Despite the current financial crisis, prestigious American and British law firms continue to maintain a presence in Continental Europe, Latin America, and China. Yet, in one economically fertile, democratic country - India - such global legal powerhouses are scarcely found. This study seeks to understand empirically why there is a general absence of these and other foreign law firms practicing in India. Based on fieldwork and compiled interview data of lawyers, judges, government officials, activists, and clients from India, the United States, and Britain - the latter two being the foreign countries most interested in gaining access to the Indian legal market - I show that the conventional wisdom on this subject is inadequate, and that there are multiple layers to this debate. But as I also show, what makes this story so fascinating is how both supporters and opponents of foreign law firms in India have strategically coupled their policy arguments with potent symbolic rhetoric to champion their perspectives. The study concludes by outlining a set of preliminary proposals that would permit American, British, and other foreign law firms gradually to enter India but would also incorporate the concerns held by opponents and could serve as the foundation for reaching a comprehensive resolution.
Wednesday, September 30, 2009
- Legal history blog posts announcing fellowships are here and here, or click on the "fellowship" labels on the sidebar (then scroll down, and click "older posts" at the bottom for more). We don't post about every fellowship every year, so scan through older posts for relevant funding sources.
- Announcements for many fellowships from H-Net are here.
- if you apply for one fellowship, apply for as many others as you can find that might be relevant to your work. For both you and your recommenders, the hard work is writing the first one. The others may require some tweaking, but once the proposals (and letters of recommendation) are written, the subsequent ones are much easier to do.
- everyone applies for the big national fellowships (e.g. Guggenheim and ACLS). You should apply as well, but you increase your chances of success if you find less well-known funding sources that are targeted directly to your research. (A good example is the Scholar's Award from the Truman Library Institute, which funds work on the Truman era that involves using the Truman Library archives. Great for Cold War-era legal and political history. This fellowship helped fund my work many years ago on Cold War Civil Rights.
- If you are a law professor applying for fellowships, advice for you is here. A prior LHB round-up of fellowship advice is here.
Tuesday, September 29, 2009
Here's the schedule, minus the meals and coffee breaks. For more information, please contact Rebecca Bianchi, the special projects editor of the Law Review who is coordinating the symposium, at email@example.com.
9:00am-10:30am Panel I: Law and Judicial Duty
Jacob Burns Moot Court Room, Lerner Hall (L101)
Renée Lettow Lerner
Associate Professor of Law
The George Washington University Law School
Robert W. & Irma Arthur-Bascom Professor of Law
University of Wisconsin Law School
Mary Sarah Bilder
Professor of Law
Boston College Law School
G. Edward White
David and Mary Harrison Distinguished Professor of Law
University of Virginia School of Law
Maurice and Hilda Friedman Professor of Law
Columbia Law School
10:45am-12:15pm Panel II: The Will of the People
Jacob Burns Moot Court Room, Lerner Hall, L101
Peter J. Smith
Professor of Law
The George Washington University Law School
University of Michigan Department of Political Science
William E. Forbath
Lloyd M. Bentsen Chair in Law
The University of Texas School of Law
Professor of Law
University of Michigan Law School
Vice Dean and Jacob D. Fuchsberg Professor of Law
New York University Law School
2:00pm-3:30pm Panel III: Contemporary & Comparative Approaches to Judicial Review
Jacob Burns Moot Court Room, Lerner Hall, L101
Associate Professor of Law
The George Washington University Law School
Patrick Henry Professor of Constitutional Law & the Second Amendment
George Mason University School of Law
Canada Research Chair in Citizenship and Multiculturalism
University of Toronto Law School
Vicki C. Jackson
Carmack Waterhouse Professor of Constitutional Law and Associate Dean of
Transnational Legal Studies
Georgetown University Law Center
William Nelson Cromwell Professor of Law
Harvard Law School
What counts as "young"? I've found no age cut-off in the membership materials for this well established organization. The webpage explains that
Except for professors the Association – as it is stated in its Statutes – is open to all young legal historians. This exemption has been made to provide the possibility for young legal historians, who cannot present their ideas on other conferences to share their research results and have it discussed with other legal historians but without the watching eyes of tutors and mentors. Professors and institutions are only welcome as sustaining members.
Call for Papers for the XVIth European Forum of Young Legal Historians, 24th-28th March
2010 in Frankfurt am Main
This article discusses the early history of Maryland in the context of religious discrimination, specifically in reference to discrimination against those of the Jewish faith, even though the state "was founded as a haven of religious liberty and beacon of toleration." It also highlights a member of the Maryland House of Delegates, Thomas Kennedy, a Christian, as being the leader of the movement to ultimately correct this injustice. Part of the problem were clauses in the state's constitution requiring officeholders to be Christians. Kennedy lost his seat in the House, but didn't give up the battle. Ha had tried several times to get bills passed to solve this problem, but many of these failed. After six years of effort, and after having been reelected to House of Delegates, his bill on behalf of the Jews passed, in February of 1825.
