Kagan reviews Oren on America in the Middle East

Today's Washington Post book review section leads off with a review by Robert Kagan of Michael B. Oren's new book, POWER, FAITH, AND FANTASY: America in the Middle East, 1776 to the Present. Kagan begins:

We often hear that Americans know little about other nations; a bigger problem is that we know too little about ourselves, our history and our national character. When it comes to U.S. foreign policy, in particular, we were all born yesterday, unaware of how present policies and attitudes fit into persistent historical patterns. So when a brilliant, lucid historian such as Michael B. Oren does bring the past back to life for us, revealing both what has changed and what has stayed the same, it is a shaft of light in a dark sky.

I guess he likes the book. Kagan continues:

Today, the conventional view is that George W. Bush took the United States on a radical departure when he declared a policy to transform the Middle East and that, as soon as he leaves office, U.S. policy will return to an alleged tradition of realism, rooted in the hard-headed pursuit of tangible national interests. This is both bad history and bad prophecy, as Oren shows in Power, Faith, and Fantasy, a series of fascinating and beautifully written stories about individual Americans over the past four centuries and their contact with Middle Eastern cultures.

A theme of the review is that realism has never been the guiding principle of U.S. foreign policy in the Middle East, placing the Bush Administration in a trajectory of more idealist efforts to save the region from "barbaric" Islam, from the Founders onward. This is, of course, consistent with Kagan's own work, most recently his book, Dangerous Nation.

For the full review, click here. (Registration required, but it's free, and they don't spam you.)

NYT Book Review: Roberts & Klibanoff, The Race Beat

THE RACE BEAT: The Press, the Civil Rights Struggle, and the Awakening of a Nation, by Gene Roberts and Hank Klibanoff, is reviewed by Raymond Arsenault in the Book Review section of today's New York Times. The review begins:

Historians of the civil rights era have long recognized the impact of the press on the character and pace of the movement. From William Bradford Huie’s graphic 1955 interview with the unrepentant killers of Emmett Till to the televised images of Bull Connor’s attack dogs snapping at young demonstrators in the streets of Birmingham to the eyewitness accounts of the beatings of voting rights marchers in Selma, Ala., the power of the pen and the camera has been memorable. Until now, however, no one has offered an in-depth analysis of how and why the news media came to play such an important role in the struggle for racial justice.

In “The Race Beat,” the veteran journalists Gene Roberts and Hank Klibanoff painstakingly trace the evolution of civil rights press coverage in the South from the publication of “An American Dilemma,” by Gunnar Myrdal, in 1944 to the assassination of the Rev. Dr. Martin Luther King Jr. in 1968....

For the rest, click here.

Reviewed: Wicks, The Evolution of a Constitution: Eight Key Moments in British Constitutional History

The Law and Politics Book Review has a new review by David Erdos, University of York, of Elizabeth Wick, THE EVOLUTION OF A CONSTITUTION: EIGHT KEY MOMENTS IN BRITISH CONSTITUTIONAL HISTORY. Erdos writes, in part:

Over the past fifteen or so years there has been an explosion of interest in British constitutional law and politics. Other than those which are directly legal or philosophical in nature, the most prominent emergent scholarship has focused specifically on the policy concerns and developments of the Blair era. Complementary to this literature, the monograph under review takes a broader approach. In particular, Elizabeth Wicks uses “historical investigation to cast new light upon the constitution of today” (p.1). The result is a useful and important text which admirably demonstrates that study of historical events remains highly relevant to today’s constitutional controversies.

THE EVOLUTION OF A CONSTITUTION is structured chronologically around eight “landmark” moments within British constitutional history, from the Glorious Revolution of 1688 to the Devolution Settlement of 1998. In addition to these two events, Wicks also focuses on the union between England and Scotland in 1707, the ascendancy of Robert Walpole as the Crown’s first minister in 1721, the Great Reform Act of 1832, the Parliament Act of 1911, ratification of the European Convention in 1953 and the UK joining the European Community in 1972. Each of the main chapters pivots around an analysis of one of these events. In addition, other related developments are given consideration. For example, the chapter on the Great Reform Act also examines the later expansion of the franchise during the nineteenth and twentieth centuries. Similarly, the chapter on the ratification of the European Convention deals briefly with the later passage of the Human Rights Act in 1998 “incorporating” Convention rights in the UK law. This structure focuses the reader’s interest on particular periods when constitutional issues were at the fore of British politics whilst also achieving a broadly comprehensive overview of the country’s constitutional development. Nevertheless, it might be noted in passing that certain topics such as the UK’s changing constitutional relationship with what are now fellow members of the Commonwealth remain largely unexplored despite the fact that the passage of, say, the Statute of Westminster Act in 1931 would appear to provide a perfect “landmark” event around which to explore such issues....

This work clearly deserves a broad readership. It may provide a useful starting point for both socio-legal scholars and political scientists interested in including the British constitution and its historical development within their research agenda. Also, given the topicality and interest of the material presented, the book should also attract a more general readership particularly within the UK itself....

For the rest, click here.

Lawyers and Enemy Aliens: the WWII experience

In light of the controversy over Cully Stimson's criticism of lawyers who represent Guantanamo detainees, Eric Muller at Is That Legal? had a helpful post this week on the ABA's position on representation of enemy aliens during World War II. Not only did the ABA support this representation -- along with the War Relocation Authority, the ABA asked the California Bar Association to develop a referral system to ensure the orderly handling of claims related to relocation. The ABA also suggested that ensuring representation for all would aid the war effort. For the post, click here.

Meyer on Mercy and the Court Martial

Military Mercy, Linda Ross Meyer's (Quinnipiac) thoughtful new paper on clemency in courts martial, has its sights on contemporary analysis, but uses historical examples from Vietnam along the way. The paper will be of interest to anyone writing about the history of military justice. Here's the abstract:

This paper examines the clemency process in military courts martial. Unlike civilian courts, defendants in a military trial can seek sentencing relief before, during, or after the trial process, and for the official post-trial review, they are guaranteed assistance of counsel in presenting their case for clemency. Statistics for military sentencing and clemency are not available, however, anecdotal evidence from public sources suggests that sentencing is often lenient and clemency is exercised frequently. The paper argues that the opportunities for clemency are less troubling in soldier vs. soldier cases, for the clemency-givers are at risk from the defendant in the future, and clemency often creates and strengthens bonds of loyalty and trust necessary for teamwork. More troubling are the lenient sentences in war-related crimes, where the victims are outsiders to the military. Yet even here, clemency may be a recognition of the moral sacrifices and ambiguities combat requires. Where a defendant's crime seems not to be an outgrowth of the exigencies of military service, but a settled feature of a defendant's character, sentencing in war-related crimes is not so lenient.

McKenna on the Rehnquist Court and 1st Amendment Scruitiny of Intellectual Property

Mark McKenna, St. Louis University, has posted a new article, The Rehnquist Court and the Groundwork for Greater First Amendment Scrutiny of Intellectual Property. Here's the abstract:

This contribution to the Washington University School of Law conference on the Rehnquist Court and the First Amendment addresses the Rehnquist Court's view of the role of the First Amendment in intellectual property cases. It argues that, while the Rehnquist Court was not eager to find a conflict between intellectual property laws and the First Amendment, there is reason to believe that it set the stage for greater First Amendment scrutiny of intellectual property protections. At the very least, the Court left that road open to future courts, which might be inclined to view intellectual property more skeptically.

