While I am out, Frank will be watching: Times Square Live Webcam and New Year's Eve around the world.
Sunday, December 31, 2006
Saturday, December 30, 2006
This is a time when, among ourselves, legal historians often comment on how dynamic and exciting the field is, with many wonderful new junior scholars and much vibrant new work. So it is not that legal history is uninteresting....
Should we bother about the numbers? Even though he notes various caveats, here, including the over representation of certain fields (corporate law and IP), Brian Leiter sometimes posts download rankings on Leiter's Law School Reports , both for schools and for top scholars. Here's August 2005 and here's February 2006. Last September, he simply linked to the rankings, calling them "meaningless chatter," here. There are many eminent legal history and law and humanities scholars. They are not on the lists -- not even the ones who do quantitative history! In spite of the limitations of this data, we have probably all heard, in serious conversation, download data discussed as a measure of scholarly impact. And there is even an SSRN paper on this very topic.
What's up with legal history? It is not simply that there are more papers uploaded in other fields, although that is true. The Law and Economics SSRN journal has a total of 4006 papers, as compared with only 1931 papers in the Legal History SSRN journal. The more important phenomenon, however, is that there is a much higher rate of downloads for law and econ than for legal history. As of 6 pm on December 30, there were 796,509 downloads on the Law and Economics list, and 178,585 in Legal History. This shakes out to about two times as many downloads for every Law and Economics paper.
The difference seems not so great when you look only at the most recent 500 papers: there are 27,904 downloads in Law and Econ and 23,854 in Legal History, or about 56 vs 48 downloads. Not so bad, at least in terms of comparisons between fields. But the top legal history papers overall, in terms of downloads, include papers by the legal historians Richard Posner, Henry Hansmanm and Reinier Kraakman. In other words, folks in other fields cross-post on the Legal History list. Such scholars may be overrepresented among the higher downloads. And it is hard to know whether the most recent downloads represent a trend, or whether law and econ papers continue to accumulate more downloads over time, while legal history papers tend to stall out.
So, here's where you come in...
It may really be best to ignore all of this, but others don't. We often talk about whether measures of merit are socially constructed, etc. This is one measure of who and what is "top" that is, in fact, constructed (or not) by you.
So do something this year for legal history. Make your New Year's Resolution an SSRN-Download-A-Day.
Did you know that Geoffrey Chaucer Hath a Blog, and so does A. Lincoln? There is an entire category of "War and Warrior" blogs, including a very substantive and helpful blog on Civil War Memory, which has a post now on best Civil War-related books for 2006. There are history blogs from other parts of the world, in other languages, such as this interesting Peruvian blog, El Reportero de la Historia. A blog on Postcolonial Iraq has other Iraqi links, including blog links. (Warning -- this one takes a while to load, at least today, but the link is good.) And there are blogs on everything from Disney History to Egyptology to 18th Century Cuisine. Somewhere on this very long list is a blog for you.
Although statelessness is often treated by U.S. historians as belonging to other national histories—gypsies, Jews in Europe before 1945, Palestinians today—it has also lurked in the American national experience. Among those most vulnerable have been the enslaved, Native Americans, and U.S.-born women married to foreign men whose countries did not embrace them. When Hannah Arendt wrote memorably about the subject a half-century ago, statelessness was technically a term of the legal art, describing the limited class of people who lack a passport. In our own historical moment some privileged groups even enjoy multiple passports, yet the Fourteenth Amendment's guarantee of birthright citizenship has come under severe attack, a threat that makes likely the increase of statelessness. As protections of citizenship erode for trafficked women and other laborers and for refugees who are refused asylum, the ranks of the stateless increase—in experience if not always explicitly in law. The stateless are constructed even as citizenship is made more accessible. Indeed, the meanings of citizenship—particularly in terms of access to state protection—may be changing. I shall try to examine the vulnerabilities of American citizenship in historical context, with attentiveness to the interaction between the United States and the world."
Friday, December 29, 2006
For the rest, go here.
Lincoln and Chief Justice Taney was published in November 2006 by Simon & Schuster. Simon has posted the introduction on SSRN. To access it, click here. Here's the abstract:
The clashes between President Abraham Lincoln and Chief Justice Roger B. Taney over slavery, secession, and the president's constitutional war powers went to the heart of Lincoln's presidency. James F. Simon, author of the acclaimed "What Kind of Nation" - an account of the battle between President Thomas Jefferson and Chief Justice John Marshall to define the new nation - brings to vivid life the passionate struggle during the worst crisis in the nation's history, the Civil War. The issues that underlaid that crisis - race, states' rights, and the president's wartime authority - resonate today in the nation's political debate. Lincoln and Taney's bitter disagreements began with Taney's Dred Scott opinion in 1857, when the chief justice declared that the Constitution did not grant the black man any rights that the white man was bound to honor. In the famous Lincoln-Douglas debates, Lincoln attacked the opinion as a warped judicial interpretation of the Framers' intent and accused Taney of being a member of a pro-slavery national conspiracy. In his first inaugural address, President Lincoln insisted that the South had no legal right to secede. Taney, who administered the oath of office to Lincoln, believed that the South's secession was legal and in the best interests of both sections of the country. Once the Civil War began, Lincoln broadly interpreted his constitutional powers as commander in chief to prosecute the war, suspending the writ of habeas corpus, censoring the mails, and authorizing military courts to try civilians for treason. Taney opposed every presidential wartime intiative and openly challenged Lincoln's suspension of the writ of habeas corpus. He accused the president of assuming dictatorial powers in violation of the Constitution. Lincoln ignored Taney's protest, convinced that his actions were both constitutional and necessary to preserve the union. Almost 150 years after Lincoln's and Taney's deaths, their words and actions reverberate in constitutional debate and political battle. Lincoln and Chief Justice Taney tells their dramatic story in fascinating detail.
