Concurring Opinions » Alfred Brophy

enjoyed the visit

Alfred Brophy — Wed, 14 Dec 2005 17:58:46 +0000

Since I’ve already overstayed my announced visit of a couple of weeks, I figure it’s time to go before I wear out my welcome. It’s been fun commenting on such diverse issues as images of property in landscape art, legal realism and fashion consulting, the Ann Coulter Talking Doll, 1950s and 2000s conservatism, the history of the book, state funding for preservation of cemeteries, and even a few unexpected topics–like suggestions for US News’ ranking system, horror movie director Wes Craven’s insights for law professors, the intellectual origins of Roe v. Wade in, of all places, Tuscaloosa, and Fanny and Ralph Ellison. Of course, nothing gets attention like navel-gazing, so I shouldn’t be surprised that the post that generated the most attention (not much competition here, really) was on the implications of law review citations for law school rankings.

I’d hoped to comment a little on recent articles (like Kenneth Mack’s brilliant article on “Civil Rights Lawyering and Politics Before Brown“) and books in legal history, though my day job interfered with putting us as many posts as I’d hoped. So let me put in a brief mention for a wonderful book, which I recently read: Laura Kalman’s Yale Law School and the Sixties.

If you’re looking for a holiday present for a Yalie (or even a non-Yalie, like me, who’s interested in legal education or recent legal thought), I highly recommend it. It’s a beautifully written and engaging story of Yale students and faculty in the 1960s and early 1970s. But it’s much more than a story about Yale–it’s about changes in legal thought and in American society more generally in those important and troubled times. I love it and I suspect you will, too. Because I went to law school in the mid-1980s, when Yale was dominant in (particularly left-leaning) legal theory, I had assumed that it had been so for decades. I was familiar only a limited set of points of data regarding Yale’s history. I knew Robert Cover’s terrific volume, Justice Accused, which though I’ve read it a half-dozen times or so, continues to led me to me more insight on legal theory and legal history. Charles Black (who was then emeritus at Yale) was one of my teachers and everyone was still then talking about Charles Reich’s New Property. So I had, until reading Laura’s book, erroneously assumed that Yale had been a bastion of liberalism for a very long time. I must have thought that Robert Bork’s presence on the faculty was an aberration. Anyway, Kalman’s book is a great read and it’s a great example of how a biography (of a school) can tell the story of an era. Makes me wonder, of course, how much the changes YLS went through relate to other schools. My own school, the University of Alabama, had a rather different history. I hope there will be some symposia dedicated to the book, where folks can talk about YLS’s representativeness. And how other schools, which do not receive as much attention as YLS, contributed to changes in legal thought.

I’ve enjoyed my visit at concurringopinions and appreciate the hospitality of the crew here. And I’ve gained even more respect than I had before for the folks who blog on an on-going basis. I don’t know how they do it!

Monument Law

Alfred Brophy — Mon, 12 Dec 2005 18:10:00 +0000

Ah, public monuments. They’re how we remember important events and help define who we think we are. Dan Solove’s recent posts on courthouses reminds me of how much we’re concerned with presenting the right image to communities. And there’s been a lot of writing about the function that courthouse architecture has served in American history. Moreover, lots of folks are writing these days about monuments and their meaning. Sanford Levinson’s charming book, Written in Stone covers a lot of ground in a little bit of space. And people are talking more about removing monuments from parks or renaming them (such as the Nathan Bedford Forrest Park in Memphis). Sewanee: The University of South is going through something like this right now.

I haven’t seen any serious commentary (in the blogosphere or elsewhere) on the United Daughters of the Confederacy v. Vanderbilt University, decided last May by the Tennessee Court of Appeals. Perhaps, though, it warrants a little bit of attention. It has some things to say about long-term contracts, the right of donees to alter monuments (like changing the names of buildings), and even how we remember the Civil War. The case arose from the effort of Vanderbilt University in 2002 to rename a dormitory on its campus from “Confederate Memorial Hall” to “Memorial Hall.

According to the court of appeals’ opinion, Chancellor Gordon Gee began efforts to change the name when he arrived at the University in the summer of 2002. People on campus had been talking about renaming the building for some years; some thought it was appropirate. Not surprisingly, others did not. Now, name changes are incredibly controversial, and I have mixed feelings about them. There’s something to be said for keeping names up because we want to honor folks who contributed money or whose accomplishments deserve honor. Even in the case those who engaged in what some might now think of as rather reprehensible conduct, we might still want to continue to honor, because of other contributions they made. And because a name on a building is part of a tradition. On the other hand, names convey messages to folks; and sometimes those messages are unfriendly, even if not everyone sees them as unfriendly.

Chancellor Gee’s plans included changing the name of “Confederate Memorial Hall” on campus maps and on the front of the building to “Memorial Hall.” The United Daughters of the Confederacy (UDC) sued to prevent the change. The factual background is, well, a little complex. The UDC contributed $50,000 towards the building cost in the 1930s. But the history goes back to the 1910s, when the UDC was instrumental in building monuments and putting up plaques to the Confederate dead. The UDC’s history is well worth a read.

In the 1910s, the UDC began talking with Peabody College about providing funding for a dormitory. There were contracts (in 1913 and 1927), which together called for the UDC to provide $50,000 to build a dormitory. In return, Peabody would call the building “Confederate Memorial Hall” and allow the UDC to nominate young women who were descended from Confederate veterans to live rent-free in the building.

The UDC had trouble raising money. Then in 1933 there was a new contract drafted (which ratified the previous two), calling for $50,000 from the UDC and the rest of the money from the National Recovery Administration, a New Deal Agency. It provided that the agreement was void if the NRA didn’t provide funding. Turns out, that contract was never signed (that we can tell) and Peabody ended up getting funding from a bond they floated when the NRA said they wouldn’t provide money to a private school. Peabody went ahead and built the dormitory, named it “Confederate Memorial Hall” and housed young women nominated by the UDC free of charge.

Then, in 1979 Peabody, skirting the rim of bankruptcy, was acquired by Vanderbilt. As part of the acquisition agreement, Vanderbilt agreed to accept all liabilities of Peabody. But after 1979, they no longer accepted any new nominations from the UDC to house young women rent-free in Confederate Memorial Hall.

The Tennessee Chancellor found (p. 10 of majority) that it was “impracticable and unduly burdensome for Vanderbilt to continue to perform that part of the contract pertaining to the maintenance of the name ‘Confederate’ on the building and at the same time pursue its academic purpose of obtaining a racially diverse faculty and student body.” The UDC appealed.

Now watch these moves by the Judge William C. Koch for the majority of the Tennesee Court of Appeals, because I think they’re pretty interesting.

First, the court (following the Chancellor) reads a contract into the parties’ course of dealings. That is, even though the 1933 contract was never signed (and even if it had been, the NRA never provided funding), the court found that there was a contract through Peabody’s acceptance of the $50,000, through the naming of “Confederate Memorial Hall,” and through their acceptance of women to live in the the hall.

Second (see especially note 13), it found the contract was divisible between the UDC’s right to nominate women to live rent-free and the name of the Hall. If those rights weren’t divisible, then the statute of limitations would have run on the UDC’s right to enforce the contract in the early 1980s. Not surprising here. But that leads to a strange result when , third, the court awards damages on the entire $50,000. That is, while the contract was divisible into parts for purposes of statute of limitations, it was not divisible for purposes of damages.

