Exorcise the Confederacy!

It’s time to wrap up and conclude this blog series on “Beyond the Confederate Narrative.” For context, recall the article’s argument as described in prior posts. The Confederate narrative started out as a state-power justification for slavery and then transformed into a Reconstruction-defeating jurisprudence (Part 1 ; Part 2), This narrative was influential yet always contested.Justice Harlan’s Civil Rights Cases dissent articulated a contrary “People’s narrative” (Part 3) and this doctrinal tradition helped shape the debate in key 1950s-60s era civil rights cases (Part 4). Today, this final Part will proceed by identifying the ghosts of the Confederate narrative that remain in Court’s civil rights and federalism doctrine. We conclude with a call for a doctrinal exorcism.


The Confederate Narrative 1997-2015

The map above sketches out our basic argument regarding modern doctrine. (As usual, click the map for full-sized image with links to underlying cases). Four contemporary Court majority decisions — City of Boerne (1997), Morrison (2000), NFIB (2012), and Shelby County (2013) — directly descend from cases like  Harris (1883) and the Civil Rights Cases (1883). In addition, Chief Justice Roberts’ dissent in Obergefell (2015) also falls within this tradition. All these opinions embrace a Confederate narrative by articulating a contestable understanding of the Constitution. These opinions all embrace the proposition that the States’ sovereign power severely limits the federal power to protect civil rights under the Reconstruction Amendments.

This map presents a deliberately limited sketch rather than an exhaustive survey. It shows a loose network of conceptually related cases all advancing a consistent perspective on federalism, civil rights, and the meaning of of Reconstruction. Justice Kennedy’s majority opinion in City of Boerne typifies this perspective. His opinion undertook a highly questionable reading of the 14th Amendment’s ratification history to justify the conclusion that the Enforcement Clause is remedial rather than substantive.

In Morrison, Chief Justice Rehnquist elaborates on this perspective. His majority opinion explicitly cites Harris and the Civil Rights Cases as justification for limiting Congressional power to prevent violence against women. Rehnquist considered this interpretation necessary “to prevent the Fourteenth Amendment from obliterating the Framers’ carefully crafted balance of power between the States and the National Government.”

Finally, Chief Justice Roberts’ opinions in NFIB v. Sebelius,  Shelby County, and Obergefell incarnate the latest expression of this narrative. Collectively, Roberts’ opinions advocate an ideal of “equal sovereignty” for States. This ideal effectively deprives the federal government of power under the Reconstruction Amendments. The power deprived is the to enforce human rights like the rights to vote, marry or receive health care.

Of course, we recognize that not all on the Court agreed with the opinions we criticize in City of Boerne, Morrison, NFIB, Shelby County, and Obergefell. Yet we lament the contrary opinions in those cases as lost opportunities. This is because these opinions tragically failed to invoke the People’s narrative. Though on the right side of history (in our view), these competing opinions missed the opportunity to explain how and why the Reconstruction Amendments actually expanded the federal government’s constitutional power to enforce human rights. They failed to invoke Justice Harlan’s Civil Rights Cases dissent or Senator Pool’s defense of the 1870 Force Act, for example.

Yet Harlan’s dissent and Pool’s defense should be invoked.Those treasure troves of analysis should not sit idle in the pages of the US Reports; they beg for re-reading and exposition. Ultimately then, the bottom line of our argument is that a true understanding of human rights and dignity require us to rediscover lost treasures such as these and reclaim the People’s perspective on Reconstruction and its Amendments.

Readers interested in the fine details of this argument can read our entire article. Meanwhile, our genealogical project is ongoing and we would love to engage with scholars and activists keen on such conversation. Together perhaps we can reawaken the People’s narrative from its doctrinal slumber and move beyond the Confederate narrative.


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Enacting Citizenship and Enforcing Rights

As legendary civil rights activist Bob Moses often reports, the sit-in demonstrators, freedom riders and voting rights activists of the 1950s and 60s enacted a freedom that they understood to be their birthright. Speaking in the voice of a Movement activist, Moses teaches that “We, as People of the United States claimed with our bodies the rights to occupy public space as civic equals and to be counted in the political process.”

