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Minding American Law

Every law student worth her salt has read, or at least heard of, Oliver Wendell Holmes and The Common Law.1 His formulation of the reasonable man (or, as we call it now, reasonable person) standard structures the foundation of the law school curriculum. Susanna Blumenthal’s Law and the Modern Mind sheds light on a curious figure lurking behind that reasonable man – the “default legal person,” a phrase of Blumenthal’s creation. The default legal person standard, the determination whether people were mentally competent and thus legally responsible, “stood at the borderline of legal capacity, identifying those who were properly exempted from the rules of law that were applicable to everyone else.” (P. 12.) This quirky character “effectively delimited the universe of capable individuals who could be made subject to the prescriptive authority of the reasonable man…. [He] was supposed to remain at the margins of the common law, standing for the presumption of sanity that, jurists expected, would be warranted in most cases.” (Id.) On the one side lay rationality and legal responsibility; on the other, madness and legal exoneration. It was up to jurists, with the aid of mental health doctors, to discern the difference between the two, and therein lies the project of Blumenthal’s book.

When scholars have examined the mind and the law, they have largely centered their investigations upon the criminal law and the lurid, sensational insane murderer. Blumenthal turns our attention instead to private law, where mental capacity suits were “a common occurrence.” (P. 10.) While these cases were less bloody than their criminal law counterparts, they nonetheless spilled over the pages of the press, created voluminous records, and tied judges in evidentiary knots.

Surveying an astounding number of private capacity suits, Blumenthal traces the life and times of the default legal person from the late eighteenth century to the beginning of the twentieth century. In an area where legal history scholarship tends to emphasize socioeconomics as the engine of change (P. 16), Blumenthal offers a marked intervention. She looks to religion and science in her exploration of the mind, arguing: “the oft-noted ‘concern for objectivity’ in this period had deeper spiritual roots and higher ideological stakes than previous scholars have recognized” (Id.).

The book begins with early republic lawyers, doctors, and other elites grappling with the repercussions of the potential freedom of the new United States and also a new prevailing philosophy of mind. The self-governing individual of Scottish Common Sense philosophy provided the model for the default legal person in American jurisprudence, with mental capacity determining legal liability. This optimistic ethos replaced Calvinism, which was ordered by divine intention of human behavior and innate human corruption. At the same time, doctors within the emerging field of medical jurisprudence pushed an increasingly capacious idea of mental disorder. These twin developments – that mental capacity is foundational to legal liability and that insanity encompassed a wide variety of behavior – spurred the legal confusion that subsequently occurred. Litigants and their lawyers took advantage of the voluminous medical jurisprudence to throw into doubt their mental competency, and thus their legal liability.

Part two of the book examines this legal and medical tangle from the vantage point of legal doctrines, from wills to torts. Blumenthal surveys thousands of cases, mostly involving propertied white men, and highlights the dilemmas that jurists faced when trying to create a unified theory of the default legal person. If jurists produced too broad a definition of legal incompetency, then legal responsibility went out the window. At the same time, though, jurists wanted to protect the truly incompetent from legal liability. Could the self-governing man also perform unreasonable actions? Ultimately, jurists had to answer “yes” in order to preserve a robust understanding of legal responsibility. The default legal person remained a hurdle, but a low one to clear.

By the 1870s, it was clear that the tangled jurisprudence of mental competency led to no clear standard of legal liability. The initial receptivity by judges to medical jurisprudence in the courtroom gave way to skepticism over contradictory and capacious treatises and alarm that the growing field of insanity would fundamentally undermine the very notion of legal responsibility. Ultimately, Blumenthal writes, “courts adopted frankly pragmatic models of legal personhood, drawing a distinctly legal definition of sanity and human agency.” (P. 142.) Strikingly, this forced them to conduct highly individualistic and fact-intensive investigations as a way to identify insane litigants. This insight is an important rejoinder to the scholarly consensus that at the end of the nineteenth century the law was moving towards more objective standards and bureaucratic proceedings.

Blumenthal’s insightful and groundbreaking work opens up considerable and exciting ground for further scholarship. It would be interesting to compare her account of the legal and medical jurisprudence on mental competency with more plebeian understandings of mental competency. How did ordinary witnesses in the cases she investigates, for instance, frame their accounts of litigant competency? How did newspaper accounts differ from elite formulations of insanity? Perhaps class is one of the main explanations for the legal/medical confusion. It might have been that when elites surveyed the American landscape, they worried about creating legal methods and describing medical means to contain what they saw as the out-of-control masses. Their accounts were necessarily voluminous as they tried to catalogue all of the different types of alarming behaviors they observed. When it came to a particular case, however, especially when it involved prosperous white men like themselves, jurists were perhaps less likely to deny the litigant his mental and legal freedom.

Blumenthal’s book also offers a great resource for scholars interested in exploring the issue of the mind from the angle of race and gender. For example, several of the cases in the will section of the book concern white men who were charged with insanity for bequeathing property to black women who were their illicit sexual partners. Their purported insanity therefore reflected denial of the social reality that white men had sexual relationships and children with black women, including black enslaved women. Fundamentally, jurists and doctors had to figure out how to delineate within the law a space for the quirky white man, one who made mistakes, surprised people, did silly things – in short, acted like an actual person. This space of mental freedom, however, was for a privileged group. White women and people of color were bracketed out of this mental landscape and classified as mentally incompetent according to treatise literature. Their mental and legal subordination stands in sharp contrast to the default legal person, who ostensibly supplied a common legal standard.

Overall, Blumenthal’s book is crucial reading across numerous fields, such as the history of psychiatry, nineteenth-century legal history, and the history of capitalism. For a book that covers over 100 years of legal and medical developments as well as thousands of cases, Law and the Modern Mind is a strikingly brisk and engaging read. Blumenthal’s default legal person will take its place in the legal lexicon next to the reasonable person.

  1. Oliver Wendell Holmes, The Common Law (1881). []
Cite as: Rabia Belt, Minding American Law, JOTWELL (November 3, 2016) (reviewing Susanna L. Blumenthal, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016)),

The Crimes of Punishment

Crook County: Racism and Injustice in America’s Largest Criminal Court, by Nicole Gonzalez Van Cleve, is a call to action. “Go,” she writes in her conclusion. “Go to the courts. Bear witness to what attorneys and judges do and bear witness en masse. Don’t let them show you trials, sensationalized murder cases, or heroic acts of litigation. Go as an everyday person, wearing jeans, hoodies, and the like, and take some field notes and some court-watching forms while you are at it.” (P. 189.) And then, she writes, act. Vote based on what you see, serve on juries, take pro bono cases, and “slow down the ceremonial charade.” (P. 190.) Nothing less, she says, will help us turn the islands of racial punishment that comprise the nation’s courtrooms into parts of a just system of law.