Zywiki and Sanders on Posner, Hayek and Law & Economics

Todd Zywiki, George Mason and Anthony Sanders, Arnold and Kadjan, have posted a paper on SSRN, Posner, Hayek & the Economic Analysis of Law. This is not an intellectual history. The writers don't set either Hayek or Posner in their historical context. But the essay may nevertheless be of interest to those working in the intellectual history of law and economics. Here's the abstract:

This Essay examines Richard Posner's critique of F.A. Hayek's legal theory and contrasts the two thinkers' very different views of the nature of law, knowledge, and the rule of law. Posner conceives of law as a series of disparate rules and as purposive. He believes that a judge should examine an individual rule and come to a conclusion about whether the rule is the most efficient available. Hayek, on the other hand, conceives of law as a purpose-independent set of legal rules bound within a larger social order. Further, Posner, as a legal positivist, views law as an order consciously made through the efforts of judges and legislators. Hayek, however, views law as a spontaneous order that arises out of human action but not from human design. For Hayek, law as a spontaneous order - of which the best example is the common law - contains and transmits knowledge that no one person or committee could ever know, and thus regulates society better than a person or committee could. This limits the success of judges in consciously creating legal rules because a judge will be limited in the forethought necessary to connect a rule to other legal and non-legal rules and what Hayek termed “the knowledge of particular circumstances of time and place.”

This Essay also explores Posner's argument that Hayek misunderstood the “rule of law” as the “rule of good law.” Contrary to Posner, in the view Hayek came to espouse in his later work, the common law embodies the rule of law in a way that positivist creations of law do not. When judges consciously make law it is those human actors, not the “law” as such, that “rule.” When law arises out of a spontaneous order, however, it is the law that rules. Judges merely articulate it. Posner does not distinguish between these two processes, and therefore sees a difference between the “rule of law” and the “rule of good law” which Hayek does not. This is because for Hayek the “rule of law” is only meaningful in a liberal society where law arises out of a spontaneous order.

Brown on the Irrelevance of State Corporate Law

J. Robert Brown, Jr., Univ. of Denver, has posted a paper on SSRN which has been published in the University of Richmond Law Review, The Irrelevance of State Corporate Law in the Governance of Public Companies. Here's the abstract:

Weak state regulation of corporate governance process and the race to the bottom resulted in federal intervention in the 1930s and the adoption of the securities laws. The laws largely ousted the states from the corporate disclosure and proxy process. The duties of directors, however, remained subject to state regulation.

The race to the bottom, therefore, continued. One example was the adoption of waiver of liability provisions. It took less than two decades after Delaware adopted the first such provision in the aftermath of Van Gorkom for all 50 states to have something similar in place. Likewise, fiduciary obligations gradually weakened, with Delaware all but eliminating the duty of loyalty, replacing substantive fairness with ineffective procedural requirements. The predicable scandals and excesses followed.

Congress responded with the adoption of Sarbanes-Oxley and federalizing some portions of the duties of officers and directors. SOX, however, did not do so in a systematic way. As a result, neither the states nor the federal government adequately regulate the behavior of corporate managers. Said another way, the dynamics that resulted in the scandals of the millennium largely remain in place.

Reminder: Feb. 1 deadline for Harvard Berger Fellowship

The deadline for the Raoul Berger Visiting Fellowship in Legal History at Harvard Law School is coming up: February 1. This is a great opportunity. For details and links, click here.

Will the newly released documents on Japanese WWII war crimes recast the history of the Pacific war? Live Web Discussion Today, 2 pm Eastern time (US)

The Chronicle of Higher Education is hosting a live web discussion of the newly released documents on Japanese war crimes during World War II. (For news on the release, go here.) You can submit questions ahead of time on the Chronicle website, or participate live. A transcript will be online at this link afterward.

Participating in this discussion are:

Greg Bradsher, an archivist at the National Archives and Records Administration who specializes in World War II intelligence, looted assets, and war crimes. He wrote a 1,700-page electronic finding aid, "Guide to the Japanese War Crimes Records in the National Archives," and several articles in the prologue of a new book it accompanies, Researching Japanese War Crimes Records: Introductory Essays.

Edward Drea, a specialist in modern Japanese history recently retired from the U.S. Army Center of Military History. He wrote the new book's introduction.

They will respond to questions and comments about these issues on Thursday, January 18, at 2 p.m., U.S. Eastern time. Readers are welcome to post questions and comments now.

The Chronicle requires a paid subscription for access to their website, but if you don't have one, try accessing through a library website.

National Archives to release records on Japanese WWII War Crimes

The Chronicle of Higher Education reports that the National Archives is releasing 100,000 pages of new material relating to war crimes committed by Japan during World War II. According to the Chronicle, there has been less interest in crimes committed by Japan than by Germany. "Indeed, when the U.S. Congress created a commission to find and declassify records related to World War II war crimes still held by the United States in 1998, the bill was explicitly titled the Nazi War Crimes Disclosure Act." It was later expanded and renamed "the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group."

The Chronicle reports:

Since 1999, the working group has released eight million pages of previously classified documents on Nazi crimes. But this week, the group will release 100,000 pages of newly declassified documents related to Japanese war crimes, along with a new guide to U.S.-held materials on that topic. (A book of introductory essays, Researching Japanese War Crimes, will accompany the release.)

"Japanese war crimes have not received the intense scrutiny from the public or from scholars that has been given to Nazi materials," says Allen Weinstein, archivist of the United States and chairman of the working group.

For the rest of the story, click here (requires a subscription).

Reviewed: Jacoway on Little Rock

Alex Lichtenstein reviews Turn Away Thy Son: Little Rock, the Crisis That Shocked the Nation, by Elizabeth Jacoway, in the Chicago Tribune, here. Thanks to Cliopatria for the tip. The Trib requires registration, but it's free. Here's just a bit:

Prior to 1957, Jacoway reminds us, "Little Rock enjoyed an earned reputation as one of the most progressive cities in the South with regard to race relations." This did nothing to stem the flood of acrimonious racism when the damn burst in September 1957. Given the prevailing climate of hostility to school integration, even moderate and well-meaning administrators inclined to implement the Brown decision, like Supt. Virgil Blossom, initiated "a flawed attempt to achieve white acceptance by retaining as much segregation as possible."

Jacoway recounts the story of black determination facing white intransigence, but the focus of her tale is the timid white moderates all too ready to cave in to the extremists rather than confront boldly the central issue of their time and place. As Jacoway shows, Little Rock's white political and economic elite resided safely in an enclave not threatened by the specter of integration, a fact that "exacerbated class conflict." In the end, the city's beleaguered civic elite proved hesitant to confront deep-set white anxieties about miscegenation, which were "the vital center of the southern resistance to desegregation."

Photo credit: click here.

More from the Brennan Files

Slate has followed up on its earlier story, based on Justice Brennan's papers. Jim Newton, author of Justice for All: Earl Warren and the Nation He Made, describes summaries Brennan would write of each Court term. Those memos are posted with Newton's articles. The first article is noted here.

The second article, concerning Justice Brennan and the abortion cases and U.S. v. Nixon, is here. The final article, "Brennan dishes on his colleagues," is here. (A preview: on Rehnquist in a contraception case: "The vehemence of the dissent did not surprise us, but the absence of a reasoned attack did." On O'Connor's first term: "I viewed her at that time as potentially an independent 'swing' vote on the Court.")

To get directly to Justice Brennan's memos, click here.

Law & Social Inquiry Graduate Student Paper Competition

2007 Law & Social Inquiry
Graduate Student Paper Competition

The editors of Law & Social Inquiry are pleased to announce a competition for the best journal-length paper in the field of socio-legal studies written by a graduate student. Entries will be accepted starting January 1, 2007 and must be received by March 1, 2007. The winner will by selected by May 1, 2007. The author must be a graduate student or law student at the time of submission.

We invite direct submissions from graduate students and/or nominations of student work from faculty. (Faculty nominations should be accompanied by the paper in question, and should provide a short description of the nominated paper and its significance, and contact details for the student.) The winning paper will be published in Law & Social Inquiry and the author(s) will receive a cash prize of $500. Submissions will be judged by the editors. The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication. Law & Social Inquiry publishes both empirical and theoretical studies of socio-legal processes from a variety of disciplinary perspectives.

Please send your best work in Word or WordPerfect to: lsi-abf@abfn.org. Please indicate in your cover letter that: your intention is to be considered for the prize competition, confirm your graduate student status, include full contact information, and confirm that this paper is a sole submission to Law & Social Inquiry, meaning that you have not submitted it to other journals. Submission is limited to one paper per student.

