Recent Submissions

  • The University in the Mirror of Justices

    Sitze, Adam (2022)
    In its 1915 Declaration of Principles on Academic Freedom and Tenure, the American Association of University Professors (AAUP) set forth a limited analogy between the professoriate and the judiciary. The purpose of this article is to explore this analogy’s genesis, basis, implications, and limits. Its claim is that the judicial analogy deserves renewed attention and consideration in the contemporary debate over the future of academic freedom.
  • Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism

    Handelsman Shugerman, Jed (2022)
    The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The structure of their historical comparison is flawed: the Constitution explicitly limits many royal powers, such war, peace (treaties), and the veto, so that the President is weaker than the king, but they still infer from Article II other unnamed “executive powers” (like removal) that would make a President stronger than a king.
  • Resisting Renoviction and Displacement Through Cultural Land Trusts: Art and Performance Spaces, Pop-Ups, DIYs, and Protest Raves in Vancouver

    Ross, Sara (2022)
    This Article draws on ethnographic fieldwork to explore the use of cultural land trusts as local urban resistance to the displacement of arts and culture spaces in Vancouver. Cultural land trusts shift power back to relationally marginalized and displaced communities whose voices frequently fail to figure equitably within decision-making processes affecting their urban landscape. Cultural land trusts draw on the community land trust and community ownership structure with the goal of preserving affordable access to land and space for arts and culture in the city. As previously marginalized portions of the city space are “retaken” by a city, areas that have provided affordable performance, rehearsal, and live/work spaces for the arts sector are becoming less available. Their absence threatens the economic and cultural potential of art and the physical dimensions necessary for the sustainability of urban art and culture.
  • Legal Principles, Law, and Tradition

    Jiménez, Felipe (2022)
    Legal reasoning and legal discourse take place within historical traditions that develop over time. Law is characterized by the authoritative presence of those historical traditions. This observation vindicates the basic positivist insight that law is ultimately grounded in social facts. These social facts include the history of the legal tradition, the work and shared understanding of legal scholars, and the moral reasoning of legal participants—all of which have been mistakenly left aside by many legal positivists and their usual focus on coercive institutions. I use the Hart-Dworkin debate as a starting point for reclaiming the notion of law as a historically grounded practice. The Hart-Dworkin debate highlights that philosophical reflection about law becomes impoverished without history. A closer look at history shows that both Dworkin and Hart were partially right. As Dworkin argued, law is not only a matter of purely source-based legal rules, but also incorporates principles with weight and a less straightforward connection to social facts. However, the ubiquity of legal principles and their operation show that a socially grounded conception of law, as the one defended by le al positivism, is entirely consistent with the existence of legal principles.
  • Judicial Solidarity?

    Farbman, Daniel (2022)
    We are living in a moment where open and principled resistance to law and legal order are a part of our daily lives. Whether in support of Black Lives Matter or in opposition to mask mandates, people are in the streets resisting. Over the last decade, the perception of the fixity of our legal order has eroded and so, too, has the stability of our consensus that legality and morality are aligned. In this moment, the visibility and viability of resistance to law and civil government through social movements have surged. With the increasing salience of civil resistance resurfaces an old question: can (and should) judges seek to stand in solidarity with movements engaging in civil resistance? The classic answers to this question take two forms. Judges should either enforce the law and punish the civil resister, or, if they cannot do so in good conscience, they should resign. These answers position the judge outside of and aloof from the political and social struggles that the resisters represent. It follows from this aloof position that judges cannot be in solidarity with civil resistance aimed at legal change in their official capacity. This Article questions the stability of the mainstream conclusion. By focusing my attention on judicial responses to civil resistance against the Fugitive Slave Law of 1850, I return to one of the most influential sources of our collective sense of judicial capacity for political resistance. Through my own original archival research, I revisit Robert Cover’s conclusions about judicial timidity in Justice Accused. Against extensive evidence confirming Cover’s bleak view, I expose and examine one judge’s contrary argument. That judge, Ebenezer Rockwood Hoar, was a neighbor and friend of Henry David Thoreau, and he wrote in conversation with, not against, the strident views of the famous advocate of civil disobedience. Hoar proposed that a judge in sympathy with civil resistance should enforce the law in order to effectuate the power of the resistance. He argued that making Thoreau’s theory of change work required sympathetic judges to enforce the law to expose its injustice. From this colloquy between judge and activist, I draw the beginnings of a counter- narrative of how judges may strive towards (if not achieve) solidarity with resistance movements. Judges, like any other institutional actor, have the capacity and perhaps the obligation to be strategic about how they act within and against the social movements that find their ways into their courtrooms.
  • Interpretation and Judgment

