Georgetown Law Faculty Blog

Book Chapter by Dan Ernst posted to SSRN and BePress

"The Ideal and the Actual in the State: Willard Hurst at the Board of Economic Warfare," a chapter in Total War and the Law: The American Home Front in World War II (Daniel R. Ernst & Victor Jew eds., Westport, Conn.: Praeger 2002), has been posted to SSRN and BePress:

Abstract:

Unlike other proteges of Felix Frankfurter in the 1930s, James Willard Hurst left his clerkship with Supreme Court Justice Louis Brandeis in 1937 not for law job in Washington but to teach at the University of Wisconsin Law School. Together with his dean Lloyd K. Garrison, Hurst developed “Law in Society,” a New Dealer’s first course in law, centered not on courts but administrative agencies. When the war came, Hurst had the chance to test out his notions of law and administration as a lawyer at the Board of Economic Warfare. Headed by Vice President Henry A. Wallace, the BEW was a bastion of New Dealism in an increasingly business-oriented war effort. Among other things, it was charged with developing and procuring new overseas supplies of war materiel to replace sources that had fallen into enemy hands. Hurst contributed one of the BEW’s most controversial measures, a provision in procurement contracts obliging employers to observe minimum labor standards. This attempt to fight “a New Deal war” by improving the lives of African and Latin American workers failed not long after Hurst’s departure for the U.S. Navy. Still, the affair elucidates much of Hurst’s pioneering scholarship on legal history and the legal profession in the postwar period.

New Book Chapters by Robin West posted to SSRN and BePress

Three forthcoming chapters by Robin West have been posted to BePress and SSRN:

"Ennobling Politics," in Law and Democracy in the Empire of Force (H. Jefferson Powell & James Boyd White eds., Ann Arbor, Mich.: Univ. of Michigan Press forthcoming) [SSRN BePress]:

The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we perhaps unwittingly tie our political morality to a form of decision making -- adjudication -- that must and likely should police against abuses of public power, just as it polices in the civil law sphere against abuses of private power. Constitutionalism and constitutional discourse cannot, so long as it is conducted through adjudicative channels, develop a body of principles conducive to the moral deployment of power, as opposed to challenging or bucking its misuse. One cost of this, relatively unreckoned even by our contemporary critics of judicial review, is the erosion of any conception of politics (rather than law) as being a potentially ennobling human practice.

"Sex, Law and Consent," in The Ethics of Consent: Theory and Practice (Alan Wertheimer & William Miller eds. forthcoming) [SSRN BePress]:

The article defends the now fairly conventional liberal reform position that consent ought to be the demarcation between rape and non-criminal sex, responding to both radical feminist and modern queer theoretic arguments that problematize it. It then criticizes liberal arguments that legitimize virtually all consensual sex, leaving all of it relatively insulated not only against criminalization but also against moral and political critique. Consensual sex can be wanted or unwanted, and when unwanted, it can be harmful in ways that cannot be recognized by liberal understandings of consensual sex. Lastly, the article defends this claim, again, against both radical feminist and queer theoretic critiques that for opposing reasons seek to undermine the distinction between unwanted and wanted consensual sex.

"Literature, Culture, and Law – at Duke University" in Teaching Law and Literature (Catherine Frank & Matthew Anderson eds., forthcoming) [SSRN BePress]:

The article compares programmatic questions from the Law and Literature movement from the 1970s to 1990s with more recent suggestions regarding the foundational questions for the Law and Culture movement. It argues that in both movements, but particularly the latter, scholars have focused on questions regarding the nature of law, culture, and interpretation, and neglected substantive jurisprudential claims regarding law sometimes found in literature and other cultural texts. It argues that this emphasis on theory over substance is unfortunate. To illustrate, the piece examines a false rape claim brought against some university athletes in Durham, North Carolina in the summer of 2006, and a novelistic depiction of sexual exploitation in Tom Wolfe's popular novel, I Am Charlotte Simmons. The novel was repeatedly invoked by commentators and bloggers when the charge was first made and widely believed, to make the case that the Duke campus was drenched in a culture tolerant of rape. The novel, then, might be sensibly understood as central to a cultural understanding of how this false rape charge was interpreted, and then came to be widely believed. Although true enough, the article argues that we miss something important, if we look at (and indict) Wolfe's novel only as a part of a cultural/legal explanation for a sex panic that resulted in a miscarriage of justice. We miss Wolfe's substantive, narrative account of sexual exploitation (not rape) and the harms, quite specific, that undesired, unwanted and unwelcome sex can occasion, on college campuses and elsewhere.