Papers should be double-spaced in Times New Roman 12 font with 1.5 margins on all sides, be 40-60 pages in length, and should include a 100-150 word abstract. For initial submission, it is preferred, though not necessary, that the author use endnotes (social sciences format) rather than footnotes (law review format). If the winning paper is submitted with footnotes, the student will be given time to properly format the paper.

For further information go to www.blackwellpublishing.com/LSI, or send an e-mail to lsi-abf@abfn.org, or call (312) 988-6517.

The full announcement is posted here, but it opened up for me as a small & hard to see file. For that reason I've pasted in the entire document.

Reminder: Deadine for 2007 American Studies Association

The deadline for proposals for this year's American Studies Association meeting is January 27. The meeting is October 11-14 in Philadelphia. For more info and links, click here.

Congressional Research Awards

Deadline: February 1

The Dirksen Congressional Center invites applications for grants to fund research on congressional leadership and the U.S. Congress. The Center, named for the late Senate Minority Leader Everett M. Dirksen, is a private, nonpartisan, nonprofit research and educational organization devoted to the study of Congress and its leaders. Since 1978, the Congressional Research Awards (formerly the Congressional Research Grants) program has paid out $680,000 to support nearly 350 projects. Applications are accepted at any time, but the deadline is February 1 for the annual selections, which are announced in March. A total of up to $30,000 will be available in 2007.

Who is qualified to apply?
The competition is open to individuals with a serious interest in studying Congress. Political scientists, historians, biographers, scholars of public administration or American studies, and journalists are among those eligible. The Center encourages graduate students who have successfully defended their dissertation prospectus to apply and awards a significant portion of the funds for dissertation research.

What kind of research projects are eligible for consideration?
The Center’s first interest is to fund the study of the leadership in the Congress, both House and Senate. Topics could include external factors shaping the exercise of congressional leadership, institutional conditions affecting it, resources and techniques used by leaders, or the prospects for change or continuity in the patterns of leadership. In addition, The Center invites proposals about congressional procedures, such as committee operation or mechanisms for institutional change, and Congress and the electoral process.

The Center also encourages proposals that link Congress and congressional leadership with the creation, implementation, and oversight of public policy. Proposals must demonstrate that Congress, not the specific policy, is the central research interest.

What could a Congressional Research Award pay for?
Generally speaking, an award can cover almost any aspect of a qualified research project, such as travel to conduct research, duplication of research material, purchase of data sets, and costs of clerical, secretarial, research, or transcription assistance. This list is merely illustrative, but specifically excluded from funding are the purchase of equipment, tuition support, salary support for the principal investigator(s), indirect costs or institutional overhead, travel to professional meetings, and publication subsidies.

Awards range from a few hundred dollars to $3,500. Stipends will be awarded to individuals (not organizations) on a competitive basis. Grants will normally extend for one year. In some circumstances, the Center will make more than one award to a single individual in consecutive years, but not more than three awards to the same person in a five-year period.

For the full announcement and application information, click here.

On the road...

Archival research to do, workshops & a lecture mean that I will have a trip a week for the next three weeks, starting today. Apologies if blogging slows down a bit. I will catch up during down times where there is wifi.

ASLH Proposals Due February 1

REMINDER: Proposals for the 2007 American Society for Legal History conference are due soon-- February 1. For my original post, with links and details, go here. If you're serious about legal history, you need to go to this meeting, at least periodically.

The 2007 meeting will be October 25-28, 2007 in Tempe, Arizona. Some ASLH-ers may wonder...why Tempe? Well, this is not an ASLH retreat to an isolated desert spa. Tempe is part of the Phoenix metro area, and, of course, Phoenix is a major American city. Major hub. Lots of flights & good connections. As I understand it, Tempe is to Phoenix as Santa Monica is to L.A. (Sort of. Probably with less spandex & lipo.)

That it is beautiful there goes without saying. Here's a photo tour, outside of town. For a city photo tour, go here.

There are, of course, great hiking and outdoor opportunities is the area. Some links are here.

Fans of Southwestern art might take a side trip to Scottsdale for a fine arts show, on-going during the meeting. See links here, and here.

Phoenix/Tempe is a superb place for foodies. You can find things there that you can't get in New York. Here's one place to start.

So work on that proposal and then you can get a head start on your restaurant reservations....

Past Violations Justify Present Violations: Delahunty & Yoo on International Law

This goes in the keeping-an-eye-on-the-uses-of-history department: Robert Delahunty, Univ. of St. Thomas, and John Yoo, U.C. Berkeley, have a forthcoming article in the Harvard Journal of Law and Public Policy, Executive Power v. International Law. They draw upon history to argue, in part, that past international law violations by U.S. presidents are evidence that international law doesn't constrain U.S. presidential power. Maybe you'll be convinced. Here's the abstract:

Critics of the Bush administration's conduct of the war on terrorism and the wars in Afghanistan and Iraq have made the claim that the President cannot order conduct that is inconsistent with international law. Not only is the argument under-theorized, it runs counter to the best reading of the constitutional text, structure, and the history of American practice. A careful examination of the constitutional text, for example, shows that international law that does not take the form of a treaty or other authoritative adoption by the political branches will not enjoy supremacy effect. If international law cannot claim the status of federal law, like the Constitution, statutes, or treaties, it has no binding effect on the President through the Take Care Clause. Allowing international law to limit the President's exercise of his constitutional powers also runs counter to the constitutional structure, primarily by undermining the traditional understanding of the allocation of the foreign affairs power between the President and Congress. Raising international law to the status of international law would transfer lawmaking authority to a vague, indeterminate process that is not subject to popular sovereignty.

Examining important moments in American military and diplomatic history illustrates the precedence of the President's constitutional authority over international law. Examples including the Civil War, the World War II bombings of Japan, the Cuban Missile Crisis, and the Kosovo War show that even if American wartime conduct may have been inconsistent with international law, or at least stretched international law, no one has plausibly argued that these presidential decisions violated the Constitution. Indeed, these moments suggest the serious harm to American national security which might result if we were to read the Constitution to impose international law as a constraint on legitimate exercises of the President's Chief Executive and Commander-in-Chief powers.

U.S. Commission on Civil Rights Records available On-Line

The U.S. Commission on Civil Rights and the Thurgood Marshall Law Library at the University of Maryland announce a joint project to make records of the Civil Rights Commission available on-line. The press release, below, refers to the Civil Rights Act (presumably meaning the Civil Rights Act of 1964), but of more value to researchers will be Commission reports, such as a 1961 report on voting rights, available here. While these documents should be available in libraries that are government document repositories, the website will make them much more accessible to a broader range of researchers. Some briefing papers are included, but the collection principally consists of published reports. Some materials are in Spanish. The Commission was established in 1957. The materials appear to range from the early 1960s to at least 2004.

Access to the collection is through the Library's helpful website, which includes links to works on the history of the U.S. Commission on Civil Rights. Click here. The Press Release follows:

WASHINGTON-As the Nation pauses to remember the achievements of Dr. Martin Luther King, Jr., the U.S. Government Printing Office (GPO) teams up with the United States Commission on Civil Rights (USCCR) and the Thurgood Marshall Law Library, University of Maryland School of Law, to provide the American public a website of authentic Civil Rights historical publications.

"GPO is honored to be participating in this project," said Judith Russell,Superintendent of Documents. "This is an example of GPO's mission to improve service to the public and assure permanent access to digital collections."

The Thurgood Marshall Law Library, which is a GPO Federal Depository Library, has been scanning hundreds of historical Civil Rights publications to make this digital collection possible. These documents are provided by USCCR. With a couple strokes of the keyboard, Americans can access Civil Rights documents such as The Civil Rights Act. These documents are accessible at: <http://www.law.umaryland.edu/marshall/usccr/index.asp>

"The Commission has continued to play a vital part in the efforts to combat discrimination in America. By providing access to the historical record of this important federal agency, the Thurgood Marshall Law Library will offer the public an opportunity to examine the efforts of the Commission more closely, while aiding the Commission in its role as a clearinghouse for information about civil rights," said Kenneth L. Marcus, United States Commission on Civil Rights.

