Koga on Law & Empire in East Asia

Yukiko Koga (Assistant Professor, Hunter College) has published an article that reflects a legal anthropologist's approach to legal history. Here is the abstract for "Between the Law: The Unmaking of Empire and Law's Imperial Amnesia" in Law & Social Inquiry 41:2 (2016), 402-34:

Asian victims of Japanese imperialism have filed lawsuits against the Japanese government and corporations since the 1990s, which became prime sites for redress decades after Japan's defeat in World War II. As this ethnography demonstrates, this process paradoxically exposes a legal lacuna within this emergent transnational legal space, with plaintiffs effectively caught between the law, instead of standing before the law. Exploring this absence of law, I map out a post-imperial legal space, created through the erasure of imperial and colonial subjects in the legal framework after empire. Between the law is an optic that makes visible uneven legal terrains that embody temporal and spatial disjuncture, rupture, and asymmetry. The role of law in post-imperial transitions remains underexplored in literatures on transnational law, legal imperialism, postcolonialism, and transitional justice. I demonstrate how, at the intersection of law and economy, post-imperial reckoning is emerging as a new legal frontier, putting at stake law's imperial amnesia.

Schmidt on German Free Lawyers and American Legal Realists

And while we're departing from our usual practice of posting abstracts only to ungated articles, here's another, by Katharina Isabel Schmidt, Law, Modernity, Crisis: German Free Lawyers, American Legal Realists, and the Transatlantic Turn to “Life,” 1903–1933, which is just out in German Studies Review 39 (February 2016): 121-140:

Scholars have long recognized American jurists’ idiosyncratic commitment to a prudent, pragmatic, and political style of legal reasoning. The origins of this style have been linked to the legacy of the most American legal movement of all: the realists. Conversely, German jurists’ doctrinal, idealistic, and apolitical approach can be tied to the relative failure of Germany’s equivalent movement: the free lawyers. How to account for the seemingly inverse fate of realistic jurisprudential reform projects on both sides of the Atlantic? In this paper I employ transnational history to shed light on this particular instance of German-American divergence.

The Promises and Perils of Disciplinary Border Crossing

[By Anne Kornhauser]

For the past month I have been touting the advantages of a multidisciplinary approach to certain kinds of historical understanding. Legal history is by nature multidisciplinary, but in my work I have chosen to situate legal history within a larger field of operation. I do not want to end this blogging stint, however, without mentioning a few of the drawbacks to the disciplinary eclecticism I have embraced, most of which are practical.

The first is that academics, like many people, like to put everyone in boxes. This means that scholars need to be able to identify their discipline and one or more subfields to constitute our expertise, to be recognizable within our profession. This form of identification makes sense to me; as a scholar, one needs to be able to speak with authority about a subject and to train authors in an area of specialization. If one claims too many forms of expertise, or none at all, one runs the danger of being accused of dilettantism, ignorance, or insouciance, and the accusers might just be right.

Yet expertise in the humanities and the social sciences is a tricky business. If it is difficult to parse, say, chemistry into its component parts, it is next-to-impossible to parse human behavior. As I have mentioned in previous posts, historians make do with different emphases, or perspectives, looking through some lenses but not others, isolating actors, institutions, and objects to make a case from a certain angle of vision about the significance of the human motivations, actions, or institutions we study. In some cases, we try to generalize or attribute causality to larger structural forces from our chosen vantage point and methodological assumptions. Whether looking for meaning or cause, the best we can do is to try to persuade through interpretation and evidence. One means of doing so is to assign greater importance to one aspect of the human condition over others.

Historians--still--almost always start with place. The discipline of history remains tied to the nation-state, though transnational, global, and "big" history have begun to disrupt this historiographical habit. There is something worth preserving here too: whether one starts with a nation-state, a geographical region, or a local community, there are many reasons to study a particular space and many obstacles to writing and teaching truly global histories. Since we must draw some lines, one thing that makes global history salutary is that it forces us to better justify some of those lines. History departments, academic publishing catalogues, history books, are organized foremost by time and place. But time and place only go so far in the business of identification within the historical discipline. It is what we study within the field of history that truly brands us: ideas, politics, culture, law, etc.

Here again, the reasons are mostly practical. As the field has grown, the ineluctable logic of classification proceeds apace. Academic publishers have developed series and specialized editors, job descriptions ask for greater and greater degrees of specificity in what we study and teach, and academic societies have sprung up to bolster thematic specialization. Finally, methodological or ideological infighting over a field or subfield can be another source of ever-multiplying subdivisions.

