Obiter Dicta Research Articles

Massachusetts Evades Employer Mandates: Lessons for Other States?

INTRODUCTION Jonathan Gruber's article deals primarily with political and economic issues posed and resolved by health insurance reform recently adopted in Massachusetts, which gives only a tiny role to employer mandates. For good reasons, some of them special to Massachusetts, Gruber follows form of state plan in giving only small consideration to employer mandates to pay for workers' insurance; he pays much more serious attention to state design and control of insurance options and state determination of financing and subsidy distributions. In my remarks I will to some extent reverse relative weights by discussing and commenting briefly on design and financing but then discuss at some more length the dog that almost did not bark in Massachusetts: pay or play employer mandates and their economic and political implications for other states. Some Preliminaries Before I turn to question of employer mandates, I want to express some concern about two of points made in Gruber's article, one an obiter dictum that nevertheless raises an important issue about net benefits of employment-based coverage as it is usually offered, and other that links that issue to a key feature of Massachusetts plan, an organization called Connector that collects and assembles a variety of state-approved insurance options for employers and individuals seeking coverage. Gruber mentions (p. 453) low 1.3 percent administrative cost reported for universal coverage in Canada and suggests that there might be some merit in single-payer road not taken in Massachusetts. (A comparable figure for U.S. Medicare, of about 2 percent, is also often cited.) And, indeed, one of key factors determining desirabfiity of a set of insurance options is insurer administrative costs and profits that might occur. As others have noted, there are some statistical and definitional objections to imagining that very low administrative loading percentage reported for Canadian plan could be exhibited by arrangements like those in Massachusetts that rely on private insurance for administration. One might note, for example, that costs of research and design efforts, which are included in private costs, are largely overlooked in government's budgets. Research done directly by staff or debates in federal and provincial legislatures about health insurance, have a cost that should be included. The more serious costs that a tax-financed single-payer system avoids are high selling and billing costs that accompany voluntary plans that display great variety in form and type of coverage. The great bulk of cost of single-payer coverage comes from involuntary taxes. Collecting taxes is generally much less costly than persuading workers or employers to part with premiums, but this apparent advantage conceals a much larger cost. Because practical taxation links agents' tax liabilities to a tax base (wage earnings plus other income) that can be altered by individual choices about how much to work and how to receive income, they generate what economists call an burden: a loss in value of total economic activity traceable to distorted incentives. To be sure, it is overall pattern of taxes and redistribution imposed by government at all levels, which determines marginal excess burden, but if a publicly provided health benefit were to be financed by increases in taxes following usual distributional pattern (rather than uniform lump sum head tax add-ons), moving nearly a trillion dollars of national health care spending from private to public sector would generate a substantial distortion cost. This cost is estimated empirically to be at least 25 percent of total collection at prevailing tax rates in United States, and probably would be similar in Canada. Obviously, this hidden but real cost of transferring financing from private payment to government taxation swamps any savings from lower explicit insurer administrative costs. …

A Review of Testlet Response Theory and Its Applications

During the past few years, there has been a surge in utilizing Bayesian inference. An ERIC search of the keywords Bayesian statistics reveals that 48 journal articles using Bayesian models were published between 1995 and 2000, and this number more than doubles when articles from 2001 to 2006 are consid ered. Such interest is well deserved, as recent advances in computer technology and sampling methodology have allowed researchers to demonstrate the poten tial of Bayesian models for solving practical problems in many areas of study. In psychometrics, the potential of Bayesian models is clearly shown in Testlet Response Theory and Its Applications, the new book by Wainer, Bradlow, and Wang. It is well established in the psychometric literature that lack of conditional independence among subsets of test items, known as testlets, may result in underestimated standard errors and thus overestimated measurement precision when conditional independence is assumed (e.g., Sireci, Thissen, & Wainer, 1991; Wainer, Bradlow, & Du, 2000). Therefore, it is not surprising that a num ber of strategies have been proposed for modeling these dependencies. One such approach is testlet response theory (TRT), which models the dependency because of testlets by adding a parameter to the familiar item response theory (IRT) models (Bradlow, Wainer, & Wang, 1999). It is on this model that led to the development of Testlet Response Theory and Its Applications, but the table of contents makes it clear that this book offers considerably more than the output of this single program of research. The six chapters comprising part I, for instance, could serve as a fine introductory book on test theory. These chap ters, written in accessible language, introduce true score theory, IRT, and TRT; connect the ideas behind these theories; and present comprehensive and thought ful examples. The authors assert that their intended audience includes research ers and professionals in statistics, psychometrics, and educational psychology; clearly, students could be added to this list. There are many insightful discus sions on various topics throughout the book that both researchers and students would find stimulating, but perhaps the most delightful occurs in chapter 3, which contains a three-page obiter dictum on competing interpretations of the