As that suggests, Van Cleve has written a stark criticism of the criminal courts at the start of the twenty-first century. Her focus is on Cook County, specifically the felony courts at 26th and California, in Chicago. But the book condemns state criminal courts more generally. Her ethnographic study, based on a thousand hours of interviews and observations conducted by students and court watchers, describes the familiar elements of the modern criminal justice system—plea bargains, inadequate representation—but also highlights recurring moments of racial degradation and racist assumptions at the hands of court personnel, moments that Van Cleve argues distort nearly every interaction in the courts.

The problem of how court actors engage in acts of racialized justice, distorting the promises of due process and other constitutional rights, is the crux of her tale. And in that respect, her work consciously builds on other works that have argued that the “justice” practiced in the criminal courts of the United States is actually punishment. If the idea that the process is the punishment is not unique to Van Cleve, her own contribution is to show, with a degree of detail that is often excruciating and painful, that the punishment provided by legal process is a specifically racial punishment (P. 189).

It is a book that is written in the present, and for the present. Yet her call to action should be answered by legal historians and historians of criminal justice, not just mobilized citizens. Van Cleve’s study directly challenges the conventional, if lazy, wisdom that criminal justice in the twentieth century was marked by the rise of rights and the protections of due process. It also nudges us away from the more complicated, but still incomplete, idea that criminal justice over the past hundred years has seen efforts at reform pushed back by policymakers intent on appearing tough on crime. In Van Cleve’s account, criminal justice is not so much a system as it is a collection of everyday enactments of Jim Crow.

While many aspects of her book invite inquiry into the histories of the wrongs she describes, two in in particular stand out: First, her observation that what was practiced in the courtrooms is “street law,” a system of informal adjudication that prioritizes ad hoc punishment over due process. In other parts of the book, she ties that street law to lawless (and often racist) traditions of popular justice, an argument that echoes observations by others, including Jonathan Simon, Michael Pfeifer, and David Garland, that specific court reforms often snuck popular justice into the courts at the expense of the rule of law. Yet Van Cleve’s discussion goes well beyond theirs, suggesting that the entire criminal justice system has become a space of ad hoc, and explicitly racial, injustice. That is a dramatic claim. It is one that historians of criminal law and criminal justice would do well to pursue in more detail.

Equally notable is her second suggestion that while all court personnel—judges, lawyers, and staff—practice racialized justice, the police drive the process. In her study, police officers openly expressed contempt for judges, and used the threat of their ability to destroy a prosecution’s case—by forgetting to appear at trial or at a crucial hearing—to force prosecutors to overlook police misconduct. I found similar moments in my own recent study of criminal justice in Chicago between 1871 and 1971, which suggest the problem has a longer history than that recorded by Van Cleve’s study. This is, again, a matter of some consequence. As Van Cleve notes, the picture of a court system in thrall of the police, and unable to check police misconduct as a result, explains how Jon Burge and his associates could abuse defendants for so long. It is another problem that deserves greater study by legal historians and other students of criminal justice.

Cite as: Elizabeth Ruth Dale, The Crimes of Punishment, JOTWELL (October 21, 2016) (reviewing Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court (2016)),

Law, Legend, and Forgotten Histories of Survivance

In 2016, legal history is a capacious field – one with a catholic view of what counts as law and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.

Legal Codes and Talking Trees centers on the legal encounters of six Indigenous women in “borderlands” communities, spaces marked by competing territorial claims, overlapping legal jurisdictions, and mixed populations. Three of the cases come from the Sonoran Southwest (encompassing parts of present-day Arizona, California, and Northwest Mexico) and three from the Puget Sound region (including parts of present-day Washington and British Columbia). Jagodinsky selected these two regions because of the different approaches that white settlers took to the Indigenous populations there. But when it came to Indigenous women’s “bodies, progeny, and lands,” she discovered “remarkably similar demands from [American] citizen men and women” (P. 11).

The demands were those of “settler colonialism”: a type of colonization characterized by the colonizers’ “permanent and intimate residence” among the people they planned to exploit and the resources they hoped to extract (P. 4). Consider, for example, the demands made on Lucía Martínez, the focus of Chapter 2: she became the captive of King S. Woolsey, an Arizona territorial senator and renowned Indian-fighter, when he caught her fleeing a previous set of captors (Apache raiders who had targeted Martínez’s Yaqui tribe). Woolsey brought Martínez back to his ranch, where she performed domestic tasks and eventually bore him three children, the first when she was thirteen. Rebecca Lena Graham, profiled in Chapter 5, represents another variation of settler colonialism’s demands. Her parents’ consensual interracial union was a legacy of an era of collaboration between the Duwamish tribe and the American settlers who helped build Seattle in the mid-nineteenth century, before Duwamish and American interests diverged so starkly.

Jagodinsky is not the first, of course, to detail the legal practices that facilitated settler colonialism. What is new here is her detailed documentation of “survivance”1 on the part of the presumed victims of this process. The women in Legal Codes and Talking Trees formulated “a legal culture and practice to challenge their dispossession” (P. 11) – apparent, for example, in Lucía Martínez’s use of a habeas corpus petition to demand custody of her children and in Rebecca Lena Graham’s dogged pursuit of her inheritance in the face of anti-miscegenation laws that disadvantaged her. Another woman whom Jagodinsky profiles triggered a rape prosecution and used her mixed-race status to claim the privilege of testifying (generally unavailable to Native women in her jurisdiction), while a fourth engaged complex federal bureaucratic machinery to attempt to reclaim her family’s land. Others practiced legal avoidance, by locating themselves in spaces where the state’s jurisdiction over their bodies was ambiguous and contestable.

Sometimes these women succeeded in their aims and sometimes not. To Jagodinsky, however, success is not really the point. The contribution of Legal Codes and Talking Trees is critique, in several senses. First, Jagodinsky shows that Indigenous women used the resources available to them to contest and comment upon their own vulnerability. Here, critique is a historical fact, carefully documented and creatively reconstructed. This finding leads to a second critique: of a history of Native legal activism that has privileged battles for political and territorial sovereignty over the claims of corporeal sovereignty that mattered so greatly to women. Jagodinsky demands a Native American legal history in which women figure centrally, not marginally.

