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Abstract:
The release of the 2007 US News rankings of law schools has set off another round of speculation on the meanings of the rankings and what, if anything, schools can do to improve the quality of the education they provide, as well as their rankings. Drawing upon earlier evidence that there is a close connection between the citation rankings of law reviews and the ranking of their law schools, this paper looks to changes in both the US News rankings and law journal rankings over the past few years. Moreover, there is a connection, though relatively weak, between law reviews that are improving and law schools that are improving. This paper tests and finds some support for a hypothesis that as law schools improve (or decline), there is a corresponding improvement in the quality of their main law journals (as measured by citations in other journals). Thus, if you want to know where a law school is heading, in addition to the glossy material that the school sends out - to announce new hires, student successes, faculty publications, and talks sponsored by the school - one should spend some time studying the scholarship their law review publishes. A final table ranks the main law journals of 178 ABA accredited law schools, according to journal citations.

Abstract:
Much recent scholarship has focused on the US News rankings and other ranking systems; other scholarship has focused on citations of law journals. This paper combines those two areas. It explores the connections between US News rankings (particularly the peer assessment scores) and citations of schools' main law reviews by journals and by courts. There are high correlations between the US News peer assessment scores and citations of main law reviews by journals for the US News top 50 schools. For comparison purposes, the paper also looks to Brian Leiter's rankings and finds a similar correlation. However, the strength of the correlations decrease for US News third and fourth tier schools. There is a weaker correlation between US News peer assessment scores and court citations across all US News tiers. The paper considers some of the implications of the correlations for law school rankings and suggests that, perhaps, future rankings should include citations as a factor in assessing the quality of law schools. One table illustrates how differently the third and fourth tiers of US News would look if law review citations were the basis for ranking law schools. A final table provides a ranking of law reviews based on journal citations.

law review, rankings, U.S. News, Leiter, Law Schools, Legal Education

Abstract:
Recent research details the close connections between a school's US News rankings and citations to a school's main law journal. This brief essay builds on that research. Drawing upon John Doyle's database at Washington and Lee Law School, it looks to the 100 most-cited secondary student-edited law journals, with the goal of seeing the connections between well-cited secondary journals and school ranking. A final table provides a ranking of the most-cited secondary journals.

law review rankings, law school rankings

Abstract:
Descendants of people buried in cemeteries on private property have a common law right to access that property to visit the cemetery. That right, which is akin to an implied easement in gross, is recognized by statute in about a quarter of states and by case law in many others. Grave Matters explores the origins, nature, and scope of the little-recognized right and its implications for property theory. It discusses the right as part of well-established property doctrine and its relationship to recent takings cases, as well as the corollary graveyard right against desecration and the correlative right of communities to relocate cemeteries.

The right of access, which traces its roots to the early the nineteenth-century, is important because it is one of the few implied rights of access to private property. It limits, by implication, the right to exclude, which is at the core of property rights. Thus, it offers a way of getting access to property without facing a takings claim. Moreover, the right is important because it reminds us that there are limits of the right of exclusion, which were recognized at common law. The right of relocation further illustrates the careful balancing of property rights with the community's right. Thus, the graveyard rights together emerge as vestiges of the nineteenth-century's consideration of community and property. A final section suggests the importance of the right of access for recent discussion about reparations for the era of slavery, for the right of access provides a property right (an easement) in descendants of slaves buried on plantations to access those plantations. The property held by descendants provides important symbolic connections between the past and present and offers hope of a lawsuit for reparations that is not barred by the statute of limitations.

property, cemetery, implied easements, background principles of property law, reparations

Abstract:
Now that reparations talk is being taken seriously, it is time to address reparations plans more fully. After discussing why reparations talk has become popular, the paper turns to conceptual problems associated with claims for reparations for slavery: whether courts are the appropriate place to look and whether American law is even equipped to deal with such claims. It addresses three problems in particular: the use of unjust enrichment analogies in reparations talk; the constitutionality of race-based remedies, such as reparations; and the types of remedies for harms where the most directly affected people are no longer alive. A final section places reparations talk into the context of the cultural war over redistribution of property on the basis of race.