Court of Law and Court of Public Opinion: Symbiotic Regulation of the Corporate Management Duty of Care

In In re Walt Disney Co. Derivative Litigation the Delaware court exonerated the defendants for their handling of the Ovitz Affair, and yet condemned them. It is a classic example of how a court of law can make law without making law. By an obiter dictum, the Chancellor established the facts of the case and footnoted the sources much like a treatise or a casebook, recounted the general principles of the law, used strong words to describe the defendants' behavior, delved into the moral and business judgment of the defendants, and assisted the market in judging and enforcing its practices. The Disney decision is a political masterpiece. (1) It pleases management because it sets a legal standard that is admittedly lower than the market best practices standard and issues a judgment for the defendants. As to the duty of care, the court elevates market morals above legal morals. (2) It pleases the Delaware Bar and perhaps members of other bars, as well as the shareholders' advocates, because it lowers the standard of demand requirement and opens the door to class actions. Hence it does not reduce the number of cases against management. (3) It discloses and documents aspects of internal management, including the personalities and behavior of the actors, thus inviting critics, public opinion and the media to supervise management and influence management's business judgment. It maintains the courts' hands off approach and low standard of negligence in evaluating the business judgment of management and board of directors. (4) It allows the courts to establish the facts and offer their opinion without serious threat of being overruled by higher courts or the legislature. (5) The decision shifts the burden of chastising management in cases such as Disney to the market and the media. All in 120 pages. The issue is whether this is a good way to go about resolving situations such as Disney. I conclude that it is. Unlike criminal cases, in which the Court of Public Opinion may prejudice the jury, the Court of Public Opinion is more suitable than the Court of Law to judge excesses by corporate directors and management so long as those do not amount to violations of trust and honesty (the duty of loyalty).

Illocutionary and Perlocutionary Acts in Chinese Judge's Attached Discourse

After 2002, courts in China have increasingly been introducing certain judicial reforms, one of them being the improvement of trial language. In these courts, the judges append their comments to the case at the end of their verdicts in writing. The Chinese judge’s attached discourses resemble the obiter dicta of judges in Western courts, but there are differences. Since the new element was introduced in some courts in 1998, some doubts have been voiced in strong opposition to the new practice, giving rise to a heated academic debate on the issue. This paper investigates and analyses Chinese judge’s attached discourse in terms of discourse analysis categories, such as their usage of illocutionary and perlocutionary acts.

Letter to the Editor

Letter to the Editor

Peirce on Education: Nurturing the First Rule of Reason

Through an exegetic reading of Peirce’s minor texts on higher education, I find that Peirce’s conception of a “Liberal Education” is close to the Herbartian conception of Bildung. Peirce calls for a general education with the ambition of qualifying critical thinkers with the capacity to go beyond the strict rules and narrow borders of the artes liberales, – the different subject matters or sciences taught at a university. Thus, Peirce’s conception of a liberal education is closely linked to his interpretation of common sense – or sensis communis – as a critical commonsensism. To him, it is urgent to educate and nurture “the first rule of reason,” described as a will to learn, a curiosity, a dissatisfaction of what you already incline to think, and an intense desire to find things out. The nurturing of this “first rule of reason” is thus about educating an intellectual community of critical thinkers who are able to question authoritative beliefs, knowing how to debunk them, and how to turn away from obiter dictum.