Beyond the Dream: MLK on War

On Martin Luther King, Jr., Day, countless news sources will replay just part of King's speech at the March on Washington -- the second "I have a dream" part, ignoring the first half of the speech which laid the context for the uplifting dream segment. King began with a critique, arguing that "America has given the Negro people a bad check, a check which has come back marked 'insufficient funds.'" It was time for broken promises to be fulfilled, he insisted. "We refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice."

But on this Martin Luther King Day, perhaps it is best to reflect on a different message from Dr. King, delivered on April 4, 1967, at Riverside Church in New York City: Beyond Vietnam: A Time to Break the Silence.

King began by reflecting on these words from Clergy and Laymen Concerned about Vietnam: "A time comes when silence is betrayal." He said:

The truth of these words is beyond doubt, but the mission to which they call us is a most difficult one. Even when pressed by the demands of inner truth, men do not easily assume the task of opposing their government's policy, especially in time of war. Nor does the human spirit move without great difficulty against all the apathy of conformist thought within one's own bosom and in the surrounding world. Moreover, when the issues at hand seem as perplexed as they often do in the case of this dreadful conflict, we are always on the verge of being mesmerized by uncertainty; but we must move on....

This I believe to be the privilege and the burden of all of us who deem ourselves bound by allegiances and loyalties which are broader and deeper than nationalism and which go beyond our nation's self-defined goals and positions. We are called to speak for the weak, for the voiceless, for the victims of our nation and for those it calls "enemy," for no document from human hands can make these humans any less our brothers.

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond in compassion, my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the ideologies of the Liberation Front, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them, too, because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries....

For the rest, text and audio, click here.

Update: Coverage of this speech on NPR on Monday morning is here.

Photo credit: Image by John Goodwin.

Zeff on SSRN: Historicizing Historical Cost Accounting

Stephan Zeff, Rice University, has a new paper on SSRN, The SEC Rules Historical Cost Accounting: 1934 to the 1970s. Here's the abstract:

From its founding in 1934 until the early 1970s, the SEC and especially its Chief Accountant disapproved of most upward revaluations in property, plant and equipment as well as depreciation charges based on such revaluations. This article is a historical study of the evolution of the SEC's policy on such upward revaluations. It includes episodes when the private-sector body that established accounting principles sought to gain a degree of acceptance for them and was usually rebuffed. In the decade of the 1970s, the SEC altered its policy. Throughout the article, the author endeavors to explain the factors that influenced the positions taken by the parties.

Maillard on Slavery, Miscegenation and Disinheritance

Kevin Noble Maillard , Syracuse University, has posted a new working paper on SSRN, The Heir-Cut of the Slave: Miscegenation and Disinheritance in Antebellum South Carolina. Here's the abstract:

This essay questions the effect of testamentary law on race and status, and how law may hinder the practical and formal past of family relationships. I examine antebellum South Carolina to pose questions of law and interracial memory in regards to the juridical window that made miscegenation, what Mary Boykin Chesnut called the “monstrous system” of miscegenation and slavery, in South Carolina difficult to define. This case concerns two miscegenous conflicts within the same family. First, in 1861, a scheming relative accused her “white” and recently widowed cousin, Mary Remley, of being a black slave. Were the claim true, Mary and her children, as slaves, could not legally stand as beneficiaries of her deceased husband's will, thus enabling the cousin to inherit as the legitimate next of kin. Mrs. Remley and her children had always believed themselves to be free white persons, thus this claim shocked them into a racial paranoia that weakened their previous security in self-identity. Years later, the daughters would revisit the interracial issue again upon the death of their brother, Paul Durbin Remley. In his will, he disinherited his sisters in favor of his slave mistress, Philis, and their two children, Charles and Cecile. His sisters, as the white collateral heirs, objected to the trust he had established for Philis, and contested the will in the state legal system. However, they did not learn of his death until after the Civil War, when Philis wrote them a loving letter explaining the circumstances of her master/lover's death. This point of notification forms a crucial element in the resulting litigation, which incites questions of law and memory that challenge independent recollections of the past.

Judicial Independence: Lessons from History -- upcoming panel in D.C.

JUDICIAL INDEPENDENCE: DRAWING LESSONS FROM HISTORY

A panel discussion including:
Honorable Howard H. Baker, former U.S. Senator and U.S. Ambassador to Japan
Honorable Paul D. Clement, Solicitor General of the United States
Professor Vicki C. Jackson, Georgetown Law Center
Honorable Ann C. Williams, U.S. Court of Appeals for the 7th Circuit

Moderator: Russell Wheeler, President, Governance Institute

Thursday, January 25, 2007. 3-4:30pm
Thurgood Marshall Federal Judiciary Building, Washington, D.C.

To attend this event, you must RSVP to: anniemiller@scus.gov or 202-479-3411.

Barzun: Revising the First Amendment Revisionists

Charles L Barzun, Climenko Fellow at Harvard Law School, has posted an interesting new piece on SSRN, forthcoming in the Brigham Young University Law Review: Politics or Principle? Zechariah Chafee and the Social Interest in Free Speech. Here's the abstract:

The classic defense of free speech has justified its protection on public grounds. Under this view, the First Amendment protects free speech to ensure the proper functioning of democratic self-government by facilitating the spread of truth on important public matters. Recently, however, legal theorists have challenged this view, arguing instead that free expression is properly safeguarded for the sake of the individual. These theorists have variously deployed philosophical, doctrinal, and historical arguments in support of their position.

The leading historical argument, now widely accepted among First Amendment theorists and historians, consists of a revisionist account of the origins of the democratic theory of free speech. According to this view, the democratic theory did not grow out of a "worthy tradition" of free speech that includes the American Framers and John Milton. Rather, it is a distinctly modern innovation; Progressive intellectuals, particularly Harvard Law Professor Zechariah Chafee (1885-1957), concocted a theory of free speech based on the "social interest" in its protection that would be compatible with Progressive political ideology.

This essay seeks to revise the revisionists. It first seeks to show that the revisionist account is insufficiently supported by the historical evidence. The few nineteenth-century libertarians who paid more than lip service to the subject of free speech justified its protection on public grounds. I then show how late nineteenth-century developments in equity jurisprudence placed property and free speech rights in direct conflict with each other, and I argue that Chafee's work is best understood as an effort to resolve this doctrinal tension through jurisprudential analysis. Thus, where the revisionists see a radical transformation of free speech theory, I suggest there has instead been intellectual continuity and progress.

Gun Control or "One Nation Under Guns"? -- on Book TV Tonight

There will be a debate on Book TV tonight between authors Arnold Grossman, "One Nation Under Guns," and David Kopel, "Gun Control and Gun Rights," sponsored by the Denver Press Club, broadcast by C-Span2 Book TV.

Tonight, Saturday, January 13 at 11:00 pm, Eastern time

Description: The Denver Press Club hosts a debate on the issue of gun control. Arnold Grossman, author of "One Nation Under Guns - An Essay on An American Epidemic," argues the pro-gun control case while David Kopel, co-editor of "Gun Control and Gun Rights: A Reader and Guide" speaks for the opposing side. The debate is moderated by Cnythia Hessin, executive producer of Rocky Mountain PBS.

Author Bio: David Kopel is Research Director at the Independence Institute in Golden, Colorado. Arnold Grossman co-founded SAFE Colorado, a bipartisan anti-gun violence group, in 2000, following the Columbine school shootings. Mr. Grossman co-authored "1998" with former Colorado governor Richard Lamm.

Ann McFeatters on "Sandra Day O'Connor" -- Book TV Today

Today, Saturday, January 13, 3:55 pm Eastern time, on C-Span2

Book TV Interview with Ann McFeatters, author of "Sandra Day O'Connor: Justice in the Balance (2006)" at the National Press Club Book Fair and Authors' Night.