reparations, slavery, unjust enrichment, affimative action, Jim Crow, riots

Abstract:
"The Cultural War Over Reparations" maps the differences in perspectives on reparations between supporters and skeptics. It asks why there is a difference in support for reparations among blacks and whites. What is it about reparations that makes them so controversial? It then assesses the goals of reparationists, such as apologies and truth commissions, accounting for past wrongs, and addressing those wrongs through programs of community empowerment. Then it turns to the reparations skeptics' arguments. There are four key groups of arguments against reparations: There is no moral or legal liability; compensation has already been made; reparations are unworkable or not politically practicable; and reparations are divisive, which is at the center of the cultural war. The essay suggests that there may be further accounting of past injustices, but that compensation is, perhaps, unattainable, at least in the near term.

Reparations, slavery, Jim Crow, culture war

Abstract:
There are two ways of viewing tort law in the debate over reparations for racial crimes. First - and most commonly - tort law is seen as a way of providing relief through courts. So Reparations Talk begins by exploring the requirements for lawsuits for reparations for slavery and for the Jim Crow era. It suggests some instances where lawsuits might be appropriate, such as riots, lynchings, and segregated libraries, and limited cases involving slavery. Tort doctrine also offers, however, a way of framing discussions of moral culpability. Reparations Talk, thus, moves beyond lawsuits to discuss some ways that tort law and unjust enrichment doctrine might be used to think about issues in reparations, such as how should claims by descendants of slaves be evaluated? How do we treat issues of causation across generations? It suggests several damages formulas as starting points for contemplating legislative reparations. Reparations talk concludes that, although it may be difficult to compute the exact amount of harm or to figure out where current generations would be without the crimes of slavery and Jim Crow, that discussion of reparations may benefit from the clarity that contemporary legal doctrine can bring to the subject, even as we struggle to define the precise goals of reparations.

reparations, slavery, Jim Crow, unjust enrichment

Abstract:
This brief essay reports a study of citations to every article published in 1992 in thirteen leading law journals. It uses citations as a proxy (an admittedly poor one) of article quality and then compares the citations across journals. There are, not surprisingly, vast differences in number of citations per article. While articles in the most elite journals receive more citations on average than the less elite (but still highly regarded) other journals studied, some articles in the less elite journals are more heavily cited than many articles in even the most elite journals. In keeping with studies in other disciplines and other citation studies of legal journals, the results here suggest that we should we wary of judgments about quality based on place of publication. We should also be wary of judgments about quality of scholarship based on number of citations and we should, therefore, continue to evaluate scholarship through close reads of it.

law review, citations

Abstract:
Eric Posner's and Adrian Vermeule's essay, Reparations for Slavery and Other Historic Injustices, seeks a framework for defining reparations and evaluating reparations claims. It explores a limited set of past reparations, as well as the connections between those asked to pay reparations and past wrongdoers, and the connections between those receiving reparations and those injured in the past. Posner and Vermeule use that framework to evaluate the morality of reparations and the legal problems that arise in implementing reparations proposals.

This Essay takes up the Posner-Vermeule analysis at several points. It challenges their limited definition of reparations and their limited catalog of reparations in American history. In contrast to Posner and Vermeule, who date the origin of reparations action in the United States to 1946, this Essay presents a series of legislative reparations throughout American history. Using that historical evidence and a legislative model of reparations, the Essay proposes a relaxation of the relationship between wrongdoer and payer, and injured and recipient. Then it suggests several factors for a legislature to consider in designing reparations for historical injustice. This Essay, thereby, proposes an alternative framework for evaluating the morality and utility of reparations.

reparations, slavery, Jim Crow

Abstract:
This paper combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families, and especially how male testators were suspicious of loss of their family's wealth through their daughters' marriages. Second, the testators used sophisticated trust mechanisms for both managing property and keeping it within their families. In the antebellum era, Americans celebrated the ways they harnessed technologies, from the steam engine to the telegraph and printing press, to create wealth and improve society. This study reveals that trusts should be added to that list of technologies that assisted in the creation and management of wealth. Finally, the data reveal the salience of enslaved human property, often managed through trusts after their owners died and also frequently divided between family members, to the maintenance of family wealth.