Last, Jagodinsky offers a subtle but important critique of the discipline of history itself, in the form of a beautifully written final chapter on her archival journeys. As I read it, this chapter is not only a summary of Jagodinsky’s methodology, but also a reminder that historical research is a combination of craft and politics, and that we should continually reflect on both aspects. Jagodinsky writes about how she chose to approach archivists, contemporary Indian communities, and descendants, and what she did when people were not inclined to cooperate with her. She discusses empathy and compassion as “analytical lenses” that, among others, should inform our readings of primary sources. And she is clear and unapologetic about why she pursued this endeavor in the first place: “The women in this book fought the same forces that promote a disregard for Native women’s political and corporeal sovereignty today,” she writes in the book’s concluding paragraph. Recovering their histories is a way of surfacing “the legacies of inequality that remain embedded in the law” (P. 266).

  1. Jagodinsky uses this term to refer to “the combined acts of survival and resistance in the face of colonial denigration and dispossession” (P. 4). []
Cite as: Karen Tani, Law, Legend, and Forgotten Histories of Survivance, JOTWELL (September 22, 2016) (reviewing Katrina Jagodinsky, Legal Codes and Talking Trees: Indigenous Women’s Sovereignty in the Sonoran and Puget Sound Borderlands, 1854-1946 (2016)),

The Lost Promise of Title VII

Katherine Turk’s elegantly written, deftly argued study of Title VII’s first half-century spotlights working-class women’s distinctive legal activism, deepening our understanding of the promise and limitations of American antidiscrimination law in an era of increasing income and wealth inequality. Using fine-grained case studies as emblematic of larger themes, Turk takes us deep into ground-level campaigns and controversies in a diverse array of workplaces, organizations, and government agencies, from the New York Times and the National Organization for Women (NOW) to municipal employees’ unions to hospitals and hotels where women and men struggled for better and fairer conditions for all workers. Working women built cross-class and interracial coalitions with labor and feminist organizations to fight for pay equity, comparable worth, higher safety standards and workplace protections, paid family and medical leave, occupational mobility, and accommodation of family responsibilities.

Equality on Trial documents how the expansive visions of workplace justice that animated workers and their advocates collided with formidable obstacles: class divisions among women, gender divides among workers, declines in union density and power, conservative counter-mobilizations against civil rights enforcement, and a neoliberal politics that elevated individual opportunity over structural reform. The result is a class-stratified world of gender and work, in which privileged women enjoy the limited benefits of formal equal treatment while their working-class counterparts languish in low-wage, contingent jobs where sex equality means the right to be treated as poorly as men. Elite women gained access to white-collar male-dominated occupations, but failed to unsettle the expectation that the ideal worker outsource all reproductive labor to unpaid spouses or underpaid domestic help. Working-class women, Turk contends, benefited little from the paltry concessions feminists won in the late twentieth century: stingy, unpaid family leave for which many low-income women are ineligible and few can afford to take; desexualized but hardly de-gendered working environments; equal pay for equal (but not comparable) work; freedom from pregnancy discrimination without an entitlement to accommodation; the right to work under the same dangerous and soul-crushing conditions as men.

Grim as this denouement may sound, Equality on Trial is a story of promise as well as loss. Even where Turk reveals the darker side of conventional triumphalist narratives, she suggests the power of both individual imagination and collective action to engage in transformative projects of legal and social reform. Her chapter on the early years of the Equal Employment Opportunity Commission (EEOC), for instance, complicates dominant accounts that depict the agency’s initial implementation of Title VII’s sex discrimination provision as anemic and even obstructionist. In Turk’s telling, the Commission, though hampered by its weak enforcement powers, grappled earnestly with the conundrum of how to reconcile Title VII with sex-specific state protective laws. In the late 1960s, the EEOC pioneered “time-intensive, industry-specific” approaches to early sex discrimination claims, which envisioned Title VII as a tool to achieve substantive fairness, measured not in comparison to men but against working women’s own conception of justice. By taking seriously the wide-ranging aspirations articulated in women’s early Title VII complaints, Turk reveals what was lost as well as gained when the EEOC became a more powerful, bureaucratized entity that increasingly relied on statistical evidence of segregation and exclusion and “aggressively pursue[d] individual women’s complaints only where they pointed to entrenched patterns of discrimination by major corporations.” (P. 39.) In subsequent chapters, she uncovers important, if short-lived, coalitions that attempted to bridge class divisions among women, including the New York Times Women’s Caucus, which briefly united journalists with copy editors and clerical staff, and the feminist attack on discrimination and segregation at Sears, Roebuck & Company, where middle-class activists channeled the concerns of pink-collar workers in a grassroots campaign for substantive sex equality.

But the actions against the New York Times and Sears ended in disappointment for working-class women. And in a tragedy of poor timing that is unfortunately typical of second-wave feminist legal advocacy generally, by the time labor and feminist advocates united behind a workplace justice agenda—the pay equity movement of the 1980s—the political and economic tide had turned. Support for comparable worth, strong before 1970, flagged during feminists’ heyday and reignited in the Reagan era just as a conservative retrenchment swept federal agencies and courts. A similar temporal disjuncture afflicted hotel workers who campaigned for higher pay and better working conditions in the sex-segregated occupation of housekeeping. Female room attendants argued for equitable compensation based on the inherent difficulty and dignity of their sex-specific duties, but legal and political constraints pushed their lawyers to minimize gender differences and frame housekeepers’ demands as the right to be treated the same as the “housemen” who traditionally performed less repetitive but heavier lifting and cleaning tasks. In one of the book’s most poignant passages, Turk describes how hotel employers eventually pulled the rug out from under sex equality efforts by transferring housemen’s heavy labor tasks to maids, making their working conditions more onerous without offering commensurate wage increases. Eventually, a literally and figuratively emasculated union “agreed to a settlement that proffered all housekeepers the same back-breaking work: equality without protection.” (P. 128.)