Studies in Legal History is published in association with the American Society for Legal History. The series consists of books that grapple with key questions in legal history. The series welcomes works of unusual distinction by both senior and junior scholars. Most of the published volumes in the series deal with American legal history, though a significant number are on European topics. There are no chronological, cultural, or geographical limits on volumes in the series.
In addition to Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (previously noted, here), in 2006 the series also published Law and Identity in Mandate Palestine by Assaf Likhovski. Here's the description:
One of the major questions facing the world today is the role of law in shaping identity and in balancing tradition with modernity. In an arid corner of the Mediterranean region in the first decades of the twentieth century, Mandate Palestine was confronting these very issues. Assaf Likhovski examines the legal history of Palestine, showing how law and identity interacted in a complex colonial society in which British rulers and Jewish and Arab subjects lived together.
Law in Mandate Palestine was not merely an instrument of power or a method of solving individual disputes, says Likhovski. It was also a way of answering the question, "Who are we?" British officials, Jewish lawyers, and Arab scholars all turned to the law in their search for their identities, and all used it to create and disseminate a hybrid culture in which Western and non-Western norms existed simultaneously. Uncovering a rich arsenal of legal distinctions, notions, and doctrines used by lawyers to mediate between different identities, Likhovski provides a comprehensive account of the relationship between law and identity. His analysis suggests a new approach to both the legal history of Mandate Palestine and colonial societies in general.
Meanwhile, Likhovski has just posted a related SSRN paper, noted here.
Other UNC Press books in 2006, related to legal history but not in the Series, include:
George Mason, Forgotten Founder by Jeff Broadwater
Slavery and Politics in the Early American Republic by Matthew Mason
The Weight of Their Votes Southern Women and Political Leverage in the 1920s by Lorraine Gates Schuyler
The Papers of John Marshall Vol. XII: Correspondence, Papers, and Selected Judicial Opinions, January 1831-July 1835, with Addendum, June 1783-January 1829 by John Marshall Edited by Charles F. Hobson
The Segregated Origins of Social Security: African Americans and the Welfare State by Mary Poole
Thursday, December 28, 2006
Included are some 2005 books reviewed in Choice in 2006. Left out are some excellent 2006 legal history books....
The titles of interest to legal historians include:
Bolton, Charles C. The hardest deal of all: the battle over school integration in Mississippi, 1870-1980. University Press of Mississippi, 2005. 278p bibl index afp ISBN 1578067170, $45.00 Oct’06, 44-1115
Branch, Taylor. At Canaan’s edge: America in the King years, 1965-68. Simon & Schuster, 2006. 1,039p bibl index ISBN 068485712X, $35.00 Jul/Aug’06, 43-6736
Maddox, Lucy. Citizen Indians: Native American intellectuals, race, and reform. Cornell, 2005. 205p index afp ISBN 0801443547, $35.00 Jan’06, 43-2986
Mancini, Matthew. Alexis de Tocqueville and American intellectuals: from his times to ours. Rowman & Littlefield, 2006. 255p index afp ISBN 0742523438, $29.95 Oct’06, 44-1130
Zolberg, Aristide R. A nation by design: immigration policy in the fashioning of America. Harvard/Russell Sage, 2006. 658p index afp ISBN 0674022181, $39.95 Oct’06, 44-1150
Bennett, Michael. Democratic discourses: the radical abolition movement and antebellum American literature. Rutgers, 2005. 223p bibl index afp ISBN 0813535727, $62.00; ISBN 0813535735 pbk, $24.95 Jan’06, 43-2654
Brown, Christopher Leslie. Moral capital: foundations of British abolitionism. North Carolina, 2006. 480p index afp ISBN 0807830348, $55.00; ISBN 0807856983 pbk, $22.50 Oct’06, 44-1151
Hochschild, Adam. Bury the chains: prophets and rebels in the fight to free an empire’s slaves. Houghton Mifflin, 2005. 467p bibl index ISBN 0618104690, $26.95 Jan’06, 43-2999
The American Presidency Project, by John Woolley and Gerhard Peters. URL: http://www.presidency.ucsb.edu/ Oct’06, 44-0690
Barone, Michael. The almanac of American politics, 2006: the senators, the representatives and the governors: their records and election results, their states and districts, by Michael Barone and Richard E. Cohen. National Journal, 2005. 1,907p index ISBN 0892341122 pbk, $69.95 Jul/Aug’06, 43-6265
Biographical dictionary of women’s movements and feminisms: Central, Eastern, and South Eastern Europe, 19th and 20th centuries, ed. by Francisca de Haan, Krassimira Daskalova, and Anna Loutfi. Central European University, 2006. 678p bibl index ISBN 9637326391, $69.95 Dec’06, 44-1867
CQ Supreme Court collection. CQ Press. Annual subscription starts at $1,158.00. URL: http://www.cqpress.com/Jan’06, 43-2574
The full list is here. A subscription is required for access, but free trial subscriptions are available.
