Wednesday, July 25, 2007
Karayiannis and Hatzis on Morality, Social Norms and Rule of Law as Transaction Cost-Saving Devices: The Case of Ancient Athens
Anastassios Karayiannis, University of Piraeus, and Aristides N. Hatzis, University of Athens, have posted a new paper, Morality, Social Norms and Rule of Law as Transaction Cost-Saving Devices: The Case of Ancient Athens. Here's the abstract: The importance of the institutional framework for economic development is widely accepted today and it is duly stressed in the economic literature. The protection of property rights, the enforcement of contracts and an efficient legal system are the pillars of the contemporary rule of law. However, formal institutions cannot function without being internalized by the citizens and without the backing of social norms. Morality and social norms are the major elements of the informal institutional structure, the social capital, which is also critical for social welfare and economic development. In this paper we will discuss both the formal and the informal institutional framework of Ancient Athens, which was a free market society with economic problems similar to contemporary market societies. Athenians developed a highly sophisticated legal framework for the protection of private property, the enforcement of contracts and the efficient resolution of disputes. Such an institutional framework functioned effectively, cultivating trust and protecting the security of transactions. This entire system however was based on social norms such as reciprocity, the value of reputation and business ethics. Conformity to social norms as well as moral behavior was fostered by social-sanction mechanisms (such as stigma) and moral education. The Athenian example is a further proof of the importance of morality and social norms as transaction cost-saving devices even in quite sophisticated legal systems. Their absence or decline leads inevitably to the need for more regulation, clear-cut rules, less judicial discretionary power and more litigation. Athenian law was pioneering in the development of rules and institutional mechanisms suitable for the reduction of transaction costs, many of them surviving in the most complex contemporary legal systems.
Quigley reviews Douglas, Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954
Davison M. Douglas, Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954 (Cambridge University Press, 2005) is reviewed for H-Urban by David Quigley, Department of History, Boston College. Hat tip. Quigley writes:
May 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brow
n v. Board of Education. Attempts by politicians and the media to commemorate Brown proved to be more awkward than those associated with more typical historical anniversaries. Observers--from the left,right, and center--struggled to make sense of the degree to which the nation's schools had in fact been integrated over the past half century. Eric Foner and Randall Kennedy introduced a special commemorative issue of The Nation by reminding readers that "Brown's promise remains, to a considerable extent, unfulfilled. Jim Crow schooling is not a wrong inflicted in ancient times on people long since dead; it is an all too recent injustice that created unhealed wounds." Confronted with a public school system marked by enduring patterns of racial separation, Brown presents a particularly mixed legacy for scholars and citizens in the twenty-first century.
Davison M. Douglas's new book--Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954--explores the history of the public schools in the North in the century and a half before the Brown decision with particular attention to the complexities of race and public education. By pushing the story back well before 1954, and even before 1865 (the book's putative starting point) and by shifting his focus from the segregated South to the North, Douglas manages at once to remap the field of Brown scholarship and to make a strong case for the impact of northern precedents on the work of Thurgood Marshall and the postwar National Association for the Advancement of Colored People (NAACP). A law professor with a Ph.D. in American history, Douglas's approach to legal history skillfully brings together social, cultural,and political realms to make sense of the paradoxes of segregated public schools. This careful reconstruction of Brown's back story is a useful corrective to a good deal of the confusion articulated in May 2004.While Douglas's subtitle suggests the end of the Civil War as his starting point, his opening chapter on antebellum northern communities is in some ways the most powerful. Documenting the range of practices and innovations that emerged in the decades before the Civil War, the North is portrayed as a region wrestling with the implications of public schooling in an era of deepening sectional division. Douglas succeeds in undermining ideas of any unitary, "free" northern approach to the issue of race and schooling. The Roberts case in Massachusetts is read against the backdrop of a generation of legal and political disputes over African American access to the region's new schoolhouses. This study reminds us often just how difficult it is to generalize about atypical northern approach to race and schooling, whether in the early nineteenth century or in the aftermath of World War II.
Jim Crow Moves North retraces the state-by-state legislative embrace of school integration in the aftermath of the Civil War and then proceeds to narrate the history of how communities and states, slowly but steadily, undercut much of that progress in the years after 1900.Immediately after the Civil War and for several succeeding decades,northern African Americans scored significant victories in gaining access to integrated public schools. Many postbellum northerners--black and white--worked to remake the segregated system which had been erected before 1860. In time, though, such changes would be undone. The impact of the Supreme Court's decision in Plessy v. Ferguson, it seems, was not limited to the South; across the Northeast and Midwest, a generation of whites committed themselves to a separatist system of public education after 1896. Alongside J. Morgan Kousser's work on school litigation in the nineteenth-century North, Douglas's book helps to make sense of the struggle for black equality in the North between 1865 and the end of the century. The first four decades of the twentieth century witnessed a historical reversal, as Douglas writes, that where"African Americans had made substantial strides toward full inclusion in the public education systems of the North during the late nineteenth century, … the migration of hundreds of thousands of southern blacks into northern cities during the early twentieth century provoked renewed white insistence on racial separation in much of the North" (p. 166).This twentieth-century insistence on separation was not simply the result of residential segregation but the product of specific,intentional acts of public policy.
Douglas documents conflicting African American responses to the problem of segregated schools across the nineteenth century and well into the twentieth. Chapter 5, "Responding to the Spread of Northern School Segregation: Conflict within the Black Community, 1900-1940," highlights the era of the Great Migration as a period of particularly divisive debate within black communities. Groups like the Pennsylvania Association of Teachers of Colored Children provided ideological and organizational support for separate black schools. By taking such separatist voices seriously, Douglas both locates the origins of some more recent African American arguments for separate schools and provides a fuller context for the NAACP's embrace of school desegregation in the interwar years. Conflicts over race and northern public schools, Douglas argues, intensified in the decades leading up to Brown. This study of the politics of public schools offers a bracing, troubling account of"the role of law in accomplishing racial change" (p. 6). The prehistory of Brown alerts us to the limits of judicial power.
For all of Douglas's success in making sense of the history of racial segregation in the North, it is misleading to argue, as does the book's title, that the story here is one of Jim Crow moving North. As David N. Gellman and I have argued elsewhere, northern politicians and ordinary citizens in the first half of the nineteenth century were responsible for crafting, maintaining, and defending a variety of practices which we have traditionally identified as constituting "Jim Crow." Much of Douglas's evidence supports the idea that the nineteenth-century North pioneered new forms of racial division in the very public schools that were central to democratic public life. Rather than Jim Crow being the exclusive province of any one region, Douglas's history suggests a recurring process of interregional borrowing and innovation across the nineteenth and twentieth centuries with white northerners and southerners learning from each others' experiences.
This leads to a final question about the relationship between two contemporary processes in the mid-nineteenth-century North: the emergence of public schools and the refinement of forms of racial separation. The rise of a northern culture of segregation--perhaps most prominent in many of the region's schoolhouses--might be interpreted as being inextricably linked to the creation of and support for an extensive system of public schooling in many parts of the North in the decades before the Civil War. Exclusions by race could thus be conceived of as not coincidental to the expansion of schooling for masses of American children but perhaps central to many Americans' understanding of public education. As in the case of racial limits on suffrage in the antebellum North, it seems that racial limits on "public" education came naturally to many white northerners.
May 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brow
n v. Board of Education. Attempts by politicians and the media to commemorate Brown proved to be more awkward than those associated with more typical historical anniversaries. Observers--from the left,right, and center--struggled to make sense of the degree to which the nation's schools had in fact been integrated over the past half century. Eric Foner and Randall Kennedy introduced a special commemorative issue of The Nation by reminding readers that "Brown's promise remains, to a considerable extent, unfulfilled. Jim Crow schooling is not a wrong inflicted in ancient times on people long since dead; it is an all too recent injustice that created unhealed wounds." Confronted with a public school system marked by enduring patterns of racial separation, Brown presents a particularly mixed legacy for scholars and citizens in the twenty-first century.Davison M. Douglas's new book--Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954--explores the history of the public schools in the North in the century and a half before the Brown decision with particular attention to the complexities of race and public education. By pushing the story back well before 1954, and even before 1865 (the book's putative starting point) and by shifting his focus from the segregated South to the North, Douglas manages at once to remap the field of Brown scholarship and to make a strong case for the impact of northern precedents on the work of Thurgood Marshall and the postwar National Association for the Advancement of Colored People (NAACP). A law professor with a Ph.D. in American history, Douglas's approach to legal history skillfully brings together social, cultural,and political realms to make sense of the paradoxes of segregated public schools. This careful reconstruction of Brown's back story is a useful corrective to a good deal of the confusion articulated in May 2004.While Douglas's subtitle suggests the end of the Civil War as his starting point, his opening chapter on antebellum northern communities is in some ways the most powerful. Documenting the range of practices and innovations that emerged in the decades before the Civil War, the North is portrayed as a region wrestling with the implications of public schooling in an era of deepening sectional division. Douglas succeeds in undermining ideas of any unitary, "free" northern approach to the issue of race and schooling. The Roberts case in Massachusetts is read against the backdrop of a generation of legal and political disputes over African American access to the region's new schoolhouses. This study reminds us often just how difficult it is to generalize about atypical northern approach to race and schooling, whether in the early nineteenth century or in the aftermath of World War II.
Jim Crow Moves North retraces the state-by-state legislative embrace of school integration in the aftermath of the Civil War and then proceeds to narrate the history of how communities and states, slowly but steadily, undercut much of that progress in the years after 1900.Immediately after the Civil War and for several succeeding decades,northern African Americans scored significant victories in gaining access to integrated public schools. Many postbellum northerners--black and white--worked to remake the segregated system which had been erected before 1860. In time, though, such changes would be undone. The impact of the Supreme Court's decision in Plessy v. Ferguson, it seems, was not limited to the South; across the Northeast and Midwest, a generation of whites committed themselves to a separatist system of public education after 1896. Alongside J. Morgan Kousser's work on school litigation in the nineteenth-century North, Douglas's book helps to make sense of the struggle for black equality in the North between 1865 and the end of the century. The first four decades of the twentieth century witnessed a historical reversal, as Douglas writes, that where"African Americans had made substantial strides toward full inclusion in the public education systems of the North during the late nineteenth century, … the migration of hundreds of thousands of southern blacks into northern cities during the early twentieth century provoked renewed white insistence on racial separation in much of the North" (p. 166).This twentieth-century insistence on separation was not simply the result of residential segregation but the product of specific,intentional acts of public policy.
Douglas documents conflicting African American responses to the problem of segregated schools across the nineteenth century and well into the twentieth. Chapter 5, "Responding to the Spread of Northern School Segregation: Conflict within the Black Community, 1900-1940," highlights the era of the Great Migration as a period of particularly divisive debate within black communities. Groups like the Pennsylvania Association of Teachers of Colored Children provided ideological and organizational support for separate black schools. By taking such separatist voices seriously, Douglas both locates the origins of some more recent African American arguments for separate schools and provides a fuller context for the NAACP's embrace of school desegregation in the interwar years. Conflicts over race and northern public schools, Douglas argues, intensified in the decades leading up to Brown. This study of the politics of public schools offers a bracing, troubling account of"the role of law in accomplishing racial change" (p. 6). The prehistory of Brown alerts us to the limits of judicial power.
For all of Douglas's success in making sense of the history of racial segregation in the North, it is misleading to argue, as does the book's title, that the story here is one of Jim Crow moving North. As David N. Gellman and I have argued elsewhere, northern politicians and ordinary citizens in the first half of the nineteenth century were responsible for crafting, maintaining, and defending a variety of practices which we have traditionally identified as constituting "Jim Crow." Much of Douglas's evidence supports the idea that the nineteenth-century North pioneered new forms of racial division in the very public schools that were central to democratic public life. Rather than Jim Crow being the exclusive province of any one region, Douglas's history suggests a recurring process of interregional borrowing and innovation across the nineteenth and twentieth centuries with white northerners and southerners learning from each others' experiences.