This performance of citizenship brought Movement activists into conflict with both state and private actors who refused to recognize the equality of African Americans. Such conflicts often resulted in legal actions that pulled the Supreme Court into the heated national debate over civil rights and raised key questions about the appropriate reach of federal power. In our article “Beyond the Confederate Narrative” we analyze two kinds of claims that the Movement called upon the Supreme Court to adjudicate two kinds of claims-  “enforcement” and “enactment”. (For visual summary of our analysis about how this civil rights debate played out post-Reconstruction, see part 1, part 2, and part 3 of this blog series).

In “enforcement” cases, the Federal government attempted to prosecute individuals for acts of domestic terrorism against civil rights advocates. The Court considered challenges to these federal prosecutions based on the ground that the national government had improperly usurped the States’ police power to prosecute private violence. On the other hand the “enactment” cases concerned prosecutions against Movement activists who broke state laws or customs by inhabiting public spaces on an integrated basis or attempting to diversify local political processes. In these cases, the Court heard challenges to prosecutions on the ground that activists could not be punished for exercising their national constitutional rights.

Cases in both the enforcement and enactment category tested the boundaries of the national government’s power to define and protect its People’s rights. Each case was a contest of state and federal power, with states claiming supremacy in the realm of policing human behavior and the national government claiming supremacy as a guardian of human rights. We present two maps that illustrate the most important cases that in this line.


Enforcing and Enacting 1883-1964

In the map above, the enforcement cases are Screws (1945) and Williams (1951). Although neither of these cases actually concerned violence against civil rights activists, they both involved federal prosecutions against state law enforcement officers for violations of civil rights. Local cops had acted brutally and violently and local authorities had refused to prosecute their actions as crimes. In the Court, justices debated the limits of state versus federal power in a manner that perfectly captures the dialectic between Confederate and People’s narratives. The debate in Screws and Williams subsequently framed how the conversation turned when true Movement cases finally arrived at the Court.

Three key enactment cases — Garner (1961), Peterson (1962), and Bell (1963) — are also shown in this map. All three cases invalidated convictions of protestors trying to integrate state facilities. Although the result was pro-civil rights in each case, it was in the dissenting or concurring opinions of Justice Douglas in particular that announced the most progressive vision of federal power’s right to confront state apartheid. (Readers interested in the fascinating details of the cases can click on the map above to link directly to the underlying opinions via Casetext.)


Price and Guest in Context – 1871-1967

This second map focuses attention on two critical and too-often overlooked enforcement cases — Price and Guest. Decided on the same day in 1966, Price concerned federal prosecutions of those accused for the murders of James Cheney, Robert Goodman and Michael Schwerner while Guest concerned prosecutions against the accused murderers of Lemuel Penn, an African American army reservist. The map highlights vital role that then-Solicitor General Thurgood Marshall played in introducing key Reconstruction legislative history into federalism doctrine — Senator Robert Pool’s statement regarding the 1871 KKK Act. Of course, it was the language from this Act that provided the basis for federal prosecutions.

This map thus demonstrates the importance of the non-Confederate understanding of Reconstruction to justify federal prosecutions of private actors for civil rights violations. Thurgood Marshall grasped this understanding from his pioneering civil rights work and his careful study of history. Though our article, we seek to recollect and reclaim the tradition Marshall embraced then. Our maps chart the lineage and progression of this tradition in Court doctrine. Next time, I will finish up this blog series by examining with one final map. This last map will turn from history to more contemporary Court doctrine in order to advance the argument that the Confederate narrative still haunts our civil rights jurisprudence.

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Dissent and the Confederate Narrative

As Professor Anna Roberts noted in a popular recent tweet, 1Ls often ask why they read concurrences and dissents. An answer, Prof. Roberts suggested, can be found in this quote from our article “Beyond the Confederate Narrative“:

History has repeatedly shown that brooding in concurrence or dissent can eventually help correct constitutional understandings. Our highest Court has held that states could bar women from the practice of law and that people of African descent were commodities to be bought and sold rather than people in the constitutional sense of “We the People. . . .” It has denied that Jim Crow segregation was a method of subordination and therefore unlawful. It has held that gay and lesbian lovemaking could properly be punished as crime. It has approved the sterilization of persons presumed to be unfit to populate our nation with their progeny and sanctioned the execution of children. The constitutional understandings that led to these results have been challenged and revised. In each case, the challenges were foreshadowed and the revisions modeled by “bubblings-up” in dissents or measured concurrences.