    Greenawalt, Kent (2013-05-08)
    The major conclusions in Georgia Warnke's illuminating Essay, Law, Hermeneutics, and Public Debate are persuasive, but some that appear almost self-evident instead rest on controversial evaluative judgments. Many of my comments deal with these complexities, drawing from her book on interpretation and political theory as well as her Essay. Other remarks develop subjects Warnke barely touches. My thoughts are, thus, some combination of clarification, supplementation, and disagreement. My initial effort is to refine in just what senses interpretations of texts, social practices, and legal rules must speak to our concerns. I next explore how interpretations of legal texts that are applied in the present and are backed by coercive force differ from portrayals of literature; then I inquire how these differences bear on strategies of interpretation. I endorse Warnke's rejection of a jurisprudence that focuses exclusively on original meaning, but I argue that this rejection cannot be grounded in general hermeneutic theory standing alone. Crucial moral and political judgments have to be made about allocating public functions. I then turn to Professor Warnke's analysis of debate over great constitutional issues. I emphasize the multiple levels of legal analysis of a subject like abortion. The terms of public debate usually connect to the terms of legal analysis, but these forms of discourse are not identical. Relatedly, interpretation of relevant legal texts will not always track broader interpretations of social meaning. I next consider Professor Warnke's account of legitimate constitutional interpretation. I question some of her conclusions about illegitimate interpretations, and raise doubts about how far the two criteria she offers for legitimate interpretation apply to legal interpretation. Finally, I address the theme that there may be something like "the nature of the thing," and offer brief suggestions about how a hermeneutic approach to interpretation like Warnke's may fit with belief in natural law.
  • Reply to Greenawalt

    Warnke, Georgia (2013-05-08)
    Professor Greenawalt's perceptive Essay raises at least four issues: the issue of what he calls modernization, the issue of standards of interpretation, the distinction between discourse within the law and public debate over social values, and the question of the compatibility of hermeneutics and natural law. I would like to look briefly at each of these issues in turn.
  • Law, Hermeneutics, and Public Debate

    Warnke, Georgia (2013-05-08)
    For Hans-Georg Gadamer, the task of any historical hermeneutics is "to consider the tension that exists between the identity of the common object and the changing situation in which it must be understood." With regard to legal hermeneutics this task issues from the circumstance that "[a] law does not exist in order to be understood historically, but to be concretized in its legal validity by being interpreted .... [T]he text ... if it is to be understood properly - i.e., according to the claim it makes - must be understood at every moment, in every concrete situation, in a new and different way." Gadamer concludes that this combination of identity and change is the sense to be given to Aristotle's conception of natural law. On the one hand, the idea of natural law indicates that "despite all the variety of moral ideas in the most different times and peoples ... there is still something like the nature of the thing." On the other hand, "the nature of the thing" does not determine an unvarying content that is the same as a fire that "burns everywhere in the same way, whether in Greece or in Persia." In this Essay, I want to consider this claim not by considering natural law directly but by looking at certain of our current debates over the meaning of universal principles we think are embedded in the U.S. Constitution. I shall begin by underlining what I take to be relevant aspects of Gadamer's hermeneutics and then turn to disputes, such as those over abortion and affirmative action, that seem to divide Americans' understanding of constitutional principles in increasingly bitter ways.
  • Building Community in Sarastro's Dungeon