There is a lot more than one might say about the majority opinion. One of them is: it converted the Chancellor’s interpretation of the contract as creating a charitable trust, which is subject to cy pres or other equitable modification, into a straight-out gift, which was not subject to such equitable modifications. My friend John Eason has a very good article on this, which was cited by the majority. The opinion’s also interesting to me from a property perspective. The majority requires that the name continue as long as the building stands–which sounds a lot like an equitable servitude to me. (Vanderbilt must maintain the name “Confederate Memorial Hall” on the building.) Sounds like a nearly perpetual servitude to me. As I say, there’s a lot in this rich opinion. I bet the case will be a staple of contracts (and maybe trusts) classes in the future.

But what is perhaps even more interesting to me (as a legal historian) is Judge William B. Cain’s concurrence. For those of us interested in judges’ thinking, the concurrence opens a window on the thought of Judge William Cain. It which consists in large part of a quotation from the memoirs of Union General Joshua Lawrence Chamberlain. Chamberlain is an important figure; he fought and was wounded at Gettysburg. Chamberlain accepted the surrender at Appamatox.

Before the War, he was a moral philosophy professor at Bowdoin College in Maine. (Moral philosophy professors were important in the years before the war. Stonewall Jackson taught moral philosophy at VMI, for instance. Moral philosophy was a class in applied ethics. I think we can understand much about antebellum judging by looking to moral philosophy texts, not because the lessons students learned in college controlled their behavior later, but because the texts give us an understanding of how people at the time thought. There’s some fine work on moral philosophy recently, including Mark Bailey’s Guardians of the Moral Order and Peter Carmichael’s The Last Generation. Francis Wayland, who was president of Brown University before the Civil War, wrote an important moral philosophy treatise, which is quite helpful in understanding antebellum thinking about the rule of law and things like the right (or non-right) to disobey the fugitive slave act of 1850. But now we’re getting rather far afield from the issue at hand.). My friend Jeremiah Goulka has recently published a book on Chamberlain.

Anyway, about the time of the fiftieth anniversary of Gettsyburg, as folks North and South were struggling with the memory of the war and with reunion, he published his memoirs. Judge Cain quotes Chamberlain’s text, which honored the soldiers on both North and South:

Before us in proud humiliation stood the embodiment of manhood: men whom neither toils and sufferings, nor the fact of death, nor disaster, nor hopelessness could bend from their resolve; standing before us now, thin, worn, and famished, but erect, and with eyes looking level into ours, waking memories that bound us together as no other bond;–was not such manhood to be welcomed back into a Union so tested and assured? Instructions had been given; and when the head of each division column comes opposite our group, our bugle sounds the signal and instantly our whole line from right to left, regiment by regiment in succession, gives the soldier’s salutation, from the “order arms” to the old “carry”–the marching salute. Gordon at the head of the column, riding with heavy spirit and downcast face, catches the sound of shifting arms, looks up, and, taking the meaning, wheels superbly, making with himself and his horse one uplifted figure, with profound salutation as he drops the point of his sword to the boot toe; then facing to his own command, gives word for his successive brigades to pass us with the same position of the manual,–honor answering honor. On our part not a sound of trumpet more, nor roll of drum; not a cheer, nor word nor whisper of vain-glorying, nor motion of man standing again at the order, but an awed stillness rather, and breath-holding, as if it were the passing of the dead! . . .

What is this but the remnant of Mahones Division, last seen by us at the North Anna? its thinned ranks of worn, bright-eyed men recalling scenes of costly valor and ever-remembered history.

Now the sad great pageant–Longstreet and his men! What shall we give them for greeting that has not already been spoken in volleys of thunder and written in lines of fire on all the riverbanks of Virginia? Shall we go back to Gaines Mill and Malvern Hill? Or to the Antietam of Maryland, or Gettysburg of Pennsylvania?–deepest graven of all. For here is what remains of Kershaws Division, which left 40 per cent. of its men at Antietam, and at Gettysburg with Barksdales and Semmes Brigades tore through the Peach Orchard, rolling up the right of our gallant Third Corps, sweeping over the proud batteries of Massachusetts–Bigelow and Philips,–where under the smoke we saw the earth brown and blue with prostrate bodies of horses and men, and the tongues of overturned cannon and caissons pointing grim and stark in the air. . . .

Then in the Wilderness, at Spottsylvania and thereafter, Kershaws Divison again, in deeds of awful glory, held their name and fame, until fate met them at Sailors Creek, where Kershaw himself, and Ewell, and so many more, gave up their arms and hopes,–all, indeed, but manhoods honor. . . .

Ah, is this Picketts Divison?–this little group left of those who on the lurid last day of Gettysburg breasted level cross-fire and thunderbolts of storm, to be strewn back drifting wrecks, where after that awful, futile, pitiful charge we buried them in graves a furlong wide, with names unknown! Met again in the terrible cyclone-sweep over the breast-works at Five Forks; met now, so thin, so pale, purged of the mortal,–as if knowing pain or joy no more. How could we help falling on our knees, all of us together, and praying God to pity and forgive us all!

Joshua Lawrence Chamberlain, The Passing of the Armies 260-62 (Stan Clark Military Books 1994) (1915).

What’s significant to me is the way that Chamberlain’s thoughts appear again, nearly one hundred years later, in a judicial opinion. They are a reminder of how north and south reconciled after the war and the meaning of the monuments to the Confederacy to many. As the concurrance later observed,

It is to the memory of these men that Confederate Memorial Hall was built and, to that end and at great personal sacrifice in the midst of the Great Depression, that the United Daughters of the Confederacy raised and contributed to Peabody College more than one-third of the total cost of the construction of the dormitory.

Call Parker Brothers!: Scenes from An Exciting Evening in Tuscaloosa

Alfred Brophy — Sat, 10 Dec 2005 21:47:20 +0000

Last night, a few colleagues were over at my place and we discussed the local gossip: the storm on campus over the sex column in our student newspaper, the Crimson-White, (which, btw, made the front page of the Tuscaloosa News this morning). Not a bad article on the controversy; it has a first amendment analysis of why the University can’t censor the column. And to their credit, the administration doesn’t want to. The article would, of course, have benefitted from a quotation from Dan Solove.

Then we turned to a game: “name professors at that school.” The gist here is to have one person name a school and then see who can name the most professors at that school. There’s a permutation, which Scott England developed: pick a name out of the AALS Directory and ask where that person teaches. Of course, it has to compete with other Tuscaloosa faculty favorites, like “name the most important article in [pick a field] in the last decade.” Or, “what’s the most under-appreciated article in [pick a field].” Or, “what article/book do you wish you’d written?”

When I woke up this morning, it dawned on me that the game isn’t as much fun as the Ann Coulter Talking Doll. Perhaps Parker Brothers won’t be interested, afterall.

Ann Coulter: Come to Tuscaloosa

Alfred Brophy — Fri, 09 Dec 2005 21:41:08 +0000

Thanks to one of my star students, Lee Birchall–a man with a degree from Dartmouth and a varsity athlete there who’s now on the Alabama Law Review (look for a great article on golf law as a measure of American society coming soon to a law journal near you)–there are yet more phrases for the Ann Coulter talking doll! This time, it’s “I love to engage in repartee with people who are stupider than I am.”