In today’s post about our article (prior posts in this series are here and here), we look at a map of the origins of a vital dissenting tradition that stands in opposition to the Confederate narrative of state power. We call this alternate tradition “the People’s narrative” and hope that its wisdom will eventually prevail just as the wisdom of prior dissents decrying our most infamous constitutional misunderstandings eventually prevailed.


Map 3

As shown in Map 3 above, the first champion of the People’s narrative tradition was the first Justice John Marshall Harlan. (Click on the image above to get a full-sized image with links to Casetext). Although the Court as a whole reached good results in Strauder (1879) and Neal (1880) by striking down statutes that overtly discriminated against African Americans in jury service, the majority opinions justified their results on very narrow grounds without discussing the deeper meaning of the Reconstruction Amendments. Yet Justice Harlan did expound on that vital deeper meaning when writing in dissent.

Many are already familiar with Harlan’s dissent in Plessy v. Ferguson since it was vindicated 58 year later by Brown v. Board of Education which finally overruled Plessy‘s “separate but equal” doctrine. Unfortunately, Harlan’s dissents in the Civil Rights Cases and Hodges are not nearly as well known. Yet we argue that these dissents are just as important and prescient. They should be read and studied because, in those dissents, Justice Harlan recognized that Reconstruction created a new fundamental right of civil freedom inhering in American citizenship. This understanding, if taken seriously and debated in doctrine, could defeat the ghosts of the Confederate narrative still haunting the Court’s civil rights jurisprudence.

In my next post, I’ll examine how Justice Harlan’s analysis was taken up and extended by some advocates and even some Court justices in during the 1960s civil rights era. Stay tuned!

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Reconstruction’s Rise and Demise

Now that Constitution Day is out of the way, I return to my serialized consideration of our recently SSRN-posted article entitled “Beyond the Confederate Narrative.” In the first post of this series, I introduced a map that visually summarized the Article’s essential argument — that contemporary civil-rights jurisprudence remains haunted by a Confederate narrative of state power that survived the Civil War. Today I want to zoom in and consider two maps that look at the Reconstruction period in more detail.


Map 1

Map 1 above puts Congressional Reconstruction into its historic context. (Click on image to see full-sized map with links to underlying events/legislation). It was a very busy period in terms of legislation: three Amendments and four major Civil Rights Acts were ratified/passed in a single decade. Of course, it was also an extraordinary period period politically with Lincoln’s assassination, Johnson’s impeachment, and then the contested Hayes-Tilden election which led to the 1877 Compromise ending Reconstruction.

A few comments about this particular map are in order. First, this map is to chronological scale — the distance between points on the X axis is proportional. I did this to emphasize the frenzy of activity over such a short period. Second,  since there are no Supreme Court cases on this map, the Y-axis on this map has no significance. The Y-axis layout is driven purely by visual considerations. Finally, note that the historic context points represented as pink circles link back to WikiPedia entries. This was a conscious choice — despite its many haters, I actually love WikiPedia. And I love WikiPedia because : (a) it is surprisingly accurate; (b) if not accurate, users have the ability to correct and/or add cites; and (c) I found all the particular entries linked to acceptable.


Map 2

Map 2 visually summarizes our claim that the Supreme Court helped usher in the demise of Reconstruction. It did this by adopting a Confederate narrative of federalism that effectively restored the 1787 constitutional order. We know this claim is controversial, especially in light of recent scholarship by folks like Pamela Brandwein. However, as we state in the article:

Whether one abides by the conventional notion that the Supreme Court was hostile to equal citizenship and human rights for blacks or accedes to the revisionist scholarship of a Court sympathetic to the cause of Reconstruction, the fact remains that the Court’s Reconstruction era jurisprudence did establish three key principles that have had a profound impact on our understanding of the federal government’s role in articulating and protecting the people’s civil rights. First, the Court was reluctant to interpret the Reconstruction Amendments as a reconstruction rather than a narrow reform and restoration of the 1789 constitutional order. Second, the Court appeared unwilling to admit that this restored (rather than reconstructed) constitutional order carved out for the federal government an entirely new role vis-à-vis the states in defining and protecting civil and human rights. And last but not least, even in cases involving horrific anti civil rights terrorism, the Court regularly denied relief to civil rights proponents or granted relief on the basis of technicalities rather than on acknowledgements of federal power.

