Weekend Roundup

• "The William & Mary Archive of American LGBTQ Political and Legal History, a first of its kind in the United States, will be featured at a June 7 event celebrating PRIDE month at the W&M Washington Center" (William and Mary News).  Another report of the archive (WYDaily).
  

• Ron Harris. the Kalman Lubowsky Professor of Law and History, Tel Aviv University, delivered "The Globalization of Company Law 1844-1914," the Youard Lecture in Legal History for 2023, at the University of Oxford Faculty of Law on May 30.
  

• In The Dark Side of Defamation Law, a featured review in the New Yorker, Jeannie Suk Gersen reviews Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan by Samantha Barbas.  Actual Malice also made the New Yorker’s list of “The Best Books We've Read in 2023 So Far.”

• A recording of that Supreme Court Historical Society session on securities regulation and the Supreme Court with Adam Pritchard and Robert Thompson has been posted to YouTube.
  

• Ken Bridges, South Arkansas Community College, on the "Brooker Brothers," two African American lawyers who “shaped Arkansas’s legal landscape” (El Dorado News-Times)
  

• ICYMI: Emily Blanck, Rowan University, on her forthcoming Remembering Emancipation: Juneteenth as America’s Emancipation Holiday (University of North Carolina Press) (Rowan Today).  A South Carolina lawyer will ask the Supreme Court to rename Brown v. Board of Education as Briggs v. Elliott  (ABAJ).  Steven Mintz on Rights Talk (IHE Blog).  Troy J.H. Andrade on encountering Queen Lili‘uokalani at the National Portrait Gallery (ACS).  A career tip for Brandeis University graduate students from Winston Bowman, Associate Historian at Federal Judicial Center.
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Woods on Estee's Reports in Hawai'i, 1903-17

Roberta F. Woods, Reference & Instructional Services Librarian at the University of Hawaii School of Law, has posted on SSRN a short piece about an early case reporter in the Hawaiian territory. Here is the abstract for "History of the Four Volumes of Decisions of the United States District Court for the Territory of Hawaii 1903-1917" (2016):

The so-called "Estee's Reports," named for Judge Morris March Estee was an early case reporter in the Hawaiian Territory. Only four volumes of decisions of the United States District Court (USDC) for the Territory of Hawaiʻi were ever printed. They span the years 1903-1917. The decisions in these volumes do not appear in the Federal Reporter covering the same time frame. The Federal Supplement, a West Publishing created reporter of decisions of the federal district courts began in 1933. Prior to 1933, federal district court decisions appeared in the Federal Reporter.

Further information is available here.

--Mitra Sharafi

Subjectivity, Intent and Impact: The Gordian Knot of Empathy and Interpretation

One ideal of early anthropology was that long-term ethnographic research could fully map the social structure and meanings of a specific cultural space. The ethnographer could then give total context for any individual action or social practice, and thus interpret such with a capacity beyond either naïve outsider or self-interested insider. While the realism of this ideal would be progressively deconstructed over time, it spawned a durable holism that recognized the deep interconnection of all material and symbolic contexts.

This holistic aspiration has been recurrently challenged as anthropologists came to recognize the often global interconnections and engagements which permeated the presumed isolation of even “remote” cultural spaces. Anthropology turned to increasingly complex social theories to try and reconcile the way in which its empirical subject became unmoored from static spaces and times, and eventually encompassed the most intensely internationalized settings. As a result great concern emerged for the practice of interpretation far removed from the methodological confidence of anthropology’s pioneering works. And the treacherous pitfalls of writing across stark asymmetries in power, often about people unable to equally represent themselves, even inspired claims that modern anthropology had paralyzed itself through a fetishization of the personal act of writing itself.

It is much more difficult to delineate the general trend of history as discipline, even at this high level of generality. Certainly, interpretation is at the core of archival research, and debates over sources and their meanings have roiled history as an academic practice. No self-critical historian treats their textual sources as a direct portal into the soul of their subject, and the focus of much graduate historical training is the general education required to provide context for documentary interpretation.

But I would advance that the anthropological engagement with history reflects a much greater uncertainty about interpretation, as well as a general theoretical concern with how time itself is structured as a social practice. In my own turn from ethnography to history, I felt this disciplinary anxiety acutely as I tried to reconstruct the creation of a cultural ideology, what I call American legal internationalism, that was formed in spaces both fully transnational and only lightly touched by global forces. Moreover, this ideology was premised on cross-cultural interpretations of the character of foreign peoples and their legal institutions. A further complication was that the driving force of this ideology was literal lawyer-missionaries who carried with them a presumption that their own good intentions would positively impact another society.