Monday, September 28, 2009
The history of interracial sex is often told from the perspective of either legislatures or lynch mobs. The approach has a certain appeal; it allows us to track the ideological currents of the dominant society, as they ebb and flow from passive acceptance of the practice to outright hostility. But the approach also minimizes the role of the participants, routinely casting them as unimportant players in the overall history of sex and race in this country. In this book chapter, I look at the subject of interracial intimacy from the perspective of the people involved: one story involves a white man and black woman from slavery times, and the other involves a black man and white woman from the turn of the century. The purpose is to add some depth and detail to our understanding of some of these relationships, in the process upending some of our basic assumptions about what they might have been like. Indeed, by shining a light on individual cases, we begin to appreciate both the contradictions and complexities of interracial unions, breathing life into a portion of history too often left untold.
Dean William Treanor examines and celebrates the work of legal historian Morton Horwitz, author of two magisterial histories of American law, The Transformation of American Law, 1780-1860 (Harvard University Press 1977) and The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Oxford University Press 1992), through the lens of Horwitz’ path breaking treatment of takings law. With personal memories of Horwitz as a point of departure, Dean Treanor assesses Professor Horwitz’s contribution to the understanding of the evolution of theories of property and the history of the takings clause. Treanor highlights Horwitz’s ability to examine contending views of the takings principle from within the context of larger political and economic movements. Perhaps Horwitz’s greatest contribution to the ongoing conversation about the history of American law, in Dean Treanor’s view, is his awareness of a tension between the ambiguity at the center of takings.
Annette Gordon-Reed's National Book Festival interview appeared in the Washington Post.
Also reviewed this weekend, THE CLINTON TAPES: Wrestling History With the President by Taylor Branch in the NY Times, and Theodore Roosevelt and theCrusade for America by Douglas Brinkley in the LA Times.
Sunday, September 27, 2009
When contemplating the scope and limits of presidential war power, constitutional scholars tend to focus on the relationship between the branches and the impact of public opinion. But the existence of drones, the reliance on private contractors, and the absence of a draft are part of a shift in the political structure of American warfare, enabling presidential power.
The role of drones might cause us to believe that an inevitable march of technology, together with strategies of contemporary warfare, have led to the disconnect between most Americans and the wars their nation is engaged in. But military historian Adrien Lewis suggests that these developments were not at all inevitable, and that a fundamental shift in the political structure of American warmaking has occurred since Vietnam, resulting in an isolation of the people from their wars.
Lewis makes this argument in The American Culture of War: The History of U.S. Military Force form World War II to Operation Iraqi Freedom (2007). For Lewis, a loosening of the ties between the people and their government’s use of force begins with the demise of the citizen-soldier after Vietnam. The turn to all-volunteer forces, and now mercenaries (private contractors), effectively removes the American people from war. Americans became “disconnected from the wars the United States was fighting.”
In reaction to opposition to the war in Vietnam, “the armed forces developed doctrines for war that endeavored to mitigate or eliminate the need for the support of the people. In short, they sought a way to fight a war that was not dependent on the will of the people.” This involved a greater reliance on air power rather than land forces, and an increasing use of high tech warfare.
Taking the American people out of war gave presidents “greater freedom to go to war, [and] the White House and the Pentagon greater freedom to fight wars as they saw fit.”
In Iraq and Afghanistan, American warfare is sometimes waged by machines. This raises questions about the morality of war, when an attack can occur with only one side’s mortality at risk. It also raises questions about political constraints on warfare. We need not peer into a future in which machines of warfare are more self-motivating than they already are. When, at another point on the globe, people are killed by an object that has its origins in the United States, but in its nature can owe allegiance to no one, we should ask where the people are in this war, and in their absence from the battle zone, how might they reassert their voice as a check on executive war power.
Saturday, September 26, 2009
This article examines the 1920s expansion of the ACLU agenda to incorporate nonpolitical speech. At the beginning of that decade, it was ACLU policy to contest only those obscenity regulations that were "relied upon to punish persons for their political views." By 1931, however, the ACLU was the undisputed leader of the anti-censorship campaign, an aggressive advocate not only of unfettered scientific discussion but also of artistic freedom and birth control. With that shift, a new model of civil liberties began to take shape—one that celebrated individual expressive freedom over substantive political reform.Image credit (and press release on the Morris Ernst Papers at the University of Texas-Austin)
The catalyst for change was a postal censorship dispute involving a sex education pamphlet, "The Sex Side of Life: an Explanation for Young People," written by the former suffragist and outspoken birth control activist Mary Ware Dennett. Postal authorities declared the pamphlet obscene despite effusive praise by medical practitioners, religious groups, and government agencies for its frank and objective style. When Dennett continued to circulate it by mail in defiance of the postal ban, she was prosecuted for obscenity, and she responded by challenging the postal censorship laws. ACLU board members agreed to sponsor Dennett's case because it instructed the youth on an issue of social importance, thereby advancing the public interest in a direct and familiar Progressive way. Unexpectedly, however, the litigation unleashed a far more sweeping anti-censorship initiative. Dennett's heavily publicized conviction, overturned by the Second Circuit on appeal, generated popular hostility toward the censorship laws and convinced ACLU attorneys that speech should be protected regardless of its social worth.
Image credit: Dennett
sees the justices and the people as partners in a “marriage” that bypasses the elected legislature and the president. “It frequently is the case that when judges rely on the Constitution to invalidate the actions of the other branches of government, they are enforcing the will of the American people,” he says."...