The cases linked to above — Blyew (1871), Slaughterhouse (1873), Reese (1876), Cruikshank (1876), Harris (1883), the Civil Rights Cases (1883) and Hodges (1906) provide the proof the three propositions asserted.

Whether folks agree or disagree with our readings of the cases, the map provides a novel way to foster discussion. Each Supreme Court case cited is linked to the opinion on Casetext, a fantastic new platform for crowd-sourcing legal research. Cases on Casetext can be linked to commentary and specific sentences or paragraph can be commented upon. It thus provides an extraordinary wiki-like platform to analyze text.

Though Casetext seems primarily targeted at practicing lawyers, I think the platform can also be of great use to scholars studying legal history. To test this theory, I have linked every Supreme Court case on every map in “Beyond the Confederate Narrative” back to Casetext and encourage folks who are interested in these cases to make their own comments and link their own scholarship using the platform. Perhaps it will be possible for us to literally locate our disagreement in interpretations at the level of sentence or paragraph in these profoundly important cases…


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A Constitution Day Proposal

By law, schools that receive federal funding celebrate Constitution Day on September 17. While our Constitution deserves a day, September 17 may be a poor choice. For that date commemorates the signing of the 1787 constitution, a document profoundly stained by compromises to preserve slavery. Because of those 1787 compromises, our nation suffered human bondage and then bled in a terrible war. We need not celebrate the un-amended text of that defective constitution. We propose an alternative.

Frederick Douglas addressed an audience in 1852 about a different national date – July 4. When Douglass asked “What to the Slave is the Fourth of July?”, he decried the gap between the Declaration of Independence’s soaring rhetoric and the reality of chattel slavery. Although the 1787 text distinguished between “free Persons” and those who counted as three fifths, and although it required that escaped slaves be “delivered up on claim” of slaveholders, Douglass urged Americans to aspire to the Declaration’s revolutionary promise of equality and inalienable rights. He urged us to reject any interpretation of the Constitution that was inconsistent with the nation’s overriding commitment to human freedom.

The flawed document of 1887 no longer rules us. We can now proudly celebrate the reconstructed Constitution. In 1987 the great Justice Thurgood Marshall critiqued bicentennial celebrations of the 1787 date, saying: “While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality.” When we interpret – or celebrate — today’s praiseworthy Constitution, we should look not only to the nobler commitments of the original Founders, but also to Reconstruction’s promise of a nation that is uncompromisingly respectful of human dignity.

Following Douglass and Marshall, we thus propose a different day to honor our Constitution – February 3. On that date in 1870, our nation ratified the last of the Civil War Amendments. That date symbolizes our commitment to reconstruct the Founders’ immoral compromise and place under national protection the inalienable rights of all the nation’s people.

The Critical Narratives Project

Peggy Cooper Davis

Aderson Francois

Colin Starger

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Confederate Flags and Confederate Narratives

Like many others, I cheered when South Carolina finally lowered the Confederate Flag from its capitol grounds last July. Though activists had been calling for the flag’s removal for most of the 54 years that it flew, their call was not finally acted upon until after the terrible June 17 massacre at Emanuel African Methodist Episcopal Church. Now that the flag no longer flies, we might ask: “Has Confederate ideology finally been defeated?”

In a paper entitled “Beyond the Confederate Narrative”, Peggy Cooper Davis, Aderson Francois and I answer that question with a loud “No!”. We argue that a Confederate narrative continues to haunt the Supreme Court’s civil rights jurisprudence. This narrative has its origins as a state-power justification for the right to engage in human chattel slavery. In our article, we show how the Confederate narrative about federalism survived the Civil War and Reconstruction and then protected Jim Crow and other forms of human subordination. Although beaten back during the civil rights movements of 1960s, the Confederate narrative survived in doctrine and has reemerged to help defeat claims that certain fundamental human rights are federally guaranteed and federally enforceable.

