Michael Grossberg

The American Legal Profession, 1870–2000

This chapter deals with two broad topics. One is the “legal profession,” the formal institutions and organizations through which associations of lawyers seek and exercise state authority to regulate training for and admission to their guilds, to enforce their rules against members, and to protect their privileges against outsiders. The other and much broader topic is that of lawyers themselves, the people and occupational groups who make up to the profession, their work and social roles and their social standing, economic condition, and political influence. In the United States all lawyers have since the Revolution formally belonged to a single, unified profession, licensed by the states where they practice. There are no official ranks or specialties of lawyers, such as the English distinction between barristers (trial lawyers) and solicitors; the French among avocats, avoues, conseils juridiques , and notaires ; or the German between the private profession of advocate and the public professions of civil servant, prosecutor, and judge, each calling for a different training, examination and career path. But in reality the legal profession is many, not one: a collection of occupational groups that work at very diverse practice tasks, enjoy very different levels of status and income, and play very different roles in the economy, politics, and society.

Law, Colonization, Legitimation, and the European Background

The conquest, occupation, and settlement of the Americas was the first large-scale European colonizing venture since the fall of the Roman Empire. Like the Roman Empire, various occupying powers acquired overseas possessions in territories in which they had no clear and obvious authority. Their actions demanded an extensive reexamination, and sometimes reworking, of whole areas of the legal systems of early modern Europe, just as they threw into question earlier assumptions about the nature of sovereignty, utterly transformed international relations, and were ultimately responsible for the evolution of what would eventually come to be called “international law.” Broadly understood, the legal questions raised by this new phase in European history can be broken down into three general categories: the legitimacy of the occupation of territories that, prima facie at least, were already occupied; the authority, if any, that the colonizers might acquire over the inhabitants of those territories; and – ultimately the most pressing question of all – the nature of the legal relationship between metropolitan authority and the society that the colonists themselves would establish.

Citizenship And Immigration Law, 1800–1924: Resolutions Of Membership And Territory

The paradigmatic function of a national immigration regime is to defend a territorial inside from a territorial outside. Access to and presence within this territorial inside are determined on the basis of whether one is a “citizen” or an “alien,” where both terms are understood in their formal legal sense. All of the activities we associate with the contemporary U.S. immigration regime – exclusion and deportation, entry checkpoints, border patrols, detention centers, and the like – make sense in these terms. Liberal American theorists have provided powerful moral justifications for this defense of the territorial inside from the territorial outside on the ground that it is only in this way that the coherence of a national community on the inside can be preserved and fostered. In this rendering, the coherence of the national community may not take the form of an oppressive Blut und Boden nationalism. Rather, the territorial inside must be a homogeneous space of rights enjoyed by all insiders. Although most of these insiders will be citizens, resident immigrants will be treated fairly and given a reasonable opportunity to become citizens. The very coherence of the territorial inside as a homogeneous space of rights justifies immigration restriction. Outsiders – who are imagined as citizens of other countries – have no morally binding claim to be admitted to the inside. This theoretical rendering of the activities of the national immigration regime is the product of recent history. For the first century of the United States’ existence as a nation (from the American Revolution until the 1870s), a national immigration regime that regulated individuals’ access to, and presence within, national territory on the basis of their national citizenship simply did not exist.

From feeble-minded to mentally retarded: child protection and the changing place of disabled children in the mid-twentieth century United States

American attitudes and policies toward children with disabilities changed significantly between the 1920s and the 1950s. Drawn from a larger study of the history of child protection in the United States, I argue that a redefinition of disabled children occurred in this era. Earlier fears that feeble-minded children posed a menace to American society gave way to new anxieties that mentally retarded children placed undue strains on individual families. Both concerns encouraged the segregation and often the institutionalisation of such children, but within very different class, family, medical and policy contexts and with very different results. These developments are best understood by connecting together the emerging histories of childhood and disability through the concept of policy drift.

Labor’s Welfare State: Defining Workers, Constructing Citizens

This chapter analyzes the emergence of labor law as a distinct field. It examines the discursive and political struggles that gave birth to state regulation of collective bargaining, the passage of employment standards legislation, and the growth of social provision during the first half of the twentieth century. Definitions of work and worker, embedded in legislation and upheld by courts, proved crucial not only for civil rights on the job but also for citizenship rights in the developing welfare state. These rights, whether to old age insurance and unemployment or to minimum wages and union representation, depended on an individual’s social as well as occupational position and, for those programs subject to discretionary implementation in the states, even geographical location. By equating work with wage labor, excluding motherwork and other forms of caregiving, law and social policy privileged the adult man in his prime as the ideal worker. The needs and experiences of the industrial worker, predominantly white men, constituted the norm; the woman, pregnant, immigrant, disabled, older, child, and African American worker was considered a special type, requiring protection when not prohibited from the workforce or relegated to lower paid and intermittent labor. The standard story told by generations of historians since the 1940s celebrates the New Deal and the labor law regime that nourished and was made possible by the rise of industrial unionism, especially the Congress of Industrial Organizations (CIO). But this veneration of collective bargaining and mass organization of basic industry obscures the larger contours of welfare state development for which constructions of work and worker were fundamental.

