Weekend Roundup

• Reminder: Applications for the William Nelson Cromwell Foundation awards to support research and writing in American legal history by early-career scholar are due on July 1.  (The Committee for Research Fellowships and Awards of the American Society for Legal History reviews the applications and makes recommendations to the Foundation.)  More.

• This year’s recipients of Charlotte W. Newcombe Doctoral Dissertation Fellowships include Tamar Menashe, Columbia University, for "People of the Law: The Imperial Supreme Court and Jews in Cross-Confessional Legal Cultures in Germany, 1495–1690," and Lila Teeters, University of New Hampshire, for “Native Citizens: The Fight For and Against Native Citizenship in the United States, 1866–1924.”

• Process, the blog of the Journal of American History and the Organization of American Historians, has put out a call for submissions on "all aspects of the history of disability in the United States."

• Two new articles online in the American Journal of Legal History: “Law at a Critical Juncture: The US Army’s Command Responsibility Trials at Manila 1945–1947,” by Jamie Fellows; and “Reforming Criminal Justice in the Ottoman Empire: Police, Courts and Prisons in Rusçuk, 1839-1864,” by Mehmet Celik.

• Here is the Harvard Law School faculty's open letter condemning "a series of acts by President Trump and other public servants that endorse violence and are inconsistent with a democratic legal order." Signatories include every legal historian we can think of who teaches there.

• The Consortium for Undergraduate Law & Justice Programs recently announced its 2020 awards for teaching and best undergraduate paper.

• Justin W. Aimonetti, a recent graduate of the University of Virginia School of Law, has posted his student note Colonial Virginia: The Intellectual Incubator of Judicial Review, published in the Virginia Law Review 106 (2020): 765-810.  He thanks UVA Law’s Cynthia Nicoletti.

• From the Riesenfeld Rare Books Blog at the University of Minnesota: Law in Times of Crisis, II

• ICYMI: Dean Risa Goluboff draws on her own historical research in her message to UVA law students.  David Blight on Frederick Douglass and "the tortured relationship between protest and change" (The Atlantic). Alexander Zhang on this history of "school-to-prison pipeline" policing in Minneapolis (Slate).

• ICYMI, Insurrection Act Edition:  Gautham Rao on the Posse Comitatus and Insurrection Acts (CNN).  The History Channel on the Jeffersonian origins of the Insurrection Act.  Still more, in WaPo's Retropolis.
  

• Over at Balkinization, Stephen Griffin develops an aspect of his recent SSRN post "Optimistic Originalism and the Reconstruction Amendments."Also at Balkinization: Gregory Ablavsky (Stanford Law School) on "PROMESA and Original Understandings of the Territories’ Constitutional Status."

• Lots of important content in the Washington Post's "Made by History" section this week, including Elizabeth Kolsky (Villanova University) on "how autopsies can uphold white supremacy."
  

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

Leiber's Lost Treatise on Martial Law

To Save the Country: A Lost Treatise on Martial Law, written by Francis Lieber and G. Norman Lieber and edited and with an introduction by Will Smiley and John Fabian Witt, is out from the Yale Univbersity Press.  Francis Lieber (1798–1872) was professor at Columbia College who advised Abraham Lincoln on the law of war. G. Norman Lieber (1837–1923), Francis’s son, taught law at West Point. Will Smiley is an assistant professor of humanities at the University of New Hampshire. John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School and the Head of Yale’s Davenport College.

The last work of Abraham Lincoln’s law of war expert Francis Lieber was long considered lost—until Will Smiley and John Fabian Witt discovered it in the National Archives. Lieber’s manuscript on emergency powers and martial law addresses important contemporary debates in law and political philosophy and stands as a significant historical discovery.

As a key legal advisor to the Lincoln White House, Columbia College professor Francis Lieber was one of the architects and defenders of Lincoln’s most famous uses of emergency powers during the Civil War. Lieber’s work laid the foundation for rules now accepted worldwide. In the years after the war, Lieber and his son turned their attention to the question of emergency powers. The Liebers’ treatise addresses a vital question, as prominent since 9/11 as it was in Lieber’s lifetime: how much power should the government have in a crisis? The Liebers present a theory that aims to preserve legal restraint, while giving the executive necessary freedom of action.

Smiley and Witt have written a lucid introduction that explains how this manuscript is a key discovery in two ways: both as a historical document and as an important contribution to the current debate over emergency powers in constitutional democracies.

Here are some endorsements:

 “When arguments for a legally unrestrained executive are again in fashion, this retrieval of Lincoln’s lawyer’s theory of appropriate legal restraint during wartime emergency could not be more timely.”—David Dyzenhaus, University of Toronto

“Smiley and Witt have unearthed a lost treasure. As we debate how our constitutional democracy handles great stress, this work helps us understand how the system has survived so far.”—Matthew C. Waxman, Columbia University

“Through their extraordinary discovery of Francis Lieber’s unpublished notes, Smiley and Witt not only provide a crucial new primary source that contextualizes Lieber’s role in the development of laws of war but also, amazingly enough, a fruitful way to reconsider the old, vital question of what constraints law can offer in times of war. A book every historian of the Civil War and every scholar of laws of warfare should rush to read.”—Gregory P. Downs, author of After Appomattox: Military Occupation and the Ends of War

“The manuscripts that Smiley and Witt have recovered should be required reading for anyone who cares about the operation of the Constitution in wartime and more generally about what legal limits should—or should not—constrain the government in confronting emergencies.”—Amanda L. Tyler, University of California, Berkeley School of Law

--Dan Ernst

Pfander on the Military and Dicey's Rule of Law

James E. Pfander, Northwestern University School of Law, has posted Dicey's Nightmare: An Essay on the Rule of Law, which is forthcoming in the California Law Review:

The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Essay builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Essay compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today.

This Essay focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Essay examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.

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.