Lee’s a big fan of Ms. Coulter. After reading about her speech at the University of Connecticut, he’s starting a move to get her to speak at UA. I know she’ll get a warmer reception here than at U.Conn, at least if you can judge from the reception that Phyllis Schlafly received last spring at UA. And the good news is that he’s offered to serve as her social host.

Fanny Ellison

Alfred Brophy — Thu, 08 Dec 2005 22:58:52 +0000

Thanks to my friend and Ellison scholar Lucas Morel, I found out that Fanny Ellison, Ralph Ellison’s widow, died recently in New York of complications of hip surgery. She was 93. I had not known, until I read the New York Times obituary, how important she was in civil rights, theater, and culture in the 1940s, nor of her role in helping with Invisible Man.

I’m a huge fan of Ralph Ellison. Invisible Man, of course, has much to recommend it, particularly for lawyers. A lot of Ellison’s mission in IM runs parallel to what the NAACP was trying to do through litigation in the years leading into Brown. And while it may be stretching the case to say that the invisible man authored Brown, I think Ellison’s goal of focusing on our common humanity and on seeing people as individuals, rather than members of despised groups, appears in Brown as well.

One of my favorite passages in IM involves the elderly couple, who’re being evicted from their Harlem apartment. The couple’s meager possessions are strewn on the sidewalk; there are fragments of life stretching back to the era of slavery–emancipation papers, a picture of Abraham Lincoln, a commemorative plate from the St. Louis World’s Fair, a newspaper account of Marcus Garvey, letters from their grandchildren, cheap furniture. The Invisible Man’s refrain was, “[W]e’re a law abiding people.” Yet, the elderly couple was being evicted. So Ellison asked by what law were the couple being evicted? How could that eviction be consistent with law? The eviction was demanded by the “laws,” it is true:

[L]ook up there in the doorway at that law standing there with his forty-five. Look at him, standing with his blue steel pistol and his blue serge suit, or one forty-five, you see ten for every one of us, ten guns and ten warm suits and ten fat bellies and ten million laws. Laws, that’s what we call them down South! Laws!

The couple had almost nothing from which they could be evicted. All they had was “the Great Constitutional Dream Book” and even that they could not read.

And therein lie some really interesting questions: what did Ellison mean by the great constitutional dream book? It’s an allusion, of course, to dream books, which were popular in African American culture in the late nineteenth and early twentieth centuries for interpreation of dreams (particularly for gambling purposes). (My friend Arlene Kiezer is working on dream books, by the way–so I hope I’m getting this story right.)

But I think Ellison is referring to the dreams of African American intellectuals more generally, about equality, the NAACP’s campaign to stop lynching, the dreams of equal funding for separate schools, an end to discrimination in housing, voting, and segregation in public transportation. What’s interesting is that folks, like Ellison, appealed to the Constitution as a way of achieving those dreams. There was, of course, a vastly different reality in the era of Jim Crow. The phrase “law” meant often the dictates of laughably biased judges, legislators, and other officials of law enforcement. Sometimes the Jim Crow system resulted in hideous violence, like the Tulsa riot of 1921. Young Ralph Ellison witnessed the destruction shortly afterward, when traveling home with his mother from Indiana to Oklahoma City. As a result, the young Ellison had little respect for “laws”–the statutes themselves or those judges and officers who enforced them.

Yet, there was an optimism among some–like Roscoe Dunjee, the editor of the Oklahoma City Black Dispatch and a father-figure to Ellison in his youth–that the world might be ordered differently. And though Dunjee’s masculinity was impugned by other members of the Oklahoma black community for suggesting that the rule of law might offer some hope, Dunjee made constant appeals to law. In the 1930s he served on the board of the NAACP and in the 1940s he pushed Aida Louis Sipuel to file a lawsuit to integrate the University of Oklahoma’s law school. The dreams of African American intellectuals in the 1910s influenced the development of political action and litigation strategies (as Kenneth Mack’s recent article in Yale brilliantly reminds us). And what must have been particularly sweet for Roscoe Dunjee was that, though his idea of faith in the Constitution was ridiculed, he lived long enough to see the Brown decision. Or, to paraphrase Ellison’s 1979 lecture at Brown University, “Going to the Territory,” in the aftermath of the Tulsa riot Brown would have been “unthinkable–even as a comic, practical jok[e].” It is yet another example of the unexpected outdoing itself in its power to surprise. It’s also a reminder of just how much and how quickly life changes for the better. Later in life, as a professor of literature at NYU, Ellison praised the virtues of Dunjee’s faith in the principles of equality in the Constitution.

Fanny Ellison’s obituary takes (what in my mind) is an inappropriate swipe at Ralph Ellison’s post-humously published novel, Juneteenth. It’s a complex book. One example here: a central character is Bliss, a boy of amibugous racial heritage, who’s mother accusses a black man of rape. The man is lynched, then the man’s brother raises the child in hopes that he will be able to teach the white community about the value of love. Bliss, however, crosses the race line and becomes a race-baiting Senator. Then, he is shot (by his black son!) while delivering a speech on the Senate floor. Whew. As I say, there’s a lot going on in that novel.

For those interested in Ellison’s jurisprudence, there’s much in Juneteenth of use. In his notes for the book, Ellison elaborated on the conflict between religion and law, which had appeared in IM as well. And he also contrasted (in ways that may seem strange to lawyers) the facts, law, and truth. He commented on the “fact” that African Americans were subordinated by law; but that there is another truth:

don’t get the truth confused with law. The law deals with facts, and down here the facts are that we are weak and inferior. But while it looks like we are what the law says we are, don’t ever forget that we’ve been put in this position by the power of numbers, and the readiness of those numbers to use brutality to keep us within the law. Ah, but the truth is something else. We are not what the law, yes and custom, says we are and to protect our truth we have to protect ourselves from the definition of the law. Because the law’s facts have made us outlaws. Yes, that’s the truth, but only part of it; for . . . we’re outlaws in Christ and Christ is the higher truth.

We’re all very fortunate that Fanny Ellison allowed Juneteenth to be published and we’re all poorer with her loss. Yet another connection to the past is gone.

Law Review Citations and Law School Rankings

Alfred Brophy — Wed, 07 Dec 2005 18:44:11 +0000

There’s no shortage of writing on law reviews or law school rankings, to say the least. So why not combine the two?

Questions about law review ranking abound. How does one compare offers from journals at relatively equal schools? Is it better to publish with a journal that is more frequently cited or with one at a higher ranked law school? Is it better to publish with a main law journal at a top 40ish law school or the secondary at a top 10 law school? Questions about law school rankings abound as well, particularly for schools outside of the top 30 or so. (Or so it seems to me.)

I’m partial to citation studies as a way of judging quality. I know that citations have lots of problems as a way of ranking journals (or individual authors). However, I like the objectivity citation studies provide. And so I’m partial to the Washington and Lee Law Library’s website, which provides comprehensive data on citations to hundreds of law journals by other journals and by courts. I’ve found it useful in trying to draw some comparisons between journals. Other people often draw comparisons between journals by looking to the US News ranking of the journal’s school.

