Robert Deal is a historian at Marshall University. His book is a nuanced account of the nineteenth-century British and American whaling industry and how it was misunderstood by contemporary lawyers and judges and continues to be misunderstood by present-day legal scholars.
Herman Melville famously wrote in Moby-Dick that whalemen settled their disputes using “hard words and harder knocks – the Coke-Upon-Littleton of the fist” (Moby-Dick, Chapter 89). As Deal shows, however, little violence actually sprung up when the crews of two (or more) ships pursued a whale but only one took it.
Deal’s explanation is that captains had incentives to engage in negotiations in a gentlemanly manner. Ownership of a whale (or shares in its blubber, sperm, or bone) was a question for the captains to negotiate and, if they could not agree, the owners of the ships could decide to pursue arbitration or, in extremely rare cases, litigation. Litigation was unpopular because it was slow and expensive. These usual problems were exacerbated in an industry where witnesses would quickly be unavailable and onto their next voyage, Deal explains. Captains spoke often about personal ethics and “laws of honor.” Good relations between captains were imperative to survival on whaling voyages because one captain might well need to turn to another for assistance if his ship ran into trouble in ice or the high winds and waves of storms at sea.
Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)
So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163.) Hence, Coke-Upon-Littleton, i.e. legal rules, were only a very small part of what was in operation.
It is certainly true that lawyers and judges tried to generate firm rules from the handful of whaling cases that did appear before them. However, when they did so, they were not apt to follow custom or care very much about what whalemen actually did. And so when they issued rules like “fast-fish, loose-fish” (the whale was yours as long and for only as long as you remained attached to it), as the British courts did in whaling cases coming from the Greenland fishery, they deliberately ignored the rival custom that was certainly alive in that industry of “iron-holds-the-whale” (the whale went to the first ship to affix an iron with its mark on it regardless of whether it remained attached). Or they did worse, misunderstanding or misapplying custom, as American courts did dealing with disputes that arose in the Sea of Okhotsk (as in the Massachusetts United States District Court cases Swift v. Gifford (1872) and Taber v. Jenny (1856), as Deal explains).
Deal’s principal argument in the book is that whalemen “largely ignored judicial pronouncements as to the customs of whaling and continued to operate in ways that made sense to them in their relentless quest to kill whales.” (P. 2.) And “Anglo-American courts failed to understand how whalemen settled disputes [because] lawyers and judges were never all that interested in or concerned about whaling practices.” (Id.) Hence, there was a fundamental disconnect between the two worlds, impossible to see in the few litigated cases, which give the impression that whalemen operated according to settled customs that the judges turned into (or refused to turn into) rules. However, the reality was much more complicated. The customs were much less settled, the judges did not seem to understand them or preferred to ignore them, and the rules the judges made were probably of little consequence to the whalemen.
What happened to whales under the pressure of this relentlessly extractive industry is a tragedy, although Deal argues it was not technically a “tragedy of the commons.” Why? Because it is unclear, at least before 1850, that it was understood to be possible to hunt whales to extinction. Hence, whalers were not taking from the commons knowing that it was hurting the collective resource but doing so anyway in order to further their own economic short-term interest. They could not then have been knowingly engaged in a race to the bottom, Deal argues, because the ocean was (conveniently) thought to be boundless, its bounties limitless, the whale mythical and hence indestructible. When it became increasingly difficult to find whales, they were thought to be retreating further and further away, (romantically) hiding like the great White Whale from Ahab, rather than disappearing. This might seem laughable and implausible to us sitting now where we do with our current ecological consciousness.
Deal explains at the end of the book how petroleum developed as an alternate fuel for lighting and machine oil lubrication, a move that, fortunately for them, saved the whales. This is an arresting historical irony given our current crisis and the very well-grounded fears we have about who or what technological innovation will save us from our relentlessly extractive pursuit of oil and gas given the turn towards tremendously environmentally destructive processes such as fracking.
This book is an excellent read. Given its exploration of the great gulf between law-on-the-ground and law-in-the-courts, it has the potential to become a classic law and society study. It is particularly useful for legal historians interested in the way that history complicates our understanding of economic self-interest. The whalemen were primarily motivated by economic self-interest, there is no question. Yet the tight-knit nature of their group and their hazardous physical surroundings made ethical conduct (at least towards one another if not the whales) essential. That conduct required a certain kind of flexibility that we fail to understand if we continue to insist, as judges and lawyers of the day did, on reducing the norms they followed to a legal rule or custom.
This was a point that Herman Melville probably well appreciated when he surely intentionally mashed together the law of “fast-fish, loose-fish” and the custom of “iron-holds-the-whale” in his famous Chapter 89 in Moby-Dick. He might well have been trying to make the point that Deal demonstrates through his historical research – namely, that this was not an industry governed by pure law or custom; it was both of these plus more, a mishmash of different norms and priorities. The ways that all of these forces interrelated were loosely grasped even by participants themselves. Hence, the order that famously prevailed in the industry (emphasized in Ellickson’s Order Without Law) was neither a consequence of law, Melville’s Coke-Upon-Littleton, nor a product of well-settled understandings. It was more fluid and complicated than either of these.
Cite as: Angela Fernandez, “Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications
(May 1, 2017) (reviewing Robert Deal, The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880
Marie-Amélie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents
, 34 Law & Hist. Rev.
487 (2016), available at SSRN
Marie-Amélie George’s meticulously researched, provocative study of early gay-and-lesbian custody cases focuses on the power of social science research to reshape both the law and the larger society. George takes us inside the courtroom fights, landmark parenting studies, and conservative strategies that have defined debates about the meaning and origins of homosexuality. Using published opinions, rare trial records, oral histories, personal correspondence, and social-movement records, The Custody Crucible describes how social-science arguments made the difference to gay and lesbian parents seeking to prove that their sexual orientation in no way harmed their children.