"The ancient world, and in particular the later Roman Empire, can provide us with a laboratory for investigating what does and does not work in dealing with the interlocking issues of citizenship, ethnicity, and identity. It permits us to inform our understanding of emotionally charged phenomena from a more distanced and objective perspective. The concepts of cosmopolitanism and world citizenship go back at least to Hellenistic philosophies of the fourth and third centuries b.c.e. The Cynic Diogenes, for example, stated that he was "a cosmopolite": "a citizen of the world." The Stoics believed that the whole world constituted the only true city, whose citizens were of necessity "good" people. In the Roman Empire, in the early second century c.e., the Stoic philosopher Epictetus likewise spoke of being a "citizen of the world." Even the philosopher-emperor Marcus Aurelius (161–180) called himself a "citizen of the world-city," opining that "under its laws equal treatment is meted out to all." ...A close examination of the evidence...challenges the prevailing opinion and suggests that concepts of citizenship, from the personal, legal, and metaphorical perspectives, continued to play a vital role in defining personal and legal identity after 212 c.e. In particular, Roman citizenship continued not only to be a factor in how people perceived themselves, but also to entail legal rights that were available only to persons who were identified as "Roman citizens."
For the rest, go here.
The justice system has progressed considerably with regards to domestic violence over past few centuries. America has a long history of treating domestic violence differently from public violence. From the nation's founding through the mid nineteenth century, domestic violence jurisprudence was shaped by the common-law prerogative of chastisement, which allowed a husband to assault his wife within certain “reasonable” limitations. Though formal recognition of chastisement faded, twentieth-century jurisprudence replaced it with privacy justifications for avoiding enforcement of civil and criminal penalties in intramarital disputes. Recent rates, however, show enforcement of criminal penalties against perpetrators of domestic violence on par with, or even exceeding, enforcement in cases of public violence. Yet, as cases like that of Brett and Kim Myers demonstrate, echoes of that history can still be heard in today's legal system. The questions how domestic violence differs from public violence and why it might demand different legal treatment remain relevant. René Girard, a French religious anthropologist, argues in his seminal 1972 work, Violence and the Sacred, that violence is an inevitable element of society. Violence exists, and once aroused it threatens to snowball throughout society and cause chaos. Yet society uses ritual to alleviate violence on the theory that violence can be channeled into a sacrificial victim that, by being destroyed, can both provide an outlet for violence and restore social order. The American legal system has historically been unwilling to heavily penalize domestic violence - private violence - because, as I shall demonstrate, it has tacitly viewed victims of such violence as sacrifices providing an outlet against public violence. This Essay will explore the link between the Girardian model of sacrifice and the American legal system's historical treatment of domestic violence. In Part I, I will discuss the evolution of that treatment, looking at examples in the criminal justice system from police and courts. In Part II, I will turn to the Girardian sacrifice structure as a descriptive model of this domestic-violence tolerance, incorporating ideas from other ritual anthropologists. Finally, in Part III, I will explain how this new understanding can inform feminist theories of domestic violence and our practical understanding of the public-private relationship.
Wednesday, December 27, 2006
Elizabeth Borgwardt, University of Utah, A New Deal for the World: America’s Vision for Human Rights (The Belknap Press of Harvard University Press).
Merle Curti Award for the best books published in American social, intellectual, or cultural
Anne Sarah Rubin, University of Maryland, Baltimore County, A Shattered Nation: The Rise and Fall of the Confederacy, 1861-1868 (University of North Carolina Press).
Avery O. Craven Award for the most original book on the coming of the Civil War, the Civil War years, or the era of Reconstruction, with the exception of works of purely military history.
Robert J. Schneller, Jr., Naval Historical Center, Breaking the Color Barrier: The U.S. Naval Academy’s First Black Midshipmen and the Struggle for Racial Equality (New York University Press). Richard W. Leopold Prize awarded every two years for the best book writt en by a historian connected with federal, state or municipal government.
Matthew J. Countryman, University of Michigan, Up South: Civil Rights and Black Power in Philadelphia (University of Pennsylvania Press). Liberty Legacy Foundation Award for the best book on any aspect of the struggle for civil rights in the United
States, from the nation’s founding to the present.
Meanwhile, the Chronicle of Higher Education suggests that academics will remember Ford for taking "several steps early in his presidency to extend a welcoming hand to academics and other bitter critics of Mr. Nixon's policies who had felt alienated from the White House. Mr. Ford suspended registration for the military draft and started a program to give clemency to people who had resisted it during the Vietnam War." However, "In that and other respects, Mr. Ford's legacy, for both academe and American society in general, was more symbolic than substantive."
And, of course, an enduring legacy of the Ford presidency is the long tenure of Supreme Court Justice John Paul Stevens, nominated by President Ford to replace William O. Douglas in 1975.
Update: SCOTUS Blog has an interesting post on Ford and the Court, here.
Another update: Michael Dorf calls Stevens "Ford's greatest legacy" in this post.
This year's Reid Prize was awarded to Daniel J. Hulsebosch, for Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (University of North Carolina Press). The Committee's citation read: "Daniel Hulsebosch's book offers a sweeping reinterpretation of early American constitutional history that takes the reader from the imperial constitution of Lord Coke to the constitutional imperialism of Chancellor Kent. The heart of the analysis reassesses the meaning of the American Revolution as a constitutional event. Bringing original sources to light, using canonical sources in new ways, and building on the work of John Reid that has forced historians to take the legal grievances of the eighteenth century seriously, Hulsebosch demonstrates that the state and federal constitutions were shaped by North America's imperial past. He shows how the raw material of the English constitution got remade by colonists and imperial agents on the ground, as well as by the British American lawyers who are now called Founding Fathers. He also illuminates the process by which legal practices were abstracted into formal ideas and how this formalization was a means to an end: first to unite a transatlantic empire, then to forge a more perfect Union. Constituting Empire does not pretend to have the last word on the American founding. But it may well have pioneered a new line of scholarship exploring the social politics of constitutionalism."