This leads to a final question about the relationship between two contemporary processes in the mid-nineteenth-century North: the emergence of public schools and the refinement of forms of racial separation. The rise of a northern culture of segregation--perhaps most prominent in many of the region's schoolhouses--might be interpreted as being inextricably linked to the creation of and support for an extensive system of public schooling in many parts of the North in the decades before the Civil War. Exclusions by race could thus be conceived of as not coincidental to the expansion of schooling for masses of American children but perhaps central to many Americans' understanding of public education. As in the case of racial limits on suffrage in the antebellum North, it seems that racial limits on "public" education came naturally to many white northerners.
The full review with notes is here.
Tuesday, July 24, 2007
Cunliffe explores visions of legal history on the Australian High Court
Emma Cunliffe, University of British Columbia, has posted an essay, Anywhere but Here: Race and Empire in the Mabo Decision. It takes up an Australian version of a question very much on the minds of American legal scholars in the wake of the recent PICS case: what happens to history in the hands of judges. The essay appeared in a Symposium Issue of Social Identities. Here's the abstract: The High Court of Australia's decision in Mabo v. Queensland (No.2) is among the most widely known and controversial decisions the Court has yet delivered. In Mabo, a majority of the Court recognised a common law right to native title subject to certain criteria. In this article, I explore the competing visions of legal history that are implicit within Brennan J's leading judgment and Dawson J's dissent. In particular, I discuss the ways in which both of these judgments render an incomplete and contradictory documentary record more coherent than it really is. Suggesting that neither judgment manages to escape the traces of racism, I argue that the alternative approaches tell us more about the fault lines within contemporary Australian political discourse than they do about the Australian colonial past. I conclude that Brennan J's efforts to render contemporary justice for past wrongs against indigenous Australians deserve acknowledgement, though his judgment is ultimately constrained by the force at the heart of the Australian common law. Much more remains to be done before the Australian common law can be said to recognise indigenous Australian cultures as complex, changeable, and contemporary.
Kirchmeier on The Death Penalty Abolitionist Search for a Wrongful Execution
Jeffrey L. Kirchmeier, CUNY School of Law, draws from history to contribute to the innocence debate in a new article, Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution. The article has been published in the Tulsa Law Review. Here's the abstract: This article examines the debate about whether or not an innocent person has been executed in the United States. The article begins by discussing several famous historical claims of wrongful execution, including Sacco & Vanzetti, the Rosenbergs, and Bruno Hauptmann. Then, the article addresses some recent claims of wrongful executions, including the case of Larry Griffin and the impact of a 2006 DNA test in the Roger Coleman case. The article evaluates why some innocence claims attract more attention than others. By recognizing two obstacles in wrongful execution claims and by establishing five lessons for gaining media attention, the article uses its historical analysis to extract strategy lessons for death penalty abolitionists. Finally, the article weighs arguments regarding the pros and cons of an abolitionist strategy that focuses on proving the innocence of executed individuals. The article concludes that wrongful execution claims provide an important argument for abolitionists, but such claims should not be presented as the main or only problem with the death penalty.
Burns on The Court of Chancery in the 19th Century
Fiona Burns, Sydney Law School, has posted an essay, The Court of Chancery in the 19th Century: A Paradox of Decline and Expansion. It appeared in the University of Queensland Law Journal. Here's the abstract: This article considers the traditional argument that the Court of Chancery declined in the 19th century. It is argued that while the Court was beset by procedural problems, some of the most important and long-lasting doctrinal contributions to equity and the law generally occurred in the 19th century Court of Chancery. Areas which are discussed include: fraud and breach of confidence; fiduciary obligations; passing off; and restrictive covenants.
Monday, July 23, 2007
New data on PhD completion rates: are the humanities behind?
The Council of Graduate Schools has released a report on progress toward the PhD, across fields. Overall, 56.7% of those entering a U.S. doctoral program receive the PhD within 10 years. PhD completion rates within 10 years are highest in the sciences and mathematics. The tables are a bit hard to read, but in history the 10 year completion rate is 48%. In economics, the 10 year completion rate is just over 50%.
The American Historical Association's Blog reports that:
The American Historical Association's Blog reports that:
This completion rate is significantly lower than our own estimates, which are based on data submitted from the history departments annually. In 2006, history PhD programs estimated that an average of 59 percent of the students who matriculated into their program in 1996 had completed the degree. But one of the issues we confronted in our survey was precisely how to determine when a student actually entered the doctoral program, given that some enter as Master’s students or some other form of transitional status....
Unfortunately, the report does not offer specific information on attrition from history PhD programs. But for the humanities in general, they report that slightly more than 15 percent of doctoral students gave up by their third year in the program, and more than a third gave up by year 10. Almost 19 percent of humanities doctoral students were still counted on the books as continuing toward the degree in their tenth year.
The discrepancy in reporting is important to focus on. The AHA Blog goes on to conclude that the report gives "history a lower 10-year completion rate than almost all other disciplines."
Another way to look at the very same tables is to find that while it takes longer to complete a PhD in the humanities than mathematics or science (we knew that), at the end of the day, the 10 year rate for history is not far off from many fields, including economics, which has a 10 completion rate of just over 50%. The table that is supposed to show that history has a lower completion rate than "almost all other disciplines" actually shows that there is almost no difference between history and the overall category of "humanities." This suggests that if steps need to be taken to help graduate students complete the PhD more quickly, it is not necessarily a history-specific problem, but a difficulty that affects many parts of the academy.
The bottom line: if you want a quick PhD, the data is clear: be a civil engineer. It you're in econ, history, anthro or literature, you're in for a long haul, and it is in everyone's interest to determine ways to make progress toward the PhD, across fields, an education, and not a career.
UPDATE: PhDinHistory follows up with more helpful data, here, noting that only sixteen PhD granting history departments provided the date for the Council of Graduate Schools report, representing only 10% of North American history doctoral programs. A rather important limitation of the study!
Rotunda reflects on a personal history of Teaching Professional Responsibility and Ethics
Ronald D. Rotunda, George Mason, has posted an essay, Teaching Professional Responsibility and Ethics, which is appearing in the St. Louis University Law Journal. Here's the abstract:
This article discusses the development of teaching legal ethics in light of the changes in the ethics rules over the years. The thesis is that many ethics rules reflect the needs of a cartel (the legal profession) to protect itself, rather than the need to protect the clients of lawyers. The author uses stories and examples to illustrate this thesis.Professor Rotunda sets legal ethics in a historical context, but the principal history for this article is personal, and so it provides reflections on ethics by this senior scholar from before his career began. He opens with this evocative story:
My first recollection of wanting to become a lawyer was in grade school, when the teacher told each of us to write a paper on what we wanted to be. I was probably in eighth grade. I decided that I wanted to be a lawyer. I do not know why I made that choice. I did not know any lawyers. My parents never had the opportunity to attend college; my mother never even attended high school. My father emphasized education, but it was up to me to decide on a career.More stories are here.
In order to collect information on lawyers for my grade school paper, I wrote the state bar in Illinois, where I lived. The bar sent me its code of professional responsibility. I remember one thing: that one of the rules of professional responsibility stated that it was unethical to charge less than a certain amount of money per hour. I do not remember the exact amount, for it was many years ago. Let us say it was fifty dollars per hour. I do remember that, whatever the hourly amount was, it was more than what my father earned in a good day.
Think about that. It would be unethical for a lawyer to charge less per hour than my father earned in a full day. He is retired now, but at the time, he was a skilled, self-employed, blue collar worker (a sign painter). He often worked ten hours a day. Yet, it would be unethical for a lawyer to charge less per hour than he would earn in a good day.
What struck me at the time was that the legal profession said it was unethical to charge too little.
Sunday, July 22, 2007
American Society for Legal History: Registration Information for Annual Meeting
Conference registration is now open for the 2007 Annual Meeting of the American Society for Legal History. The meeting will be October 25-28 in Tempe, Arizona. Deadline: September 19.Here are essential links:
- Registration Form (pdf).
- Hotel reservation information.
- Room-sharing form (if you'd like a roommate).
- Tempe Travel Links.
- Preliminary Program.
Weinberg on Dred Scott and the Crisis of 1860
Louise Weinberg, University of Texas, has posted an essay, Dred Scott and the Crisis of 1860. It is appearing in a symposium issue of the Chicago-Kent Law Review on the 150th Anniversary of the Dred Scott Decision, edited by Paul Finkelman, Jack M. Balkin and Sanford Levinson. Here's Weinberg's abstract: This article argues the centrality of the Dred Scott case in the election of Abraham Lincoln and to the national crisis of 1860. Taking the view that the struggle over the expansion of slavery into the territories was in essence a scramble for national political power, the economic, political, legal and social roots of the sectional dispute are traced, and the causal connections between Dred Scott and the coming of the Civil War, among other causes, are clarified
Reviewed: Weiner, Legacy of Ashes: The History of the CIA
LEGACY OF ASHES: The History of the CIA, by Tim Weiner is reviewed today in the Washington Post , the Boston Globe, and the New York Times. Evan Thomas writes in the NY Times:
The full review is here.
Tim Weiner’s engrossing, comprehensive “Legacy of Ashes” is a litany of failure, fr
om the C.I.A.’s early days, when hundreds of agents were dropped behind the Iron Curtain to be killed or doubled (almost without exception), to more recent humiliations, like George Tenet’s now infamous “slam dunk” line. Over the years, the agency threw around a lot of money and adopted a certain swagger. “We went all over the world and we did what we wanted,” said Al Ulmer, the C.I.A.’s Far East division chief in the 1950s. “God, we had fun.” But even their successes turned out to be failures. In 1963, the C.I.A. backed a coup to install the Baath Party in Iraq. “We came to power on a C.I.A. train,” said Ali Saleh Saadi, the Baath Party interior minister. One of the train’s passengers, Weiner notes, was a young assassin named Saddam Hussein. Weiner quotes Donald Gregg, a former C.I.A. station chief in South Korea, later the national security adviser to Vice President George H. W. Bush: “The record in Europe was bad. The record in Asia was bad. The agency had a terrible record in its early days — a great reputation and a terrible record.”
And yet the myth of the C.I.A. as an all-knowing, all-powerful spy agency persisted for years, not just in the minds of America’s enemies but in the imagination of many American television-watchers and moviegoers. Among those fooled, at least initially, were most modern presidents of the United States. The promise of a secret intelligence organization that could not only spy on America’s enemies but also influence events abroad, by sleight of hand and at relatively low cost, was just too alluring.
When presidents finally faced the reality that the agency was bumbling, they could be bitter. Reviewing the C.I.A.’s record after his two terms in office, Dwight Eisenhower told the director, Allen Dulles, “I have suffered an eight-year defeat on this.” He would “leave a legacy of ashes” for his successor.
om the C.I.A.’s early days, when hundreds of agents were dropped behind the Iron Curtain to be killed or doubled (almost without exception), to more recent humiliations, like George Tenet’s now infamous “slam dunk” line. Over the years, the agency threw around a lot of money and adopted a certain swagger. “We went all over the world and we did what we wanted,” said Al Ulmer, the C.I.A.’s Far East division chief in the 1950s. “God, we had fun.” But even their successes turned out to be failures. In 1963, the C.I.A. backed a coup to install the Baath Party in Iraq. “We came to power on a C.I.A. train,” said Ali Saleh Saadi, the Baath Party interior minister. One of the train’s passengers, Weiner notes, was a young assassin named Saddam Hussein. Weiner quotes Donald Gregg, a former C.I.A. station chief in South Korea, later the national security adviser to Vice President George H. W. Bush: “The record in Europe was bad. The record in Asia was bad. The agency had a terrible record in its early days — a great reputation and a terrible record.”And yet the myth of the C.I.A. as an all-knowing, all-powerful spy agency persisted for years, not just in the minds of America’s enemies but in the imagination of many American television-watchers and moviegoers. Among those fooled, at least initially, were most modern presidents of the United States. The promise of a secret intelligence organization that could not only spy on America’s enemies but also influence events abroad, by sleight of hand and at relatively low cost, was just too alluring.