But the relationship between scientific research and litigation that George excavates is complex. She convincingly argues that courtroom battles sparked new research about the impact of gay or lesbian parenting on the sexual orientation and gender identity of children. As importantly, the progress made by gay and lesbian parents helped set the agenda of conservative organizations intent on demonstrating that homosexual parents were often sexually abusive, impoverished, and unable to stop their children from becoming deviant. Nuanced and thoughtful, The Custody Crucible contributes to a rich literature on the relationship between cause-lawyering and social change. However, George breaks out of the framework often governing these studies, looking beyond the overall benefit a movement can expect from winning or losing in court. The Custody Crucible illuminates how litigation can help frame scientific questions that resonate well beyond the courtroom.
George begins with a comprehensive survey of available gay-and-lesbian custody cases decided between the 1970s and 1990s. Her research challenges the narrative of growing tolerance of homosexuality often told in histories of sexual orientation. Indeed, she suggests that regional and ideological differences among states played a definitive role for more than a decade. While acknowledging the limits of the remaining evidence, George compellingly argues that courts became more receptive to the demands of gay and lesbian parents only in certain places and only in response to an emerging body of scientific research on child development.
As George argues, the social-science research that would transform attitudes toward homosexuality developed partly in response to a shift in custody doctrine in state courts. Gradually abandoning the assumption that gay or lesbian parents were necessarily unfit, many jurisdictions in the 1970s began moving toward the so-called nexus approach, asking whether a child suffered any harm as a result of her parents’ sexual orientation. While interpretations of the new requirement varied widely, it opened the door to different scientific strategies. In particular, throughout the period George studies, courts remained preoccupied with the idea that children raised in a gay-friendly environment would become gay, lesbian, or transgender themselves. Under pressure because of this new approach, gay-rights organizations developed a roster of expert witnesses willing to testify that the children of gay and lesbian parents were no more likely to become homosexual than anyone else.
The nexus test also inspired scientific researchers convinced that they could put an end to the uncertainty surrounding gay-and-lesbian parenting. Legal issues—the best interests of the child and the prospect of harm to children—shaped the questions researchers asked and the length and timing of their studies. Scholars consistently maintained that having gay and lesbian parents made no difference to their children’s sexual development. As this body of work grew, many parents saw their chances in court improve substantially, particularly on the East and West Coasts.
However hopeful George’s story appears at first, the flourishing of social-science research on sexual orientation was not without its dark side. To begin with, some courts ignored the emerging work on sexual orientation, seeing custody as a matter of morals rather than social science. Even when courts legitimized pro-gay parenting studies, case law and research inadvertently reinforced the conclusion that homosexuality was the kind of harm that should be avoided at all costs.
Nor, as George shows, did the receptiveness of some courts cut short scientific battles about homosexuality and child-rearing. She recaptures the tactics of conservative researchers, legal academics, and lawyers who recommitted to preserving the status quo challenged by gay and lesbian parents. At first, conservatives worked primarily outside the courts, never fully immersing themselves in the custody cases that continued to unfold across the country. It was not until the 1990s that conservative groups meaningfully intervened in litigation, participating in co-parent cases that conservatives feared would undermine the traditional definition of the family. Nevertheless, George reveals the influence of anti-gay researchers like George Rekers, Paul Cameron, and Joseph Nicolosi on subsequent battles about the treatment of AIDS victims and the justification for discrimination against gays and lesbians across legal domains.
The Custody Crucible makes an important contribution to a growing tradition of legal and historical studies that focus not only on social movements’ reliance on law but also on the intersection between legal outcomes and scientific research. George’s piece sheds light on these issues at a time when they are becoming more politically and legally urgent. Scientific questions about the impact of global warming define national elections and legal disputes. In the aftermath of the Supreme Court’s last major abortion decision, research on everything from fetal pain to the risks of later abortions is becoming more common, well-funded, and legally crucial. The history that George preserves reminds us how much litigation may revolutionize these scientific debates and tells us that what is at stake may be neither as predictable nor as promising as we now believe.
Cite as: Mary Ziegler, The Science of Sexuality
(March 31, 2017) (reviewing Marie-Amélie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents
, 34 Law & Hist. Rev.
487 (2016), available at SSRN), https://legalhist.jotwell.com/the-science-of-sexuality/
In The Great Exception: The New Deal and the Limits of American Politics, Jefferson Cowie has written a slim, brisk work of historical synthesis in which he seeks to reframe how we understand twentieth-century American political history. In this essay, I describe Cowie’s insightful and provocative revisionist account of the New Deal and its place in American history. At the end of the essay, I consider some questions the book raises for legal historians.
Cowie’s target in The Great Exception is the idea that the New Deal was a definitive turning point in American political history. Most historical accounts describe the New Deal as the period when, after decades of struggle, liberals pushed back laissez-faire ideology, installed the American version of the social welfare state, and transformed the nation’s political culture along more egalitarian and pluralistic lines. Today liberals praise the New Deal, conservatives criticize it, but all sides generally agree it marked a significant and lasting shift in the relationship between the American people and their government.
According to Cowie, this interpretation exaggerates the achievements of the New Deal and underplays the durability of American conservatism. The New Deal, he argues, was “less the linear triumph of the welfare state than the product of very specific, and short-lived, historical circumstances.” (P. 9.) Rather than a turning point, the New Deal was an aberration. The nation’s most severe economic crisis arrived at just the moment when social and political developments lowered barriers that had stood in the way of large-scale social welfare reform. Out of this this brief window of historical fortuity came the New Deal, a “burst of economic experimentation” (P. 227) aimed toward empowering working-class people.
