Sunday, September 30, 2007
ASLH alert: conference hotel full -- back-up available
Sharra reviews Englund, Prisoners of Freedom: Human Rights and the African Poor
Despite the presence of a number of studies that examine the impact of NGOs since the 1994 advent of multiparty democracy in Malawi, few, if any, of them do what Harri Englund does in this book. Malawi's 1994 transition from the thirty-year one-party dictatorship, under Dr. Hastings Kamuzu Banda, to multiparty democracy has been the subject of numerous studies both inside Malawi and outside. Change in Malawi was long coming, taking the form of movements and political parties largely outside Malawi. But it was 1992 that saw the first real bold move to criticize openly the government, through a lentern pastoral letter written by the country's seven Catholic bishops. The several studies that have examined the transition period and the democratic process since then have been in fields such as theology, cultural and literary studies, politics, and education. There have also been studies on the issue of language and how the insistence on English as the official language of government, politics, business, and education keeps the majority of Malawians, who do not use English in their day-to-day lives, out of the democratic process.
Saturday, September 29, 2007
Miller on the legal history of a streetcorner in Meinhard v. Salmon
Using the Meinhard case as a lens, the paper explores New York's changing ethnic, social, and economic environment - the rise and fall of industries, the booms and busts of business conditions, the dispersal and commercialization of landed estates, the influence of immigrants, the role of yachting, horse racing, art collecting and charitable work in establishing social standing, and the importance of family and heritage in the development of New York City during the late Nineteenth and early Twentieth Centuries.
Myanmar/Burma history links
Messer reviews Griffin, American Leviathan: Empire, Nation, and Revolutionary Frontier
Griffin's book speaks to several historiographies: the role of "the people" in the American Revolution, the racialized foundations of national identity, the role of the frontier in American history, and the transatlantic dimensions of the Revolution. The recent publication of Gary Nash's The Unknown Revolution (2005) makes Griffin's contribution to the first of these discussions particularly timely. Griffin wants to complicate what he sees as an overly simplistic view of the role of the people in the Revolution that tends to either subsume them within an elite-driven ideological consensus, or celebrate them as forgotten founders betrayed by conspiratorial elites. Griffin acknowledges that elites and non-elites on the frontier came to share important assumptions about politics and government as a result of the Revolution, but rejects the standard ideological emphasis on the role of republican or liberal theorists in this process. Instead, he argues that the consensus that emerged on the frontier rested on shared interests in physical safety, economic opportunity, and racial solidarity. The resulting state more closely resembled Hobbes's pragmatic concerns with order and security, than either the Commonwealth men's idealist republic or John Locke's optimistic liberalism.
Griffin's interpretation of the creation of this consensus shares with Nash the argument that the attitudes and needs of the common people were the driving forces in the Revolution and the political settlement it produced. Griffin stresses that the struggle to achieve physical and economic security on the frontier politicized common settlers and gave them an acute sense of their interests in relation to both the contending governments and local elites. He departs from what he sees as the standard narrative of a people's revolution, however, when discussing the reestablishment of elite rule in the West in the 1790s. Griffin contends that this development reflected the knowing compromises entered into by the common settlers with the elite in which the former willingly sacrificed some of their interests in order to achieve physical and economic security. Non-elite settlers, for example, agreed that land in the West would be surveyed and sold at auction, effectively denying the right of squatters to claim land they had occupied and improved. This decision, Griffin suggests, was the price that the settlers willingly paid in order to receive the protection and economic opportunity provided by the state and the presence of the elites. Thus, the relatively conservative tone of Revolutionary settlement in the American West reflected the desires of politically and economically savvy settlers, and not the machinations of a conspiratorial elite.