When presidents finally faced the reality that the agency was bumbling, they could be bitter. Reviewing the C.I.A.’s record after his two terms in office, Dwight Eisenhower told the director, Allen Dulles, “I have suffered an eight-year defeat on this.” He would “leave a legacy of ashes” for his successor.
The full review is here.
Saturday, July 21, 2007
Pue on Police Powers, Trespass and Expressive Rights Under the Canadian Constitution
Wesley Pue, University of British Columbia, has posted a new paper, Police Powers, Trespass and Expressive Rights Under the Canadian Constitution. Here's the abstract: This paper traces the history of the ancillary police powers doctrine in Canadian police law/ constitutional law over the past 40 years. It identifies a doctrine creep wherein a heading of police power which had modest origins has expanded massively. The expansion is spatial and conceptual and reached its reductio ad absurdum when the entire central area of Quebec city was zoned into no-go areas by police acting without legislative authority, claiming the right to erect barricades in public streets, to issue passes (or not) as necessarily ancillary to police powers. The paper includes the only English translation of the Tremblay case, in which this power was considered and an analysis of both Tremblay and other authorities on the matter. Other matters considered include the Emergencies Act, Riot Act, the notion of public forum, trespass law, anti-globalization protests and aboriginal land claims as giving colour of right to be present on lands.
Harrison on Ex Parte Young
John C. Harrison, University of Virginia, has posted a new paper, Ex Parte Young. The paper begins with, perhaps, a revealing sentence: "Each of us may hope that by our hundredth year much of our youth will have been forgotten." Whether or not each of us feels that way, Harrison's well-written paper continues, "That has happened with Ex parte Young, a central case with respect to sovereign immunity and constitutional remedies." Here's the abstract: Ex parte Young does not represent an exception to ordinary principles of sovereign immunity, it does not employ a legal fiction, it does not imply a novel cause of action under the Constitution or other federal law, and it does not create a paradox by treating officers as state actors for one purpose and private persons for another. All those bits of conventional wisdom are wrong for the same reason: Young was about a traditional tool of equity, the injunction to restrain proceedings at law, or anti-suit injunction. By seeking an anti-suit injunction, a potential defendant at law can become a plaintiff in equity and present a defense in an affirmative posture. Asserting defenses against the government, like the railroads' constitutional defenses at issue in Young, does not offend sovereign immunity, so it does not require a fiction to cover up a violation of sovereign immunity. Anti-suit injunctions have long been a standard tool of equity and so in approving one the Court in Young did not recognize a novel cause of action applicable only to government officers, and for that reason did not encounter a paradox. This article elaborates on the argument just described, discusses the extent to which the opinion in Ex parte Young reflects the fact that it involved an anti-suit injunction, and briefly considers the contemporary implications of this way of understanding this foundational case.
Friday, July 20, 2007
"There is no such thing as 'bloglish'"
In case you were worried about the impact of blogs on the English language, the Telegraph reports that Oxford University Press lexicographers have found that "there is no such thing as 'bloglish'." If that's the good news, the other news is that "the top 15 most frequently used words are: blogger, blog, s---, oh, yeah, stupid, post, ok, stuff, lovely, myself, update, nice, me and my." Hat tip. Oh, my -- if this blog and blogger have not done our share of contributing to the supremacy of this lovely list of words, perhaps this stupid post will do a nice job of it. Ok? Update: don't blame me, but, yeah, this stuff reads like s---, if I must say so myself.
How to Get a Fellowship: Tips for Law Faculty
With the announcement of a new Guggenheim in Constitutional Studies, more law faculty may try their hand at applications for major national fellowships and grants. This would be a good thing. But special hurdles face many law professors because publishing expectations are different in law than in most fields. It is a good idea to anticipate this, and consider how your superb law c.v. will look to a non-law reviewer before preparing your application.
The issue is books, or lack thereof, for law faculty. Most of the scholars you'll be competing against are likely to have published scholarly books. It's true that some other fields tend to stress articles, rather than books. But in those fields often the articles are much shorter, and the number greater. And even those scholars will often publish books. If you have a substantial body of work, and it's published in law reviews, what do you do?
1. If the reason you are applying for fellowships is that you want to move from articles to a book, get an advance book contract before you apply for fellowships. This way, it's clear that a book will be produced from the work funded by the fellowship. You can approach presses with a proposal and a sample chapter, so you can do that first. (More on that elsewhere.)
2. Do something on your list of publications or c.v. to make clear that your body of work is substantial and has had an impact (especially if you are not a junior scholar). List first and last page numbers in your article citations, or the number of pages. Say something about the impact of a particularly important article (but not your SSRN download figures, or things like that).
3. If your proposal is not for a book...it's not likely to be successful. If you want try anyway, I'd recommend outlining a very concrete series of articles, making clear why publishing the work as articles will have more of an impact than publishing it as a book. Justify the genre.
4. Warning to JD/Ph.D.'s: It's great to have a JD/Ph.D. But if you have a JD/Ph.D. and no book already, fellowship evaluators are going to think that you're applying for their fellowship to turn your dissertation into a book. That will work for a PostDoc, and for many of the fellowships targeted toward junior scholars. For the major national fellowships, you are more likely to be successful on a proposal for book #2. If you apply for book #1, it will help to have a book contract in hand. This holds even if you are senior. To evaluators in other fields, when they look at your c.v., they'll ask where that dissertation book is.
5. What goes in that proposal? Pay attention to the specifics instructions on the application, obviously, but generally, be sure to do this:
a. the proposal has a thesis (or hypothesis), clearly stated.
b. the proposal outlines research that will produce, or has produced, evidence to support or refute the thesis. Include a timeline for research.
c. the proposal makes clear that the researcher is qualified to accomplish this project, and has a track record of getting work like this done.
d. briefly describe the relevant literature, and explain why your project is original and what contribution you are making.
e. the proposal helps the non-specialist reader to see why this project is important, and why this foundation should want to fund it.
f. the proposal is well-written, so that the proposal itself demonstrates the researcher's skills at communicating her/his ideas.
g. request letters of recommendation from people who can speak to your talents and the impact of your work, but who are not your current colleagues.
6. This goes for everyone: don't expect to be successful the first time. Keep trying.
More fellowship advice is here.
The issue is books, or lack thereof, for law faculty. Most of the scholars you'll be competing against are likely to have published scholarly books. It's true that some other fields tend to stress articles, rather than books. But in those fields often the articles are much shorter, and the number greater. And even those scholars will often publish books. If you have a substantial body of work, and it's published in law reviews, what do you do?
1. If the reason you are applying for fellowships is that you want to move from articles to a book, get an advance book contract before you apply for fellowships. This way, it's clear that a book will be produced from the work funded by the fellowship. You can approach presses with a proposal and a sample chapter, so you can do that first. (More on that elsewhere.)
2. Do something on your list of publications or c.v. to make clear that your body of work is substantial and has had an impact (especially if you are not a junior scholar). List first and last page numbers in your article citations, or the number of pages. Say something about the impact of a particularly important article (but not your SSRN download figures, or things like that).
3. If your proposal is not for a book...it's not likely to be successful. If you want try anyway, I'd recommend outlining a very concrete series of articles, making clear why publishing the work as articles will have more of an impact than publishing it as a book. Justify the genre.
4. Warning to JD/Ph.D.'s: It's great to have a JD/Ph.D. But if you have a JD/Ph.D. and no book already, fellowship evaluators are going to think that you're applying for their fellowship to turn your dissertation into a book. That will work for a PostDoc, and for many of the fellowships targeted toward junior scholars. For the major national fellowships, you are more likely to be successful on a proposal for book #2. If you apply for book #1, it will help to have a book contract in hand. This holds even if you are senior. To evaluators in other fields, when they look at your c.v., they'll ask where that dissertation book is.
5. What goes in that proposal? Pay attention to the specifics instructions on the application, obviously, but generally, be sure to do this:
a. the proposal has a thesis (or hypothesis), clearly stated.
b. the proposal outlines research that will produce, or has produced, evidence to support or refute the thesis. Include a timeline for research.
c. the proposal makes clear that the researcher is qualified to accomplish this project, and has a track record of getting work like this done.
d. briefly describe the relevant literature, and explain why your project is original and what contribution you are making.
e. the proposal helps the non-specialist reader to see why this project is important, and why this foundation should want to fund it.
f. the proposal is well-written, so that the proposal itself demonstrates the researcher's skills at communicating her/his ideas.
g. request letters of recommendation from people who can speak to your talents and the impact of your work, but who are not your current colleagues.
6. This goes for everyone: don't expect to be successful the first time. Keep trying.
More fellowship advice is here.
New Guggenheim Fellowship in Constitutional Studies
The John Simon Guggenheim Memorial Foundation has announced a New Fellowship in the field of Constitutional Studies (hat tip: AHA Blog):
The John Simon Guggenheim Memorial Foundation will be offering a new Fellowship in the field of Constitutional Studies as part of our 2008 Fellowship competition. Application deadline for the U.S. and Canadian Fellowship competition is September 15, 2007. The deadline for Latin American and Caribbean Fellowship competition is December 1, 2007. Award will be made in Spring, 2008.This Fellowship has been made possible by the Dorothy Tapper Goldman Foundation.
It appears that the application for this fellowship is the same as the general application for Fellowships to Assist Research and Artistic Creation. Contact the Foundation with any questions. Competition for Guggenheim Fellowships among legal scholars has been keen in the past, with only one awarded to a law professor this year, and two last year. This new fellowship is an obvious draw for legal scholars, and could put a Guggenheim more within reach for some. But political scientists, historians, and others will also compete for these. Tips for law facutly who want to be competetive for major national fellowships like this will follow in a separate post.
The John Simon Guggenheim Memorial Foundation will be offering a new Fellowship in the field of Constitutional Studies as part of our 2008 Fellowship competition. Application deadline for the U.S. and Canadian Fellowship competition is September 15, 2007. The deadline for Latin American and Caribbean Fellowship competition is December 1, 2007. Award will be made in Spring, 2008.This Fellowship has been made possible by the Dorothy Tapper Goldman Foundation.
It appears that the application for this fellowship is the same as the general application for Fellowships to Assist Research and Artistic Creation. Contact the Foundation with any questions. Competition for Guggenheim Fellowships among legal scholars has been keen in the past, with only one awarded to a law professor this year, and two last year. This new fellowship is an obvious draw for legal scholars, and could put a Guggenheim more within reach for some. But political scientists, historians, and others will also compete for these. Tips for law facutly who want to be competetive for major national fellowships like this will follow in a separate post.
Thursday, July 19, 2007
Lash on The Tenth Amendment, Popular Sovereignty, and "Expressly" Delegated Power
Kurt T. Lash, Loyola Law School, Los Angeles, has posted a new paper, The Puzzling Persistence of a Missing Word: The Tenth Amendment, Popular Sovereignty and “Expressly” Delegated Power. Here's the abstract: Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power, “was neither more nor less, than [an] attempt to foist into the text the word 'expressly'. Modern courts often cite to McCulloch's “omitted text” analysis of the Tenth Amendment in support of broad interpretations of federal power. In fact, Marshall's point regarding the significance of the missing word “expressly” is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary. It is puzzling therefore to learn that courts and commentators during the early decades of the Constitution regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase, and numerous other members of the Founding generation insisted that Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing actually reflects the original understanding of the Tenth Amendment. Completely missed by generations of Tenth Amendment scholars, adding the phrase “or to the people” to the Tenth transformed the clause into a declaration of popular sovereignty. This declaration established what the Founders referred to as the principle of “expressly delegated powers,” meaning that Congress could utilize no other means except those necessarily incident to its enumerated responsibilities. Particularly when read in combination with the Ninth Amendment's declaration of the retained rights of the people, these twin assertions of popular sovereignty established a rule of strict construction - the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.
