as well. The Nationality Act of 1940 codified the Guyer rule and perpetuated gender asymmetry: mothers could transmit their citizenship to nonmarital children born abroad as long as they had, at some point in their lives, had a residence in the U.S.; fathers, on the other hand, could not transmit citizenship to non-marital children unless they had been “legitimated” by the father. Racial nativism continued to influence the application of this notion of “legitimation” after 1940, as administrators, military personnel and courts used racial prohibitions in state marriage laws and practices of non-recognition to bar legitimation attempts by fathers of nonwhite children.

Through extensive archival research, Collins successfully traces the interplay of notions of gender, race, and nationality over a century and a half of American history. She shows how administrators, judges, and other officials crafted policies that were facially race neutral yet systematically benefitted Europeans and disfavored all others. Collins demonstrates that the current law’s differential treatment of mothers and fathers is rooted in much more than mere “administrative convenience,” as the INS would have us believe. Instead, it is embedded in these historical practices of gender inequality and racial nativism. We should not ignore this historical legacy when thinking about the ways our derivative citizenship laws should look in the future.

Cite as: Allison Tirres, Citizenship by Descent, JOTWELL (October 15, 2014) (reviewing Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134 (2014)),

Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law

“Legal interpretation,” Robert Cover famously wrote, “takes place in a field of pain and death.” Honoring Cover’s important insight is one of the great challenges of legal scholarship. As we use our expertise to explore the nooks and crannies of our “legal world”—the clever transactional devices, complex regulatory schemes, and jurisdictional puzzles—do we recognize the state-inflicted and -sanctioned violence on which this world depends? Barbara Young Welke’s The Cowboy Suit Tragedy is a powerful example of how to write about law without losing sight of what Cover calls the “bodies on the line.”1 In the tradition of critical legal history, Welke’s insightful and empathetic account of a mid-twentieth-century products liability case goes further still, to show us the profoundly unequal impact of law’s violence. By placing the case in the context of the “democratization of [consumer] desire,”2 the rise of product liability insurance, and the inherently atomizing features of private law, Welke reminds us that even when tort law forced manufacturers to bear the monetary cost of accidents, the emotional and physical injuries lay where they fell. Families—here, children—owned the hazards inherent in many products, and most often they owned them not as a class or community, but as individuals, as scattered and disconnected as the transactions that brought the products into their lives.

The Cowboy Suit Tragedy centers on the New York case McCormack v. M. A. Henry Co., a wrongful death suit brought by the McCormack family against the manufacturers of the Gene Autry cowboy suit. A popular toy since it first came off the production line in 1942, the “Autry cowboy ranch outfit” offered parents a way to “provide their children with a protected childhood,” an intense postwar desire, while participating in the mass consumer economy that increasingly defined American identity. (P. 103.) Unfortunately for seven-year-old Tommy McCormack, who received the toy for Christmas in 1944, there was a hazard “designed in” to the costume: its plush white chaps were made from a highly flammable viscose rayon fiber, at a time when “children encountered fire as a regular part of daily life.”3 “One minute Tommy was playing,” Welke writes, drawing from court testimony, “and the next he was screaming,” in what his brother Jackie remembered as “a ‘circle of fire.’” After four long months, he died from his injuries. (P. 101.) Other children had by then suffered similar fates, but after Mr. McCormack’s chance encounter with a lawyer, Tommy became the cowboy suit’s first legally cognizable victim. (P. 111.)

Roughly three years after the McCormacks filed suit, a jury awarded the family $65,249.10 in damages, a result that Welke might have cast as a victory. News of the defendants’ careless actions made national headlines, raising awareness about the dangers lurking in common fabrics. And although an appellate court reduced the award nearly by half, the family received compensation for a loss that they otherwise would have borne on their own. Doctrinally, the case would appear to fit with a progressive, feel-good narrative of modern tort law: as litigants confronted courts with the hazards of automobiles and other complex, mass-produced goods, the story goes, and as judges recognized the asymmetries of power and information in the modern consumer-manufacturer relationship, they chipped away at doctrinal barriers—here, the notion of privity of contract—until they had produced a consumer-friendly regime of strict liability for defective products.

