Category: Bright Ideas

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BRIGHT IDEAS: Mary Dudziak on Exporting American Dreams: Thurgood Marshall’s African Journey

Dudziak_Cvr2b.JPGToday’s Bright Idea comes from Professor Mary Dudziak. Professor Dudziak is the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the University of Southern California. Her most recent book is Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford, 2008). Many know of Thurgood Marshall’s role in U.S. politics and as a civil rights leader. Professor Dudziak’s book details Marshall’s experiences in Kenya where he helped write their constitution and found himself “himself protecting the rights of a new kind of minority: white landholders soon to lose political power.” “Before long, Marshall would become the Supreme Court Justice we remember him for. The life lessons he would take to his work on the Court included his African journey, which reinforced his faith in law and minority rights as a way to perfect democracy. Marshall would tell everyone about Kenya. But the story of his work in Kenya has never been told.” Professor Dudziak’s book tells that story.

Here is Professor Dudziak explaining what lead her to write Exporting American Dreams: Thurgood Marshall’s African Journey, and the adventures she had while researching it.

MARY DUDZIAK

“When I did the constitution for Kenya,” Thurgood Marshall once told Juan Williams, “I looked over just about every constitution in the world to see what was good.” He pounded his fist on the table for emphasis, and added: “And there’s nothing that comes close to comparing with this one in the U.S. This one is the best I’ve ever seen.”

Yet Thurgood Marshall’s Bill of Rights for Kenya, long hidden away in a British archive, did not incorporate American clauses. Instead large portions were borrowed from the Universal Declaration of Human Rights, and new constitutions of Nigeria and Malaya were also important sources. This American civil rights lawyer, soon to become a Supreme Court Justice, embraced forward-looking social welfare rights, including rights to subsistence, education, and health care.

But how did Marshall end up in Kenya? This book started with a question that grew out of research on my first book, Cold War Civil Rights: Race and the Image of American Democracy. That work made it clear that American law has played a role in U.S. public diplomacy. The image of American constitutionalism and rights has been important to the construction of American identity around the world (something we learned again the hard way in the era of Abu Ghraib). To focus more on the story of American law in the world, my starting point was simply to follow American lawyers overseas. But then I learned that Thurgood Marshall participated in deliberations on an independence constitution for Kenya. Before long, Marshall’s work in Kenya became the focus of the book.

Exporting American Dreams tells the story of how Marshall came to work on the Kenya Constitution, and what he thought about it. The project combined all the things that make it so great to be a legal historian. It involved detective work that took me to three continents, but this time I would find myself not only in dusty foreign archives, but at one point on a hilarious journey with a Kenyan tour guide in an attempt to follow in Thurgood Marshall’s footsteps in that country. I had to learn new things, including law and politics in the colony and country of Kenya. And the research revealed unexpected paradoxes, including Marshall’s deep affection for Kenya’s first president, Jomo Kenyatta, even as he turned the Kenya Constitution into a tool for executive excess, rather than a limit on power. In contrast, Marshall held the framers of his own nation to a different standard, finding their own compromises over rights at the American founding to be unacceptable. And finally, it gave me an opportunity that so many writers yearn for: it was simply a great story.

The narrative is transnational, setting the Kenya story in the context of Marshall’s public life in the 1960s, when he transitioned from the NAACP Legal Defense Fund to the Second Circuit Court of Appeals, to Solicitor General, to Supreme Court. This is a dynamic part of his life, often given short shrift in treatments that focus on Marshall as a lawyer or Marshall as a Justice.

Marshall traveled to Africa for the first time on his trip to Kenya in January 1960. He would call it his homeland. As an advisor to indigenous Kenyan political leaders, he was the only non-British, non-Kenyan person to participate in the Lancaster House Conference on the Kenya Constitution in London soon afterward. He would return to Kenya in 1963, asked to travel to Africa by the State Department, as was Earl Warren and others, in an attempt to redress the damage to the American image around the world from the civil rights crisis in Birmingham, Alabama earlier that year. This was Marshall’s triumphant return as Kenya neared independence, but he was angered to learn that the new Constitution was not preventing discrimination against Kenya’s Asian minority.

In the midst of this work, Marshall also encountered changes in civil rights at home. The Greensboro lunch counter sit-ins began on February 1, 1960 as he was working on the Kenya constitution. While Marshall is often described as an opponent of the student movement, the story is more complicated, for he devoted most of his time in his final days at the LDF to raising funds to pay lawyers who would represent the thousands of students who had been arrested, and holding conferences of civil rights lawyers to develop legal theories to defend them. Marshall was afraid the students would be harmed in Southern jails, and he thought there was a safer path to social change, even as the 1960s seemed to reveal that sometimes change requires a conflagration. These intertwined African and American narratives reveal Marshall’s emphasis on law as a means of social change in the context of violence.