Cowie dedicates much of his book to examining the “historic fault lines of American political culture” (P. 7) that the New Dealers had to overcome, which he identifies as ideological commitments to individualism and anti-statism along with religious, racial, and ethnic identity. Together, these fault lines functioned as barriers to the kind of broad, working-class coalitions that might lead to national-level redistributive social welfare policies. Only when these “core themes” of American history “underwent an incomplete suspension, a mitigation” (P. 13) between the 1930s and the 1960s could a different sort of politics reign, Cowie argues. Immigration restriction in the 1920s lessened ethnic divisions; a secularist trend in the first half of the twentieth century reduced religion’s divisive role in public life; generations of reform agitation and labor organizing combined with the demands brought about by economic disaster to loosen the allure of individualism and anti-statism.
These trends could not last. The fall of the New Deal order and the ascendance of the New Right in the 1970s and 1980s, according to Cowie, was a reestablishment of the American political norm. It was “a return to a sharply more conservative, individualistic reading of constitutional rights and liberties; a return to economic policies in which the state looks after the corporation; and a return to a working class fragmented by race, religion, immigration, and culture.” Ronald Reagan’s conservative “restoration” was “axiomatic,” even “inevitable.” (P. 29.)
Cowie’s argument about America’s ideological baseline provides the foundation for his second major claim: that the New Deal, while a dramatic rupture of American political tradition, was compromised and qualified from inception. The political alliances on which it was built were “truncated,” “brittle,” “precarious.” Federal recognition of collective economic rights, which Cowie identifies as the New Deal’s signature innovation, was always an “experiment,” and an “unstable” one at that. Indeed, according to Cowie, the policymaking innovations began and ended during just “a few charmed years” (P. 89) in the late 1930s. For most of the roughly four-decade period of the New Deal order, New Deal liberals struggled to maintain fracturing alliances and defend past achievements.
In the book’s conclusion, Cowie explains how his revisionist history illuminates our current political situation. An appreciation of the durable conservatism of U.S. political culture and the exceptional nature of the New Deal should give pause to those on the left who call for a new New Deal today, he argues. The “freewheeling historical analogies based on an extraordinarily unique period in American history” that New Deal revivalists rely on amount to little more than “chasing ghosts.” (P. 229.) If liberals are searching American history for inspiration, perhaps, Cowie suggests, they should turn to the Progressive Era. Unlike the New Deal, and like today, this was a period when liberal reformers squarely faced the obstacles of American conservatism. They pioneered diffuse and localized reform efforts, and they found ways to channel dominant conservative tendencies for their own causes. Something along these lines, Cowie concludes, might better capture the best hope for progressive politics today. The election of Donald Trump only further reinforces Cowie’s portrait of post-New-Deal American politics, as well as his strategic recommendations for today’s liberals.
For anyone who has followed recent trends in the study of American political history, none of the component parts of The Great Exception’s arguments will seem particularly new. Liberal critiques of the limits of New Deal policy are as old as the New Deal itself. A recent generation of historians has been urging a greater appreciation for the conservative forces of American history. Others have suggested the Progressives as a useful historical analogue for today’s progressives. Cowie fully recognizes his intellectual debts, filling his pages with appreciative references to the work of other historians. Yet even if one knows all the parts of the story, Cowie’s achievement is to piece them together in a way that feels fresh and urgent. The value of Cowie’s book is in his ability to synthesize the work of other historians in order to advance a sharp, provocative assessment of its larger significance. Cowie makes big, bold claims without abandoning the nuances and texture of the historical record. The result is a book that is challenging and rewarding.
The Great Exception made me wonder whether American constitutional history (a topic Cowie touches on only lightly) is ripe for an analogous synthetic revisionist account. We seem to be trending in a similar direction, with a number of books and articles questioning the durability and significance of the Warren Court, the New-Deal-like moment of modern American constitutional history. As the Warren Court recedes further into history, its version of legal liberalism seems more and more aberrant in the grand scheme of American constitutional history. The ideal of the Supreme Court’s using the Constitution as the bulwark of protection for the disempowered has faded in recent decades. Although some liberals continue to hope for the return of a Warren Court, the center of gravity for today’s legal liberalism revolves around a more chastened vision of the courts and the Constitution, one that celebrates the occasional breakthrough, while centering most of its energies on protecting precedents and blocking judicial challenges to existing policy.
Today, conservatives are the ones with the more ambitious visions for the courts. Whereas recent liberal judicial victories, such as the Supreme Court’s 2015 gay marriage decision, have tended to reaffirm and solidify larger policy shifts, conservative judicial victories—in areas such as gun rights, campaign finance, and religious freedom—have reshaped political debate. Just as liberal political commentators warn that conservative economic policy has brought a “New Gilded Age,” liberal legal commentators accuse the Court in recent years of returning to the constitutional libertarianism of the Lochner Era.
Perhaps a next turn in constitutional history will be to consolidate the past generation of revisionist scholarship into Cowie-style synthetic narratives that urge us to rethink what we treat as baselines of constitutional history and what we treat as exceptions. Such an analysis would highlight the long-term historical factors that have supported and encouraged judicial conservatism, some of which would track Cowie’s factors, some of which would focus on the distinctive world of lawyers and courts. It would also revisit the Warren Court era, offering new explanations of how this exceptional period in constitutional history took shape, what it accomplished, and the reasons legal liberalism ultimately proved so fragile. For liberals, a constitutional history in which the Court of Earl Warren is the great exception and the Courts of William Taft and John Roberts are the baselines may be, as Cowie describes his revisionist political history, an “American tragedy.” (P. 32.) But it may also offer what Cowie hopefully describes as “a more thorough and realistic understanding of our recent past in the hope that it can provide a more stable intellectual foundation for discussions of past and future politics” (P. 228)—and, one might add, the past and future of constitutional law.