As good guild members, we like to protect our little fiefdoms in academia, policing the borders and admitting only those with proper identification. The historian who transcends prescribed categories may not quite fit into any scholarly community. More important, there is a risk that in covering so much ground, disciplinary or otherwise, one will be accused of meddling or superficiality. I, for one, will take that risk in exchange for what I believe can be gained from drawing on multiple disciplines both methodologically, in terms of the tools we use to study the past, and interpretively, in terms of how we define our objects of historical study. Invoking multiple disciplines allows for a wider array of possibilities for how we might read our sources; a deeper historical understanding, in particular the ability to recognize broad patterns of conceptualization, practice, and behavior that might otherwise be invisible to us; new ways to think about inherited disciplinary and epistemological categories, not to mention a more diverse community of interlocutors with whom to share ideas.

For these reasons, among others, I was attracted to legal history to complement the intellectual history I had already gravitated toward. Throughout my academic training, border-crossing was de rigueur. I intend to keep it up, unless the border patrols crack down. For I admit, I want to be accepted by the guild as much as anyone. And I do not just mean getting tenure, which I have. I mean being a valued, and valid, professional.

Law Talk: Finding the Rule of Law Among German Émigré Intellectuals in Wartime

[by Anne Kornhauser]

How did a group of German émigré intellectuals end up in a book about American liberalism and the rise of the leviathan state? As mentioned in my previous post, my book identifies three areas of concern among liberals who supported the newly enlarged, executive-centered, bureaucratized state but who did so with reservations about the absence of legitimating principles and the direction in which the state might be heading. The areas under threat were democracy, the rule of law, and individual autonomy. Here I will focus on the second, the rule of law.

As Joanna Grisinger superbly shows, the campaign to shore up weakened legal institutions turned technical and piecemeal in the 1940s. In legal thought, meanwhile, most legal realists were dabbling in a sort of eclecticism that lent itself to specific social and political reforms and viewed law as merely instrumental to these goals. By contrast, a group of German émigré intellectuals, who were trained in law and who advised the U.S. government on its strategy to defeat the Nazis and to reconstruct the German state, thought in broad terms about the erosion of legal norms in the wake of the administrative state at war.

There are good reasons why the Germans took up the mantle of what I call "legalism" in the 1940s, but before delineating them let me take a step back to comment on the very presence of the Germans in my book about American liberalism and its state. Although this was less the case when I started this project, German-born intellectuals have been enjoying a scholarly renaissance of late, not least among historians. No small part of this resurgence can be attributed to an outburst of scholarship on Henry Kissinger alone. The reasons for this are rather obvious and I will not rehearse them here.

This revivification of German émigré intellectuals goes well beyond the hoopla surrounding Kissinger. Intellectual and legal historians have brought newfound attention to a larger group of "foreign policy intellectuals," as they ride the wave of transnational historiography and seek to understand what lay behind the postwar assertion of U.S. power. These scholars trace the growth and transformation of the national security state in which German émigrés played a significant, if underappreciated, role. One notable multidisciplinary effort has focused on the concept of "militant democracy," which, put crudely, claims radical limitations on democracy to prevent a threat to its existence. (This concept will be the subject of my next post.)

Faced with a state determined to eradicate all vestiges of fascism and to prevent its resurrection, German legalist émigrés, including Arnold Brecht, Carl Friedrich, Otto Kirchheimer, Karl Loewenstein, and Franz Neumann, among others, turned to the rule of law ideal, as they understood it. Broadly, this ideal valorized the constraining influence of law on political power--including democracy itself in some instances--and its concomitant protection of the individual. In my book, I use "legalism" to describe this set of ideas, as it did not follow precisely either the German concept of the Rechtsstaat or the Diceyean idea of the rule of law.

Legalism was useful for thinking about the state in wartime because it defined legitimate state action under the simultaneous conditions of great duress and maximal power. The state was constrained by circumstances alone. In the legalist view, law had distinct properties, such as generality, impartiality, and non-retroactivity, which would help limit arbitrary power and ensure both procedural and substantive justice for the individual. This set of ideas did not map neatly onto any extant American legal language. Yet if one looked at academic writings, including law journals, and occasionally the popular press, not to mention the documents they wrote for the OSS, concern for legality was at the forefront of the émigrés' thinking about postwar reconstruction and justice. Why the Germans? Among other reasons, they had been thinking about the rule of law and the state since the rise and fall of Weimar and their intellectual training was better suited to the times.