One highly influential book in my process of wrestling with these issues was Fredrik Barth’s Ethnic Groups and Boundaries, which theorized about how social identities were formed and reformed through increasingly intense interactions with social “outsiders.” Moreover, in the context of law such cross-cultural judgments had been central to patterns of degradation and subjection in pre-modern empires and modern imperialism alike. This trepidation led me to the writings of the recently passed Tzvetan Todorov, who in his The Morals of History grappled with the ethics of practicing history, especially when intimately tied to cross-cultural engagements.

No episode in the development of historical anthropology outlines these tensions better than the controversy over the arrival and death of James Cook in Hawai’i. In barest form, Cook arrived in Hawai’i for the third time in 1779 during the indigenous Hawaiians celebration of the god Lono. A month later, Cook was killed while attempting to take the local king ransom, and then ritually preserved. The details in-between and their meaning became the grist for one of the public controversies in modern anthropology between Marshall Sahlins and Gananath Obeyesekere.

Rohrer, "Staking Claim: Settler Colonialism and Racialization in Hawai'i"

New from the University of Arizona Press: Staking Claim: Settler Colonialism and Racialization in Hawai'i (2016), by Judy Rohrer (Western Kentucky University). A description from the Press:

In the heart of the Pacific Ocean, Hawai'i exists at a global crosscurrent of indigeneity and race, homeland and diaspora, nation and globalization, sovereignty and imperialism. In order to better understand how settler colonialism works and thus move decolonization efforts forward, Staking Claim analyzes competing claims of identity, belonging, and political status in Hawai'i.

Author Judy Rohrer brings together an analysis of racial formation and colonization in the islands through a study of legal cases, contemporary public discourse (local media and literature), and Hawai'i scholarship. Her analysis exposes how racialization works to obscure—with the ultimate goal of eliminating—native Hawaiian indigeneity, homeland, nation, and sovereignty.

Staking Claim argues that the dual settler colonial processes of racializing native Hawaiians (erasing their indigeneity), and indigenizing non-Hawaiians, enable the staking of non-Hawaiian claims to Hawai'i. It encourages us to think beyond a settler-native binary by analyzing the ways racializations of Hawaiians and various non-Hawaiian settlers and arrivants bolster settler colonial claims, structures, and white supremacist ideologies.

A few blurbs:

Rohrer brilliantly brings together works on indigenous politics, settler colonialism, critical race theory, Native Pacific cultural studies, gender analyses, and Chicana studies to unmask the power of settler colonial processes, while highlighting ongoing resistances. It doesn't stop there; rather, through her fearless engagement with indigenous claims, Rohrer encourages and assists readers, haole or otherwise, to imagine a more just and decolonial future. —Noenoe K. Silva

Focusing on how racializing processes have worked in tandem with land loss, Rohrer skillfully details how haoleness (whiteness) might be activated in ways that unsettle rather than further the structures of settler colonialism that have captured us all. This book brilliantly demonstrates the vitality and necessity of engaging indigeneity across a range of disciplines and subject positions. —Jodi A. Byrd,

More information is available here.

Scheiber and Scheiber on Martial Law in Hawai`i during World War II

The University of Hawai'i Press has released Bayonets in Paradise: Martial Law in Hawai`i during World War II, by Harry N. Scheiber and Jane L. Scheiber (University of California, Berkeley). A description from the Press:

Bayonets in Paradise recounts the extraordinary story of how the army imposed rigid and absolute control on the total population of Hawaii during World War II. Declared immediately after the Pearl Harbor attack, martial law was all-inclusive, bringing under army rule every aspect of the Territory of Hawaiʻi's laws and governmental institutions. Even the judiciary was placed under direct subservience to the military authorities. The result was a protracted crisis in civil liberties, as the army subjected more than 400,000 civilians—citizens and alien residents alike—to sweeping, intrusive social and economic regulations and to enforcement of army orders in provost courts with no semblance of due process. In addition, the army enforced special regulations against Hawaii's large population of Japanese ancestry; thousands of Japanese Americans were investigated, hundreds were arrested, and some 2,000 were incarcerated. In marked contrast to the well-known policy of the mass removals on the West Coast, however, Hawai`i’s policy was one of “selective,” albeit preventive, detention.