Wednesday, July 18, 2007
Bravo on Exploring the Analogy between Modern Trafficking in Humans and the Trans-Atlantic Slave Trade
Karen E. Bravo, Indiana University, has posted an abstract for a new paper, Exploring the Analogy between Modern Trafficking in Humans and the Trans-Atlantic Slave Trade. The paper is not posted, but the author can be reached through her SSRN page. Here's the abstract: In 2007 the United Kingdom celebrates the 200th anniversary of its abolition of the trans-Atlantic slave trade. In 2008 the U.S. will mark the 200th anniversary of its own prohibition of the trans-Atlantic trade. Yet, according to various sources, 27 million people worldwide are enslaved, and each year thousands of people are trafficked into the U.S. The modern “re-emergence” of trafficking in human beings and of slavery is said to be linked to the deepening interconnection among countries in the global economy, overpopulation (with its consequent production of disposable people), and the economic and other vulnerabilities of the victims. In response to the reported increase, some academics have explored the potential applicability of the Thirteenth Amendment of the U.S. Constitution. Also, a significant number of academics and commentators highlight in their work the evolution of the attempts to deal with the phenomenon of modern trafficking in humans from the international and domestic U.S. reactions to the “white slavery” hysteria of the late nineteenth and early twentieth centuries and the international instruments formulated to combat it. In addition, references and analogies to the trans-Atlantic slave trade are also made in government policy statements, in the literature analyzing the modern phenomenon and in other fora. Commentators analogize to the trans-Atlantic slave trade and slavery in order to emphasize the similarities in the phenomena and to urge that like-minded people rise up to end the appalling practice, much as was eventually done to end the trans-Atlantic trade. The content of the analogies varies with the intent of their users. Either “the old slavery” is compared to “the new slavery” with respect to, for example, the egregiousness of abusive treatment of the enslaved, the level of interconnection of the phenomenon with the global economy, or the race or ethnicity of the victims in order to distinguish the new slavery from the old. Sometimes, the implicit hypothesis is that modern slavery is more widespread and awful, and involves more victims and, by extension, more human degradation than did the trans-Atlantic slave trade. Still others invoke the trans-Atlantic slave trade and slavery to assume a mantle of self-righteousness, and distance themselves, their political and economic system, their state and its efforts, from the repugnant phenomenon. Is the analogy to the trans-Atlantic slave trade and/or slavery relevant? Is it useful? Can it contribute to understanding of the phenomenon of modern trafficking in humans or lead to mechanisms to combat human trafficking in the Twenty-first Century? It is my hypothesis that those who have used the analogy have failed to explore it other than superficially, or to adequately map out the similarities and differences between the two phenomena. As a consequence, the ability to effectively combat the modern traffic in human beings (or indeed, to combat the slavery (or exploitative or forced labor) of the estimated 27 million people who are held in slavery within state borders but not trafficked) has been compromised both internationally and domestically. I argue that the analogy is underutilized as currently used because it does not illuminate the essential similarities or differences in the phenomena. Instead, use of the analogy too often appeals to emotions to serve particular ends of the user. I examine uses of the analogy to the trans-Atlantic slave trade and their impact, and map out the characteristics that both underlie and distinguish the phenomena to determine whether the trans-Atlantic slave trade, more than the “white slavery” of the late nineteenth and early twentieth centuries offers lessons that may be used to combat modern trafficking in humans. The heritage of “white slavery” is more entrenched in the legal frameworks constructed in response to the modern traffic, but the analogy to the trans-Atlantic slave trade adds to a richer understanding of the modern phenomenon and illuminates a potentially more effective path to its eradication. While it is the trans-Atlantic slave trade analogy that is most frequently invoked, it is the mechanisms to combat the later “white slavery” that are the progenitors of the most dominant of the frameworks used to understand and combat the modern traffic. I also expose the inherent contradictions of the competing (and complementary) invocation of analogies to trans-Atlantic slavery and the white slave trade: while the users of the analogy invoke the image of enslaved blacks to inspire the taking of action against the modern trafficking in humans, at the same time the subordination of blacks, blackness and the colored “other” is viewed as more “natural” than the enslavement of whites and whiteness. It is the enslavement of whiteness that, together with the threats to state borders (territory and authority) precipitated a coordinated international campaign against modern traffic in humans. And, ironically, the racism that arose from the phenomenon of the trans-Atlantic slave trade prevents users of the analogy from delving more deeply into the substantive meanings and similarities between the two phenomena. The analogy to the trans-Atlantic slave trade can be relevant if explored more deeply – there are similarities not merely in individual plights but in the deeper structures of the world economic system and the factors that cause and foster the rise in the phenomena. Comparisons of the modern trafficking in humans, white slavery and the trans-Atlantic slave trade reveals the essential nature of the phenomena – at bottom, they all trade in human labor.
Soltan: Universities need "a substantial public online voice"
Margaret Soltan of University Diaries, posts on "The Online Amplification Effect" at the Association of American Colleges and Universities website, arguing that it is in the interest of colleges and universities to engage, not ignore, blogging and the web. She writes, in part:
All of this information-turmoil will yield inaccuracies, to be sure. Things can happen fast, and not everyone understands what's going on. But what the turmoil's mainly doing is making democratic editorial decisions. The turmoil represents a collective consciousness outside the established media, a force that can, if it wishes, move a story up and up in importance, until the amount of online attention and discourse the story attracts becomes the story.
Universities are accustomed to operating with a great deal of secrecy--in tenure decisions most notably, but also in other institutional circumstances. The blatancy of the Web clashes mightily with the reticent ethos of campuses. Thus the disdain many professors express for Rate My Professors and other online student evaluation sources, and their continued indifference or hostility even to high-profile academic blogs of the sort maintained by legal scholar Richard Posner and Nobelist Gary Becker....
Many university administrators and faculty are hardwired to loathe the loose-jointed, populist, ramifying Web, and that is their prerogative. They are free to see its ways as a threat to serious scholarship, professorial autonomy, and so forth. But as the Web displaces physical newspapers and similar media to become the primary point of news access for more and more Americans, universities, with their often antiquated public relations offices and defensive instincts, are making themselves vulnerable to reputational damage.
This is particularly true when big, violent campus stories break, as they recently did at the University of Massachusetts Amherst (student riots) and Duquesne (a homicidal fight involving students and nonstudents). Student bloggers on the scene of these events are often the first to report them, so that when people Googled the names of the school involved, they were are as likely to be linked to these citizen journalists as to larger media outlets....
Universities should have lots of on-campus bloggers--students, faculty, administrators-- actively chronicling the life of the school, so that outsiders already know something of the reality of life there, and so that many voices at the university--official and unofficial--can have an immediate and accessible say in the presentation of its way of being to the world. What's needed is an understanding of the new ways in which events will be transcribed and aired; what's needed is the adoption of a substantial public online voice that can enter the fray with power and clarity.
Soltan's full essay is here. Hat tip: Cliopatria.
All of this information-turmoil will yield inaccuracies, to be sure. Things can happen fast, and not everyone understands what's going on. But what the turmoil's mainly doing is making democratic editorial decisions. The turmoil represents a collective consciousness outside the established media, a force that can, if it wishes, move a story up and up in importance, until the amount of online attention and discourse the story attracts becomes the story.
Universities are accustomed to operating with a great deal of secrecy--in tenure decisions most notably, but also in other institutional circumstances. The blatancy of the Web clashes mightily with the reticent ethos of campuses. Thus the disdain many professors express for Rate My Professors and other online student evaluation sources, and their continued indifference or hostility even to high-profile academic blogs of the sort maintained by legal scholar Richard Posner and Nobelist Gary Becker....
Many university administrators and faculty are hardwired to loathe the loose-jointed, populist, ramifying Web, and that is their prerogative. They are free to see its ways as a threat to serious scholarship, professorial autonomy, and so forth. But as the Web displaces physical newspapers and similar media to become the primary point of news access for more and more Americans, universities, with their often antiquated public relations offices and defensive instincts, are making themselves vulnerable to reputational damage.
This is particularly true when big, violent campus stories break, as they recently did at the University of Massachusetts Amherst (student riots) and Duquesne (a homicidal fight involving students and nonstudents). Student bloggers on the scene of these events are often the first to report them, so that when people Googled the names of the school involved, they were are as likely to be linked to these citizen journalists as to larger media outlets....
Universities should have lots of on-campus bloggers--students, faculty, administrators-- actively chronicling the life of the school, so that outsiders already know something of the reality of life there, and so that many voices at the university--official and unofficial--can have an immediate and accessible say in the presentation of its way of being to the world. What's needed is an understanding of the new ways in which events will be transcribed and aired; what's needed is the adoption of a substantial public online voice that can enter the fray with power and clarity.
Soltan's full essay is here. Hat tip: Cliopatria.
Tuesday, July 17, 2007
Baloch on Law Booksellers and Printers as Agents of Unchange
Tariq A. Baloch, Corpus Christi College, Oxford University, has posted the abstract for a new article, Law Booksellers and Printers as Agents of Unchange. It has just appeared in the Cambridge Law Journal. Here's the abstract:
This is the first in depth article on the impact of the practices of law booksellers and printers (“the booktrade”) on law book publishing in the 18th century. Using book history scholarship and archival evidence, including letters and printing records, it will show how the monopolistic business practices adopted by the booktrade during this century prevented more law books from being published than otherwise would have been. The article will show that it was only when the monopoly practices were successfully challenged in law at the end of the 18th century, that there was an explosion in the publication of law books. Finally, this article will make some observations on the major role this explosion in law books played in the transformation of the common law into the form we recognise today.
This is the first in depth article on the impact of the practices of law booksellers and printers (“the booktrade”) on law book publishing in the 18th century. Using book history scholarship and archival evidence, including letters and printing records, it will show how the monopolistic business practices adopted by the booktrade during this century prevented more law books from being published than otherwise would have been. The article will show that it was only when the monopoly practices were successfully challenged in law at the end of the 18th century, that there was an explosion in the publication of law books. Finally, this article will make some observations on the major role this explosion in law books played in the transformation of the common law into the form we recognise today.
Monday, July 16, 2007
Program on The Steel Seizure Case, July 25 in Washington, D.C.
From the Historical Society of the District of Columbia:
June 2007 marks the 55th anniversary of the Supreme Court's decision in the Steel Seizure Case. On June 2, 1952, the Supreme Court decided in Youngstown Sheet & Tube Co., v. Sawyer, 343 U.S. 579, that President Truman's seizure of most of the nation's steel mills to avert a nation-wide strike of steelworkers and keep the mills operating during the Korean War was an unauthorized, unconstitutional executive action that could not stand. The steel companies presented their claims initially to the U.S. District Court for the District of Columbia which ruled against the Government on all points and issued a preliminary injunction. The Court of Appeals for the District of Columbia Circuit promptly stayed the injunction, deeming it best that the issues raised be decided by the Supreme Court.
In a special program, "The Steel Seizure Case in Historical Perspective: Presidential Power in Wartime," a panel of experts brought together by the Society will analyze the decision and its enduring ramifications. Panelists include:
June 2007 marks the 55th anniversary of the Supreme Court's decision in the Steel Seizure Case. On June 2, 1952, the Supreme Court decided in Youngstown Sheet & Tube Co., v. Sawyer, 343 U.S. 579, that President Truman's seizure of most of the nation's steel mills to avert a nation-wide strike of steelworkers and keep the mills operating during the Korean War was an unauthorized, unconstitutional executive action that could not stand. The steel companies presented their claims initially to the U.S. District Court for the District of Columbia which ruled against the Government on all points and issued a preliminary injunction. The Court of Appeals for the District of Columbia Circuit promptly stayed the injunction, deeming it best that the issues raised be decided by the Supreme Court.