Judicial Activism: A Multidimensional Model

The article addresses the question of the role of the judiciary in the constitutional democratic state through an analysis of the concept of judicial activism. The model advanced in the article is based on a composite theory of the role of the judiciary, drawing on, and developing, Canon’s (1982) analysis of judicial activism and more recent multidimensional approaches to the assessment of judicial output. The article supplements the traditional vision of the judiciary as law enforcer in two directions. Drawing on the ‘constitutional dialogue/constitutional interdependence’ paradigm, the article perceives the judiciary as participant in a multi-player web of constitutional interactions, in which other government branches, individuals and public bodies participate in the decision making process; arguments on the omnipotency of the judiciary are thus replaced by a model of interdependency and interaction. The constitutionalist tradition serves as basis for the third vision, under which the judiciary is an active protector of core ‘thin’ societal values.These three visions of the role of the judiciary support a multidimensional analysis of judicial activism, under which judicial output is considered not only against pre-decision law, but also on the basis of post-decision dynamics and the value content of the decision.The model comprises seventeen distinct parameters, which include, inter alia, the degree of change in the law, interpretation techniques, interference with democratic processes, rhetoric, obiter dicta, reliance on comparative sources, the extent of the decision, and the complexity of the legal question brought before the court. Under this group of parameters, any change in the law, or action that extends beyond the mere settlement of the dispute before the court, would be considered activist. Additional parameters draw on the second vision of the role of the judiciary, and consider post-decision reaction of the legislature, the administration, the public and the judiciary itself as basis for supplementary assessment. In this context it is argued that a decision that is fully accepted and implemented by other members of the constitutional web should be viewed as less activist than a decision that is subsequently rejected; in the former case the decision conforms with societal consensus or equilibrium, while in the latter case, post-decision processes reflect judicial deviance from such consensus. A final parameter pertains to the value-content of the decision, under which a decision that promotes and protects core societal values should be considered less activist than one that intervenes in low-value policy areas. The model advanced in the article provides a basis for composite qualitative and quantitative assessments of the impact of the judiciary in the social and political spheres.

Continuous Nationality in Loewen

THE CASE of Loewen v. United States 1 has yielded valuable insights into a number of important issues, including the accountability of a federal state for breaches of international law by local courts,2 the requirement of exhaustion of local remedies with respect to the international delict of denial of justice,3 and – most dramatically – the circumstances in which an international tribunal might draw the conclusions that the conduct of a trial was ‘a disgrace’, ‘the antithesis of due process’ and a ‘miscarriage of justice’.4 Yet the case was ultimately dismissed on the grounds that the claims had been assigned to an entity owned and controlled by a US corporation. This, the arbitrators held, defeated a NAFTA requirement of diversity of nationality. True enough, the arbitral tribunal expressed the view that the claim might equally have been dismissed for failure to exhaust local remedies, but that was, it seems, obiter dictum. (If the nationality requirement had not been deemed a decisive obstacle, the exhaustion requirement would have taken its stead as the decisive issue. If so, one might surmise that there would have been a more searching investigation of the factual premises of the exhaustion issue than the one that commended itself to the arbitrators when they believed they were dealing with dicta only.) The tribunal’s treatment of the continuous nationality issue, considering its outcome-determinative effect,5 was startling in its succinctness. It will strike many readers as far less authoritative than the other pronouncements of the award (which, dicta or not, will be studied and cited for many years to come). …

Two Hundred Years ofMarbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Europe

This year we celebrate a United States Supreme Court decision that marks the beginning of modern jurisdiction over constitutional questions:Marbury v. Madison. This is all the more remarkable since, when it was decided two hundred years ago in 1803, it was controversial and many still maintain it was wrongly decided. Chief Justice Marshall ruled on a dispute which he had earlier had a hand in causing, since the alleged legal error – the untimely delivery of a commission to Justice of the Peace Marbury – fell within his area of responsibility as Secretary of State. He dismissed the petition because the incorrect legal procedure had been chosen. However, he did not examine this question at the outset but – contrary to the accepted procedural rules of his time – at the end. This left room for a wide-ranging discussion of the right of judicial review, which was not required by law, and was, therefore,obiter dicta. Thomas Jefferson later referred to this discussion as the Chief Justice's “obiter dissertation.” Of course, Adams himself contended that the case turned on the judicial right of review, since this was a component of his argument that the petition should be dismissed.