For Welke, however, the story remains a tragedy, and we are richer for her insistence on seeing it this way. “[E]ven as the economic burden of product hazard shifted from consumer to producer,” she writes, “a more fundamental continuity remained: product hazard was understood to grow out of private relations in a private economy addressed through private law.” (P. 113-14.) And although subsequent decades witnessed the rise of the class action and the enactment of consumer safety laws, Welke’s point about the privatization of product hazard largely holds. The tragedy of this arrangement is clear from what happened after the McCormack case: some additional victims received compensation, via private settlements, but records were sealed, silence was purchased, and “more children were burned.” (P. 116.) In some cases their families never even realized they had a cause of action and dutifully absorbed both blame and expense. Nor did the public have much of a chance to weigh in: with the full extent of the harm hidden, the cluster of reported cowboy suit deaths quickly “slipped out of view and memory.” (P. 117.) In short, Welke’s telling of the McCormack case urges us not to dwell on the family’s unprecedented victory, but to ponder the costs of the very system that gave them justice. How many potentially outrage-inducing harms has this system kept from our view?

Welke ends the article with an even more important question, which I will rephrase here. The concepts of spreading risk and socializing loss are now woven into our legal fabric, and for good reason. There is no going back. But what would happen if every time we wrote about these concepts or taught them to our students, we reminded ourselves that risks “materializ[e] on the bodies and lives of individuals,” and that the resulting losses are never truly shared? (P. 121.) What would happen if every time we explained the logic of the law or offered a proposal for legal reform, we looked, as Welke has, for the bodies on the line?

  1. Robert M. Cover, “Violence and the Word,” Yale Law Journal 95 (1986): 1601, 1605. []
  2. P. 103 (quoting William Leach, Land of Desire: Merchants, Power, and the Rise of a New American Culture (New York, 1993) ). []
  3. P. 104, PP. 107-09 (borrowing from Ralph Nader, Unsafe at Any Speed: The Designed-In Dangers of the American Automobile (New York, 1965) ). []
Cite as: Karen Tani, Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law, JOTWELL (September 12, 2014) (reviewing Barbara Young Welke, The Cowboy Suit Tragedy: Spreading Risk, Owning Hazard in the Modern American Consumer Economy, 101 J. of Am. Hist. 97 (2014)),

Patterns and Practices

These days, I think a lot about police torture.

To be more precise, these days I am wrestling with problems of how to “prove” police torture occurred. And that’s why I recently read Kim D. Chanbonpin’s article “Truth Stories: Credibility Determinations at the Illinois Torture Inquiry and Relief Commission.”

The question at the heart of the problem I am struggling with is straightforward enough: How can one evaluate a claim of police torture when the only source of the claim is the alleged victim and when the police and prosecutors categorically deny that anything occurred?

As anyone who is familiar with Chicago civil rights litigation knows, claims of police torture have been a problem for the court system for nearly thirty years. In fact, they were a problem for Illinois courts long before Jon Burge began to work for the police department: In 1938, the jury and judge in a murder trial in Chicago were confronted with a claim by Robert Nixon that he falsely confessed to murder only because he had been repeatedly tortured over several days by Chicago police officers, who beat him, hung him by his arms from a wall as they interrogated him, and held him outside a window with the threat they would drop him if he did not confess to several murders. To counter Nixon’s claims, the State called over 40 police officers to the stand; they all testified that they had not abused Nixon or seen any other officer do so.

Invited by the State’s Attorney to consider who had the most reason to lie, the judge and jury concluded that Nixon, a young black man charged with a particularly heinous murder of a firefighter’s wife, would be most inclined to fabricate evidence. As a result, they sentenced him to death. The Illinois Supreme Court agreed for a slightly different reason. Noting that 23 police officers, “shown to be all of the officers in charge of defendant from the time of his arrest until after the statements and re-enactment were made,” had testified that they had not harmed Nixon and had not seen any other officer do so, the court concluded the state had effectively rebutted Nixon’s claims (371 Ill. 318, 324-325 (1939)).