Ann Carey McFeatters is Washington Bureau Chief for the Pittsburgh Post-Gazette and The Toledo Blade and writes a weekly column about the White House for Scripps Howard News Service.

Also, the previously noted program with James Simon, New York Law School, on his book Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers, will be rebroadcast on Sunday, January 14 at 7:30 am, Eastern.

The Freedom of Information Act has a Blog!

FOIA has a blog! Or, that is to say, FOIA lawyer, Scott Hodes, has a FOIA blog. The Freedom of Information Act is an essential tool for researchers, because it requires the government to disclose documents pursuant to a written request for records, unless there is a reason for non-disclosure. The reasons, including national security, a common reason for non-disclosure, are outlined in the statute. Researchers and media often complain, of course, that the government withholds too much material. An example of this is the recent case involving the John Lennon papers.

For more on FOIA itself, and how to use it, the National Security Archive has a very informative FOIA page, here. The FBI's helpful FOIA page is here, and their electronic reading room, with digitalized FBI files of prominent individuals, is here. The Justice Department's less helpful FOIA page is here.

The FOIA Blog is a very welcome addition to these web resources. It has information about whether federal agencies are meeting deadlines for declassification of records. It follows FOIA litigation (and litigation is, unfortunately, sometimes a part of FOIA research). It has good information about breaking FOIA-related news stories, such as the recent disclosure of Justice Rehnquist's records. And it follows developments in state open records laws.

A terrific resource.

Dudziak on Thurgood Marshall and Transnational Legal History

One of Thurgood Marshall's favorite stories was about his work on the Constitution of Kenya. This new article, in the December 2006 issue of the Duke Law Journal, is the first serious effort to track down this episode. What began as an effort to follow an American lawyer on an overseas sojourn turned into a truly transnational story, because in order to understand Marshall's story, I had to understand the story he found himself in the middle of: the role of constitutional politics in Kenya's independence struggle.

What results is the first installment: this article, Working Toward Democracy: Thurgood Marshall and the Constitution of Kenya, which covers Marshall's most important work at the 1960 Lancaster House Conference on the Kenya Constitution, when he wrote a draft Bill of Rights for Kenya. The fuller story will be told in a book, Exporting American Dreams: Thurgood Marshall's African Journey, Oxford University Press, which should be out by the summer of 2008.

Here's the article abstract:

This Article is a work of transnational legal history. Drawing upon new research in foreign archives, it sheds new light on the life of Thurgood Marshall, exploring for the first time an episode that he cared very deeply about: his work with African nationalists on an independence constitution for Kenya. The story is paradoxical, for Marshall, a civil rights legend in America, would seek to protect the rights of white landholders in Kenya who had gained their land through discriminatory land laws, but were soon to lose political power. In order to understand why Marshall would take pride in entrenching property rights gained through past injustice, the Article tells the story of the role of constitutional politics in Kenya’s independence. While sub-Saharan Africa is often dismissed as a region with “constitutions without constitutionalism,” the Article argues that constitutionalism played an important role in Kenya’s independence. Against a backdrop of violence, adversaries in Kenya fought with each other, not with weapons of violence, but with constitutional clauses. The resulting Kenya Independence Constitution would not function as an American-style icon, but in that historical moment, constitutional politics aided a peaceful transition. In this context, Marshall built compromise into his bill of rights for Kenya to keep the parties together at the table.

Thurgood Marshall’s role in Kenya’s independence was limited, of course, but in following this story we gain an entirely new perspective on a major figure in American law. Before he began writing constitutional law as a Justice in the United States, Marshall played the role of a framer, crafting constitutional principles in the first instance. From the intersecting narratives of Marshall’s travels and Kenya’s constitutional development, we can also see constitutionalism at work in new ways, as constitutional politics functioned as a peace process. The Article also provides an historical example of a process more familiar in our own day: the role of American lawyers in constitution writing and nation building overseas.

A link to the pdf version of the article is here. A web version of the article is here.

Photo credit: Indiana University Library website.

National Archives and Footnote to Digitalize Historic Documents

From the World History Blog, this Press Release on a new project to digitalize selected holdings from the National Archives:

(Press Release January 10) Archivist of the United States Allen Weinstein and Footnote, Inc. CEO Russell Wilding today announced an agreement to digitize selected records from the vast holdings of the National Archives. The 4.5 million pages that have been digitized so far are now available at www.footnote.com/nara.

This non-exclusive agreement, beginning with the sizeable collection of materials currently on microfilm,will enable researchers and the general public to access millions of newly-digitized images of the National Archives historic records on a subscription basis from the Footnote web site. By February 6, the digitized materials will also be available at no charge in National Archives research rooms in Washington D.C. and regional facilities across the country. After an interval of five years, all images digitized through this agreement will be available at no charge through the National Archives web site.

"This is an exciting step forward for the National Archives," said Professor Weinstein. "It will immediately allow much greater access to approximately 4.5 million pages of important documents that are currently available only in their original format or on microfilm. The digitization of documents will also enhance our efforts to preserve our original records."“The partnership with the National Archives will expand significantly the content we are able to offer professional and amateur researchers,” said Footnote CEO Russell Wilding. “We will continue to add millions of original documents and images monthly. ”The following represents a portion of the millions of historic documents that will be made available as part of the National Archives - Footnote Agreement.

The following represents a portion of the millions of historic documents that will be made available as part of the National Archives - Footnote Agreement.

Papers of the Continental Congress (1774-89).

Mathew B. Brady Collection of Civil War Photographs.

Southern Claims Commission.

Name Index to Civil War and Later Pension Files.

Investigative Case Files of the Bureau of Investigation, 1908-22.

For descriptions of these collections and more information, click here.

Mirow on Latin American Legal History

M.C. Mirow, FIU College of Law, has posted short abstracts on SSRN for three recent pieces in Latin American legal history. The papers themselves are not on SSRN, but click on any paper title for citation information, or links to Prof. Mirow's contact information. Here are two of the abstracts:

Case Law in Mexico 1861-1919: The Work of Ignacio Luis Vallarta: Ignacio Luis Vallarta was instrumental in establishing notions of binding case law (jurisprudencia) in amparo actions (actions to protect constitutional rights) in nineteenth-century Mexico. This article examines Vallarta's reports of cases in the Mexican Supreme Court and his other writings to explore this concept in relation to his drafting of the Amparo Act of 1882. The work concludes that it is overwhelmingly clear from the works and statements of Vallarta that Mexican jurisprudencia in constitutional law is predominantly a product of direct borrowing of United States legal methods.

The Code Napoleon: Buried but Ruling in Latin America: Following Maitland's famous observation on the place of the forms of action in English law at the beginning of the twentieth century, this essay argues that the Code Napoleon has had a similar effect on Latin American law. It examines various factors that have served to bury the Code and those that have served to continue its rule in Latin America. For Latin America, the author paraphrases Maitland to assert that the Code Napoleon we have buried, but it still rules us from its grave.

Also posted is: Individual Experience in Legal Change: Exploring a Neglected Factor in Nineteenth-Century Latin American Codification.

From Nations, Markets and War, to War's Relentless Hand

The Civil War Memory blog has helpful posts on new books. Here's just a bit, and links:

Nicholas and Peter Onuf, Nations, Markets and War (University of Virginia Press, 2006):

In this provocative interdisciplinary study, Nicholas and Peter Onuf argue that the American Civil War was the first great war between modern nations, emerging from the wreckage of a federal union that was supposed to secure perpetual peace. Situating conceptions of nationhood and war in the broader context of modern history, the authors draw attention to overlooked aspects of liberal thought that stand in tension with the ahistorical individuals and markets that are so familiar to us today.

For more, click here.

Another new book is Mark H. Dunkelman, War's Relentless Hand: Twelve Tales of Civil War Soldiers (LSU Press, 2006):

Dunkelman manages to locate stories which remind us that each soldier experienced the war in their own way. One of the most interesting stories involves Private Milton H. Bush who managed to find a substitute only to discover in 1864 that his name had never been taken off the muster rolls. Bush was forced to join the army in 1864 and while his paper work requesting a discharge based on the obvious mistake that had been made was working its way through the military's bureaucracy his unit was ordered to Georgia.

