Latest on Universities and Slavery

The following originally published on The Faculty Lounge.

Loyola Law School Professor Yxta Maya Murray's article "From Here I Saw What Happened and I Cried: Carrie Mae Weems' Challenge to the Harvard Archive" has just appeared in volume 8 of Unbound: Harvard Journal of the Legal Left. It tells the really interesting story of a dispute between the artist Carrie Mae Weems and Harvard's Peabody museum over the use of photographs that Louis Agassiz took of enslaved people that he hoped would support the theory of poly-genesis that he embraced (along, I might note with Alabama's Josiah Nott). The article explores Agassiz' purpose in collecting the pictures, their re-discovering in the 1970s at Harvard, and the controversy over their use. While I usually emphasize Harvard's contributions to the anti-slavery cause, this story reminds us again of the connections between Harvard and racial thought in the pre-Civil War era.

Cribbing a little from the article:

In the same year as the enactment of the 1850 Fugitive Slave Act, Agassiz toured South Carolina plantations and decided to defend his polygenesist position by resuming his collecting habit. But this time he would collect live people, not animals, bones, or plants. For this purpose he enlisted Dr. Robert Gibbes, a Morton acolyte, who led Agassiz on a tour of the plantations. On this expedition Agassiz selected Delia, Jack, Renty, Drana, and others for their supposedly instructive appearances. He ordered Gibbes to "gather corroborative photographic evidence" of them, and then retreated to Harvard. Gibbes hired one J.T. Zealy to take nude pictures of them at Zealy's studio in the two attitudes that make up the series, being headshots and full body shots. The record of what happened to the pictures here dwindles. .... [T]he daguerreotypes fade from history until their discovery in the Peabody attic in 1976.

Agassiz would trigger Carrie Mae Weems' show, From Here I Saw What Happened. Weems found much to comment on with photo-metrists like Galton. ... Inspired by Georges Cuvier's 1815 dissection of Sarah Baartman, the original, doomed Hottentot Venus, Galton conducted his own infamous study of yet another "Venus." He encountered this second goddess on his journeys, and measured her every square inch with a sextant. In 1859, when his cousin, Charles Darwin, had published The Origin of Species, Galton's enthusiasm for measuring racial attributes merged with a conviction in White supremacy he felt was assured by Darwin's work. Back in Europe, Galton expanded on his practice of measuring people he believed resided on the lower reaches of the Great Chain of Being.

The Org: The Underlying Logic of the Office by Ray Fisman and Tim Sullivan

By Professor Jeffery Atik

It feels odd to be composing this review of Ray Fisman and Tim Sullivan's The Org in the days following Ronald Coase's passing. Coase was an unusually creative and influential thinker - one who identified some basic truths of organizational life that had not been generally recognized: the kind of simple things that, once pointed out, cannot fail to be seen.

Coase and the work that followed Coase form much of the subject matter of The Org, a book-length meditation by Ray Fisman and Tim Sullivan on the science of the organization. Indeed, Fisman and Sullivan launch the book with the story behind Coase's posing of the grand question: "Why orgs?" Young Coase travels to Chicago, meets with managers, and reads the Chicago phone book. He is struck by the range of scale and activities pursued by the firms he finds. Why then, asks Coase (and ask Fisman and Sullivan), are some activities conducted within firms and others between firms (that is, via the market)? Coase's answer (transaction costs) may or may not be correct ('transaction costs' always seemed to me to be a convenient label for a still elusive explanation, almost a tautology); what is important is the question.

Organizations are mysterious. We fit them on like suits of clothing - and instinctively know how to push and pull their levers. Fisman and Sullivan focus on what happens within the firm - how organizations compel human agents (because that's what we are) to pursue organizational goals. The resort to organization is by and large a given. At this point, they collect the principal/agent mysteries that form much of the challenge to understanding how firms work. Fisman and Sullivan do not confine themselves to business organizations in The Org - indeed their best coverage involves organizations that are not business firms: the Baltimore police department, Methodist churches and the military.

With Evidence, Balancing Coverage and Class Time

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

A comment by Frederick Moss to a prior post raised the important question of coverage in an Evidence course. Even for those with the luxury of 4 credit hours each week, there simply isn't enough class time to cover the material and accomplish all that might be accomplished in a law school course.  I'm happy to entertain thoughts on what content gets bumped when the clock is running out - burdens of proof; trial mechanics; the best evidence rule; authentication; scientific evidence. Personally, I haven't yet found room for a one-hour lesson on the limits of eyewitness testimony, which I would love to add to my course.

But coverage is not just a content issue. As the push for more practical training continues (a push I endorse), there is no reason for doctrinal courses to ignore practice skills. Indeed, in these leaner times, doctrinal courses may be the best place to insert practical training into the curriculum. And in my mind, the Evidence course is a perfect place for law school to include lawyering skills alongside the learning of fundamental doctrine. I'm trying to incorporate some skills mini-exercises throughout my course (such as in-role oral arguments in class, and short writing assignments akin to motions in limine), but making time for those requires bumping topics that I already decided couldn't get bumped.

The End of Power: From Boardrooms to Battlefields and Churches to States, Why Being in Charge Isn't What it Used to Be by Moisés Naím

By Professor Jeffery Atik

Moisés Naím sees the decline of power across many institutions. He is at times wistful, at times celebratory in his reaction to power's decay. But he isn't entirely clear why we should care about the passing of power. The powerful do care; Naím has many powerful friends who lament power's loss of magic. Popes, pols and pundits just don't get the respect their predecessors received; their authority is more circumscribed, more readily challenged (the same decline is noted by law professors). But for the greater number of us, who are in more settings objects of the power of others than detainers of power, the end of power is not a self-evident cause for concern.

