Waxman and Weitzman on the Montgomery Ward Seizure

Over at Lawfare, Matthew Waxman and Samuel Weitzman have posted a nice essay, with Francis Biddle at its center, Remembering the Montgomery Ward Seizure: FDR and War Production Powers.

Kostal, "Laying Down the Law The American Legal Revolutions in Occupied Germany and Japan"

New from Harvard University Press: Laying Down the Law: The American Legal Revolutions in Occupied Germany and Japan, by R. W. Kostal (Western University, Ontario). A description from the Press:

A legal historian opens a window on the monumental postwar effort to remake fascist Germany and Japan into liberal rule-of-law nations, shedding new light on the limits of America’s ability to impose democracy on defeated countries.

Following victory in World War II, American leaders devised an extraordinarily bold policy for the occupations of Nazi Germany and imperial Japan: to achieve their permanent demilitarization by compelled democratization. A quintessentially American feature of this policy was the replacement of fascist legal orders with liberal rule-of-law regimes.

In his comparative investigation of these epic reform projects, noted legal historian R. W. Kostal shows that Americans found it easier to initiate the reconstruction of foreign legal orders than to complete the process. While American agencies made significant inroads in the elimination of fascist public law in Germany and Japan, they were markedly less successful in generating allegiance to liberal legal ideas and institutions.
Drawing on rich archival sources, Kostal probes how legal-reconstructive successes were impeded by German and Japanese resistance on one side, and by the glaring deficiencies of American theory, planning, and administration on the other. Kostal argues that the manifest failings of America’s own rule-of-law democracy weakened U.S. credibility and resolve in bringing liberal democracy to occupied Germany and Japan.

In Laying Down the Law, Kostal tells a dramatic story of the United States as an ambiguous force for moral authority in the Cold War international system, making a major contribution to American and global history of the rule of law.

Advance praise:

“In 1945, Americans boldly set out to remake the legal systems of occupied Japan, where they knew nothing about Japanese law, and Germany, where they often ignored German experts. Kostal’s book is a wonderfully novel, clear, and caustic history of the successes and failures of these endeavors.”—Robert W. Gordon

“This much-needed and compelling book examines American legal reform in occupied Germany and Japan, emphasizing the centrality of individual rights and the rule of law to American conceptualizations of democratic transformation. Kostal’s close attention to the successes, hypocrisies, and shortcomings of these American efforts offers vital insights while highlighting the intellectual, institutional, and moral limits of American visions of postwar democratization.”—Jennifer M. Miller

More information is available here.

-- Karen Tani

Muller on the Wounding of Japanese American Loyalty

Eric L. Muller, University of North Carolina School of Law, has posted The War Relocation Authority and the Wounding of Japanese American Loyalty, which appeared in volume 86 of Social Research (Fall 2019):

Manzanar Relocation Center (LC)

Loyalty and disloyalty were central concepts in the wartime imprisonment of Japanese Americans. A presumption of disloyalty landed Japanese Americans in concentration camps and then an inquest into loyalty and disloyalty determined who would be granted permission to depart from camp and who would be driven into a deeper incarceration called “segregation.” This article narrates the story of a single man’s shattering experience with the government’s mechanism for loyalty screening. It illustrates the incoherence of a security program built around loyalty, the blindness of those who administered it, and its devastating impact on Japanese Americans’ lives. 

--Dan Ernst

Thoughts from the Trenches: How to Make the Longue Durée Manageable

Thoughts from the Trenches: How to Make the Longue Durée Manageable

In 1967, the Lord Chamberlain’s Office refused to license German playwright Rolf Hochhuth’s new play, Soldiers: An Obituary for Geneva, for London’s National Theatre. The play, which decried strategic bombing during WWII, also held Winston Churchill responsible for the death of Polish General Sikorski. Sikorski had led the Polish government in exile and died in a plane accident off of British Gibraltar in 1943. Citing concerns for the Churchill family (Churchill died in 1965), the LCO first hedged on offering the license, then refused it. It would be one of the LCO’s last decisions before the end of theatre censorship in Britain the following year.

The play became the subject of intense external scrutiny for the better part of two years; libel suits stemming from the play extended the debate into the 1970s. The controversy pitted a self-professed new generation of Britons against older board members, a number of whom had not only fought in the war but were personal friends of the Churchill family. Was the play a libel on Churchill’s memory? On the nation and those involved in the war effort? Was personal reputation sacrosanct enough to justify censorship? Whose account of history was even right in the first place? And whose story was this to tell?    

