April 2013 Vol. 111 No. 6 THE REVIEW
ARTICLES

Foreword: Oh, The Treatise!

Richard A. Danner

In his foreword to the Michigan Law Review's 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: "[W]hy should law professors write?" In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992.

Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences. He characterized "practical" legal scholarship as both prescriptive (aiming to instruct attorneys, judges, and other decisionmakers) and doctrinal (dealing with the sources of law that constrain and guide practitioners, decisionmakers, and policymakers). Having served on the law faculties at Michigan and Harvard before joining the Court of Appeals for the District of Columbia, Judge Edwards was well positioned to critique the direction of legal scholarship, but he is not the only judge to have done so. In recent years Chief Justice Roberts has made clear his opinion of most academic writing, and Justice Kennedy has pointedly expressed his concerns about the diminishing relevance of law reviews to appellate court decisionmaking.

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Classic Revisited: A Native Vision of Justice

Carole Goldberg
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Are People Probabilistically Challenged?

Alex Stein
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Constitutional Change, Courts, and Social Movements

Douglas NeJaime
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Rights Lawyer Essentialism and the Next Generation of Rights Critics

Alan K. Chen
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Jack Balkin's Rich Historicism and Diet Originalism: Health Benefits and Risks for the Constitutional System

Neil S. Siegel
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What Ails the Law Schools?

Paul Horwitz
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Black Marriage, White People, Red Herrings

Melissa Murray
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Family History: Inside and Out

Kerry Abrams
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The Fight to Frame Privacy

Woodrow Hartzog
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Criminal Justice, Local Democracy, and Constitutional Rights

Stephen J. Schulhofer
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Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth

John F. Pfaff
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Tyrone Garner's Lawrence v. Texas

Marc Spindelman
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The Vexations of Aging from the Imagination (A Lot) and Life (A Little) of Bill Miller

James J. White
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Justice Brennan: Legacy of a Champion

Dawn Johnsen
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NOTES

Neither Sad nor Strange: Recovering the Logic of Anticruelty Organizations in Gilded Age America

Bryn Resser Pallesen

In 1877, the American Humane Association (“AHA”) incorporated as one of the first national organizations dedicated to the protection of animals. Nine years later, it amended its constitution to include the protection of children in its chartered mission. By 1908, there were 354 anticruelty organizations in the United States, 185 of which were, like the AHA, humane societies invested in the welfare of both animals and children (pp. 2–3). As primary source documents reveal, Gilded Age humanitarians viewed the joint pursuit of child and animal protection as entirely sensible (p. 5). One of the Illinois Humane Society’s founding directors, for example, professed that the “prevention of cruelty to children and to dumb beasts, are part and parcel of the same work . . . .” By midcentury, however, the logic informing Gilded Age anticruelty reform had been lost, and child welfare professionals began to criticize the mergence of child protection with animal protection as an illogical ordering of welfare priorities (p. 5). “It is a sad commentary,” wrote Dr. Vincent J. Fontana, founder of the Vincent J. Fontana Center for Child Protection in New York City, “that it took a society for the prevention of cruelty to animals to protect the first recorded case of a maltreated child.”

In The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America, Professor Susan J. Pearson sets herself the task of recovering the now-forgotten logic of anticruelty reform and the development of humane societies in Gilded Age America. Her resulting history demonstrates that the union of child and animal protection was “neither sad nor strange, but was instead tightly bound to the crosshatched threads of sentimentalism and liberalism” (p. 20). Specifically, Pearson argues that Gilded Age anticruelty reform was a “hybrid” movement—simultaneously derivative and constitutive of the American state. Drawing on anticruelty reform publications, popular literature, and histories of antebellum and postbellum America, she shows how the rhetorical and institutional innovations of anticruelty reform both shaped and were shaped by an ideology of what she terms “sentimental liberalism.” By “[s]peaking a language of sympathy while deploying legal power,” Pearson explains, “anticruelty reformers transformed not only sentimentalism, but also the reach and role of the state” (p. 13).

 

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A Time for Presidential Power? War Time and the Constrained Executive

David Levine
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"Never Again," Again: A Functional Examination of the Financial Crisis Inquiry Commission

Andrew W. Hartlage
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