Tuesday, December 26, 2006
You can see a clip of the historic Boston concert on YouTube. Brown's biography and work is described on his website, here.
A reader, Mojave Joe, has posted a helpful correction: "J. Anthony Lukas, in his book Common Ground, says that Brown did not want to be on T.V. because it would hurt him at the box office and because it would breach another contract that he had. Brown said he would do the show only if the city made up the difference, which it did using a secret fund."
Several sources report Brown's desire to televise the concert. The New York Times (not infallible!) suggests vaguely: "Instead of canceling his show, he had it televised." I don't have my copy of Lukas with me, but I consider Lukas to be a reputable source, especially on Boston.
Ali Ozdogan, American University, has posted an abstract in English and Turkish on SSRN, about a book manuscript, On Wiretapping! (Teknik Dinlemeye Dair!). The Turkish version is available on-line. For the English version, the author can be reached here.
ABSTRACT IN ENGLISH: This book has two parts. The first part covers the historical evolution of the American wiretapping legislation, summary of the American Wiretapping Criminal Procedure, the summary of Communication Assistance for Law Enforcement Act of 1994 (CALEA), and the privacy and property right problems in the CALEA and the corresponding suggestions. The second part of the book covers analytical summary and comparative analyses of legal positions of wiretapping in Britain, Canada, Germany, France, Israel, and Turkey. (Note that the manuscript is currently in Turkish. For the English version of the manuscript, please contact to author.ABSTRACT IN TURKISH: Kitap iki bolumden olusmaktadir. Ilk bolumde, Amerikan teknik dinleme mevzuatinin hukuki gelisimi, Amerikan Teknik dinleme ceza usulunun ozeti, Iletisim Sirketlerinin Kolluk Kuvvetlerine Yardimi Kanununun (CALEA) ozetini, CALEA ile ilgili mulkiyet ve ozel hayatina iliskin sorunlar ve cozuum onerileri bulunmaktadir. Ikinci bolumde Ingiliz, Kanada, Alman, Fransiz, Israil ve Turk hukuk sistemlerinde, teknik dinlemenin anayasal ve ceza usul hukuku acisindan yeri, analitik olarak ozetlenmekte ve mukayeseli analizi yapilmaktadir.
Here's the description from the press:
Earl Warren and the Warren Court: The Legacy in American and Foreign Law comprises essays written by leading experts from the fields of law, history, and social science on the most important areas of the Warren Court's contributions in American law. In addition, Scheiber includes appraisals of the Warren Court's influence abroad, written by authorities of legal development in Europe, Latin America, Canada, and East Asia. This book offers a unique set of analyses that portray how innovations in American law generated by the Warren Court led to a reconsideration of law and the judicial role—and in many areas of the world, to transformations in judicial procedure and the advancement of substantive human rights. Also explored within these pages are the personal role of Earl Warren in the shaping of "Warren era" law and the ways in which his character and background influenced his role as Chief Justice.Contributors include: Melissa Cully Anderson, Bruce E. Cain, Jesse H. Choper, Javier A. Couso, Malcolm Feeley, Sheila Foster, Philip Frickey, Tom Ginsburg, Edward L. Greenspan, Vicki C. Jackson, Yale Kalmisar, Kjell Ake Modeer, Harry N. Scheiber, Gordon Silverstein, Eivind Smith, and William Van Alstyne.
On the topic of the U.S. Supreme Court and the world....there is untapped research to do in travel files and foreign files of Supreme Court justices, supplemented with targeted research in diplomatic history records. The current phenomenon of Supreme Court justices speaking internationally and engaging (and being affected by) global audiences has a long history. Justice Warren, for example, lectured in what was then Tanganyika in 1963, when he, Thurgood Marshall, and other Americans were asked to put a better face on U.S. race relations after civil rights difficulties that year. (My source on that point is an oral history interview in forthcoming work -- no link right now. Sorry.)
Warren himself was interested in comparative law. Here's a little essay on correspondence I found in Warren's papers from the Editor of the American Journal of Comparative Law, commiserating with the Justice about the 9th Circuit librarian's return of copies of the journal in 1955 because "Ours is a Federal Court of Appeals library for the court and those having business before it. Obviously the comparable general laws subsisting in other governments, and most of them comparable only to state laws, would infrequently be of weight in determining what the Federal law is or ought to be."
As far back as I can remember, I have been fascinated by what has been called the "Black Power" movement. As a young boy in the 1980s, I sat mesmerized before public-television documentaries about the civil-rights struggles of the 1960s. But for me that decade truly came alive through the powerful, often fleeting images of Malcolm X, Stokely Carmichael, Kathleen Neal Cleaver, and Black Panthers, who seemed bolder and more glamorous than anything I had ever seen. In college I devoured books and articles about the movement, with its mysterious and taboo aura.
However, the more I continued to read (and by now in graduate school), the more frustrated I became by the paucity of material that took its accomplishments, setbacks, and failures seriously. As a history professor, my intellectual curiosity turned into scholarly inquiry as I came to see black power as a largely unchronicled epic in American history; one that shared a complex relationship with the more richly documented modern civil-rights movement....
