Hathaway et al. on War Manifestos

Oona A. Hathaway, William Holste, Scott J. Shapiro, Jacqueline Van De Velde, and Lisa Lachowicz have posted War Manifestos, which is forthcoming in volume 85 of the University of Chicago Law Review (2018):

This Article is the first to examine “war manifestos,” documents that set out the legal reasons sovereigns provided for going to war from the late-fifteenth through the mid-twentieth centuries. We have assembled the world’s largest collection of war manifestos — over 350 — in languages as diverse as Classical Chinese, German, French, Latin, Serbo-Croatian and Dutch. Prior Anglophone scholarship has almost entirely missed war manifestos. This gap in the literature has produced a correspondingly large gap in our understanding of the role of war during the period in which manifestos were commonly used. Examining these previously ignored manifestos reveals that states exercised the right to wage war in ways that would be inconceivable today. In short, the right to intervene militarily could be asserted in any situation where a legal right had been violated and all peaceful channels had been explored and exhausted. The Article begins by describing war manifestos. It then explores their history and evolution over the course of five centuries, explains the purposes they served for sovereigns, shows the many “just causes” they cited for war, and, finally, considers the lessons they hold for modern legal dilemmas. The discovery of war manifestos as a set of legal documents offers lawyers and legal scholars something rare: a new window into the international legal universe of the past. That is not only valuable in itself, but it also casts entirely new light on several long-standing legal debates.

The Supreme Court and World War I

The Supreme Court Historical Society has announced its Leon Silverman Lecture Series for 2018, The Supreme Court and World War I: In Observation of the Centennial of World War I.  The four addresses are:

October 10, 2018 - World War I and the Court in Context, presented by Melvin Urofsky

October 17, 2018 - Charles Evans Hughes and the Constitutional War, presented by Matthew Waxman

October 23, 2018 - Selective Draft Law Cases, presented by Christopher Capozzola

December 6, 2018 - Free Speech Cases of World War I, presented by Laura Weinrib

Molinaro on the Emergency State in Canada

Dennis G. Molinaro, Trent University published An Exceptional Law: Section 98 and the Emergency State, 1919-1936 with the University of Toronto Press in 2017. From the publisher: 

During periods of intense conflict, either at home or abroad, governments enact emergency powers in order to exercise greater control over the society that they govern. The expectation though is that once the conflict is over, these emergency powers will be lifted. 

An Exceptional Law showcases how the emergency law used to repress labour activism during the First World War became normalized with the creation of Section 98 of the Criminal Code, following the Winnipeg General Strike. Dennis G. Molinaro argues that the institutionalization of emergency law became intricately tied to constructing a national identity. Following a mass deportation campaign in the 1930s, Section 98 was repealed in 1936 and contributed to the formation of Canada’s first civil rights movement. Portions of it were used during the October Crisis and recently in the Anti-Terrorism Act of 2015. Building on the theoretical framework of Agamben, Molinaro advances our understanding of security as ideology and reveals the intricate and codependent relationship between state-formation, the construction of liberal society, and exclusionary practices.

Praise for the book:

 "An Exceptional Law: Section 98 & The Emergency State 1919-1936 is a very readable, incredibly well-researched study of Canada’s wartime-derived, but peacetime-continued sedition laws of early 20th century. But the book is of much more than historical interest. As they said in Battlestar Galactica: All this has happened before and will happen again. My copy is marked-up where I noted parallels to current immigration and anti-terror laws. … I highly recommend this book." -Craig Forcese

"A meticulously researched and well-written historical piece…. For those interested in political rights and the extent the public allows governments to determine what is and is not acceptable in the political sphere, An Exceptional Law is an excellent read." -Michael Marschal

"This superb examination of Canada’s storm-tossed years between the wars proposes a fresh interpretation of the harshly repressive and sometimes lethal legislation designed to discipline immigrants, punish radicals, and shape public opinion. Twenty-first-century readers will encounter in its pages a haunting premonition of the insecurity state that, ever since 9/11, has made dissent difficult – yet all the more necessary. This book is an indispensable addition to our understanding of freedom and repression in twentieth-century Canada." -Ian McKay

"An Exceptional Law is an important addition to the scholarly literature on several subfields of Canadian history. Dennis G. Molinaro’s scholarship is excellent." -Jim Mochoruk

Further information is available here.

Weekend Roundup Addendum

A few items came to our notice too late for our Saturday Weekend Roundup, so here is an addendum.

• In The Globe and Mail, James Phillips, University of Toronto, observes that historians are wish to have discussions among the justices of Canada’s Supreme Court closed for some time to ensure that the justices don’t self censor, but fifty years?

• Michelle Johnson, Wisconsin Public Radio, in WisContext on How 5 Wisconsin Supreme Court Cases Forged The State’s Legal Order.  Feel free to send us your “Top Fives” for other State Supreme Courts!

• Time Magazine asked seven historians for suggestions of people for President Trump to pardon. We agree with the NFL players that taking up the president's suggestion risks obscuring the need for a systemic response to mass incarceration, but if you’d care to see the historians’ choices, they’re here.  H/t: Mary Bilder.

• Friend of the Blog Patrick S. O’Donnell has a new bibliography, on the ethics, law, and politics of immigration and refugees.