    Weisbrod, Carol (2013-05-08)
    David Damrosch, We Scholars: Changing the Culture of the University. Cambridge: Harvard University Press, 1995. Pp. 225. $32.50 We have various images of the life of the scholar. One is suggested by Wordsworth's description of a statue of Newton: "The marble index of a mind for ever / Voyaging through strange seas of Thought, alone." Another image is less noble, as Jaroslav Pelikan has recently reminded us, though no less isolated. Dr. Causabon, the infinitely disappointing husband of George Eliot's Dorothea Brooke, is a scholar hard at work on a pointless inquiry, independently and forever. In his recent book, We Scholars: Changing the Culture of the University, David Damrosch, Professor of English and Comparative Literature at Columbia, intends to propose a "new model of the scholarly community and of its relation to society at large." In so doing, he adds two unusual figures to our set of scholarly images, Tamino and Papageno. Tamino and Papageno are Mozart's seekers after truth in the Magic Flute, in a setting described by Professor Damrosch as Sarastro's dungeon. In effect, these two can be seen as the contemporary graduate student and the contemporary academic, seeking enlightment not alone in an ivory tower, but in the silent depths and isolation of a separated community. We Scholars is a "secular sermon," polemical while still tentative. Its basic point is that what is called the academic community should become a real community. Damrosch's goal is not to argue against the values represented by the traditional academic, individualist model but to argue against the monopoly presently exercised by the association of isolation and research. Professor Damrosch has a wide circle of friends. They include people from varied disciplines. He also knows people outside the university. His friends and colleagues appear throughout the book, adding their perspectives and comments to his account. Finally, they testify to his point and show Damrosch as an embodiment of his thesis.
  • The Lawyer of Belmont

    Yoshino, Kenji (2013-05-08)
    Another article on The Merchant of Venice? Richard Weisberg has thought the play capable of sustaining even such hyperbole as this: "Perhaps no text except the Bible and the United States Constitution has so implicated audiences in fierce struggles for dominance and control." Within the legal commentary alone, an entire law-and-literature symposium has been devoted to the play, while academics find the play appropriate as a paradigm for such disparate topics as international commerce, bribes, and gender bias in moot courts. Legal scholarship has paid the work perhaps its highest compliment in speculating that the play transcends the boundaries of "the literary" to have an effect on judicial outcomes. All these commentaries share the play's focus on Portia, its cross-dressing, silver-tongued, lawyering heroine. That Portia has become a paradigm for thinking about the way in which lawyers should act is underscored by the generic use of the word "Portia" to refer to a female lawyer, although the epithet has been used in both a negative and positive sense. Indeed, part of Portia's continued vitality may arise from the fact that encrypted within the strong consensus about her importance lies an equally intense disagreement about how her role is to be interpreted. When analyzed as a character, Portia has been called both the most and least attractive of the Shakespearean heroines. Why is Portia such a crucial and overdetermined character for so many commentators, and for so many legal commentators in particular? Why has so much ink been spilled, with such vehemence and even vitriol, over what is in the end a fictive character in a play written in the late sixteenth century? My answer first invokes the framework outlined in Michael Walzer's Spheres of Justice. In that work, Walzer argues that (1) human activity is properly divided into distinct spheres (such as money, kinship, and work), and that much of what makes us define acts as improper arises from our perception that the integrity of a given sphere has been violated, (2) great power inheres in the role of defining the boundaries of the spheres, because the manner in which these boundaries are defined in turn determines whether an act is improper, and (3) we properly distrust those who occupy that role, because they have both motive and opportunity to deploy that power to their own advantage. I then argue that this framework, when applied to The Merchant of Venice, explains our obsession with Portia. First, I note that, as Alice Benston has indicated, the play presents itself as a parade of binaries - among others love/money; law/equity; appearance/reality; male/female; heterosexual/homosexual; alien/citizen; Jew/Christian; Venice/Belmont; cognition/paranoia; public/private - that may be seen as a sequence of paired and conflicting spheres of activity. Much of what makes The Merchant of Venice "the most scandalously problematic of Shakespeare's plays" rests on the violation of one of these spheres by a value that more properly belongs to the sphere to which it is contrasted. Second, by focusing on two of these binaries-money/love and law/equity - I show the great power that Portia wields in delineating the boundaries of these spheres. Indeed, it is only Portia's persuasiveness that preserves the play as a comedy for its main protagonists. Third, I argue that while we view Portia's virtuosity in defining these boundaries with admiration, we also view it with anxiety. We may challenge both the means she employs to draw these lines and the ultimate determination of where these lines lie.
  • The Political Economy of Racial Discourse