To return to the theme of interdisciplinarity, one lesson I learned from my journey among the Germans is that scholars need to be aware of different disciplinary idioms rather than identifying a single language, such as the language of law in the mid-twentieth-century United States, and assuming this language exhausts the contributions of a discipline--in this case how "the law" was imagined, discussed, and fought over. They might also look in different places: much of this law talk about the American state took place on German soil.

Casting a Wide Net: The Varieties of Statist Liberalism

[by Anne Kornhauser]

First, a hearty thank you to Karen, Dan, and company for inviting me to be a guest blogger on this superb site. I will use this opportunity to discuss my book Debating the American State: Liberal Anxieties and the New Leviathan, 1930-1970, in particular its interdisciplinary character--beyond the givens of law and history. Throughout the month, I will highlight the challenges and possibilities for legal historians and others of melding academic disciplines in the realms of writing, publishing, and teaching.

My book is about how statist liberals responded to modern American liberalism's crowning achievement: the "leviathan" state. I grew interested in this topic because I knew that the relationship between liberals and the state that took shape during the New Deal and World War II was more complex than the longstanding political rhetoric of big-government liberals versus small-government conservatives would have us believe. But there was a more scholarly reason as well: After an astounding burst of scholarship on the history of 20th-century American conservatism, liberalism as a public philosophy of the state had been relatively neglected. During an age of conservative ascendancy its history was thought not to matter as much. Yet if liberalism was no longer so resonate as a political creed, its state largely remained. Path dependency, a favorite of political scientists, was a possible explanation, but history does not travel along neatly articulated trails. Besides, this was an uneasy state, perhaps even an unsustainable one. How, then, could historical exploration help explain the persistence of a strong liberal state with a weak liberal creed?

The first step was to leaven my intellectual history with political-institutional history to see what statist liberals thought about the American political institutions when the leviathan (or administrative) state was consolidated in the 1930s and 1940s. It turned out these liberal intellectuals thought a variety of things, some of them quite critical. These more critical liberal views were what interested me as they were less well-known and more revealing. In probing these sympathetic but critical views of the state, I had several aims. First, I sought to show through a cross-disciplinary, global conversation among liberal intellectuals that concerns about the newly hegemonic administrative state was not the provenance of conservatives alone; liberals too had their grievances. But liberal disquietude about the state was not as easy to discern. By looking at a wide variety of critical liberal intellectuals--many of whom were involved in government service--I found that they were thinking along similar lines about the state, but expressing those thoughts in different registers. These intellectuals ran the gamut from American social scientists and legal academics, to German emigre thinkers trained in law and politics, to the political and moral philosopher John Rawls.

Without an interdisciplinary sensibility, I might well have overlooked this shared unease about the the administrative state's increasingly bureaucratized, discretionary, and executive-driven power and the emergency conditions that justified it. The critical liberals all worried about the strains this state placed on the liberal values of majoritarian democracy, the rule of law, and individual autonomy and its die-hard proponents' lack of a rationale, other than that of "necessity," for exercising that power.

Second, by casting a broad net, in terms of the intellectuals' academic disciplines, countries of origin, and argumentative style, I could better see the tensions and contradictions within statist liberal thinking and the resulting issues of legitimacy that swirled around the liberal state. I found that most liberal were unable to or lacked interest in defending the state on principled grounds, while the attempts of others--the "sympathetic critics" of my story--to address this legitimation deficit made little headway, either because they were ignored, were impractical, or gave way to new concerns.

The excavation of tensions within liberal thought wrought by the leviathan state allowed me to offer a alternative explanation for statist liberalism's conceptual and the political weaknesses in contrast to those that blamed frontal assaults on liberal ideals and institutions, poor policy choices or programmatic failures, and ineffective political elites. The fact is most American liberals have offered a largely uncritical defense of the administrative state, though that may be beginning to change.

Structurally, the book looks first at liberal intellectuals' critiques of the New Deal state in its domestic guise. Then it turns to critical reactions to that same state as it operated in World War II, where I use the German occupation as an example of the administrative state at war. For the extended postwar period, I examine the singular figure of John Rawls. With this theory of a just liberal society, Rawls was the first among statist liberal intellectuals to offer a comprehensive attempt to overcome the legitimation deficit opened up by the prevalence of administrative governance and emergency politics in a constitutional democracy. In future posts I will discuss the variety of intellectuals who populate my book and the benefits and potential pitfalls of placing in conversation a bevy of social scientists, legal academics, and philosophers as they reacted to, worried about, and ultimately tried to legitimate the leviathan state while preserving the liberal values that mattered deeply to them.