As a field, legal history has long been centrally concerned with the patterns and trajectories of American political development and state formation. In his recent book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton University Press, 2015), Gary Gerstle offers a compact and highly readable synthesis of the long arc of the battles over the idea of a strong and central American state, from the constitutional founding through recent clashes between the Obama administration and the Tea Party. Gerstle and his work are of course well-known in the field. In this new book, he offers a cautionary narrative about this long process of state formation, and how it has set in place pathologies that fuel recurring crises of governance and legitimacy.
The central premise of the book is that there is a fundamental tension baked into the legal and constitutional structure of American government: the congenital unease with a powerful state on the one hand (“liberty”) and the starting premise of unchecked “police power” on the part of state governments (“coercion”) on the other. A powerful federal state was, in theory, at odds with both of these principles, endowed with specific enumerated powers in the Constitution rather than general police powers, and restrained by both constitutional and normative commitments to individual liberty. Law and the Supreme Court play a central role in Gerstle’s narrative, as the source of the original constraints on expansive federal power—and thus the key arena in which statebuilders had to innovate forms of modern, centralized governance that could navigate these tensions between liberty and coercion. In Gerstle’s account, the federal government gained its modern powers only in response to a trio of crises that prompted shifts in the basic structure of governance: the Great Depression, the “total war” mobilization of World War II, and the civil rights movement. As a result, the federal government suddenly found itself possessing a degree of fiscal and legal authority previously unknown in the early republic.
By taking as a starting point both of these premises of the early American republic, Gerstle usefully reframes the narrative of American state formation away from an older tradition of focusing on the battles between libertarian and centralizing tendencies. Instead he presents the problem of American governance not as one over whether there should be strong governmental presence, but rather in what form. In this, Gerstle calls out to and builds on many of the advances in legal history over recent decades, highlighting the expansive role of state police power, and the ways in which federal and private actors engaged in state-like governance functions throughout the republic. For Gerstle, the American state is not weak per se—it develops genuinely powerful capacities—but it does so in ways that generate chronic problems of capture (the undue influence of special interest groups), and related problems of governmental unaccountability and illegitimacy.
Indeed, where Gerstle’s account offers its most helpful contribution is in developing a framework and critique of the strategies employed by statebuilders to overcome the constitutional compromises of the founding. For Gerstle, the emergence of centralized federal power is a product of “improvisation rather than transformation.” (P. 5.) Gerstle defines three distinct improvisational strategies by which statebuilders expanded federal power, despite the limits of constitutional authority and normative hostility: exemptions, where the Supreme Court creates carve-outs for expanded federal power outside of the bounds of ordinary Constitutional limits, such as in cases of emergency, rebellion, and, increasingly, foreign policy; surrogacy, where the Court extends a de facto federal police power through other routes such as an expanded Commerce Clause power from the New Deal onwards; and finally privatization, where the powers of the federal state are magnified and implemented through improvised public-private partnerships, from deputizing corporations and businesses in providing safety-net protections to co-regulation, to public-private utilities.
These three strategies comprise the common thread throughout Gerstle’s narrative. Thus, conventionally “state-like” functions are in Gerstle’s account structured through a tradition of “reliance on private citizens to do public work,” from militia to voluntary organizations. (P. 122.) Even in the New Deal expansion of federal power under the pressures of the Depression and World War II, Gerstle highlights these strategies in play. After decades of mobilization and activism, farmers found a willing partner in the Agricultural Adjustment Act (AAA), which creates a vast regulatory and safety-net apparatus, but continues to take shortcuts such as privatizing benefits by making them contingent on full-time employment. Similar improvisational compromises shaped the rise of the twentieth-century labor regime as labor leaders like Samuel Gompers stressed “private regulation” through collective bargaining. (P. 221.) These compromises were necessary to overcome the historical distrust of federal power, and to respond to ongoing social conflict over the substantive goals of state action–whether over issues of racial integration or worker empowerment. But the irony of these strategies of state formation for Gerstle is that they seeded the very crises of legitimacy that now cripple twenty-first-century American governance. Meanwhile, the exemption of many war-related functions from constitutional limits has helped enable the rapid growth of the surveillance and security state. (P. 278.)
This sense that statebuilders paid a dangerous price is most vividly illustrated by Gerstle’s recurring critiques of the political system. For Gerstle, the original sin of American public administration is that it was a product of these improvisational state-building strategies of exemption, surrogacy, and privatization. Political parties, for example, became the critical connective tissue of government across federal, state, and local levels, a necessary kind of political infrastructure and an “arm of public administration” needed to overcome the decentralized and coalitional nature of American politics, yet they remain private organizations, perpetually embedded in networks of donors, funders, and private interests. (P. 154.) Captured civil service is similar: though the civil service did grow and bureaucratize, it remained a relatively low-capacity system, dependent on private collaboration and support to execute governmental imperatives. (P. 176.)
These compromises laid the groundwork for the modern American state’s multiple crises of legitimacy. Throughout Gerstle’s historical narrative, he correctly presents racism as a central driver of opposition to attempts to expand federal power. But Gerstle seems to suggest that the aspiration to construct and defend white supremacy and racial segregation—whether formal or informal—dovetailed with more practical and legal resistance to these strategies for statebuilding. Exemption, surrogacy, and privatization were “not sufficient to bestow on the federal government constitutional authority commensurate with its expanded power.” (P. 8.) The problem was not just one of legal authority, but rather a deeper problem of legitimacy. As Gerstle explains:
Improvisation was a source of weakness as well as strength. The government’s heavy reliance on privatization made its agencies chronically susceptible to the influence of private and frequently monied interests. … Meanwhile, the excessive use of exemption eroded the liberal basis of the republic by sparing large swaths of government from constitutional scrutiny. And too great a use of surrogacy made the central government vulnerable to the charge of indirection.