Turk’s book is a worthy addition to a rich tradition of social and political histories that prominently feature working-class women’s use of the law, and intersects with pathbreaking legal-historical scholarship such as Deborah Dinner’s work on protective legislation, reproductive labor, and the neoliberal functions of anti-discrimination law. And Equality on Trial appears at a critical juncture in the debates Turk so evocatively excavates and historicizes. Gay plaintiffs’ late twentieth-century efforts to win protection from discrimination met with limited and localized success, as Turk details. But the tide may have begun to turn, with recent EEOC and federal court decisions reinterpreting Title VII’s sex provision to prohibit discrimination based on sexual orientation and gender identity. Advocates creatively interpret the Americans with Disabilities Amendments Act of 2008 in conjunction with the 1978 Pregnancy Discrimination Act to require accommodations for pregnant workers; a smattering of local ordinances do the same. Paid family leave, early childhood education, equal pay, sexual assault and harassment, and income inequality itself headline the national political agenda. The history recounted in Equality on Trial reminds us how fragile and fleeting these advances may be, and what is at stake in preserving and extending their reach.

Cite as: Serena Mayeri, The Lost Promise of Title VII, JOTWELL (August 8, 2016) (reviewing Katherine Turk, Equality on Trial: Gender and Rights in the Modern American Workplace (2016)),

The People and Their Sovereignty in the Longue Duree

In Inventing the People (1988), Edmund Morgan famously argued that the doctrine, or “fiction” as he termed it, of popular sovereignty was invented in middle seventeenth-century England as Parliament and the king engaged in civil war. Initially, the idea that the people were the basis and purpose of government was not intended to overthrow the king, or the then-prevailing doctrine of the divine right of kings that connected king to God. It simply sought to place the king in proper relationship to government by resting his authority upon both God and the people. But the basic idea of popular sovereignty, that the people could “begin, change, and end governments,” had radical implications (Morgan, P. 59), which became real when Americans rediscovered popular sovereignty in the late eighteenth century to overthrow monarchy and create new republican governments based solely upon popular authority.

But while Morgan adverted to earlier thinking about the people, principally the sixteenth-century French monarchomachs (“king killers”), he did not give it sustained attention. He is not alone, of course. It is a curious thing that what is perhaps the master concept in Western constitutionalism has until recently received scarcely any attention. To the extent it has been examined, it is usually presented as both cause and consequence of late eighteenth-century revolutionary politics in America and France. Daniel Lee’s new book on popular sovereignty in early modern legal and political thought offers a corrective, and challenges us to rethink the nature and meaning of popular sovereignty as it emerged in the late eighteenth century, a point in a longue duree that he traces back to the Roman Republic.

What we now know as popular sovereignty grew out of several not always compatible concepts of Roman public and private law, including dominium, imperium, and iurisdictio. The root concept, however, was the lex regia (“royal law”), “the legal device or instrument by which Roman popular sovereignty was fully alienated and transferred to the Roman Emperor as ‘lord,’ or dominus, of all the world” (Lee, P. 26). While superficially this concept could appear to lead directly to a more modern idea of popular sovereignty, in reality the path from former to latter was long and at times dizzying. Lee does a wonderful job of tracing this idea and its shadows through various intellectual traditions from scholasticism, humanism, and natural law, to French and English radical and absolutist thought in the sixteenth and seventeenth centuries. While the analysis is anatomical in detail at times, he frames each chapter so that the reader can understand or at least contemplate the relationship between the ligaments of analysis and the body of the narrative.

While there are many themes dancing around within this book, a couple particularly captured my attention. One concerns the origins of the idea of the constituent power—the idea, as Morgan put it, that the people can begin, change, and end government. The origin of this idea is commonly traced to Emmanuel Sieyès, a thinker in and of the French Revolution. Lee, however, traces this concept to the sixteenth-century French monarchomachs, who introduced both a theory of resistance into popular sovereignty and the idea that “the people always bear the proper and exclusive right of sovereignty” (P. 157). This was a first step toward linking popular sovereignty to revolution, a connection realized a couple of centuries later, in the late eighteenth century.

A couple of other themes revolve around the concept lex regia itself, and demonstrate that there was never a single concept of popular sovereignty. One concerns whether the Roman people ever actually conveyed their authority to the emperor. While there is some scanty evidence of such conveyance, Lee concludes that ultimately the lex regia operated as a fiction to legitimate the Roman emperor’s authority. But this was a problem that would plague the development of popular sovereignty throughout the early modern period, as various polities also tried to account for their own moment of popular creation in the absence of clear evidence. Although beyond the scope of Lee’s book, this problem would be resolved by the French and American revolutionary experiences in the late eighteenth century, which tied the constituent assembly to the people transforming popular sovereignty as both idea and practice.

A final theme of Lee’s book is also important for understanding the legacy of early modern ideas of popular sovereignty. This theme concerns the question of whether the popular grant of authority to the princeps (“prince”) was a complete alienation of popular authority (translatio), or a temporary grant that could be later recalled (concessio). In the early modern period this debate helped to frame the questions concerning the nature and legitimacy of the prince’s political authority. Variations of this debate persisted well beyond the early modern period. I have seen it in nineteenth-century America. As popular sovereignty sunk deep roots in constitutional development, variations of the debate over full or temporary alienation, this time to constituted authority, were part of a debate over how to limit the political authority of the people themselves.

Lee lays out well the intellectual debates, and provides us with the intellectual context of the history of popular sovereignty over a longue duree, a history that has been lacking for far too long. Lee’s book is now the starting point for any study of popular sovereignty, popular constitutionalism, and, I would say, the rise of constitutionalism more generally.

Cite as: Roman Hoyos, The People and Their Sovereignty in the Longue Duree, JOTWELL (July 6, 2016) (reviewing Daniel Lee, Popular Sovereignty in Early Modern Constitutional Thought (2016)),

The Turn to Procedure

Daniel Ernst’s book, Tocqueville’s Nightmare: The Administrative State in America, is a significant addition to the growing literature on the history of the administrative state. However, it also compels a rethinking of the received historiography of twentieth century American legal thought. It is to the latter contribution that I will devote this brief review.

When Alexis de Tocqueville visited the United States in the 1830s, he observed that the country—in contrast to the states of continental Europe–had very little in the way of centralized bureaucracy. This, for Tocqueville, was a good thing: powerful centralized bureaucracies threatened a significant abridgment of democracy in a country as diverse and spread out as the United States. The “Tocqueville’s nightmare” of Ernst’s title refers, then, to the situation in which too much power might become vested in the hands of bureaucrats unanswerable to the people.