For more on this one, click here.

The Barbary Wars and the Making of America

To continue a theme...here is a review from H-Maritime, by Timothy G. Lynch, Department of Global and Maritime Studies, California Maritime Academy, California State University, which he titled "Anti-Piracy and the Making of America." This essay makes the case that the Barbary Wars were crucial to American constitutional history. Lynch reviews Frank Lambert, The Barbary Wars: American Independence in the Atlantic World (Hill and Wang, 2005). The review begins:

In this slim and eminently readable volume, author Frank Lambert makes a case for the Barbary Wars as the first true test of American independence. Lambert, whose previous works deal with early American religious history, goes to great lengths to show that these disputes between North African Muslims and North American Christians were rooted in economic issues, and not in religious or cultural ones. Further, Lambert argues that the thirty-three years (1783-1816) of tension between the United States and the Barbary States were formative ones for the American military, as well as for its economic and diplomatic corps, allowing the infant republic to "extend its newly won independence to overseas commerce" (p. 7). Lambert uses the vehicle of the Barbary Wars to investigate such critical issues as the switch from the Articles of Confederation to the Constitution, and the need for an independent foreign policy.

Lambert skillfully addresses the American-Barbary disputes in the context of a wider Atlantic and international realm, giving a richly detailed and highly nuanced appreciation for the dizzying array of events that marked Mediterranean and North African history from the Crusades through the eighteenth century. Operating on the margins of the great power struggles of their day, the Barbary states were political and economic opportunists preying on any ships that scooted too close to their well-defended shores. Lambert even asserts, "pirating in the Barbary States was a capitalist enterprise" (p. 37). Theoretically vassals of the Ottoman sultanate in Turkey, the Barbary deys had routinely collected ransom from European traders who wished to trade unmolested in the Mediterranean. Notoriously fickle, the states of Algiers, Morocco, Libya and Tunisia routinely ripped up these agreements, captured the ships of "trespassing" entrepreneurs, and enslaved their crews. Rather than risk a costly military expedition, most Europeans agreed to pay a ransom for the captives and allotted the Barbary States an annual tribute to protect their trade. Once the United States secured its independence from Great Britain, it lost the protection of the British fleet. Barely a year after the Treaty of Paris guaranteeing its freedom, a band of Moroccan brigands seized the American brig Betsey. This placed the United States in the most unpropitious of circumstances--it lacked a navy (the last vessels having been sold off in 1785 to finance the mounting war debt) and, at the same time, it needed to protect its trade, as well as its independence.

For the rest, click here.

Lesaffer on Justifications for War

Randall C.H. Lesaffer, Universiteit van Tilburg, has a new article in the Journal of the History of International Law: Defensive Warfare, Prevention and Hegemony: The Justifications for the Franco-Spanish War of 1635. Here's the abstract:

On 19 May 1635, a French herald formally declared war upon Spain at Brussels, the capital of the Spanish Netherlands. The ensuing war lasted 24 years and changed the balance of power in Europe, opening the way for France's bid for European hegemony under Louis XIV in the second half of the 17th century.

In this article, the official justifications for war advanced by the two great belligerent powers are analyzed. The paper uses the analysis of this material to establish contemporary understandings of what the law of nations said about the ius ad bellum (here meaning the body of law that regulates the right to wage war). This sheds some light on the justice or legality of the two belligerents' positions in terms of the then existing ius ad bellum, although no attempt is made to reach a conclusion on this.

In their official declarations and justifications of war, the two belligerents each distinguished between the legality (under the positive law of nations) and the justice (under natural law) of the war. Each party provided succinct arguments under positive law against the disputed the legality of their opponent's actions. But their main emphasis was the justice of their own causes and war goals. These arguments centered on their own interpretations of classical just war doctrine. Whereas jurists and scholars in general tended to concentrate on just cause, the authors of the declarations and justifications of 1635 focused on the justice of their goals and the necessity of the war to attain these goals. Thus they did not offer judgments on the offensive or defensive character of the war at the military-operational level, but rather at the political-strategic level. This allowed both parties to characterize their resort to war as defensive. Each justified the war as being necessary to defend its position as a great power and to uphold the ordering of Christian Europe. Each thus identified the common interest of all princes and republics with either its own hegemonic position (in the case of Spain) or its supposedly rightful ambitions (in the case of France).

Reuel Schiller leads off spring schedule for UCLA Legal History Workshop

UCLA Law School has a great line-up for their Legal History Workshop for the Spring Semester, beginning with the always interesting Reuel Schiller, Hastings, on January 17, with a paper, "The Coming of the Era of Deference: Courts, Agencies, and the New Deal."

Workshops are in Room 2442 at the law school, 4:45 P.M. to 6:30 P.M. According to the website, everyone is invited. Papers are available on-line in advance.

Here's the rest of the schedule:

January 31, 2007
"Painful Duties," Barry Cushman, Professor of Law and History, University of Virginia School of Law

February 14, 2007
Craig Yirush, Assistant Professor
of History, University of California, Los Angeles

February 28, 2007
Donna Dennis, Associate Professor of Law, Rutgers School of Law-Newark

March 7, 2007
Bruce Smith Professor of Law, Co-Director, Illinois Legal History Program University of Illinois College of Law

March 21, 2007
"A Cultural History of Civil Rights Lawyering," Kenneth Mack, Professor of Law Harvard Law School

April 4, 2007
Kurt Lash, Professor of Law, Loyola Law School

April 18, 2007
Stuart Banner, Professor of Law, UCLA School of Law

Law Post-Doc at National University of Singapore

A new Post-Doctoral Fellowship in Law is available at the Faculty of Law, National University of Singapore. Here are the details:

Application Deadline: Open Until Filled
Position Start Date: August 1st, 2007

As Asia’s leading law school, the Faculty of Law of the National University of Singapore (NUS) is committed to fostering research and teaching excellence among young legal scholars. To that end, we are pleased to announce the creation of three new post-doctoral fellowships annually, tenable in any area of the law. The first batch of Fellows will be appointed in the 2007/08 academic year, commencing August 2007.

The selection criteria will include the applicant’s demonstrated potential for research excellence in areas of relevance to Singapore, Asia and the international community. Existing publications and a record of organizing and participating in research projects will be advantageous. The selection committee will consider the alignment of the proposed research with the NUS law school’s research strengths and priorities, which are varied. These include Corporate and Financial Law, Asian Law and Legal Systems, International and Comparative Law, Constitutional and Criminal Law, Maritime Law, Family and Child Law, and Intellectual Property and Technology Law.

For more, click here, or here.

Slate on Justice Brennan's Role on the Burger Court

Slate.com has posted the first in a three-part series on Justice William Brennan. While use of Brennan's papers is restricted, writer Jim Newton says he was give access to some papers by Brennan's son. Chief Justice Warren Burger was expected to reverse course after the Warren Court years, but instead presided over "The Counter-Revolution that Wasn't." As Newton puts it,

Warren Burger proved singularly incapable of leading the court, while Justice Harry A. Blackmun, advertised as Burger's "Minnesota Twin," instead emerged as an independent centrist. But one factor stood above all others in those years: the subtle, effective leadership of Justice William J. Brennan Jr., who guided the court's dwindling liberal bloc to influence well beyond its votes and solidified the work of the Warren Court into a set of accepted norms of American life.

Newton's articles, based on Brennen's papers, tell the story of Brennan's role, and include links to selections from the Justice's papers. More to come on this...

Librarians go after Google

The Law Librarian Blog, a good place for tips on books and research matters, notes the publication of Jean-Noel Jeanneney, Google and the Myth of Universal Knowledge: A View from Europe (University Of Chicago Press, November 1, 2006). Here's the post:

The recent announcement that Google will digitize the holdings of several major libraries sent shock waves through the book industry and academe. Google presented this digital repository as a first step towards a long-dreamed-of universal library, but skeptics were quick to raise a number of concerns about the potential for copyright infringement and unanticipated effects on the business of research and publishing.