• Amy Westbrook, Washburn University School of Law, and David A. Westbrook, SUNY Buffalo Law School, have posted Snapchat's Gift, a paper on a recent offering of non-voting common shares by Snap, the company that owns Snapchat.  They refer to some of the usual suspects in the history of corporate law (Berle & Means; Dodge v. Ford) but more extensively to a less familiar source, Marcel Mauss’s 1925 essay, “The Gift: The Form and Reason for Exchange in Archaic Societies.”

• Over at the Faculty Lounge, Eric Muller comments on Steve Vladeck’s tweeted alert that the "Defense Department submitted a brief to a military commission favorably citing and extensively quoting Hirabayashi v. United States, 320 U.S. 81 (1943)."  Professor Muller calls this "a fateful moment," in which a lamentable precedent threatens to escape the "anti-canon."  DOD quoted Hirabayashi for the proposition that “The war power of the national government is ‘the power to wage war successfully.’”  That internal quotation is to an essay by Charles Evans Hughes, in which the once and future member of the US Supreme Court insisted that the United States could fight a total war while remaining  under the Constitution.  (Matthew Waxman, Columbia Law School, has written the indispensable article on the essay.)  So far as I can tell from the reproduced portion of the DOD brief, it argued for unreviewable discretion in military officials in wartime, which was nearly the opposite of Hughes's position.
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• "When Rosa Parks refused to give her seat on a Montgomery bus to a white man in 1955, she was put in handcuffs and arrested. But what happened next? The answer to that question just became more clear thanks to a new discovery: disintegrating court records that detail the legal response to Parks’ arrest.”  More, from The History Channel.

• "The regulatory body for Ontario’s lawyers and paralegals has released a guide to help legal professionals better understand the legal rights, history and culture of Indigenous people."  More, from the National Post.

• We’ve learned from James H. Broussard, Department of History at Lebanon Valley College, that the Lebanon Valley College Center for Political History is inviting submissions for the Sally and Morris Lasky Prize, awarded to the best book on American political history published in calendar 2017.  Submissions should be addressed to Professor Broussard at the history Department, Lebanon Valley College,  101 N. College Ave., Annville PA 17003. Deadline is June 15. 

• Incidentally, the Lebanon Valley College Center for Political History’s Second Annual Conference on American Political History will take place at the College in Annville, PA, June 8-9, 2018.

• The program of the annual meeting of the American Political Science Association is now available online.

• ICYMI: Georgetown Law's Neal Katyal and Randy Barnett on Regents of the University of California v. Bakke on C-SPAN.  Amanda Tyler, Berkeley Law, discusses her Habeas Corpus in Wartime on the Lawfare Podcast  Dovey Roundtree's obituaries in the NYT and Charlotte Observer.

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

LHR 36:2

Law and History Review 36:2 is out.  After a preface by editor Gautham Rao and with book reviews by Paul J. du Plessis, Taisu Zhang, Malick W. Ghachem, Chandra Murdoch, and Asa McKercher, the issue consists of the following:

Heart of Ice: Indigenous Defendants and Colonial Law in the Canadian North-West, by Catherine L. Evans

Peripheral Vision: Polish-Jewish Lawyers and Early Israeli Law, by Assaf Likhovski

The Prosecution of Rape in Wartime: Evidence from the Mau Mau Rebellion, Kenya 1952–60, by David M. Anderson and Julianne Weis

Revocation of Citizenship and Rule of Law: How Judicial Review Defeated Britain's First Denaturalization Regime, by Patrick Weil and Nicholas Handler

Colonial Charters: Possessory or Regulatory? by James Muldoon

The Law of Negligence as Reported in in The Times, 1785–1820, by James Oldham

Review Essay: Taming the Past: Essays on Law in History and History in Law, by David M. Rabban

CFP: "Law and War"

[We have the following call for papers for a special edition of the journal Legal History on “Law and War."]

While the political, social and economic impact and consequences of World War I, World War II and subsequent conflicts have been well-documented, many questions remain regarding the legal structures and restrictions introduced during those hostilities. This is despite the fact that engagement by belligerent countries in such conflicts often required formal declarations be made according to law in order to be valid. Extensive, unique legal structures were also needed to facilitate the war effort on the home front and beyond. At the end of World War I many countries maintained their wartime restrictions in the post-war period; in some jurisdictions those controls remain in force to this day. One of the world’s most famous legal documents, the Treaty of Versailles, contributed to the eventual outbreak of World War II. In more recent times, engagement in conflicts has occurred without formal proclamation, further complicating the role and rule of law.

With a view to further investigating and interrogating the legal histories of war, scholars are invited by guest editor Dr Catherine Bond, to submit contributions to a forthcoming special edition of Legal History focusing on "Law and War."

Articles should be between 6000-8000 words and contributions may address any area that intersects with law, war and history. Contributions may also focus on any jurisdiction and submissions by international and comparative scholars are welcomed. While the timing of this special edition coincides with the end of centenary commemorations of World War I and will be published during the centenary of the negotiations for the Treaty of Versailles, articles may explore any prior conflict.

The deadline for the call for papers is 31 October 2018, with a view to publication in mid-2019. All submissions will be subject to peer review.  All submissions should subscribe to the Australian Guide to Legal Citation.  Papers must include an abstract of approximately 200 words and a short author biography.