Black power's impact...remains powerfully resonant — however fraught and contentious — as a generation of black politicians, artists, and intellectuals have channeled the new black identity it first articulated in diverse and varied ways. Stokely Carmichael and the wider black-power movement have been overshadowed by annual celebrations of martyrs, icons, political legislation, and landmark court cases commonly associated with the civil-rights era's heroic period. Civil-rights struggles are rightfully acknowledged as having earned black Americans a historic level of dignity. But black power accomplished a no less remarkable task, fueling the casually assertive identity and cultural pride that marks African-American life today. Ultimately, black power accelerated America's reckoning with its uncomfortable, often ugly racial past. In the process, it spurred a debate over racial progress, citizenship, and democracy that would scandalize and help change America.
A BBC interview with legal philosopher Ronald Dworkin about the possibility of democracy and a program suggesting that another charter, not the Magna Carta, is the true source of civil liberties, are listed as among the top ten audios & videos of the year by History News Network. Here are the descriptions:
On Dworkin:Sociologist Laurie Taylor talks to one of the world's most eminent legal and political philosophers, Ronald Dworkin. Professor Dworkin discusses his concerns on the current state of democracy, liberty and human rights. What role does dignity play in politics? What are the core values that all citizens share? Dworkin is author of Is Democracy Possible Here? Principles for a New Political Debate (Princeton University Press). Adding their thoughts to the debate from the London School of Economics and Political Science are Francesca Klug, Professorial Research Fellow, Centre for the Study of Human Rights; and Julian Le Grand, Richard Titmuss Professor of Social Policy.
And on the Magna Carta:
Former British Conservative politician Michael Portillo presents the final installment in a series revisiting the great moments of history to discover that they often conceal other events of equal but forgotten importance. Nearly 800 years after it was signed, Magna Carta is still venerated as the bedrock of English justice and liberty. Yet in truth its impact was a good deal less far-reaching than is popularly believed. Another document, The Charter of the Forest, signed two years after Magna Carta, was the true charter for the common man. Michael Portillo goes in search of this forgotten manifesto for English rural life.
Sunday, December 24, 2006
The description of the database for Lower Federal Court Judges begins: This project, originally compiled by Gary Zuk, Deborah J. Barrow, and Gerard S. Gryski, was undertaken to compile a definitive database on the personal, social, economic, career and political attributes of judges who served on the United States Courts of Appeals from 1801 to 1994. Recent additions by Gerard Gryski and Gary Zuk have expanded the data: The Appeals Court Attribute dataset contains information on judges who served from 1801-2000 (and partial information on judges through 2004); and, the District Court Attribute dataset contains information on judges who served from 1789-2000 (and partial information on judges through 2004). The databases include conventional social background variables such as appointing president, religion, political party affiliation, education and prior experience. In addition, unique items are provided such as the temporal sequence of prior career experiences, the timing of and reason for leaving the bench, gender, race and ethnicity, position numbering analogous to the scheme used for the Supreme Court, American Bar Association rating, and net worth. The second objective of this project was to merge these data with the Appeals Court Database, compiled by Donald R. Songer, and therefore includes a unique identification number for each judge. The combined databases should enable scholars to explore 1) intra- and inter-circuit fluctuation in the distribution of social background characteristics, 2) generational and presidential cohort variation in these attributes and, 3) state and partisan control of seats.
For more, click here.
Saturday, December 23, 2006
Before the Christmas truce, wars in Europe were conducted with, if it's possible, more civility. After the Christmas truce, that all disappeared. "In the past, particularly in Britain, war was thought of almost like sport. Your enemy was not really an enemy, but an opponent," [historian Patrick] Keefe said. "There was something kind of courtly about it." During the Christmas truce, before soldiers began kicking around a soccer ball, they worked together to clear bodies from No Man's Land. They celebrated for just one day, then officers directing the war soon imposed a crackdown, threatening severe consequences for any man who fraternized with the enemy. In addition to trench warfare, World War I introduced machine gun shells, zeppelins and tanks, Keefe said, weapons which allowed soldiers to remain farther apart physically. "It's more difficult to dehumanize your enemy when you're just across a short little trench from them," Keefe said. "The farther you get from the person you're fighting, the more mechanized and dehumanized the process of warfare becomes." With the winds of war blowing again, Keefe said, the current state of technology all but rules out a recurrence of the events depicted in "The Christmas Truce." "I wouldn't bet on it happening in Iraq."
Friday, December 22, 2006
For membership info, click here. There is a secure site where you can pay by credit card, and help your favorite student become a legal historian right now!
There is also membership info for non-students, with sliding scale membership fees based on income, so you can purchase a membership for all the legal historians on your gift list!
AHA to take up Resolution on United States Government Practices Inimical to the Values of the Historical Profession
Resolution on United States Government Practices Inimical to the Values of the Historical Profession
Whereas, The American Historical Association’s Statement on Standards of Professional Conduct emphasize the importance of open inquiry to the pursuit of historical knowledge;
Whereas, the American Historical Association adopted a resolution in January 2004 re-affirming the principles of free speech, open debate of foreign policy, and open access to government records in furthering the work of the historical profession;
Whereas during the war in Iraq and the so-called war on terror, the current Administration has violated the above-mentioned standards and principles through the following practices:
*excluding well-recognized foreign scholars;
*condemning as “revisionism” the search for truth about pre-war intelligence;
*re-classifying previously unclassified government documents;
*suspending in certain cases the centuries-old writ of habeas corpus and substituting indefinite administrative detention without specified criminal charges or access to a court of law;
*using interrogation techniques at Guantanamo, Abu-Ghraib, Bagram, and other locations incompatible with respect for the dignity of all persons required by a civilized society;
Whereas a free society and the unfettered intellectual inquiry essential to the practice of historical research, writing, and teaching are imperiled by the practices described above; and
Whereas, the foregoing practices are inextricably linked to the war in which the United States is presently engaged in Iraq; now, therefore, be it
Resolved, That the American Historical Association urges its members through publication of this resolution in Perspectives and other appropriate outlets:
To take a public stand as citizens on behalf of the values necessary to the practice of our profession; and
To do whatever they can to bring the Iraq war to a speedy conclusion.