Sologub, Nabokov, and the Limits of Decadent Aesthetics

One of more fascinating aspects of Nabokov's artistic method is way he covers his tracks when referring to potential intertextual sources or influences. He prefers his readers to believe that each work has emerged fully formed from broad forehead (as opposed to dark loins) of his Zeus-like consciousness. Or so prefaces to his novels, with their disclaimers as to matters of genealogy and their repeated references to Viennese delegation, would have us think. It is not that Nabokov hesitates to engage in intertextual punning or name-dropping, which practice clearly enriches links within his own works to classics of world literature and culture-to those names, titles, characters, lines of verse, emplotted situations, titbits of literary (and nonliterary) history, and so on, whose subtle interweaving makes Nabokov, like Joyce, one of central figures in twentieth-century high modernism. However, to judge by master's obiter dicta, this intertextual play is not meant in any serious way to undermine originality of a novel's or story's central idea. Cincinnatus C. is not, despite many intriguing parallels, an intertextual brother to Joseph K., since at time (1934) he wrote Invitation to a Beheading (Priglashenie na kazn), Nabokov-Sirin supposedly no German, was completely ignorant of modern German literature, and had not yet read any French or English translations of Kafka's works.' My own point in these preliminaries is not to gainsay Nabokov, as he may be telling truth,2 but rather to underscore his expressed need to distance himself from Kafka and to assert his own independence (the one influence he will admit being of course the melancholy, extravagant, wise, witty, magical, and altogether delightful Pierre Delalande, whom I [Nabokov-Sirin] invented).3 In this respect, Nabokov beats his bqte noire, Freudians, to punch: even as he protests too much about how critics have hurled harmless missiles of Gogol, Tolstoevski, Joyce, Voltaire, Sade, Stendhal, Balzac, Byron ... [the list goes on to include other greats as well as fictional authors]4 in his direction as sources for his style and ideas, he wins. Either

Fog and Acid Rain Drifting from Luxembourg over Art. 95(4) EC: Case C-3/0 Kingdom of Denmark v. the Commission of the European Communities Danish Food Case

Summary: Art. 95 EC illustrates the Janus-face of the EC Treaty: While being perhaps the most important vehicle for an ever closer market integration, it also recognizes Member States’ right to derogate from Community harmonization in order to protect fundamental needs such as protection of public health and environment. On 20 March this year, the European Court of Justice (ECJ) set out to clarify this dichotomy in a case concerning Denmark's right to maintain national provisions derogating from a Community Directive on the use of additives in foodstuffs. Apart from presenting an exhaustive interpretation of the conditions in Art. 95(4) EC, the ECJ also touched upon a variety of fundamental issues such as the right to be heard and the extent of judicial review. At first sight, the judgment seems to afford Member States considerable autonomy to maintain a higher level of protection of major needs, e.g. public health. However, upon closer scrutiny it appears that the ECJ may in fact have limited the scope of Art. 95(4) EC. As the Court also rejected Member States’ right to be heard in derogation procedures and informed in an obiter dictum that it will not review the Commission's assessment of proportionality under Art. 95(6) EC, the judgment mirrors the Janus-face of the provision it attempted to clarify. In sum, it seems that Member States will have serious difficulties in fulfilling the conditions for maintaining a higher level of protection than Community standards. Furthermore, the ECJ has left the Commission with considerable discretion in deciding whether to approve or reject national legislation.

The Legal Road to Rights? Disabling Premises, Obiter Dicta and the Disability Discrimination Act 1995

This article offers a critical exploration of the current limits of the law in establishing and maintaining the rights of disabled people. By offering a critical jurisprudence perspective and applying this to the Disability Discrimination Act 1995, the article highlights the way in which pre-existing social dynamics underpin the manufacture and application of law. Despite the growth of social constructionist, realist, critical and post-modern views of laws, the continued power of natural and positivist views of laws as a supra-social code helps explain the current limits to anti-discrimination law. It is argued that, as a socially created phenomenon, law can be radically reconstructed. However, unless a fundamental reappraisal of law is undertaken, the Disability Discrimination Act and related legislation is likely to remain severely constrained.