In a special program, "The Steel Seizure Case in Historical Perspective: Presidential Power in Wartime," a panel of experts brought together by the Society will analyze the decision and its enduring ramifications. Panelists include:
- Patricia Bellia, Constitutional Law Professor, Notre Dame Law School;
- John Q. Barrett, Professor, St. John's University School of Law and Biographer of Justice Robert H. Jackson;
- Louis Fisher, Senior Specialist in Separation of Powers with the Congressional Research Service of the Library of Congress and Author of "Presidential War Power;"
- Maeva Marcus, Author of "Truman and the Steel Seizure Case;" and
- Stanley L. Temko, Senior Counsel, Covington & Burling LLP, and Attorney for Petitioner United States Steel Corporation in the Steel Seizure Case.
- Carl Stern, former Legal Affairs Correspondent for NBC-TV, will moderate the discussion.
The program will be held on Wednesday, July 25, 2007, at 4:15 p.m. in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse. A reception will follow the program. Admission is free. No reservations are required. Seating will be available on a first-come-first-served basis
Hawkins on Free Expression's Pivotal Function in the Early Labor Movement
Jim Hawkins, University of Texas, currently a judicial law clerk, has posted an article, Papers, Petitions, and Parades: Free Expression's Pivotal Function in the Early Labor Movement. It appeared recently in the Berkeley Journal of Employment and Labor Law. Here's the abstract: In this manuscript, I describe and analyze the important role free speech played in the early labor movement. Labor scholars widely acknowledge free speech's essential function in the labor movement, so it is not surprising that early labor extensively used expression. It is surprising, however, that this use of expression has gone unnoticed by constitutional historians. First Amendment scholarship has largely neglected the history of free speech before the Civil War, and recent attempts to recapture this history have focused solely on the abolition movement - leaving early labor speech truly forgotten in the history of free speech.
Troeger reviews Kelley on the History of Historiography
The impact of war on the writing of history (or not) and the tendency of historians to forget are major themes in a review by Bertram Troeger, University of Jena, Germany, of Donald R. Kelley, Frontiers of History: Historical Inquiry in the Twentieth Century (Yale University Press, 2006) on H-Ideas. Hap tip to Cliopatria.
With the publication of Frontiers of History, Donald R. Kelley, Professor Emeritus at R
utgers University, has completed his three-volume survey of the history of Western historiography. In the other two works that belong to this tremendous project, Faces of History: Historical Inquiry from Herodotus to Herder (1998) and Fortunes of History: Historical Inquiry from Herder to Huizinga (2003), the author gives an account of the writing of history from antiquity to the early twentieth century. The last volume presents his readers not only with a description of the historiographical tendencies, ideas, methods, and debates that marked the twentieth century, but also with original comments on the most recent trends in historical studies.
Kelley's main focus is on the writings of professional historians in Britain, France, Germany, and the United States, but he occasionally includes other nationalities as well. His definition of the historical field that underlies this work is similarly wide. Given the late twentieth-century discussions on the linguistic turn and the textuality of history, it may not be surprising that he takes in various scholars of literature studies; however, Kelley also includes "prophets of decline"like Oswald Spengler (p. 82), and other writers who are generally located in the field of philosophy of history.
The plot of Kelley's work is as complex as its dramatis personae are numerous, and any short summary of this multifaceted narrative can only give a limited account of its various topics. The "anxieties of modernism"(p. 7) that characterized the years before the Great War form the subject of the author's first foray through the thicket of twentieth-century historiography. As far as the writing of history is concerned, these anxieties were felt particularly in Germany, whereas British historians,despite some adjustments like T. F. Tout's turn towards administrative history, self-confidently adhered to their Victorian historiographical legacy. Kelley's second chapter can serve as an illustration of the wide range of his work. On the one hand, he describes the effects of the Great War on history, and summarizes the battles historians fought over the value of their respective national traditions. On the other hand, he also provides an insight into the transformations of ancient history and the rise of prehistory caused, in particular, by new archaeological discoveries.
It is perhaps surprising for the reader of the next three chapters that the direct effects of the two World Wars on the writing of history were rather limited. Possibly the most immediate impact of the World Wars on historiography was the emigration of scholars to the United States, which strengthened the European influence on U.S. history in the face of occasional "American Exceptionalism" (p. 117). As far as greater reorientations and the establishment of new paradigms are concerned, however, one can gather from Kelley's work that peaceful times seem to have been more fruitful. This applies even to Germany, whose historians remained largely faithful to their historiographical traditions after the first World War, as well as after the second. New views and approaches like those of Ernst Kantorowicz and Eckhart Kehr formed an exception after 1918, and the influence of scholars like Friedrich Meinecke and Gerhard Ritter provided for continuity after 1945. It took another twenty years until a "New German Paradigm" firmly established itself (p. 170), a process that was linked to the names of Werner Conze, Jürgen Kocka, and Hans-Ulrich Wehler. In Britain it was "mostly business as usual after the trauma of the Great War" (p. 100), but the voices of Marxists and social reformers started to make themselves distinctly heard, and heavily source-based approaches, like that of Lewis Namier, were soon to challenge the Whig narrative. All in all, British historiography became increasingly characterized by conflicts between proponents of different ideologies and methodologies. Namier was opposed, in particular, by A. J. P. Taylor. The polarization reached a climax after the Second World War when controversies over ideology and revisionist approaches led to historical "Civil Wars in England" (p. 176), with Christopher Haigh, Geoffrey Elton, Christopher Hill, and Lawrence Stone forming the main combatants.
The impression of French historiography which can be gathered from Kelley's pages is more peaceful, which is, of course, due to the long-term hegemony of the Annales school. As Kelley shows, French historians were among the first to shift the historical focus to economic and social history. When Lucien Febvre and Marc Bloch joined forces in 1929, they started to establish a paradigm whose strong influence was felt "for the rest of the century" (p. 112). According to Kelley, one of the outstanding qualities of the Annales school was its ability to face the challenge of the social sciences without "undermining the autonomy and authority of history" (p. 113). Another strength lay in its integrative breadth, which permitted the retention of economic history, the study of mentalities, and Fernand Braudel's concepts of histoire totale and longue durée under the same roof.
Dealing with these (and many more) topics, Kelley does his best to guide the reader through a jungle of celebrated figures, historical methods, and ideas. Nevertheless, at times the reader is in danger of getting lost,left with the feeling that he has to be another Donald Kelley in order to be able to follow and fully enjoy the author's tightly-woven text. Sheer numbers can illustrate the dilemma: within twenty pages, the reader is introduced, on average, to 80 people and reads about 140 others who have already been mentioned earlier in the book. Certainly this complexity is in the nature of this work, and complaining about it would be like criticizing a bird for having wings. But, it is obvious that, despite Kelley's excellent prose, the book reaches the limits of what can be done in this format....
He goes on to comment on the linguistic turn, and claims that the influence of literary theory on historiography, to a great degree, amounted to an "effort to reduce history to its narrative incarnations"(p. 216). Dealing with Hayden White's influential contribution to the matter, he argues that any interpretation of the works of historians like Jules Michelet or Leopold von Ranke has to take into account their"heuristic practice," something which Hayden White's "neo-scholastic scheme" fails to do (p. 216). But Kelley's most important leitmotif, running through the pages of the whole work and becoming particularly visible towards its end, is his contention that historiography tends to be forgetful of previous methods, approaches, and ideas. "The wheel must always be reinvented, the fire restarted, the book rewritten;... novelties are announced so frequently that one is tempted to take innovationism--the 'fetish of the new'--as a permanent condition of the life of professional historians" (p. 189). In other words, historians prefer to get excited over supposedly new approaches, rather than to look back and discover that they are following trodden paths.
The polemical reaction to the fascinating irony of ascribing amnesia to the historian would be to ask Kelley how he managed to fill three volumes on historical ideas from antiquity to the present when there was really nothing new taking place. But Kelley does not deny that historiography underwent intellectual transformations, paradigmatic changes, and reorientations. What he tries to show is that all these new ideas were rooted in a tradition, something which many self-declared innovators failed to acknowledge. This "curious lack of historical sense" (p. 24) can be found, for instance, in the works of the early twentieth-century French "old guard" (Charles Seignobos and C. V. Langlois); Eileen Power, who was not conscious of the Victorian roots of her attempt to introduce her readers "to the invisible persons of past times" (p. 104); and the American "New History" as proclaimed by James Harvey Robinson in 1912. The full review is here.
With the publication of Frontiers of History, Donald R. Kelley, Professor Emeritus at R
utgers University, has completed his three-volume survey of the history of Western historiography. In the other two works that belong to this tremendous project, Faces of History: Historical Inquiry from Herodotus to Herder (1998) and Fortunes of History: Historical Inquiry from Herder to Huizinga (2003), the author gives an account of the writing of history from antiquity to the early twentieth century. The last volume presents his readers not only with a description of the historiographical tendencies, ideas, methods, and debates that marked the twentieth century, but also with original comments on the most recent trends in historical studies.Kelley's main focus is on the writings of professional historians in Britain, France, Germany, and the United States, but he occasionally includes other nationalities as well. His definition of the historical field that underlies this work is similarly wide. Given the late twentieth-century discussions on the linguistic turn and the textuality of history, it may not be surprising that he takes in various scholars of literature studies; however, Kelley also includes "prophets of decline"like Oswald Spengler (p. 82), and other writers who are generally located in the field of philosophy of history.
The plot of Kelley's work is as complex as its dramatis personae are numerous, and any short summary of this multifaceted narrative can only give a limited account of its various topics. The "anxieties of modernism"(p. 7) that characterized the years before the Great War form the subject of the author's first foray through the thicket of twentieth-century historiography. As far as the writing of history is concerned, these anxieties were felt particularly in Germany, whereas British historians,despite some adjustments like T. F. Tout's turn towards administrative history, self-confidently adhered to their Victorian historiographical legacy. Kelley's second chapter can serve as an illustration of the wide range of his work. On the one hand, he describes the effects of the Great War on history, and summarizes the battles historians fought over the value of their respective national traditions. On the other hand, he also provides an insight into the transformations of ancient history and the rise of prehistory caused, in particular, by new archaeological discoveries.
It is perhaps surprising for the reader of the next three chapters that the direct effects of the two World Wars on the writing of history were rather limited. Possibly the most immediate impact of the World Wars on historiography was the emigration of scholars to the United States, which strengthened the European influence on U.S. history in the face of occasional "American Exceptionalism" (p. 117). As far as greater reorientations and the establishment of new paradigms are concerned, however, one can gather from Kelley's work that peaceful times seem to have been more fruitful. This applies even to Germany, whose historians remained largely faithful to their historiographical traditions after the first World War, as well as after the second. New views and approaches like those of Ernst Kantorowicz and Eckhart Kehr formed an exception after 1918, and the influence of scholars like Friedrich Meinecke and Gerhard Ritter provided for continuity after 1945. It took another twenty years until a "New German Paradigm" firmly established itself (p. 170), a process that was linked to the names of Werner Conze, Jürgen Kocka, and Hans-Ulrich Wehler. In Britain it was "mostly business as usual after the trauma of the Great War" (p. 100), but the voices of Marxists and social reformers started to make themselves distinctly heard, and heavily source-based approaches, like that of Lewis Namier, were soon to challenge the Whig narrative. All in all, British historiography became increasingly characterized by conflicts between proponents of different ideologies and methodologies. Namier was opposed, in particular, by A. J. P. Taylor. The polarization reached a climax after the Second World War when controversies over ideology and revisionist approaches led to historical "Civil Wars in England" (p. 176), with Christopher Haigh, Geoffrey Elton, Christopher Hill, and Lawrence Stone forming the main combatants.
The impression of French historiography which can be gathered from Kelley's pages is more peaceful, which is, of course, due to the long-term hegemony of the Annales school. As Kelley shows, French historians were among the first to shift the historical focus to economic and social history. When Lucien Febvre and Marc Bloch joined forces in 1929, they started to establish a paradigm whose strong influence was felt "for the rest of the century" (p. 112). According to Kelley, one of the outstanding qualities of the Annales school was its ability to face the challenge of the social sciences without "undermining the autonomy and authority of history" (p. 113). Another strength lay in its integrative breadth, which permitted the retention of economic history, the study of mentalities, and Fernand Braudel's concepts of histoire totale and longue durée under the same roof.
