Author: Alfred Brophy


enjoyed the visit


Since I’ve already overstayed my announced visit of a couple of weeks, I figure it’s time to go before I wear out my welcome. It’s been fun commenting on such diverse issues as images of property in landscape art, legal realism and fashion consulting, the Ann Coulter Talking Doll, 1950s and 2000s conservatism, the history of the book, state funding for preservation of cemeteries, and even a few unexpected topics–like suggestions for US News’ ranking system, horror movie director Wes Craven’s insights for law professors, the intellectual origins of Roe v. Wade in, of all places, Tuscaloosa, and Fanny and Ralph Ellison. Of course, nothing gets attention like navel-gazing, so I shouldn’t be surprised that the post that generated the most attention (not much competition here, really) was on the implications of law review citations for law school rankings.

I’d hoped to comment a little on recent articles (like Kenneth Mack’s brilliant article on “Civil Rights Lawyering and Politics Before Brown“) and books in legal history, though my day job interfered with putting us as many posts as I’d hoped. So let me put in a brief mention for a wonderful book, which I recently read: Laura Kalman’s Yale Law School and the Sixties.

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Monument Law


Ah, public monuments. They’re how we remember important events and help define who we think we are. Dan Solove’s recent posts on courthouses reminds me of how much we’re concerned with presenting the right image to communities. And there’s been a lot of writing about the function that courthouse architecture has served in American history. Moreover, lots of folks are writing these days about monuments and their meaning. Sanford Levinson’s charming book, Written in Stone covers a lot of ground in a little bit of space. And people are talking more about removing monuments from parks or renaming them (such as the Nathan Bedford Forrest Park in Memphis). Sewanee: The University of South is going through something like this right now.

I haven’t seen any serious commentary (in the blogosphere or elsewhere) on the United Daughters of the Confederacy v. Vanderbilt University, decided last May by the Tennessee Court of Appeals. Perhaps, though, it warrants a little bit of attention. It has some things to say about long-term contracts, the right of donees to alter monuments (like changing the names of buildings), and even how we remember the Civil War. The case arose from the effort of Vanderbilt University in 2002 to rename a dormitory on its campus from “Confederate Memorial Hall” to “Memorial Hall.

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Call Parker Brothers!: Scenes from An Exciting Evening in Tuscaloosa


Last night, a few colleagues were over at my place and we discussed the local gossip: the storm on campus over the sex column in our student newspaper, the Crimson-White, (which, btw, made the front page of the Tuscaloosa News this morning). Not a bad article on the controversy; it has a first amendment analysis of why the University can’t censor the column. And to their credit, the administration doesn’t want to. The article would, of course, have benefitted from a quotation from Dan Solove.

Then we turned to a game: “name professors at that school.” The gist here is to have one person name a school and then see who can name the most professors at that school. There’s a permutation, which Scott England developed: pick a name out of the AALS Directory and ask where that person teaches. Of course, it has to compete with other Tuscaloosa faculty favorites, like “name the most important article in [pick a field] in the last decade.” Or, “what’s the most under-appreciated article in [pick a field].” Or, “what article/book do you wish you’d written?”

When I woke up this morning, it dawned on me that the game isn’t as much fun as the Ann Coulter Talking Doll. Perhaps Parker Brothers won’t be interested, afterall.


Ann Coulter: Come to Tuscaloosa


Thanks to one of my star students, Lee Birchall–a man with a degree from Dartmouth and a varsity athlete there who’s now on the Alabama Law Review (look for a great article on golf law as a measure of American society coming soon to a law journal near you)–there are yet more phrases for the Ann Coulter talking doll! This time, it’s “I love to engage in repartee with people who are stupider than I am.”

Lee’s a big fan of Ms. Coulter. After reading about her speech at the University of Connecticut, he’s starting a move to get her to speak at UA. I know she’ll get a warmer reception here than at U.Conn, at least if you can judge from the reception that Phyllis Schlafly received last spring at UA. And the good news is that he’s offered to serve as her social host.


Fanny Ellison


Thanks to my friend and Ellison scholar Lucas Morel, I found out that Fanny Ellison, Ralph Ellison’s widow, died recently in New York of complications of hip surgery. She was 93. I had not known, until I read the New York Times obituary, how important she was in civil rights, theater, and culture in the 1940s, nor of her role in helping with Invisible Man.

I’m a huge fan of Ralph Ellison. Invisible Man, of course, has much to recommend it, particularly for lawyers. A lot of Ellison’s mission in IM runs parallel to what the NAACP was trying to do through litigation in the years leading into Brown. And while it may be stretching the case to say that the invisible man authored Brown, I think Ellison’s goal of focusing on our common humanity and on seeing people as individuals, rather than members of despised groups, appears in Brown as well.

One of my favorite passages in IM involves the elderly couple, who’re being evicted from their Harlem apartment. The couple’s meager possessions are strewn on the sidewalk; there are fragments of life stretching back to the era of slavery–emancipation papers, a picture of Abraham Lincoln, a commemorative plate from the St. Louis World’s Fair, a newspaper account of Marcus Garvey, letters from their grandchildren, cheap furniture. The Invisible Man’s refrain was, “[W]e’re a law abiding people.” Yet, the elderly couple was being evicted. So Ellison asked by what law were the couple being evicted? How could that eviction be consistent with law? The eviction was demanded by the “laws,” it is true:

[L]ook up there in the doorway at that law standing there with his forty-five. Look at him, standing with his blue steel pistol and his blue serge suit, or one forty-five, you see ten for every one of us, ten guns and ten warm suits and ten fat bellies and ten million laws. Laws, that’s what we call them down South! Laws!