EPA's Unvarnished Advice on Climate

by Lisa Heinzerling

This afternoon, the Environmental Protection Agency is expected to release its much-anticipated "Advance Notice of Proposed Rulemaking" (ANPRM, in the lingo) discussing the potential for regulation of greenhouse gases under the Clean Air Act.  The Washington Post reported this morning that the White House ordered changes in the agency's draft ANPRM, with the effect of lowering the agency's estimates of the benefits of regulating greenhouse gases.

While we await publication of the White House-altered document, it is worth taking a moment to review EPA's unvarnished draft -- the ANPRM as it existed before the White House got its antiregulatory hands on it.

Reading the draft ANPRM (the version dated May 30), one is reminded why we have agencies in the first place.  The draft describes the science of climate change, the economics of climate change, and all of the nooks and crannies of the Clean Air Act that might be used to address this problem.  It is objective and levelheaded, yet also ambitious and creative.  Throughout the draft, EPA appears genuinely interested in seeking solutions to the problem of climate change rather than finding ways to avoid addressing it.  This Administration has done everything it can to hamstring EPA and to belittle its scientific and technical expertise (going so far as to refuse, childishly, to open an email sent to the White House in December, describing EPA's finding that greenhouse gases endanger us), yet somehow, EPA has soldiered on, producing a document that showcases the very expertise the White House has dismissed.  If nothing else -- and this is a lot -- EPA's draft ANPRM provides evidence that an eager and capable cadre of experts remains on duty at the agency.  The next Administration should take heart in this fact.

The draft ANPRM also contains good news from the perspective of climate regulation.  In the May 30 draft, EPA concludes -- specifically focusing on regulation of mobile sources -- that the benefits of regulating greenhouse gases are vastly greater than the costs.  According to EPA, regulation of mobile sources would produce $2 trillion in net benefits.  EPA even concludes that car owners will, over the lifetime of owning a car, save money if strict controls are put in place.  (This is because the regulations EPA has in mind would make cars more fuel efficient.)  This should come as good news to everyone, environmentalists and economists alike.

EPA produced this happy economic conclusion using manifestly reasonable assumptions.  First, the agency used fuel cost estimates reflecting the current (high) cost of oil.  Second, it included as benefits of greenhouse gas regulation the avoidance of adverse effects in other countries.  Droughts, heat waves, intense storms, rising sea levels, and the rest affect us here, even if they happen in other countries, both through the workings of the global economy and through our own concern for the welfare of the rest of the world.  Third, EPA did not "discount" the future effects of climate change as dramatically as it and other agencies sometimes have done.  Discounting is a technique used to reflect the idea that events occurring in the future are not as important as events occurring now.  By using a fairly low discount rate, EPA avoided the severe trivialization of the future that often attends use of discounting.

The draft ANPRM is not perfect, of course.  One notable shortcoming is its fixation on the effects of climate change on "welfare" rather than health.  Under the Clean Air Act, "welfare" is basically defined as everything good (effects on welfare include effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, climate, property, transportation, economic values, and personal comfort and well-being) except human health.  The draft ANPRM gestures toward, but does not emphasize, the effects of climate change on human health.  There appears to be no scientific basis for EPA's reticence.  Rather, the agency seemed anxious to try to avoid the more constraining legal requirements that flow from a finding of adverse effects on public health.

In context, however, this is a quibble.  The draft ANPRM lays out the scientific basis for finding that greenhouse gases pass the "endangerment" threshold of the Clean Air Act.  It describes the economic grounds for believing that regulation of greenhouse gases will produce enormous net benefits.  And it provides a legal road map for the next Administration to follow when -- hope springs eternal -- EPA finally is freed up to do the job Congress has assigned it to do, which is to protect human health and the environment.