As a practical matter, the Illinois Supreme Court was wrong on the very point it seemed to find crucial: The trial court did not hear testimony from everyone who had custody of Nixon for several of the periods in which he claimed he was tortured. But the sheer volume of the police testimony discouraged that sort of close reading that would make that gap obvious, and so Robert Nixon died on the electric chair in June 1939. He was not yet twenty-years old.

My efforts to tell the story of the Nixon case have forced me to confront the problems that claims of police torture pose for historians, as well. The usual methods of historical research, which would try to prove or disprove a contested claim through the painstaking reconstruction of events pieced together from other records and sources, are rarely viable alternatives for historians trying to unravel police practices. As Alfred W. McCoy noted in Policing America’s Empire (2009), his study of the U.S. surveillance state in the Philippines, “Armies usually preserve their papers for posterity while police and secret service tend to conceal or destroy their records.” (P. 12.) Destroy, or simply fail to keep records at all. In Robert Nixon’s case, it has been impossible to reconstruct who had custody of Nixon for the nineteen days he was in custody before he was brought before a judge for the simple reason that the lock-up keepers were not required to record who took prisoners out of the lock-up.

One alternative, discussed in detail in Chanbonpin’s article, is to look for a pattern and practice. Typically, this approach involves reviewing multiple cases involving claims of torture to try to see if victim complaints suggest patterns of conduct. If such a pattern emerges, the next step is to test an individual’s claim against that model to see how closely it matches. While a match, even a close one, does not prove the claim of torture is true (it would not, for example, trump other evidence that cast doubt on the credibility of the claim), it is a way to try to come closer to reconstructing what happened.

That was essentially the approach I planned to use in my study of Robert Nixon’s case. It is also the basic approach used by the Illinois Torture Inquiry and Relief Commission, created in 2010 to investigate claims of police torture against the Chicago Police Department. Chanbonpin’s article sketches the creation of that Commission as a result of the torture claims in Chicago, as well as its deliberations and conclusions since that date. Most crucially, from my perspective, the article raises questions about the problems of pattern and practice investigation. As Chanbonpin notes, “like other informal justice practices, the TIRC has become re-purposed. Instead of empowering its participants, the TIRC is serving the state’s interests in maintaining the status quo by rejecting police torture claims that do not conform to the dominant narrative.” (P. 5.)

Chanbonpin’s criticism is directed, to some degree, at the specific pattern and practice model relied on by the TRIC, a model that accepts the idea that police torture in Chicago was the product of a few bad apples working with Jon Burge and therefore excludes claims of torture that cannot be traced to particular stations or particular officers. But Chanbonpin’s discussion raises larger issues about the purpose of this sort of inquiry, and the role of restorative justice. While Chanbonpin’s appeal to the idea of counter-publics, and the idea that speaking truth to both power and the powerless may be more important than the adjudication of claims, is framed as an exploration of public accountability, the discussion raises interesting questions of the role of evidence, and its relation to inquiry, for legal historians.

Those are fundamental issues of what we are about when we explore a historical event. Are we trying to reveal what really happened, with the result that we fail (or should give up) if we cannot pin that down? Are we trying to establish that it was more likely than not that something happened, in order to reveal and raise questions about a practice that would otherwise remain hidden from the historical record? How, if we rely on patterns to try to make a point, do we keep our pattern from shaping or silencing our narrative?

Those are not just questions about legal history; they are also questions of historical ethics. In the end, I suspect I will still consider Robert Nixon’s claims of police torture in 1938 in the context of a larger pattern of torture claims made between 1919 and 1939. But because of this article, I will think about that process differently.

Cite as: Elizabeth Dale, Patterns and Practices, JOTWELL (July 30, 2014) (reviewing Kim D. Chanbonpin, Truth Stories: Credibility Determination at the Illinois Torture Inquiry and Relief Commission, 45 Loy. U. Chi. L.J. 1085 (2014)),