    Banks, R. (2013-05-08)
    Harlon L. Dalton, Racial Healing: Confronting the Fear Between Blacks and Whites. New York: Doubleday, 1995. Pp. 246. $22.50. Much of contemporary legal scholarship expresses a narrative impulse. Eschewing the traditional norms and forms of legal scholarship, many professors have turned to storytelling to capture issues not easily elucidated through more conventional approaches. Although the narrative approach has recently come to prominence through the writings of critical feminist and critical race theory scholars, the use of narrative in legal scholarship is not a recent development. Intellectuals and writers both within and without the academy have recently produced a significant amount of personal writing about race that parallels and sometimes overlaps the legal storytelling movement. This writing ranges from personal essays, to memoirs, to full autobiographies. Black law professors, in particular, have recently published personal writings about race intended for a broader audience than that of traditional legal scholarship. Racial Healing: Confronting the Fear Between Blacks and Whites reflects both recent legal scholarship's narrative impulse and the turn toward personal writing about race. Racial Healing is a personal book about the public issue of race. Professor Dalton blends personal experience and social analysis and switches frequently between first and third person. Rejecting a narrow focus on discrete legal or political controversies, Dalton's wide-ranging discussion illustrates the breadth of issues implicated by what Dalton characterizes as the "deep and abiding wound [of race, which] [i]f left untreated ... will continue to ooze and fester."
  • Epistolary Justice: The Love Letter as Law

    Goodrich, Peter (2013-05-08)
    In a striking biographical depiction of her contemporaries, first published in 1659 under the title Divers portraits, Madame de Montpensier describes a "kind of Republic" of learned women within the French monarchical state. That Republic of erudite or illustrious women, known collectively as les précieuses, constitutes one of the last flowerings of the literary tradition of women's courts and the jurisdiction of love. The précieuses can be depicted best as a short-lived radical movement of separatist women who endeavoured to found and govern an oppositional feminine public sphere within the patristic autarchy of the civil society of their time. Most dramatically, they reconstituted the tradition of courts and judgments of love, both the legislation and the casuistry of amorous relationship, as determinants of the rules of a feminine public sphere. Administered by women, judged by ethical norms and enforced in aesthetic and poetic as well as political terms, the laws of this feminine public space took the form of a literary and specifically epistolary justice. The love letter was the trope of writ or law in the courts of love and it was in the form of letters, through correspondence, that the précieuses would map the most profound domain of human relations or interactions, that of the heart or of the carte de tendre. The response both of their contemporaries and of more recent legal history to the oppositional laws and courts of love, to this jurisdiction of dissent, has been dismissive. The précieusesand their litany of radical challenges both to the form and to the substance of the masculine polity posed too great a threat to the social norm to be valued by their contemporaries or transmitted by legal historicism as part of the tradition of law. The feminine Republic of letters, the casuistic norms and the amorous missives of the courts of love were not delivered or, more optimistically, have yet to arrive. The notion of women taking over a portion of public space was dramatically dismissed as ridiculous by the précieuses' contemporaries and as amusing diversion or dangerous fantasy by later historians. The reasons for such denial or repression are relatively obvious: The courts were administered by women, their law was explicitly oppositional, their norms aesthetic, their substantive doctrine developed out of literary pretention, and their politics utopian or revolutionary. Furthermore, the object of their regulation, the affectivity of relationship and of amorous exchange, belonged to a patriarchally governed private sphere. It was and still is deemed laughable to treat the imaginary domain of love or the intensivity of relation as a subject of law, or as a dimension of political space. In consequence, the notion of a feminine public sphere which would adjudicate and facilitate the space of relationships, the space in between lovers and friends, women and men, must remain part of a negative history of law, a history of repressed jurisdictions, failed doctrines, or minor jurisprudences. For this reason I will recapitulate briefly the positive context or the reality of the précieuses and of their laws.
  • Another Abraham: Jewishness and the Law of the Father