How well does this claim hold up against the historical record? Friedman’s best evidence is that the people and the court are still married. To be sure, a divorce in the form of diminished authority for the justices would be hard to bring off, given the legal obstacles. And particularly early on, a few marital spats led to serious rifts and estrangement. McCulloch v. Maryland, the 1819 decision upholding the power of Congress to charter a national bank, infuriated states’ rights advocates and brought that century’s fight over federalism to a head. A decade later, when the court ruled in favor of Cherokee sovereignty over Georgia’s assertion of authority to remove the tribe, the state refused to comply, or to appear before the court at all. In the reaction to Dred Scott, the divisive 1857 decision to deny citizenship rights to black people, Friedman sees an “evolution in the nation’s commitment to judicial review,” because the ruling was not met with defiance. But since the country cracked apart four years later in a civil war that the Dred Scott ruling hastened, the fact that the court emerged tarnished but otherwise unharmed seems a bit beside the point.
Friedman’s case strengthens in the 20th century....Friedman is certainly right that over time, the court has proved itself the Teflon branch of government.,..
All of this serves as a response to the argument that judicial review is bad for democracy because it resides in the unelected branch of the federal government. If the court has stayed in the public’s good graces by increasingly reflecting its will, then the justices have learned to make themselves accountable.
Friday, September 25, 2009
a draft of an invited contribution to a projected volume on Twentieth Century political philosophers[. It] offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963).Image credit.
The National Archives and Records Administration-Northeast Region is tucked away in the heart of Manhattan, in the nation’s cultural and financial center. The artifacts of our country’s diverse history are preserved in more than 65,000 cubic feet of carefully organized and managed records. The Northeast Region oversees an enormous variety of valuable information, from court records and military documents to immigration records from Ellis Island. Records held by the region date from 1685 to 1983, and many of them are unique—they do not exist anywhere else in their original form. Between 11,000 and 12,000 visitors visit the facility each year to take advantage of research and archival services and workshops. These visitors include historians, legal researchers, designers and architects learning from past mistakes and successes, and devoted family historians seeking clues about their ancestors. The archives staff, led by director Robert C. Morris, lends expert assistance to all these researchers.
While many see the 1960s as the era of a ‘‘rights revolution’’ in American law, this article looks back from the present moment of conservative legal dominance to better understand the ways in which conservative ideas began to grow during the heyday of legal liberalism. Using recent histories of post-1945 grassroots conservatism, the author argues that conservative rights claims – while often legally questionable – constituted for many a powerful and persuasive understanding of the Constitution. Due to this popular conservative jurisprudence’s endurance and influence, its existence in the 1960s forces reconsideration of understandings of the 1960s as the era of the ‘‘rights revolution.’’
Frank, who held the gossip of Frankfurter's protege Thomas Corcoran partially responsible for his firing, did not feel in need of instruction. "My strategy has been exactly that suggested by you, to assert on behalf of the government no more power than is necessary to justify the precise action heretofore taken by it. You ought to know that I do not believe in trying to vindicate abstract principles and that the thing to do is to win particular cases."
The two fired further rounds at each other, including Frankfurter's declaration, "Of course I still continue to think that you are wrong in thinking, as I believe you think, that most of law is bunk, but that you dish up the bunk because other people like to feed on it." Frank replied,
I don't say that "most law is bunk." You remember the farmer who was asked if he believed in baptism and who replied "Believe in it? Hell, I've seen it." I think "law" is damned real. But I do not believe that it works the way it appears, on the surface, to work. I think that many legal ceremonials could be eliminated. But while they exist, they play an important part in their effects on human lives. Therefore, as lawyer, I want to be well up on them and meticulously practice them. To use highbrow terms, I think that, pragmatically, practice, procedure and substantive law intermingle or, to put it differently, "substantive law" is merely one of the implements used in a court fight, one of the implements of persuasion used to induce a court to issue an order which will be backed by armed force, if necessary, to compel someone to do what your client wants him to do.
Thursday, September 24, 2009
Although the Bush Administration sought to avoid judicial review [of war-on-terror-related policies], lawyers were front and center in White House decision-making. According to Jack Goldsmith, faced with concerns about the possibility of another terrorist attack, and fear of being blamed for not avoiding it, the president could only justify the failure to take protective action if he had a good reason. “A lawyer’s advice that a policy or action would violate the law, especially a criminal law, was a pretty good excuse.” The White House was “haunted” by 9/11, Goldsmith argues, and “obsessed with preventing a recurrence of the expected harsh blame after the next attack.” Because of this, “the question, ‘What should we do?’ ...often collapsed into the question ‘What can we lawfully do?’...It is why there was so much pressure to act to the edges of the law.” The central role played by lawyers had limitations, however. Lawyers “look to legal sources to find the answers,” said 9/11 Commission Executive Director Philip Zelikow. This left out other important factors, such as the impact of a policy on U.S. foreign relations and on domestic public opinion.
The essay also places war-related policies in the context of a broader legal agenda. The essay is not at all comprehensive, however, since essays for this book -- intended for a broad audience -- have to be short. But working on this causes me to think that historians will have much to say about the Bush years for a long time, and one of the moves historians will bring to the table is an effort to contextualize administration actions -- first by beginning the story before 9/11, and finding continuities, and second by setting the Bush years within the broader trajectory of the history of legal conservatism.