To find out what is strange and unusual, and for the rest of the review, click here. (And if you think Huston's critique of American Political Development scholarship is off-base, post a comment.)
Legal origin - civil vs. common law - is said in much modern economic work to determine the strength of financial markets and the structure of corporate ownership, even in the world's richer nations. The main means are thought to lie in how investor protection and property protection connect to civil and common law legal origin. But, I show here, although stockholder protection, property rights, and their supporting legal institutions are quite important, legal origin is not their foundation.
Modern politics is an alternative explanation for divergent ownership structures and the differing depths of securities markets in the world's richer nations. Some legislatures respect property and stock markets, instructing their regulators to promote financial markets; some do not. Brute facts of the twentieth century - the total devastation of many key nations, wrecking many of their prior institutions - predict modern postwar financial markets' strength well and tie closely to postwar divergences in politics and policies in the world's richest nations. Nearly every core civil law nation suffered military invasion and occupation in the twentieth century - the kinds of systemic shocks that destroy even strong institutions - while no core common law nation collapsed under that kind of catastrophe. The interests and ideologies that thereafter dominated in the world's richest nations and those nations' basic economic tasks (such as postwar reconstruction for many) varied over the last half century, and these differences in politics and tasks made one collection of the world's richer nations amenable to stock markets and another indifferent or antagonistic. These political economy ideas are better positioned than legal origin concepts to explain the differing importance of financial markets in the wealthy West.
Thursday, December 21, 2006
I knew that other nations keenly followed civil rights in Birmingham, and often argued that the U.S. must live up to its own ideals before criticizing other nations for human rights abuses. (On that point, go here.) But I have never seen the point made quite this way.
Gettysburg, U.S.A., 1863
'...It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion; that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom and that government of the people, by the people, for the people, shall not perish for the earth.'
-- ABRAHAM LINCOLN
Section on Legal History
Friday, January 5, 3:30 - 5:15 p.m.
Maryland Suite C, Lobby Level, Marriott Wardman Park Hotel
The Scholarship of Morton Horwitz in Law and History
Moderator: Joseph Gordon Hylton, Marquette University Law School
Speakers: Robert W. Gordon, Yale Law School
Laura Kalman, Professor, University of California Santa Barbara, Santa Barbara, California
William Michael Treanor, Fordham University School of Law
Dalia Tsuk, The George Washington University Law School
Respondent: Morton J. Horwitz, Harvard Law School
This panel will examine Professor Horwitz’s influence on modern American legal historiography. In 1977, Horwitz published his groundbreaking first book, The Transformation of American Law, 1780-1850, one of the most important and controversial books in the field of American legal history. This book challenged the so-called ‘consensus school,’ which minimized the role of class conflict in legal history and in American history more broadly. Professor Horwitz’s The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy was both a sequel and a break from the first book. In recent years, Professor Horwitz has turned to the history of the Warren Court, and his work continues to be a tremendous scholarly influence as well as the subject of continuing criticism. Professor Horwitz will provide a brief response at the panel’s conclusion.
There are other panels of interest to legal historians. Some examples follow. The entire program is on-line here. (And don't neglect to register, here. They check for conference badges at each panel.)
Blogging note: I will not be able to blog from the meeting, since I will be at the American Historical Association annual meeting, unfortunately the same dates. If anyone attending the AALS would like to e-mail me reports for the blog, you can find my e-mail here.
Thursday, January 4
8:30 - 10:15 a.m.
Section on Law and the Humanities, Co-Sponsored by Section on Minority Groups
Virginia Suite C, Lobby Level, Marriott Wardman Park Hotel
New Law and Humanities Approaches to Identity
Moderator: Frank Rudy Cooper, Suffolk University Law School
Speakers: Kate Nace Day, Suffolk University Law School
Lolita Kay Buckner Inniss, Cleveland State University Cleveland-Marshall College of Law Margaret E. Montoya, University of New Mexico School of Law
Reginald C. Oh, Texas Wesleyan University School of Law
Christine Zuni Cruz, University of New Mexico School of Law
This panel explores the meaning of identity through methods that synthesize insights from both law and the humanities.Professors Cruz and Montoya will discuss the theories behind their production of a performance piece on the history of treatment of indigenous and chicana women in the Southwest. Professor Day will discuss the theories behind her use of literature to get law students to engage with feminism. Professor Buckner Innis will discuss a critical legal rhetoric approach to the recent African-American Slave Descendants Litigation decision on reparations. Professor Oh will describe a critical geography approach to the construction of the term “the ghetto.”
8:30 - 10:15 a.m.
Section on Mass Communication Law
Virginia Suite A & B, Lobby Level, Marriott Wardman Park Hotel
Secrecy in the Name of Security
Moderator: Alan E. Garfield, Widener University School of Law
Speakers: Eric B. Easton, University of Baltimore School of Law
Daniel Ellsberg, Author and Former U.S. Department of State Official, Kensington, California
Barry P. Mc Donald, Pepperdine University School of Law
Geoffrey R. Stone, The University of Chicago The Law School
When should the government be able to keep information secret in the name of national security? Who should decide when such confidentiality is warranted, and what checks should exist to ensure that these decisions do not overreach? How should the law treat those who disclose confidential information in the interest of keeping the public informed? What protection, if any, should the press have for publishing confidential information and for preserving the anonymity of sources who give them confidential information?