But this leads to some further questions: what’s the relationship between citations to law journals and the reputation of the school that publishes it? I have a vested interest in this question, because I’m the faculty advisor to the Alabama Law Review. (I like to argue to my dean that we need lots of money to host symposia, which he gives us.) And as someone who wants to encourage good scholarship, I hope that good scholarship and good journals are rewarded–that a good journal will reflect well on the reputation of the school that publishes it.

So that led me to analyze the US News data for 2006 (which actually appeared in the spring of 2005) and the 2004 W&L Law Library citation data (which measures citations to works published from 1997 to 2004). There’s a high correlation (.86) between citations and peer assessment scores for the US News top 50 schools.

I also looked at Professor Brian Leiter’s reputation survey, which I think represents a significant improvement methodologically over the US News data for the schools that he surveys. Some interesting stuff here–there’s a high correlation between Leiter’s reputation scores and the US News peer assessment (.91) and journal citations (.83).

But then things begin to get a little more surprising. For schools in the US News 52-102 range, the correlation is not nearly so high (.57). The correlation becomes even weaker when we consider journals at schools in the third and fourth tier (.41). The correlations are significantly weaker at each level between peer assessment and citations by courts: .66 for US News top 50 schools; .12 for US News 52-102 schools; .25 for US News tier 3 and 4 schools.

My paper contains detailed tables reporting the data and speculates some on their meaning. I suspect that people at schools whose journals over-perform (like Fordham, Cardozo, University of Miami, University of Kansas, DePaul, Albany, Indiana–Indianapolis, University of Colorado, and Houston) are going to be quite pleased with the results. Faculty at other schools may have other explanations–like the frequency of citation doesn’t mean much. And on that they may be correct. A lot of really, really fine work is rarely cited. I know that to be the case in legal history, the area of scholarship I know best, and suspect it’s true for some other important areas of the legal scholarship. Part of the problem with citations to legal history is that relatively little scholarship is being written in that area, so there are comparatively few opportunities to cite work.

There are some serious limitations with citation studies, of course. But the data are worth considering. One implication that I suggest is that for third and fourth tier schools, the citation data may be a way of bringing some precision to the peer assessments of school quality. Perhaps US News should look to citation data to gauge something about the intellectual orientation of a school.

Because my time as a guest at concurringopinions is about to expire, I rushed a little to get a draft of the paper out before I turn into a pumpkin. There’s some more I plan to do with this (including using the recently posted 2005 citation data and looking more at variances between amount of citations at each tier of school). A special thanks to Brian Leiter, who’s doing a lot to bring some more rationality to the rankings world.

Memory on the Sewanee Campus

Alfred Brophy — Wed, 30 Nov 2005 07:12:19 +0000

It doesn’t take a lot of skill to predict that this New York Times article about the controversy over what we used to call “The University of South” and what’s now called “Sewanee: The University of the South” is going to generate, well, a lot of controversy.

First, some background. A few years ago, apparently motivated by a marketing study, the University of the South began emphasizing the “Sewanee” part of its name. Alumni have been concerned (to put it mildly) that it’s not just about the name, however. They think there is a lot more at stake on the campus–like how the University deals with its distinguished and complex history. At the center of that history is the University’s founder, Leonidas Polk. Bishop Polk was, also, a general in the Confederate States Army.

And so in discussions about Polk, we can see the cultural war over the memory of the Civil War in miniature. Polk was responsible for building the University, with much help and sacrifice by the Episcopal church; generations of its alumni have enriched the nation. Polk is, however, seen by some people as a man who fought to maintain the institution of slavery. How can the University reconcile those competing interpretations?

This involves incredibly complex issues of how we remember our ancestors and how we make sense of our past. Even a cursory exploration of the issues involves questions of respect for tradition, honoring the contributions of ancestors, recognizing their faults, and trying to reconcile the competing claims of people to a space on the Sewanee: The University of the South’s campus. The University has already done some other things, like remove Southern state flags from the Chapel; some alumni fear that the stained glass windows in the Chapel, which include the seal of the Confederacy, may be next.

I have not yet had the opportunity to visit Sewanee: The University of the South, though I hope to someday soon, in part because my friend Margaret Howard tells me that it is one of the most beautiful campuses in the country. And, since Margaret teaches at Washington and Lee, she knows something about beautiful spaces.

I wish the students, alumni, faculty, and administration all the best of luck as they try to reach a reconciliation. This is going to be hard.

And for those of you interested in these kinds of issues, the spring’s going to be busy–it will bring the report by Brown University’s Steering Committee on Slavery and Justice, more debate on naming Sewanee and related issues of the memory of the Civil War on that campus, and further discussion of UNC’s acknowledgement of its connections to slavery.

[The picture is of the flags of Southern states in the University of the South's chapel, which were removed a few years ago. The image appears here. The chapel without the flags appears here.]

History of the Book

Alfred Brophy — Tue, 29 Nov 2005 21:06:32 +0000

Folks here at concurringopinions have been talking a lot about books recently–Nate Oman’s had posts on the appeal of law books (particularly old ones) and law reviews and Dan Solove’s posted about the open library. I find student-edited law reviews problematic in some ways, and the smell of old books doesn’t do much for me. But there is magic, imho, in libraries. Libraries are great enlightenment vehicles of improvement. They’re the places that knowledge is collected and disseminated. (And that’s why I find the stories about segragated libraries particularly important in understanding our history.)

I remember the excitment I used to feel on walking in Van Pelt Library as an undergraduate. The entire world of knowledge, it seemed to me at the time, was open to anyone who had the inclination and time to visit it. In keeping with the Supreme Court’s administrative law opinions of the early 1970s, like Overton Park (about the importance of getting information in front of regulators), I thought that the knowledge in those books held most, if not all, of the keys to a better society.

Sometimes, if I get to the University of Alabama’s library early enough on a Saturday (so there aren’t many other people around), and I’m working on an original project, and the light strikes the windows in the great reading room just right, that enthusiastic eighteen-year old I remember appears again, even if only for a short while.

When I’m thinking about old books, I’m partial to library catalogs. Because they give you a sense of the ideas that people had access to and the kinds of ideas they found appealing. The 1853 library catalog of the University of Georgia is available on the Georgia library’s webstite. Through the magic of the internet, you can see exactly what the catalog looked like. And you can also see what books were in the Georgia library. Historians in recent years have been talking a lot about the “history of the book.” They ask who was reading books, who was writing them, and how books were useful in transmitting ideas.

This is becoming a really popular area of teaching and research. And a lot of internet sites allow you to read important old books. One of my favorites is the University of North Carolina’s Southern Texts site. Another favorite is the University of Virginia’s e-books site. And, of course, if you’re doing nineteenth-century US history, the Making of America site is now indispensable.

My colleague Paul Pruitt and I are editing the University of Alabama’s catalog for 1848. I learned about the catalog from an extraordinary historian, Guy Hubbs, who wrote a brilliant book on Greensboro, Alabama during the Civil War. Paul has a great idea, to call the project “Burned Books,” becase the library (and hence the books listed in the catalog) were burned in the closing days of the Civil War, when Union soldiers destroyed most of the University’s campus.