Then Director of the National Theatre, Sir Lawrence Olivier, eventually backed away from the play, though the National Theatre’s Literary Director, Kenneth Tynan, continued as Hochhuth’s champion. Tynan eventually staged the play at another theatre in December 1968. The play ended up being performed in London for only a few months. The Churchill family never sued for libel, but others involved in the account of the crash did. As Tynan’s biographer notes: focused on the end of theatre censorship, Tynan had not taken into account a simultaneous strengthening of the laws of defamation [1].

When heading to London earlier this summer, there was but one single mention of Soldiers in my list of archives to see at the British Library. I knew there was some issue of libel involving Churchill, but nothing more. The case does not feature in accounts of defamation law. Indeed, the Churchill family never sued and, as I have learned since, the suits that were filed did little to influence case law. Yet, the play has quickly become a central example for my project. Beyond its intrinsic narrative interest, the Soldiers controversy enables me to tackle the interrelated threads of a very big project whose scope requires taming. Finding the case was thus something of a relief; but it was a studied find, not just a lucky one. I’ll try to explain what I mean so as to offer some suggestions about managing what can seem like ever-proliferating narrative threads when undertaking a new topic.

*          *          *

For my dissertation and first book, I read every item with “refugee” in the title I could find in the British Library catalogue and in the National Archives at Kew. From there, I worked to establish whom Britons identified as refugees over time as well as key turning points in the use of the category. Zeroing in on these moments, I extended my research on these cases in other archival and periodical sources. The research for Beyond Sticks and Stones has tested this method to the extreme. I could not hope to read everything in the British Library on reputation. How would I even find those pieces? The topic is simply too large and nebulous. What nineteenth-century novel does not hinge on matters of reputation or attempts to know character? All court cases involve “libels” – or charges. “Defamation” itself regularly refers to attacks on personal character, and seditious, blasphemous, and obscene libel. So, what to do…?  For me, the answer lies in sampling primary material early and, through those early samples, establishing initial patterns and breaking the project into more manageable pieces.

Once I had my initial research question -- What shaped the quasi-right to personal reputation? -- I began to build my bibliography and to read the secondary literature on defamation and reputation. While this is critical, to be sure, secondary reading cannot be done in isolation from primary material when defining a topic of one’s own. I start with a patch of evidence that I hope will help to establish the parameters of my subject, seeing how contemporary actors wrote about it, not just scholars in the years since.

1.     Sampling. Unable to read everything on reputation, I began with a sample from the Times of London. Over several months, I read all editorials and correspondence with the keywords “defamation,” “slander,” “libel,” “calumny,” and “reputation” between 1785, when the newspaper began, and the present. This task familiarized me with the major controversies over reputation over the past two hundred and fifty years, when the defense of reputation became a topic worthy not just of law reports, but of mainstream public commentary. I could derive from this a working timeline as well as basic patterns of debate.    

2.     The Fields of Scholarship. There are histories of the defense of reputation, but they are piecemeal. In British history, one finds key elements in accounts of privacy, celebrity, scandal, and of the media more generally. Even in the few legal histories of defamation, authors have tended to separate out different elements. We have books on obscene libel and on blasphemy, as well as a large literature that examines seditious libel and radical reform. Within the few texts on personal defamation, chapters tend to take aspects like fair comment, slander, and damages to write about their evolution separately. Sampling primary material helps, I find, to see better which seemingly separate swatches of scholarship are actually part of the same broader public conversation. This work itself ramifies, of course. I did not know when I first read that subset of Times commentary in 2016 that by 2019 I would need to track down literature on the Lord Chamberlain’s Office.

3.     Making Selections, Establishing Core Points. The task of the historian is not that of the chronicler and it shouldn’t be, even if the list of patterns and key moments were well-behaved enough that they could be included in a single volume. We seek explanations of change over time. I only half tease my students that they need to ban the words “also,” “additionally,” “furthermore” and so on – the connectors that so often stand in for stepping back to make a coherent argument. To change history by narrative accretion into history as explanation, the task is to organize chapters around the core episodes that move the argument along thematically and chronologically. This takes time and, for me, usually involves writing through several cases at a time, brainstorming comparisons along the way to help forge a compelling argument from a list of cases, points, or threads. I still remember vividly the day I first read about the Fugitive Slave Circulars for my dissertation in the summer of 2005. The contest over these Circulars crystallized issues of right, intervention, humanitarian need, and the very nature of life in British asylum and helped furnish a key turning point in my account of modern refuge. I had a hunch that I could use the material as a tool for thinking through the project as a whole. Indeed, I used it as one of my earliest conference papers and, later, for fellowships and the job market. It is still early, but the 1967-1968 question of whether to stage Soldiers feels like it has similar promise. 