Enquiries should be directed to Dr Catherine Bond at catherine.bond@unsw.edu.au

Pashman's "Building a Revolutionary State"

Howard Pashman has published Building a Revolutionary State: The Legal Transformation of New York, 1776-1783, in the Ameruican Beginnings, 1500-1900, series at the University of Chicago Press:

How does a popular uprising transform itself from the disorder of revolution into a legal system that carries out the daily administration required to govern? Americans faced this question during the Revolution as colonial legal structures collapsed under the period’s disorder. Yet by the end of the war, Americans managed to rebuild their courts and legislatures, imbuing such institutions with an authority that was widely respected. This remarkable transformation came about in unexpected ways. Howard Pashman here studies the surprising role played by property redistribution—seizing it from Loyalists and transferring it to supporters of independence—in the reconstruction of legal order during the Revolutionary War.

Building a Revolutionary State looks closely at one state, New York, to understand the broader question of how legal structures emerged from an insurgency.  By examining law as New Yorkers experienced it in daily life during the war, Pashman reconstructs a world of revolutionary law that prevailed during America’s transition to independence. In doing so, Pashman explores a central paradox of the revolutionary era:  aggressive enforcement of partisan property rules actually had stabilizing effects that allowed insurgents to build legal institutions that enjoyed popular support.  Tracing the transformation from revolutionary disorder to legal order, Building a New Revolutionary State gives us a radically fresh way to understand the emergence of new states.

Some endorsements:

“Building a Revolutionary State is a masterful socio-legal history of how New Yorkers transformed the instability and turmoil of the American Revolution into a new, stable legal order. Moving beyond republican ideology and constitutional politics, Pashman uncovers the felt realities of how New York insurgents paradoxically used property redistribution to create popular support for a new source of legal authority. This book will be required reading for anyone interested in the history of American law and state formation.”  Ajay K. Mehrotra, Northwestern University

“Pashman has given us the first study of how legal order emerged from disorder during the American Revolution. He shows New Yorkers creating local committees to deal with the Loyalists among them and argues convincingly that the legitimacy of the legal institutions that later emerged rested on vigorously expropriating Loyalist property. A powerful statement that the new nation was built, at least in part, on retribution and redistribution.”  Bruce H. Mann, Harvard University

Davies on (Mycroft) Holmes and WW1

Ross E. Davies, George Mason University Antonin Scalia Law School, has posted August 1914 - Mycroft Holmes and Pre-War European Diplomacy, which appears in Trenches: The War Service of Sherlock Holmes, ed. Robert Katz & Andrew Solberg (2018):

What caused World War I? And how was it that the diplomats and their masters failed to avert such an obviously disastrous bloodbath? (Sherlock Holmes once referred to war as a “ridiculous” and “preposterous” “method of settling international questions.”) Scholars cannot agree. Indeed, even among elite European historians (a crowd that specializes in studying the evolution of a complex of complex cultures), the tangled threads that led to the Great War are viewed as an extraordinarily terrible mare’s nest. Nevertheless, there is enough common ground on some main themes to make for a fairly coherent conventional narrative of pre-war European diplomacy. It begins in October 1879 — when Austria-Hungary and Germany formed the Dual Alliance. It ends in August 1914 — when diplomacy failed and the Central Powers (Austria-Hungary and Germany) and the Entente Powers (France, Russia and Great Britain) declared war on each other. That passage of 35 years also marks, roughly, the span of Mycroft Holmes’s career in the British government. His involvement in the maneuverings of the great powers in those times may be invisible to most modern eyes (as it was to his contemporaries), but there are clues. They will crop up from time to time in this narrative, which reviews, briefly and in sequence, the perspectives of each of the five major players in the onset of World War I — Austria-Hungary, Germany, France, Russia and Great Britain — with some emphasis on Austria-Hungary, because that is where the war to end all wars began.

Koposov on memory, history, and law

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

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

Here is the Table of Contents:

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

Further information is available here.

Weekend Roundup

• Over at JOTWELL's Property section, Shelley Ross Saxer (Pepperdine Law) has posted an admiring review of University of Virginia legal historian Maureen Brady's forthcoming article on "Damagings Clauses."

• Also in JOTWELL, from the Intellectual Property section, Mark McKenna (University of Notre Dame) praises "The Article of Manufacture in 1877," by Sarah Burstein (University of Oklahoma).  The article appeared in Volume 32 of the Berkeley Technology Law Journal (2017).

• Martha S. Jones, Johns Hopkins University, will deliver the keynote speaker at the Spring 2018 Commencement Ceremonies at the University of Michigan-Flint. 

• “So you want to synthesize filmmaking with legal history? Davidson has a course for that": John Wertheimer’s "Filming Southern Legal History" seminar.  More.

• Starting on April 16, Laney College in Oakland, CA, will host Herstory: The Legal History of Chinese American Women.  Drawn from the personal collection of Dr. Chiu Chang, the exhibit “features rare photographs and case descriptions of efforts by Chinese-American women to gain legal standing in the U.S.”

• ICYMI, last week the California Law Review hosted a symposium on Amanda Tyler's Habeas Corpus in Wartime (Oxford University Press).  