Army rule in Hawai`i lasted until late 1944—making it the longest period in which an American civilian population has ever been governed under martial law. The army brass invoked the imperatives of security and “military necessity” to perpetuate its regime of censorship, curfews, forced work assignments, and arbitrary “justice” in the military courts. Broadly accepted at first, these policies led in time to dramatic clashes over the wisdom and constitutionality of martial law, involving the president, his top Cabinet officials, and the military. The authors also provide a rich analysis of the legal challenges to martial law that culminated in Duncan v. Kahanamoku, a remarkable case in which the U.S. Supreme Court finally heard argument on the martial law regime—and ruled in 1946 that provost court justice and the military’s usurpation of the civilian government had been illegal. 

Harry and Jane Scheiber (credit)

Based largely on archival sources, this comprehensive, authoritative study places the long-neglected and largely unknown history of martial law in Hawaiʻi in the larger context of America's ongoing struggle between the defense of constitutional liberties and the exercise of emergency powers.

A sampling of the very impressive set of blurbs (other reviewers include Roger Daniels, John Witte, Jr., and Bob Gordon):

"In their deeply researched and definitive account of Hawaii under martial law in the days, months, and years following Pearl Harbor, the Scheibers brilliantly tell a story of military arrogance and overreach, in which a strong dash of prejudice against islanders of Japanese descent also played a part. Bayonets in Paradise is a stunning scholarly achievement, written with understated passion, and reminding us that hard times are always a challenge to the rule of law and constitutional government—a reminder that has particular resonance today." —Lawrence M. Friedman

"Bayonets in Paradise is a labor of love by two of the very best scholars of the recurring struggle between military necessity and civil liberties in American history. The issue of rights during crisis times is likely to be in front of us for the foreseeable future. Harry and Jane Scheiber’s book is an invaluable record of a forgotten but crucial episode in our history, illuminating not only the past but also the dilemmas of today and tomorrow.” —John Fabian Witt

More information is available here.

Burger & Frymer, "Property Law and American Empire"

Michael Burger (Roger Williams University School of Law) and Paul Frymer (Princeton University) have posted "Property Law and American Empire." It is forthcoming in Volume 34 of the University of Hawaii Law Review (2013). Here's the abstract:

Current scholarship by legal commentators and political scientists recognizes that the weapons of American empire have involved non-militaristic activities as much as militaristic ones. Such non-militaristic activities include the hegemonic influence of trade agreements, the imposition of legal and procedural norms, and the dissemination of ideological and cultural predispositions through corporations and diverse medias. In this paper, we examine an under-explored area on the “soft” belly of the American leviathan, focusing specifically on how property and intellectual property law have operated on physical and ideological frontiers to comprehend, participate in, and legitimate the expansion of American empire. We offer new accounts of two historical instances of empire-building: the acquisition and seizure of property from Native Americans in the early- and mid-19th century, and the expropriation of intellectual property rights to plant genetic resources from indigenous communities in the global South in the late 20th century. These two stories, taken together, offer unique insights into both the process and the substance of law’s operation on the frontier of empire. They illuminate how the authority of law has fused with private power and legal legitimacy to enable the nation to expand swiftly, energetically, and powerfully. These insights, in turn, lead toward the more general conclusion that the rhetoric of property has functioned to subjugate peoples and places, cultures and natures, to an imperial regime.

The full article is available here, at SSRN.

Hat tip: bookforum

Moʻolelo Kālai ʻĀina Hou: (Happy) New Political and Legal Histories

This semester I taught a new graduate level course in Hawaiian historical research in archives.  An unprecedented fourteen students signed up for the course; four of them had completed second year Hawaiian while the other ten had four years or more of Hawaiian language training. A surprising number of my students are  interested in topics dealing with Hawaiian governance and law. What makes their work striking is that their research projects do not conform to the historiographic trajectory that currently reigns supreme in histories of U.S.-Hawaiʻi relations. Rather than obsessively focusing on outcomes – how the Hawaiian Kingdom was “lost,” who was at fault, and how Hawai’i became a U.S. possession – my graduate students asked questions about the Hawaiian and non Hawaiian legislators who held office from 1840-1900.

