Bazyler on the Holocaust, genocide, and law

Michael Bazyler, Fowler School of Law, Chapman University published Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World with Oxford University Press in 2016. From the publisher:

A great deal of contemporary law has a direct connection to the Holocaust. That connection, however, is seldom acknowledged in legal texts and has never been the subject of a full-length scholarly work. This book examines the background of the Holocaust and genocide through the prism of the law; the criminal and civil prosecution of the Nazis and their collaborators for Holocaust-era crimes; and contemporary attempts to criminally prosecute perpetrators for the crime of genocide. It provides the history of the Holocaust as a legal event, and sets out how genocide has become known as the "crime of crimes" under both international law and in popular discourse. It goes on to discuss specific post-Holocaust legal topics, and examines the Holocaust as a catalyst for post-Holocaust international justice. Together, this collection of subjects establishes a new legal discipline, which the author Michael Bazyler labels "Post-Holocaust Law."

Praise for the book, which won the 2016 National Jewish Book Award:

"Michael Bazyler has written a comprehensive and compelling study of the legal historiography of the Holocaust, the paradigm of radical evil, and of genocide, the 'crime of crimes.' This book makes a singular contribution to the pursuit of international justice, and to the prevention and combatting of mass atrocity and genocide in our time. An indispensable resource." -Irwin Cotler

"A unique and important book. Michael Bazyler presents a broad, up-to-date overview of Holocaust justice ranging from landmark criminal trials to restitution litigation to the prosecution of Holocaust deniers. He also discusses the ramifications of the Holocaust's judicial reckoning on how the world has addressed, successfully or not, contemporary state-sponsored atrocities across the globe."-Norman Goda

"Prof. Bazyler's book is different than other books on the Holocaust. He first depicts the Holocaust as 'a legal event,' arguing that it was the law, and not its absence, that became an instrument for destruction. He then analyzes current efforts to build a legal world based on what he labels 'Post-Holocaust Law.' This book is a must-read." -Dina Porat

"Bazyler deploys considerable legal expertise to underpin his first, and for readers of this Journal arguably most important thesis: that the Nazi persecution of the Jews, leading ultimately to the attempted genocide of the entire Jewish people, was carried out within a framework of law, even though this was in reality a corrupted and perverted form of pseudo-legality in which only the external forms of true legality were preserved." - Anthony Grenville

 Further information is available here.

Koposov on memory, history, and law

Nikolay Koposov, Emory University, has published Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia with Cambridge University Press. From the publisher:

Laws against Holocaust denial are perhaps the best-known manifestation of the present-day politics of historical memory. In Memory Laws, Memory Wars, Nikolay Koposov examines the phenomenon of memory laws in Western and Eastern Europe, Ukraine, and Russia and exposes their very different purposes in the East and West. In Western Europe, he shows how memory laws were designed to create a common European memory centred on the memory of the Holocaust as a means of integrating Europe, combating racism, and averting national and ethnic conflicts. In Russia and Eastern Europe, by contrast, legislation on the issues of the past is often used to give the force of law to narratives which serve the narrower interests of nation states and protect the memory of perpetrators rather than victims. This will be essential reading for all those interested in ongoing conflicts over the legacy of the Second World War, Nazism, and communism.

Here is the Table of Contents:

• Introduction
• 1. The rise of memory and the origins of memory laws
• 2. Memory laws in Western Europe
• 3. Memory laws in Eastern Europe
• 4. Memory laws in Ukraine
• 5. Memory laws in Yeltsin's Russia
• 6. Memory laws in Putin's Russia
• Conclusion

Further information is available here.

Douglas on a Nazi War Crimes Trial

Lawrence Douglas, Amherst College, published The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial with Princeton University Press in 2016. From the press:

In 2009, Harper's Magazine sent war-crimes expert Lawrence Douglas to Munich to cover the last chapter of the lengthiest case ever to arise from the Holocaust: the trial of eighty-nine-year-old John Demjanjuk. Demjanjuk’s legal odyssey began in 1975, when American investigators received evidence alleging that the Cleveland autoworker and naturalized US citizen had collaborated in Nazi genocide. In the years that followed, Demjanjuk was stripped of his American citizenship and sentenced to death by a Jerusalem court as "Ivan the Terrible" of Treblinka—only to be cleared in one of the most notorious cases of mistaken identity in legal history. Finally, in 2011, after eighteen months of trial, a court in Munich convicted the native Ukrainian of assisting Hitler’s SS in the murder of 28,060 Jews at Sobibor, a death camp in eastern Poland. 

