Thursday, February 28, 2008
Drafting the Future of Human Rights
The historical context will be addressed at an afternoon panel: "Looking Back on the Future of Human Rights: 1948, Race, and the Cold War."
Jonathan Simon, Associate Dean for Jurisprudence and Social Policy, UC Berkeley (moderator).
Carol Anderson, Professor of History, University of Missouri, author of "Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights."
Elizabeth Borgwardt, Professor of History, Washington University in St. Louis, author of "A New Deal for the World: America's Vision for Human Rights." (She is unable to attend, but her book is essential reading.)
Mary L. Dudziak, Judge Edward J. and Ruey L. Guirado, Professor of Law, History, and Political Science, University of Southern California, author of "Cold War Civil Rights: Race and the Image of American Democracy" and "Exporting American Dreams: Thurgood Marshall's African Journey."
The program and on-line resources on the Universal Declaration of Human Rights are here.
Stewart on "Customs in Common": The Old Emperor's Clothes
Call for Papers: Politics and the Constitution
San Francisco State University
September 16-17, 2008
DEADLINE July 1, 2008.
Call for Papers: Politics and the Constitution. San Francisco State University will host its fourth annual conference exploring the U.S. Constitution and its history. The conference will meet on the campus of San Francisco State University on Tuesday and Wednesday, September 16 and 17, 2008. Our theme this year looks at the Constitution and elections, politics, and the political process. Possible topics include the Electoral College and electoral controversies from1800 to 2000, the Supreme Court's role in the political process, the Supreme Court and constitutional interpretation as a campaign issue,popular constitutionalism, and national security and civil rights. We invite proposals from graduate students and established scholars on topics dealing with political influences on the judiciary as well as judicial influences on the political process regardless of time period. The deadline for submission of proposals, consisting of an abstract(s)and a one-page c.v. is July 1, 2008. Complete panels or individual paper proposals will be considered. Send your proposal to Robert Cherny, Department of History, San Francisco State University, San Francisco, California 94132. Alternatively, you can send your proposal as an e-mail attachment to email@example.com. Hat tip.
Wednesday, February 27, 2008
Gillers on The Transformation of American Obscenity Law from Hicklin to Ulysses II
Tuesday, February 26, 2008
Martinez archival documents posted by Yale L.J. Pocket Part
This is a great use of the law review on-line supplement. I hope more journals will use their on-line supplements to link to original research.
Hammer on Catholicism and Evolution from Scopes to Dover
Monday, February 25, 2008
Call for Proposals: African Studies Association
Over the past fifty years, the types and levels of academic knowledge produced in African Studies have advanced impressively. African knowledge has gained growing recognition in all fields, from music to the environment, and new constituencies have generated and applied their knowledge to situations on the ground. The fiftieth anniversary of the annual meetings of the African Studies Association marks an important milestone and offers an opportunity to take stock of African Studies and map out possible future directions in the field, which has been characterized by complex interplay between academic analysis and social concern, theory and policy, and knowledge within and outside the continent. Also, knowledge production practices in African Studies have varied between disciplinary and interdisciplinary modes of inquiry; some disciplines and interdisciplinary fields have made greater advances than others.
The theme for the 2008 ASA annual meeting centers on current and projected advances in African Studies as a body of knowledge. The past fifty years of African Studies involved vigorous debate and attempts to overcome Eurocentric theories and analytical models and their application in scholarly and policy discourses. In various disciplines and interdisciplinary fields scholars debated about the relevance of existing theories and methodologies, and sometimes sought to develop new ones, in explaining African phenomena. The applicability of ostensibly universal conceptual schemas was particularly fraught in the realm of policy formation. Many scholars and social activists queried the relevance, and stressed the devastating consequences, of policy prescriptions devised by international agencies and Western governments, such as structural adjustment programs, that were imposed on African countries and took little account of African realities.
As we ponder the next fifty years, based on the past half-century of debate, empirical study, and conceptualization, what are the likely trajectories of knowledge production in the various fields of study and inquiry in African Studies? What are the likely intersections between Africanist and global knowledges, knowledges produced within and outside the continent, and knowledge production and policy formation? Mapping out future directions in African Studies requires an understanding of the changing institutional architecture and ideological trends within Africa and in the major external centers of Africanist knowledge production including the United States—the profound transformations taking place and that are likely to take place in higher education institutions and research systems and in regional and global policy regimes.