• Timothy Snyder's revelatory essay on Ivan Ilyin and his influence on Putin's Russia.  Chilling reading, after reports of Stephen Bannon's advice to the White House on executive privilege.

• From Krista Kesselring at the Legal History Miscellany blog: "Star Chamber Stories: Using Criminal Law to Criminal Ends in Early Modern London."

•  Our friends at the Max Plank Institute for European Legal History have announced Legal Journals of the 19th Century (Juristische Zeitschriften des 19. Jahrhunderts).  It provides “online access to a vast collection of legal journals . . .   Seventy-five journals were selected, compiled in uninterrupted series, supplemented with structural and meta-data, and published.”  More.

• At the Indian Constitutional Law and Philosophy blog: a recent online roundtable discussion of Ornit Shani's book, How India Became Democratic (announced on the blog here), featuring essays by Suhrith Parthasarathy, Anupama Roy, and blog host Gautam Bhatia, along with a response from the author.

• Today is the early registration deadline for the 2018 Policy History Conference. 

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Nevitt on the US's Two Militaries

Mark Nevitt, Sharswood Fellow, Lecturer-in-Law, University of Pennsylvania Law School, has posted The Operational and Administrative Militaries, which is forthcoming in the Georgia Law Review:

This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the focus of the executive branch, led by uniformed combatant commanders responsible for planning and fighting the nation’s wars as well as an expanding menu of foreign-relations functions. In contrast, Congress primarily focuses on the administrative military, which is largely led by civilian Secretaries of military departments responsible for staffing, training, and equipping the nation’s Armed Forces. The operational military fights, while the administrative military trains and equips.

Understanding how these two militaries arose from their early constitutional origins, evolved after the Second World War, and function in the modern administrative state is essential to a complete understanding of national security governance and its corresponding effects on civilian control of the military. In this Article, I first describe and propose this new two- military framework that has its origins in the Constitution, was further refined in statute, and solidified in military doctrine and agency practice. Second, I address the two-military divide’s consequences – many unintended – showcasing how the Goldwater-Nichols Act in particular incentivizes congressional attention over administrative military matters at the expense of operational military oversight. Finally, I conclude with initial recommendations to “combat” this two-military divide and corresponding executive drift, presenting an integrated national security governance vision that draws upon expertise from other federal agencies.

Real Talk: Challenges and Benefits of Writing a Book as a Postdoc

In my past couple of posts, I’ve written about figuring out the structure of a book and sculpting lively prose, but I’m often asked a more basic question: how did I finish Enlisting Faith? Part of the answer is that two consecutive 2-year postdocs made it possible. Postdocs are becoming more common for historians, and they can be beneficial and challenging to the dissertation-to-book process.

A caveat: postdocs vary tremendously, so some of the benefits and challenges vary as well. Nevertheless, I learned a lot from hearing about the experiences of colleagues, and I offer my reflections in that spirit.

One of the biggest benefits of a postdoc is time. Here, I’m referring to a postdoc that is actually a postdoc, with ample time for research and light teaching responsibilities (rather than a visiting lecturer position in disguise). When I defended my dissertation in May 2014, one of my committee members made me promise to take a real vacation (which I did) and others instructed me to set aside the dissertation for months before tackling it (which I also did). 

After arriving in St. Louis to start my first postdoc, I spent much of the fall catching up on secondary literature, letting my mind wander, talking to new colleagues, and thinking about book structure. I did very little actual writing in this period, which was necessary to return to my manuscript with fresh eyes. I then spent most of 2015 fully focused on revising, which is what propelled me most quickly toward a full manuscript ready to send out to readers (in December 2015). Likewise, after receiving reader reports (April 2016), I was able to spend most of the spring/summer/fall (minus moving to Philadelphia for my second postdoc, more on that below) revising and submitted the manuscript for copy-editing in December 2016.

Publishing books can come with financial costs. Some of the things that an author may pay for include images, research assistance, manuscript workshops, editing, indexing, and book promotion. Depending on the nature of the postdoc, there may be some research or subvention funds that can help with these costs, but not always. I've had decent research/conference funds in both postdocs, but not enough to cover all the book costs in addition to conference travel. Neither of my postdoc institutions had subvention funds available for postdocs and my work didn't fit the few competitive subvention fund opportunities I found, so I self-funded a few things.

Enlisting Faith has a 25-image photo essay, which was possible in part because almost all the images I used were taken by Signal Corps, Farm Security Administration, or other government photographers, which means they are in the public domain and free to reproduce. It does not mean that high-resolution versions are easily available, however. I was very lucky that the Naval History and Heritage Command posted a treasure trove of images online, including high-resolution versions, in the spring of 2016, which greatly enabled easy access to high-quality images. I paid for the Library of Congress to re-scan a couple images at high resolution, and contacted a number of museums and other repositories for others. (Pro-tip: if no one responds to an email, pick up the phone.) In the end, I only paid a couple hundred dollars total for images, but costs can run much higher, so it's worth thinking about this upfront.