Griffin's work also speaks to the long-standing debate about the significance of the frontier in American history, turning Frederick Jackson Turner's frontier thesis on its head. Like Turner, Griffin sees the West as the place where we can best see and understand the development of the qualities and traits that defined the development of the United States as a culture and an empire. Unlike Turner, he sees the West illustrating a darker side of American identity and philosophies of empire. If the process of settling the West democratized politics, encouraged individual freedom, and promoted the market economy it did so hand in hand with the spread of racism and the violent displacement of native peoples. The national myth that comes out of Griffin's study of the West is, as he suggests,more complicated and troubling than Turner's or even Nash's, but is,consequently, more useful to students of American history at all levels of expertise.
Finally, Griffin reminds readers of the possibilities and limits of a transatlantic view of the American Revolution.
Friday, September 28, 2007
Ontiveros on Noncitizen Immigrant Labor and the Thirteenth Amendment: Challenging Guest Worker Programs
Historians Weigh in on "The War"
Most comments are critical, leading Raymond Frey to complain, "I can't believe this. Ken Burns brings the war alive for a generation of Americans who badly need to know what happened back then, and all the commenters can do is moan, nitpick, and criticize. No good deed goes unpunished in the history community." Tom Clark is a critic, but says "hope springs eternal, so I'll watch the rest nonetheless."
I will have to opine later -- my copy is waiting patiently on Tivo.
Tsuk Mitchell, From Pluralism to Individualism: Berle and Means and 20th-Century American Legal Thought
Thursday, September 27, 2007
D.C. Area Legal History Roundtable: Judges and Judging
Columbus School of Law
Fall 2007 D.C. Area Legal History Roundtable:
Judges and Judging
Friday, November 2, 2007
Noon – 4:00pm
The D.C. Area Legal History Roundtable is an informal gathering of Washington, D.C. law professionals and historians. Following a several-year hiatus the George Washington University Law School organized and hosted a session on the History of the Legal Profession in the fall of 2006, and in the spring of 2007 American University’s Washington College of Law hosted a session on Slavery. This Fall’s program is the third in the current roundtable series.
The Schedule is as follows:
11:45am – 1:30pm Buffet Lunch available
12:10 – 1:20pm
The Last Word: Late-Breaking Opinions & Second Thoughts on the Supreme Court
(part of a larger work on self-regulation by the Court)
Presenter: Ross Davies, George Mason University School of Law
Stephen Wermiel, American University, Washington College of Law
Elizabeth Engdahl, Legal Times
Moderator: Stephen Goldman, The Catholic University of America, Columbus School of Law
1:20 – 1:30pm Break
1:30 – 2:40pm
Judicial Compensation: Contemporary and Historical Perspectives
Presenter: Susanna Fischer, The Catholic University of America, Columbus School of Law
Renee Lerner Lettow, George Washington University
Mary Lee Clark, American University, Washington College of Law
Moderator: James Oldham, Georgetown University Law Center
2:40 - 2:50 Break (Light refreshments available)
2:40 – 3:40 p.m.
Judges and Notaries
(chapter from a forthcoming book by James A. Brundage.)
Kenneth Pennington, The Catholic University of America, Columbus School of Law
Daniel Ernst, Georgetown University Law School
Moderator: Caroline Sherman, The Catholic University of America, College of Arts and Sciences
3:40 – 4:00pm Wrap Up
Planning Meeting for the next D.C. Area Legal History Roundtable session
R.s.v.p. RobbK@law.edu or (202)319-6126
For more information please contact Professor Sarah Duggin, email@example.com, 202-319-6073.
VanderVelde on The Thirteenth Amendment of Our Aspirations
Prempeh on The Puzzling Persistence of Imperial Presidency in Post-Authoritarian Africa
Wednesday, September 26, 2007
Commentary on Myanmar
And from a reader, there is information at The Buddhist Peace Fellowship. Click on action alerts.
Update: Ralph Luker has a roundup of sources, including a link to TimesOnLine's links to Burmese bloggers.
[Technical note: The TimesOnLine link is not working for me right now. Could be my connection, so I am providing anyway. I will not be able to update/correct for some time. Sorry for the inconvenience. If you find a better link, and can paste it into a comment, other readers will appreciate that.]