Rabban on Pound's European Influences

Roscoe Pound (credit)

David M. Rabban, University of Texas School of Law, has posted Pound's Sociological Jurisprudence: European Roots and American Applications, which appeared in Le "moment 1900": Critique sociale et critique sociologique du droit en Europe et aux Etats-Unis (Editions Pantheon Assas (Paris 2015):    

Roscoe Pound, widely viewed by his contemporaries and subsequent scholars as the most important American legal thinker during the first decades of the twentieth century, was by far the leading proponent of the “critique social et critique sociologique du droit aux Etats-Unis.” This article stresses the extent to which Pound relied on German and French legal scholars in developing what he called “sociological jurisprudence.” It then examines how Pound applied its central themes to propose legal reforms designed to address the social and economic problems of a society transformed by urbanization and corporate capitalism. It closes by examining Pound’s legacy.

CFP: Critical Legal Histories of the North American West

From Southern Methodist University, we have the following call for papers:

Laying Down the Law: Critical Legal Histories of the North American West

A Joint Symposium Sponsored by the William P. Clements Center for Southwest Studies at SMU and the University of Nebraska Lincoln’s History Department and Center for Great Plains Studies

We solicit proposals for papers that offer a critical approach to legal borderlands in the North American West. Legal borderlands include spaces such as bordertowns on the margins of Indian reservations (Whiteclay, Nebraska and Pine Ridge) and international boundaries (El Paso, Texas and Juarez, Chihuahua); mining camps that host a vast range of racial/ethnic and gendered residents (Clifton-Morenci in Arizona); and multilingual courtrooms where federal, state, territorial, and tribal laws intersect (everywhere in the West). In addition to physical spaces, legal borderlands also include philosophical spaces where the legal code is ambiguous or contradictory—for instance, in its support of violence initiated as self-defense, in its assumption of consent in heterosexual and not in homosexual relations, or in its ambiguous definitions of racial and gendered rights.

Laying Down the Law will center its discussion on two deceptively simple questions: how have legal borderlands defined the North American West, and how have Westerners defined and/or challenged legal borderlands? We expect that contributors’ answers to these questions will characterize the West as a place of many overlapping legal borderlands rather than a lawless place.  Our aim is to encourage proposals that center on contested jurisdictions and jurisprudence, on disputes over authority and identity, and on inconsistent racial and sexual regulations.  Collectively, contributors’ essays should illustrate the importance of western legal history, in its myriad and complex forms, in American experience, history, and identity.

We welcome submissions from scholars of all ranks to contribute critical and innovative scholarship toward this anthology of western legal history. 8-10 selected participants will meet at UNL in Fall 2016 to circulate early drafts of their essays in a workshop setting and to present their work in a public forum. Participants will meet again in Spring 2017 (location TBD) to share advanced drafts. Conference co-organizers Katrina Jagodinsky (University of Nebraska Lincoln) and Pablo Mitchell (Oberlin College) will co-edit the chapters in an anthology published by a university press that maintains lists in both Western and Legal History. Noted scholars Kelly Lytle Hernández, Nayan Shah, and Jeff Shepherd have already agreed to contribute chapters as well. Please submit a one-page CV and a 500-800 word proposal describing your project, the research undertaken, and its connection to the symposium theme to Pablo Mitchell (prmitche@oberlin.edu) by September 15, 2015. For more information about the symposium please contact Pablo or Katrina Jagodinsky (kjagodinsky@unl.edu).

New Release: Bohme, "Toxic Injustice"

New from the University of California Press: Toxic Injustice: A Transnational History of Exposure and Struggle (Dec. 2014), by Susanna Rankin Bohme (Harvard University). A description from the Press:

The pesticide dibromochloropropane, known as DBCP, was developed by the chemical companies Dow and Shell in the 1950s to target wormlike, soil-dwelling creatures called nematodes. Despite signs that the chemical was dangerous, it was widely used in U.S. agriculture and on Chiquita and Dole banana plantations in Central America. In the late 1970s, DBCP was linked to male sterility, but an uneven regulatory process left many workers—especially on Dole’s banana farms—exposed for years after health risks were known.

Susanna Rankin Bohme tells an intriguing, multilayered history that spans fifty years, highlighting the transnational reach of corporations and social justice movements. Toxic Injustice links health inequalities and worker struggles as it charts how people excluded from workplace and legal protections have found ways to challenge power structures and seek justice from states and transnational corporations alike.

More information is available here.