An award-winning novelist as well as legal scholar, Douglas offers a compulsively readable history of Demjanjuk’s bizarre case. The Right Wrong Man is both a gripping eyewitness account of the last major Holocaust trial to galvanize world attention and a vital meditation on the law’s effort to bring legal closure to the most horrific chapter in modern history.

Praise for the book:

"Douglas relates with authority and clarity the story of these complex legal processes. . . . [He] does justice to both the story's factual complexities and its moral and political conundrums. . . . The Right Wrong Man, from its summary title to its thoughtful postscript, is an impressive work, as well as a timely one in its demonstration of the power of legal systems to learn from past missteps." -Anthony Julius

"The Right Wrong Man is powerful, richly observed, and darkly entertaining. Anyone interested in postwar history will want to read it." -Elizabeth Kolbert

"Lawrence Douglas has once again provided us with a history-laden and provocative analysis of Holocaust trials. His riveting study of the Demjanjuk saga is of importance, not just to historians and jurists, but to all those who wonder how can justice ever prevail when the crime being adjudicated is genocide." -Deborah E. Lipstadt

Further information is available here.

An Essay Collection on "Law and Memory"

Published last fall by the Cambridge University Press is Law and Memory: Towards Legal Governance of History, edited by Uladzislau Belavusau, University of Amsterdam, and Aleksandra Gliszczynska-Grabias, Polish Academy of Sciences.

Legal governance of memory has played a central role in establishing hegemony of monumental history, and has forged national identities and integration processes in Europe and beyond. In this book, a range of contributors explore both the nature and role of legal engagement into historical memory in selected national law, European and international law. They also reflect on potential conflicts between legal governance, political pluralism, and fundamental rights, such as freedom of expression. In recent years, there have been numerous monumental commemoration practices and judicial trials about correlated events all over the world, and this is a prime opportunity to undertake an important global comparative scrutiny of memory laws. Against the background of mass re-writing of history in different parts of the world, this book revisits a fascinating subject of memory laws from the standpoint of comparative law and transitional justice.

Bilsky's "Holocaust, Corporations, and the Law"

Leora Bilsky, Tel Aviv University, has published The Holocaust, Corporations, and the Law: Unfinished Business with the University of Michigan Press:

The Holocaust, Corporations, and the Law explores the challenge posed by the Holocaust to legal and political thought by examining issues raised by the restitution class action suits brought against Swiss banks and German corporations before American federal courts in the 1990s. Although the suits were settled for unprecedented amounts of money, the defendants did not formally assume any legal responsibility. Thus, the lawsuits were bitterly criticized by lawyers for betraying justice and by historians for distorting history.

Leora Bilsky argues class action litigation and settlement offer a mode of accountability well suited to addressing the bureaucratic nature of business involvement in atrocities. Prior to these lawsuits, legal treatment of the Holocaust was dominated by criminal law and its individualistic assumptions, consistently failing to relate to the structural aspects of Nazi crimes. Engaging critically with contemporary debates about corporate responsibility for human rights violations and assumptions about “law,” she argues for the need to design processes that make multinational corporations accountable, and examines the implications for transitional justice, the relationship between law and history, and for community and representation in a post-national world. Her novel interpretation of the restitution lawsuits not only adds an important dimension to the study of Holocaust trials, but also makes an innovative contribution to broader and pressing contemporary legal and political debates. In an era when corporations are ever more powerful and international, Bilsky’s arguments will attract attention beyond those interested in the Holocaust and its long shadow.

Some endorsements:

“Bilsky’s groundbreaking works reveal how the Holocaust reparations litigation represents a new mode of accountability directed at the institutional dimension of atrocity missed by the traditional criminal law model. Bilsky's skillful account illuminates the larger significance of those cases not only for Holocaust responsibility itself, but also for accountability for grave violations of human rights. It makes a vital contribution to both fields, shedding new light on the complex relationship between law and history.” 
—Mayo Moran, University of Toronto

“A terrific combination of fascinating historical detail, clear and accessible political and legal theory, and practical wisdom about an extremely important topic, the transnational Holocaust litigation (THL) brought in American courts in the 1990s using tort law to win reparations for victims. Bilsky shows that THL overcame some of the weaknesses of both criminal trials and truth commissions, and opens up new possibilities for theorizing about corporate responsibility for human rights and the relationship between law and history. Even those who ultimately disagree with her optimism about THL will have to reckon with this important book.”
—Ariela Gross, University of Southern California

Using film to teach non-US & global legal history

[This is the second of two posts on film & pedagogy. The first is on US legal history.]