This fifty-year anniversary, therefore, provides a good time to review the state of knowledge production in African Studies: the central problems that have been examined, the theories and concepts that have been applied and developed, the most useful principles and methodologies of research, and the relationships among theory, empirical evidence, and policy. Conceptualization and especially theory are central to the development of knowledge in each area of African Studies, so it is critical to interrogate the theoretical and conceptual foundations in the various areas of inquiry in the field. The guiding theories may of course differ in the various categories of disciplines: social science, humanities, arts, liberal professions, natural sciences, and interdisciplinary or transdisciplinary studies.
Out of this systematic attention to knowledge production, it is hoped that the conference will yield an assessment of what the disciplines have become and how African Studies have transformed them. It is also hoped that discussion at the annual meeting will yield a sense of the evident needs and directions of change in African Studies knowledge production.
There is more here.
Benvenisti on The Origins of the Concept of Belligerent Occupation
Corcos on The Use of Tocqueville's Writing in U.S. Judicial Opinions
Through all of these evaluations, assessments and hagiographies, commentators sometimes lose sight of the fact that Tocqueville was, by training and choice, an attorney, and what is more, a civil law trained attorney, a magistrate, a member of the Legislative Assembly, a drafter of the Constitution of France's Second Republic and a member of Louis-Napoleon Bonaparte's Cabinet. Ultimately, as one student of his thought points out, it may not matter.
As a civilian, Tocqueville was trained in a newly formed legal regime. As an attorney practicing within a code enacted only a year before his birth, he had a vital interest in determining how such new codes could be integrated into existing social, political, and legal environments. His interest in the new republic across the ocean, which was engaged in a similar experiment, was at once philosophical and practical. Thus, what use U. S. judges have made of his words in their own opinions is certainly of interest.
Sunday, February 24, 2008
Sunday book review round-up
Truth and reconciliation commissions are explored in a fictional account by David Park, THE TRUTH COMMISSIONER (Bloomsbury), reviewed by David Horspool for the London Times. Horspool writes:
Park occupies the interiors of all [commission participants] with a sympathy that does not shy away from the squalor of what they have perpetrated and witnessed. The refusal to draw facile lessons is reinforced by the fact that the least likable character is the one with ostensibly the highest moral standing: truth commissioner Henry Stanfield. Unfaithful, venal and irresolute, he is a reminder that whatever the motives behind an institution, it is administered by flawed individuals.He praises the novel for its "combination of the hardest of realities with a measure of poetry and of humanity."
History, story-telling, and the limits of evidence are touched on in David Waldstreicher's New York Times review of MR. AND MRS. PRINCE: How an Extraordinary Eighteenth-Century Family Moved Out of Slavery and Into Legend by Gretchen Holbrook Gerzina (researched with Anthony Gerzina) (Amistad/HarperCollins Publishers). For this book,
Read more about it here.
Gretchen Holbrook Gerzina went looking for an African-American Yankee with a royal name, locally famous for performing ballads and arguing for her rights in court. In the case of Lucy Terry Prince, the recoverable truth is limited, but it still has more drama than the sketchy legend....Years of strenuous digging in the account books and personal papers of whites who knew the Princes have enabled Gerzina to present a moving, if less than rounded, portrait of a striving family....But “Mr. and Mrs. Prince” isn’t — it can’t be — the inner life of a vernacular poet and her enterprising husband. Instead of lamenting the limits of the evidence, the author spins a parallel story out of the dig for evidence. For the most part, the search is artfully woven into the story of the Princes’ hard work.
Drew Gilpin Faust's acclaimed new book, This Republic of Suffering: Death and the American Civil War (Knopf) is reviewed in the Washington Post by Stephen Budiansky. He writes:
In Budiansky's view, "Faust convincingly demonstrates that the trauma of the Civil War revolutionized the American military's approach to caring for the dead and notifying families," but "is less convincing in making a case that the war's confrontation with death produced a permanent transformation in American belief, politics, character, habits of mind and modes of expression." Read the rest here. Also reviewed is HOW THE SOUTH COULD HAVE WON THE CIVIL WAR: The Fatal Errors That Led To Confederate Defeat by Bevin Alexander (Crown).