Here's the abstract:
The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack of a common jurisprudence hampered the consolidation of a new conservative constitutional vision. More conservative courts might seem a safe haven for the president, less likely to challenge executive branch actions, but the Bush administration had a complicated relationship with courts. The administration sought out the courts to further aspects of a social policy agenda, such as restricting abortion rights and gun control. But when it came to challenges to the executive branch itself, the Administration used creative means to avoid court jurisdiction, including constitutional theories about executive power. Law was both a sword and a shield: it was a tool used to further some conservative objectives, and it was a shield intended to protect executive autonomy.
This article, which is part of a symposium on the 140th anniversary of the fourteenth amendment, explores the Reconstruction-Era black public sphere as a source for possible meanings for the fourteenth amendment. Similar to some of the work of popular constitutionalism scholars, I propose that an important and overlooked source for meanings of constitutional citizenship lies in the statements and actions of those who attempted to redefine citizenship in a more egalitarian and democratic manner and who established meanings for citizenship on the ground. To do this I borrow theoretical frameworks from political and social theory: civil society and the public sphere. I do so because these concepts capture the structure of nineteenth century social experience while at the same time also connecting this experience to modern notions of politics and society. After explicating some of the main principles of civil society and public sphere theory, I analyze a particular form of civil society and the public sphere that I think reveals important aspects of democratic citizenship-the black convention movement. This movement both enacted citizenship on the ground and engaged in a discourse about citizenship in the public sphere that presented alternative, progressive visions of citizenship, ones that included political rights (suffrage) and social rights (access to the public sphere). The article concludes with thoughts on how the black public sphere reflected different and significant understandings of democratic citizenship, equality, freedom compared to how those concepts were constructed in the dominant public sphere.
Wednesday, September 23, 2009
In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian policies at their best undo the results of defining indigenous peoples as inferior racial groups rather than sovereigns entitled to political and property rights. This consistency between civil rights and protection of tribal rights was recognized by the framers of the fourteenth amendment, and is reflected in both judicial decisions and historical developments in federal Indian policy. American constitutional principles, in other words, support both equal protection and tribal rights, and militate against any false consistency that would undermine the principles of equality and respect on which both are based.
The standard narrative about Americanism in the twentieth century tells of a robust debate early in the century between "anti-hyphenates," who preached an intense and highly racialized assimilationism, and cosmopolitans, who imagined new Americans' preserving, rather than abandoning, their ethnic and cultural legacies. On this view, World War I put an end to the cosmopolitan project, and the incarceration of Japanese Americans in World War II was the high-water mark of a racist and xenophobic definition of who could count as "American." The cosmopolitan project, in the standard narrative, would not really resume until the 1960s.
This paper presents evidence that at least modestly complicates the standard narrative. It focuses on the varying methods that federal government agencies used to evaluate the loyalties of incarcerated American citizens of Japanese ancestry during World War II. Comparing the methods used by military agencies with those of the civilian War Relocation Authority, the paper demonstrates that the civilian agency used a model of Americanism that was at least modestly cosmopolitan, and far less defined by racial conceptions of loyalty than the standard narrative would suggest.
Tuesday, September 22, 2009
Mr. Urofsky is a law professor and historian at Virginia Commonwealth University, the author of several earlier books on Brandeis and an editor of a five-volume collection of his letters. He is an equable presence here, one who plainly admires Brandeis immensely but also measures and sifts his subject’s actions with a critical eye. The book is a fitting culmination of a distinguished scholarly career.In the Boston Globe, Harvey A. Silverglate writes that this
massive biography...comes at an opportune time. A patient reader is left with the sense that lawyers, judges, public servants and, indeed, all citizens today face another period of historic choices. Examining the life of Brandeis, one concludes by the end of this remarkable book, shines essential light on how to balance loyalty to enduring verities with the demands for flexibility in assuring the nation’s future....From the publisher:
Urofsky is at his best explaining Brandeis’s jurisprudence of free speech and of privacy. The author makes the convincing case that this justice, more than any other, laid the foundation for many of our current liberties. In a section with obvious implications for the post-9/11 nation, Urofsky demonstrates the practicality of Brandeis’s view that there are few circumstances when government has to limit freedom of speech and invade privacy. And when such actions become necessary, there is never an excuse for doing so outside the parameters of the law.
The first full-scale biography in twenty-five years of one of the most important and distinguished justices to sit on the Supreme Court–a book that reveals Louis D. Brandeis the reformer, lawyer, and jurist, and Brandeis the man, in all of his complexity, passion, and wit.Excerpts are here and here.
Louis Dembitz Brandeis had at least four “careers.” As a lawyer in the late nineteenth and early twentieth centuries, he pioneered how modern law is practiced. He, and others, developed the modern law firm, in which specialists manage different areas of the law. He was the author of the right to privacy; led the way in creating the role of the lawyer as counselor; and pioneered the idea of pro bono publico work by attorneys. As late as 1916, when Brandeis was nominated to the Supreme Court, the idea of pro bono service still struck many old-time attorneys as somewhat radical.
Between 1895 and 1916, when Woodrow Wilson named Brandeis to the Supreme Court, he ranked as one of the nation’s leading progressive reformers. Brandeis invented savings bank life insurance in Massachusetts (he considered it his most important contribution to the public weal) and was a driving force in the development of the Federal Reserve Act, the Clayton Antitrust Act, and the law establishing the Federal Trade Commission.