A decline in social organization is a cause for concern - and to the degree the phenomena described in The End of Power signal a loss of capacity for coordination, Naím's book is more than an indulgence of ambivalent nostalgia. Naím is careful with his definition of power: power is the ability of some few - the powerful - to direct the actions of others. And, he asserts, there are four means by which power is exerted: muscle (force), code (tradition), pitch (persuasion), and reward (incentive).

Naím is a superachiever who has spent his life at or close to the top. He was a prominent politician in Venezuela - and since has become a heralded writer in the United States. As such, his personal prescription, given toward the end of The End of Power, is quite surprising. Get off the elevator, Naím urges. And by this he calls for an abandonment of mindless ambition and more; elevator thinking is the focus on rank and hierarchy, which promotes power as an end in itself.

Symposium: Aggregate Limits and the Fight over Frame

By Associate Professor Justin Levitt

The following essay is part of a SCOTUSBlog online symposium on McCutcheon v. Federal Election Commission.

Photographs purport to show objective facts. But whether they illuminate or distort our understanding of the world depends entirely on choices -- of lens, of frame -- that the photographer has made. Much of constitutional law is the same: the choice of lens and frame drives the Supreme Court's understanding of our rights and obligations. Without recognizing this truth, it is virtually impossible to understand the Court's campaign finance jurisprudence.

McCutcheon v. Federal Election Commission offers a dizzying fight over lens and frame. The briefs presented to the Court zoom from micro to macro and back, often within sentences of the same brief. The basic structure of the reason for the fight, at least, is clear. McCutcheon is about aggregate caps on contributions to federal candidates, party committees, and PACs that donate to candidates and parties. There are limits on what I can give to any individual federal candidate. And then there are limits on what I can give to all federal candidates, total. The same is true for parties and PACs. This case is about the totals.

From the flattest perspective, this case has already been decided. This case challenges aggregate limits. Buckley v. Valeo (1976), the progenitor of the modern campaign finance regime, upheld a system of aggregate limits. Easy. How to view aggregate limits
Much too easy. Buckley's 294 pages cover the entirety of the landmark Federal Election Campaign Act. It gave aggregate limits six sentences. Two of the six were devoted to describing the limits. One noted that the issue had "not been separately addressed at length by the parties." Three more disposed of the substance. This Court is unlikely to believe that its focus is confined by those three sentences. (Similarly, granting cert. to revisit these three sentences provides little reason to believe that the Court is interested in revisiting Buckley entirely.)
Another shallow lens simply looks to conventional wisdom, and the caricature of a relentlessly deregulatory Court. Citizens United looms, larger than life. Like Citizens United, the legislation challenged in McCutcheon also constrains campaign-related cash. And like Citizens United, the challenge has been brought in part by James Bopp, who has a remarkable record before the Court. Easy.

Treating America's Drug Use Outside the Prison System

By James Gilliam, Guest Alumni Blogger

Eric Holder's recent announcement at the American Bar Association's Annual Meeting that he is taking steps as Attorney General to tackle the bloated federal mass incarceration crisis comes at a crucial, and welcome, time. Indeed, preventing the use of the most severe federal drug penalties for people convicted of low-level drug offenses represents an important first step toward a fairer criminal justice system and will begin to curb the overcrowding issue that most every prison in the United States faces.

Now is the time for California -- a state the United States Supreme Court already ordered to reduce its prison population -- to follow Holder's lead. As in the rest of the nation, far too many people are locked up in California for far too long -- people we don't need to keep behind bars to ensure public safety. Rather than base our criminal justice system on knee-jerk, one-size-fits-all reactions like incarcerating people for offenses that could be better dealt with through substance abuse treatment, it is time for California to shift toward solutions that will create safety for California families and communities, while enabling those who have paid their debts to become productive citizens. There's no question that attempting to re-integrate into society is much easier to do without the lifelong barriers that follow a felony conviction, including obstacles to housing, employment, and even public support.

Of contributions and expenditures and the land in between

By Associate Professor Justin Levitt

This commentary was cross-posted to the Election Law Blog.

In the world of campaign finance, the constitutional distinction between contributions and expenditures has been one of the primary, comparatively stable, fault lines.  This has been true since at least since Buckley v. Valeo, the progenitor (and for some, original sin) of the modern campaign finance regime.  The Court has relatively consistently reviewed limits on most expenditures with greater scrutiny than limits on contributions. 

In the Supreme Court’s latest foray into campaign finance, the McCutcheon v. FEC case to be argued this fall, plaintiffs are arguing that the regulations in question blur the categories.  Those regulations impose aggregate limits on donations to federal candidates, parties, and PACs that give to candidates.  I may give no more than $5,200 to any individual federal candidate over a two-year campaign cycle.  In that same period, I may give no more than $48,600 to federal candidates, total.  McCutcheon is about the latter, total, limits.

The McCutcheon plaintiffs have argued that these aggregate limits are something of a hybrid, and ultimately more like expenditures than contributions.  Bob Bauer, here, also finds the distinction blurry, noting that the rules restrict “the total amount that a contributor can spend on contributions.”