Beginning in the late nineteenth century, the first federal bureaucracies began to emerge in the United States. By 1940, a vast centralized administration had developed. This was in large part a result of the efforts of early twentieth century reformers, who called for systematic, scientific, bureaucratically-managed resolutions of the country’s economic and social problems. But the shadow of “Tocqueville’s nightmare” fell over the new administrative state. Many worried that the United States had shrugged off “the despotism of a supreme autocrat” only to make way for “the petty despotism which may come from vesting final discretion to regulate individual conduct in the hands of lesser officials” (P. 1; emphasis in original). How was this “nightmare” to be averted?

Ernst argues that the “nightmare” was averted because Americans—in a gesture Tocqueville identified as characteristic of American political culture–turned to the courts. Ernst traces meticulously how the courts—and law in general—structured the new administrative state. During the first half of the twentieth century, courts repeatedly refused to surrender their right to hold administrators accountable; demanded that administrators adhere to norms of due process in administrative proceedings; and insisted that administrators assume a quasi-judicial impartiality vis-à-vis subordinates who argued cases on behalf of the government. Indeed, according to Ernst, the courts’ influence on the administrative state “went beyond the structure of an agency; it reached deep into the thought processes of administrators and taught them to justify their actions in a particularly legalistic way.” (P. 3.) The distinctly legalistic cast of the American administrative state distinguished it, Ernst maintains, from its far less restrained and far more dangerous contemporaries in Hitler’s Germany, Mussolini’s Italy, and Stalin’s Soviet Union. At the same time, the country’s common lawyers, traditionally more comfortable arguing before judges than making their case before bureaucrats, shed their hostility towards the latter and developed lucrative specialized practices that involved close relationships with agencies.

This narrative, fascinating in its own right, raises all sorts of questions for the historiography of American legal thought. An important origin point for the historiography of twentieth century American legal thought is the case of Lochner v. New York (1905), in which the U.S. Supreme Court read common lawyerly ideas of freedom of contract into the Due Process Clause of the Fourteenth Amendment in order to strike down a New York law that established the maximum length of the work day in the baking trade. Lochner, and other cases like it, incensed Progressive-era critics of the federal courts. These critics argued that unelected, conservative, common lawyerly federal judges were reading their political preferences into “law” and thereby encroaching on the turf of democratic “politics,” denying democratic majorities the right to govern themselves. In making such arguments, these critics of the courts were joining forces with an ongoing philosophical critique of law. Beginning in the late nineteenth century, pragmatic legal thinkers such as Oliver Wendell Holmes, Jr. had argued that law’s foundations in logic, morality, reason, and so on were essentially spurious. Because “law” could not meaningfully distinguish itself from “politics,” Holmes appeared to argue, common law judges should cede control over law-making to the forces of democratic “politics.”

We often tell the history of American legal thought in the first half of the twentieth century as a history of the retreat of “law” before the advance of democratic “politics.” The New Deal, accompanied by the U.S. Supreme Court’s decision to rethink its position in Lochner, represents the triumph of democratic “politics,” the displacement of law generated by a common lawyerly judiciary by law generated by legislatures and the administrative agencies they created.

Ernst’s book complicates this story considerably. If one follows the implications of his account, the story of the contest between “law” and democratic “politics” in the first half of the twentieth century is not any simple story of the retreat of “law” before the forces of democratic “politics.” It is instead a story of how “law,” by giving up its ability to check democratic “politics” on substantive grounds, instead suffused democratic “politics”—one important locus of which was the new administrative state—by becoming procedure. Through his study of politics of the early twentieth century administrative state, Ernst thus gives us rich substantive account of one important site of the changing career of “law” in relationship to democratic “politics,” of its emerging ontology as procedure.

The idea that law in the early twentieth century would transform itself into procedure as it ceded ground to the new expert knowledges of the administrative state is made clear in the writings of Felix Frankfurter, an important intellectual architect of the American administrative state and someone who features prominently in Ernst’s book. Towards the end of his career, Frankfurter recalled something he had written in the summer of 1913, as he contemplated taking up a teaching position at the Harvard Law School. In his recollection, we have a breathtakingly clear understanding of the new procedural conception of law:

The problems ahead are economic and sociological, and the added adjustments of a government under a written constitution, steeped in legalistic traditions, to the assumption of the right solution of such problems. To an important degree therefore, the problems are problems of jurisprudence,–not only the shaping of a jurisprudence to meet the social and industrial needs of the time, but the great procedural problems of administration and legislation, because of the inevitable link between law and legislation, the lawyers’ natural relation to these issues, the close connection between all legislation and constitutional law, and the traditional, easily accountable dominance of the lawyer in our public affairs. In the synthesis of thinking that must shape the Great State, the lawyer is in many ways the coordinator, the mediator, between the various social sciences (emphasis added).1

Ernst’s account of how law suffused the new administrative state is offered as a corrective to the Tea Party movement’s view that that Americans in the early twentieth century abandoned the country’s tradition of individualism when they built up the administrative state. Instead, Ernst wants to show that “the reformers who supposedly sent the Constitution into exile . . . actually designed the principles of individual rights, limited government, and due process into the administrative state” (Pp. 7–8.)

As a corrective to the Tea Party’s simplistic view of America’s past, Ernst’s account is indeed valuable. It is important to emphasize, however, that the transformation of law’s ontology into procedure in the early twentieth century was a complex and variegated affair, pointing in many different directions. The career of Felix Frankfurter, who was an ardent New Dealer and then a kind of proceduralist conservative on the Warren Court, suggests how complicated the various strands of law’s self-transformation into procedure could be. In Tocqueville’s Nightmare, Ernst is not concerned with exploring these issues. But his book is enormously suggestive. As such, it deserves a wide readership.