Woodrow Wilson Dissertation Fellowships
The Woodrow Wilson Dissertation Fellowship in Women’s Studies encourages original and significant research about women that crosses disciplinary, regional, or cultural boundaries. Previous Fellows have explored such topics as transnational religious education for Muslim women, the complex gender dynamics of voluntary marriage migration, women’s role in African-American adult literacy, women’s sports, militarism and the education of American women, and the relationship between family commitments and women’s work mobility.
Deadline: October 9, 2007. Fellows receive $3,000 to be used for expenses connected with the dissertation. More information and application instructions are here.
The Charlotte W. Newcombe Doctoral Dissertation Fellowships are designed to encourage significant study of ethical or religious values in all fields of the humanities and social sciences, and particularly to help Ph.D. candidates in these fields complete their dissertation work in a timely manner. In addition to topics in religious studies or in ethics (philosophical or religious), dissertations appropriate to the Newcombe Fellowship competition might explore the ethical implications of foreign policy, the values influencing political decisions, the moral codes of other cultures, and religious or ethical issues reflected in history or literature.
Deadline: November 5, 2007. 28 Fellows will receive $23,000 for 12 months of full-time dissertation writing; in addition, their graduate schools will be asked to waive tuition and/or remit some portion of their fees. More information and application instructions are here.
A number of legal historians have written their dissertations with the assistance of a Newcombe (including me -- before my work took a more serious Cold War turn, and I was exploring the way Topeka, Kansas came to terms with its role in Brown v. Bd of Ed). This is a great source for legal history work that engages ethics, values and religion. Be sure to address the way your dissertation addresses these issues in your application.
Fletcher, On Black Freedmen and Indian Children
Tuesday, September 25, 2007
Stinneford on The Original Meaning of "Unusual": The 8th Amendment as a Bar to Cruel Innovation
Taking Legal History Courses Won't Impair Bar Exam Results
Douglas Rush, a former lawyer and assistant dean at the St. Louis University Law School (he’s currently working toward a Ph.D. in higher education), has been gathering research on this question. He and his co-author, St. Louis Univ. research methodology associate professor Hisako Matsuo, have written the paper “Does Law
School Curriculum Affect Bar Examination Passage?” scheduled for publication in the upcoming Journal of Legal Education. In it, Rush writes:
The “conventional wisdom” among law school faculties and deans is that law students, especially law students who academically rank low in their class, should take as many of the courses whose subject matter is tested on state bar exams (i.e. contracts, torts, property, etc.) as possible in order to improve their chance of passing state bar exams…. Many law schools mandate that low-ranked law students take these courses in their second and third years of law school in the belief that doing so increases the ability of those students to pass state bar examinations.
To test this theory, Rush and Matsuo documented every student’s courseload for five different graduating classes at the St. Louis Law School, analyzing the number of bar topic courses taken against bar passage rates the first time the students sat for the exam. Their results were unequivocal: no relationship existed between law school courseloads and the passage rate of students ranked in the first, second or fourth quarters of their law school class, while only a weak relationship existed for students who ranked in the third quarter. Overall, Rush writes, “students in the upper two quartiles passed the exam at an extremely high rate and those in the fourth quartile failed at a high rate, regardless of which classes they took in law school.” The researchers repeated the test in 2007 using data from the Hofstra University School of Law, with identical results (which do not appear in the study).
I have often heard struggling students, steered into bar courses, complain that they are blocked from taking the courses that drew them to law school in the first place. Perhaps law schools need to tailor their academic advising for at-risk students. Immigration law, poverty law or civil rights law may not be on the bar, but they may engage more intensely a student who wants to enter the legal profession to work in those areas. What about so-called "enrichment" courses like legal history? Especially if a student takes seminars where they are more likely to engage in class discussion, or takes courses with faculty-supervised writing requirements, these courses have something to offer our at-risk students.