Jean-Noël Jeanneney, president of France’s Bibliothèque Nationale, here takes aim at what he sees as a far more troubling aspect of Google’s Library Project: its potential to misrepresent—and even damage—the world’s cultural heritage. In this impassioned work, Jeanneney argues that Google’s unsystematic digitization of books from a few partner libraries and its reliance on works written mostly in English constitute acts of selection that can only extend the dominance of American culture abroad. This danger is made evident by a Google book search the author discusses here—one run on Hugo, Cervantes, Dante, and Goethe that resulted in just one non-English edition, and a German translation of Hugo at that. An archive that can so easily slight the masters of European literature—and whose development is driven by commercial interests—cannot provide the foundation for a universal library.

As a leading librarian, Jeanneney remains enthusiastic about the archival potential of the Web. But he argues that the short-term thinking characterized by Google’s digital repository must be countered by long-term planning on the part of cultural and governmental institutions worldwide—a serious effort to create a truly comprehensive library, one based on the politics of inclusion and multiculturalism.

The LLB also recommends David Bearman's review of the book, published in the December 2006 issue of D-Lib Magazine.

Godsil: A New Perspective on Jim Crow in Court

Rachel Godsil, Seton Hall, has new article, RACE NUISANCE: THE POLITICS OF LAW IN THE JIM CROW ERA, published in the December issue of the Michigan Law Review. Here's the abstract:

This Article explores a startling and previously unnoticed line of cases in which state courts in the Jim Crow era ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These “race-nuisance” cases complicate the view of most legal scholarship that state courts during the Jim Crow era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiances to both precedent and the pursuit of racial exclusivity. Surprisingly, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory’s interest convergence. While new formalists may at first see these cases as supportive of their claims, the Article illustrates the limitations of formalism’s reach by also exploring the related line of racially restrictive covenant cases. Similarly, while interest convergence scholars might attempt to read many of the cases as supporting white property owners’ interests, this Article demonstrates that the race-nuisance cases are better understood as demonstrating that white interests are multi-faceted. Interest convergence is therefore a useful way to explain unexpected outcomes but not to predict such outcomes. Another line of inquiry raised by the cases is whether courts racialized nuisance doctrine by marking as nuisance conduct associated with blacks and rewarding blacks who adhered to white norms. The first claim is impossible to verify with any certainty—and the second embraces gross oversimplifications of racial group behaviors. In sum, the Article casts substantial doubt on the background assumptions about the way law worked during the Jim Crow era, and thus provides a more textured understanding of that period.

Origins of the Gerrymander

Through a tip from Cliopatria, I found my way to Strange Maps, where I found this image of what is apparently the original gerrymander. It got its name from Elbridge Gerry, signer of the Declaration of Independence, participant in the Constitutional Convention, Governor of Massachusetts from 1810-12, and Vice President of the United States, 1813-14. It was during Gerry's unpopular governorship that the gerrymander was created.

Strange Maps tells the story this way:

The painter Gilbert Stuart was inspired by the awkward shape of an electoral district on a map he saw in a newpaper editor’s office. He decorated the snake-shaped district with a head, a set of wings and claws, making it out to be some kind of antediluvian monster.

That will do for a salamander,” he said to the editor.

“Gerrymander!”, replied he to Stuart.

Hedin on Stereotyping in the Sacco & Vanzetti Case

Douglas Hedin has posted a paper on SSRN: Strangers Within the Gates: Ethnic and National Stereotyping in the Sacco-Vanzetti Case. Here's the abstract:

The concept of stereotyping is mentioned in court rulings in all sorts of litigation today - most prominently in civil rights cases, but also in such diverse fields as family law, criminal prosecutions, even congressional redistricting disputes. But this was not always so. First introduced as a psychological concept by journalist Walter Lippmann in his classic study, Public Opinion, published in 1922, the notion of stereotyping did not receive widespread judicial recognition until almost a half century later. While there is a burgeoning literature on the subject by social psychologists and sociologists, there are few studies by legal scholars on the conditions inside and outside the courtroom which enable pernicious stereotypes to taint certain legal proceedings. The essay that follows examines how ethnic and national stereotypes permeated one of the most famous trials in American history - that of Nicola Sacco and Bartolomeo Vanzetti, who were convicted of murder in 1921 and executed in 1927. Because the prosecutor and defense counsel, the trial judge and appellate courts, and witnesses and the two defendants were not even aware of the idea of stereotyping at the time of the trial and subsequent appeals, their arguments, conduct and testimony were unguarded and often times so crude that in hindsight - and with our growing understanding of how stereotypes operate - we see this cause célèbre in a different light. Equally important, this essay will assist students, practicing lawyers and scholars of litigation to recognize the conditions which permit negative stereotypes to flourish and influence the outcome of a criminal proceeding.

Call for Papers: Sessions on Transnationalism at German Studies Association

Call for Papers: Twentieth-Century Panel Sessions on Transnationalism
German Studies Association Conference, San Diego, October 4-7, 2007
Deadline: February 5, 2007

The German Studies Association has long aspired to be an interdisciplinary forum for scholars of German studies, and in the past few years transnationalism has offered many scholars a common ground upon which to reflect further on the limits of disciplinary knowledge and practices. While the debates over the foundations of transnational inquiry will go on in the future, a number of important works have been produced that attempt to translate the theory of transnationalism into concrete research projects.

We invite papers that examine transnationalism in practice in twentieth-century Germany. While we expect many papers that examine Germany's place in European transnationalism, we particularly encourage papers that examine Germany's entanglement with Eurasia, the Atlantic world, and the global South in the 20th century. We invite papers that explore such issues as colonialism, world war, genocide and human rights movement, the creation of supranational organizations, the cold war, decolonization, neo-liberalism, the rise and collapse of the welfare state, and the new imperialism. We are also seeking papers that focus on race, gender, and class relations that constituted, and were constituted by, the discourses and practice of transnationalism.

Anyone in any discipline is welcome to submit either a complete panel proposal or an individual paper proposal. If you are interested, or if you have questions, please contact Young-sun Hong at yhong@notes.cc.sunysb.edu by February 5, 2007.

Spruhan on Defining "Indian" through Blood in the History of Indian Law

Paul Spruhan, law clerk at the Navajo Nation Supreme Court, has a new article in the South Dakota Law Review, just posted on SSRN: A Legal History of Blood Quantum in Federal Indian Law to 1935. Here's the abstract:

The paper traces the development of the use of blood quantum, or fractional amounts of Indian blood to define Indian in federal law up to the Indian Reorganization Act of 1934. The paper shows that blood quantum was not widely used in federal law until the twentieth century, as the branches of the federal government used matrilineal or patrilineal descent or tribal membership to define Indian, for various legal purposes, including during the allotment era of federal Indian policy. Ultimately, the paper concludes that the varied uses of blood quantum reflect the changing policies of the federal government towards Indians through time and the continued failure to resolve two interlocking foundational contradictions of Indian legal status: 1) Indian as race and as political group, and (2) Indian as sovereign and as ward.

Priest, Creating an American Property Law

Claire Priest, Northwestern, has published CREATING AN AMERICAN PROPERTY LAW: ALIENABILITY AND ITS LIMITS IN AMERICAN HISTORY, in the December issue of the Harvard Law Review. For the full text, click here. Here's the abstract:

This article analyzes an issue central to the economic and political development of the early United States: laws protecting real property from the claims of creditors. Traditional English law, protecting inheritance, shielded a debtor’s land from the reach of creditors in two respects. An individual’s freehold interest in land was exempted from the claims of unsecured creditors both during life and in inheritance proceedings. In addition, even when land had been explicitly pledged as collateral in mortgage agreements, chancery court procedures imposed substantial costs on creditors using legal process to seize the land. American property law, however, emerged in the context of colonialism and the dynamics of the Atlantic economy. In 1732, to advance the economic interests of English merchants, Parliament enacted a sweeping statute, the Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America, which required that real property, houses, and slaves be treated as legally equivalent to chattel property for the purpose of satisfying debts in all of the British colonies in America and the West Indies. This statute substantially dismantled the legal framework of the English inheritance system by giving unsecured creditors priority to a deceased’s land over heirs. The Act also required that the courts hold auctions to sell both slaves and real property to satisfy debts in most colonies. More broadly, this legal transformation likely led to greater commodification of real property, the expansion of slavery, and more capital for economic development. American landholders, however, were subjected to greater financial risk than would have been the case in the absence of the Act.