Dealing with these (and many more) topics, Kelley does his best to guide the reader through a jungle of celebrated figures, historical methods, and ideas. Nevertheless, at times the reader is in danger of getting lost,left with the feeling that he has to be another Donald Kelley in order to be able to follow and fully enjoy the author's tightly-woven text. Sheer numbers can illustrate the dilemma: within twenty pages, the reader is introduced, on average, to 80 people and reads about 140 others who have already been mentioned earlier in the book. Certainly this complexity is in the nature of this work, and complaining about it would be like criticizing a bird for having wings. But, it is obvious that, despite Kelley's excellent prose, the book reaches the limits of what can be done in this format....
He goes on to comment on the linguistic turn, and claims that the influence of literary theory on historiography, to a great degree, amounted to an "effort to reduce history to its narrative incarnations"(p. 216). Dealing with Hayden White's influential contribution to the matter, he argues that any interpretation of the works of historians like Jules Michelet or Leopold von Ranke has to take into account their"heuristic practice," something which Hayden White's "neo-scholastic scheme" fails to do (p. 216). But Kelley's most important leitmotif, running through the pages of the whole work and becoming particularly visible towards its end, is his contention that historiography tends to be forgetful of previous methods, approaches, and ideas. "The wheel must always be reinvented, the fire restarted, the book rewritten;... novelties are announced so frequently that one is tempted to take innovationism--the 'fetish of the new'--as a permanent condition of the life of professional historians" (p. 189). In other words, historians prefer to get excited over supposedly new approaches, rather than to look back and discover that they are following trodden paths.
The polemical reaction to the fascinating irony of ascribing amnesia to the historian would be to ask Kelley how he managed to fill three volumes on historical ideas from antiquity to the present when there was really nothing new taking place. But Kelley does not deny that historiography underwent intellectual transformations, paradigmatic changes, and reorientations. What he tries to show is that all these new ideas were rooted in a tradition, something which many self-declared innovators failed to acknowledge. This "curious lack of historical sense" (p. 24) can be found, for instance, in the works of the early twentieth-century French "old guard" (Charles Seignobos and C. V. Langlois); Eileen Power, who was not conscious of the Victorian roots of her attempt to introduce her readers "to the invisible persons of past times" (p. 104); and the American "New History" as proclaimed by James Harvey Robinson in 1912. The full review is here.
Saturday, July 14, 2007
Politics in Sunday's WaPo Book Section, with reviewed books on Nixon, Clinton & Cheney
There are reviews of books on three major political figures in this Sunday's Washington Post Book World. The most interesting is the least conventional: THE CONVICTION OF RICHARD NIXON: The Untold Story of the Frost/Nixon Interviews, by James Reston Jr., reviewed by Matthew Dallek. Dallek writes:
In 1976, former President Richard Nixon made an arrangement with the BritishContinue reading this excellent review here.celebrity David Frost: Frost would interview Nixon for more than 20 hours on camera and pay him $1 million. Nixon would make money, possibly build a reputation as a statesman and remind the American people of his presidential achievements. The stakes were just as high for Frost, who wanted to prove himself as a serious interviewer and burnish his celebrity credentials.
James Reston Jr. was teaching creative writing at the University of North Carolina when he was asked to join Frost's team as a Watergate adviser. Reston... viewed Nixon as a contemptible figure who, despite his 1974 resignation, "remained . . . uncontrite and unconvicted."
The Conviction of Richard Nixon is Reston's chronicle of his involvement in Frost's efforts to wrest an apology and an admission of wrongdoing from Nixon on national television. Written in 1977, the book was not published until this year. The unfinished manuscript helped inspire Peter Morgan's award-winning Broadway play, "Frost/Nixon."
Reston's memoir is a compact and gripping behind-the-scenes narrative focused on Frost's struggles to prepare for his encounter with the formidable Nixon. Reston captures Nixon's inner turmoil and myriad moods during the tapings. Nixon wiped his brow, touched his eye, and "his jawline seemed to elongate." He told anecdotes about lessons learned in politics that skated unevenly around Frost's questions. Vindictive and bewildered, angered and bemused, Nixon came across as an angst-ridden ex-president. Reston's portrait of Frost suggests an uninformed show business personality, who Reston initially felt was too lazy to confront a politician of Nixon's caliber.
Reston also conveys his own sense of himself as a partisan eager to impeach the president....
Above all, the book sheds important light on Nixon's failure to rehabilitate his reputation after his 1974 resignation. In the course of his research, Reston discovered undisclosed transcripts of conversations between Nixon and Charles Colson -- one of the Watergate conspirators -- that revealed Nixon's role in the coverup. Frost asked Nixon why he told Colson that "the President's losses got to be cut" and why he ordered his aides to "turn over any cash we got" to buy the Watergate burglars' silence. At another point, Frost tossed his clipboard onto the coffee table and asked whether Nixon was ready to admit his "wrongdoing," acknowledge that "the power of the presidency [had been] abused" and "apologize" to the American people for having dragged them "through two years of agony."
Under this barrage, Nixon finally was forced to admit that he had skirted the law, participated in a coverup, misled the country and "let the American people down." "For all those things" he said he felt "a very deep regret."
Other works reviewed:
For 
a review of CHENEY: The Untold Story of America's Most Powerful And 
Controversial Vice President, by Stephen F. Hayes, the sub-headline is: "A journalist attempts to plumb the depths of our secretive vice president." But the point of Karen DeYoung's review is that the author fails to do just that.
a review of CHENEY: The Untold Story of America's Most Powerful And 
Controversial Vice President, by Stephen F. Hayes, the sub-headline is: "A journalist attempts to plumb the depths of our secretive vice president." But the point of Karen DeYoung's review is that the author fails to do just that.Bryan Burrough finds BILL CLINTON: Mastering the Presidency by Nigel Hamilton, on Clinton's first term, a "minor contribution to the Clinton canon," and unfortunately spends a paragraph of the review sharing his personal Clinton fatigue and reluctance to read the book. So pass on the review to someone else, who might come to the same conclusion in a more worthwhile review.
Weiner, Legacy of Ashes: The History of the CIA, on Book TV this weekend
"Legacy of Ashes: The History of the CIA" by Tim Weiner is featured on After Words, this weekend on C-Span2 Book TV. Tim Weiner is interviewed by David Ignatius.
Saturday, July 14, at 9:00 PM (times Eastern, US)
Sunday, July 15, at 6:00 PM
Sunday, July 15, at 9:00 PM
Saturday, July 14, at 9:00 PM (times Eastern, US)
Sunday, July 15, at 6:00 PM
Sunday, July 15, at 9:00 PM
About the Program
Tim Weiner chronicles the history of the Central Intelligence Agency in his book “Legacy of Ashes: The History of the CIA.” Mr. Weiner’s research included the use of over 50,000 documents and interviews with ten directors of central intelligence. He analyses the inherent difficulties in maintaining classified information in an open democracy and argues that the CIA has consistently struggled in the field of espionage. Tim Weiner discusses his book with Washington Post columnist, David Ignatius.
Tim Weiner chronicles the history of the Central Intelligence Agency in his book “Legacy of Ashes: The History of the CIA.” Mr. Weiner’s research included the use of over 50,000 documents and interviews with ten directors of central intelligence. He analyses the inherent difficulties in maintaining classified information in an open democracy and argues that the CIA has consistently struggled in the field of espionage. Tim Weiner discusses his book with Washington Post columnist, David Ignatius.
About the Author
Tim Weiner
Tim Weiner is a journalist for the New York Times and has reported on the CIA for twenty years. Mr. Weiner received a Pulitzer Prize for his reportage of secret spending by the Pentagon in 1998 while working for the Philadelphia Inquirer. He is the author of "Blank Check: The Pentagon's Black Budget" and co-author of Betrayal: The Story of Aldrich Ames, an American Spy."
David Ignatius
David Ignatius is a columnist for The Washington Post. Mr. Ignatius has been with The Washington Post since 1986 and has served as the foreign editor, editor of the Outlook section, and assistant managing editor of business news. Prior to joining the paper he was a reporter for The Wall Street Journal. Mr. Ignatius is the author of six novels, including his latest book "Body of Lies."
Tim Weiner
Tim Weiner is a journalist for the New York Times and has reported on the CIA for twenty years. Mr. Weiner received a Pulitzer Prize for his reportage of secret spending by the Pentagon in 1998 while working for the Philadelphia Inquirer. He is the author of "Blank Check: The Pentagon's Black Budget" and co-author of Betrayal: The Story of Aldrich Ames, an American Spy."
David Ignatius
David Ignatius is a columnist for The Washington Post. Mr. Ignatius has been with The Washington Post since 1986 and has served as the foreign editor, editor of the Outlook section, and assistant managing editor of business news. Prior to joining the paper he was a reporter for The Wall Street Journal. Mr. Ignatius is the author of six novels, including his latest book "Body of Lies."
Friday, July 13, 2007
Archvists testify on Overclassification to House Intelligence Subcommittee
Congress Asks Archive to Testify About Overclassification of Records
Washington DC, July 12, 2007 - At a hearing of the House Permanent Select Intelligence Committee, Subcommittee on Intelligence Community Management, on classification of national security information and its implications, Archive General Counsel Meredith Fuchs testified today that unnecessary classification poses risks to our security and to the accountability and legitimacy of government agencies.
Referring to the Central Intelligence Agency's recent release of its "family jewels" file in response to an Archive Freedom of Information Act request, Ms. Fuchs noted, "The release helps the American public understand there is a genuine risk in having an unrestrained intelligence agency. It also shows that abuses have occurred and do occur without oversight."
Ms. Fuchs urged the subcommittee to consider measures that would reduce overclassification, including setting up inter-agency and intra-agency processes that would put countervailing pressure on classification of records and encourage declassification efforts. She also recommended changes to the Executive Order 12958, as amended, as well as periodic independent audits of classification decisions, procedures for challenging classification decisions, and adequate, current classification guides that include an explanation of the specific harm or threat that justifies the classification.
Ms. Fuchs stated, "It does not help the system when the classification system and its oversight entity are disregarded and ignored, as in the reclassification of records at the National Archives that was exposed last year or in the conduct of the Vice President's office in refusing to report its classification activities to the Information Security Oversight Office."
Other witnesses included: J. William Leonard, Director of the Information Security Oversight Office; and Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists.
For More Information Contact:
Meredith Fuchs: 202/994-7000
http://www.nsarchive.org/
Hat tip: H-Diplo
Washington DC, July 12, 2007 - At a hearing of the House Permanent Select Intelligence Committee, Subcommittee on Intelligence Community Management, on classification of national security information and its implications, Archive General Counsel Meredith Fuchs testified today that unnecessary classification poses risks to our security and to the accountability and legitimacy of government agencies.
Referring to the Central Intelligence Agency's recent release of its "family jewels" file in response to an Archive Freedom of Information Act request, Ms. Fuchs noted, "The release helps the American public understand there is a genuine risk in having an unrestrained intelligence agency. It also shows that abuses have occurred and do occur without oversight."
Ms. Fuchs urged the subcommittee to consider measures that would reduce overclassification, including setting up inter-agency and intra-agency processes that would put countervailing pressure on classification of records and encourage declassification efforts. She also recommended changes to the Executive Order 12958, as amended, as well as periodic independent audits of classification decisions, procedures for challenging classification decisions, and adequate, current classification guides that include an explanation of the specific harm or threat that justifies the classification.
Ms. Fuchs stated, "It does not help the system when the classification system and its oversight entity are disregarded and ignored, as in the reclassification of records at the National Archives that was exposed last year or in the conduct of the Vice President's office in refusing to report its classification activities to the Information Security Oversight Office."