While some in the United States at the time, including some jurists, as well as politicians and novelists, questioned the desirability to our country of inheritance, the Greene County data show an extraordinary devotion to maintenance of family wealth. The findings in 'The Most Esteemed Act of My Life' invite further study in other places in the South, as well as in the North, to test the extent to which the existence of wealth (particularly a wealth based on human property) led to different patterns of bequest from those seen among some of our nation's wealthiest individuals at critical period of American history.

trusts, wills, slavery, antebellum legal history

Abstract:
In the years before the Civil War, the Fugitive Slave Act of 1850 focused public discussion of the duty to abide by law, as well as the obligations of individual (and religiously inspired) conscience. This paper addresses the debate over the act in Congress, where the Senators could already foresee conflict between law and conscience, as well as subsequent commentary by southern jurists, lawyers, religious leaders, novelists, and professors. They explored the competing considerations of individual morality, abstract duty to abide the law, and expediency in passage and enforcement of the Act. A final section explores the implications for the rich public debate for the judiciary and for politics in the years leading into Civil War. This paper exhumes the Act and places it at the center of American jurisprudence in the antebellum period.

This paper is the first chapter to a monograph I am writing, tentatively entitled, University, Court, and Slave: Moral Philosophy in the Old South. It locates the common language of moral philosophy used by Southern educators and jurists. This language provides a way of understanding how Southern intellectuals thought about slavery and law. The project seeks to map the language used to talk about proslavery legal thought and how Southern intellectuals justified the institution of slavery. It seeks to understand the grammar of their moral thought, from their utilitarian calculus, to their belief in the importance of stability and the natural law of hierarchy. This paper sets up the key points of conflict: the relationship between a people's values and their laws, the importance of the rule of law, and the utilitarian calculations that suggested slavery should be maintained, even if people were treated inhumanely within it.

slavery, fugitive slave act, antebellum legal history, antebellum jurisprudence, Congressional Globe

Abstract:
"Considering Reparations for the Dred Scott Case," which was prepared for a volume reassessing Dred Scott on its 150th anniversary, asks how the case might fit into discussion of reparations for slavery. Is some reparative action advisable for that case standing by itself? Or might Dred Scott be used as part of a larger discussion? The essay begins with a brief assessment of where the movement for reparations for slavery is right now; then it turns to the case and asks what the Supreme Court's culpability might be and what, if any, harm the opinion causes today. The paper then turns to what reparations models might fit Dred Scott today, including a truth commission, apology, or reconstructed doctrine surrounding the Reconstruction Amendments.

legal history, dred scott, reparations, slavery, truth commission

Abstract:
"Mrs. Lincoln's Lawyer's Cat," which appeared in the online companion to the Connecticut Law Review, CONNtemplations, begins with a discussion of the role that law reviews occupy in their parent institutions and it explores the correlations between citations to law schools' main reviews and the most recent US News rankings (2008). It is part of a symposium on law reviews and, thus, continues a discussion with Ronen Perry and others, which began in the Connecticut Law Review in 2006. The brief essay then turns to literature on "the history of the book" to suggest some of the reasons why we might draw inferences about a law school from the contents of its review. Finally, it turns to a discussion of the role that law reviews and the internet may play in propagating legal knowledge, as financial pressures make it harder to publish books.

law review, citations, legal scholarship, book publishing, history of the book

Abstract:
In the antebellum era, literary addresses were a common and popular form of public expression. Legal historians have profitably mined Fourth of July orations and addresses in Congress for insight into the intellectual worlds of the antebellum era. Yet, they have made virtually no use of the literary address, which are aimed at a different and more elite audiences. This essay employs a close analysis of nearly forty addresses given at the University of Alabama from 1832 through 1860 to gauge the changes in thought in the antebellum South on political theory and jurisprudence. It uses the addresses to create a picture of the world view of the judges.