  1. Felix Frankfurter & Harlan B. Phillips, Felix Frankfurter Reminisces; Recorded in Talks with Dr. Harlan B. Phillips 81 (New York: Reynal & Company, 1960). []
Cite as: Kunal Parker, The Turn to Procedure, JOTWELL (June 13, 2016) (reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (2014)),

The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State

When I was growing up in New York City, there was a rite of passage that you went through when you turned 14. You got your “working papers.” For a middle class kid, the process was one of your first encounters with the administrative state. You went to the dingy building in downtown Brooklyn that housed the New York State Department of Labor’s Kings County office. There you submitted a form, signed by your parents, along with a copy of your birth certificate. The form itself was a stock item of the postwar, pre-digital bureaucracy: four sheets of stacked, bound, carbonless copy paper (white, yellow, pink, and blue with an instruction to press hard enough to create legible words on the blue copy). The birth certificate was a photocopy – white text on a black background – with a raised seal. The form and the birth certificate were reviewed and stamped by a clerk behind a counter who then returned to you a copy of the form (the pink one, I seem to recall). You now had the permission of the State of New York to be a camp counselor, or to peddle Dove Bars and frozen lemonade from a cart in front of Rockefeller Center

Behind this banal bureaucratic process was over one hundred years of state building, some of it quite familiar. As anyone who remembers their AP American History class will tell you, the substance of the regulatory regime (children can’t work until they’re 14 and even then they are prohibited from industrial labor), and its institutional manifestation (the Department of Labor) are products of the Progressive era campaign against child labor. However, as Susan J. Pearson’s richly detailed article demonstrates, before the political impulse to protect children from the dangers of industrial labor could succeed, the administrative state had to assert its power in another way. The most fundamental obstacle to abolishing child labor was not political resistance from business interests or immigrant families in need of income. Nor was it hostile courts with their concerns about federalism and freedom of contract. The most intransigent barrier to abolishing child labor was the fact that well into the twentieth century, the state had no way of knowing how old somebody was. In a world without state-issued birth certificates, enforcing age-based prohibitions on work was impossible.

This, then, is the story that Pearson tells: how the states and the federal government created the bureaucratic infrastructure to ensure that every child born in the United States had a government-issued birth certificate to verify their age. In nineteenth-century America, she explains, chronological age was not defined with the precision we are used to today. Many Americans “understood their age in approximate terms.” (P. 1150.) This fact was particularly true in immigrant and non-white communities. Consequently, for most Americans, the age at which a child should start working was viewed not as precise boundary (the chronological age of 14, for example), but instead as a contextual calculation related to the economic circumstances of the family and the actual maturity of the child at issue.

In order to make child labor laws work, Progressive reformers had to impose a different conception of age on working families. The evidence that was traditionally used to determine a child’s age, such as parental affidavits, notations in family bibles, or baptismal certificates, was gradually replaced during the first third of the twentieth century by standardized, state-issued birth certificates in which chronological age could be attested to by experts: the doctor, nurse, or midwife who was present at birth. Pearson demonstrates that this transition was not a smooth one. Parents resisted this profound loss of authority over their children. The ultimate judge of a child’s maturity became the government, not than the parents. To do this, states and the federal government had to build out a considerable bureaucracy. Legislation created state and federal child labor agencies that worked with the Census Bureau and state and local health agencies to promote and, ultimately, require birth registration.

As Pearson notes, a definitive determination of chronological age was necessary not only to prevent child labor. It was also a prerequisite for implementation of other Progressive-era reforms such as compulsory schooling and juvenile courts. The same was true of the emergent New Deal welfare state. Age, after all, was the fundamental basis for awarding Social Security payments. Indeed, the significance of the shift that Pearson describes from parental to state control over the definition of a child’s age is what makes her article so important. Like all the best historical writing, it uncovers a historical process obscured by our modern perspective. Our understanding of a person’s age – as defined by an objective measure of the number of times the earth has orbited the sun since that person’s birth – is, in fact, the creation of early twentieth-century reformers intent on furthering particular policy goals. That policy impulse, and the state-building that was required to implement it, favored a particular definition of age so powerfully that we can now scarcely imagine any other definition.

Cite as: Reuel Schiller, The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State, JOTWELL (May 13, 2016) (reviewing Susan J. Pearson, "Age Ought to be a Fact": The Campaign Against Child Labor and the Rise of the Birth CertificateJ. of Am. Hist. 101 (2015)),

Did Public Interest Lawyers Undermine the New Deal Order?

Paul Sabin, Environmental Law and the End of the New Deal Order, 33 Law & Hist. Rev. 965 (2015).

Paul Sabin’s recent article puts elite liberal lawyers at the center of the story of the demise of the “New Deal order” – that “period of time between the 1930s and 1970s when the federal government, in close partnership with business and labor organizations, greatly expanded its coordination of the national economy and individual industries, as well as its development of natural resources and public infrastructure projects.” (P. 969.) Sabin draws on a wealth of oral histories, interviews, and archival materials to provide an engaging history of public interest environmental lawyers and organizations – including the Environmental Defense Fund, the Center for Law and Social Policy, the Natural Resources Defense Council, and the Sierra Club Legal Defense Fund. These lawyers and law firms challenged New Deal assumptions; in doing so, Sabin argues, they were as key to the fracturing of New Deal-style liberalism as its conservative critics.

Sabin describes how environmental lawyers, like other public interest lawyers in the 1960s, were inspired by the successes of the NAACP and ACLU in using litigation for social change. And while they shared Americans’ growing distrust of government action in the Vietnam War era, they were also specifically influenced by the mid-century critique of administrative governance as slow, rule-bound, unresponsive, and/or corrupt. Agreeing that the New Deal agencies tasked with protecting the public interest had failed to do so, environmental lawyers pointed specifically to the ways in which Americans and their environment were harmed by federal officials’ pursuit of centralized planning and economic growth. These elite lawyers with stellar credentials, who three decades earlier might have pursued their interest in public service through jobs at the agencies and commissions, now sought to become an external check on agency governance.

These lawyers thus turned to the courts – the bane of New Deal policymaking – to challenge government projects and agency orders. As Sabin explains, “public interest law firms sued the government in order to improve its performance, rather than dismantle it. They denounced both government overreach and agency passivity. They questioned government’s representativeness, effectiveness, and expertise. Government, they argued, no longer had a monopoly on scientific and technical knowledge.” (P. 972.) Environmental lawyers demanded administrators include in their decisionmaking process evidence of environmental harm produced by experts outside the agencies. This was a direct response to the various criticisms of the administrative state in the 1950s and 1960s. Many critics charged that administrators were too insulated from the public, while others argued that they were too easily accessible to business interests. Responding to both criticisms, environmental advocates sought to bring environmental concerns into the administrative process. They did so by demanding that judges expand the category of standing to include those suffering aesthetic and environmental injuries. As Congress joined the environmental cause, lawyers also took advantage of new statutory language authorizing citizen suits against agencies and requiring agencies to consider environmental impact statements.