Iriye to Lecture on International Affairs and Transnational Relations

The Washington History Seminar of the National History Center and the Woodrow Wilson School of International Studies announce the next in a series of lectures, International Affairs and Transnational Relations, by Akira Iriye, Harvard University.  It will take place on Monday, September 29, 2014, from 4:00pm - 5:30pm, at the Woodrow Wilson Center, 6th Floor Moynihan Boardroom.  To attend, register here.

Acclaimed Harvard historian Akira Iriye will reflect on the study of history today, examining recent historiographic trends and phenomena like "motion," "interconnectedness," and "hybridity" in an effort to move away from a Euro-centric approach. Iriye will explore the fascination with non-national entities and transnational relations, rather than with more conventional international affairs understood in the geopolitical framework (world hegemony, regional order, balance of power, etc.). The increased importance of transnational relations places non-state actors and non-geopolitical themes, such as economic globalization, cultural exchanges, environmental issues, and human rights, at the forefront of the contemporary study of history. Iriye will argue this has created a more hybrid world, moving away from a geopolitically defined world order and toward a mixture of geopolitics and non-geopolitical phenomena.

A Studentship in Law and Society in a Global Context at Queen Mary

[We have the following announcement.]

The Centre for Law and Society in a Global Context (CLSGC), part of the Department of Law, is offering a PhD Studentship to fund a doctoral student to conduct research in the area of the history of ideas about law and society in a global context. The CLSGC would welcome applications for this funding award from applicants whose research proposals outline how they aim to investigate the social context in which such ideas are articulated either by individual jurists or groups of jurists.

The research will be conducted at the CLSGC, which was established in the summer of 2013. It is a home for multidisciplinary research into the global dimensions of law and society. At its core, the CLSGC aims to work towards a better theorization of law in its changing social contexts, exploring the challenges posed for this endeavour by law’s increasingly important global dimensions. One of the key planks of CLGSC’s research program is the historical dimension of the globalisation of law, including the globalisation of ideas about law and society.

Freund and Frankfurter

[This is the second in a series of posts on my book Tocqueville’s Nightmare.  The series begins here.]

I'll confess: After devoting much time and thought to assembling the components of Tocqueville's Nightmare into a book, I was disheartened when Oxford asked me to write abstracts for each chapter so that subscribers to Oxford Scholarship Online could decide which ones to purchase and which ones to leave unread in the cloud.  The realization that I could use the abstracts to introduce blog posts on the book was some solace.  Here's the abstract for "Freund and Frankfurter":

One of the few Americans who looked to the European continent not just for programs to address the social ills of capitalism but also to constrain administrators was the German-educated law professor Ernst Freund.  A trusted advisor to Chicago's progressives, Freund believed that the America was a Rechtsstaat, in which bright-line rules distinguished legitimate from illegitimate administrative action.  Most legal progressives, believed instead that administrative discretion was inevitable and desirable.  Their leader, the Harvard law professor Felix Frankfurter, revealed their disagreement when he and Freund jointly directed legal studies of agencies financed by the Commonwealth Fund.  One monograph, by Gerard Henderson on the Federal Trade Commission, influentially argued that an agency's authority turned on the quality of its findings of fact.  By 1932 Frankfurter had prevailed.  Henceforth reformers would look not to the Continent but to the common-law tradition for a rule of law better suited to American politics.

So Tocqueville’s Nightmare begins not with a big bang of statebuilding or the bustle of administrators in action or the stern reprimands of judges but with scholars theorizing about administration and angling for grant money.  I know that sounds a lot less dramatic than FDR’s Hundred Days or Court-packing plan, but the chapter does have its drama, one suggested by recent historical scholarship in the “transnational” vein.  In Atlantic Crossings (1998), Daniel T. Rodgers showed that American progressives thought of themselves as part of a transatlantic search for solutions to the problems of industrial society.  As John Fabian Witt added for legal history, these “cosmopolitans” often found themselves challenged by “patriots,” convinced of the United States’ exceptional place in world history and dismissive of European ways.  Rodgers documented the existence of hundreds of intermediaries intent on bringing reforms from the European Continent to the United States, but in so doing he raised two questions for legal historians.  Did some transnational lawyer attempt the analogous feat of importing a continental approach to constraining official power?  If so, how did he fare in a legal order that apotheosized the common law and its institutions?

The Comparative and Transnational History of IP Law

[Steven Wilf, Connecticut Law, has recently sent us the following report:]

Intellectual property in the last few years has taken an historical turn which has led to the emergence of a good deal of interesting work.  More recently, there has been an interest in the comparative history of intellectual property law.  This has emerged as a result of the shift from intellectual property as a metropolitan legal framework, varying considerably from one territory to another, to a form of virtual property that easily crosses global borders.  The World Intellectual Property Organization (WIPO) spearheads a harmonization project that has prompted legal scholars to look towards history to understand the diversity of copyright, trademark, patent, and a variety of smaller regimes.