Vice-President Cheney has famously defended this Administration's insistence on secrecy by saying that secrecy is necessary to allow executive officials to provide "unvarnished" advice to the President.  EPA's draft ANPRM provided just such candid advice. Yet, as the Post this morning revealed, the White House couldn't handle the truth.

History in the Blogging

In June I was guest blogger over at Legal History Blog, created and maintained by Mary L. Dudziak, the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science, University of Southern California.  I decided to use the opportunity as a kind of diary of my academic activities since the end of classes. Here is a digest with links to the more substantial posts.

I attended two conferences in May.  Early in the month I commented as a "dream mentor" at a "Fellows Conference" of the Miller Center of Public Affairs at the University of Virginia.  The fellow in question was Jefferson Decker, a doctoral candidate in the history department at Columbia University, who has been studying the rise of the conservative legal movement.  The comment provided an occasion for reviewing other recent work on the subject, including a book by the political scientist Steven Teles.  My post and a link to a webcast of Decker's paper and my comment are at "Conservative Legal Movement: Take Two."

Later in the month I attended the Policy History Conference held near St. Louis, Missouri.  Although I chaired an interesting panel on administrative law and agencies in the Twentieth-Century United States, I ended up blogging on a session on the political economy of antebellum America, which included two papers on the Warehousing Act of 1846--the most attention the legislation had received, one panelist ventured, since it was originally before the House Ways and Means Committee.  My report on the session and the turn to transnationalism by nineteenth-century policy historians is at "Warehouses: Who Knew?"

I spent some of the month revising my course on American Legal History.  Two posts addressed questions that came up in my class and how I resolved them.  One, "Hughes at Elmira," was the seeming contradiction that Charles Evans Hughes took as governor of New York and Chief Justice of the United States on the question of judicial review of agency fact finding.  The other, "Bureaucracy for Law Students," discussed how to help my students imagine life within a public bureaucracy.

Other posts were new or revised notes and documents from my course materials. Two discussed corporation lawyers in the early twentieth century: "Stone versus Swaine" and "James Dill: Corporation Law without Regret."  "Jerome Frank Hires Some Lawyers" was a three-part series on the conflict that ensued when Jerome Frank tried to bring the same hiring practices of large New York City law firms to the Agricultural Adjustment Act at the start of the New Deal.  The three linked posts start here.  And  "An OPA Lawyer Has His Doubts" was a two-part post on the reaction of a lawyer in a field office of the Office of Price Administration to the flood of regulations issuing out of the agency's headquarters in Washington.  It begins here.

In the middle of June, with the support of a grant from Georgetown's Reynolds Family Faculty Research Fund), I traveled to several libraries for my on-going research on the history of New Deal lawyers.  Several posts were on documents I wasn't likely to use in my own work but which were too interesting to keep to myself.  "Jerold Auerbach Interviews Louis Jaffe" describes a sharp exchange between a historian-critic of the New Deal lawyers and one of their number, the great administrative law scholar Louis Jaffe. "Felix Frankfurter and the Revolving Door" describes some previously unremarked-upon correspondence in which Frankfurter, as a young lawyer, was advised by one of his Harvard law professors not to tarry too long in public service. "Legal Realism and International Law, 1938" described a quarrel between two leading legal realists, Jerome Frank and Felix Cohen, over whether the United States was obligated under international law to lift its embargo of arms to the combatants in the Spanish Civil War.

A few posts can only be termed miscellaneous.  In "Documents in Search of Historians," I drew attention to two collections in Georgetown's Edward Bennett Williams Library, the National Equal Justice Library and the papers of the federal judge Oliver Gasch.  (This one was picked up on by the blog of the American Historian Association, so maybe we'll get some takers.)  In "Who Will Write the History of the Women's Court?" I put on my hat as co-editor of Studies in Legal History, a book series of the University of North Carolina Press, sponsored by the American Society for Legal History, and explained why I thought the women's court deserved historical study at book length.

Finally, I led a discussion on the nineteenth-century labor case In re Debs at an institute for high school teachers at the Federal Judicial Center, sponsored by the Center and the Public Education Division of the American Bar Association.  The experience led me to reflect on how a "great case" can provide a distorted view of the typical case in a given field, and this led to the post, "Teaching the Great Case."