These and other issues will be discussed by Mr. Ellsberg, who in 1971 delivered copies of the Pentagon Papers to the New York Times and the Washington Post and is the author of Secrets: A Memoir of Vietnam and the Pentagon Papers; Professor Easton, co-author of an article with Dr. Martin Halstuk of Pennsylvania State University about the application of the Freedom of Information Act to the CIA; Professor McDonald, author of articles about the scope of First Amendment protection for information gathering, including the right of the public or press to access government information; and Professor Stone, author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.
Friday, January 6
8:30 - 10:15 a.m.
AALS Open Source Program (A program competitively selected by the AALS Committee on Open Source Programs)
Coolidge, Mezzanine Level, Marriott Wardman Park Hotel
The 50th Anniversary of “12 Angry Men”
(Program to be published in Chicago-Kent Law Review)
Moderator: Nancy S. Marder, Chicago-Kent College of Law Illinois Institute of Technology
Speakers: Robert P. Burns, Northwestern University School of Law
Valerie P. Hans, Cornell Law School
Bruce L. Hay, Harvard Law School
Stephan Landsman, DePaul University College of Law
Lawrence M. Solan, Brooklyn Law School
The year 2007 will mark the 50th anniversary of the movie 12 Angry Men. This movie offers the only portrayal of an active jury in the history of American film-making. The movie has withstood the test of time, not only because of the great ensemble cast, but also because it portrays the jury as a group of twelve ordinary men who learn in the course of their deliberations what it means to be a jury. The learning process is not an easy one. The deliberations are marked by clashing personalities and marred by prejudice. Yet, the jurors, led by the persevering and patient Henry Fonda, eventually learn to put aside prejudice and personal enmity, to piece together the evidence with a critical eye, and to deliver a verdict of not-guilty based on their reasonable doubt.
When this movie was released fifty years ago, audiences greeted it with little enthusiasm. Yet, the movie has endured and is now recognized as a classic. Even though the movie offers a fictional account, it provides a rare glimpse into jury deliberations. It continues to raise such questions as: Is this how a jury should deliberate? Is Henry Fonda an ideal juror? Is this fictional jury deliberation consistent with actual jury deliberations now that we have fifty years of empirical studies? The panel will address these and other questions.
8:30 - 10:15 a.m.
Section on Constitutional Law
Marriott Salon I, Lobby Level, Marriott Wardman Park Hotel
The Bush Presidency and the Constitution
Moderator: Stephen M. Griffin, Tulane University School of Law
Speakers: Curtis A. Bradley, Duke University School of Law
Neal K. Katyal, Georgetown University Law Center
Saikrishna B. Prakash, University of San Diego School of Law
Kim Lane Scheppele, University of Pennsylvania Law School and Woodrow Wilson School Princeton University
It is not too early to reflect on the meaning of the Bush presidency for the Constitution. The last section program related to this topic in January 2002 occurred in the aftermath of the September 11, 2001 terrorist attacks, the executive order establishing military commissions, and the war in Afghanistan. With the benefit of hindsight, we can see that the full implications of the Bush presidency for our constitutional order lay in the future. The legal and constitutional meaning of the September 2001 “Authorization to Use Military Force” and the subsequent “Global War on Terror,” the 2003 Iraq War, the 2004 “torture memo” controversy, the 2005 revelations concerning the National Security Agency and the bypassing of the Foreign Intelligence Surveillance Act have still not been properly digested and understood by constitutional law scholars. In addition, there have been some limited interventions by the federal judiciary and the Supreme Court in the 2004 trilogy of cases headlined by Hamdi v. Rumsfeld, and last Term’s decision in Hamdan v. Rumsfeld.
At the level of theory, the concept of the “unitary executive” was actually debated by Congress during the fall 2005 Supreme Court nominations of Chief Justice Roberts and Justice Alito. It is likely that the meaning of the Bush presidency for constitutional theory goes well beyond this. After 9/11, the Bush presidency was increasingly marked by themes and narratives that expressed a sense that constitutional change had occurred. The idea that 9/11 was inherently a sharp break with the past, that statutes adopted in the 1970s were outmoded, that the experience of World War II, the Korean War, and the Vietnam War were irrelevant all involved a self-conscious attempt to found a new age for constitutional and international relations law. Going forward, the Bush presidency projected an indefinite war on militant Islam, the development of a domestic dimension to the Commander-in-Chief power, and the United States as a theater of war. The panel will attempt to take into consideration all of these elements.
10:30 a.m. - 12:15 p.m.
Section on Law and Interpretation
Hoover, Mezzanine Level, Marriott Wardman Park Hotel
The Past and Future of Legal Pluralism
Moderator and Speaker: Paul Schiff Berman, University of Connecticut School of Law
Speakers: Elena Annette Baylis, University of Pittsburgh School of Law
Sally Engle Merry, New York University School of Law
W. Michael Reisman, Yale Law School
Carol Ann Weisbrod, University of Connecticut School of Law Legal pluralists have long noted that “law” cannot be viewed solely as the coercive commands of a sovereign power. Yet, while studies of pluralism have historically tended to focus on religious communities, ethnic enclaves, and the interaction between colonial and indigenous law-making, scholars are increasingly turning to other sites where multiple legal systems interact. Indeed, interest in globalization, with its varied normative centers—international organizations, transnational and international courts, NGOs, social movements, multinational corporations, online communities, industry standards, trade finance bankers, terrorist networks, and the like—promises to make pluralist insights relevant to a new generation of academic inquiry. This panel will take stock of legal pluralism as an interpretive lens and consider possible directions for future scholarship.