What’s especially cool for historians is that the history of the book focuses on ideas: how are ideas preserved and transmitted, which are two topcis where the mind is central. And while I love great social history as much as anyone and I think that subjects like dress and architecture are great topics for study, I also enjoy thinking about the relationship between ideas and action. So I’m enamoured with some recent books on Southern intellectual history, like Michael O’Brien’s Conjectures of Order. O’Brien has a whole chapter on libraries, and there’s more one can do with them, such as linking the books in libraries with individuals’ writings (like judicial opinions, newspaper articles, and student papers).

(The picture is of the reading room at Harvard’s Widener Library.)

Voices from the Past

Alfred Brophy — Mon, 28 Nov 2005 18:34:15 +0000

This very fine New York Times article on the New York Historical Society’s exhibit on slavery in New York begins by talking about visitors recording their reactions to the exhibit. We should also think about listening to the voices of people who had lived as slaves.

Some of the great treasures of American history are the slave narratives collected by the WPA. And through the magic of the internet, you can listen to the Library of Congress’s audio collections of the voices of people who were born into slavery.

I’ve enjoyed listening to them, because I love hearing the songs (like Keep your Lamp a’ Trimmed and Kingdom Coming), the accents, and the recollections of the folks.

Of course, the WPA and other New Deal agencies recorded a lot of other folks, too. I highly recommend the audio downloads that are available on the LOC’s website. And the LOC has some other great audio collections, like these fiddle tunes recorded in the 1960s.

The picture is from the Library of Congress’ collection of black and white photographs from Great Depression to World War II, LC-USF34- 044206-D.

The intellectual origins of Roe . . . in a law review

Alfred Brophy — Sun, 27 Nov 2005 03:50:37 +0000

Here’s a nice piece of trivia: what law review article laid the blueprint for Roe v. Wade?

Thanks to Orin Kerr’s link to Judge Raymond Randolph’s thought-provoking speech to the Federalist Society on Judge Friendly’s unpublished 1970 draft opinion on abortion rights, I learned something about my school’s history: that Roy Lucas, then an assistant professor at the University of Alabama, published an article in 1968 in the North Carolina Law Review, which (according to Judge Randolph) “laid out a blueprint” for applying Griswold to state anti-abortion laws. Of course, proving influence in the evolution of constitutional thought is a remarkably difficult enterprise. But some knowledgeable people nevertheless believe the article to have been quite important. N.E.H. Hull, Williamjames Hoffer, & Peter Hoffer include an excerpt from the article in their important book, The Abortion Rights Controversy. They say of Lucas’ article that it was a “vital source of ideas for the frontal attack on criminal abortion statutes.”

Hmm, I thought upon reading this, how surprising. I try to pay some attention to my school’s history. I’ve heard some pretty interesting stories about Alabama law faculty. For example, Professor Jay Murphy‘s advocacy in the pages of the Alabama Law Review helped defeat some of the legislature’s proposals to resist desegregation in the immediate aftermath of Brown.

Still, until this morning, I had never heard of Roy Lucas. So that led me to a westlaw search, where to my surprise I found that Lucas’ article appears to have been cited barely more than a handful of times. Further evidence, as I’ve observed in the context of my school’s antebellum history, that historians don’t pay sufficient attention to the intellectual history of the South (or of Alabama in particular).

Judge Friendly’s opinion, of course, warrants some comment.

This could lead to another pretty interesting question: what are the most significant law review articles? I’m guessing that Lucas’ would be a contender for inclusion on that list.

Of Names, Auctions, and Contests

Alfred Brophy — Wed, 23 Nov 2005 18:35:24 +0000

Lemony Snicket auctioned the naming right to a character in a forthomcing novel. (Sold for a lot–something like $6000.) So why shouldn’t Professor Eric Muller solicit help in naming his new book on the administration of the internment of Japanese-Americans during World War II? Looks like a great book, btw, judging by his introductory chapter. And, of course, the contest has the virtue of getting lots of folks reading the introduction and driving traffic to his blog. This may catch on–at least I hope it does, because I enjoy hearing about new scholarship and it’s sort of a fun contest.

Alas, I have no good idea about the name for the book–I’d probably go for something dull like Administering Injustice. But it’ll be an important addition to the literature on the history of administrative state in the twentieth century, which has been drawing attention from really strong scholars, like Reuel Schiller.

One more thing: I was a coerced watcher of Snicket’s Series of Unfortunate Events last January on a flight out to Seatle. And, after the first couple of minutes when I couldn’t quite figure out what the was going on, I enjoyed the movie. Plus, I dig the role of a trust in shaping the plot.

Private Accrediting: If you can’t beat ‘em, join ‘em

Alfred Brophy — Wed, 23 Nov 2005 02:12:30 +0000

US News’ rankings are exerting powerful influences over law school practices, in areas like admissions (and presumably hiring and promotion of faculty, to enhance reputation scores). They’re beginning to look like an accrediting agency that operates parallel to the ABA. US News arguably sets benchmarks for such areas as admissions, faculty-student ratios, and library size.

(Jeffery Stake’s article “The Interplay Between Law School Rankings, Reputations, and Resource Allocation” and posts like this one by Brian Leiter explore how US News is affecting (or might affect) class size and other admissions decisions. My (admittedly impressionistic) sense is that a great many law schools are bending their behavior to US News factors.)

In the spirit of “If you can’t beat them, join them,” maybe what we should be doing is lobbying US News to change the factors that count in their rankings. Perhaps, for example, we should encourage US News to take diversity of student body into account. If US News gave (even small credit) for diversity, perhaps it would cause (major) shifts in law schools’ admissions decisions. I wonder if US News is already poised to do this? In 2005 they began publishing a diversity index, but it doesn’t yet count towards a school’s overall rank.

I’ll leave aside self-serving changes to the US News factors, like taking faculty salary into account, which the ABA is no longer able to do. And, related to the ABA’s problems with collection of salary data, you may remember that antitrust is an area where law schools have behaved, well, rather surprisingly, as Thomas Lambert and Royce de Rohan Barondes point out. I think you’ll enjoy their article.

(The illustration is Margo Humphrey’s Pulling Your Own Strings, from the Paul Jones Collection at the University of Delaware. I think it fits with the theme of this post, about law schools trying to take control of our destiny by working with US News, even as we’re subject to “regulation” by them.)

A whole lot has changed in the last fifty-six years

Alfred Brophy — Sun, 20 Nov 2005 23:49:49 +0000

I recently had the pleasure of introducing Paul Jones to speak to the Black Law Student Association at the University of Alabama. Dr. Jones is one of our nation’s leading collectors of African American art. He was born in the 1920s in Bessemer (a town near Birmingham) and grew up there. He shared a dream of generations of boys in this state–to play for the University of Alabama’s Crimson Tide. But he could not realize that dream. Instead, he played for Alabama State. Then, in 1949, as a student at Howard University, he applied to the University of Alabama’s law school. Again, he was a generation too early. He was told that while the administrators here were aware that the United States Supreme Court might mandate that the University admit students like him, he should not pursue a lawsuit:

While this may be gratuitous, I am adding that we at the University of Alabama are convinced that relationships between the races, in this section of the country at least, are not likely to be improved by pressure on behalf of members of the colored race in an effort to gain admission to institutions maintained by the State for members of the white race. On the contrary, we feel that inter-racial relationships would suffer if there is insistence that the issue be joined at this time. The better elements of both races deplore anything that tends to retard or jeopardize the development of better relationships between the races. For these reasons, therefore, we hope that you can persuade yourself not to press further your application for admission here.