PERENNIAL QUESTIONS

(Editor's Note: in the late 1960s Tempo featured a regular column written by the late Hans Keller entitled ‘The Contemporary Problem’ – an attempt, in the author's inimitable fashion, to probe behind current musical events and put them in perspective. Partly through the nature of that perspective the feature generated lively correspondence. It is our hope to provide a similar service for the 21st century with a new, occasional series of articles by different hands. Rather than suggest that contemporary music has (or is) a problem, or for a single author to encompass it about with obiter dicta, the idea is for writers to sound off about the broader issues of performance, asthetics, comprehension and silent assumption that happen to concern them and which underlie much contemporary musical activity and composition – to ask questions which have been around as long as music has, which rarely get asked and which perhaps have no definitive answer. (They are perhaps all aspects of the largest question of all: ‘What is new music FOR?’)The editor will gladly consider topics, proposals, or answers to these PQs from all quarters. Meanwhile the following essay by Julian Silverman, sparked off by reading the letter from the Scottish composer David Johnson in Tempo 222 (October 2002) – itself prompted by features in two previous issues – seems a good point at which to launch this occasional series. Nothing is more perennial, especially in this age of maximum availability of recorded repertoire, than the question of what do about the past, which is always with us.)

A TALE OF TWO SUPREMACIES, FOUR GREENGROCERS, A FISHMONGER, AND THE SEEDS OF A CONSTITUTIONAL COURT

The phrase “hierarchy of norms” sounds alien or continental to the ears of most British constitutional lawyers: generations have been taught that, in order to respect the sovereignty of Parliament, they should compare statutes only in temporal terms, preferring a more recent statute over incompatible older ones. In Thoburn v. Sunderland City Council and related appeals [2002] EWHC 195 (Admin), [2002] 3 W.L.R. 247, four greengrocers and a fishmonger, backed by the UK Independence Party, unsuccessfully invoked this doctrine of implied repeal to challenge the validity of the UK’s messy implementation of European Metrication Directives. If obiter dicta by Laws L.J. are followed, it will be not for our political representatives but for our courts to decide whether to prefer older statutes protecting “constitutional rights” over more recent statutes, and to rank constitutional rights.

The Retrospective Effect of S. 6 of the Human Rights Act 1998

When the House of Lords delivered its judgment in Lambert, comment initially concerned the fact that their Lordships held that the legal burden of proof placed on defendants in s. 28 of the Misuse of Drugs Act 1971 contravened the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights. This was indeed a major and potentially far-reaching finding, but it was in fact obiter dicta for the House also held that a defendant who was convicted prior to s. 6 of the Human Rights Act 1998 coming into force could not rely on that section in an appeal after the Act came into force, except in certain carefully prescribed circumstances. It is only now when subsequent case law has challenged this finding that its importance has been fully recognised. This article aims to respond to the academic neglect of this point through a careful scrutiny of the judgments in Lambert and will argue that, despite recent judicial criticism, the majority in Lambert deconstructed a complex statutory framework to expose Parliament's limited intention to ‘bring rights home’.

Immunity for Core Crimes? The ICJ's Judgment in the Congo v. Belgium Case

The ICJ, in its Judgment in The Congo v. Belgium (the so‐called Yerodia case), stated in a problematic obiter dictum that, before national courts, former Ministers for Foreign Affairs enjoy immunity even if they committed a serious international crime, unless they acted in their private capacity. It seems that this statement (for which the Court gives no reasons) does not properly reflect the current state of customary international law. Rather, modern state practice and opinion juris deny immunities for core crimes to all former and incumbent state officials with the sole exception of the highest state representatives such as Heads of State or Ministers for Foreign Affairs; and even these persons are protected only while in office (as has been demonstrated in the Pinochet case). It is submitted that this rule not only reflects positive law but at the same time strikes the proper balance between, on the one hand, the need to protect a state's ability to discharge its most important tasks (such as the maintenance of peace), and, on the other hand, the need to punish serious violations of human rights (once retired, even Heads of State can be held responsible).

A burial ahead of its time? The Crookenden burial case and the sanctioning of cremation in England and Wales