These very real concerns about capture, accountability, and legitimacy stem directly from the use of strategies of exemption, surrogacy, and privatization. But the use of these strategies also provided a fertile substrate for ongoing racialized attacks on the use of state power to promote racial integration and equality. Thus by the 1970s, “three distinct grounds of opposition to a large, centralized state— pragmatic, racial, and libertarian— coalesced” to form the modern conservative movement. (P. 318.)
So what then are twenty-first-century statebuilders to do? Gerstle closes his book by calling for a frontal engagement with the Constitution itself. Constitutional text—and more importantly, public constitutional discourse—must openly embrace the modern demands of government rather than grounding the functions of a modern state on the stop-gap strategies of exemption, surrogacy, and privatization. Constitutional amendments would be ideal, Gerstle suggests, but even if amendments do not come to pass, engaging head-on in a public argument for a more expansive understanding of constitutional powers and purposes will create greater discursive space for law, policy, and politics. (P. 351.)
This call for a richer constitutional discourse will resonate with similar appeals from constitutional law scholars responding to the politics and inequities of the Great Recession era. Gerstle’s narrative raises (but does not directly resolve) a number of tensions in understanding the challenges of statebuilding: the role of movements, ideas, and policy innovators to expand state power on the one hand, and legal restraint in the form of Constitutional text, doctrine, and discourse as understood by the Supreme Court on the other; the tension and fusion among racial, libertarian, and pragmatic critiques of statebuilding strategies; the at times ambiguous relationship between aspirations to greater federal power and values of democracy, inclusion, and economic or social justice. These are the very tensions that animate the policy battles of today’s Great Recession. Today’s reformers, advocates, and policymakers are in the process improvising new modes of governance and statebuilding. Whether they will repeat, or remedy, the dynamics described by Gerstle remains to be seen.
In The Jim Crow Routine, historian Stephen Berrey brings fresh eyes to the intricate set of legal rules that maintained racial segregation in the American South. Building on works like Leon Litwack’s Trouble in Mind: Black Southerners in the Age of Jim Crow and Neil R. McMillen’s Dark Journey: Black Mississippians in the Age of Jim Crow, Berrey focuses not on the rise or demise of Jim Crow so much as the manner in which it disciplined daily life. For average folks, argues Berrey, Jim Crow turned the South into a stage where whites and blacks learned to negotiate one another’s presence on the street, in stores, at the post office, and at work – according to elaborate, albeit unwritten, scripts.
Taking Mississippi as a point of focus, Berrey demonstrates that Jim Crow involved a complex set of scripted “exchange[s]” between whites and blacks that were at once “subtle and dynamic, intimate and volatile,” exchanges that in a sense formed a customary law of interaction independent of legislatures and courts. (P. 4.) Closely linked to this were strategies of resistance that African Americans developed to avoid white recriminations, as well as strategies that whites developed to enhance, or modernize, the legal challenges of racial control. Such modernizations exploded dramatically following the Supreme Court’s decision in Brown v. Board of Education in 1954, as southern states moved quickly to erase overt racial classifications from their law, meanwhile imposing new, more subtle forms of surveillance rooted in the rubrics of maintaining the peace, protecting property, and preventing crime.
At least one startling observation emerges from Berrey’s study. First, as much as southern law worked to achieve racial separation, whites and blacks in the Deep South interacted and existed in a near constant state of racial togetherness, working, playing, shopping, fishing, and even eating in close proximity to one another, often to the point that racial segregation was adhered to only in the flimsiest, most ad hoc fashion. For example, Berrey presents us with stories of whites and blacks attending the same functions divided only by a row of stools (P. 19), attending the same theaters separated only by a rope (P. 25), eating together in fishing boats separated only by a casually placed stick (P. 24), and sitting in the same rows in courthouses with only one extra space between them (P. 27). Such divisions, which hardly kept the races apart, were further compromised by outright concessions that allowed for black servants to join their employers on train cars and trolleys and even live in their homes.
As Berrey puts it, “even within a segregated system, African Americans and whites regularly interacted in public spaces such as bars and on buses and in the private spaces of the home.” (P. 22.) Precisely because such interactions were ubiquitous, argues Berrey, Jim Crow frequently manifested itself less as a legal system of physical separation than an implicit script of social performance, a customary law that required blacks not to avoid contact with whites, which was impossible, but rather to pay them deference. To take just a few examples, blacks were expected to remove their hats when meeting whites in the street, to make way for whites in line at the post office, and to refrain from calling whites by their first names. (P. 31.)
This is important. In his recent book Bind Us Apart: How Enlightened Americans Invented Racial Segregation, Nicholas Guyatt argues that the origins of Jim Crow lay in antebellum debates about colonization, i.e., the idea that African Americans should be transported back to Africa upon emancipation, lest the races engage in “amalgamation.” Berrey suggests the opposite, namely that segregation had less to do with separating the races than keeping them together, a point that calls to mind the distinction between segregation and exclusion first articulated by historian Howard Rabinowitz. Rabinowitz maintained that colonization was a form of exclusion that needed to be distinguished from segregation, which actually allowed significant amounts of interracial contact.
Berrey takes Rabinowitz’s thesis in new directions, suggesting that segregation was really more about performances of deference than separation, and that the laws of Jim Crow were themselves designed to remind blacks not of their isolation from whites, but rather their subordination to them. Berrey locates the origins of segregation not in calls to exclude blacks from southern society, but rather in efforts to counter black demands for equality following the Civil War. Citing historian Leon Litwack, Berrey notes that post-bellum white southerners became concerned that emancipated blacks were “less-deferential” than their enslaved ancestors, even to the point of becoming “aggressive” about their right to be considered “social equals.” (P. 21.)