Emory University has announced that it will spend $2 million to make Deborah Lipstadt's website, Holocaust Denial on Trial, available in a number of non-English languages, including Arabic, Farsi, and Russian. The initiative is partially in response to Iran's recent so-called conference on the Holocaust. Professor Lipstat also blogs at History on Trial.
The website focuses on Lipstadt's successful defense to a libel action brought against her by Holocaust denier David Irving in England. In other news...Irving was released from prison in Austria today, after serving part of a sentence for Holocaust denial. That story is here.
At midnight on Dec. 31, hundreds of millions of pages of secret documents will be instantly declassified, including many F.B.I. cold war files on investigations of people suspected of being Communist sympathizers. After years of extensions sought by federal agencies behaving like college students facing a term paper, the end of 2006 means the government’s first automatic declassification of records.
Secret documents 25 years old or older will lose their classified status without so much as the stroke of a pen, unless agencies have sought exemptions on the ground that the material remains secret.
Historians say the deadline, created in the Clinton administration but enforced, to the surprise of some scholars, by the secrecy-prone Bush administration, has had
huge effects on public access, despite the large numbers of intelligence documents that have been exempted.
And every year from now on, millions of additional documents will be automatically declassified as they reach the 25-year limit, reversing the traditional practice of releasing just what scholars request. ...
Gearing up to review aging records to meet the deadline, agencies have declassified more than one billion pages, shedding light on the Cuban missile crisis, the Vietnam War and the network of Soviet agents in the American government.
Several hundred million pages will be declassified at midnight on Dec. 31, including 270 million pages at the Federal Bureau of Investigation, which has lagged most agencies in reviews.
The story continues here.
Greater access to previously classified documents for which there is no continuing secrecy need is important -- and not just for historians who work on national security issues. Many records across government agencies bear classification stamps, and you can find access to records barred, not just for research the war in Vietnam or antisubversive investigations during the Cold War, but also civil rights matters.
And as history has become first international, and now transnational (see new issue of American Historical Review, with much on transnational history) foreign affairs records become a valuable source to track international reactions to domestic developments of various kinds. Diplomatic files often bear classification stamps. So greater access is something that a broad range of legal historians have a stake in.
Research note: I have often argued that there is much in U.S. diplomatic files at the National Archives for legal historians across fields, since these records can place "domestic" topics in a global context. This research is not easy for the uninitiated, but I wrote a research guide, available here. It focuses on research on African constitutional development, but the basic information about breaking the code to diplomatic history research at the U.S. National Archives can help researchers in other fields.
Wednesday, December 20, 2006
Each of these volumes has oral histories of, respectively, eighteen and thirty-one witnesses of the period, as recorded at the de Gaulle Foundation, and as drawn from a bank of 150 oral histories there. Transcribed and edited, each volume is accompanied by an introduction and by biographical material on the witnesses.... The first of these volumes, La guerre et la Libération, covers the period of de Gaulle’s wartime experience, 1939-1945, up until his abrupt resignation as President at the beginning of the following year. The second volume, Le temps du Rassemblement (1946-1958), is focused on de Gaulle’s ultimately failed attempt to create a political movement around himself, following which came his “crossing of the desert,” referred to above, during which he wrote his war memoirs, whose elegance and profundity surprised and dazzled the French public. Then, more than twelve years after his resignation, he returned again to power.
For the rest, click here.
...You see how historians and lawyers need each other?
While waiting for all of this to get worked out, Wiener kept writing, publishing Come Together: John Lennon in His Time in 1984, and, appropriately, Gimme Some Truth: The John Lennon FBI Files in 2000.
The LA Times also has a link to the newly released Lennon documents, here. There's also a tiny photo gallery, with photos of Lennon, Wiener, and the Beatles, circa 1967. No photo of Wiener's lawyer, ACLU Southern Calif. lawyer Mark Rosenbaum, but I found one here.
Another update: To read Wiener on this, in The Nation, go here.
The New York Times is reporting that the FBI has finally brought a 25 year battle with historian Jon Wiener to an end, releasing files on John Lennon that Wiener sought in 1981 for a biography of Lennon.
But maybe the FBI isn't so bad. Last I checked, the Justice Department still had not released its files pertaining to the writing of the government brief in Brown v. Board of Education (1954), which even a top Justice Dept. official was unable to shake free for me while I was writing Cold War Civil Rights. Instead, I used State Department records. At least for what I was looking for (internal government memoranda on the case), State Dept. records and non-DoJ executive branch files were much more easily available than materials from Justice.
Here's an excerpt from today's story:
The 10 pages contain new details about Lennon's ties to leftist and anti-war groups in London in the early 1970s, but nothing indicating government officials considered the former Beatle a serious threat, historian Jon Wiener told the Los Angeles Times in Wednesday's editions.
The FBI had unsuccessfully argued that an unnamed foreign government secretly provided the information, and releasing the documents could lead to diplomatic, political or economic retaliation against the United States.
The newly released documents include a surveillance report stating that two prominent British leftists had courted Lennon in hopes that he would finance ''a left-wing bookshop and reading room in London'' but that Lennon gave them no money. Another page states that there was ''no certain proof'' that Lennon had provided money ''for subversive purposes.''
''I doubt that Tony Blair's government will launch a military strike on the U.S. in retaliation for the release of these documents,'' Wiener told the newspaper. ''Today, we can see that the national security claims that the FBI has been making for 25 years were absurd from the beginning.''
For the rest, click here.