Since our argument proceeds from a thorough reading of Supreme Court cases and relevant historical documents and commentary, it is admittedly long and heavily footnoted. However, the basic arc of the argument is summarized in a serious of interactive doctrinal maps. (For the uninitiated, instructions on how to read these maps are here.) Over the next couple of posts, I’ll examine these maps.

To start, consider this top-level map that shows the basic sweep of the entire argument. (As usual, click to open the full-sized image a separate window).


Summary Dialectic

Although the map covers the entire period from the end of the Civil War until 2015, the focus is really on three discrete sub-periods of Court doctrine: (1) Reconstruction cases from Blyew (1871) to Hodges (1906); (2) civil-rights era-cases from Screws (1945) to Price and Guest (decided on the same day in 1966); and (3) modern cases from Boerne (1997) to Obergefell (2015). Within these sub-periods, the focus in on cases that dealt with the balance of state versus federal power to enforce civil rights.

The cases embracing the Confederate narrative, as we see it, are shown in red. The map thus suggests that modern cases like the majority decisions in Shelby County (2013) and Morrison (2000) are linked ideologically and doctrinally to Reconstruction-eviscerating cases like Cruikshank (1876) and the Civil Rights Cases (1883). Some may find this claim of genealogical connection outrageous; others will see it as obvious. Either way, I’ll eloborate on the basis for our claim in forthcoming posts by looking at the three periods outlined above in more detail. Stay tuned!


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Doctrinal War in Ohio v. Clark

All nine Justices of the Supreme Court voted the same way in last Term’s much-anticipated Confrontation Clause decision, Ohio v. Clark. All agreed that the admission at trial of an out-of-court statement made by a 3 year-old to his teacher identifying his abuser did not violate the Sixth Amendment rights of the accused. However unanimous the vote for outcome, the Clark court was deeply divided on the justification for this result. Indeed, Clark stands as latest salvo in longstanding doctrinal war over the meaning of the Confrontation Clause and the reach of the Crawford line of cases. In this post, I map out the lineage of this bitter war’s competing sides.

To understand the battle lines, recall first that Crawford was decided in 2004 and it overruled a 1980 case called Ohio v. Roberts. Justice Scalia wrote Crawford and he has jealously guarded Crawford‘s doctrinal development ever since. Justice Alito, a former prosecutor, wrote the majority opinion in Clark. In his separate Clark concurrence, Scalia pointedly rejects Alito’s reasoning:

The opinion asserts that future defendants, and future Confrontation Clause majorities, must provide “evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding.” This dictum gets the burden precisely backwards—which is of course precisely the idea. Defendants may invoke their Confrontation Clause rights once they have established that the state seeks to introduce testimonial evidence against them in a criminal case without unavailability of the witness and a previous opportunity to cross-examine. The burden is upon the prosecutor who seeks to introduce evidence over this bar to prove a long-established practice of introducing specific kinds of evidence, such as dying declarations [] for which cross-examination was not typically necessary.

Revealingly, Scalia then continues:

A suspicious mind (or even one that is merely not naïve) might regard this distortion as the first step in an attempt to smuggle longstanding hearsay exceptions back into the Confrontation Clause—in other words, an attempt to return to Ohio v. Roberts. But the good news is that there are evidently not the votes to return to that halcyon era for prosecutors; and that dicta, even calculated dicta, are nothing but dicta. They are enough, however, combined with the peculiar phenomenon of a Supreme Court opinion’s aggressive hostility to precedent that it purports to be applying, to prevent my joining the writing for the Court.

Here Scalia transparently accuses Alito the prosecutor of trying to subvert Crawford and reinstate the deposed rule of Ohio v. Roberts. And Scalia is quite right to make this accusation.

As I’ve previously written, Crawford doctrine has had its bashers since at least 2008’s Giles v. California. Although the Crawford-bashing school remained in dissent in Giles and 2009’s Melendez-Diaz v. Massachusetts, the insurgency captured a majority in 2011’s Michigan v. Bryant (over Scalia’s dissent) and now again in Clark. This basic story is visualized in Map 1 below (click on map — and all maps in this post — to open full-sized image with links to opinions in Casetext).


