PANEL: Race, Criminal Justice, and the Federal Courts in the Twentieth Century Saturday, October 24, 10:15-11:45 Chair: Robert J. Cottrol, George Washington University Law School Doing Legal Work in Historical Time: Some Thoughts on Reconciling Frank v. Magnum and Moore v. Dempsey Eric M. Freedman, Hofstra University School of Law Reconciling the cases of Frank v. Magnum, 237 U.S. 309 (1915), and Moore v. Dempsey, 261 U.S. 86 (1923)--in which seemingly identical facts led to diametrically opposed results--poses a continuing puzzle. In both cases, unpopular defendants tried in allegedly mob-dominated Southern courtrooms brought federal habeas corpus petitions and pressed due process claims upon the Supreme Court. But the outcomes were entirely different. The Court refused to intervene in the first case, but granted relief in the second--asserting, all the while, that there was no inconsistency between the two decisions. In attempting a reconciliation, legal scholars have not brought to bear any of the substantial body of historical knowledge that exists concerning these cases, both of which were major national events. The primary purpose of this paper is to offer a corrective to that situation by recounting the cases in a way that will significantly broaden the data with which the debate is conducted. Specifically, there will be published here for the first time a number of draft and unpublished opinions, pleadings, briefs, and other legal materials. In addition, the account relies upon documentation of a historical--albeit not necessarily legal--nature, raising the secondary question of the interplay between the legal and historical modes of explaining the different outcomes. The concluding suggestion is that--as the actors die and new controversies arise--"historical" explanations (such as the identities of the Justices) tend to lose force over time, while ones based on legal doctrine tend to gain it. The NAACP, Civil Rights, and Criminal Extradition Eric W. Rise, Criminal Justice Program, University of Delaware Between 1920 and 1950 the NAACP became involved in several cases in which southern states sought to extradite African Americans who had fled to northern or western states. The principal difficulty that the NAACP encountered in fighting extradition was that the U.S. Constitution requires states to return fugitives from justice. NAACP lawyers attempted to get around that obstacle by advancing the argument that states could not legitimately invoke the constitutional guarantee of "full faith and credit" to recover a fugitive who had been denied his constitutional rights to due process and equal protection. Although some lower federal court judges accepted the argument, the "fugitive rights" doctrine never received widespread judicial support. Nevertheless, a study of the strategy is important for three reasons. First, it raises important issues about federalism and civil rights. Just as abolitionists before the Civil War confronted fugitive slave laws that favored the rights of slave owners, northern governors and federal judges who were sympathetic to the goals of the NAACP found themselves hamstrung by the constitutional requirement of comity among the states. Second, the extradition cases demonstrate the importance of political action in achieving civil rights, as NAACP officials accompanied legal maneuvering with political mobilization to pressure northern governors to refuse extradition requests. Conversely, southern congressmen threatened to impeach federal judges who blocked extradition. Finally, the NAACP's work in extradition cases demonstrates that the organization's legal efforts were not restricted to desegregation but also attempted to extend civil rights through criminal litigation. Let's Bring Back Kentucky v. Dennison: How the Supreme Court Failed to Read the Constitution and Missed the Boat on Interstate Extradition Paul Finkelman, University of Akron School of Law In 1861 the U.S. Supreme Court ruled, in Kentucky v. Dennison, that a state governor could not be compelled to comply with an extradition requisition from another state. This case involved a black man from Ohio who was wanted for "stealing" a slave woman from Kentucky and bringing her to Ohio. That case remained good law until 1987 when the Supreme Court reversed this precedent in Puerto Rico v. Bransted. This paper will discuss the importance of Dennison and argue that this is a precedent that should be revived. In part I will argue that refusal to extradite has traditionally been used to protect racial and political minorities from unfair or biased prosecutions, or politically motivated prosecutions. As such, the option to not extradite has allowed for some measure of justice in our society. Furthermore, the intent of the extradition clause of the Constitution was to create a state-to-state or governor-to-governor process without a role for the federal government. The Dennison case has mostly been used to protect racial minorities, including one of the Scottsboro boys. Ironically, Justice Thurgood Marshall, forgetting or ignoring the historical use of Dennison, wrote the majority opinion in Bransted. Comment: Mark V. Tushnet, Georgetown University Law Center