Two quite recent interesting comparative intellectual property law projects are:

1. Rethinking Patent Cultures,  a UK Arts & Research Council (AHRC) funded project, hosted by the Centre for History & Philosophy of Science at the University of Leeds and organized by Professor Graeme Gooday, hosted a conference as a first step towards understanding the comparative historical development of patent law. 
2.  The WIPO (World Intellectual Property Organization) Journal just published its special fifth anniversary issue, edited by Peter Yu, focusing on the historical development of intellectual property norms in a global perspective.  This issue (volume 5) is available [here].

Sunday Book Roundup

With 50 years passing since the assassination of President Kennedy, several books about his life are being reviewed. This week, in the LA Times critic David Ulin writes about the books he read in the years after the President's death in a piece titled, "Kennedy assassination books fed an appetite for conspiracy," and the paper also includes brief summaries of several books on Kennedy's life here.

The Washington Post reviews five JFK books: A Cruel and Shocking Act (Henry Holt and Co.) by Philip Shenon (here), End of Days: The Assassination of John F. Kennedy (William Morrow) by James Swanson (here), If Kennedy Lived: An Alternate History (Putnam Adult) by Jeff Greenfield (here), Camelot’s Court: Inside the Kennedy White House (HarperCollins Publishers) by Robert Dallek (here), and The Kennedy Half-Century (Bloomsbury) by Larry J. Sabato (here).

So too does the New York Times take up JFK as the subject of several reviews. Jill Abramson has written a lengthy piece on JFK that spans several books here; and there is a JFK shortlist that includes many of the books already mentioned as well as JFK, Conservative (Houghton Mifflin Harcourt) by Ira Stoll. Lastly, the NY Times also has a JFK Sampler that includes older books like Theodore H. White's The Making of the President 1960 (Atheneum, 1961).

Believe it or not, reviews on other topics were also published this week. One review even talks directly to historians. David Bell tells us "This Is What Happens When Historians Overuse the Idea of the Network," in the Economist. Bell writes,

"Certainly we should not expect from global history the tidiness and narrative drama of a Sherlock Holmes story. (“And so, Watson, the evidence shows indubitably that the culprit is Western imperialism.” “But Holmes, that is what you said last time.”) Yet if it is so difficult to do global history in a satisfying and engaging manner and without doing injustice to the story’s manifold actors, then perhaps historians should not be investing quite so much effort and resources into syntheses such as this volume. Perhaps the “global turn,” for all of its insights and instruction, has hit a point of diminishing returns. The fact that contemporary technology, economics, and politics have made us so acutely aware of global connections in our own day does not mean that past events are always best dealt with by setting them within a similarly vast context. “I could be bounded in a nutshell and count myself a king of infinite space,” said Hamlet. Many of the most interesting historical phenomena—think only of the origins of most major world religions—have started with rapid, incredibly intense changes that took place in very small spaces indeed. Perhaps it is time to turn back to them."

If you're looking for "Legal and Constitutional History from Below—Below the Supreme Court, That Is . . .", H-Net adds a review of a volume edited by Paul Finkelman and Roberta Sue Alexander, Justice and Legal Change on the Shores of Lake Erie: A History of the U.S. District Court for the Northern District of Ohio (Ohio University Press).

Another H-Net review covers Jill Norgren's Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers (New York University Press).

The Nation reviews Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic Books) by Gary May.

The Political Economy of Transnational Tax Reform

Just out from the Cambridge University Press is The Political Economy of Transnational Tax Reform: The Shoup Mission to Japan in Historical Context, edited by W. Elliot Brownlee, University of California, Santa Barbara, Eisaku Ide, Keio University, Tokyo, and Yasunori Fukagai, Yokohama National University, Japan.  Cambridge explains:

This volume of essays explores the history of the U.S. tax mission to Japan during the occupation following World War II. Under General MacArthur, economist Carl S. Shoup led the mission with the charge of framing a tax system for Japan designed to strengthen democracy and accelerate economic recovery. The volume examines the sources, conduct, and effects of the mission and situates the mission within the history of international financial and fiscal reform. The book begins by establishing the context of progressive social investigations of taxation, including Shoup's earlier tax missions to France and Cuba. It then goes on to explore the Japanese background to the Shoup mission and the process by which American and Japanese tax experts shaped their recommendations. The book then assesses and explains the mission's accomplishments in the context of the political economies of the United States and Japan. It concludes by analyzing the global implications of the mission, which became iconic among international tax reformers.