Map 1

In Map 1, the “Scalia line” asserting a robust Confrontation Clause vision is pictured in green while the “bashing line” is in red. Arrows pointing up indicate opinions where the author concluded the Sixth Amendment was violated, whereas downward-pointing arrows represent arrows where the author concluded no violation occurred. The number of votes any opinion received is represented by its position on the Y axis.

While Map 1 presents a simplified picture of the main competing lines since Crawford, it would be wholly inaccurate to suggest that Crawford marks the beginning of the doctrinal war. As mentioned, Crawford overruled Roberts and the overruling campaign took over two decades to succeed. Map 2 provides a glimpse at the longer dialectic.

Map 2

In Map 2, we see Crawford‘s ancestral line pictured in lime green while the deposed Ohio v. Roberts line is represented in magenta. Dotted lines connecting opinions on the map indicate implied connections rather than direct citations. The map suggests a continuity between Alito’s majority opinion in Clark and Justice Blackmun’s majority opinion in Roberts 35 years ago.

Crawford‘s ancestry is fascinating. Scalia was not yet on the Court when Roberts was decided in 1980. He had joined by the time Kentucky v. Stincer was decided in 1987. Interestingly, Scalia joined the majority in that case (opinion again written by Blackmun). Justice Marshall dissented in Stincer and was joined by Brennan and Stevens. Then Scalia apparently had a change of heart. In 1988’s Coy v. Iowa, Scalia wrote the majority opinion. He was joined by Brennan, White, Marshall, Stevens. The old guard dissented — O’Connor wrote with Blackmun and Rehnquist joining. Remarkably, Scalia cited Marshall’s Stincer dissent in his majority opinion. This signaled the beginning of a beautiful relationship. From then on, Scalia, Brennan, Marshall, and Stevens became best of friends in the Confrontation Clause arena.

Consider Maryland v. Craig, decided in 1990. Those four strange bedfellows (Scalia, Brennan, Marshall, and Stevens) all dissented. Scalia writing for his new gang. And the doctrinal war was on in earnest. The old guard saw O’Connor pen the majority opinion joined by her comrades Rehnquist, White, Blackmun and Kennedy. The plot thickened even more in 1992’s White v. Illinois. At this juncture, the old guard still retained control. Though Chief Justice Rehnquist authored the White majority opinion, newcomer and upstart Clarence Thomas issued a prescient separate concurrence. Thomas presented an originalist theory of the Confrontation Clause and Justice Scalia joined him.

Change was in the air. By the time Lilly v. Virginia was decided in 1999, the Court was fractured. The lead opinion was written by Justice Stevens and only got four votes. More importantly, Justice Rehnquist’s concurrence only garnered O’Connor and Kennedy’s votes. Scalia and Thomas both separately concurred proclaiming their allegiance to the vision set down in Thomas’ White concurrence. Then the revolution happened in Crawford. Chief Justice Rehnquist wrote separately to say that he disapproved of overruling Roberts. Though O’Connor joined him, the old guard was clearly deposed. Blackmun and White had left. Kennedy had waffled. And so a new era was ushered in.

Now, of course, the pendulum may be swinging back towards the old era. Scalia is clearly worried in Clark that Alito is trying to reinstate the deposed Ohio v. Roberts line to the doctrinal throne. Only Ginsburg is solidly aligned with Scalia at the moment. Only time will tell if Alito’s campaign will win the necessary votes.

Readers interested in taking a deeper dive can to explore the opinions in detail. Hopefully, the maps can help readers navigate the complex doctrine while Casetext can provide a way for folks to annotate and muse about meaning. Before signing off, however, I want to present one final map. It is Map 3 below.

Map 3

Map 3 is the same as Map 2 except that it adds in Justice Thomas’ post-Crawford opinions. Although many might find Thomas’ solo efforts quixotic, I have previously suggested that he has often played the swing-vote role in this area. Moreover, as shown above, Thomas’ concurrence in White exerted a an important influence on the doctrine’s development. Love him or hate him, the man deserves some props. And sometimes it is the quietly consistent voices that can take command of a doctrine and shape its destiny.