Credit: IMDb

What films (and film clips) do you use when teaching legal history? This summer, we asked many of you this question (H/t: Law & History CRN). We received an avalanche of responses. Here they are, hopefully just in time for your fall syllabus needs. (Most responders describe films and video clips shown in class, but some assign videos to be watched in advance.)

For teaching global and non-US legal history:

• Yael Berda: I use the first episode of Rome to explain Max Weber’s concept of imperium in Roman law. I show Gandhi to talk about perceptions of citizenship and legal status within the British empire.
• Levi Cooper: When teaching Jewish legal history, I use clips (not full movies), or even just stills from movies to illustrate a point, start a discussion, pique interest, or as an aide-memoire. For example:

o   When teaching about the centrality of dispute and dissent in Jewish law, I start with a clip from Fiddler on the Roof ("he's right and he's right, they can't both be right...")

o   When teaching about the reaches of Jewish law as a religious legal system that is not based on political borders, I show a clip from The Martian ("Mark Watney, space pirate").

o   I open my class on the minority opinions in Jewish law with a still from Minority Report.

More after the jump.

Loeffler on a Forgotten Zionist Thinker and the Crime of Genocide

Although we often don’t note gated articles, we’re making an exception for Becoming Cleopatra: The Forgotten Zionism of Raphael Lemkin, by James Loeffler, University of Virginia, which appears in the volume 19 of the Journal of Genocide Research:

The biography of Raphael Lemkin has emerged of late as a highly contested lieu de memoire in charged political debates in Europe, the United States and the Middle East about the meaning, past and present, of the Holocaust and genocide. At the same time, scholars have attempted to demythologize Lemkin by reinscribing his life into its pre-World War II Polish context. Yet thus far no one has identified the precise political activities and affiliations that shaped Lemkin’s concept of genocide. In this article, I show that Lemkin, far from being a Jewish Bundist, a Polish nationalist or an apolitical cosmopolitan, was an active member of the interwar Polish Zionist movement, from which he drew the ideas that inspired his idea of the crime of genocide. In the first part of this article, I use his published writings from the 1920s and 1930s in Hebrew, Yiddish and Polish to recover a rich Jewish political framework in which his concepts of barbarism and genocide first began to emerge. In the second section, I ask how this crucial dimension of Lemkin’s life and thought vanished from the historical record, and why it has yet to be recovered in spite of the boom in biographical scholarship. Finally, I suggest how the recovery of Lemkin’s Zionism helps to reframe the current political impasse in the historiography of Holocaust and genocide studies.

Plesch on "The Lost History of Prosecuting Axis War Crimes"

Here's a recent release from Georgetown University Press: Human Rights after Hitler: The Lost History of Prosecuting Axis War Crimes (March 2017), by Dan Plesch (University of London). A description from the Press:

Human Rights after Hitler reveals thousands of forgotten US and Allied war crimes prosecutions against Hitler and other Axis war criminals based on a popular movement for justice that stretched from Poland to the Pacific. These cases provide a great foundation for twenty-first-century human rights and accompany the achievements of the Nuremberg trials and postwar conventions. They include indictments of perpetrators of the Holocaust made while the death camps were still operating, which confounds the conventional wisdom that there was no official Allied response to the Holocaust at the time. This history also brings long overdue credit to the United Nations War Crimes Commission (UNWCC), which operated during and after World War II.

From the 1940s until a recent lobbying effort by Plesch and colleagues, the UNWCC’s files were kept out of public view in the UN archives under pressure from the US government. The book answers why the commission and its files were closed and reveals that the lost precedents set by these cases have enormous practical utility for prosecuting war crimes today. They cover US and Allied prosecutions of torture, including “water treatment,” wartime sexual assault, and crimes by foot soldiers who were “just following orders.” Plesch’s book will fascinate anyone with an interest in the history of the Second World War as well as provide ground-breaking revelations for historians and human rights practitioners alike.