Closely related to this was a fear that newly emancipated blacks might try to blur racial boundaries, either by engaging in intimate relations with whites or passing (a practice by which light-skinned African Americans held themselves out as white). (P. 21.) Here, Berrey provides us with an alternate hypothesis to explain how southerners dealt with questions of amalgamation, or interracial sex. While Guyatt argues that the favored solution was colonization, Berrey suggests that it was segregation, a system that barred interracial liaisons and maintained racial “difference” precisely because it demanded racial deference. (P. 21.)
The second half of The Jim Crow Routine focuses on the transition from Jim Crow to what came after, the legal system that we currently have in place today. According to Berrey, pressure from black activists, the federal government, and the national media intensified so much during the civil rights era that white southerners abandoned the formal law of segregation and the elaborate unwritten scripts that went along with it, moving instead toward more subtle forms of control, most revolving around prisons and police. In a revealing passage, for example, Berrey provides evidence that the Mississippi Sovereignty Commission deliberately and surreptitiously tracked civil rights activists in the state, often harrying them with arrests for minor quality-of-life offenses, traffic violations, and so on – not violations of Jim Crow law.
This is a significant find, foreshadowing a move to the very type of colorblindness that Michelle Alexander has argued characterizes the “New Jim Crow,” a system of racial repression that relies on the biased enforcement of ostensibly neutral criminal laws. And, while Alexander argues that the New Jim Crow began during the War on Drugs in the 1980s, Berrey provides evidence that it actually emerged earlier, in the 1960s.
However, Berrey misses an opportunity to take his rich understanding of Jim Crow and bring it to bear on Alexander’s argument about legacies. For example, Berrey’s attention to codes of social performance forged in the Jim Crow South provides new perspective on how those codes may have evolved during the 1950s and 60s, and travelled to the urban North. According to conservative social theorist Thomas Sowell, for example, southern blacks learned violent codes of honor from southern whites, and took those codes with them as they migrated out of the South during and after World War II. These codes, which sociologist Elijah Anderson has termed “codes of the street” were arguably descendants of the Jim Crow routine, unwritten rules that demanded a certain deference, or respect, that, if not met, invited violence. According to criminologist Barry Latzer, such codes of violence, forged in the American South, help explain spikes in urban violence following southern migrations to the urban North in the 1960s, and continue to plague urban communities even today, a point Latzer raises in his new book, The Rise and Fall of Violent Crime in America.
Berrey’s take on Latzer, Anderson, and Sowell would be of interest, not least because their discussions of unwritten codes of honor, forged in the South, seem to dovetail with Berrey’s formulation of the Jim Crow routine, suggesting that the extreme violence that characterized southern white society came gradually to influence southern black society as well. As it stands, however, The Jim Crow Routine remains important for what it tells us about the intersection of customary law and legal codes in the post-bellum, pre-Brown South. If Berrey is right, then the written law of Jim Crow may not have been as important as previously thought, an elaborate artifice, to be sure, but not as critical to the ordering of southern life as unwritten norms, or what Berrey terms the “Jim Crow routine.”
The standard history of legal aid begins with the founding of the New York Legal Aid Society in 1876. It then chronicles male attorneys’ efforts to professionalize legal services during the Progressive Era, culminating in the 1919 publication of Reginald Heber Smith’s famous text, Justice for the Poor. By centering gender as a category of analysis, Felice Batlan cracks this narrative wide open. Women and Justice for the Poor demonstrates that the dominance of male attorneys and clients was contested from the start. By exposing the temporality and contingency of categories that Smith and many previous historians took for granted, Batlan deconstructs conceptual boundaries between law and social work, lawyers and reformers. The book, which recently won the Law and Society Association’s J. Willard Hurst Award for the best book in sociolegal history, is beautifully written, precisely researched, and strongly argued.
Batlan shows that organized legal services for the poor began earlier than we have recognized, in a female dominion of legal aid that prevailed from the end of the Civil War through 1910. Although a rich historical literature has documented women’s social reform activities in this period, Batlan provocatively argues that many female-dominated organizations functioned as legal aid services. Women reformers in New York founded the Working Women’s Union in 1863. Similar organizations followed in Boston, Chicago, and much later in New Orleans. Elite women reformers acted as lay lawyers. They educated themselves about caselaw, used moral suasion and social pressure to advocate for clients, founded service institutions, and campaigned for reform in local government.
Male attorneys began to assert control over the provision of legal services to the poor with the first national conference on legal aid in 1911. Batlan shows how these attorneys endeavored to professionalize legal aid, narrowing its scope in the process. The types of claims changed. As the male breadwinner became the archetypical client, legal aid services began increasingly to exclude women whose claims regarding spousal abuse or mothers’ custody were perceived to disrupt the family. In addition, the nature of the lawyer-client relationship changed. Female lay lawyers had approached the lawyer-client relationship holistically, offering sympathy and a range of social and financial supports along with legal guidance. Male legal aid attorneys eschewed emotion in favor of objectivity and restricted their practice to technical legal services. The masculinization and professionalization of legal aid accelerated through the 1920s, until federal funding opportunities during the Depression encouraged legal aid organizations to once again conceptualize themselves as a form of social service. A period of enhanced cooperation between lawyers and social workers continued through World War II—a trend that also empowered women clients. In the late 1950s and through the 1960s, however, legal aid attorneys again began to distance themselves from social workers. The retirement of leading female aid attorneys coincided with several trends: an increasing emphasis on prestigious educational credentials as criteria for a new crop of legal aid attorneys, the formalization of organizational structures, and a turn toward aggressive, rights-oriented litigation.