Other witnesses included: J. William Leonard, Director of the Information Security Oversight Office; and Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists.
For More Information Contact:
Meredith Fuchs: 202/994-7000
http://www.nsarchive.org/
Hat tip: H-Diplo
Teaching Market Advice Round-up
There have been good posts on various blogs recently with advice for those considering going on the law teaching market. Among them:
The Big Rock Candy Mountain: How to Get a Job in Law Teaching
The Big Rock Candy Mountain: How to Get a Job in Law Teaching
Aspiring Law Profs: Listing Teaching Interests
FAR Forms & the Case for Honesty
The Role of ReferencesThe Other Side of Appointments
Teaching Law without a Yale Degree
"How not to 'retire and teach'" And when you get to the place where you have to check "Fox" or "Hedgehog" on the FAR Form, you have to read this. If you see others, please add links in the comments. Good luck to all!
Hiett Prize in the Humanities
The Hiett Prize in the Humanities, given by The Dallas Institute of Humanities and Culture, is an annual award presented to a person whose work in the humanities shows extraordinary promise and has a significant public component related to contemporary culture. Its purpose is to encourage future leaders in the humanities by 1) recognizing their achievement and their potential and 2) assisting their work through a cash award of $50,000.
Candidates must be within the early stages of a career track in which the primary work is in a field centered in or directly related to one or more of the humanities and has a clearly public or practical dimension. Nominations will be accepted from anywhere in the United States. Application deadline is September 15, 2007, see the web site for more information. Hat tip AHA Blog.
Candidates must be within the early stages of a career track in which the primary work is in a field centered in or directly related to one or more of the humanities and has a clearly public or practical dimension. Nominations will be accepted from anywhere in the United States. Application deadline is September 15, 2007, see the web site for more information. Hat tip AHA Blog.
San Quentin Intake Records, 1909-1912
An essay by Bruce McKinney, What Book Collecting Beco
mes, in Americana Exchange, includes a link to San Quentin Prison intake records, 1909-1912, including these.
McKinney describes the database this way:
A set of the intake records for San Quentin Prison in Marin County, California, just across the bay from San Francisco. This is a set of sequentially numbered pages beginning with sheet 1 and continuing to 833 including details about each prisoner. These records, perhaps one of 2 to 4 sets, were prepared for law enforcement and possibly for San Quentin itself. They span the years 1909 into 1912, are mounted three to a page [11 x 14"], were originally bound into books but are now housed sheet by sheet in archival wraps and divided into four cases, each containing more than 100 leaves, mounted on two sides, printed, typed, many noted in hand and almost all with an "intake" photograph [2.75 x 3.25"]. The handwritten notes suggest these records remained within the prison or in the hands of enforcement well into the 1930s.
San Quentin was both a state prison and the local option for many of San Francisco's cases. It was, to quote Sergeant Joe Friday of Dragnet forty years later, "Full of people hard to understand." With this article is a database, created from these records, of all the men and women logged into San Quentin who passed through the San Francisco court system during this four year period. Intake photographs for each prisoner, apparently taken almost immediately after arrival, are affixed to each record. They are the blue links. Comparison of sentence with the appearance of the prisoner is telling.
Thanks to Mike Widener for the tip.
mes, in Americana Exchange, includes a link to San Quentin Prison intake records, 1909-1912, including these.McKinney describes the database this way:
A set of the intake records for San Quentin Prison in Marin County, California, just across the bay from San Francisco. This is a set of sequentially numbered pages beginning with sheet 1 and continuing to 833 including details about each prisoner. These records, perhaps one of 2 to 4 sets, were prepared for law enforcement and possibly for San Quentin itself. They span the years 1909 into 1912, are mounted three to a page [11 x 14"], were originally bound into books but are now housed sheet by sheet in archival wraps and divided into four cases, each containing more than 100 leaves, mounted on two sides, printed, typed, many noted in hand and almost all with an "intake" photograph [2.75 x 3.25"]. The handwritten notes suggest these records remained within the prison or in the hands of enforcement well into the 1930s.
San Quentin was both a state prison and the local option for many of San Francisco's cases. It was, to quote Sergeant Joe Friday of Dragnet forty years later, "Full of people hard to understand." With this article is a database, created from these records, of all the men and women logged into San Quentin who passed through the San Francisco court system during this four year period. Intake photographs for each prisoner, apparently taken almost immediately after arrival, are affixed to each record. They are the blue links. Comparison of sentence with the appearance of the prisoner is telling.
Thanks to Mike Widener for the tip.
Thursday, July 12, 2007
Gibson reviews Marshall, John Locke, Toleration and Early Enlightenment Culture
John Marshall, John Locke, Toleration and Early Enlightenment Culture: Religious Toleration and Arguments for Religious Toleration in Early Modern and Early Enlightenment Europe (Cambridge Studies in Early Modern British History Series)(Cambridge University Press, 2006) is reviewed for H-Albion by William Gibson, Oxford Brookes University. Hat tip to H-Law.
Historians of religious toleration in the early modern period have hitherto been de
pendent on W. K. Jordan's four- volume The Development of Religious Toleration in England (1932-1940) and Peter Zagorin's recent How the Idea of Religious Toleration Came to the West (2003). But Jordan focuses on England, whereas Marshall-- rightly--sees toleration as a European phenomenon; and Zagorin ranges more widely from the sixteenth century to the eighteenth century, while Marshall seeks to pursue a more limited "moment" in the 1680s and 1690s. Certainly the second half of the seventeenth century was a high point of persecution which seems to have given way in a number of countries to toleration. It was also a period in which there were multiple persecutions and tolerations, depending on the moment. In England the Anglican state's persecution of Nonconformity in the Clarendon Code flipped over into the united Protestant resistance to Catholicism under James, followed by the Glorious Revolution and the Toleration Act. Persecutors and advocates of toleration were often one and the same. Charles II, whose tolerant Declaration of Breda raised such hope in 1660, advocated restricting the franchise to Anglicans when he was King, but also issued the short-lived Declaration of Indulgence in 1672, and died a Catholic. Similarly, James II was both an inflexible Catholic, intolerant of other religious views,and the author of the Declarations of Indulgence in 1687 and 1688; and Archbishop William Sancroft, who supported Anglican legislation against Dissent in the 1660s and 1670s, wooed Dissenters in 1688 to prevent the triumph of James II's Catholic policies. However insincerely, all three adopted the logic of toleration to pursue their own ends, suggesting perhaps that they recognized the internal inconsistencies of persecution.
John Marshall's ambitious and wide-ranging book sets itself a challenging task. Firstly, Marshall traces the impact of religious violence and considers representations of intolerance across France,Piedmont, the Netherlands, Ireland, and Britain. Marshall treats this intolerance as a backdrop to Locke's ideas of toleration, which justified resistance to rulers and extended rights to people--but only contingently. Marshall then considers the arguments for toleration, and shows the complexity of the multiple voices, some of which sought to justify intolerance as well as toleration. Above all those who advocated intolerance were preoccupied with heterodoxy and heresy and this impeded the growth of toleration, not just in religious matters but also in sexual mores and attitudes to those of other religions such as Muslim and Jews. By the 1680s and 1690s, however, Marshall claims that a small group of émigrés [sic] in the Netherlands developed ideas of universal religious toleration, the group included Locke and conceived an "early Enlightenment culture" which was complementary to the republic of letters which emerged at the same time. This early Enlightenment culture was in opposition to the Inquisition and drew on Christianity of the first three centuries as a precedent of tolerant Christianity. But there were limits to this early Enlightenment culture of toleration. As the works of Pierre Bayle and Gilbert Burnet show, Protestant tolerance did not comprehend Catholicism, nor did it embrace atheism or sexual libertinism.
This brief summary of Marshall's argument does not capture the detail with which he clothes the discussion.
Continue reading here.
Historians of religious toleration in the early modern period have hitherto been de
pendent on W. K. Jordan's four- volume The Development of Religious Toleration in England (1932-1940) and Peter Zagorin's recent How the Idea of Religious Toleration Came to the West (2003). But Jordan focuses on England, whereas Marshall-- rightly--sees toleration as a European phenomenon; and Zagorin ranges more widely from the sixteenth century to the eighteenth century, while Marshall seeks to pursue a more limited "moment" in the 1680s and 1690s. Certainly the second half of the seventeenth century was a high point of persecution which seems to have given way in a number of countries to toleration. It was also a period in which there were multiple persecutions and tolerations, depending on the moment. In England the Anglican state's persecution of Nonconformity in the Clarendon Code flipped over into the united Protestant resistance to Catholicism under James, followed by the Glorious Revolution and the Toleration Act. Persecutors and advocates of toleration were often one and the same. Charles II, whose tolerant Declaration of Breda raised such hope in 1660, advocated restricting the franchise to Anglicans when he was King, but also issued the short-lived Declaration of Indulgence in 1672, and died a Catholic. Similarly, James II was both an inflexible Catholic, intolerant of other religious views,and the author of the Declarations of Indulgence in 1687 and 1688; and Archbishop William Sancroft, who supported Anglican legislation against Dissent in the 1660s and 1670s, wooed Dissenters in 1688 to prevent the triumph of James II's Catholic policies. However insincerely, all three adopted the logic of toleration to pursue their own ends, suggesting perhaps that they recognized the internal inconsistencies of persecution.John Marshall's ambitious and wide-ranging book sets itself a challenging task. Firstly, Marshall traces the impact of religious violence and considers representations of intolerance across France,Piedmont, the Netherlands, Ireland, and Britain. Marshall treats this intolerance as a backdrop to Locke's ideas of toleration, which justified resistance to rulers and extended rights to people--but only contingently. Marshall then considers the arguments for toleration, and shows the complexity of the multiple voices, some of which sought to justify intolerance as well as toleration. Above all those who advocated intolerance were preoccupied with heterodoxy and heresy and this impeded the growth of toleration, not just in religious matters but also in sexual mores and attitudes to those of other religions such as Muslim and Jews. By the 1680s and 1690s, however, Marshall claims that a small group of émigrés [sic] in the Netherlands developed ideas of universal religious toleration, the group included Locke and conceived an "early Enlightenment culture" which was complementary to the republic of letters which emerged at the same time. This early Enlightenment culture was in opposition to the Inquisition and drew on Christianity of the first three centuries as a precedent of tolerant Christianity. But there were limits to this early Enlightenment culture of toleration. As the works of Pierre Bayle and Gilbert Burnet show, Protestant tolerance did not comprehend Catholicism, nor did it embrace atheism or sexual libertinism.
This brief summary of Marshall's argument does not capture the detail with which he clothes the discussion.
Continue reading here.
Brinks reviews Godoy, Popular Injustice: Violence, Community and Law in Latin America
Angelina Snodgrass Godoy, Popular Injustice:Violence, Community, and Law in Latin America (Stanford University Press, 2006) is reviewed for H-Law by Daniel Brinks, Departmentof Government, University of Texas at Austin. Brinks writes:
In this compelling and disturbing book, Angelina Snodgrass Godoy offers a nuance
d analysis of a phenomenon that strikes at the very heart of democracy: mass popular uprisings which often led to the violent murder of people suspected of usually relatively minor crimes in post-civil war, democratic Guatemala. According to the UN mission to Guatemala, nearly five hundred such events were recorded in Guatemala from 1996 to2002, leading to the death of 235 people. The preferred lynching method in Guatemala is fire,rather than the rope: victims are doused in gasoline and burned alive. Often entire communities participate in elaborate ceremonies of public shaming and abuse before putting the suspected offender to death. The practice is not restricted to Guatemala, but seems especially prevalent there.