    Boyarin, Jonathan (2013-05-08)
    "It is an extremely painful thing," writes Kafka, "to be ruled by laws that one does not know." Equally terrible, as so many of his tales remind us, is to submit onself to laws that contradict one another. The modern European liberal ideal of autonomy - the command from outside to be rulers of ourselves-is perhaps the most imperious and terrible such command we know. Nevertheless that ideal has taken hold to such an extent that it often seems a veritable given of natural law. Still, even an entrenched ideal of autonomy cannot dispense with the inevitability of received authority-that is, of a law beyond self-regulation. Within a theory of identity and rights governed by the ideal of autonomy, received authority is inherently problematic; law, so to speak, is illegitimate. The allusion to questionable filiation in our vernacular use of the word "illegitimate" is indeed germane here. For in psychoanalysis, the oxymoronic notion of illegitimate law, a central modern theory of identity, is traced through a notion of patriarchy, "the Law of the Father." What is seen as illegitimate in patriarchy is its forceful imposition upon weaker children (the theory in fact speaks only of sons), while the authoritative power of law is seen as grounded in guilt at the sons' rebellion against the Father. In perhaps the most common version of Western liberalism's foundation story, the institution of patriarchy is tied to the religion of the Old Testament. This Article examines the common notion of a shared source and a privileged historical relationship linking Jewish monotheism, patriarchy as a social institution, and the legal systems of modern Western states. I claim that modern critical identifications of ancient Israelite religion as the source of patriarchal repression actually reflect the ideological dilemma of an impossible ideal of individual autonomy. Furthermore, there are fundamental differences between understandings of the nexus among ancestry, text, and subject in Jewishness and in Protestant modernity. While the psychoanalytic notion of "the law of the Father" points toward the centrality of this nexus, it offers a progressivist and supersessionist account that effectively privileges Christianity.
  • Max Weber and Jürgen Habermas: The Sociology and Philosophy of Law During Crises of the State

    McCormick, John (2013-05-08)
    The English-speaking intellectual world has eagerly awaited the translation of Faktizität und Geltung, Jürgen Habermas's magnum opus of legal and state theory, since its German publication in 1992. Anticipation has run particularly high with respect to Habermas's attempts to (1) definitively mediate his influential system-lifeworld thesis of modernity through the institution of law; (2) translate his social-philosophical theory of communicative ethics into the terms of political and legal theory; and, perhaps most ambitiously, (3) overcome the opposition between purely empirical and strictly normative approaches to modern societies, particularly the treatment of law in such analyses. I will argue here that in order fully to understand Habermas's theoretical efforts in Between Facts and Norms one must take into account the legal-sociological framework that he inherits from Max Weber. This is by no means a purely intellectual or cultural inheritance, for Weber's sociology of law played a crucial role in the historical drama that was the collapse of Germany's first effort at liberal and social democracy: the Weimar Republic. It is the ghost of this failure that has haunted virtually all of Habermas's theoretical endeavors, no less Between Facts and Norms - perhaps even especially therein because of the centrality of law to its framework.
  • The Good, the Bad, and the Ironic: Two Views on Law and Literature