Well, Jones is not a man to a man to be deterred by adversity. He opened a package store in Bessemer and later worked for the Birmingham Interracial Committee, where he become known for behind-the-scenes negotiating that resulted in positive results. For example, he tells the story of a negotiation with a prominent department store in Birmingham to remove a sign segregating an elevator. He subsequently with the Justice Department’s Community Relations Service. And he began collecting art. He worked as deputy director of the peace corps in Thailand and was in charge of President Richard Nixon’s campaign to get out the black vote in 1972. In the mid-1970s, he worked as an official in the Department of Education; during that time he awarded the University of Alabama a grant for several hundred thousand dollars for extension education. He did not at that time mention his earlier dealings with the University. Jones’ involvement with politics continued. In 1982 he ran unsuccessfully for Congress as a Republican in Georgia.

I’ve heard many stories from Dr. Jones about his childhood in Alabama. He has many fond memories of his family and friends. The strictures of Jim Crow segregation didn’t constrain his world too much. His life is an embodiment of Ralph Ellison’s observation that though law might tell African Americans that they were unequal, the African American community constructed another reality. As Ellison asked in his review of Gunnar Myrdal’s American Dilemma, “Are American Negroes simply the creation of white men, or have they at least helped to create themselves out of what they found around them? Men have made a way of life in caves and upon cliffs; why cannot Negroes have made a life upon the horns of the white man’s dilemma?”

One of Jones’ stories is about the restaurant The Bright Star, which is an Alabama institution. It goes back to around 1907 and I recommend it should you ever find yourself in Birmingham. It has, well, character. Jones tells of how his family went there for Sunday meals in the 1930s. They entered through a side door and the proprietor set a table for them in the kitchen. Sometimes, if it wasn’t busy, they sat in the restaurant. Of course it would have been unthinkable (and illegal) at the time to have an integrated restaurant. I asked him if he’d been back in more recent times. And he said, of course–it had been many years, but he’d never been prouder than the first time he walked in through the front door. Yet more testimony to how much and quickly life changes.

A few years ago he donated a significant part of his collection to the University of Delaware and in 2004 they renovated a building for the permanent exhibition of the Paul Jones Collection.

And in October of this year, he partnered with the University of Alabama Art Department to show a selection of works from his collection. It happens that the University’s art gallery is in Garland Hall, which is named for the president of the University during the Civil War–and a man who owned a number of human beings. What a wonderful statement about how far we have come–and how much people in Alabama are interested in their common future–that we have an exhibit of African American art (loaned by a man who was once excluded on the basis of race) in a building named for a slaveholder. It is, of course, a wonderful Ellisonian moment, of unexpected moments of the past coming together in strange and positive ways. Dr. Jones, ‘lo these many years later, is enriching the campus community. He is a man of generous spirit and I, for one, have much to learn from him about the human spirit and about life.

The illustration is Jacob Lawrence’s 1978 The Library, from the Paul Jones Collection web page at the University of Delaware.

Does this insight apply to law professors as well?

Alfred Brophy — Fri, 18 Nov 2005 17:49:26 +0000

Some years ago (I’m guessing sometime around 1997 from internal references, as historians would say), I saw in a newspaper a quote attributred to “Veteran horrormeister and Scream 2 director Wes Craven”:

After you stop moaning about being stereotyped as a horror guy, you can say, “I’m employed doing interesting movies that can be called, in some sense, auteur work. Nobody’s telling me what to do, I have final cut and there’s virtually no limitation except my imagination, and I have to stay within a certain subject matter. But you can put as much comedy as you want in the movie, as much romance or philosophy; anything, as long as you scare the bejesus out of people six or 10 times.”

Apparently Craven really means that stuff about philosophy, because his website describes his 2005 movie Cursed as a “postmodern approach to the werewolf genre.” The description on his website continues,

One of the unique aspects of Cursed is that it is as much a showbiz satire as it is a horror film: Ellie works for a talk show, which allows for plenty of barbed jibes at television and cameos by the likes of Craig Kilborn and Scott Baio. It’s also probably the only horror film that has ever depicted a werewolf giving someone ‘the finger.’ That said, Craven never forgets to deliver the scary goods: highlights include the opening attack sequence – in which a werewolf exploits the opportunity of a young woman being trapped in a car wreck – and a tense finale that takes place in a horror

movie-themed nightclub.

Thus, you see Mr. Craven continues to deliver the scary stuff. There is something to this horror-movie as vehicle for serious social critique. Dawn of the Dead is a transparent criqiue of 1970s consumer culture. In fact, it’s so transparent it sort of isn’t effective (in my mind). I prefer the nineteenth-century gothic novel for horror-story as critique of society over contemporary movies. (My favorite in that genre is Edgar Allen Poe’s Narrative of Arthur Gordon Pym.)

Based on Craven’s recent work, the collaborative Paris, Je T’aime, it appears that you sometimes can do real work and not even have to scare the bejesus out of people.

The question remains whether Mr. Craven’s insight has any relation to what happens in a law school class? I discussed the quotation with my colleagues at the time, at least one of whom thought that there was a fairly direct connection between law faculty and the scaring the bejesus out of people. Another saw a more distant analogy–we as law faculty have a lot of discretion to teach what we’re interested in (jurisprudence, socioeconomics, whatever) so long as we teach some of what the students came here for (practical skills). Along those lines, consider the person in the picture on the right. I think he was mostly interested in scaring the bejesus out of people.

Finally, perhaps this is the place to ask the question, which I’ve had for a while: is Wes Craven, horrormeister, any relation to Wesley Frank Craven, distinguished New York University historian? (By the way, readers of Dan Solove’s post on courthouse architure may be interested in the beautiful pictures of courthouses from seventeenth-century Virginia in Craven’s book.)

I don’t know why Jack Chin says Goodbye; the Virginia Legislature Says Hello

Alfred Brophy — Wed, 16 Nov 2005 03:58:19 +0000

In a recent issue of Constitutional Commentary, Gabriel J. Chin has a very thoughtful article, “Jim Crow’s Long Goodbye,” [21 Constitutional Commentary 107 (2004)]. I applaud Professor Chin’s research, which measures vestiges of the Jim Crow era in education, primarily through a study of statutes left on the books, which are now largely unenforced. Such statutes, for instance, provided for public financing of segregation academies. While the statutes are now largely symbolic, Chin identified several that have some continuing impact on state budgets. Alabama and Mississippi both allow teachers at private schools to join the teachers’ retirement system.

Chin is correct that in order to understand the appropriate legal and legislative response to Jim Crow we must have accurate data on its extent and continuing impact.

I don’t know why Professor Chin says goodbye; the Virginia legislature says hello. Well, hello, at least, to funding the memory of the Confederacy. The Virginia Code, § 10.1-2211, provides for a modest grant ($5 per grave per year) to be administered by the United Daughters of the Confederacy for the maintenance of graves of Confederate soldiers.