Law schools should do what they can to improve bar results. If the focus is on skills (including critical thinking and writing), rather than bar subjects, many law schools should welcome at-risk students back into the law & humanities curriculum.
One historian, no legal scholars, among this year's MacArthur Awards
Monday, September 24, 2007
Bradley on The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization
Bales on Explaining the Spread of At-Will Employment
Stout on Why We Should Stop Teaching Dodge v. Ford (1919)
Sunday, September 23, 2007
Reviewed: Collin, The Time of the Rebels (on the Serbian youth uprising since 1998)
At dawn on October 5 2000, thousands of young Serbs descended on Belgrade, the capital of Slobodan Milosevic's regime. Some had armed themselves with petrol bombs and clubs, others were intent on less violent forms of protest: when one group met a roadblock on the edge of the city, they simply lifted the policemen - who had disobeyed their orders to fire on the protesters - and dumped them by the side of the road.
The vanguard in this extraordinary display of people power - as thousands upon thousands of Serbs took to the streets of Belgrade - were members of a youth movement called Otpor ("resistance"). Originating in 1998 - the year that Milosevic had tightened the regime's control over the universities - this loose, shadowy group had avoided conventional politics in favour of snappy sloganeering, absurdist gestures (derived from Monty Python) and outright mockery.
Inspired by western youth culture and revolutionary theorists such as Gene Sharp - whose book From Dictatorship To Democracy lists 198 peaceful ways to resist and undermine dictatorships - Otpor aimed at nothing less than "a revolution in the mind". The sense of possibility that they sought to awaken both harked back to 1968 - "the year of the barricades" in Paris, Warsaw, Prague and Belgrade - and projected forward into the 21st century.
Despite its bare bones production - no map, no index, no photos - The Time of the Rebels is a serious work that is an important addition to youth literature....It also suggests a whole new field for youth historians - there is still no survey in English of post-revolutionary Soviet youth movements and culture.
Reviewed: Ulrich, Well-Behaved Women Seldom Make History
Ulrich was one of those pioneers. Many more followed in their wake. History departments changed, course curricula expanded, and the study of history itself altered forever. Yet, based on the bestseller lists, one might think history was simply a series of battles and be unaware that something else was afoot in universities across the country. Then came "A Midwife's Tale." With this beautifully written excavation of a decidedly average woman's daily life in Colonial America, Ulrich produced not only a Pulitzer and Bancroft Prize-winning volume, but also a bestseller that enchanted a popular audience thrilled to read about women's lives in the distant American past.
Her new book, "Well-Behaved Women Seldom Make History," carries a familiar title. You've probably seen it on T-shirts, bumper stickers, and coffee mugs. In the 1990s, it became a feminist slogan, used to exhort women to be . . . well, less polite. But it was Ulrich who actually wrote that phrase in a 1976 essay, and her meaning was somewhat different. She wasn't urging women to take to the streets; instead she was calling on herself - and other historians - to look more closely at those women who did not. Yet the phrase took on a life of its own, one Ulrich bemusedly documents in the opening chapter of this engaging exploration into the implications of her now-famous remark.
Saturday, September 22, 2007
Reviewed: Ken Burns' "The War"
But it would be hard to glean that from Ken Burns’s 7-night, 15-hour tribute to the greatest generation that ever bought war bonds, joined the Marines or tightened rivets on a B-17 Flying Fortress.
The London blitz, Stalingrad, Bergen-Belsen and the Warsaw uprising are parentheses in this respectful, moving and meticulously illustrated anthology of small-town lives turned upside down by what one elderly veteran calls “a necessary war.”
The war was necessary, but is this approach?
The tone and look of Mr. Burns’s series, which begins Sunday on PBS, is as elegiac and compelling as any of his previous works, but particularly now, as the conflict in Iraq unravels, this degree of insularity — at such length and detail — is disconcerting. Many a “Frontline” documentary has made a convincing case that the Bush administration’s mistakes were compounded by the blinkered thinking of leaders who rushed to war without sufficient support around the world or understanding of the religious and sectarian strains on the ground. Examining a global war from the perspective of only one belligerent is rarely a good idea.