For more than 1000 years before the 19th century burial was the conventionally respectful way of dealing with dead bodies in Christian Europe. From the moment in 1874 when it was founded to replace burial by cremation, the Cremation Society of England was always concerned to appear respectable. Although it was not clear that cremation was lawful, it was far from certain that it was illegal—indeed the Society received legal advice that cremation could be conducted lawfully. One consequence of the Society's concern for respectability, however, was that it was unwilling to take the risks involved in testing the law. It wanted legislation expressly permitting cremation or assurances from the Home Office that it would not be prosecuted should it carry out a cremation. Neither were forthcoming. A single adverse judicial precedent would be a great impediment to the Society, but since it was not prepared to force the issue, it was not able to shape the contexts in which judicial precedents might be created. In this it was at the mercy of others, and it is extremely unlikely that it would have chosen the first two occasions on which the issue did come before the courts. The first was provided in 1882 by the litigation that arose from the exhumation in England and cremation in Milan of Henry Crookenden in 1878, which the Society had helped arrange. It is probable that the view of the judge who decided the case was that cremation was unlawful but the Society was fortunate that he did not find it necessary to come to a firm decision about that. On the second occasion when the issue came before the courts—the prosecution of William Price in 1884 for cremating rather than burying his son's body—the circumstances were even less favourable to the Society's cause and the issue could not be avoided. Fortunate previously, the Society was triply fortunate now: James Fitzjames Stephen, the judge, was not unsympathetic to cremation, he liked William Price, and the views of the judge in the Crookenden case about the legality of cremation had not been recorded in the official law report. Stephen was therefore able to say that there was not even an obiter dicta adverse to cremation and he ruled that cremation was lawful. This ruling, being no more than that of a single trial judge, was not a binding precedent, but it was authoritative and the Society was emboldened by it to begin cremations. There were no further prosecutions and, when legislation came in 1902, it was permissive and regulatory rather than prohibitive . Though now of less relevance to cremation, the decision in Price is still an authority about the permissibility of other—indeed of any—means of dealing with dead bodies. It is likely to be increasingly regarded as people take greater initiatives in devising their own funerary rituals.

Political Atheism: Dred Scott , Roger Brooke Taney, and Orestes A. Brownson

The Supreme Court's Dred Scott decision in early March of 1857 inflamed the national debate over slavery and deepened the divide that led ultimately to the Civil War. The decision has been analyzed repeatedly by historians and legal scholars, and has created divergent opinions on what was legally decided and what was merely obiter dictum, and on whether the case was influenced more by politics than by law.1 Many historians claim that the decision destroyed the Chief Justice Roger Brooke Taney's (1777-1864)2 reputation as a legal scholar and weakened the authority of the Supreme Court in its immediate aftermath. Little noticed in the literature on the case is the debate that took place in the American Catholic community after the decision. Contemporaries and historians alike at times called attention to the fact that Taney was a Maryland Catholic, and some anti-Catholic religious newspaper editors in the North singled out his religious identification as one of the reasons for his ex cathedra decision in favor of slavery. On the whole, though, few contemporaries or historians paid any attention to the divergent American Catholic reactions to the decision, nor to the debate among Catholic journalists and newspaper editors on the wider issue of the relationship of religion and politics that the decision triggered in the Catholic community. This paper focuses upon the religious issue that some Catholics saw in Dred Scott. In 1846 Dred Scott, a slave living in St. Louis, maintained in a Missouri state court that he, his wife, and his two children were legally entitled to their freedom because they had sojourned in a free state (Illinois) and in free territory (Minnesota). In 1854 Scott's suit for freedom was brought before the United States Supreme Court asking for a reversal of a District Court's decision declaring him still a slave. The case was argued and reargued before the Supreme Court in 1856, and, after the March, 1857, inauguration of Democrat James Buchanan as president of the United States, the Court announced its decision. Taney delivered the opinion of the Court in Dred Scott v. Sandford,3 arguing that Scott was not only a slave but that he was also not a citizen of the United States and therefore could not legitimately sue in a federal court of law, that no Negro (free or slave) could be a citizen of the United States, and that Congress had no power to prohibit slavery in the territories (and, thus, the Missouri Compromise of 1820 was unconstitutional). Two of the nine justices, Justices John McLean and Benjamin R. Curtis, offered extensive and vigorous dissenting opinions. The decision was well received by the majority in the South, the pro-slavery part of the Democratic party, and a few editors of Democratic papers in the North. It was rejected and attacked by the newly organized Republican party, the abolitionists, a significant number of editors of religious newspapers in the North, and by anti-slavery Democrats. The American Catholic community, too, was divided in reacting to the decision. The primary issues for those Catholics who expressed an opinion about the case revolved around the arguments and language Taney used to declare that the Constitution did not intend to include Negroes as citizens of the United He based his view upon an historical interpretation of attitudes toward Negroes, arguing that the original intent of the Declaration of Independence and the United States Constitution, when interpreted within the context of the times in which they were written, excluded Negroes from citizenship-they were not conceived of by the founding Fathers as part of thepeople of the United States. Otherwise, there would be a complete disjunction between what they articulated in those documents and their practices of slavery. Taney asserted that racial attitudes were almost universally present at the time the Constitution was formed. In forceful language he argued: We think they [Negroes] are not, and that they are not included, and were not intended to be included, under the wordcitizens in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United …