I recall reading Karen Tani's really helpful post on her book manuscript workshop and brainstorming how to approximate it. I didn't have access to funds to bring people in to read my manuscript, so I got creative. After I received reader reports from the press and began revising, I gathered a handful of colleagues and friends to read my manuscript and discuss it after a conference we were all attending. I provided lunch and they provided excellent feedback. It wasn't the same as hosting senior scholars and editors, but it enabled me to get comments at a crucial juncture. If you're not in a position to host a formal manuscript workshop, an existing conference and willing colleagues can be an effective alternative.

There's only so much one can reasonably ask of generous colleagues, however, so there comes a time when you may want or need to pay someone to help with other publishing-related tasks, such as reviewing a copy-edited manuscript or indexing. There are dueling schools of thought about the value of doing an index yourself or outsourcing it, but it often comes down to a time/money decision: do you have the time to do it or the money to pay someone to do it? The only right answer is whichever one works for you, but again, it can be helpful to anticipate this scenario and plan accordingly, either by bracketing time or setting aside money.

The uncertainty of the postdoc years also presents challenges and opportunities. Because a postdoc is, by definition, term-limited, part of the time will be devoted to figuring out what comes next, and how the book may (or may not) play into that future. This process takes away from research and writing time and can be emotionally draining, so it's important to calibrate expectations. Even in the best-case scenario of a multi-year postdoc, a good chunk of time will not be available for the book. Similarly, the actual process of moving (preparing to move, securing housing, packing/moving, and settling into a new place) is time-intensive. It's perhaps an obvious point, but I always underestimate how physically and emotionally taxing it is to move and how much time is lost in that period, best intentions notwithstanding.

Because postdocs often mean moving, they also mean you may be writing without the benefit of a robust community of support. Each of my postdocs has been in wonderful departments filled with great colleagues, but that's not the same as having longstanding friends around to pitch in with life and give you breaks when the push to finish takes over. (That said, there were extraordinary people, like Sally Gordon, who invited me over for meals as I approached the finish line of the initial full manuscript and the final manuscript. I'll do my best to pay this back in the future!)

These are the downsides of writing during temporary, uncertain periods. But there is also a big upside: freedom. I wrote the book I wanted to write. I responded to reader reports and my editor, of course, but I was writing to achieve my intellectual and narrative goals rather than trying to satisfy a department or tenure committee. For me, it was liberating to envision a book on my terms and pursue that vision. I had something to say about the relationship between religion and the state in modern America--it's vigorous, dynamic, and powerful, albeit sometimes in unusual places and in unexpected ways--and I wrote Enlisting Faith to demonstrate it.

Bureaucracy Isn't Boring: Notes on Sculpting Prose

Enlisting Faith is a book about the military chaplaincy, which also means it’s a book about bureaucracy. Analytically, it follows Sophia Lee’s lead in finding legal history outside the courts and, in particular, “focus[ing] on an omnipresent constitutional force in the modern American state: administrative agencies.” But, it turns out, telling people you’re writing about “administrative agencies” or “government bureaucracy” can elicit looks of horror—a reaction, I tend to think, that this research might be the narrative equivalent of standing in line at the DMV.

That would not do.

I wanted to write a book that spoke to historians while being accessible to the very people I was writing about: chaplains. As a result, after I figured out the structure of Enlisting Faith, I spent a lot of time sculpting prose. I use sculpting deliberately, because I think the work of revision is often akin to that of shaping and reshaping clay to find the right form. Each round of revisions meant cutting words to tighten chapters, breaking apart and rebuilding sentences, reconsidering word choices, and rethinking pacing through lines, paragraphs, and sections.

The winnowing process forced me to think about what was truly necessary to substantiate the argument I wanted to develop and what got in the way of the story I wanted to tell. I spent one summer methodically working through chapters with the primary purpose of trimming, and then one reader report suggested I prune some more. Which I did: reluctantly at first and then more gleefully toward the end. I made myself a sign, “is this really necessary?” and trucked on.

We often talk about being in conversation with other scholars, but when it comes to crafting prose, it’s helpful to find models. Using models effectively requires reading like a writer—setting aside the content and argument in order to dissect how an author put together a sentence, a paragraph, a scene, a chapter. In this context, content is irrelevant. Any writing on any topic can elicit reactions, good or bad. Do I want to keep reading or stop reading? Am I enthralled, jarred, or bored? Why? Describing complex phenomena in simple language, evoking a sense of place, using rhythm to create energy, deploying explanations at just the right moment are techniques available to everyone, as long as we're paying attention. When I read, I'm often thinking about what I can emulate. In fact, giving myself writing exercises that borrow other authors' methods, structures, and language has helped me get out of writing ruts, even if the resulting document stays stashed on my hard drive. 

To think about chapter openings and closings, for example, I turned to Michael Willrich’s Pox: An American History. I had long admired how Willrich used opening scenes to draw readers toward his argument and ended with transitions that connected back to the opening and gestured toward the next chapter. I read, reverse-outlined, and reread the beginnings and ends of Willrich’s chapters to turn them into models or templates for my own.

The opening to chapter 3, for example, is a scene from a weekly meeting in the Office of the Army Chief of Chaplains that I built out of meeting minutes. My goal was to give readers a sense of decision-making because one argument of the book is that chaplains exemplify diffuse state power. The key was to figure out how to narrate a story that wasn’t boring, since the primary source is not exactly an exemplar of scintillating reading. The opening sentence of the chapter, “There was a lot to discuss in early November 1943,” therefore plants readers in the midst of bureaucrats at work. Hopefully the reader is wondering, “What were they discussing? Why? Did it matter?”