Zasloff on Acheson and the Jurisprudence of Cold War Diplomacy

Jonathan Zasloff, UCLA, has a new paper on SSRN: More Realism About Realism: Dean Acheson and the Jurisprudence of Cold War Diplomacy. Here's the abstract:

Of all the American policymakers who helped create the postwar international security order, none loom larger than Dean Acheson. He titled his memoirs in (uncharacteristically) modest terms as Present At The Creation. But Acheson was more than merely present: as the principal architect of the Truman Doctrine, the Marshall Plan, and NATO, he established the central pillars of American national security policy for more than a generation. But we know next to nothing about the formative influences on his thought. Acheson seems to appear out of nowhere to enter the State Department in 1941. This omission is particularly acute because Acheson was not a professional international policymaker. When he first entered the State Department, he had never held a single diplomatic position. Like all policymakers, he came to world politics with a set of assumptions, beliefs, values, reflexes and commitments built up over decades; unlike all policymakers, he did so without tempering by specific international experience.

This article assesses the formative influences on Acheson's world-view by focusing on his professional background - as a New Deal lawyer immersed in the political and ideological struggles of the 1920's and the Great Depression. Before coming to State, Acheson's professional life was spent not at a diplomatic post but in a law office. Acheson was also a legal theorist, and exemplified of the Legal Realism's critique of Classical Legal Thought. Legal Realists stressed the interconnection of law and politics, and thus the deep connection of law and power. Law did not substitute for power but rather reflected it.

Acheson's diplomacy stressed similar themes and thereby rejected Classical premises. It relied heavily on balance-of-power conceptions and remained indifferent, if not hostile, to international legal institutions. Acheson's career, then, suggests that “legal Realism” and “foreign policy Realism” are not simply matters of linguistic fortuity. They instead show a deeper way in which “realism” has been interpreted in the 20th century.

Chronicle of Higher Ed reports new Scholarly Ranking Service

The Chronicle of Higher Education reports in its Jan. 12 issue about a new service purporting to rank scholarly productivity in graduate programs. Here's the Chronicle:

The Faculty Scholarly Productivity Index, partly financed by the State University of New York at Stony Brook and produced by Academic Analytics, a for-profit company, rates faculty members' scholarly output at nearly 7,300 doctoral programs around the country. It examines the number of book and journal articles published by each program's faculty, as well as journal citations, awards, honors, and grants received. The company has given The Chronicle exclusive access to some of its data, including rankings of the top 10 programs in 104 disciplines.

The most recent index, based on data from 2005, contains plenty of surprises. Some relatively unknown programs rank higher than Ivy League and other institutions with sterling reputations. Take English. The index ranks the University of Georgia at No. 2, while Columbia, Cornell, Duke, Harvard, and Yale Universities, and the Universities of Pennsylvania and of Virginia don't even crack the top 10.

The data on History departments is here. The top ten, in order, are: Princeton, Johns Hopkins, Harvard, Univ. of Maryland College Park, Yale; tied at sixth: NYU & Loyola Univ. Chicago; Ohio State, Rice, Northwestern. (Law schools are not ranked in this index.)

The statistics for all programs seem low, in terms of percentage of faculty with book and articles published. This is because only recent data was used: books from 2001-05, and articles from 2003-05. Some grants were counted from 2003-05, some awards were counted from 2001-06, but Nobel Prizes were counted within 50 years.

The service is lauded by those who created and subscribe to it, but it is not just the unexpected rankings that suggest that caution is in order. The varying date ranges for different productivity measures strike me as problematic. Why not pick one date range -- say five years -- and stick with it across categories? That would make it easier to track all the data, to measure results across time, and to see whether particular events have an impact. In fields in which research can take years, and the review process in peer-reviewed journals is lengthy, it is not necessarily a sign of lack of productivity to have few articles within a short time period, since articles might be clumped in a time period the survey misses. Also, the very low citation numbers across the board seem to suggest that for History, the wrong data was collected. For most historians, books are their principal publications, rather than articles. But the Index does not count citations to books in journals, only citations to articles.

When reading these rankings, I would proceed with caution.

Eminent Historian gets First-Hand Look at U.S. Justice System: The Extraordinary Jaywalking Arrest at AHA

At the American Historical Association Annual Meeting, held at multiple hotels in Atlanta this past weekend, a distinguished historian was arrested after jaywalking to cross the street from one conference hotel to another. This did not result in a simple ticket, but handcuffs, a paddy-wagon, and hours in jail trying to make bond. Here's the report from History News Network:

On Friday the Tufts historian Felipe Fernandez-Armesto was arrested by Atlanta police as he crossed the middle of the street between the Hilton and Hyatt hotels. After being thrown on the ground and handcuffed, the former Oxford don was formally arrested, his hands cuffed behind his back. Several policemen pressed hard on his neck and chest, leaving the mild-mannered scholar, who's never gotten so much as a parking ticket, bruised and in pain. He was then taken to the city detention center along with other accused felons and thrown into a filthy jail cell filled with prisoners. He remained incarcerated for eight hours. Officials demanded bail of over a thousand dollars. To come up up with the money Fernandez-Armesto, the author of nineteen books, had to make an arrangement with a bail bondsman. In court even the prosecutors seemed embarrassed by the incident, which got out of hand when Fernandez-Armesto requested to see the policeman's identification (the policeman was wearing a bomber jacket; to Fernandez-Armesto, a foreigner unfamiliar with American culture, the officer did not look like an officer). The prosecutors asked the professor to plead nolo contendere. He refused, concerned that the stain on his record might put his green card status in jeopardy. Officials finally agreed to drop all charges. The judge expressed his approval. The professor says he has no plans to sue. But the AHA council is considering lodging a complaint with the city.

An interview with Professor Fernandez-Armesto, made by HNN, is posted on YouTube. (It is divided into three parts. Part 2 is here, and 3 is here.)

The photo of the arrest, and his interview, provide a striking illustration of police (mis)conduct.

Donovan on Fairness as a Focus in Legal Anthropology

James Donovan, Univ. of Georgia, has a new paper on SSRN: Prolegomenon to a Fairness-Centered Anthropology of Law. Here's the abstract:

Legal anthropology, which began with Malinowski's holistic reflections on law, has today drifted toward an emphasis on the study of dispute resolution. Part I outlines the three historical phases of this development—Holism, Realism, and Processualism—and identifies two shortcomings of viewing the dispute as the central problem for legal anthropology: (1) the collapse of law into dispute analyses has not been, and perhaps cannot be, fully theorized; and (2) the most pressing of current problems, such as human rights and intellectual property issues, cannot be reduced without distortion to the disputing paradigm. Part II offers fairness as an alternative organizing concept for legal anthropology. According to the essay's arguments from initial premises, law should be operationalized as one of a system of coordinated norms of social regulation, with the unique goal to foster perceptions of fairness about structural inequalities. Turning attention away from disputes and onto fairness allows legal anthropology to benefit from the insights into law-related phenomena (e.g., fair sanctioning) gained by other subfields of anthropology such as economic anthropology, but most importantly returns the field's orientation toward its original interest in law.

Tate on Roman Law Influence on the Early Common Law

Joshua Tate, Southern Methodist University, has an article forthcoming in the American Journal of Legal History, posted on SSRN: Ownership and Possession in the Early Common Law. Here's the abstract:

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language.

This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.