While environmental lawyers succeeded in their specific tasks – halting development projects, questioning chemical usage, and changing administrative law doctrines to ensure greater participation – their approach, Sabin argues, also had unfortunate consequences. First, he suggests, these elite lawyers only envisioned change within the existing legal and political establishment. Relying on legal methods made sense to lawyers, of course, who were “idealistic and hopeful about peaceful social change overseen by the courts. They distinguished themselves from protesters and rioters, and they believed that the system would respond to their legal claims.” (P. 990.) And much of the funding for environmental law firms came from the Ford Foundation, which was enthusiastic about finding a way “to create an ‘antagonist of government’ that would stay clearly within the bounds of the American legal system.” (P. 1001.) At a time when the very idea of a single “public interest” was under attack, these lawyers continued to assume that they could speak for the public. This elite vision of social reform, Sabin argues, restricted the kinds of alliances that lawyers could make and limited the radical potential of environmentalism as a movement.

Second, he suggests, the lawyers’ embrace of an anti-bureaucratic perspective weakened the New Deal order perhaps more than these lawyers had intended. Theirs was “[a] new kind of liberalism—skeptical and distrustful of government, yet still committed to collective action by the state.” (P. 1000.) Environmental lawyers rejected the assumptions of the New Dealers and those of free market conservatives, offering “a third alternative: an informed, active citizenry, represented by professional experts, who would ensure that government agencies pursued the true public interest.” (P. 972.) However, Sabin argues, their criticisms of the administrative state weakened New Deal institutions from one side as conservatives were attacking those same institutions from another. In addition, they “helped drive a wedge into the New Deal political coalition by attacking economic development projects, such as the Alaskan pipeline, that generated jobs for the white, male, working class voters who traditionally supported the Democratic Party.” (P. 1000.)

“Environmental Law and the End of the New Deal Order” is a fascinating case study of the development of environmental law, and the personalities and institutions that shaped it. (Sabin makes clear that these firms developed before, not after, the burst of environmental, health, and safety legislation in the 1970s.) It suggests the need for similarly rich studies of other areas of public interest litigation. While much has been written on civil rights and welfare rights litigation, historians are only now beginning to explore public interest litigation in the administrative state. This article also offers a broader reflection on the relationship between litigation and social change. Sabin explains how these lawyers drew on an already robust trend of public interest litigation and how they adapted it to their own purposes, while making clear both the advantages and disadvantages of their litigation-focused approach. Through an insightful examination of liberal lawyers attempting to redefine the public interest, Sabin contributes not just to scholarship on environmental law and administrative law, but also to a rich body of research on liberalism, anti-statism and the rise of the conservative movement.

Cite as: Joanna Grisinger, Did Public Interest Lawyers Undermine the New Deal Order?, JOTWELL (April 15, 2016) (reviewing Paul Sabin, Environmental Law and the End of the New Deal Order, 33 Law & Hist. Rev. 965 (2015)),

Law and Literature for Legal Historians

Creating Legal Worlds, a new book by Greig Henderson, an English professor at the University of Toronto, is about rhetoric and the law and how story-telling is intrinsic to the law. Henderson revisits famous cases (and introduces readers to new cases) in which judges use a variety of rhetorical techniques to engage in persuasive (and, it turns out, at times, not so persuasive) story-telling.

Legal scholars will find value, especially for teaching, in Henderson’s analysis of judgment-writing as craft. However, I think the book has especial purchase power for legal historians, who can contrast Henderson’s approach to cases with the way they generally approach cases and their context. Rather than emphasizing the details of a case and its surrounding circumstances, Henderson emphasizes the technique of the judge as a writer. He explains the literary and rhetorical techniques that judges use (consciously and unconsciously) in order to paint a scene, play on a presumption or prejudice, generate empathy or reassurance that the right result has been reached with cool, clear and unemotional speech.

Consider, for instance, Henderson’s discussion of the famous Palsgraf case. Palsgraf has been a favorite object of study by legal scholars from John T. Noonan (in Persons and Masks of the Law (1975)) to Richard Posner (Cardozo: A Study in Reputation (1990)). Cardozo, the author of the majority opinion and often considered to be the father of law and literature, is the usual focus of attention – charged with dehumanizing Mrs. Palsgaf (Noonan) or defended against the charge (Posner). Henderson’s chapter offers a completely different perspective. He focuses on Judge Andrews’s dissent, which is filled with analogies, and considers “the perils of analogy” (in which, as Henderson puts it, “there is always the danger of lurking antithesis.” (P. 64.)) Henderson collects together Andrews’s examples, listing “a reckless driver on Broadway, a boy throwing a pebble in a pond, a stream of causation, a murder at Sarajevo, an overturned lantern that burns all Chicago, a negligent chauffeur.” (P. 69.) According to Henderson, the “overall effect of these metastasizing analogies is to deconstruct the very concept of causation he [Andrews] relies on, making everything a question of expediency and common ense.” (P. 69.) Henderson argues that the strategy confuses but then ultimately succeeds “in fashioning an appealing judicial self … a fair and reasonable person grabbling as best he can … trying through analogy after analogy to arrive at a pragmatic criterion.” (P. 70.) Hence, the rhetorical technique (the piling on of analogies) is connected to the judicial solution Andrews offers. What we mean by proximate cause just is “practical politics … [i]t is all a question of expediency … [t]here is little truth to guide us other than common sense.” (P. 71.)

Henderson refers at many points in the book to decisions by the English judge Lord Denning. (He even offers a re-writing of Andrews’s Palsgraf dissent as if it were penned by Denning, offered in the style of Karl Llewellyn’s re-writing of another famous Cardozo decision, Wood v. Lady Lucy Duff-Gordon. (P. 70.)) We are treated to an analysis of how Denning elicits sympathy for “Old Herbert Bundy” in Lloyd’s Bank v. Bundy and hostility toward those enemies of cricket who bring an injunction against a cricket club in Miller v. Jackson. In Miller v. Jackson, Henderson describes the way in which the judge, writing in the 1960s, develops “a nostalgic pastoral vision of an England that is disappearing before Denning’s very eyes.” (P. 54.) He then ties that vision to the trouble Denning got in over racist comments he made during the 1980s about immigrants and black jurors. (Pp. 54-55.) As someone who teaches a lot of Denning’s cases in my first-year contracts class, I find this discussion helpful in identifying a troubling ethnocentric strand in what would seem to be pretty innocuous breach of contract cases. In Jarvis v. Swan Tours and Jackson v. Horizon Holidays, for example, he expresses a special sympathy for travelers in far-away lands who fail to find food, accommodation and even English-language skills up to British standards. The rhetoric in Denning’s decisions can be very persuasive, and it helps to have a way into putting one’s finger on what seems to be happening in these cases, especially where something is slightly off.