The lynchings Godoy describes raise the kind of fears discussed by Fareed Zakaria: fears of what might happen when popular sovereignty turns some measure of authority to "illiberal societies."[1]Godoy's book is richly ethnographic and theoretically informed, presenting in chilling detail and heartbreaking immediacy the depth of inhumanity and the deep normative struggles of participants in these elaborate rituals of death and violence. Moreover, Godoy points out,lynchings are just one of a panoply of hyper-punitive crime control tactics championed by elected politicians and publics across Latin America. The book pointedly raises a question that has considerable currency: what does it take to establish a rights-observing democracy in societies stripped of their social capital by the physical violence of internal war and brutal atrocities, and by the structural violence of a modernity that promises but does not deliver a dignified existence?
The facile analysis from outside Latin America is that these are backward societies, simply unprepared for democracy, and that popular sovereignty in such a society is something to be feared rather than welcomed. The equally facile analysis from inside Latin America is that these societies are merely responding to the failure of the state to impose order, by availing themselves of self-help mechanisms. Godoy goes a step further, arguing that these lynchings are expressive acts undertaken by communities battered by modernity. In her view, lynchings are attempts to send the state a message and simultaneously re-establish agency. They take place in communities thrown into a near perpetual state of fear and stripped of long term social cohesion by violence and neoliberal globalization. In her vision, these are not so much democracies to be feared, as democracies soaked in fear.
There is a recent quantitative analysis of this same phenomenon, which merits reading together with Godoy's. Carlos Mendoza, in a slim volume entitled Absence of the State and Collective Violence in Mayan Lands (2007), makes an important observation. The presence of collective violence in a municipality, he notes,is associated (positively and significantly) with the presence of a majority indigenous population.Mendoza argues, rightly, that these are collective acts, and therefore that the communities that engage in them must retain the capacity for collective action. Indeed, he theorizes that it is precisely the higher capacity for collective action of indigenous societies that enables violent collective responses, in the absence of state-backed order.He points out, for example, that non-indigenous communities have fewer (collective) lynchings,but vastly more (individual) homicides--indeed,the homicide rate in indigenous municipalities in Guatemala is lower than that in the United States. He argues, therefore, that it is not anomie and the lack of cohesion that produce mass violence, but their opposites; and that their counterpart in non-indigenous communities is not resort to the criminal justice system, but murder pure and simple. For Mendoza lynchings are also expressive acts, but he sees them as a message to potential transgressors, rather than the state:behave or you will be burned alive.
But Godoy also notices something important, which is missing from the quantitative analysis. Much of the collective violence against individual transgressors is accompanied by violence against whatever state presence does exist. Thus lynchings are accompanied by the destruction of municipal property, attacks on police or judicial officers, and so on. The justifications offered by community members tend in the same direction.The point seems to be not so much that the state is absent but that the state is against the local community; that the state is as much a problem asthe individuals being punished. Even worse, the point seems to be that it is the "liberal constitutional" part of "liberal constitutional democracy" that is the problem.
To continue reading this interesting review, click here.
In this compelling and disturbing book, Angelina Snodgrass Godoy offers a nuance
d analysis of a phenomenon that strikes at the very heart of democracy: mass popular uprisings which often led to the violent murder of people suspected of usually relatively minor crimes in post-civil war, democratic Guatemala. According to the UN mission to Guatemala, nearly five hundred such events were recorded in Guatemala from 1996 to2002, leading to the death of 235 people. The preferred lynching method in Guatemala is fire,rather than the rope: victims are doused in gasoline and burned alive. Often entire communities participate in elaborate ceremonies of public shaming and abuse before putting the suspected offender to death. The practice is not restricted to Guatemala, but seems especially prevalent there.The lynchings Godoy describes raise the kind of fears discussed by Fareed Zakaria: fears of what might happen when popular sovereignty turns some measure of authority to "illiberal societies."[1]Godoy's book is richly ethnographic and theoretically informed, presenting in chilling detail and heartbreaking immediacy the depth of inhumanity and the deep normative struggles of participants in these elaborate rituals of death and violence. Moreover, Godoy points out,lynchings are just one of a panoply of hyper-punitive crime control tactics championed by elected politicians and publics across Latin America. The book pointedly raises a question that has considerable currency: what does it take to establish a rights-observing democracy in societies stripped of their social capital by the physical violence of internal war and brutal atrocities, and by the structural violence of a modernity that promises but does not deliver a dignified existence?
The facile analysis from outside Latin America is that these are backward societies, simply unprepared for democracy, and that popular sovereignty in such a society is something to be feared rather than welcomed. The equally facile analysis from inside Latin America is that these societies are merely responding to the failure of the state to impose order, by availing themselves of self-help mechanisms. Godoy goes a step further, arguing that these lynchings are expressive acts undertaken by communities battered by modernity. In her view, lynchings are attempts to send the state a message and simultaneously re-establish agency. They take place in communities thrown into a near perpetual state of fear and stripped of long term social cohesion by violence and neoliberal globalization. In her vision, these are not so much democracies to be feared, as democracies soaked in fear.
There is a recent quantitative analysis of this same phenomenon, which merits reading together with Godoy's. Carlos Mendoza, in a slim volume entitled Absence of the State and Collective Violence in Mayan Lands (2007), makes an important observation. The presence of collective violence in a municipality, he notes,is associated (positively and significantly) with the presence of a majority indigenous population.Mendoza argues, rightly, that these are collective acts, and therefore that the communities that engage in them must retain the capacity for collective action. Indeed, he theorizes that it is precisely the higher capacity for collective action of indigenous societies that enables violent collective responses, in the absence of state-backed order.He points out, for example, that non-indigenous communities have fewer (collective) lynchings,but vastly more (individual) homicides--indeed,the homicide rate in indigenous municipalities in Guatemala is lower than that in the United States. He argues, therefore, that it is not anomie and the lack of cohesion that produce mass violence, but their opposites; and that their counterpart in non-indigenous communities is not resort to the criminal justice system, but murder pure and simple. For Mendoza lynchings are also expressive acts, but he sees them as a message to potential transgressors, rather than the state:behave or you will be burned alive.
But Godoy also notices something important, which is missing from the quantitative analysis. Much of the collective violence against individual transgressors is accompanied by violence against whatever state presence does exist. Thus lynchings are accompanied by the destruction of municipal property, attacks on police or judicial officers, and so on. The justifications offered by community members tend in the same direction.The point seems to be not so much that the state is absent but that the state is against the local community; that the state is as much a problem asthe individuals being punished. Even worse, the point seems to be that it is the "liberal constitutional" part of "liberal constitutional democracy" that is the problem.
To continue reading this interesting review, click here.
New Nixon Tapes
From today's New York Times: The National Archives made available on Wednesday more than 11 hours of tape recordings that show President Richard M. Nixon maneuvering in 1972 to remake the Republican Party in his image, crush South Vietnamese opposition to his efforts to end the Vietnam War and dole out patronage to ethnic groups based on how much they supported his re-election....
The most dramatic and revelatory tape recordings involving abuses of government power were disclosed in 1996 and included Nixon’s conversations as recorded by a hidden taping system as the Watergate scandal enveloped and eventually forced him from office.
The newly released recordings provide a fresh glimpse of the political Nixon, especially in the heady moments of his 1972 landslide re-election victory over his Democratic opponent, Senator George McGovern, as the Watergate clouds were just beginning to form.
The documents span a wider period and include a memorandum that may intrigue students of Nixon’s character. In the document, written in December 1970 to H. R. Haldeman, a top aide, Nixon expresses both anger and pain that his aides have not been able to establish an image of him as a warm and caring person. He makes several suggestions about how this could be accomplished, warning frequently in the single-spaced 11-page document that it must appear that the examples of his warmth were discovered by others and not promoted by White House aides. For the rest, and links to tapes, click here.
The most dramatic and revelatory tape recordings involving abuses of government power were disclosed in 1996 and included Nixon’s conversations as recorded by a hidden taping system as the Watergate scandal enveloped and eventually forced him from office.
The newly released recordings provide a fresh glimpse of the political Nixon, especially in the heady moments of his 1972 landslide re-election victory over his Democratic opponent, Senator George McGovern, as the Watergate clouds were just beginning to form.
The documents span a wider period and include a memorandum that may intrigue students of Nixon’s character. In the document, written in December 1970 to H. R. Haldeman, a top aide, Nixon expresses both anger and pain that his aides have not been able to establish an image of him as a warm and caring person. He makes several suggestions about how this could be accomplished, warning frequently in the single-spaced 11-page document that it must appear that the examples of his warmth were discovered by others and not promoted by White House aides. For the rest, and links to tapes, click here.
Gozzi on the History of International Law and Western Civilization
Gustavo Gozzi, University of Bologna - Department of Politics, Institutions, History, has posted a new paper, History of International Law and Western Civilization. Here's the abstract:
This paper discusses the origins 19th-century international law through the works of such scholars as Bluntschli, Lorimer, and Westlake, and then traces out its development into the 20th century. Nineteenth-century international law was forged entirely in Europe: it was the expression of a shared European consciousness and culture, and was geographically located within the community of European peoples, which meant a community of Christian, and hence “civilized,” peoples.
Despite this proclaimed superiority of European international law, and its underlying system of national sovereignties, it was recognized that “noncivilized” native peoples should be treated “humanely” as subjects entitled to the rights of man. This attitude strikes us as paternalistic today, considering that well into the second half of the 19th century the European system of laws was only one among a plurality of such systems across the world, prominent among which were the Sino-centric system in East Asia and the Islamo-centric system of the “Siyar.”
It was only toward the end of the 19th century that an international law emerged as the expression of an international “global society,” when the Ottoman Empire, China, and Japan found themselves forced to enter the regional international society revolving around Europe. Still, these nations stood on an unequal footing, forming a system based on colonial relations of domination.
This changed in the post–World War II period, when a larger community of nations developed that was not based on European dominance: it was now the consent of these nations that accounted for the existence of international law, which was being applied, or at least invoked, to assert various differences among them. This led to the extended world society we have today, made up of political systems profoundly different from one another because based on culture-specific concepts. So in order for a system to qualify as universal, it must now draw not only on Western but also on non-Western forms, legacies, and concepts. There are two areas of law that can illustrate how different civilizations might find such common ground, these being international private law and the international law of human rights. The paper's focus is on the latter issue of human rights, which are accordingly discussed on the basis of an “intercivilizational” approach.
This paper discusses the origins 19th-century international law through the works of such scholars as Bluntschli, Lorimer, and Westlake, and then traces out its development into the 20th century. Nineteenth-century international law was forged entirely in Europe: it was the expression of a shared European consciousness and culture, and was geographically located within the community of European peoples, which meant a community of Christian, and hence “civilized,” peoples.
Despite this proclaimed superiority of European international law, and its underlying system of national sovereignties, it was recognized that “noncivilized” native peoples should be treated “humanely” as subjects entitled to the rights of man. This attitude strikes us as paternalistic today, considering that well into the second half of the 19th century the European system of laws was only one among a plurality of such systems across the world, prominent among which were the Sino-centric system in East Asia and the Islamo-centric system of the “Siyar.”
It was only toward the end of the 19th century that an international law emerged as the expression of an international “global society,” when the Ottoman Empire, China, and Japan found themselves forced to enter the regional international society revolving around Europe. Still, these nations stood on an unequal footing, forming a system based on colonial relations of domination.
This changed in the post–World War II period, when a larger community of nations developed that was not based on European dominance: it was now the consent of these nations that accounted for the existence of international law, which was being applied, or at least invoked, to assert various differences among them. This led to the extended world society we have today, made up of political systems profoundly different from one another because based on culture-specific concepts. So in order for a system to qualify as universal, it must now draw not only on Western but also on non-Western forms, legacies, and concepts. There are two areas of law that can illustrate how different civilizations might find such common ground, these being international private law and the international law of human rights. The paper's focus is on the latter issue of human rights, which are accordingly discussed on the basis of an “intercivilizational” approach.
Wednesday, July 11, 2007
Leiter on Simpson, The Common Law and Legal Theory, in new Legal Philosophy Blog
Brian Leiter takes on A.W.B. Simpson's 1973 essay, The Common Law and Legal Theory, in a post on his new Legal Philosophy Blog, just launched.
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