Lots more information is available here, at the book's website.

The Henry Morgenthau, Jr. Holocaust Collections at FDRL

[We have the following announcement.] 

On April 24, 2017, the Franklin D. Roosevelt Presidential Library and Museum formally launched the Henry Morgenthau, Jr. Holocaust Collections: A Curatorial Project -- a pathfinding initiative to discover unique but dispersed Holocaust subject material across the Roosevelt Library's archival holdings. The project will begin by exploring three major Library collections: the Morgenthau Papers & Diaries, the Records of the War Refugee Board, and the Rudolf Vrba Papers. By introducing emerging practices from the field of digital humanities in developing the project, the Library will provide better access -- building on existing digital resources -- to these Holocaust-related records.  [More.]

Weekend Roundup

• • The USC Shoah Foundation Center for Advanced Genocide Research is accepting proposals for research fellowships for advanced-standing PhD students. Deadline: Feb.15, 2017. Full details here.
  
  
  • The 2017 Law & Social Inquiry Graduate Student Paper Competition is now open--until March 1, 2017. The announcement is here.
  
  
  • And on the topic of the LSI competition: congratulations to Evelyn Atkinson, University of Chicago, who is the winner of the 2016 competition with her article, "The Burden of Taking Care: Children, Attractive Nuisance, and the Safety First Movement." Watch for it in LSI in 2017!
  
  
  • A legal history classic made its way into the pages of the New York Times last week. "Pet Pigs of New York: Illegal, Embattled, Beloved" includes a link to Hendrik Hartog's famous 1985 Wisconsin Law Review article, "Pigs and Positivism." (H/t: @jessicaklowe)
   
  • "Columbia Unearths Its Ties to Slavery": The New York Times article, via HNN
  
  
  • ICYMI: This starts out as a familiar lament but takes a surprising (for us) turn, until we saw that it appears on the website of the Philadelphia Church of God.  Also, those radical professors are really up to.  H/t: Joanna Grisinger.
  
  
  • The Nicholas D. Chabraja Center for Historical Studies at Northwestern University is hosting a graduate student conference on May 19, 2017 on punishment and its discontents. The deadline is just around the corner: Feb.1, 2017. Details here. H/t: Law and History CRN
  
  
  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
  
  

Surrency Prize to Fraser & Caestecker, "Jews or Germans? Nationality Legislation and the Restoration of Liberal Democracy in Western Europe after the Holocaust"

Continuing our announcements of the winners of the ASLH's annual prizes and awards, this year's Surrency Prize went to David Fraser (University of Knottingham) and Frank Caestecker (Ghent University) for “Jews or Germans? Nationality Legislation and the Restoration of Liberal Democracy in Western Europe after the Holocaust,” which appeared in Volume 31 of the Law and History Review (2013).

About the award:

The Surrency Prize, named in honor of Erwin C. Surrency, a founding member and first president of the Society and for many years the editor of its former publication, the American Journal of Legal History, is awarded annually for the best article published in the Society’s journal, the Law and History Review, in the previous year.

Via H-Law, we have the official citation: 

Drawing upon archives in Belgium, Britain, France, and Germany, the authors unite legal and policy analysis focused on the continuing problem of statelessness with an emergent and vital historiography that examines how Jews, especially German Jews, rebuilt their lives in Europe after 1945 to explore the conundrum first noted by Hannah Arendt, that statelessness can be “strangely empowering.”  Occupation forces in Germany and the restored government in liberated Belgium grappled with conundrums such as legal frameworks that rendered German Jews, who had been deprived of German citizenship by the Nuremberg Laws in 1935 and fled to Belgium nonetheless “enemy nationals” as German citizens after National Socialist laws had been revoked as “contrary to law,” (Unrecht).  Fraser and Caestecker’s essay skillfully navigates the rapids of national and international regular and exceptional regulation of citizenship to call into question the consensus that roots citizenship, and thus rights, in a national system of belonging to note the ways that the plight of German Jews “provoked transient concessions from nation-states to human rights” (422) in the name of equity and justice.  Some lawyers proffered emergent international humanitarian law to assume the vocation of assuring that statelessness ceased to be equated with deprivation of individual rights, but the national and international solutions to the conundrum of statelessness after 1945 remained ambivalent, as they remain ambivalent and refractory today.  Fraser and Caestecker illustrate in an exemplary way how legal history speaks to the most contemporary of concerns.