    Rockwood, Bruce (2013-05-08)
    Daniel J. Kornstein, Kill All the Lawyers? Shakespeare's Legal Appeal. Princeton: Princeton University Press, 1994. Pp. xvii, 274. $24.95. Ian Ward, Law and Literature: Possibilities and Perspectives. Cambridge and New York: Cambridge University Press, 1995. Pp. xi, 264. $49.95. The law and literature project continues to expand in two directions. First, some scholars pursue the detailed study of specific texts and authors for the light they shed on the nature of law and its impact on our lives. Second, some engage in the systematic introspection required for the application of critical theory - to both fiction about legal issues and to the interpretation of legal texts as a form of literature - in an attempt to make a place for the law and literature movement within, or as a continuation of, modern and postmodern intellectual history.' Daniel Kornstein's Kill All the Lawyers? reflects the first trend, and Ian Ward's collection of essays, Law and Literature, combines both approaches, seeking to frame its textual analysis within an overview of several schools of critical theory. Each approach has its strengths and weaknesses, and while each of these excellent new books contributes to the development of the field, each also shows the limitations of an analysis that puts too much emphasis on a single approach. The "good" in the title of this Review reflects their focus on classical and modern texts that demonstrate to lawyers and lay readers alike how well literature and literary theory can illuminate the place of law in society. What is arguably "bad" is Kornstein's inability to focus on a few major themes, leaving the reader overwhelmed by detail, and Ward's recurrent reliance on tightly summarized theoretical arguments of others, overburdening the reader anxious to get to the heart of the literary text and its implications for our understanding of law. The "ironic" can be seen in many of the characterizations of lawyers and the law in both books - starting with Kornstein's title and including Ward's detailed discussion of Johnathan Swift's view of the law - and in the narrative methods deployed in the texts they examine. Irony is also apparent in Ward's clearly expressed doubts about the point of all the theory he has so thoroughly explicated.
  • "Even a Worm Will Turn at Last": Rape Reform in Late Nineteenth-Century America

    Larson, Jane (2013-05-08)
    This Article describes the late nineteenth-century campaign to raise the age of sexual consent as the first wave of anti-rape activism in the United States and a precursor of the modern rape reform movement. This account draws upon evidence from reform efforts in all the states and territories in the period 1885-1900, but focuses in particular on the successful effort to change the law in the District of Columbia. Age-of-consent reform strengthened the crime commonly referred to as "statutory rape," or heterosexual intercourse with an underage female with or without her consent. (At common law and in early American statutes, rape was an offense only against a female.) When agitation for reform of statutory rape law first began in the United States in 1885, the age of consent in most states was ten years. Ten years was the English common law rule adopted by most of the newly-formed United States and the District of Columbia. Four years later, in 1889, Congress revised the statutory age in the D.C. criminal code upwards to sixteen years, where it remains today. In like measure, throughout the country during the 1880s and 1890s, state and territorial legislatures significantly raised the age of consent. Today, all states criminalize statutory rape in some form and the age of consent in the majority of states is sixteen years. Credit for this sweeping and successful legal reform belongs to the Woman's Christian Temperance Union (WCTU). In the latter part of the nineteenth century, the WCTU was the largest women's organization in the nation, the first mass (as opposed to elite) political organization for women in American history. Suffrage leaders Susan B. Anthony and Ida Husted Harper described the organization as "the most perfectly organized body of women in existence," successful both in shaping public opinion and enacting legal reforms.
  • Natural Law and Birthright Citizenship in Calvin's Case (1608)

    Price, Polly (2013-05-08)
    Great empires and humble nations alike have made similar choices in determining who will be citizens. The world's nations emphasize one or the other of only two methods for determining citizenship at birth. Most nations assign citizenship at birth according to the citizenship of at least one of the parents. A few nations, including the United States, assign citizenship on the circumstance of place of birth-within the territorial boundaries of the nation-regardless of the citizenship of the parents. While the United States also permits the children of its citizens born abroad to be considered U.S. citizens from birth, the predominant mode of birthright citizenship in this country, and the only one grounded in the Constitution, is that which bestows citizenship upon anyone born on United States soil. The roots of United States conceptions of birthright citizenship lie deep in England's medieval past. This Article explores Calvin's Case (1608) and the early modern common-law mind that first articulated a theoretical basis for territorial birthright citizenship. Involving al the important English judges of the day, Calvin's Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered "subjects" in England. Calvin's Casedetermined that all persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King. A person born within the King's dominion owed allegiance to the sovereign and in turn was entitled to the King's protection. Calvin's Case is the earliest, most influential theoretical articulation by an English court of what came to be the common-law rule that a person's status was vested at birth, and based upon place of birth. In the view of Sir Edward Coke, one of the judges deciding Calvin's Case, the court's determination was required by the divine law of nature, which was "indeed ... the eternal law of the Creator" and "part of the law of England."
  • Female Juvenile Delinquency and the Problem of Sexual Authority in America, 1945-1965