Marshall’s Bill of Rights for Kenya, annotated to illustrate the sources Marshall borrowed from,

is included as an Appendix to the book, making it available in the United States for the first time.

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BRIGHT IDEAS: David Post on In Search of Jefferson’s Moose

Jeffersons_Moose.jpgToday’s Bright Idea was along time in the making. David Post of Temple University’s Beasley School of Law and the Volokh Conspiracy began this project more than ten years ago. I am excited David chose to write a piece about his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Oxford, 2009), for Bright Ideas for few reasons. The book explores a challenging idea about how we think about the Internet and the way it is governed. In addition, David shares how a lone idea expanded until it became a major project and a book. For anyone thinking about writing a book, David’s piece offers insight regarding how a research agenda is born and grows. As books are becoming a larger part of legal scholarship, David’s tale provides insight about what a commitment writing a book can be. Last, where else can you see what Jefferson, Hamilton, and a moose might have to do with understanding the Internet (honestly, David ties them all together)?

So here’s David on his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace:

DAVID G. POST

The Internet and Jefferson’s Moose

In 1995, I wrote a small essay for the Electronic Frontier Foundation’s then-newfangled “website,” entitled “Jefferson in Cyberspace.” Though I didn’t know it at the time, I was starting a project that would consume much of the next thirteen-plus years of my life. The essay itself wasn’t particularly noteworthy. Its thesis was pretty simple: I suggested that the great opposition between Jefferson and Hamilton – between de-centralizers and centralizers, Republicans and Federalists, between centripetal and centrifugal forces, between chaos at the frontier and order projected from the center – was being played out before our eyes, in real time, reflected in the early battles to regulate and control the emerging Internet. And I (rather glibly) suggested that on this most radically de-centralized of networks – the one that managed to reach every corner of the globe without having anyone in charge – Jefferson and his followers seemed to have the upper hand.

It was, to be candid, too flip – a blog posting before there were blogs, an interesting little idea without a great deal of deep thinking behind it. But in contrast to many of my interesting little ideas, the more I thought about this one the more interesting it became. There really did seem to be something “Jeffersonian” about the Net; it was, somehow, obvious (and many people commented on it at the time), but I couldn’t quite put my finger on exactly what it meant, or what made it so. And the world of Internet law and Internet policy really did seem to be divided between Jeffersonians and Hamiltonians, who came forward with their opposing positions on all the big issues of the day, from the exercise of jurisdiction over Internet conduct to the operation and management of the domain name system, the regulation of Internet anonymity, encryption policy, the scope of free speech protection on the Net . . . .

And then there was Jefferson himself. The more I read of (and by) him, the more interesting he became, too. The variety of his intellectual pursuits (from architecture to mineralogy to zoology, with pretty much everything in between) was so astonishing; he may well have been the only person in history who was, to use Isaiah Berlin’s well-known dichotomy, both a great Hedgehog and a great Fox, propounder of some of history’s greatest Big Ideas and simultaneously one of the planet’s leading experts on cartographic techniques, viniculture, canal-building, plow design, linguistic evolution, paleontology, . . . . What was he up to? What held it all together? What connected the Declaration of Independence to the Big Bone Lick (Ky.) fossils that he pored over in the White House basement? The “Summary View of the Rights of British America” to the study of Native American languages? The Virginia Statute for Religious Freedom to the design of meteorological measuring devices?

He was on to something, that much was pretty clear; but damned if I could say exactly what it was. And the closer I looked, the harder it got.

Enter, the moose – or, at least, the story of the moose. A few years into my reading, I stumbled upon the story (in Daniel Boorstin’s wonderful The Lost World of Thomas Jefferson, if I recall correctly): In 1787, Jefferson had the complete skeleton and carcass (with antlers) of an American moose, 7 feet tall at the shoulders, shipped to him in Paris (where he was serving as the American Minister to the court of Louis XVI), re-assembled, and installed in the entrance hall of his residence. In a letter to a friend, he called it “an acquisition more precious than you can imagine.”

It’s an amusing little episode, Jefferson at his most lovably eccentric; you may recall it being used for that purpose in the popular film from a few years back, “Jefferson in Paris,” and for years I did the same. As I kept working through these ideas, trying to link up Jefferson’s ideas with some ideas about law on the Internet that my colleagues and I were wrestling with, I’d often begin presentations and talks (and even, on occasion, scholarly papers) with the moose story – just to loosen things up a bit, to get the audience in a good frame of mind. “What was he up to?,” I’d ask. An acquisition “more precious than you can imagine”? Was he serious?