Update: Ralph Luker collects more reviews at Cliopatria. The accompanying book, The War: An Intimate History, 1941-1945, by Geoffrey C. Ward and Ken Burns (Knopf), is reviewed in the Philadelphia Inquirer.
Corbacho on Prenegotiation and Mediation: The Ango-Argentine Diplomacy After the Falklands/Malvinas War
More fall books: NY Sun & Chicago Trib
Noted previously: recommendations from the Boston Globe, Washington Post and the San Francisco Chronicle.
Princeton Library Research Grants
These Library Research Grants, which have a value of up to $2,500 each, are meant to help defray expenses incurred in traveling to and residing in Princeton during the tenure of the grant. The length of the grant will depend on the applicant?s research proposal, but is ordinarily one month. Library Research Grants awarded in this academic year are tenable from May 2008 to April 2009, and the deadline for applications is 15 January 2008.
Details are here.
Reid on the Rights of Children in Medieval Canon Law
Friday, September 21, 2007
Steinberg on The Uses and Misuses of Fourth Amendment History
Modern Fourth Amendment decisions have resulted in a doctrine that often seems arbitrary and incoherent. Given the unsatisfactory quality of Fourth Amendment doctrine, attorneys and scholars have demonstrated a renewed interest in the original understanding and historical origins of the Fourth Amendment. This article describes common misconceptions about Fourth Amendment history, and concludes that the framers enacted the Fourth Amendment solely to regulate house searches.
Mainstream analysis asserts that the framers of the Fourth Amendment intended to impose both a warrant preference rule, and a general reasonableness requirement on all searches and seizures. However, state and federal law in early America authorized warrantless searches in the vast majority of situations. Further, historical evidence strongly suggests that the Fourth Amendment did not intend to adopt any general reasonableness requirement. For example, in early ship seizure cases that came both the United States Supreme Court, neither the attorneys nor the Justices even mentioned the Fourth Amendment.
Professor Akhil Amar has developed one of the primary alternative readings of Fourth Amendment history. According to Professor Amar, the framers of the Fourth Amendment viewed warrants as dangerous, and enacted the Fourth Amendment to limit the use of warrants.
Contrary to Professor Amar's interpretation, historical evidence indicates that the framers only sought to prohibit general warrants – warrants issued with little evidentiary support, which did not restrict the places that law enforcement officers could search. The historical record does not suggest that the framers sought to impose similar limits on specific warrants. In fact, several early federal and state statutes actually required specific warrants. These statutes contradict Professor Amar's claim that the framers sought to limit the use of all warrants -- both general warrants and specific warrants.
Other scholars argue that courts should not consider Fourth Amendment history, either because the original understanding of the amendment is impossible to determine, or because changed circumstances make this history of little relevance to current controversies. However, scholars have not demonstrated that the original understanding of the Fourth Amendment is shrouded in uncertainty. In addition, scholars have offered few coherent analytical alternatives that could replace historical analysis.
Actually, an objective review of historical sources yields an original understanding of the Fourth Amendment that is both surprisingly clear, and surprisingly different from most contemporary readings. Historical sources demonstrate that the framers were focused on a single, narrow problem -- physical trespasses into houses by government agents. In his influential argument in Paxton's case, attorney James Otis complained in 1761 that British custom officials armed with a general warrant “may enter our houses when they please -- may break locks, bars and every thing in their way -- and whether they break through malice or revenge, no man, no court, can inquire . . . .” Otis's clients were merchants who owned ships, warehouses, and shops. But Otis did not challenge searches of ships or commercial premises – only searches of houses. Similarly, in a 1774 address to the American people, the Continental Congress protested against the power of British customs officers “to break open and enter houses without the authority of any civil magistrate founded on legal information.”