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Social Research for Social Justice: A Free Law Project

This is the third is a series of posts considering whether academics committed to social justice in theory need to work socially in practice. Last time, I reflected on my early experiences with the online casebook platform ChartaCourse and concluded it provided an innovative way to engage in “social teaching.” Today I’ll turn to “social research” and discuss an exciting ongoing collaboration with the Free Law Project. As I hope to show, this collaboration arcs toward social justice and (not coincidentally) depends on collective action.

First, some background. As regular readers know, I am the principal investigator for the Supreme Court Mapping Project, a software driven-initiative that creates visualizations of SCOTUS doctrine. From its inception, the Project has been collaborative. Doctrinal maps are created using custom software (“the Mapper”) engineered by my good friend and co-conspirator Darren Kumasawa. After I published work featuring maps, I realized that others shared my interest in doctrinal cartography. Thus, I soon had the privilege of working with Prof. Scott Dodson of UC Hastings to make a map-based video about the Court’s pleadings decisions. Then I got the join forces with the University of Baltimore’s excellent law library staff to build a custom map library and put it on the web.

This all helped to spread the word about the SCOTUS Mapping Project, but it failed to accomplish one key task — let folks easily create doctrinal maps on their own. The problem is that the Mapper software is a desktop app with quirky user interface. (Darren and I designed the original mapper with me as the sole intended user.) And a desktop app with a quirky UI is not designed for large-scale distribution.

All of that is about to change. I am happy to announce that the SCOTUS Mapping Project has joined forces with Free Law Project to create an online version of the Mapping software that will be hosted on the CourtListener website. The new web-based application is under construction now under the leadership of the Free Law Project’s Chief Technology Officer and resident computer genius Mike Lissner. Of course, Mike is also collaborating with other great folks to make the project fly. We hope to have a version of the new web app ready for folks to play with by 2016.


Social justice informs this collaboration at its deepest level. As its name suggests, the Free Law Project (FLP)  is committed to providing free access to primary legal materials and to sophisticated legal research tools. The idea is to provide a platform for folks to find the law they need without forking over hefty sums to big providers like Lexis and Westlaw. The FLP is also committed to making all of their software open source and providing useful APIs so that the technically inclined can improve, tweak, or change the underlying software as they please. The radical openness of the platform insists on putting people before profits and community before competition.

Now as anyone who was worked on such projects before can testify, simply announcing a commitment to free and open source materials doesn’t automatically result in good software. It requires hard work and collective action. To that end, our team has regular meetings where we talk about big-picture design as well as little-picture details. We disagree and hash out differences. There is give and take. I mention all this because this part of the process is important. It puts the social in our efforts towards social justice. And this highlights the reality that when the time comes to release the new online version of the Mapper, we’ll depend on YOU to help us make it better. Come be social with us!

** Addendum: After publishing this post, I realized that I may have left readers with the misimpression that the Mapper desktop app is being replaced by the new web app. Far from it. Although I described the desktop app’s UI as “quirky,” that is only because it is loaded with features that permit users to create highly sophisticated and customized maps. Indeed, the desktop app rocks hard thanks to Darren’s tireless and butt-kicking efforts. The SCOTUS Mapping Project will therefore continue to support the desktop app for those “advanced users” who want to take their doctrinal mapping to the next level. If that describes you, please contact me and we’ll get you your own copy of the desktop app.

Next Time: More Social Research for Social Justice — Collaborating with Casetext



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Social Justice by Social Teaching?

In my last post, I asked whether academics committed to social justice need to practice social teaching, social learning, and social scholarship. Answering “yes” based on intuition alone, I promised to report on my own fledgling academic collaborations and reflect on their potential as part of a social justice praxis. Today I’ll discuss my initial experience using a social teaching platform called ChartaCourse.

ChartaCourse is basically an online lawschool casebook system. This system is organized around a concept-mapping principle, which is implemented using an elegant visual design. Courses are broken up into concepts and sub-concepts (and sub-sub-concepts, etc). To see what the interface looks like, take a peek at this snapshot from my Civil Procedure Chart:

Screen Shot 2015-08-10 at 1.44.28 PM

Since the system is built on top of WordPress, any professor adopting the course can easily customize and add to the “base chart” provided by ChartaCourse. For anyone who has blogged before, navigating the “back end” interface is pretty easy.