The Legal Profession: From the Revolution to the Civil War

The American legal profession matured and came to prominence during the century prior to the Civil War. The profession had entered the Revolutionary era in a somewhat ambiguous state, enjoying increasing social power and political leadership, but subject to withering criticism and suspicion. Its political influence was clear: twenty-five of the fifty-six signers of the Declaration of Independence were trained in law; so were thirty-one of the fifty-five members of the Constitutional Convention in Philadelphia; so were ten of the First Congress’s twenty-five senators and seventeen of its sixty-five representatives. And yet, just three weeks after the signing of the Declaration of Independence, Timothy Dwight – Calvinist, grandson of Jonathan Edwards, soon to be staunch Federalist, tutor at Yale College and, within several decades, its president – delivered a commencement address in New Haven full of foreboding, particularly for those among the graduates who would choose the legal profession. What would await them? Little but “{t}hat meanness, that infernal knavery, which multiplies needless litigations, which retards the operation of justice, which, from court to court, upon the most trifling pretences, postpones trial to glean the last emptyings of a client’s pocket, for unjust fees of everlasting attendance, which artfully twists the meaning of law to the side we espouse, which seizes unwarrantable advantages from the prepossessions, ignorance, interests and prejudices of a jury, you will shun rather than death or infamy.” Dwight prayed that, notwithstanding, “{y}our reasonings will be ever fair and open; your constructions of law candid, your endeavors to procure equitable decisions unremitted.”

The Civil War And Reconstruction

T his course will cover American history from pre-Columbian contact to the end of the Civil War. Themes will include the Columbian exchange, European and Native conflicts, colonial identities, European contestation over the continent, the formation of a national consciousness and the United States as an independent entity (the American Revolution), slave and urban economic models, expansion, and the Civil War. There will be two 5-page papers assigned as well as a final in-class exam that will include IDs and two short essay questions. Participation via in-class discussions and the completion of homework assignments will also help determine final grade averages.

The Laws of Industrial Organization, 1870–1920

The period from 1870 to 1920 was a time of profound challenge for the American legal system. During these years, an indecisively connected country of small producers became a centralized industrial nation, and a legal system devoted to regulating the affairs of independent farmers and businessmen and their few employees had to adapt to the increasingly complex relations entailed in the finance and operation of large corporate enterprises. The dimensions of the project are indicated by the growth in railroading, the defining industry of the age. At the start of the Civil War, the United States contained 30,626 miles of railroad track; in 1916, the year when track mileage reached its historical apogee, there were 254,251 miles. Roughly 60 percent of this increase had come before the turn of the century. In 1870, the railroads employed 160,000 workers, by 1900 this figure was 1,040,000, and by 1920 it would rise to 2,236,000. Growth was comparable in construction, mining, and manufacturing. With more employees came more workers’ collective actions. By the outbreak of World War I, the number of yearly strikes nationally had increased by a multiple of five; in the interim, major labor-business confrontations were directly linked to several crucial political events – passage of the Interstate Commerce Act, for instance, and the presidential election of 1896.

Adoption Politics, Bastard Nation and Ballot Initiative 58 (review)

to the Supreme Court. In seventeen pages, he describes the Supreme Court arguments, deliberations, and decision upholding the indictments. The last two chapters are devoted to the trial, which led to conviction of some of the defendants, and to the state of racial justice in Mississippi today. Ball’s approach is descriptive rather than analytical, though he does offer some conclusions. The book could be a valuable teaching tool in courses on criminal justice, federalism, law enforcement, social change, and race relations. Occasionally additional context would be helpful. For example, Ball cites federal prosecutor John Doar’s closing argument, which quotes Gloucester begging Queen Anne in Shakespeare’s King Richard III: “Say I slew him not.” She replies, “Then say they were not slain, but they are dead.” Doar continued, “If you and that these men . . . [are] not guilty of this conspiracy, it would be as true to say that there was no night time release from jail by Cecil Price, that there were no White Knights, there are no young men dead, there was no murder” (130). The signiacance of the quote would be heightened by noting that Chief Prosecutor Robert Jackson used the very same rhetorical device at the end of his closing argument in the Nuremberg trials of Nazi war criminals.1

Governing the Hearth: Law and the Family in Nineteenth-Century America

Presenting a new framework for understanding the complex but vital relationship between legal history and the family, Michael Grossberg analyzes the formation of legal policies on such issues as common law marriage, adoption, and rights for illegitimate children. He shows how legal changes diminished male authority, increased womens and childrens rights, and fixed more clearly the states responsibilities in family affairs. Grossberg further illustrates why many basic principles of this distinctive and powerful new body of law--antiabortion and maternal biases in child custody--remained in effect well into the twentieth century.