The Fourth Amendment was enacted to regulate house searches through a precise, bright-line rule. Before entering a house, law enforcement officers typically would need to obtain a specific warrant. But what about searches or seizures that did not involve a physical trespass into a house? Outside of house searches, the Fourth Amendment was simply inapplicable.
Lacey, From Moll Flanders to Tess of the D'Urberviles: Women, Automony and Criminal Responsibility in Eighteenth and Nineteenth Century England
In the early 18th Century, Daniel Defoe found it natural to write a novel whose heroine was a sexually adventurous, socially marginal property offender. Only half a century later, this would have been next to unthinkable. In this paper, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender and social order in 18th and 19th Century England. Drawing on law, literature, philosophy and social history, I argue that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalisation of women. I focus in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about gender, social order and individual agency.
Thursday, September 20, 2007
Douglas on Justice Kriewaldt, Aboriginal Identity and the Criminal Law (in Austrialia)
Radan on The Legacy of the Scopes Trial
Wednesday, September 19, 2007
Amalia Kessler, Stanford, with a Ryskamp, is only law prof awarded an ACLS this year
This news is not new. The awardees were notified last spring. But this information has only just recently been released via the ACLS website.
The deadline for next year's fellowships is October 3. Fellowship programs are described on the ACLS webpage.
I'm listing the legal history-related ACLS Fellowships, Ryskamps and Burkhardt's below. Although the news was not so good for law faculty applicants, the results are promising in another respect. Look at how much law is being done in other parts of the academy. Interest in legal history may well be spread across departments on your campus.
Benadusi, Giovanna, Associate Professor, European History, University of South Florida
Visions of the Social Order: Women's Last Wills, Notaries, and the State in Baroque Tuscany
Ely, Melvin Patrick, Professor, History and Black Studies, College of William and Mary
A Horrible Intimacy: Whites and Enslaved Blacks in Old Virginia
Ergene, Bogac, Associate Professor, History, University of Vermont Professor Ergene has been designated an ACLS/SSRC/NEH International and Area Studies Fellow. Class, Court, and Justice in the Ottoman Empire, 1685-1794
Freeman, Joanne B., Professor, History, Yale University
Professor Freeman has been awarded a joint ACLS/New York Public Library Fellowship.
"The Field of Blood": The Culture of Congress in Antebellum America
Guang, Lei, Associate Professor, Political Science, San Diego State University Justice at the Margin: Aggrieved Citizens, Nervous Officials, and the Making of Petitions as a Political Institution in China
Kelleher, Marie A., Assistant Professor, History, California State University, Long Beach The Measure of Woman: Law and Female Identity in Medieval Spain
Kramer, Paul A., Associate Professor, History, University of Iowa (Dr. Kramer was Associate Professor, History, University of Michigan, Ann Arbor at the time of the award.) Migration, Citizenship, and Empire in the Interwar Pacific
Parthasarathy, Shobita, Assistant Professor, Science and Technology Studies, University of Michigan, Ann Arbor Crisis at the Patent Office: Rethinking Governance of Biotechnology in the United States, Europe, and on the Global Stage
Ryskamp Fellowships (for advanced assistant professors and untenured associate professors in the humanities and related social sciences)
Hoffman, Katherine E., Assistant Professor, Anthropology, Northwestern University
Mirror of the Soul: Language, Islam, and Law in French Native Policy of Morocco (1912-1956)
Jiang, Yonglin, Assistant Professor, History, Oklahoma State University
Negotiating Justice: Local Adjudication and Social Change in Late Imperial China
Kessler, Amalia Deborah, Associate Professor, Law and History, Stanford University American Exceptionalism and the Forgotten Tradition of Equity, 1814-1912
von Dassow, Eva M., Assistant Professor, Ancient Near Eastern History, University of Minnesota, Twin Cities Freedom and Rights in the Ancient Near East
Yaffe, Gideon D., Associate Professor, Philosophy and Law, University of Southern California Trying and Attempted Crimes
The Frederick Burkhardt Residential Fellowships for Recently Tenured Scholars
Self, Robert O., Associate Professor, History, Brown University
The Politics of Gender and Sexuality in the United States from Watts to Reagan
Harvard Law School Legal History Colloquium, Fall Schedule
All meetings are Thursdays, 5-6:30, in Hauser 101, Harvard Law School
Thursday, September 20
Paul Halliday and G. Edward White, University of Virginia
"The Suspension Clause: English Text, Imperial Contexts, and American Implications."