Brandeis as an economist and moralist warned in 1914 that banking and stock brokering must be separate, and twenty years later, during the New Deal, his recommendation was finally enacted into law (the Glass-Steagall Act of 1933) but was undone by Ronald Reagan, which led to the savings-and-loan crisis in the 1980s and the world financial collapse of 2008.
We see Brandeis, who came from a family of reformers and intellectuals who fled Europe and settled in Louisville. Brandeis the young man coming of age, who presented himself at Harvard Law School and convinced the school to admit him even though he was underage. Brandeis the lawyer and reformer, who in 1908 agreed to defend an Oregon law establishing maximum hours for women workers, and in so doing created an entirely new form of appellate brief that had only a few pages of legal citation and consisted mostly of factual references.
Urofsky writes how Brandeis witnessed and suffered from the anti-Semitism rampant in the early twentieth century and, though not an observant Jew, with the outbreak of the Great War in 1914, became at age fifty-eight head of the American Zionist movement. During the next seven years, Brandeis transformed it from a marginal activity into a powerful force in American Jewish affairs.
We see the brutal six-month confirmation battle after Wilson named the fifty-nine-year-old Brandeis to the court in 1916; the bitter fight between progressives and conservative leaders of the bar, finance, and manufacturing, who, while never directly attacking him as a Jew, described Brandeis as “a striver,” “self-advertiser,” “a disturbing element in any gentleman’s club.” Even the president of Harvard, A. Lawrence Lowell, signed a petition accusing Brandeis of lacking “judicial temperament.” And we see, finally, how, during his twenty-three years on the court, this giant of a man and an intellect developed the modern jurisprudence of free speech, the doctrine of a constitutionally protected right to privacy, and suggested what became known as the doctrine of incorporation, by which the Bill of Rights came to apply to the states.
Brandeis took his seat when the old classical jurisprudence still held sway, and he tried to teach both his colleagues and the public– especially the law schools–that the law had to change to keep up with the economy and society. Brandeis often said, “My faith in time is great.” Eventually the Supreme Court adopted every one of his dissents as the correct constitutional interpretation.
A huge and galvanizing biography, a revelation of one man’s effect on American society and jurisprudence, and the electrifying story of his time.
‘Law and Lawyers in Edmund Burke’s Scottish Enlightenment’ appeared in Studies in Burke and His Time, (ns) Vol. 20, No. 1, p. 38, 2005. Here's the abstract:
On the margins of 'patriotism' and 'popery', Edmund Burke's essential Irishness remains poorly understood, not least in Ireland. But Burke was himself twice lord rector of Glasgow - he preceded Adam Smith - and there are few aspects of his life so neglected and so potentially rewarding as his relationships - personal,professional, and philosophical - to Scots jurists and the 'Scottish enlightenment'. Between them, Burke and the Scots exemplified the most pressing debates and developments of the century.
Monday, September 21, 2009
Does the Constitution Follow the Flag? is a book about the way that geography shapes legal rules and understandings—and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of American law. The ongoing debate over the rights of detainees held at Guantanamo Bay has brought the territorial limits of American law into sharp relief in recent years, but--as my book endeavors to show--this topic actually has a long and fascinating history.
As many readers of this blog are aware, the book appropriates for its title a famous question from the election of 1900. The US had just acquired several overseas colonies in the wake of the Spanish-American War. Yet it was entirely unclear what the status of these islands was. Were the inhabits citizens? Did the federal government have to abide by the Constitution when governing them? The Democratic Party platform of 1900 declared that “We hold that the Constitution follows the flag, and denounce the doctrine that [the federal government] can exercise lawful authority beyond it or in violation of it." Lined up in opposition were those who believed that normal legal rights did not apply fully—or at all—to the new possessions. For these individuals, sovereign borders did not line up with constitutional borders.
At stake in this debate was the ability of the U.S. to participate in an age of vast empires. As proponents of empire knew, if the Constitution indeed followed the flag any American empire was going to remain very small. At stake as well was the self-conception of the nation as a constitutional republic. Was the U.S. like other great powers of the day, all of whom had embraced a vigorous imperialism? Or did the Constitution provide powerful limits that could not be circumvented simply by (re)drawing lines on maps and declaring some areas beyond the reach of the Bill of Rights?
In short, the question of territoriality was central to the first stirrings of America as a truly global power. Territoriality continues to be central today, though it often hides in plain sight. The territorial scope of American law is central to the ability of the federal government to regulate foreign cartels; to protect investors; to station our troops in the myriad overseas U.S. bases; to capture foreign drug traffickers; to govern in Indian country; to combat offshore pollution; and to administer occupied foreign lands. These issues, in short, raises questions of territoriality and extraterritoriality; the book discusses each of them and more.
Does the Constitution Follow the Flag? has several aims. The first and most basic to explain why territoriality is a significant concept and why the American legal system, like other legal systems, has traditionally been presumptively territorial. The Westphalian system of sovereignty is fundamentally premised on territoriality. Yet what is less often recognized is the significance of imperialism and territorial expansion, not only to the development of the modern states system but also to the rules and principles of extraterritoriality. In short, while sovereignty has long been a central concern of lawyers, I make the case that sovereignty's twin, territoriality, deserves the same intense scrutiny.