The addresses, moreover, illustrate the changes from Enlightenment ideas of moral and technological progress to a static, proslavery vision of the late antebellum period. They allow us to assess the orators' intellect, interests, knowledge, and belief systems. The addresses illustrate a wide-ranging respect for ideas, including the abolition of capital punishment, the scholar's search for truth against the tide of public opinion, republicanism, democracy, radicalism in American politics, and the importance of slavery to Southern culture. A final section turns to judicial opinions in Alabama to make a preliminary sketch of the ways that some of the ideas expressed in the addresses correlate with the moral philosophical views of judges.

The addresses, thus, emerge as important windows into antebellum Southern thought and as vehicles for mapping in detail the intellectual world of moral and political philosophy inhabited by southerners, particularly judges and legislators in the years leading into Civil War. Finally, the essay begins to sketch key pieces of jurisprudence (such as considerations of utility, the importance of history and culture, and morality), as it provides a model of how to mine the hundreds of addresses delivered to other literary societies, north and south, in the years before Civil War for insights into legal thought.

antebellum legal history, literary addresses, moral philosophy, antebellum jurisprudence

Abstract:
Landscape art in the antebellum era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property's role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain.

Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate intellectual, moral, technological, and economic progress. The paintings thus remind us of how antebellum Americans understood property, as they struggled with the changes in the role of property from protection of individual autonomy of the eighteenth century to the promotion of economic growth in the nineteenth century.

property, landscape, legal history, nineteenth century literature, idea of progress,

Abstract:
"Odious debts" have been the subject of debate in academic, activist, and policy circles in recent years. The term refers to the debts of a nation that a despotic leader incurs against the interests of the populace. When the despot is overthrown, the new government-understandably-does not wish to repay creditors who helped prop up the despot. One argument has focused on whether customary international law supports a "doctrine" of odious debts that justifies non-payment of sovereign debts when three conditions are met: (1) the debts were incurred by a despotic ruler (without the consent of the populace); (2) the funds were used in ways that did not benefit the populace; and (3) the creditors were aware of the likely illegality of the loans. Advocates of this doctrine, which was synthesized by Alexander Sack in 1927, typically cite two examples of U.S. state practice for support: the negotiations between the United States and Spain following the Spanish-American War, in which the United States repudiated Cuba's colonial debt, and the Tinoco Arbitration, which repudiated certain debts of the deposed Costa Rican dictator, Frederico Tinoco. Those historical precedents do not support the first condition of Sack's doctrine of odious debts, but do support the second two requirements. In addition to these two instances, United States history is rich with examples of debt repudiation by states. Those examples suggest a doctrine of odious debts that is broader and more flexible than the one written by Sack. Indeed, it may be appropriate to speak of the doctrines (not just doctrine) of odious debts.

odious debts, international law, Alexander Sack

Abstract:
Amidst the recent apologies for slavery from the legislatures of Virginia, Maryland, North Carolina, Florida, and Alabama, there is significant controversy over the wisdom of investigations of institution's connections to slavery and apologies for those connections. The divide over attitudes towards apologies falls along racial lines. This paper briefly looks to the controversy on both sides of the apology debates.

Among those questions about investigations of the past, Universities occupy a special place. Efforts at recovery of their connections to slavery include a study released by graduate students at Yale in 2001, Brown University's Steering Committee on Slavery and Justice, and the University of Virginia's board of visitors' spring 2007 apology for that institution's connections to slavery.