    Devlin, Rachel (2013-05-08)
    In the week of October 29, 1951, the pictures of three white, middle-class teenage girls from a suburb outside of Boston appeared in Time and Newsweek. Both magazines showed the girls smiling broadly while holding up lingerie, clothing, and pearls for the cameras, a cigarette dangling from each of their gloved hands. The place was a New York City police station and the pictures were taken while the girls, aged fifteen, sixteen, and seventeen, were being arraigned for theft, running away, and "immorality." According to the magazines, the girls had stolen $18,000 from a safe in the house of a family they were baby-sitting for, jumped on a bus, and headed for New York. "Ravenous for excitement," one reporter tells us, they first "engaged in a surrealistic shopping spree" and afterward went to several night clubs, picking up men and dropping outrageous tips to doormen and taxicab drivers along the way. Their plan had been to buy a car and drive to Mexico, but they were spotted outside their hotel by a detective carrying their description the next day. The girls "seemed unconcerned about their plight," and told the photographers to take some "real cheesecake pictures." Both magazines ended their stories with what was called the "curtain line of the week": As the flashbulbs went off, one of the girls admonished reporters, "Don't tell my father I've been smoking. He'd kill me if he knew." One of the great contradictions of the postwar period was that the relationship between fathers and daughters appeared increasingly strained even as the era of "family togetherness" progressed. James Gilbert has shown how concern about juvenile delinquency during the 1950s reflected the widespread apprehension that new forms of youth culture - including aggressive music, the dominance of working class fashions, the interest in "souped-up" cars - threatened traditional, middle-class social values. The female juvenile delinquent, however, posed a specific kind of challenge to America's postwar culture that has not been investigated by historians: She became a site for the expression of cultural anxiety about the authority of the family generally and of fathers specifically. In this Article, I argue that postwar depictions of female juvenile crime reflected and helped produce tensions concerning the appropriate nature of the relationship between fathers and adolescent daughters. This focus on father-daughter relationships held particular sway in a society where girlhood was increasingly marked by social and sexual precocity and where female juvenile crime was visibly on the rise.
  • The Dance of History

    Shannon, Christopher (2013-05-08)
    John Henry Schlegel, American Legal Realism and Empirical Social Science. Chapel Hill: University of North Carolina Press, 1995. Pp. xii, 418. $55.00 John Henry Schlegel has written a book that attempts to explain why law has not followed the path of other academic disciplines in adopting a natural-science model of empirical inquiry. He convincingly argues that by the time legal academics confronted empirical science in the guise of Legal Realism during the 1920's, American legal education had already undergone a kind of scientific revolution: the adoption in the late nineteenth century of the Langdellian caselaw method, a deductive approach that saw the law library as a sufficient "field" for legal research. This intellectual practice, and the professional identity that grew up around it, has made empirical research a "square wheel" in American legal education. Schlegel offers this contextual explanation for the marginality of Realism as "an invitation to open a discussion about what intellectual history... is and has become as this century closes" (260). Following Realism's own move from legal texts to social contexts, Schlegel insists that "rather than a history of ideas, intellectual history needs to be the history of intellectuals, people who do things with ideas" (5). In the spirit of this invitation, my Review focuses more on Schlegel's approach to Realism than on his account of it. Schlegel dismisses the history of ideas as "an essentially empty exercise," and calls on historians to give up "the dance of reason" in order to embrace "the whole dance of life" (4, 261). Schlegel's book, however, reveals this move from text to context to be nothing more than the dance of history, an essentially empty exercise in causal explanation. In this Essay, I examine Schlegel's book not only as an account of American Legal Realism, but also as a symptom of a fundamental structural incoherence in the conception of intellectual history as an academic discipline.
  • A Conversation Between Milner Ball and James Boyd White

    Ball, Milner; White, James (2013-05-08)
    The editors of the Journal invited me to review James Boyd White's Acts of Hope. In response I proposed inviting Professor White to join me in a conversation about his work. First the editors and then he accepted the proposal. Professor White and I agreed that we might call a halt to this experiment at any time because we would not subvert our friendship in the attempt to enact an instance of it in print. The editors accepted the risk that we might at last have no pages for them. - MSB

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