The book includes a discussion of Buck v. Bell and Oliver Wendell Holmes Jr.’s famous statement that “[t]hree generations of imbeciles are enough.” (Pp. 33-37.) Henderson uses this infamous case to weigh in on a debate among law and literature scholars as to whether bad or immoral cases can ever be spoken about as aesthetically great. Henderson believes that technique can be kept separate from morality: “Eloquence, as Buck v. Bell illustrates, is no guarantor of virtue.” (P. 37.) He does not refer to Paul Lombardo’s work on the case, which shows how it was feigned and rigged against Carrie Buck from the very beginning. Especially shocking is the role Buck’s own lawyer played in enthusiastically losing her case in a flagrant example of collusion with the doctor and hospital seeking to have her sterilized and the sterilization statute constitutionally upheld. However, this is a good example of the way that a legal case will be of interest to scholars in different sub-fields for different reasons. Henderson uses it as a way to discuss the question of how morality intersects with issues of greatness and literary technique. The historical investigation shows it to be a thoroughly irredeemable and morally bankrupt case.

The audience for this book is first and foremost judges interested in being more self-conscious about their craft. Henderson is involved with the Judicial Writing Program for the Canadian Institute for the Administration of Justice. His message for judges seems to be: Be careful because an “understandable desire to inject humanity and concreteness into judicial writing is sometimes misguided and sometimes impairs rather than enhances its persuasiveness.” (P. 16.) The book discusses at length an infamous 1998 Canadian sexual assault case (R. v. Ewanchuk) in which the judge described a complainant as not wearing “a bonnet and crinolins” when she met the accused, a statement that elicited a firestorm of controversy for the way that it traded in problematic myths about women in rape and sexual assault cases. Henderson offers a range of examples in other chapters drawn from homicide and sexual assault cases, Canadian and American, in which competing accounts of reality by judges involved in trial-level and appellate-level cases undeniably shaped and created that reality; the legal worlds in the title of the book that judges create for themselves; and the “legal worlds in which others must live, worlds that reinterpret the past, delimit the present, and shape the future.” (P. 153.)

The second audience is legal scholars generally interested in a very practical approach to law and literature. Henderson teaches a lot in the book, especially about a range of literary and rhetorical devices. Learning about rhetorical techniques – even familiar “thinking like a lawyer” stock-in-trade devices such as example or analogy, explained from a formal point of view – will make any legal scholar a better reader and teacher of cases. How to see, for instance, the trajectory in a line of cases and what facts and issues are necessary to the legal principle and which are superfluous. Henderson tells us that Cicero called “the heightened capacity to see similarity and difference,” so important in deciphering precedent and evaluating example or analogy in legal reasoning, ingenium. (P. 150.) I usually talk about this to my students in terms of the song “One of these things (is not like the others).” Henderson includes a quote about “analogical reasoning,” as it is called, from a literary critic, who writes that “patterns of opposition and connection [are] probably the basis of thinking itself.” (P. 157.) Thank goodness for Sesame Street!

Law and literature scholars such as Bernadette Meyler have recently called for greater communication and cross-fertilization between legal scholars who are interested in literature and in history.1 Certainly, legal historians often turn to the cases, especially the great cases, which make a kind of common law of the law school curriculum. Henderson approaches cases in a different way, as texts serving a variety of purposes, carefully and often quite subtly crafted by their creators to elicit in their readers certain kinds of reactions. The reaction aimed at can be as various as eliciting sympathy for a plaintiff or invoking nostalgia for a by-gone world that is no longer (if it ever was) shared. England was home to many people who were not reared on a love for and allegiance to cricket. Henderson’s point is that the world in which that person felt unwelcome or the world in which a determination of whether or not a sexual assault took place was influenced by the clothes a woman wore, these are the worlds that judges helped create, a reality they played a role in manufacturing and reinforcing with their words.

A third audience of Henderson’s work is legal historians, who can find here cases that have had their fair share of historical investigation. However, these cases do something different in the hands of a literary scholar, who emphasizes different things than a historian would. Henderson’s focus is less about what is true and false and more about persuasiveness—learning how persuasiveness works, how to recognize its various forms in action, and how to evaluate it. Why is this important for legal historians? Well, literary persuasiveness plays a key role in the reception of a case, what kind of uptake it enjoys, and that in turn influences historical as well as legal assessments of the significance of the case and the larger story the legal historian wants to tell. This is especially true when dealing with a concept like greatness – great cases (e.g. Palsgraf) or great judges (such as Cardozo, Denning, and Holmes). Neither legal nor historical training usually includes training in rhetoric, so learning more about this is helpful, especially when the literary scholar offers a fresh perspective on familiar cases.

I am reminded of the New Yorker cartoon in which a man is out for drinks with a woman to whom he says – “You seem familiar, yet somehow strange. Are you by any chance Canadian?” And it is good for us to shift perspective and see these familiar (and new) cases a little differently. Both history and literature approach the law from an external perspective on the assumption that this will reveal something that it would otherwise be difficult to see. “[S]tory is inescapable,” as Henderson puts it. (P. 29.) This is true for both history and literature. And, as scholars like Meyler have emphasized, it is important for fellow humanities-oriented scholars in law schools to travel together. This means learning how to adopt the lens of the other, at least sometimes and for some purposes. This means being open to analyzing legal cases as literary texts where that is appropriate and to see legal cases as in their historical context where that is important and useful. I recommend Henderson’s book to legal historians as a salutary perspective-shift in which they will find much that is new and much that is “familiar, yet somehow strange” – and worth thinking about.

  1. See Bernadette A. Meyler, Law, Literature, and History: The Love Triangle 5 UC Irvine L. Rev. 365 (2015), available at SSRN. []
Cite as: Angela Fernandez, Law and Literature for Legal Historians, JOTWELL (March 22, 2016) (reviewing Greig Henderson, Creating Legal Worlds: Story and Style in a Culture of Argument (2015)),

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)),