My second aim is to trace, in broad brushstrokes, the evolution of territoriality in American law from the founding era to today. Parts of this history are well known, such as the extraterritorial application of antitrust law in the postwar era. Others, such as the U.S. District Court for China, or the late 19th century "Guano Islands Act," are less well known. Regardless, until now these parts have not been put together and treated as an interconnected, if occasionally wide-ranging, narrative.
My third aim is to advance several more specific claims about this legal evolution. First, the central concept of extraterritoriality has shown surprising continuity in its purpose even as its form has changed dramatically. Extraterritoriality meant very different things to nineteenth-century lawyers than it does to contemporary lawyers. But the primary function of extraterritoriality has remained, at a fundamental level, the same. That function, I argue, is to manage and minimize the legal differences entrenched by Westphalian sovereignty. Second, extraterritoriality is paralleled by what I call intraterritoriality. Just as extraterritoriality has long been a way to conceptually redraw maps, to redefine what is inside and outside the scope of a sovereign’s law, intraterritoriality has served to delineate differences within national borders, particularly as the U.S. grew in size and power. Intraterritorial doctrines, such as the claim that some constitutional rights do not apply in some U.S. territory (such as Indian country or federal territories), reflect the tension between America's constitutional traditions and its global ambitions.
Throughout this book I pay close attention to the international context, particularly to the changing global role of the U.S. In this sense the book is an example of what political scientists call "2nd image-reversed" analysis: I look carefully at how the international system shaped the content and direction of domestic law. As a weak power, the U.S. showed considerable solicitude for traditional Westphalian principles. As a superpower, it was far more willing to bend and even break established doctrine in the pursuit of its national interest. This transformation, and related shifts in international politics and economics, helped to shape the kinds of territorial claims that were made, even if the fundamental aim of these claims—to manage and sometimes manipulate legal differences—remained broadly constant.
In sum, Does the Constitution Follow the Flag? offers a framework that connects a disparate set of territorial doctrines over time and explores their purpose and function. My overarching goal is to make sense of a world in which the United States applies its law to some actors in some places while denying it to other actors in other places. I hasten to add that I am not a historian (my doctorate is in political science) and I certainly don't view this book as the last word on territoriality. I nonetheless hope I have written an account that brings clarity to the topic, that links its political and legal aspects in an interdisciplinary manner, and that helps to vividly and engagingly ground current debates in an historical context.
This paper is an early draft of the first chapter in a forthcoming book, Law in American History: Volume One, From the Colonial Years Through the Civil War. Two or three more volumes are planned. The book seeks to find that elusive middle ground between specialized monographs and works in American legal and constitutional history that are designed for general audiences. This chapter attempts to be revisionist as well as synthetic. I would welcome any comments.Image credit.
Sunday, September 20, 2009
For Lacy K. Ford, the division between the states of the upper South (Virginia along with the border slave states) and those of the lower South (South Carolina and the cotton-producing states to its south and west) best explains how white Southerners “understood their position with regard to slavery, and how they saw themslves as citizens of the United States right down to secession and Civil War.”...
In extraordinarily close detail, he demonstrates how white slave-owning Southerners in the two regions followed sharply different trajectories in addressing the slavery question, and he argues that the development of a Southern nationality and its controversy with the North must be understood from the inside out rather than the outside in.
Saturday, September 19, 2009
Thinking Gender is a public conference highlighting graduate student research on women, sexuality and gender across all disciplines and historical periods. We invite submissions for individual papers or pre-constituted panels.Hat tip: H-Law.
This year we are particularly interested in research on labor, social justice, public policy, the global and globalization, race and ethnicity in the Americas, and the “new” economy (austerity) and its effects on women and people of color. Additionally, because this year is the Center for the Study of Women’s 25th anniversary, we are especially interested in topics relating to feminism’s past and present, such as the state of feminism, changing notions of feminism, post-feminism or third-wave feminism, feminist community/ies both off and online, and feminist icons and leaders.
For individual papers, please submit a Thinking Gender cover sheet, 250-word abstract, a CV (2 pages max, no resumes, please), and a brief bibliography (1 page max). For panels, please submit a 250-word description of the panel topic in addition to the materials required for the individual paper submissions. Please download cover sheet form and reference submission guidelines at http://www.csw.ucla.edu/thinkinggender.html, and note that only complete applications adhering to the stated guidelines will be accepted. Please also note that the Center for the Study of Women cannot provide travel funds for conference presenters.
Deadline for Submissions: Monday, October 19, 2009, by Noon. We will only accept completed submissions emailed by the deadline, without exception. Please send submissions to: firstname.lastname@example.org.
Probate records show that James Harlan, the father of Supreme Court Justice John Marshall Harlan, assembled during his lifetime a law library impressive in its breadth and balance. This paper discusses how Harlan might have acquired the collection, analyzes its content, and attempts to identify titles listed in the executor's inventory.