That leads to a question about whether other schools ought to consider a self-investigation. William and Mary is a particularly good place to ask such questions. This paper focuses on Thomas R. Dew, first a professor, then president at William and Mary, from 1828 to his early death in 1846. Dew is the author of Review of the Debates in the Virginia Legislature, one of the most reprinted arguments on slavery in the years leading into Civil War. He is also the author of one of the most comprehensive and important histories published in the United States in the nineteenth century, A Digest of the Laws, Customs, Manners and Institutions of Ancient and Modern Nations. Dew focused on considerations of utility and history to suggest the impracticality of gradual emancipation. Through Dew we can gauge the intellectual connections to slavery, then ask the important question, what - if anything - is an appropriate institutional response today? We can use him to begin a discussion of the virtues and pitfalls of apologies and to assess the value of talk of the connections to the past.

slavery, apology, universities, proslavery thought, antebellum legal history

Abstract:
"Thomas Ruffin: Of Moral Philosophy and Monuments" returns to Justice Thomas Ruffin's opinions, particularly on slavery, to excavate his jurisprudence and to try to assess what Ruffin's legacy means for us today. It begins with an exploration of Ruffin's 1830 opinion in State v. Mann, where he self-consciously separated his feelings from his legal opinion to release a man who abused a slave from criminal liability. Anti-slavery activists frequently wrote about Mann, because of its brutal honesty about the harsh nature of slavery. After discussing Harriet Beecher Stowe's fictional account of Ruffin and Mann in Dred: "A Tale of the Great Dismal Swamp", which further developed the theme of separation of law and morals, the paper turns to some of Ruffin's other opinions. It looks to slavery opinions including Heathcock v. Pennington (which released a renter of a slave from liability for the boy's death in a coal mine) and Green v. Lane (which dealt with a trust to give quasi-freedom to slaves), as well as non-slavery cases like Scroggins v. Scroggins (which argued against granting judicial divorces because that would encourage more of them).

Ruffin's jurisprudence took the world as it was, or as he phrased it, looked to the nature of things. His judicial opinions - the monuments he left to us - illustrate a world of proslavery moral philosophy. That thought separated humanity from law and then decided cases based on precedent and considerations of utility to society. Ruffin was a great expositor of the system of slavery, as well as a great wielder of what Stowe called cold legal logic.

What should we make of this legacy today? Perhaps Ruffin aided the cause of antislavery through his honesty in State v. Mann. And, thus, perhaps we should honor him for that. Moreover, perhaps the honor he received in the early twentieth century (when a dormitory was named in part for him on the UNC campus) derives from his facility with legal reasoning outside of the slavery context. However, honoring him also runs the risk of honoring proslavery values. Conversely, removing his name from a building now runs the risk of concealing the prevalence of proslavery thought in the nineteenth century. That is, removing a name might facilitate a process of forgetting when universities should be trying to provide a proper context for viewing our past.

monuments, moral philosophy, jurisprudence, slavery, legal history

Abstract:
Long before the phrase 40 acres and a mule was coined to describe what black Americans were owed for slavery, abolitionists discussed compensating slaves for what had been unjustly taken from them. Today, the debate over reparations for slavery and Jim Crow - whether African-Americans should be compensated for decades of racial subjugation - stands as the most racially divisive issue in American politics.

Discussion of reparations leads often to more animosity than serious consideration of the issue, with reparations advocates and skeptics taking extreme positions, rather than reaching for common ground. In a concise compass, Reparations Pro and Con considers the debate over reparations from the 1700s to the present, examining the arguments on both sides of the current debate. Brophy tells the story of the black reparations movement from Thaddeus Stevens, through the dark days of Jim Crow and then the Harlem Renaissance, to critical race theory, and relates it to other movements for racial justice. Most importantly, he puts the debate into context of the practice of reparations, such as for Jewish victims of the Holocaust, Native Americans, and for the detainment of Japanese Americans during World War II. The book also considers litigation and legislation past and present, examining failed and successful lawsuits, and reparations actions by legislatures, newspapers, schools, and businesses, including apologies and truth commissions. Reparations: Pro and Con concludes with a frank and sober look at the case for reparations and where, if anywhere, the movement is going. It suggests that the movement may lead to a renewed advocacy of social-welfare programs regardless of race.

reparations, slavery, Jim Crow