The members of this year's Surrency Prize Committee were:

Kenneth F. Ledford (Case Western University), Co-chair
David Abraham (University of Miami), Co-chair
Maribel Morey (Clemson University)
Elizabeth Kolsky (Villanova University) 

Matthew P. Harrington (University of Montreal)

Congratulations to Professors Fraser and Caestecker!

Livingston's "Fascists and Jews of Italy"

Out recently from Cambridge University Press in the ASLH-sponsored book series, Studies in Legal History, is The Fascists and the Jews of Italy: Mussolini's Race Laws, 1938–1943, by Michael A. Livingston, Rutgers-Camden School of Law.  Here is the press’s description:

From 1938 until 1943 – before the German occupation and accompanying Holocaust – Fascist Italy drafted and enforced a comprehensive set of anti-Semitic laws. Notwithstanding later rationalizations, the laws were enforced and administered with a high degree of severity and resulted in serious, and in some cases permanent, damage to the Italian Jewish community. Written from the perspective of an American legal scholar, this book constitutes the first truly comprehensive survey of the Race Laws in the English language. Based on an exhaustive review of Italian legal, administrative, and judicial sources, together with archives of the Italian Jewish community, Professor Michael A. Livingston demonstrates the zeal but also the occasional ambivalence and contradictions with which the Race Laws were applied and assimilated by the Italian legal order and ordinary citizens. Although frequently depressing, the history of the Race Laws also involves numerous examples of personal courage and idealism, and provides a useful and timely study of what happens when otherwise decent people are confronted with an evil and unjust legal order.

Clarence Darrow, 'Uncle Tom's Cabin,' a new take on the Holocaust, and more in the book pages

"It is fruitless to reduce the manifold evil of the Holocaust to a single cause," writes Timothy Snyder in a review of  Holocaust: The Nazi Persecution and Murder of the Jews by Peter Longerich, in the New York Review of Books.

Ideology, charisma, conformism, hatred, greed, and war were all very important, but each was related to the others and all mattered within rapidly changing historical circumstances. In his profound study Holocaust, Peter Longerich puts forward an analysis that includes all these factors and shows how politics or, as he puts it, Politik, set them all in motion. In this amplified English edition of his Politik der Vernichtung (1998), Longerich preserves the German term Judenpolitik, and with good reason. In German Politik means both “politics” and “policy,” and the compound noun (Juden + Politik) gives a sense of a joining of concepts that English cannot quite convey. In Longerich’s analysis, Judenpolitik has three meanings: German policy toward Jews; the national and international politics of the Jewish question; and the manner in which discrimination against Jews and then their extermination permeated German political life between 1933 and 1945.

Ultimately, this "impressive study of Judenpolitik is not a detailed recounting of the Holocaust, and makes no claim to take account of the perspective of the Jews who died and the neighbors who watched, collaborated, or more rarely rescued. But it supplies the best account we have of the relationship between anti-Semitism and mass murder, and conveys a melancholy plausibility."

Read the rest here.

Clarence Darrow: Attorney for the Damned, by John A. Farrell is a "clear-sighted, empathetic biography," Wendy Smith writes in the Los Angeles Times.  Darrow was "a towering figure in U.S. jurisprudence and politics. He served as defense lawyer for the people most hated and feared by respectable society and was indeed, as his friend Lincoln Steffens wrote in 1932, an 'attorney for the damned.'"  Darrow was "no left-wing saint. He was always in need of money and agreed to defend gangsters, bootleggers and crooked politicians for large fees."  Yet he was devoted to "imperfect, troubled humanity. 'We are all poor, blind creatures bound hand and foot by the invisible chains of heredity and environment, doing pretty much what we have to do in a barbarous and cruel world,' he declared. 'That's about all there is to any court case.'"  Continue reading here.