As I worked on creating scenes to open each chapter, I also turned to a number of books on writing. In particular, I read a lot of guides for journalists and narrative non-fiction writers. One of my favorites, Telling True Stories, is a compilation of mini-essays that delve into the craft of writing. From generating ideas and shaping characters to building narrative momentum and polishing description, authors discuss what worked and what didn’t, routes rejected and routes followed. The chapters are short, so I often read a couple before bed at night, jotting down ideas to adopt or adapt. Moreover, they reminded me that "good prose" is always a matter of "good for what? good for whom? good for what end?" As I reworked my manuscript, I often referred to these chapters when I was stuck or I though a scene or a section could be more precise or engaging.

Similarly, Jack Hart’s Storycraft: The Complete Guide to Writing Narrative Nonfiction, provides an editor’s view of helping writers find their voice, develop style, alter point of view, vary sentence structure, and hone their point. While he writes based on his experience in the newsroom, most of his advice applies to historical narrative as well. Listening to an editor think aloud also gave me a way to process the comments I received from my editor, from reader reports, and from generous colleagues who read all or parts of my manuscript.

Feedback is essential to the revision process, but making it as effective as possible requires a team of readers with different strengths. I have a cadre of mentors, peers, and friends who play different roles as trusted reader-editors. Some are better at refining large-scale arguments, while others are line editors who tweak at the sentence or phrase-level. Some remind me about the value of topic sentences, while others get emails from me with subject headings such as “Please fix this sentence. Thank you.” Some are cheerleaders, others are persnickety critics. Some identify where a chapter stops working while others can parse why an explanation remains illegible. A book needs all kinds. It sounds obvious as I write it, but the key is to know who can provide what kind of feedback and then ask the right person for the feedback you need. 

In my next post, I’ll talk about how working through book revisions as a postdoc came with challenges and benefits.

Farber on Lincoln, Presidential Power and the Rule of Law

Daniel A. Farber, University of California, Berkeley School of Law, has posted Lincoln, Presidential Power, and the Rule of Law:

Lincoln at Antietam (LC)

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This lecture examines how Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln and of the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can provide support for legal norms, lest we place all of our trust in Presidential self-restraint and good judgment.

Three from Witt: on Emergency Constitutionalism, Adjudication, and Humanitarianism

John Fabian Witt (Yale Law School) has posted three new pieces on SSRN.

"A Lost Theory of American Emergency Constitutionalism" is forthcoming in Volume 36, no. 3, of the Law & History Review (August 2018):

In the wake of the Civil War, Columbia Law School professor Francis Lieber, architect of some of the Lincoln administration's most important legal strategies, set out to write a definitive text on martial law and the emergency power. Lieber’s text would have summed up his view of the legal lessons of the Civil War. Lieber died in 1872, leaving an unfinished manuscript to his son, Guido Norman Lieber, soon to become the Judge Advocate General of the Union Army. Norman Lieber worked on the manuscript but never finished it. Hidden deep in the younger Lieber’s papers in the National Archives, the manuscript summarizes a strand of thinking about constitutional emergencies that first emerged in the controversies over slavery, then animated Emancipation and the broader legal strategy of the Lincoln White House, before running headlong into the post-war backlash signaled by the Supreme Court’s 1866 decision in Ex Parte Milligan. Building on debates over martial law in Anglo-American empire, the Liebers’ thinking embraced a forceful but constrained approach that made a cabined form of necessity the central principle of emergency governance in the modern state.

We've mentioned previously Professor Witt's delivery of the Hands Lecture, on "Adjudication in the Age of Disagreement." Here's the full text, as published in Volume 86 of the Fordham Law Review (2017). 

The final piece is "Two Humanitarianisms in Ambrose Bierce's 'An Occurrence at Owl Creek Bridge.'" Here's the abstract:

The oft-anthologized short story “An Occurrence at Owl Creek Bridge” by Union Army veteran Ambrose Bierce — long a staple of high school curricula and the subject of music videos, television, and film — is not typically thought of as a study in the dilemmas of humanitarian law. But it is. It depicts an execution for violation of the laws of war. Even better, the text embodies a central tension in the laws of war, one that emerged in Bierce’s time and persists today. On the one hand stands a sentimental humanitarianism that aims to minimize the human suffering of war; Henri Dunant’s book, A Memory of Solferino popularized this stance and helped establish the International Committee of the Red Cross in 1863. On the other hand, a righteous humanitarianism chafes at the constraints that sentimental humanitarianism places on the pursuit of justice. Romantic nationalists like the Prussian-American political thinker Francis Lieber, whose code of rules for the Union Army was published a year after Dunant’s book, embrace the righteous justice of particular causes. Bierce’s “Owl Creek” straddles the two planks of the modern laws of war, conveying the power of both views.

Low-Tech Tools for Structuring a Book

One of the big questions any author faces is how to structure a book. The options are, at least in theory, endless. And this can be a good thing: imagining a variety of fanciful options is one way to get out of a rut. In my case, however, the range of options was a little more confined. Since I was writing about the military chaplaincy over almost a century, I knew Enlisting Faith needed to move chronologically to make sense.