TOC after the jump.

Seeing War; Representing War

Next Thursday, Washingtonians have an unusual opportunity to hear a great scholar. As part of the Smithsonian Museum of American Art’s “After Five” series and in conjunction with its exhibition “The Civil War in American Art,” Drew Gilpin Faust, “Harvard University’s president and eminent Civil War historian,” will discuss “some of the forms in which the American Civil War was perceived by and represented to the American people, and the ways in which the nation dealt with the unprecedented carnage the War wrought.”  Would-be attendees are to pick up free tickets beginning at 6:30 p.m. in the museum’s Kogod Courtyard.  The lecture itself will be in the Museum’s McEvoy Auditorium, from 7 to 8:30.

Camacho reviews Shah, "Stranger Intimacy: Contesting Race, Sexuality and the Law in the North American West""

H-Borderlands has published a review of Nayan Shah, Stranger Intimacy: Contesting Race, Sexuality and the Law in the North American West (2011). The book is part of the University of California Press American Crossroads Series.

Here's a taste of the review, by Julia Camacho (University of Texas, El Paso):

In his second deftly researched and compelling book, Nayan Shah shines light on stories long obscured. Through descriptive writing and sharp analysis, he tells a fascinating wider tale of migration, intimacy, and survival in the North American West. Focusing on South Asian male migrants and the myriad intimate ties they forged with others, the book draws on a rich body of legal material in the United States and Canada, as well as elsewhere. It critically analyzes state records, using them to show how migrants were both tied to and living outside the limits of the nation-state. Shah complicates the historiography on migration and sexuality by putting in conversation literature on interracial ties and same-sex relations, which have rarely converged in scholarly inquiries.

The full review is available here. (Hat tip: H-Law)

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

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

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

I ka ‘ōlelo nō ke ola

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

Ka palapala

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

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

http://nupepa.org/

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

Me ke aloha,

Noelani Arista

Cassel on Extraterritoriality and Imperial Power in 19th C China and Japan

Grounds of Judgment:  Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan  by Par Kristoffer Cassel has just been published by Oxford University Press. 

 Here's the book description:

Perhaps more than anywhere else in the world, the nineteenth century encounter between East Asia and the Western world has been narrated as a legal encounter. Commercial treaties--negotiated by diplomats and focused on trade--framed the relationships among Tokugawa-Meiji Japan, Qing China, Choson Korea, and Western countries including Britain, France, and the United States. These treaties created a new legal order, very different than the colonial relationships that the West forged with other parts of the globe, which developed in dialogue with local precedents, local understandings of power, and local institutions. They established the rules by which foreign sojourners worked in East Asia, granting them near complete immunity from local laws and jurisdiction. The laws of extraterritoriality looked similar on paper but had very different trajectories in different East Asian countries.

Par Cassel's first book explores extraterritoriality and the ways in which Western power operated in Japan and China from the 1820s to the 1920s. In Japan, the treaties established in the 1850s were abolished after drastic regime change a decade later and replaced by European-style reciprocal agreements by the turn of the century. In China, extraterritoriality stood for a hundred years, with treaties governing nearly one hundred treaty ports, extensive Christian missionary activity, foreign controlled railroads and mines, and other foreign interests, and of such complexity that even international lawyers couldn't easily interpret them. Extraterritoriality provided the springboard for foreign domination and has left Asia with a legacy of suspicion towards international law and organizations. The issue of unequal treaties has had a lasting effect on relations between East Asia and the West.

Drawing on primary sources in Chinese, Japanese, Manchu, and several European languages, Cassel has written the first book to deal with exterritoriality in Sino-Japanese relations before 1895 and the triangular relationship between China, Japan, and the West. Grounds of Judgment is a groundbreaking history of Asian engagement with the outside world and within the region, with broader applications to understanding international history, law, and politics.