Gender inflected the practice of both male and female legal aid lawyers, influencing their view of their clients and their framing of clients’ claims. In a particularly fascinating chapter, Batlan examines how the attorneys of the New York Legal Aid Society, steeped in a masculine legal culture focused on rights and constitutionalism, used gender as a measuring stick to evaluate their clients. They perceived Jewish men as excessively feminine and, therefore, undeserving; sailors, by contrast, were hyper-masculine and, consequently, deserving of rights. Female domestic servants, meanwhile, lacked rights precisely because they toiled in a physical and social space constructed as feminine and harmonious. Batlan’s examination of domestic workers provides further evidence that coverture persisted far beyond the passage of the Married Women’s Property Acts in the 1840s and 1850s. Legal aid lawyers did not view female workers as fully independent contractual actors and, as a consequence, were reluctant to impose obligations on employers to pay quantum meruit to domestic workers who quit early. Even when women legal aid lawyers brought wage claims on behalf of domestic workers, they represented employers’ failure to pay as fraud rather than breach of contract. Batlan’s deft analysis shows how gender ideologies had real effects on social experience.
A second, only slightly less explicit theme explores the place of legal aid in the legal history of capitalism. Ever since Morton Horwitz’s Transformation of American Law in 1977, we have understood the importance of class and capitalism to changes in legal doctrine. Batlan shows us that emerging legal histories of capitalism should include the history of lawyering itself. The development of legal aid, she argues, was inextricably linked with efforts to discipline immigrants to capitalism’s norms. Early women lay lawyers believed that the noble and right thing was to provide legal services free of charge. Charging a fee to poor clients who could not afford it would only exacerbate their dependence. Professional legal aid lawyers subsequently inverted the reasoning of earlier women’s groups, associating charitable legal services with dependency. Instead they argued that fees for service would promote the kind of independence necessary for democratic citizenship.
Women and Justice for the Poor opens up avenues for further research on gender and legal history of capitalism. In particular, it illustrates how maternalist reform has served as a check on capitalist rationality. Women lay lawyers, influenced by maternalist ideologies, embraced a holistic and empathic approach to the lawyer-client relationship. They pursued dignitary as well as monetary remedies and viewed no claim as too small to merit litigation. As legal services professionalized, male attorneys grew more preoccupied with the efficiency of their services and dismissive of clients viewed as bad bets. Maternalism, however, functions as a double-edged sword in Batlan’s narrative, as it does in much of women’s legal history. At moments, Batlan suggests that cross-class alliances existed between elite women lay lawyers and their working-class clients. That conclusion may be justified. Yet source limitations meant that Batlan was able to give a fuller portrait of elite actors in her story, though she does an admirable job of gleaning the archives for insight into non-elite perspectives. Moreover, as Batlan observes, the idealization of the home obscured the exploitation and negated the rights of domestic workers. Ultimately, Batlan argues persuasively that substantive justice concerns not only material outcomes of litigation but also the nature of the lawyer-client relationship. This is an important point for law students as well as historians, providing another reason—if you need more—to consider assigning excerpts of this book in a seminar.
Engendering the history of legal aid raises a host of historical and normative questions. How and why did the provision of legal services become separated from a range of social support services? Should the lawyer-client relationship remain isolated from social work? To what extent should the legal profession retain a monopoly on legal services? Historians and legal scholars interested in answering these questions should move Women and Justice for the Poor to the top of their reading lists.
Sherally Munshi, “You Will See My Family Became So American”: Toward a Minor Comparativism
, 63 Am. J. Comp. L.
655 (2015), available at SSRN
Sherally Munshi has written a thoughtful and moving article about the relationship among race, citizenship, immigration, and the visual imagery of assimilation and difference. In “You Will See My Family Became So American,” she tells the story of Dinshah Ghadiali, a Parsi Zoroastrian born and raised in India who immigrated to the United States in 1911, became a U.S. citizen in 1917, and prevailed over the federal government’s effort to strip him of that citizenship in 1932. Along with Ghadiali himself—proud American, soldier, erstwhile inventor, political activist, and all in all memorable character with a larger-than-life personality—the protagonists in the story are a striking series of photographs Ghadiali submitted into evidence in his denaturalization trial. Munshi’s bold and ranging exploration of a variety of themes in the legal history of race, citizenship, and immigration culminates in a close reading of these photographs, in which she shows how the images reveal the tension between the “effortful displays of Americanization… and unwitting disclosures of racial identity.” (P. 693.)
Munshi frames her discussion with a central doctrinal precedent and a proposed theoretical framework. The precedent is the Supreme Court’s decision in Thind v. United States, which in 1923 held that Bhaghat Singh Thind, “a high caste Hindu, of full Indian blood, born [in] India” was not “a white person” under the naturalization laws. Along with the previous year’s Ozawa v. United States (1922), which had held the same with respect to a Japanese man, Takao Ozawa (though with different reasoning—more on that below), the decision in Thind gave rise to efforts to denaturalize some who had become citizens before the decisions but were deemed ineligible afterwards, and formed the basis for Ghadiali’s (unsuccessful) denaturalization trial.
The theoretical framework is the “minor comparativism” of the article’s subtitle. Munshi briefly outlines what she takes to be the salient strengths and weaknesses of comparative law scholarship, and brings these insights to bear in proposing a version of a comparative approach to the study of history within, rather than across, national boundaries. The strength she has in mind is the “self-reflexive” orientation of comparative law scholarship, which “inclines the scholar outward, beyond her immediate world and towards the worlds of others with the anticipation that, through her study of another society, she might begin to question her own.” (P. 664.) The weaknesses are comparative law’s tendency, in spite of itself, to entrench statism; its focus on formal law; and its failure to treat the migrant as central, rather than peripheral, to the formation of the modern state. Munshi’s minor comparativism, in contrast, “adopt[s] the perspective of those who remain foreign within one’s own country,” and in this way brings a comparativist sensibility to the study of domestic history, which in turn “decenters the state,” replaces formalism with attention to “the unreported, unwritten, and often inchoate character of the law and its effects,” and places the migrant at the center of narratives of state formation. (Pp. 664-66.) While these are not novel approaches to the study of legal history, the idea that one should pursue “comparativism” within rather than across national boundaries is intriguing and refreshing, and contributes to a heightened awareness of what constitutes the “American” in “American legal history.”