But deciding on a chronological narrative clarified only the broadest possible contours of the structure. I knew the book would begin in 1917, with the American entrance into World War I, because the creation of the draft and concomitant mass mobilization of American men into the armed forces created pressure to rethink the chaplaincy. More specifically, it set off decades of conflict and negotiation—within and between military officials, religious leaders, and concerned citizens—about the religious composition of the chaplaincy.

However, I had no idea how many chapters the narrative would need, where all the chapter breaks would be, or at what point the book would end. (These are, of course, inter-related questions.)

I didn’t have many answers, but I had a lot of ideas, thanks to a very productive dissertation defense that focused less on the dissertation as a product and more on its potential as a book. As a result, I stepped forward into the book process with a lot of suggestions to consider and questions to contemplate (aided by extraordinary notes graciously taken by legal historian Elizabeth Papp Kamali).

Because I had a 2-year postdoc at the Danforth Center on Religion and Politics at Washington University in St. Louis with very light teaching responsibilities, I had a lot of time to puzzle my way forward. I use “puzzle” deliberately because I spent much of my time between my May 2014 dissertation defense and May 2015 book proposal experimenting with different plans for structuring the book.

Throughout this process, I used a number of very low-tech tools.

First: conversations with colleagues and mentors. As I debated the appropriate endpoint, agonizing over what date or event made the most sense and wondering whether it was even possible to access sources close to the present, I spent a lot of time talking. Access to scholars who hadn't been part of my dissertation process offered fresh perspectives that challenged me--in good, productive ways. Many of these discussions were verbal thought experiments: what if I end in 1975 or 1988 or 2001? Is the book complete without Katcoff v. Marsh, Goldman v. Weinberger, or the War on Terror? The back-and-forth between my argument and my periodization helped clarify both.

Second: a whiteboard. When I arrived in St. Louis, I asked for a white board to hang in my office. For several months, I started each week by writing a new possible chapter outline on the board and contemplating it all week. Should I keep the 6 chapters of the dissertation? Expand to 9 to create three sections of three chapters each? Did I even want separate sections? This, too, was an experimental and iterative process. The first two chapters stayed stable. The middle chapters kept changing. The final chapters changed even more. If the outline seemed viable, I’d take a picture before erasing it. If I hated it, I just erased it and moved on. This created a low-stakes way to test out structure without substantially altering any prose.

By the end, I had a chapter outline that I felt worked on multiple levels:



(1) The different colors demonstrated pairs of chapters that sit within important temporal boundaries (World War I/interwar years; World War II; Korea and the Cold War; Vietnam and its aftermath). 

(2) The indentations marked a different set of pairs: chapters that mirrored one another in some fashion. The titles of chapter 1 and chapter 8 show this most explicitly. Chapter 1, “Mobilizing Faith,” focuses on how the chaplaincy begins to change as a result of the military using religion to pursue martial goals. Chapter 8, “Fighting with Fight,” highlights the legal, political, and religious conflicts that ensued—What are the boundaries of state management of religion? What religions are included and excluded? How do American politics of race and gender intersect in the chaplaincy? Thinking about mirrored processes helped me decide on the appropriate endpoint: the appointment of the first Muslim chaplain in 1994.

(3) The roman numerals indicated three major periods in which war prompted the chaplaincy to forge a new sensibility about American religion that percolated through civilian society. In turn, soldiers and civilians reacted, often claiming or seeking new rights and transforming religion and state anew.

These overlapping and braided structures organized Enlisting Faith, but only the last is explicitly mentioned in the book. This was intentional. As a historian, I needed to build the structures that undergirded and stabilized my argument. I therefore crafted numerous charts, tables, and diagrams to use as blueprints I could reference as I worked on the book. But as a writer, I didn't want exposed beams or visible cables to distract my reader, so I layered the narrative onto this foundation.
 

Third: sticky notes. As I worked on the book structure, I also started playing with the structure of individual chapters. Some were easier than others, but when I got stuck I borrowed a technique from the world of design-thinking: use post-its to map and remap the flow of ideas. Unfortunately I don’t have a picture, but at one point, I mapped chapter 5 on a wall of my office using different colors for different topics and post-its for sub-topics to work out an order that flowed effectively. Here too, the goal was to try out and rearrange ideas without needing to constantly shuffle paragraphs. Once I settled on an order that flowed, I went back to my prose.

I know there are tools like Scrivener that allow some of this experimentation on the screen. As a visual and tactile thinker, however, I found a whiteboard and markers, post-its and pens, to be quite effective.

To put some of the dissertation-to-book changes in numbers, I offer the following comparison. My dissertation was 125,000 words (excluding notes) spread over 6 chapters. Enlisting Faith is 100,000 words (excluding notes) relayed in 8 chapters. As you can see, the book is shorter than the dissertation and includes more chapters. In my next post, I’ll talk about writing, revising, and sculpting prose.

Chaplains: A "Single, Obvious Example"?

Thank you to Karen and the Legal History Blog team for giving me an opportunity to blog this month. I’ve learned a lot from reading the LHB, especially from posts about the path to first books, so I’m excited to share a bit about my book experience.