Friday, September 18, 2009
Here's the book description:
The Bush Administration has notoriously argued that detainees at Guantanamo do not enjoy constitutional rights because they are held outside American borders. But where do rules about territorial legal limits such as this one come from? Why does geography make a difference for what legal rules apply? Most people intuitively understand that location affects constitutional rights, but the legal and political basis for territorial jurisdiction is poorly understood. In this novel and accessible treatment of territoriality in American law and foreign policy, Kal Raustiala begins by tracing the history of the subject from its origins in post-revolutionary America to the Indian wars and overseas imperialism of the 19th century. He then takes the reader through the Cold War and the globalization era before closing with a powerful explanation of America's attempt to increase its extraterritorial power in the post-9/11 world. As American power has grown, our understanding of extraterritorial legal rights has expanded too, and Raustiala illuminates why America's assumptions about sovereignty and territory have changed. Throughout, he focuses on how the legal limits of territorial sovereignty have diminished to accommodate the expanding American empire, and addresses how such limits ought to look in the wake of Iraq, Afghanistan, and the war on terror. A timely and engaging narrative, Does the Constitution Follow the Flag? will change how we think about American territory, American law, and-ultimately-the changing nature of American power.
"Kal Raustiala's 'Does the Constitution Follow the Flag?' turns some of the crucial debates of the Bush years into a guide to a new era in law and foreign policy. He examines the old fashioned notions of borders and boundaries in the context of a changed and changing world, and asks all the right questions about what they will mean in the future."--Jeffrey Toobin, author of The Nine
"As Kal Raustiala shows in his marvelous new book, Elihu Root was correct a century ago when he quipped that 'the Constitution indeed follows the flag, but it doesn't quite catch up.' Does the Constitution Follow the Flag? shows in fascinating detail how politics and law interact in shaping legal constraints on the conduct of American foreign policy."--Robert O. Keohane, Professor of International Affairs, Princeton University
"This book ties together many different historical strands of our extraterritorial Constitution in a compelling, remarkably accessible, and genuinely illuminating narrative."--Jack Goldsmith, author of The Terror Presidency
"As an act both of dispassionate scholarship and passionate citizenship, Does the Constitution Follow the Flag? compels attention. Its rich account of the outsized reach of American law is informed by a deep understanding of history, jurisprudence, and global affairs. Illuminating and incisive, the book's riveting account of territoriality and law in American political development could not be more timely."--Ira Katznelson, author of When Affirmative Action Was White
"Does the Constitution Follow the Flag? is a brilliant, wide-ranging and timely book. In a world where supra-national forces, from global markets and mass migration, to international terrorist organizations, present an ever-increasingly challenge to the limits of the law, it shows just what territorial sovereignty is, and why it matters. It is also a highly compelling work of intellectual and political history."--Anthony Pagden, author of Worlds at War
Oct. 1. Jennifer Armiger (University of Delaware)
"Gender, Beauty & Fraternity: The Western Electric Kearny Works and the Industrial Family"
Nov. 12 Janneken Smucker (University of Delaware)
"The Amish Brand: Cottage Industries Making and Selling Quilts"
Dec. 3 Victoria Saker Woeste (American Bar Foundation)
“Henry Ford: Unmasking the Self-Made Myth”
Feb. 11 Melanie Gustafson (University of Vermont)
"Beautiful Faces, Strong Bodies: Harriet Hubbard Ayer and the Business of Beauty Culture in Gilded Age America"
March 11 Thomas Zeller (University of Maryland)
"Consuming Landscapes: The View from the Road in the United States and Germany, 1920-70"
April 15 Jonathan Rees (University of Southern Colorado)
"Inventing the Cold Chain: Technology and Marketing in the Nineteenth Century American Natural Ice Industry"
Thursday, September 17, 2009
Princeton University Press has published James A. Miller's book, Remembering Scottsboro: The Legacy of an Infamous Trial with Princeton University Press. Miller is a professor of English and American Studies at GWU. Here is the publisher's description of the book.
A sample chapter is available for download here.In 1931, nine black youths were charged with raping two white women in Scottsboro, Alabama. Despite meager and contradictory evidence, all nine were found guilty and eight of the defendants were sentenced to death--making Scottsboro one of the worst travesties of justice to take place in the post-Reconstruction South. Remembering Scottsboro explores how this case has embedded itself into the fabric of American memory and become a lens for perceptions of race, class, sexual politics, and justice. James Miller draws upon the archives of the Communist International and NAACP, contemporary journalistic accounts, as well as poetry, drama, fiction, and film, to document the impact of Scottsboro on American culture.The book reveals how the Communist Party, NAACP, and media shaped early images of Scottsboro; looks at how the case influenced authors including Langston Hughes, Richard Wright, and Harper Lee; shows how politicians and Hollywood filmmakers invoked the case in the ensuing decades; and examines the defiant, sensitive, and savvy correspondence of Haywood Patterson--one of the accused, who fled the Alabama justice system. Miller considers how Scottsboro persists as a point of reference in contemporary American life and suggests that the Civil Rights movement begins much earlier than the Montgomery Bus Boycott of 1955.
owships on a yearly basis. Applications for 2010-2011 are due in Berlin on October 1, 2009.
The Academy welcomes emerging as well as established scholars, writers, and professionals who wish to engage in independent study in Berlin. Around two dozen Berlin Prizes are conferred annually. Past Berlin Prize recipients have included historians, economists, poets, art historians, journalists, legal scholars, anthropologists, musicologists, public policy experts, and writers, among others. The Academy does not accept project proposals in mathematics and the hard sciences.