MIGHTIER THAN THE SWORD: “Uncle Tom’s Cabin” and the Battle for America by David S. Reynolds is an "informative account of the writing, reception and modern reputation of 'Uncle Tom’s Cabin," Andrew Delbanco writes in the New York Times.  "Reynolds unstintingly celebrates its author, Harriet Beecher Stowe, as a colossal writer who mobilized public opinion against slavery, and proved, against long odds, 'a white woman’s capacity to enter into the subjectivity of black people.'" Delbanco finds the author to be a "rewarding researcher," even as he suggests that Reynolds goes too far in his conclusions.  Ultimately,

we are left at the end of this book with the unsettling question of how to think about “Uncle Tom’s Cabin” as part of our cultural inheritance. The case for it as a literary work of depth and nuance is dubious. Yet it belongs to the very short list of American books (including, say, “The Other America” by Michael Harrington and “Silent Spring” by Rachel Carson) that helped create or consolidate a reform movement — in Stowe’s case, the most consequential reform movement in our history. Perhaps the fact that readers today have trouble taking seriously its heroes and villains is a tribute to its achievement — since, in some immeasurable way, it helped bring on the war that rendered unimaginable the world that Stowe attempted to imagine. 

Read the rest here.

Also this week, The Law of Life and Death by Elizabeth Price Foley is reviewed by Eric Posner in The New Republic's The Book; CAMBODIA’S CURSE:  The Modern History of a Troubled Land by Joel Brinkley is reviewed in the New York Times.

Law, Justice and the Holocaust

The Historical Society of the Courts of the State of New York announces the symposium Law, Justice, and the Holocaust: Lessons for the Courts Today. It will be held Tuesday, May 11, 2010, at the New York City Bar, 42 West 42nd Street, NYC, commencing at 6:00 PM. The Robert H. Jackson Center has provided additional support. Register here.

Hat tip: John Q. Barrett

[According to its website, "The Society was launched in 2003 with the mission of preserving the legal and judicial history of the State of New York. It seeks to foster scholarly understanding and public appreciation of the rich legacy of the New York courts, the legal profession and their contributions to the State and nation." A list of webcasted lectures is here.]

German Refugees at Historically Black Colleges: "Beyond Swastika to Jim Crow"

There is a great temporary exhibit showing at the Museum of Jewish Heritage in Lower Manhattan from now until January. "Beyond Swastika and Jim Crow: Jewish Refugee Scholars at Black Colleges" tells the interesting story of German Jewish refugee scholars who found positions at historically black colleges in the U.S. South. The exhibit borrows its name (and materials) from the 1993 book From Swastika to Jim Crow by Gabrielle Simon Edgcomb and the related PBS documentary by Joel Sucher and Steven Fischler. Here is the museum's overview of the exhibit:

By the time World War II began on September 1, 1939, Germany had purged itself of its Jewish professors, scientists, and scholars. Some of these academics, deprived of their livelihoods by the Nazis, found refuge in the United States. But in this new world, they faced an uncertain future.

A few dozen refugee scholars unexpectedly found positions in historically black colleges in the American South. There, as recent escapees from persecution in Nazi Germany, they came face to face with the absurdities of a rigidly segregated Jim Crow society. In their new positions, they met, taught, and interacted with students who had grown up in, and struggled with, this racist environment.

The exhibit draws the obvious parallels between the German anti-Jewish laws and the social, legal and political segregation and disenfranchisement of African-Americans in the United States. The exhibit highlights some of the refugee-scholars' early acts of civil disobedience (before it was even called "civil disobedience") in solidarity with their students.

Reviews of Burns, Packing the Court, and more

"Two big ideas animate" PACKING THE COURT: The Rise of Judicial Power and the Coming Crisis of the Supreme Court by James MacGregor Burns, writes Adam Liptak in the New York Times.

One is that the court has for more than 200 years illegitimately claimed a power not granted to it by the Constitution. The other is that it has on the whole used this power to protect the powerful and to thwart progress....

[T]he book’s title is, of course, a reference to Roosevelt’s failed attempt to increase the number of justices after the court repeatedly struck down New Deal legislation. That episode, presented in lively detail, accounts for only two of the book’s 12 chapters, but it informs Burns’s view of the court from start to finish.

Liptak finds Burns' attack on judicial review "hard to take very seriously as a practical matter this late in the life of the Republic." Continue reading here.

Burns' book ends with a challenge, writes Emily Bazelon in Slate.

Burns imagines a president—he hopes this president—leading Congress to pass progressive legislation that amounts to a new New Deal. If a "hostile" Supreme Court then struck down such a compact, the president, Burns proposes, should refuse to obey the court. The president "would flatly announce that he or she would not accept the Supreme Court's verdicts because the power of judicial emasculation of legislation was not—and never has been—in the Constitution."...