At the center of the story are the images submitted by Ghadiali at his denaturalization trial and analyzed in detail by Munshi. Were we to base our historical understanding principally on sources like the Court’s decisions in Ozawa and Thind, we might conclude that what Ghadiali tried to do, and did successfully, was convince the judge in his trial that he was “white.” But what are the chances? More apt and illuminating is what Munshi suggests: “Perhaps having failed to convince the judge of his essential whiteness, Ghadiali sought to persuade him that, even if he did not look white, he did look American.” (P. 660.)
The series begins with a photograph of Ghadiali on a police report, of all things: he submitted it because in the relevant section, the report labeled him “White.” The next one shows his family: himself, his (also Indian) wife, and his two children, all wearing coats and hats (the wife, a scarf). The third shows him and his two children—no wife (she’d returned to India). The fourth shows him as a commander in the New York Police Reserve Air Service, alongside a few dozen men also in uniform (though not all commanders). The fifth shows his five children from his second marriage, all wearing the same outfits and little white hats and sitting on bicycles—no wife (though this time, he had one—a second wife—now German, and white, and a citizen herself), and no Ghadiali either.
I’m not going to summarize what Munshi says about all of these, but I will quote Ghadiali’s plea to the judge: “He explained that he was deserted by his first wife ‘because I would become a Citizen. Now America throws me out and my second wife will desert me because I did not become a Citizen. The government puts me in a funny position.’” (P. 714.) Ghadiali did prevail and remain a citizen. Those photographs surely helped, though the judge ended up deciding the case on res judicata grounds, treating Ghadiali’s 1917 admission into citizenship as having settled the matter.
Ghadiali’s story serves as both anchor and springboard for the larger legal history of race, citizenship, and immigration Munshi offers in this piece. With each episode, she engages provocatively with relevant secondary literatures. Discussing Ozawa and Thind, she invokes Ian Haney Lopez on the legal construction of racial categories, and goes on to offer her own take, explaining what she finds most remarkable about the shift in the Court’s reasoning. In Ozawa, the Court seemed to rely principally on what was then the state-of-the-art science of race to conclude that a Japanese person was not “Caucasian” within the meaning of the naturalization statutes. But in Thind, it had to answer the argument that, as an Indian, Thind belonged squarely in the category of “Caucasians.” The Court couldn’t disagree, so it shifted emphasis and focused on common (read: white people’s) understandings of race instead of scientific ones, relying on those to reject Thind’s claim to citizenship as well. Munshi does not disagree—how could one?—that the two cases together are an especially blatant example of the law’s construction of race, but she turns our attention to what she finds even more intriguing about the Court’s reasoning in Thind: Justice Sutherland’s reliance on what he perceived as “instincts” about race. Munshi quotes Sutherland, explaining that “‘Hindus’ ‘racial difference’ was ‘of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.’” (P. 674.) This is not as much about common knowledge, Munshi observes, as it is about common “sense”—about something “visceral.” (Pp. 674-75.) “Here, the power to designate racial qualification for citizenship is withdrawn not only from the language of race experts but from language altogether.” (P. 674, emphasis added.) By force of the Court’s ruling in Thind, she adds—pushing herself and her reader just a little harder (as she does throughout)—the phrase “free white persons” itself “gains a flesh and corporeality” by virtue of the Court’s investing in “white persons” the power to interpret the phrase “white persons.” (P. 675.)
Munshi turns back to look at Plessy v. Ferguson (1896) and the “colorblind” Constitution, a discussion that yields among its insights the observation that “[c]olorblindness imposes a visual management of difference on the part of the observed, who is burdened with proving, over and over, that her difference does not disqualify her from equal membership.” (P. 679.) A discussion of Elk v. Wilkins (1884), which rejected the claim to citizenship of a Native American who had left his tribe and tried to register to vote, takes issue with the received understanding that the United States has always conferred jus soli citizenship, concluding from this and other histories of exclusion that “[i]n the United States, for much of the nineteenth century, a right of blood masqueraded as a right of soil.” (P. 687.) Also in this discussion, she proposes that for Native Americans, Congress devised a “contractual model of citizenship,” conditioned on “the destruction of tribal identity” (Id.)—a model that, revised, comes to play a role in Ghadiali’s trial. Elsewhere, she discusses a photograph of Thind in an army uniform. This photograph, she notes, is often printed without explicit analysis, “as if the image speaks for itself.” (P. 679.) Munshi then offers her own analysis, discussing “the apparent tension between racial or ethnic particularity, on the one hand, and the project of national unity, on the other.” (P. 680.) In other words, what “we” all know when we look at it is that Thind’s turban and beard signal his “difference” while his uniform signals his assimilation, and what Munshi argues is that this tension is crucial to what we imagine as an inclusive multiculturalism: “Thind can only project racial inclusiveness by first appearing to us as raced.” (P. 681.)
Along with all of the above—a compelling story, a memorable historical figure, rich primary sources, a fascinating series of legal developments, a useful theoretical framing—Munshi writes with sensitivity and empathy, such as when she observes that an account published by Ghadiali recounting his own denaturalization trial “expresses an anguish and alienation that was widely experienced by minorities in the United States but barely understood by the larger national community.” (P. 669.) The nature of law, the instability of boundaries, the relationship among persons, place, and the state—all of this, yes, and also, the things that make us want to cry: Munshi wants us to think hard about it all.
Every law student worth her salt has read, or at least heard of, Oliver Wendell Holmes and The Common Law. 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.
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.
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” 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).