The couple had almost nothing from which they could be evicted. All they had was “the Great Constitutional Dream Book” and even that they could not read.

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Law Review Citations and Law School Rankings

columbia_law_review.jpgThere’s no shortage of writing on law reviews or law school rankings, to say the least. So why not combine the two?

Questions about law review ranking abound. How does one compare offers from journals at relatively equal schools? Is it better to publish with a journal that is more frequently cited or with one at a higher ranked law school? Is it better to publish with a main law journal at a top 40ish law school or the secondary at a top 10 law school? Questions about law school rankings abound as well, particularly for schools outside of the top 30 or so. (Or so it seems to me.)

I’m partial to citation studies as a way of judging quality. I know that citations have lots of problems as a way of ranking journals (or individual authors). However, I like the objectivity citation studies provide. And so I’m partial to the Washington and Lee Law Library’s website, which provides comprehensive data on citations to hundreds of law journals by other journals and by courts. I’ve found it useful in trying to draw some comparisons between journals. Other people often draw comparisons between journals by looking to the US News ranking of the journal’s school.

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Memory on the Sewanee Campus

sewaneeflags.jpgIt doesn’t take a lot of skill to predict that this New York Times article about the controversy over what we used to call “The University of South” and what’s now called “Sewanee: The University of the South” is going to generate, well, a lot of controversy.

First, some background. A few years ago, apparently motivated by a marketing study, the University of the South began emphasizing the “Sewanee” part of its name. Alumni have been concerned (to put it mildly) that it’s not just about the name, however. They think there is a lot more at stake on the campus–like how the University deals with its distinguished and complex history. At the center of that history is the University’s founder, Leonidas Polk. Bishop Polk was, also, a general in the Confederate States Army.

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History of the Book


Folks here at concurringopinions have been talking a lot about books recently–Nate Oman’s had posts on the appeal of law books (particularly old ones) and law reviews and Dan Solove’s posted about the open library. I find student-edited law reviews problematic in some ways, and the smell of old books doesn’t do much for me. But there is magic, imho, in libraries. Libraries are great enlightenment vehicles of improvement. They’re the places that knowledge is collected and disseminated. (And that’s why I find the stories about segragated libraries particularly important in understanding our history.)

I remember the excitment I used to feel on walking in Van Pelt Library as an undergraduate. The entire world of knowledge, it seemed to me at the time, was open to anyone who had the inclination and time to visit it. In keeping with the Supreme Court’s administrative law opinions of the early 1970s, like Overton Park (about the importance of getting information in front of regulators), I thought that the knowledge in those books held most, if not all, of the keys to a better society.

Sometimes, if I get to the University of Alabama’s library early enough on a Saturday (so there aren’t many other people around), and I’m working on an original project, and the light strikes the windows in the great reading room just right, that enthusiastic eighteen-year old I remember appears again, even if only for a short while.

When I’m thinking about old books, I’m partial to library catalogs. Because they give you a sense of the ideas that people had access to and the kinds of ideas they found appealing. The 1853 library catalog of the University of Georgia is available on the Georgia library’s webstite. Through the magic of the internet, you can see exactly what the catalog looked like. And you can also see what books were in the Georgia library. Historians in recent years have been talking a lot about the “history of the book.” They ask who was reading books, who was writing them, and how books were useful in transmitting ideas.

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Voices from the Past


This very fine New York Times article on the New York Historical Society’s exhibit on slavery in New York begins by talking about visitors recording their reactions to the exhibit. We should also think about listening to the voices of people who had lived as slaves.

Some of the great treasures of American history are the slave narratives collected by the WPA. And through the magic of the internet, you can listen to the Library of Congress’s audio collections of the voices of people who were born into slavery.

I’ve enjoyed listening to them, because I love hearing the songs (like Keep your Lamp a’ Trimmed and Kingdom Coming), the accents, and the recollections of the folks.

Of course, the WPA and other New Deal agencies recorded a lot of other folks, too. I highly recommend the audio downloads that are available on the LOC’s website. And the LOC has some other great audio collections, like these fiddle tunes recorded in the 1960s.

The picture is from the Library of Congress’ collection of black and white photographs from Great Depression to World War II, LC-USF34- 044206-D.


The intellectual origins of Roe . . . in a law review


Here’s a nice piece of trivia: what law review article laid the blueprint for Roe v. Wade?

Thanks to Orin Kerr’s link to Judge Raymond Randolph’s thought-provoking speech to the Federalist Society on Judge Friendly’s unpublished 1970 draft opinion on abortion rights, I learned something about my school’s history: that Roy Lucas, then an assistant professor at the University of Alabama, published an article in 1968 in the North Carolina Law Review, which (according to Judge Randolph) “laid out a blueprint” for applying Griswold to state anti-abortion laws. Of course, proving influence in the evolution of constitutional thought is a remarkably difficult enterprise. But some knowledgeable people nevertheless believe the article to have been quite important. N.E.H. Hull, Williamjames Hoffer, & Peter Hoffer include an excerpt from the article in their important book, The Abortion Rights Controversy. They say of Lucas’ article that it was a “vital source of ideas for the frontal attack on criminal abortion statutes.”

Hmm, I thought upon reading this, how surprising. I try to pay some attention to my school’s history. I’ve heard some pretty interesting stories about Alabama law faculty. For example, Professor Jay Murphy‘s advocacy in the pages of the Alabama Law Review helped defeat some of the legislature’s proposals to resist desegregation in the immediate aftermath of Brown.

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