In addition to placing a high priority on the independent work of its fellows, the Academy is in a unique position to aid fellows in establishing professional and general networks both in Berlin and beyond. The Academy’s public outreach, which facilitates the introduction of a fellow's work to a wider audience, serves its mission of fostering transatlantic ties through cultural exchange.
Fellowships are typically awarded for an academic semester or, in some cases, for an entire academic year. Only the Bosch Fellowships in Public Policy may be for shorter stays of six to eight weeks. Fellowship benefits include round-trip airfare, housing at the Academy, partial board, and a stipend of $5,000 per month. The Academy’s elegantly furnished apartments at the Hans Arnhold Center are suitable for individuals and couples; limited accommodations are available for families with children. All fellows are expected to reside at the Hans Arnhold Center during the entire term of the award.
Fellowships are restricted to candidates who are based permanently in the US (US citizenship is not required and American expatriates are not eligible.) Candidates in academic disciplines must have completed a doctorate at the time of application. The Academy weighs the general excellence of professional accomplishment and the proposal more than a project’s specific relevance to Germany. Although it is helpful to explain how a Berlin residency might contribute to the project’s further development, candidates need not be working on German topics.
The American Academy in Berlin
Attn: Berlin Prize Fellowship Applications
Am Sandwerder 17-19
Tel: + 49 30 804 83 0
Note that the October 1 deadline is for receipt in Berlin of your hardcopy application. No e-mail. More information is here.
Thursday, Sept. 17
Troubled No More by Death: Legal and Moral Hierarchies in a Rwandan Genocide Trial
Tim Waters, Maurer School of Law, IU—Bloomington
Thursday, Oct. 1
The Limits of Liberalism: Reflecting on the Impact of the 1988 Indian Gaming Regulatory Act
Eve Darian-Smith, Law & Society/Anthropology, University of California, Santa Barbara
Thursday, Oct. 15
An Interpretive History of the Voting Rights Act
Luis Fuentes-Rohwer, Maurer School of Law, IU—Bloomington
Thursday, Oct. 29
The NAACP, Mob Violence, and the Unexpected Breakthrough in Constitutional Law
Megan Francis, Jerome Hall Post-Doctoral Fellow, IU—Bloomington
Thursday, Nov. 5
Emotion in Judging
Terry Maroney, Law School, Vanderbilt University
Thursday, September 17
Noon — Ken Kato (Political Scientist, Center for Legislative Archives at the National Archives) talks about constitutional government and the decision to start the Civil War.
1 p.m. — Gerry Gawalt (Curator of the Creating the United States Exhibition at the Library of Congress) discusses the creation of the Bill of Rights.
Friday, September 18
Noon — Richard Hunt (Director, Center for Legislative Archives, National Archives) explores Congress, the Bill of Rights, and amending the Constitution.
1 p.m. — Mark Dimunation (Chief of the Rare Book and Special Collections Division, the Library of Congress) focuses on stories about the burning of the Capitol and Thomas Jefferson’s library.
Monday, September 21
Noon — Richard McCulley (Historian, Center for Legislative Archives at the National Archives) talks about the Constitution and the Civil War
1 p.m. — Daun van Ee, (Historical Specialist, Manuscript Division, the Library of Congress) explores the period when the United States became involved in Europe and in the Pacific declaring war on two fronts.
Tuesday, September 22
Noon — Ken Kato and Martha Grove (Archivist, Center for Legislative Archives at the National Archives) talk about the Constitution, Congressional records and the War of 1812.
1 p.m. — Barbara Bair (Historical Specialist, Manuscript Division, the Library of Congress) looks at the first national parks and the conservationists and photographers who created support for the National Park Service.
Wednesday, September 23
Noon — Christine Blackerby (Educational Specialist, Center for Legislative Archives at the National Archives) talks about Reconstruction and the Constitution.
1 p.m. — Julie Miller (Historical Specialist, Manuscript Division, the Library of Congress) explores stories about the drafting of the Constitution
Hat tip: Ruth Ernst!
Image Credit; The Swamp.
Wednesday, September 16, 2009
Jerome Frank occupies an odd place in the intellectual history of American law. He and Karl Llewellyn were long considered the two thought-leaders of probably the most important movement in legal thought of the twentieth century, legal realism. And his most famous contribution to legal theory, Law & the Modern Mind, is still regarded as a legal classic. But at a time of renewed scholarly attention to legal realism, Frank is typically characterized these days as an “extreme” realist, who was a peripheral figure within that movement. He tends to be treated as an erratic, if perhaps brilliant, thinker who made some insightful critiques but who never even attempted to develop anything like a coherent theory of adjudication or a constructive vision for legal reform. This view of Frank seems to me deeply mistaken, and the aim of this essay is to correct it. I do so by offering a close reading of his most famous and controversial work, Law & the Modern Mind. My argument, in short, is that generations of scholars have misinterpreted this book because they have misunderstood Frank’s philosophical worldview and, therefore, his intellectual ambitions. If one takes Law and the Modern Mind on its own terms and if one reads its argument as a whole, rather than simply as a series of one-off critiques, one can see that Frank did not deny the possibility of rational legal decisionmaking, but rather sought to articulate the habits of mind and character on which he believed the sound administration of justice depended. Understanding Frank’s true concerns matters today because the questions he raised remain unanswered, and many of today’s proponents of a “new legal realism” deem them hardly worth asking.Image credit.