[A]smackdown between Obama and the Supreme Court is nowhere on the horizon. But it's a tribute to Burns' lucid history of the Supreme Court that by the time you reach his audacious proposal, tucked into the conclusion, you're ready to entertain it seriously for a moment—and to think about its merits for longer.

Ultimately, Bazelon is skeptical: "Would we really be better off placing more faith in Congress or a shades-of-Cheney strong executive?" The rest is here.

Also in the NY Times, Jonathan Tepperman reviews A SAFE HAVEN: Harry S. Truman and the Founding of Israel by Allis Radosh and Ronald Radosh.

THE THIRD REICH IN THE IVORY TOWER: Complicity and Conflict on American Campuses by Stephen H. Norwood is taken up by Glenn C. Altschuler in the Boston Globe.

Heise on Nuremberg and the Abiguous History of the Tu Quoque Defense

Deciding Not to Decide: Nuremberg and the Ambiguous History of the Tu Quoque Defense is an article by Nicole A. Heise. Based on archival research in Nuremburg-related papers, the article won the Emerson Prize for outstanding academic promise in history, and was published in The Concord Review (2007). Heise wrote the article while a sophomore at Ithaca High School. Here's the abstract:

Tu Quoque forged its historic legacy during the Nuremberg Tribunal following World War II when German Admiral Karl Doenitz used it as a defense to deflect war crime charges brought against him. By raising the Tu Quoque defense, Doenitz argued that he should be acquitted because other leaders and nations also committed the same crimes. Although many scholars note the Tu Quoque defense's importance, its history has largely been ignored. Using original court documents and personal papers from the Nuremberg Tribunal collection archived at Cornell University, this essay argues that the Tu Quoque defense's history is far from clear and that this ambiguous history clouds its legacy.

The Warsaw Ghetto, Vietnam-era war crimes and bombing Wall Street in the Sunday book reviews

Who Will Write Our History? Rediscovering a Hidden Archive From the Warsaw Ghetto by Samuel D. Kassow, is a "brilliant study" and "a heroic act of synthesis and contextualization," writes Louise Steinman for the Los Angeles Times. The book is based on Emanuel Ringelblum's efforts to document the experience in the Warsaw Ghetto. "In October 1940," Steinman writes,

when the Germans gave the order for Warsaw Jews to move into an overcrowded, cramped and sealed-off ghetto -- more than 400,000 would live there; 30% of Warsaw's population crowded into 2.4% of its area -- Ringelblum "stepped into his destiny." He began forming a secret "sacred society" he named "Oyneg Shabes" (literally, "Joy of the Sabbath," as members often met on Saturday). Its purpose was to create a comprehensive archive of life in the ghetto, "to meld thousands of individual testimonies into a collective portrait."...

No one knew what information would be important to historians after the war. "Collect everything and sort it out after the war," Ringelblum advised. And they did.

They recorded ugly stories of Jewish policemen and moral struggles among those who were starving. They collected information on labor camps, the behavior of the Judenrat (Jewish councils that acted as intermediaries with the Nazis), and social histories of the soup kitchens. They interviewed refugees from the provinces who brought eyewitness accounts of massacres. They documented the role of women in the ghetto and the plight of orphaned children.

Tin boxes containing parts of the Oyneg Shabes archive, buried in the rubble of the Warsaw Ghetto, were found in 1946. The archive reveals that "Ringelblum never succumbed to what he defined as the ultimate despair: the failure to record what one saw."

Continue reading here.

The War Behind Me: Vietnam Veterans Confront the Truth About U.S. War Crimes by Deborah Nelson is taken up by Steve Weinberg in the Philadelphia Inquirer. The review details another story of a forgotten archive, this time a cache of documents about Vietnam-era war crimes in the National Archives. After the revelations of the Mai Lai massacre, Weinberg writes, "in secret, the Army began a broader inquiry into other alleged war crimes throughout Southeast Asia. The inquiry lasted five years, resulting in a file of about 9,000 pages connecting American troops to atrocities. The inquiry led to no public accounting, no major prosecutions of the perpetrators." Nelson and military historian Nicholas Turse, "after reviewing the archival files carefully...began tracking down military veterans who had reported allegations of atrocities and those who allegedly had conducted the killing. Nelson, with a well-deserved reputation as a master interviewer, explains how she persuaded some of the frightened and resentful veterans to talk openly." Continue reading here.