Thursday, October 18
Tomiko Brown-Nagin, University of Virginia
“Seeking Redress in the Streets: The Student Movement’s Challenge to Pragmatism and Legal Liberalism, 1960-61.”
Thursday, November 29
Dylan Penningroth, Northwestern University
“African American Divorce in Virginia and Washington, DC, 1865-1930.”
For additional information, please contact the chair of the colloquium, Jed Shugerman at firstname.lastname@example.org), or the two Raoul Berger/Mark DeWolfe Howe Legal History Fellows, Cynthia Nicoletti (Harvard Law JD, History PhD candidate at Virginia) at email@example.com, and Owen Williams (Yale Law MSL, History PhD candidate at Yale) at firstname.lastname@example.org.
Note: you should contact them before attending. That's the way to get a copy of the paper, which should be read in advance.
Harvard Law School is at 1563 Massachusetts Avenue, Cambridge, MA. Directions are here.
Witte on The Protestant Foundation of Rights and Revolution
Delahunty and Yoo on Making War
As an aside: An interesting feature of the essay is that it draws upon "small wars" in early U.S. history in support of an argument that the power to declare war has not been solely lodged in Congress since the founding. Attention to "small wars" can also serve a different purpose. It helps us to see that the lines between "wartime" and "peacetime" are blurry, making an assumption that wartime is an exceptional time, and war powers necessarily temporary, problematic. If war, and war powers, are more ubiquitous than we might have thought, perhaps that cuts in favor of more vigilant attention to the way wars and war powers can undercut democratic government.
Here's the Delahunty and Yoo abstract:
Presidents have long initiated military conflict without specific congressional authorization. For large wars, this practice extends at least as far as the Korean War, if not further, and for smaller conflicts, the practice can be traced to the very first administrations. During the Vietnam War, academic critics turned to the original intent of the Constitution's Framers to argue that this form of war-making was illegal. This view became the governing consensus through the 1970s and 1980s, and reached its culmination in books by John Hart Ely, Louis Fisher, Michael Glennon, and Harold Koh, among others. Simply put, they conclude that Congress's power to “declare war” gives it the full and plenary authority to decide whether to initiate military hostilities abroad, except in cases of self-defense. Originalists have quarreled about war powers ever since. We have argued that the original understanding does not prove that modern practice is illegal. If anything, the best reading of the text finds significant support for presidential initiative in war. Unleashing the Dogs of War represents the latest step in the originalist discourse. Professor Prakash maintains that we can infer the Constitution's allocation of war powers through a broad survey of the eighteenth-century use of the phrase “declare war.” This approach, he claims, yields more support for the conventional wisdom than originalists have commonly thought. Prakash has made an important contribution by bringing more historical sources to bear on the question of the original understanding of war powers. In this Comment, we carry the dialogue further. First, we argue that Prakash's interpretive approach imposes an unexplained burden of proof that places little to no importance on the starting point for constitutional interpretation: the text. The best reading of the text rejects Prakash's claim about Congress's power to declare war. We supplement our textualist reading by exploring constitutional structure, which should not tolerate the redundancies created by Prakash's approach. The key point here is that the constitutional structure already gives Congress more than enough constitutional authority through the creation and funding of the military, a power that was all the greater in the eighteenth century when the United States had no standing army or navy. Second, we address Prakash's use of the historical sources and argue, in short, that he has thrown his net too wide. Accumulating statements where some diplomats and government officials used the phrase “declare war” in a broad sense ignores the use of the phrase in a constitutional setting. Examination of the important antecedents to the Constitution, developments in eighteenth-century American constitutional thought, and the broader intellectual understanding of war and international law during the ratification period shows that “declare war” does not bear the meaning that Prakash claims. We close with a more complex account of early war-making under the Washington and Jefferson administrations, an account that yields different lessons from those that Prakash has elicited. We think that, when analysis is applied to evidence, the historical data weigh against the modern approach to war powers.