I wrote Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America (Harvard, 2017) over the course of two postdocs. These positions provided a lot of protected research and writing time, which in turn enabled me to publish a book relatively quickly. But publishing as a postdoc is not without its difficulties. As a result, I’ll devote some of my posts to the benefits and challenges of writing a book as a postdoc—if you have any particular questions about navigating postdoc publishing, please ask in the comments!

Before I address these structural conditions of writing, let me offer a brief introduction to the book and to the chaplaincy. In his dissent in Abington v. Schempp, Justice Potter Stewart noted that the military chaplaincy represented a “single, obvious example” of religion-state interaction. It is a rich and varied example that offers a lot of material to think with and through. However, as I learned while working on this project, it might not be as "obvious" as Stewart assumed. When I talked about my research, for both the dissertation and the book, a fairly common reaction was “huh, the military chaplaincy. I’ve never really thought about that.” Making the chaplaincy approachable to those unfamiliar with it (or whose reference point might be only Chaplain Mulcahy in M*A*S*H) became one of my tasks. Chaplains are clergy in uniform: recruited, commissioned, employed, and overseen by the federal government to provide religious support and facilitate religious life in the armed forces.

Enlisting Faith tells the history of the twentieth-century military chaplaincy and, through it, a history of religion and the state in modern America. It is therefore both an institutional history and a history of a deep (and deeply significant) relationship between the federal government and religion. Moving from World War I to the 1990s, it traces the uneven processes through which the military struggled with, encouraged, and regulated religious pluralism over the twentieth century.

Military chaplains have served since the American Revolution, but the persistence of an arrangement in which the state organized religious activity is unusual. Despite assumed secularism, the military built a massive infrastructure to instill religion in its personnel. Enlisting Faith documents episodes of negotiation and cooperation, encounter and engagement, pragmatism and innovation. Friction was inevitable, but the military generally managed it away from the public eye and outside courtrooms. On the rare occasions when federal judges considered the constitutionality of the chaplaincy, they generally accepted it as a necessary engine of free exercise of religion in the military.

Yet avoiding establishment while enabling free exercise was challenging. The decision to mobilize religion to support martial endeavors had consequences: for the military and the state, for soldiers and religious groups, and for American politics and society writ large. Enlisting Faith narrates a series of interconnected stories about religious encounter, state regulation, and trials of faith to demonstrate how religion and the state shaped one another. It unmasks how religious groups vied for attention, accommodations, and power. And it reveals how the state has seen and categorized, hindered and promoted, challenged and supported religion.

There are a lot of moving pieces in this narrative, so in my next post, I’ll talk about structure and organization.

Stahl on "How the Military Chaplaincy Shaped Religion and State in Modern America"

After introducing our newest guest blogger, Ronit Stahl (University of Pennsylvania), I realized we failed to announce the publication of her book last fall. It is titled Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America (Harvard University Press, 2017). Here's a description from the Press:

A century ago, as the United States prepared to enter World War I, the military chaplaincy included only mainline Protestants and Catholics. Today it counts Jews, Mormons, Muslims, Christian Scientists, Buddhists, Seventh-day Adventists, Hindus, and evangelicals among its ranks. Enlisting Faith traces the uneven processes through which the military struggled with, encouraged, and regulated religious pluralism over the twentieth century. 

Moving from the battlefields of Europe to the jungles of Vietnam and between the forests of Civilian Conservation Corps camps and meetings in government offices, Ronit Y. Stahl reveals how the military borrowed from and battled religion. Just as the state relied on religion to sanction war and sanctify death, so too did religious groups seek recognition as American faiths. At times the state used religion to advance imperial goals. But religious citizens pushed back, challenging the state to uphold constitutional promises and moral standards. 

Despite the constitutional separation of church and state, the federal government authorized and managed religion in the military. The chaplaincy demonstrates how state leaders scrambled to handle the nation’s deep religious, racial, and political complexities. While officials debated which clergy could serve, what insignia they would wear, and what religions appeared on dog tags, chaplains led worship for a range of faiths, navigated questions of conscience, struggled with discrimination, and confronted untimely death. Enlisting Faith is a vivid portrayal of religious encounters, state regulation, and the trials of faith—in God and country—experienced by the millions of Americans who fought in and with the armed forces.

And a few (of the many) blurbs:

“Cutting across a century of perpetual war, shifting its analytic gaze from bureaucratic functions of the state to the people of faith who served, from mainline denominations to religious movements on the rise, Ronit Stahl’s study of the military chaplaincy brilliantly recasts our understanding of church–state relations in the modern era. Stahl vividly shows how the military chaplaincy has offered the means for Washington to encourage proper religious expression in a pluralist society, and for faith communities to earn political legitimacy in the eyes of their peers. An essential book for students of American religion, politics, and history.”—Darren Dochuk 

“Enlisting Faith tells a compelling story, showing how the military chaplaincy has entailed deep mutual engagement between government and the great diversity of American religious life. Stahl’s excellent work is a must-read for anyone interested in religious freedom, separation (or not) of church and state, war, politics, and the many challenges of pluralism.”—Sarah Barringer Gordon

More information is available here.

Douglas on a Nazi War Crimes Trial

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

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

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

Praise for the book:

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

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

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

Further information is available here.