THE DAY WALL STREET EXPLODED: A Story of America in Its First Age of Terror by Beverly Gage is reviewed by Kevin Baker in the New York Times. He writes that this "outstanding first book" takes up in detail a 1920 Wall Street bombing which killed 38, as well as "the hunt for the perpetrators, but Gage also does us the great good service of placing it in the wider history of industrial warfare that once proliferated in America....'Far from being an era of placid reform,' Gage writes, 'the turn of the century was a moment in which the entire structure of American institutions — from the government to the economy — seemed to be up for grabs, poised to be reshaped by new movements and ideas.'...Even now, as Gage writes, 'there remains a tendency to think of violence as an anomaly, something outside the American experience, rather than as one of the many ways that Americans have long carried out their political disputes.'" Read the rest here.

Photo credit: Emanuel Ringleblum.

More on Bass, Freedom's Battle, and reviews of books on Liberia, Hitler and the history of marriage

Freedom's Battle: The Origins of Humanitarian Intervention by Gary J. Bass (Knopf) receives more attention, after last week's not-so-helpful NY Times review. Joshua Muravchik in the Wall Street Journal writes that Bass

buttresses the legitimacy of humanitarian intervention by reacquainting us with three 19th-century episodes in which military invasions were undertaken to rescue populations subjected to terrible abuses. He describes the naval efforts of Britain, France and Russia in support of the Greeks fighting for independence from Turkey in the 1820s; the suppression by France of communal warfare between Druse and Maronites in Lebanon and Syria in the 1860s; and Russia's defense of Bulgarians against Ottoman "horrors" in the 1870s.

For this reviewer, "Bass relates these episodes masterfully, providing a wealth of detail in fluid prose," enabling readers to "reflect on how much things have changed since the 19th century, and how much, in certain ways, they have not."

Christopher Hitchins writing in Foreign Affairs, finds the book "absorbing, well-researched, and frequently amusing." "On the whole," Bass

makes a sensible case that everyone has a self-interest in the strivings and sufferings of others because the borders between societies are necessarily porous and contingent and are, when one factors in considerations such as the velocity of modern travel, easy access to weaponry, and the spread of disease, becoming ever more so. Americans may not have known or cared about Rwanda in 1994, for instance, but the effect of its crisis on the Democratic Republic of the Congo could have been even more calamitous. Afghanistan's internal affairs are now the United States' -- in fact, they were already so before Americans understood that. A failed state may not trouble Americans' sleep, but a rogue one can, and the transition from failed to rogue can be alarmingly abrupt.

There is more on Bass in the San Francisco Chronicle, the Washington Post, and Time.

Helen Cooper, THE HOUSE AT SUGAR BEACH: In Search of a Lost African Childhood (Simon & Schuster), a memoir about Liberia, is "a coming-of-age story told with unremitting honesty," writes Carolyn Elkins for the New York Times. Through Cooper's eyes, "we see the carefree decadence of Liberia in the years just before it descended into chaos," and a personal narrative of Liberia's unravelling.

Also reviewed this week: Susan Squire, I DON’T: A Contrarian History of Marriage (Bloomsbury) in the New York Times, and Mark Mazower, Hitler's Empire: How the Nazis Ruled Europe (Penguin Press), in the New York Sun.

McNamara on Holocaust Denial, the History Wars, and Law's Problems with the Past in Australia

Lawrence McNamara, School of Law, University of Reading, has posted an article, History, Memory and Judgment: Holocaust Denial, the History Wars, and Law's Problems with the Past. It appeared in the Sydney Law Review. Here's the abstract:

Australia's current 'History Wars' raise difficult historiographical questions about establishing what happened in the past. In light of the courts' often important engagements with history, these questions have special significance for the law. Using the Irving v Lipstadt libel case regarding Holocaust denial and the possibility of a defamation action in the History Wars - both allege deliberate fabrication and distortion - this article explores how history and historians are subjected to legal judgment. It identifies as key considerations the methodological differences between and within law and history; the use and misuse of postmodernism and relativism; and the role of law and legal judgment in the transmission and construction of national memory.