Notes:

[1] Dominic Shellard, Kenneth Tynan: A Life (New Haven: Yale University Press, 2003), p. 314. 

--Caroline Shaw

Tyler on Judicial Review of Internment in the US and UK in WW2

Amanda L. Tyler, University of California, Berkeley, School of Law, has posted Courts and the Executive in Wartime: A Comparative Study of the American and British Approaches to the Internment of Citizens during World War II and Their Lessons for Today, which appears in the California Law Review 107 (2019): 789-866:

This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of citizens, and the manner in which British and American courts reviewed challenges brought by those detained during the war. Comparing the experiences of the two countries reveals that in both cases the courts deferred extensively to the political branches when it came to reviewing challenges to the wartime detention policies, essentially staking out roles that left them largely relegated to the sidelines of public debates over the propriety of internment policies. A comparison of the British and American experiences also reveals that, as the war continued, the two chief executives struck decidedly different positions as to the wisdom and lawfulness of detention policies directed at citizens. In the United States, Roosevelt ignored the legal advice of many of his key advisers regarding the unconstitutionality of the detention of Japanese American citizens and — again against the advice of his advisers — later delayed the closing of the internment camps until after the 1944 election. By contrast, Churchill — who operated in a different legal context that granted him greater powers than his American counterpart — came to view such policies as inconsistent with British constitutional tradition and became a crucial voice urging the termination of such detentions.

The Article then attempts to understand both why the two executives charted different courses on this issue as the war unfolded and whether there are any lessons to be drawn from these events with respect to how we should think about the separation of powers during wartime today. Focusing on the British experience during the war, Churchill’s change of course suggests that the executive can and sometimes will take the lead in declaring and protecting a country’s constitutional values without prodding by the courts, even in wartime, and even in the absence of legal compulsion. But as is explored in the pages that follow, the British experience may be a particularly British story and more generally one that differed in significant ways from the American story. This, in turn, calls into question just how much the British experience during the war should inform debates over the separation of powers in American constitutional law. The American experience during the war, moreover, proves a cautionary tale. Specifically, it reveals a series of failings on the part of the executive branch to acknowledge and engage with the facts on the ground and honor long-accepted constitutional traditions in formulating wartime policies. This example therefore suggests that the executive branch is ill equipped to self-regulate on this score in times of war. These failings in turn call into question the common practice of courts to defer extensively to the executive on matters of national security and more generally implicate fundamental questions about the judicial role in a constitutional democracy.

Although grounded in events that took place over seven decades ago, this study is undertaken for a very timely purpose. Once again, we live in a time in which the executive branch has argued that its decisions ostensibly predicated upon heightened concerns about national security should receive extensive, if not complete, deference from the Supreme Court. In addressing such arguments now and in the future, the Court would be wise to remember how judicial deference to executive branch assertions on matters of national security played out during World War II.

The Limits of Law: Cases

We asked the 2018-19 Davis Fellows the following question: how has your time at the Davis Center led to new insights about the reach and limits of law and legalities? Here is one set of answers that relate to each scholar's area of study (our other posts in this series are here and here):

Weekend Roundup

• Ohio University seeks an instructor of Law, Justice, and Culture. The deadline for applications is May 6.

• Congratulations to legal historians recently named John Simon Guggenheim Memorial Fellow for 2019-20.  These include ASLH President-Elect Lauren Benton, Vanderbilt University, for "Legalities of Small Wars in European Empires, 1400-1900"; Lena Salaymeh, Buchmann Faculty of Law, Tel Aviv University for "Revolutionary Islamic Law"; and Brad Snyder, Georgetown Law, for "Democratic Justice: Felix Frankfurter, Judicial Restraint, and the Creation of the Liberal Establishment." The complete list of recipients is here.

• Martha Jones (Johns Hopkins) has been elected to the Society of American Historians. Congratulations! 

• Samuel Moyn has been designated the Luce Professor of Jurisprudence at the Yale Law School.  Congratulations, as well!

• California Bound: Slavery on the New Frontier, an exhibit curated by Tyree Boyd-Pates and Taylor Bythewood-Porter, is at the California African American Museum in Los Angeles through April 28.

• I'm grateful to Virginia Law's Aditya Bamzai for posting his amicus brief in PDR Network et al. v. Carlton & Harris Chiropractic, Inc., early in the same week in which I got to the Office of Price Administration in my legal history course, even though its discussion of Yakus is not the only treatment at hand of how the US squared the need for speedy wartime price control with the dictates of Article III. [DRE]

• From Tocqueville 21, William Novak (University of Michigan Law School) on "Honneth, Dewey, and the Depths of Democracy." And from AHA Perspectives, Katherine Benton-Cohen (Georgetown University) on How Experts and Their Facts Created Immigration Restriction.