It was just a rhetorical device, and a rhetorical question – at first. Looking back, I see that the inflection point marking the moment that the project actually started taking shape as a book was when I started to take the question seriously myself. Really — what in heaven’s name was he up to?

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BRIGHT IDEAS: Timothy Zick on Speech Out of Doors

zick-timothy.jpgspeech-out-of-doors.jpgProfessor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.

SOLOVE: What motivated you to write about the issues in your book?

ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.

SOLOVE: What’s the central idea in your book?

ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.

SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?

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BRIGHT IDEAS: Trade Secrets, Law and Practice

quinto_trade_secrets.jpgAs the second book in the Bright Idea series we have Trade Secrets, Law and Practice (Oxford University Press). David Quinto and Stuart Singer are the authors. David is a founding partner and head of internet litigation at Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles, CA. Stuart Singer is a partner at Boies, Schiller & Flexner, LLP. I know David from my time at Quinn Emanuel and from our work together on The Law of Internet Disputes (Aspen).

The case that spurred David to write Trade Secrets was in its early stages when I was at the firm. Now, more than ten years later, the book is out. It has drawn priase from Jim Pooley (the author of one of the most useful treatises on trade secret law), Lance Liebman (a former Columbia Law School dean who now heads the American Law Institute), and Martha Barnett (a former ABA president). So here is David explaining what drove him to explore the way trade secrets operate and the journey involved in writing the book. With that, here’s David.

DAVID QUINTO:

Trade Secrets: Law and Practice has been a long time in the making. Almost ten years ago, I got involved in a knock-down, drag-out trade secrets dispute between my client, Avery Dennison, and 3M. Avery had innocently hired three of 3M’s R&D people: one contacted Avery seeking a job in Los Angeles because his fiancée had moved there and his 3M job had just been terminated; a second wanted to re-locate to Los Angeles to be near family and landed at Avery after a head hunter sent his resume there; and the third decided to move to California after he was transferred by 3M to a facility more than an hour’s drive from his home. The three employees had worked for 3M in upstate New York, Minnesota, and Canada. Significantly, none had worked on any product competitive with anything Avery manufactured. In Los Angeles, Avery did not see any particular problem. From 3M’s viewpoint in St. Paul, however, matters appeared more ominous. 3M and Avery competed in many areas and not only had Avery hired three R&D employees in quick succession, but all three were intimately familiar with technologies that could potentially be useful in manufacturing Avery’s products.

The litigation lasted several years. In the process, the parties conducted exhaustive discovery. Among our surprises were the discovery that 3M’s crown jewel trade secret had been patented (and, hence, wasn’t a trade secret at all) and that another claimed trade secret had been surreptitiously published by 3M as a hedge against the possibility that a competitor might independently discover it and attempt to patent it. At the end, there was no evidence of any use of any 3M information by Avery. However, by the time the parties entered into a confidential settlement following a three-day mediation, 3M had spent more than $30 million in attorneys’ fees leaving no stone unturned. Avery’s fees were substantially less, but were nonetheless substantial.

I was assisted in the litigation by my then-partner, Warrington Parker. On cold Minnesota nights, we thought about what the parties might have done differently to avoid incurring enormous legal fees fighting over nothing. We thought about how to prove a negative, that no information had been misappropriated. And we war-gamed the possible injunctive moves the parties could make given that the employees were all subject to non-compete agreements and given that California adamantly refuses to enforce such agreements. Could the employees be sued elsewhere? Could Avery be sued for inducing breach of contract? What would the Full Faith and Credit clause of the Constitution require with respect to enforcing in California a judgment entered elsewhere? What could be done to preempt a claim brought in another state?

After the suit was over, I continued think about problems unique to trade secrets litigation. For example, a number of states reject the doctrine of “inevitable disclosure” as a basis to award injunctive relief, but almost every state has a statute allowing a “threatened” misappropriation to be enjoined. What’s the difference? Will a “threatened” misappropriation justify the issuance of a permanent injunction, or merely a preliminary injunction? Is different injunctive relief available if a misappropriation is “inevitable” as opposed to “threatened”? Do the states that enjoin “inevitable” disclosures always do so, or only when a non-compete agreement is involved? How can a defendant find an expert to opine that something is not a trade secret when no competitor will disclose its manufacturing process? Which states will require a trade secret plaintiff to identify its trade secrets with reasonable particularity before commencing discovery? Is a state law requirement that the plaintiff identify its trade secrets before commencing discovery enforceable in federal court? Do different states follow different rules in determining whether and when ancillary claims will be preempted by a trade secret misappropriation claim? When might such claims be preempted even if no trade secret misappropriation is alleged? What defenses are unique to trade secret litigations and how are they established?