I consider my experiment with ChartaCourse as one in “social teaching” for two basic reasons.

First, ChartaCourse is a start-up company and adopting its product means you play in the start-up world. This is an inherently collaborative undertaking. It’s also fun because Mark Edwards,  William Mitchell prof and ChartaCourse’s CEO, is a fun guy who has assembled an excellent team. As I’ve worked with his team to iron out hiccups and to iron in new features for my own Civ Pro course, I have felt far less isolated than I normally do while prepping. Down the line, the idea is to create a community of adopters who share their individual innovations with the larger collective.

Second, ChartaCourse encourages social and interactive student learning. The visual layout allows students to dynamically navigate between idea forests and trees while mark-up features permit students to annotate course materials and take their own notes. There are practice problems and customizable “guideposts” which lead students through rule-based decision trees in a TurboTax-like fashion. The very nature of the platform encourages professors to break-up their often dense materials into manageable and interconnected chunks. Though I haven’t yet had the opportunity to use ChartaCourse in the classroom — the semester starts next week! — I have a feeling that students will relate to this kind of networked course book better than they do to the usual tomes.

So how does this connect to social justice?

Here it’s primarily about saving students money. A ChartaCourse subscription costs $49 per course — significantly less than the ordinary casebooks, which usually run students upwards of $150 per volume. Admittedly, this isn’t social justice in the full-throated radical sense. ChartaCourse isn’t throwing molotov cocktails at the Establishment. Yet even though ChartaCourse is for profit, it is far from greedy and that alone is pretty radical given the norms of the otherwise cutthroat industry.


As the graph above shows, educational book publishers have been squeezing students dry for the last couple of decades. ChartaCourse is hoping to bring a little more sanity and fairness to that market. That aspiration combined with a pedagogically sound dedication to innovation makes the ChartaCourse venture count as social-justice inspired in my book.

After a few weeks of teaching Civ Pro, I’ll report back here on my experiences. For now, I’m happy to be part of this collaborative social teaching experiment.

Next time: Social Justice and Access to Law: Open-Source, CourtListener, and SCOTUS Network Mapping.

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On Being Social

It’s been a few months since In Progress has featured new content. What can I say? My last post was April 14, two days after police arrested Freddie Gray on the 1700 block of Presbury Street here in Baltimore. Somehow musing about doctrinal maps under construction suddenly seemed less than urgent. In the weeks after my last post, Gray died from his police-induced injuries, simmering protests boiled over, Baltimore rose up and then authorities cracked down. The situation was — and is — both inspiring and awful.

Though things are certainly quieter around these parts nowadays, nobody believes that the conditions underlying the uprising have meaningfully changed. Quite the contrary. However, the respite in daily protests and activist actions gives us a moment to pause and reflect. Personally, I have been wondering just what “social justice” means to me as a law professor and scholar. Is social justice an object of study — one to be examined with academic detachment? Or is social justice more of a process and practice — a praxis through which the very notion of academic detachment is challenged?

My strong hunch is that social justice is a praxis. My intuition tells me that you can’t really understand social justice without being social. Social justice requires social research, social teaching, and social learning. Though I have no data to prove it, my hunch leads me to wonder whether researchers and professors interested in social justice really should collaborate more. As in, collaborate all the time.

Now I realize this realization is neither new nor nuanced. It also is a little worrying. Anyone who has ever sat through a faculty meeting or a committee meeting or almost any kind of academic meeting knows that professors don’t often play well with others. Law professors are a particularly ornery breed and so the prospect of collaborating with these creatures should give any sane person pause. Yet still I can’t escape the feeling that WE all need to be doing more TOGETHER if we want to teach and learn about social justice.

To that end, I’ve spent the last few months trying to be social. Turns out I’m not so great at it.  (No surprise there alas given my professed profession). Nonetheless, I’ve taken some baby steps and am now part of a small handful of of projects involving collaborative teaching, research and learning. The projects don’t follow a blueprint or 10-point plan; they are more free-form social experiments. All the projects are very much in progress. Since that is the name and spirit of this blog, it seems only fit that I report on these collaborative efforts on these e-pages over the next few days. Stay tuned.

Next time: Social teaching and ChartaCourse.

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