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

New Online Source on Austrialian Investigations of Japanese War Crimes

The National Archives of Australia has just launched Dr Narrelle Morris’ new archival guide to Australia’s war crimes records: Japanese War Crimes in the Pacific: Australia’s Investigations and Prosecutions (National Archives of Australia, 2019).

The guide of more than 150,000 words covers Commonwealth government records (principally holdings of the National Archives of Australia and the Australian War Memorial) on the World War II war crimes investigations of Sir William Flood Webb (1943-46), the United Nations War Crimes Commission (1943-48), the Australian Army’s Directorate of Prisoners of War & Internees, post-war investigations, the War Crimes Act 1945 (Cth) and preparation for trials, the 300 Australian Military Court war crimes trials (1945-51), the Australian War Criminals Compounds, the International Military Tribunal for the Far East (1946-48), and the repatriation, parole and release of convicted war criminals. Each chapter begins with a substantial, footnoted discussion of the subject matter before listing relevant records in sections. Appendix B contains an alphabetical name index with more than 950 entries of all war criminals tried by Australia with details of their trial(s) and outcome(s). Appendix D contains a basic index to finding key documents within the (now archival files) of the 300 Australian trial proceedings.

The guide can be downloaded as a free e-book (pdf format) here (at the bottom of the page). Or it can be viewed online in HTML format, which links directly to the catalogue (thus straight to the digitised online records in many cases). The guide is under a Creative Commons license, so it can be freely shared and copied.

Narrelle is an editor of and contributor to Australia’s War Crimes Trials, 1945-51 (Brill, 2016) and the law reporter for the forthcoming law reports series on the Australian Military Courts war crimes trials of the Japanese. She can be contacted at narrelle.morris@curtin.edu.au.

Muller on Hirabayashi as the "Second Monster"

Eric L. Muller, University of North Carolina School of Law, has posted Korematsu, Hirabayashi, and the Second Monster, which is forthcoming in the Texas Law Review:

In June of 2018 the Supreme Court repudiated its notorious 1944 decision in Korematsu v. United States upholding the mass removal of Japanese Americans from the West Coast. While some celebrated its demise and others doubted the Court’s sincerity, nobody paid attention to an equally odious decision that has hidden behind Korematsu: Hirabayashi v. United States. In that 1943 decision the Court unanimously upheld a lesser racial restriction on Japanese Americans, a dusk-to-dawn curfew. Like Korematsu, that decision has never been overruled, but unlike Korematsu, it has never been deeply scrutinized or pervasively condemned. Hirabayashi survives, providing potential cover for all manner of racial rules less burdensome than removal, such as surveillance, identity cards, or house arrest. This essay flushes Hirabayashi from the shadows, revealing it to be just as flawed as Korematsu, considerably more dangerous, and equally deserving of repudiation.

Jarvis's "Gambling under the Swastika"

Robert M. Jarvis, Nova Southeastern University Shepard Broad College of Law, has published Gambling Under the Swastika: Casinos, Horse Racing, Lotteries, and Other Forms of Betting in Nazi Germany (Carolina Academic Press):

Although much has been written about the Nazis, one aspect of their rule has been all but overlooked: gambling.  While philosophically opposed to gambling, in practice the Nazis relied on gambling to prop up Germany’s economy, earn hard currency, and wage war.  In this engaging new work, Professor Robert M. Jarvis (Nova Southeastern University) presents the first comprehensive look at gambling in the Third Reich.

After summarizing Germany’s pre-Nazi gambling laws, Jarvis describes how, within months of coming to power, the Nazis re-opened Baden-Baden’s famed casino (shuttered since 1872), took control of the country’s horse tracks, and encouraged citizens to play the lottery (to fund social welfare programs).  With the advent of war, the Nazis’ use of gambling increased.  While in some countries (such as the Netherlands) the Nazis used gambling to curry favor with the local citizenry, in others (such as Poland) gambling became another means of waging war.

Jarvis also takes readers inside the Nazis’ concentration and prisoner of war camps, where illicit gambling flourished.  Other subjects covered include the Nazis’ treatment of compulsive gamblers, their suppression of dog racing (due to the country’s progressive animal welfare laws), the use of gambling to carry out espionage missions, and the Nazis’ special rules for gambling by Jews.