I believed that a book exploring the ins-and-outs of trade secret litigation on a state-by-state basis, written from each the plaintiff’s and the defendant’s perspective, would be useful. I also thought it would be useful to consider what measures could have been undertaken to prevent the misunderstandings that led to the 3M v. Avery litigation, the steps that a trade secret owner could take to investigate and prepare for a possible claim, how to protect trade secrets at trial, and when it makes sense to seek criminal prosecution of a trade secret thief. Eventually I submitted a book proposal to Oxford University Press, which circulated it for peer review. One of the reviews, shared with me anonymously, appeared to have been written by a law school friend, Stuart Singer. Stuart served as president of the Harvard Law Review, was asked to clerk for the U.S. Supreme Court immediately upon graduation, and is now a partner of David Boies at the Boies, Schiller & Flexner firm. I put it to him: if you’re so enthusiastic about the idea, why don’t you help me write the book? I’m enormously grateful that he agreed to do so.

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BRIGHT IDEAS: Robert Tsai on Eloquence & Reason

eloquence and reason.jpgI am pleased to have Robert Tsai as our first author in the Bright Ideas series. Robert is an associate professor at American University. He started teaching at the University of Oregon, where he received the university’s Lorry I. Lokey Award for exemplary interdisciplinary scholarship and the law school’s Orlando J. Hollis Teaching Award. His papers have twice been selected for the Stanford-Yale Junior Faculty Forum: once in constitutional theory and once in constitutional history. Before becoming a professor, Robert clerked for Hugh H. Bownes, U.S. Court of Appeals for the First Circuit, and Denny Chin, U.S. District Court for the Southern District of New York. His primary research interests include American political culture, the discourses of popular sovereignty, radical constitutionalism, the rules of criminal procedure, and the interaction between courts and other institutions. And Robert has guest blogged with us too.

So here is Robert Tsai on his book, Eloquence & Reason, (Yale University Press, 2008)

ROBERT TSAI:

For as long as I can remember, I have believed in the First Amendment. But I could not put my finger on the source of this vague feeling, which ripened over time. I could not recall anyone telling me I had to obey that provision, above all others, in the United States Constitution. It just made sense. Initially as an immigrant to this country and later as a student in the public schools, I took it on faith that to be an American was to enjoy the rights to express myself and to worship as I saw fit.

Even as I began to doubt that any complex democracy could actually strike a maximal rights posture, I remained struck by just how deeply ingrained this default position was. The modern First Amendment persists even though most countries have considered and rejected the strong pro-rights position. It occurred to me that, for better or worse, the values of the First Amendment comprise elemental features of American national identity. A number of distinguished thinkers have devoted their careers to assessing whether privileging freedom of expression is normatively desirable. I have been more interested in how we arrived in such a state of affairs and what it says about our political order.

The challenging question is: how do you prove these intuitions about the First Amendment to be true? Eloquence and Reason tackles this project mostly by showing how activists, lawyers, judges, and even presidents have employed the First Amendment. In the process, they created and helped to sustain a political culture in which certain political values became privileged. An ever-tighter linkage was created in the public mind between the First Amendment and the citizen’s sense of self. A language of rights arose and became systematized. Citizens learned to characterize a wide range of social matters as First Amendment problems, and advocates became highly skilled at leveraging the comparative advantages of the various forms of constitutional discourse.

To illustrate these themes, the book juxtaposes activists who agitated for civil rights for African Americans in the 1960s with social conservatives who sought to alter the law’s relationship with people of faith in the final decades of the twentieth century. It also examines how presidents can change the way people talk and think about constitutional rights. I discuss how Franklin Roosevelt prioritized the right of conscience—an idea not mentioned in the Constitution—and thereby pressured the Supreme Court to give it greater credence. Similarly, Ronald Reagan accentuated the right of religious expression and discouraged separationist discourse in constitutional debate.

It turns out that the actual wording of the First Amendment has played a relatively small part in how the law has developed. Instead, human beings turned to the language of the Constitution to master the world around them. Except in rare cases, the Constitution does not dictate answers so much as it empowers people to battle over plausible answers. It’s an unsettling answer to some, but it’s the only satisfactory answer for why people respect the Constitution even if they have never read it; and for why one can obey the First Amendment even though a denizen of eighteenth century America would have had difficulty imagining its current form.