The Political Economy of the New South: Retrospects and Prospects

A CONFERENCE TO EVALUATE AND ASSESS THE INFLUENCE OF C. VANN Woodward's Origins of the New South a half century after its publication is certainly remarkable. (1) Few historical studies have the staying power that would justify such a conference, especially in these days of almost instant revisionism. Ordinarily, fifty-year-old books, if not completely forgotten and ignored in new scholarship, are mentioned as documents that illustrate the views of the time they were written but are now obsolete. Rarely are they considered to be important interpretive contributions to the problems being studied. The career of Origins has been quite different. Over the years, many scholars have argued that the book's basic interpretive thrust remained viable even in the face of revisionist efforts. After surveying the scholarship on issues raised by Origins in the twenty years since its publication, Sheldon Hackney declared that the book had survived relatively untarnished; a decade later J. Morgan Kousser and James M. McPherson announced that Hackney's assessment still remained valid. Woodward also offered his own assessment. His 1986 memoir, Thinking Back, is a sensitive and insightful discussion of his career and scholarship in which he gives recognition to his critics--at least some of them--in the form of both modifying (somewhat) and clarifying his positions, but in a usually convincing, if sometimes slippery, manner that leaves the basic structure of his work intact. (2) The staying power of Origins is revealed in another way in the bibliographies and historiographical essays dealing with all aspects of the period 1877 to 1913. (3) These surveys do not show that all of Woodward's interpretations stand undisputed or unscathed, but they do demonstrate how much of the literature deals with the same questions he asked a half century ago--even when the answers sometimes, but certainly not always, differ. Moreover, even when more recent work poses new problems or suggests new approaches, Woodward, as Edward L. Ayers put it in his splendid study, never far from my mind. Indeed, one rarely comes across a book or essay concerning the post-Reconstruction South where the author fails to indicate how his or her interpretation fits into the literature and arguments that stem from Woodward's work. (4) In sum, Woodward's 1951 study turned our view of the post-Reconstruction South in a different direction, and now, fifty years later, that direction remains dominant. Because Origins has had this remarkable staying power and because it has already been the subject of so many evaluations and assessments, a new and original appraisal becomes difficult, a difficulty compounded by my specific assignment here. My task in this discussion is to consider Woodward's treatment of economic, agricultural, and legal matters. This is obviously a major assignment that includes almost everything in Origins, because these matters, given Woodward's clearly articulated Beardian approach, are at the core of his analysis here and in much of his other work as well. (5) (I cannot resist noting that there is a certain irony--very appropriate at a Woodward conference--in the fact that Charles Beard is one of those historians who, unfortunately, in my view, seems to have been revised out of existence and is seldom read these days. But his seemingly faded interpretation is very alive at the heart of Woodward's analysis. Beard's economic interpretation is not without problems, but it is far less crudely reductive than some of his critics have contended and, in any case, far less crudely reductive than the work of some of the still widely read cliometricians. But that's obiter dicta, as a lawyer might say.) Like Beard, Woodward saw class conflict and the clash of economic interests as central to American history. He was particularly drawn to Charles and Mary Beard, who in their textbook emphasized the industrial-agricultural antagonism that had divided North and South and led to the Civil War, resulting in what they called the Second American Revolution: the victory of the industrialists and the destruction of southern agrarianism based upon slavery. …

Indexes reviewed

These extracts from reviews do not pretend to represent a complete survey of all reviews in journals and newspapers. We offer only a selection from quotations that members have sent in. Our reproduction of comments is not a stamp of approval from the Society of Indexers upon the reviewer’s assessment of an index. Extracts are arranged alphabetically under the names of publishers, under the sections: Indexes praised; Two cheers!; Indexes censured; Indexes omitted; Obiter dicta.