Relying on an impressive wealth of domestic and foreign sources, Jarvis has crafted an important new account of the Nazi regime. The book includes exhaustive notes, a comprehensive bibliography, a detailed index, and 45 illuminating photographs.

Xia on justice and nationalism in wartime China

Back in 2017, Yun Xia (Valparaiso University) published Down with Traitors: Justice and Nationalism in Wartime China with the University of Washington Press. From the publisher:

Throughout the War of Resistance against Japan (1931-1945), the Chinese Nationalist government punished collaborators with harsh measures, labeling the enemies from within hanjian (literally, "traitors to the Han Chinese"). Trials of hanjian gained momentum during the postwar years, escalating the power struggle between Nationalists and Communists. Yun Xia examines the leaders of collaborationist regimes, who were perceived as threats to national security and public order, and other subgroups of hanjian-including economic, cultural, female, and Taiwanese hanjian. Built on previously unexamined code, edicts, and government correspondence, as well as accusation letters, petitions, newspapers, and popular literature, Down with Traitors reveals how the hanjian were punished in both legal and extralegal ways and how the anti-hanjian campaigns captured the national crisis, political struggle, roaring nationalism, and social tension of China's eventful decades from the 1930s through the 1950s.

Praise for the book:

 "Yun Xia's perceptive study traces the legal definition and the political usages of the profoundly emotive word hanjian (traitor). She looks at the years of the Resistance War and shows the ways in which the designation was used as China's political world was increasingly polarized." -Diana Lary

"Deeply researched and intriguing. Yun Xia details the scope of the traitor trials, which dwarfed the war crime trials of the Japanese." -Barak Kushner

"Wartime collaboration breeds treason trials-but trials in turn create collaborators by defining and punishing them. This book, the first in English, reconstructs the tangled political and legal processes in China that singled out those charged with aiding the Japan during the war, and that went on to influence mass campaigns after 1949." -Timothy Brook

Further information is available here.

Borch on War trials in the Netherlands East Indies

Back in 2017, Fred L. Borch (Regimental Historian and Archivist for the US Army Judge Advocate General's Corps) published Military Trials of War Criminals in the Netherlands East Indies 1946-1949 with Oxford University Press. From the publisher: 

From 1946 to 1949, the Dutch prosecuted more than 1000 Japanese soldiers and civilians for war crimes committed during the occupation of the Netherlands East Indies during World War II. They also prosecuted a small number of Dutch citizens for collaborating with their Japanese occupiers. The war crimes committed by the Japanese against military personnel and civilians in the East Indies were horrific, and included mass murder, murder, torture, mistreatment of prisoners of war, and enforced prostitution. Beginning in 1946, the Dutch convened military tribunals in various locations in the East Indies to hear the evidence of these atrocities and imposed sentences ranging from months and years to death; some 25 percent of those convicted were executed for their crimes. The difficulty arising out of gathering evidence and conducting the trials was exacerbated by the on-going guerrilla war between Dutch authorities and Indonesian revolutionaries and in fact the trials ended abruptly in 1949 when 300 years of Dutch colonial rule ended and Indonesia gained its independence. 

Until the author began examining and analysing the records of trial from these cases, no English language scholar had published a comprehensive study of these war crimes trials. While the author looks at the war crimes prosecutions of the Japanese in detail this book also breaks new ground in exploring the prosecutions of Dutch citizens alleged to have collaborated with their Japanese occupiers. Anyone with a general interest in World War II and the war in the Pacific, or a specific interest in war crimes and international law, will be interested in this book.

 Praise for the book:

"The overriding importance of Borch's book is that it fills a long-existing and significant gap in the English-language historiography of war crimes trials at the end of World War II. ... This book should find a wide audience among legal scholars, especially those who have an interest in the prosecution of war crimes. But the book is framed for a broader audience and with the pains taken to avoid legal jargon and to provide contextualization with respect to time and place, it should achieve its aim." Bruce Vandervort

"The overarching value of this book, especially for Anglophone readers lies in its forty-four trial summaries, which highlight cases relevant to specific types of crimes. The book might also serve as a primer on Dutch war crimes trial procedures, recruitment of personnel, provision of ancillary staff, etc., as well as enable comparative analysis of the Allied trials arising from the Pacific War." -Georgina Fitzpatrick

"This excellent book addresses a void in the academic literature: an authoritative well-written documentation of post-World War II war crimes trials conducted by an Allied state. Much more than a mere recitation of cases (although there is that, too), this slim volume is a window to an earlier time and an earlier law of war. ... This is a powerful book that those interested in the academic literature of World War II, the law of war, or the frailty of man, should read." -Gary Solis

Further information is available here.