Tuesday, September 18, 2007
How to Get a Fellowship
How to Get a Fellowship: Tips for Law Faculty
And more advice here.
One thing to think about: I have heard from many of you. You are all applying for the same thing. The best way to ensure success is to apply for something that everyone else is not applying for.
Many deadlines are yet to come, but some will be very soon. Get help from a grants officer on campus. Join the American Historical Association to gain access to their searchable database. Keep an eye out for announcements on this blog and others. And with the high-profile national fellowships, don't be discouraged if you aren't successful the first time around. One Guggenheim fellow for 2007-08, a poet, applied every year for 20 years (not recommended!) before hitting the jackpot.
Best of luck!
Blogline of the week
Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court
Barrett on A Theory of Procedural Common Law
Garrow on Toobin, The Nine
More takes on Toobin are here.
In recent years, any high court ruling citing legal developments elsewhere in the world has drawn angry condemnation from Justice Antonin Scalia and a host of conservative politicians and commentators. Toobin asserts that foreign contacts have had "a profound impact on the Court," pushing it "and especially Kennedy -- to the left." But he fails to square this claim with Kennedy's decisive votes during the most recent term, which undeniably turned the court into what even he calls "a dramatically more conservative institution." Such an exaggerated characterization of Kennedy suggests a calculated desire to invite controversy....
In his epilogue, Toobin disputes Roberts' avowal that judges "are like umpires" and "are not politicians." In fact, Toobin declares, "it is ideology, not craft or skill, that controls the outcome of cases," and "what matters is not the quality of the arguments but the identity of the justices." And since ideology "means everything on the Supreme Court," one factor alone will determine the court's future: "the outcomes of presidential elections." Who will name the successors for the justices most likely to retire next -- Justices John Paul Stevens, Souter and Ginsburg -- is indeed important, but Toobin's insistent reductionism of justices' decision-making to the sole dimension of left-right ideology is far too shallow. Legal scholars such as Harvard's Frederick Schauer warn about pundits' "tendency to exaggerate the Court's importance" and oversimplify its decisions. That admonition is essential when confronted with so purposely provocative a book as "The Nine."
Monday, September 17, 2007
Call for Papers: Law & Humanities Junior Scholar Workshop
UCLA School of Law, Columbia Law School, University of Southern California Center for Law, History & Culture, and Georgetown University Law Center invite submissions for the sixth meeting of the Law & Humanities Junior Scholar Workshop to be held at UCLA Law School in Los Angeles, CA on June 8 & 9, 2008.
The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, the Workshop welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship,as well as about the nature of interdisciplinarity itself.
Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible as long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.
Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 8, 2008, and should be sent by e-mail to:
Center for the Study of Law and Culture
Columbia Law School
435 W. 116th Street
New York, N.Y. 10027
Please be sure to include your contact information.
For more information: Manissa Maharawal, 212.854.2511 or email@example.com. The full text of the Call for Papers is available here.
Tips from the LHB: The blind-review process is rigorous. Be sure your paper is in just the right shape before submitting (e.g. pay attention to the comment about dissertation chapters), and if possible have someone else look at it for you before you submit. Historians: don't forget about the theory/argument. Don't assume the reader will understand the importance of what you've uncovered -- explain why it matters. And show off your research in the notes. Send in your best work.