They were interested in how these men and women became lawyers, judges, and politicians, and how the Kingdom of Hawaiʻi functioned as a nation. One student chanced across the case of Judge Kauaʻi who had served as a legislative representative and judge on the island of Kauaʻi. In 1888, after a long, distinguished career, he was accused of having leprosy by a grudge bearing deputy sheriff and arrested. In an eleven page letter, written in Hawaiian to Supreme Court Justice Albert Francis Judd, he argued his innocence, quoting from recently passed laws and policies that promised that the afflicted would be treated in local hospitals until their disease was acute, all the while protesting his “innocence,” and reminding Judd of their longstanding friendship. Another student focused on the lives and careers of five prominent legislative representatives including Hawaiian lawyer, newspaper publisher and legislator Joseph Kahoʻoluhi Nawahi, while yet another tracked a year of kanaka maoli protest through Hawaiian language newspapers over the proposed cession of Pearl Harbor to the U.S. in 1877. When I read and corrected the transcriptions and translations of primary sources that my students produced, and I finished grading fourteen 25 page research papers, three of which were written in Hawaiian, I took heart that the history of nineteenth century Hawaiʻi, the Pacific World and America’s place within it has a long way to grow.  

Hauʻoli Makahiki Hou! (Happy New Year from Hawaiʻi) 

I ka ʻōlelo nō ke ola: In speech there is life

“Hawaiʻi has perhaps the largest indigenous language archive in the U.S and the Pacific.”

     Aloha mai kākou. Thank you to Karen Tani, Dan Ernst and Clara Altman for inviting me to guest blog on the LHB. My current project looks at transformations in Hawaiian governance and law during the period of early encounter and foreign settlement in Hawaiʻi, from the late 1790s through the 1830s. Raising questions about early regimes of law in the proto-Hawaiian kingdom (the first constitution was promulgated in 1840), my project argues that Hawaiian aliʻi (chiefs) were not dependent upon foreigners to establish law as a means to introduce order into Hawaiian society; instead kānāwai (published laws) were introduced in the Hawaiian context in order to extend the rule of the aliʻi over an increasingly cosmopolitan mix of transient and settler foreigners. In my research I found that kapu (oral pronouncement, restriction, law) was not abolished, as many historians argue in 1819. Instead, examples of kapu persist, continuing to shape the behavior and morality of Hawaiian subjects, since this form of law applied foremost to Hawaiian subjects in the Hawaiian language, and many kapu were eventually enshrined in kānāwai during the Kingdom period. While my project reveals heretofore overlooked nuances in Hawaiian governance and rule, it also reveals the extent to which the creation of law emerged from the increasing interaction between Hawaiian people and foreigners on Hawaiian soil.

I ka ‘ōlelo nō ke ola

     Today this phrase is employed and understood in Hawaiʻi to relate to the importance of Hawaiian language to the perpetuation of Hawaiian culture and the health of ka lāhui Hawaiʻi, the Hawaiian people. It has been taken up as a motto by the Hawaiian language immersion schools to promote the project of preserving Hawaiian language through the education of Hawaiʻi’s youth. Although many immersion schools struggle day to day for continued support, it is now possible to obtain an education in Hawaiian language from preschool through the Ph.D. This is an important development for my work, since the infrastructure now exists to create scholars fluent in Hawaiian language who are capable of conducting research and begin the important work of interpreting the vast archive of Hawaiian language source material available to historians and legal scholars interested in pre-contact and nineteenth century Hawaiʻi and the U.S.

Ka palapala

     Hawaiʻi has perhaps the largest indigenous language archive in the United States and the Pacific, and yet, most of the histories written about Hawaiʻi have left out these incredible resources. The American missionaries who arrived in the archipelago in 1819 from the American Board of Commissioners for Foreign Missions brought printing presses with them, and the important mandate to give the Bible to Hawaiians in their own language. Hawaiians immediately took to learning the palapala (reading and writing) and began to write and publish in the Hawaiian language, a literary production that persisted well into the middle of the twentieth century. It is because of the introduction of New England print culture and the avid pursuit of publishing and writing among Hawaiians that this huge archive exists today.The information available through Hawaiian language publications and manuscript sources will assist scholars in radically rewriting the legal and political history of the Hawaiian Kingdom and its political, diplomatic, and legal relations with the United States and the world. Hawaiʻi can serve as an example of the kinds of histories that can be written when scholars approach indigenous language sources as authoritative and on par with those written in English or other languages of prestige in the academy.

     In the weeks that follow I hope to introduce interesting developments in legal history that make use of Hawaiian language source material. In the meantime, I hope that you enjoy this link to an important ongoing project which makes Hawaiian language newspapers available online.

http://nupepa.org/

Once you navigate to this page, you may click the upper right hand arrow for site instructions in English.

Me ke aloha,

Noelani Arista