State funding for cemeteries is appropriate, in my opinion. We ought to remember our ancestors and preserve their places of repose. So funding for the graves of Revolutionary War soldiers, which the legislature began to do in 2002, is appropriate. Va. Code § 10.1-2211.1. Civil War cemeteries (and in an earlier era pensions for Civil War veterans) pose particular questions, however. For in the years after the war, as the nation struggled to reunite itself, cemeteries and the seemingly ubiquitous public monuments in both north and south were places where the memory of suffering at the hands of the former enemy was kept alive and where the place of slavery in the war was forgotten. The understanding of the war in both North and South become one of Southerners fighting honorably for preservation of their homeland and for a cause they honestly (if mistakenly) believed to be just.

In July 1913, fifty years after the battle of Gettysburg, veterans north and south gathered to celebrate the anniversary. The Gettysburg reunion was a great act of national unity and of national forgetting.

Providing public funds for pensions to those who suffered during the war and for monuments is naturally divisive. In the years after the war, as the Union provided its veterans pensions, the struggling southern states were left to provide meager pensions for their veterans. Many will likely agree with the federal government’s policy of providing funding only for Union veterans; however, the policy caused hard feelings in southern states. The problem with Virginia’s action today is that it, similarly, provides funding for one group. It remembers and honors those who fought, among other purposes, to maintain the system of slavery. Virginia also should provide money to maintain the graves of slaves, which also dot the countryside.

Yet, the study of the vestiges of Jim Crow education leads naturally to a broader investigation of the vestiges of Jim Crow (the system of racial violence and of segregated schools, housing, public accommodations, and even segregated memory). We should count legislative action that contributes to that segregated memory as one of those vestiges, particularly because the funding for confederate cemeteries began in 1950, as legislatures were looking for ways to shore up Jim Crow.

The amount of money provided by the Virginia legislature to care for Confederate cemeteries is small. But the statement it makes, about the memory of the war, is not so insignificant. In our world symbols are important. As Ralph Ellison reminds us, “Since the Civil War . . . symbolic action has served as a moral substitute for armed, warfare, and we have managed to restrain ourselves to a debate which we carry on in the not always justified faith that the outcome will serve the larger interests of democracy.” The preservation of cemeteries is a worthy and noble cause. I hope that we will consider the inequities in funding some cemeteries and not others.

The picture is from the Cedar Hill Cemetery in Suffolk, Virginia. In the interest of full disclosure, I should say that one of my hobbies is visiting cemeteries, and one of my areas of interest is cemetery law. Maybe in the spirit (ha, ha) of Ann Althouse’s pictures of Madison, I’ll post some pictures of my favorities cemeteries, like Tuscaloosa’s Greenwood Cemetery.

Images of Property in American Landscape Art

Alfred Brophy — Sun, 13 Nov 2005 16:50:52 +0000

For a number of years I’ve been giving a lecture at the end of the year to my property students about images of property (and particularly development of property) in landscape art. It’s a fun talk, which I give when I realize that folks are tired after nearly a year of law school and need a break from the typical routine. I got the idea from Leo Marx’ Machine in the Garden and then refined it while reading Angela Miller’s Empire of the Eye. I often begin with a quote from Ralph Waldo Emerson’s Nature. Something along the lines of:

The charming landscape which I saw this morning, is indubitably made up of some twenty or thirty farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them owns the landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts, that is, the poet. This is the best part of these men’s farms, yet to this their warranty-deeds give no title.

Then I begin to show some ways that American artists have depicted (and celebrated) our development of land. I use George Inness’ Lackawana Valley (shown below). Look at the machine going through the the fields of cut-stumps; the railroad roundhouse in the background; the smoke stack even further off; what a strange juxaposition (it seems at first) of humans and nature. While it seems strange at first, my point is that landscape art is part of the celebration of human’s use of land.

I also show some Thomas Cole, like Notch in the White Mountains (see the house with the smoking chimney, the cut stump, the rider on the path). What we celebrated in the nineteenth century was imposition of humans on nature, not nature itself. Grant Wood’s 1931 Midnight Ride of Paul Revere, is another celebration of humans on the landscape, as is his 1939 Haying. In fact, just about the entire landscape, from the rows of hay to the barn, is an imposition of humans on the landscape. This continues throughout the early twentieth century. Check out Charles Demuth’s My Egypt (the grain elevator as modern pyramid and it’s from Lancaster, Pennsylvania, which is a place I have very fond memories of).

What’s one of the symbols of progress during the Great Depression? The smokestack! It conveyed images of full employment and prosperity. My, how times have changed.

There’re some neat connections here between property law’s reverence for private property (and its preference for use of land) and the kind of art that Americans produced. It’s fun cultural history, I think. And every now and then there are some unexpected connections between judges and landscape art. For instance, in a lecture in 1844 at Dartmouth, United States Supreme Court Justice Levi Woodbury referred to Thomas Cole’s Course of Empire to illustrate how nations evolved–“starting first in the rudeness of nature; then maturing to high refinement and grandeur-till, amid the ravages of luxury, time and war, sinking into utter desolation.” The series of five paintings depict the same landscape (look for the mountain in the background), as the country goes from a state of nature, to civilization, consummation, destruction, and then desolation. Sort of sobering, but in keeping with many nineteenth-century Americans’ belief in the cycle of nations. (Others, of course, saw an unbroken chain of upward progress, often facilitated by the increasing respect for private property.) That’s a long story for another time.

At the center of the talk is one of my favorite paintings — Progress by Asher Durand. It’s a great canvass for seeing all sorts of tropes–the native Americans over on the left (the state of nature), then moving across the canvass to the right, check out the telegraph wires, the steam boats, the railroad roundhouse,

I don’t want to sound too much like a Tuscaloosa booster, but there is a fabulous art museum here (the Warner Westervelt Museum). And I mean fabulous. It’s run by our local billionaire. Some years ago, when I first visited the collection (which was then housed in the offices of the Gulf States Paper Corporation) as I approached the picture I said to myself, “that looks like Progress by Asher Durand.” And then, “wow–that is Progress by Asher Durand!” So the painting I’d been showing to my students for some years turned out to be housed a couple of miles from my office. Another example of what Ralph Ellison refered to as the “unexpected outdoing itself in its power to surprise.”

Want better student evaluations?

Alfred Brophy — Fri, 11 Nov 2005 15:52:51 +0000

I read an advertisement for the University of Virginia’s Darden School of Business Administration in the US Airways magazine recently, headlined “The best professors in the World don’t like hearing themselves speak.” The advertisement continued, “To develop great communicators and leaders we ask students to, quite simply, communicate and lead. That’s why Darden professors spend the least amount of time lecturing of any of the top MBA programs. We believe this is one reason the Princeton Review ranked our professors the #2 teaching faculty in the nation.”

So, to improve teaching scores, talk less. Hmm, something to think about as I prepare for class today.

Perhaps I should file that under the important lessons I learned while sitting on an airplane. Of course, I might also have learned it from Ben Stein‘s monologue in the 1980s movie, Ferris Bueller’s Day Off.

In 1930, the Republican-controlled House of Representatives, in an effort to alleviate the effects of the — anyone? Anyone? — the Great Depression, passed the — anyone? Anyone? The tariff bill? The Hawley-Smoot Tariff Act? Which — anyone? Raised or lowered? … raised tariffs, in an effort to collect more revenue for the federal government. Did it work — anyone? Anyone know the effects? It did not work, and the United States sank deeper into the Great Depression.