And the endorsements:

"Minutely argued and cogently presented, Par Cassel's Grounds of Judgment gives us a completely new base line from which to examine the practice of extraterritoriality from both the Chinese and the Japanese legal perspectives. An absorbing and valuable book." --Jonathan Spence, author of The Search for Modern China


"This sophisticated analysis of the changing legal orders in nineteenth-century East Asia nicely explodes the old dichotomy between Western international law and Chinese and Japanese responses to it. Cassel shows that even the seemingly immovable obstacle of extraterritoriality was subject to flexible interpretations that derived from domestic legal practices, which affected not only Westerners but also Japanese and Chinese in the treaty ports of the two countries. An impressive contribution both to international legal history and to the history of modern East Asia." --Carol Gluck, Columbia University


"Relying on primary and secondary sources in a host of languages, Par Cassel's new book offers the most thoroughgoing comparative examination of treaty port law and jurisdiction for late imperial China and late-Tokugawa and Meiji Japan. Especially interesting in his analysis is the treatment of the highly controversial topic extraterritoriality-with fascinating insights and stunning conclusions. This is a must read for anyone interested in late-Qing China, Tokugawa-Meiji Japan, or comparative legal history." --Joshua A. Fogel, Canada Research Chair, York University


"This is an impressive and important book. Cassel has gone back to the basics underpinning the nineteenth-century 'unequal treaties' between the different Western powers and China and Japan, and equally importantly those signed between the latter. Rich in comparative insight, Grounds of Judgement draws on an exemplary range of sources and clearly and engagingly re-writes long-unquestioned narratives. With this book Cassel compels us to rethink our fundamental assumptions about this complex tangle of relationships, and about the East Asian experience of the age of empires and its lasting legacies." --Robert Bickers, author of The Scramble for China: Foreign Devils in the Qing Empire, 1832-1914

Legal Histories of the British Empire Conference

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Law, Spaces, Cultures & Empire: Engagements & Legacies is the name of the first Legal Histories of the British Empire Conference, sponsored by National University of Singapore Faculty of Law and the University of Victoria's Faculty of Law and Centre for Asia-Pacific Initiatives, which will be held 5-7 July, 2012 Singapore.  We have previously posted a call for papers.  The program is now closed; no more proposals will be accepted; but registration is now open on the conference website.  The program will be posted shortly.

The conference’s organizers explain:

In recent decades there has been an impressive growth of research and writing on the legal history of various former British colonies. These include settler colonies, such as those that became Australia, Canada, New Zealand and the United States, and multi-cultural territories such as those in the Caribbean, Southern and South East Asia and Africa. The result is a developing body of scholarship on a variety of legal historical topics, embodying cultural, institutional, substantive, procedural, theoretical and biographical themes, that provides a strong basis for comparative scholarship within the Empire, and so, imperial legal histories....

The Conference is designed with three purposes in mind:

1. As a vehicle for a wide ranging sample of current scholarship on imperial and colonial legal history - cultural, institutional, social, biographical, doctrinal, and theoretical. The Conference will bring together scholars at various stages in their careers who are working in the fields of imperial and comparative colonial legal history, to share the work that is already underway, and to encourage those with an incipient interest in these fields and others to join in scholarly endeavour and expand the field.
2. To produce a scholarly publication in the form of a book of essays developed from papers selected from amongst those delivered at the conference. The book will be published through a major university press, and will represent an original and innovative contribution to scholarship.
3. To create a permanent network of scholars in the field of imperial and comparative colonial legal history that will ensure a lasting interest in this field, provide the basis for further collaboration in the future and constitute a platform for links with scholars examining the legal dimensions of imperial and colonial rule by states other than Great Britain. This will be the enduring legacy of the Conference.

I'm told that the keynote speaker is Professor Catherine Hall of University College London and the plenary speaker is the Honorable Justice Andrew Phang of the Singapore Court of Appeal.  A "Blue Ribbon Panel" consists of Professor Martin Wiener (Rice University), Professor John Weaver (McMaster University) and Professor Bridget Brereton (University of the West Indies).

Röder on Transnational Insurance Law and the San Francisco Earthquake

Tilmann J. Röder, a Senior Research Fellow and Project Manager at the Max Planck Institute for Comparative Public Law and International Law, has published From Industrial to Legal Standardization, 1871-1914: Transnational Insurance Law and the Great San Francisco Earthquake with Brill.  Here is the publisher’s description:

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At the end of the 19th century, internationalisation and standardisation fundamentally changed business law. More and more industries such as insurance, transport, wholesale and finance used standard contracts and clauses for international transactions. An impressive example of this development was the reaction of the insurance industry to the earthquake and inflagration of San Francisco in 1906. At once, a global discourse on the economic, technical and legal consequences arose; in the meantime, a small group of powerful reinsurance managers developed a strict exclusionary clause intended for worldwide application. Fire insurers in many countries adopted this "earthquake clause", while others refused it. Germany, California and Italy - where the earthquake of Messina in 1908 led to a legal turn - are paradigmatic examples of these reactions. Beyond this case study, the author discusses the novel phenomenon of international standard contracts and clauses from a theoretical perspective.