Legal Realism and Fashion Consulting: A Misunderstood Relation?

Alfred Brophy — Thu, 10 Nov 2005 17:47:38 +0000

Some years ago a colleague gave me a copy of John Molloy’s 1975 book Dress for Success. Perhaps the fact that he asked me whether I own an iron contains a clue to his message; I’m not sure.

I found it buried in a box of books I unpacked recently and began to read the chapter “For Lawyers: How to Dress Up Your Case and Win Jurors and Judges.” It contains the following sage commentary on the behavior of judges:

Before the urban judge you should avoid the Ivy League tie. You should avoid any sign of ostentation. You should avoid any look that is with-it, chic or “in.” Urban judges tend to be quite ticklish about their newfound socioeconomic positions, even if they’ve held them for some time, and often look upon anyone coming into their courtroom as a threat to them personally. Anybody who doesn’t treat their courtrroms with respect, and that means anyone who dresses in a manner that they find is unbecoming, will be dealt with harshly. Their response may well be subconscious; no judge will ever tell you that he’s ruling against you because of your smartass tie, but believe me, many of them will.

So that set me to wondering whether Judge William Hutcheson’s “The Judicial Hunch,” a foundational article in legal realism, might have had some influence on the modern fashion consulting industry. Compare, for example, the passage above with Hutcheson’s statement that a judge:

brooding over the cause, waits for the feeling, the hunch–that intuitive flash of understanding that makes the jump-spark connection between question and decision and at the point where the path is darkest for the judicial feet, sets its light along the way.

Or, to make the case a little less abstract, take the example of a study of the disposition of criminal cases in the New York City Municipal Court reported by Jerome Frank in Law and the Modern Mind.

Of 546 persons charged with intoxication brought before one judge, he discharged only one and found the others (about 97%) guilty, whereas of the 673 arraigned before another judge, he found 531 (or 79%) not guilty. . . . Everson [the author of the study] concludes that these figures show to what a remarkable degree the individuality of the magistrates is mirrored in their disposition of cases. “Justice,” he says, “is a very personal thing, reflecting the temperament, the personality, the education, environment, and personal traits of the magistrate.”

Were the lawyers were wearing smartass ties? Of course, mere order of publication is not always an indication of influence of the former upon the later. For, perhaps, Hutcheson learned his legal realism from the same source as Molloy: observation of the behavior of judges. Then again, they may all be wrong. For perhaps their observations are yet further examples of the ways that biography (of judges’ behavior) is autobiographical.

Of course, as Dave Hoffman’s recent discussion of dress codes at the AALS hiring conference illustrates, fashion consulting for lawyers continues to be an important topic.

1950s and 2000s Conservatism

Alfred Brophy — Wed, 09 Nov 2005 16:49:47 +0000

Last spring I went to a talk by Phyllis Schlafly at the University of Alabama. It was the most entertaining evening I’ve spent in years, much better even than the O’Reilly Factor on a good day. And I left with an “I love capitali$m” poster, which is one of my prized possessions.

Ms. Schlafly did what I take to be her usual stump speech-–opposing judicial activism and, of course, feminism. She was plugging her new book, The Supremacists (about left-wing judges). She had some amusing lines. Something along the lines of, “Feminists are pushing their way into the military. Forty-five percent of women can’t throw a hand grenade far enough to keep from killing themselves. So I guess you can say that feminism leads to death. Ha, ha, ha.” I took the laughter to be a realization that her arguments in this case were laughable–a wonderful self-insight. I have a warm spot in my heart for people who don’t take themselves too seriously. It’s an appealing character trait, to be able to be not too serious. Wish I had more of it.

The highlight of the evening was the question and answer period. It was the usual free-for-all: questions from a women’s studies graduate student on one side and from someone who thought Ms. Schlafly was too soft on liberals (yes, that’s right!). Her face looked like she sort of couldn’t believe what he was saying. Most of the rest of us couldn’t, either. And then towards the end, there was a most illuminating interchange. A young woman in the audience said something along the lines of:

Ms. Schlafly, I think you’re an antique. You’re turning off a significant part of your conservative base. I am a young conservative woman. And I am in law school to be a good role model for my child and to provide for my family. Telling women not to work is alienating people who agree with a lot of conservative values.

Reminds me how successful the feminist agenda of the 1950s and 1960s has been. Now virtually all young women (or at least many young conservative women) aspire to professional careers.

But here’s the punch line that really cinches this story. I later learned that the law student was, a few years ago, Miss Mississippi. What a great debate, between two conservative women, one an icon of the 1950s and the other an icon of the 2000s. Fifty years from now, some American Studies scholar will be wishing that she had a tape recording of that evening–and particularly that exchange.

New Phrases for the Ann Coulter Talking Doll?

Alfred Brophy — Mon, 07 Nov 2005 17:38:54 +0000

In the spirit of Dan Solove’s recent posting on the airport security playset, I would like to recommend the Ann Coulter talking doll.

Check out the link and you can hear sample phrases. My favorite is the one about liberals hating American more than terrorists. God bless politics.

Perhaps a phrase that could be added to the next edition of the doll is this one, which Dave Hoffman includes in his discussion of Coulter’s attack on Harriet Miers: “[A]ll the intellectual firepower in the law is coming from conservatives right now.”

All of this leads me to some serious questions (which modify Ms. Coulter’s statement): are conservative legal academics the ones producing the most influential or the most interesting scholarship these days? There was a time (in the nineteenth century) when the legal treatises were almost all written by conservatives (James Kent’s Commentaries; Joseph Story’s Commentaries; Timothy Walker’s Introduction to American Law). I can only think of one important antebellum legal treatise writer who was a Democrat: Henry Sedgwick. And his treatise on constitutional law was a success because he did not let his Democratic politics interfere with reporting on the law as it was.

That’s not to say that the outsiders didn’t have important things to say about law–and a critical influence on public respect for law. Harriet Beecher Stowe’s Uncle Tom’s Cabin and her now-obscure Dred: A Tale of the Great Dismal Swamp, Henry David Thoreau’s Slavery in Massachusetts, and Resistance to Civil Government, and Melville’s Billy Budd to name only several of the most obvious examples, all had important things to say about law. In some pretty cool ways, Stowe engaged in debate with lawyers and judges.

It seems as though the literature that critiques the present system is often on the left of the political spectrum. That supporting it is on the right. This is not surprising. As Emerson said in his much-overlooked lecture on “The Conservative,” the reformers are able to indict the present system easily. The defenders of the present system have in some ways a hard time. Though defenders of the present system also have the benefit of a known and well-tried system. In a lot of ways it’s easier for them to defend what is known and what is (mostly) working.

It’s hard to have compelling fictional literature that says, “hey, the present system’s awesome!” That’s one reason why proslavery fiction of the 1850s was so uniformly lousy. But isn’t it also hard to have legal literature that critiques the present system and replaces it with another, better system? I wonder if part of the problem with left-leaning scholarship is that while it’s possible to critique, it’s extremely hard to articulate a complete vision of what a reconstructed legal system ought to look like.

And perhaps those supporting the system (or offering minor modifications of it) are better able to produce scholarship that influences or engages the system, rather than those who offer wholesale critiques.