The American Civil War was the first "war of peoples," and as Drew Gilpin Faust vividly demonstrates, the unprecedented carnage of this first modern war overwhelmed society's traditional ways of dealing with death. The customs, religion, rhetoric, logistics -- even statistical methods -- of mid-19th century America were unequal to slaughter on such a scale. How American society attempted to come to terms with death that broke all the rules about dying, and how the nation ultimately did -- and did not -- face up to this new reality of war are Faust's haunting and powerful themes. If nothing else, this finely written book is a powerful corrective to all the romantic claptrap that still envelops a war that took as many American lives, 620,000, as all other wars from the Revolution to Korea combined.
Saturday, February 23, 2008
Newberry Library Symposium on Comparative Early Modern Legal History
The Symposium on Comparative Early Modern Legal History is sponsored by the University of Illinois at Urbana- Champaign and organized by Bruce Smith. The Symposium gathers yearly under the auspices of the Center for Renaissance Studies in order to explore a particular topic in the comparative legal history of the Atlantic world in the periodc.1492-1815. For a tentative list of speakers and more information on the symposium, please visit this page.
While there is no fee to attend the Newberry Library's Symposium on Comparative Early Modern Legal History, participants should register in advance. To register, please contact the Center for Renaissance Studies at 312.255.3514, or at firstname.lastname@example.org. Funds may be available for graduate students and faculty of Consortium institutions to travel to the Newberry Library to attend the Symposium on Comparative Early Modern Legal History. If you have any questions,please contact the Center for Renaissance Studies.
Hat tip: H-Law. Image credit.
Friday, February 22, 2008
Richardson, The Origins of African-American Interests in International Law
This historical period also roughly corresponds to two other key historical phenomena greatly affecting the Atlantic Ocean basin: the rise of international law as a modern legal system (including European states and their Atlantic colonies) and the rise and flourishing of the international slave trade in African slaves to the Americas by European and New World governments and merchants. Only by placing African slavery in the British North American colonies in the context of the international slave system encompassing and linking the New World can the voices, struggles, demands, claims, and decisions of slaves and Free Blacks in North America towards freedom, relative to their evolving interests under international law, be properly understood. These interests comprise no less than the birth of an African-American international jurisprudence.
Balmer on the Influence of Hobbes on Holmes
What you missed in Tempe
Davies on Correcting Search-and-Seizure History
Thursday, February 21, 2008
Kreimer on FOIA, The Abuses of Anti-Terrorism, and the Strategy of Transparency
both legal constraint and of political oversight. In the first half decade of these efforts, the tripartite constitutional structure which is said to guard against executive usurpation remained largely quiescent. Opponents both inside and outside of the government turned instead to subconstitutional structures to expose this self-avowed “dark side,” and to lay the foundation for a return to the rule of law. This Article examines four case studies of this strategy of transparency. At the center of each account lies the Freedom of Information Act (FOIA). The studies highlight, however, the crucial roles played by a broader complex of structures of transparency that have come to constitute the framework of national governance during the last generation, the importance of the integrity of the civil servants administering those structures, and the fulcrum of sustained advocacy.
Munoz on George Washington on Religious Liberty
Wednesday, February 20, 2008
Welcome to Richard Ross
Look for guest appearances by other legal history luminaries, coming soon.
The Market and Tort Law in the Antebellum Era
To present a thumbnail sketch: there is a question about why antislavery sentiments came on so strongly, beginning about the time of the American Revolution, and became so triumphant within such a short compass of time. From the beginning of the American Revolution in 1775 until the end of the Civil War in 1865, there was an extraordinary shift in attitudes towards slavery; and also towards the market. What, then, do we make of the correlation between them?
David Brion Davis, one of the most and perhaps the most distinguished historians of slavery, suggested in Slavery in the Age of Revolution (1975) that the growth of the market led to further something of class consciousness. The movement against slavery validated free labor. Much to this, I think.
There are some pretty cool thought-experiments you could run on this. For instance, one might test this with reference to the anti-rent movement in up-state New York in the 1840s though the 1860s. (Thoughts on Charles McCurdy's important book on the anti-rent movement here.) I hope to have some well-considered thoughts on this later; for now I'll note that the anti-renters did not correlate highly with anti-slavery voters.
Thomas Haskell of Rice University's history department suggested an alternative hypothesis: that the growth of the market led individuals to have a wider sense of their world--it led them, to understand the effects of their decisions on others. Pretty interesting stuff here--and connected in a lot of ways to the common sense moral philosophy that is related to Adam Smith's thought.
I'm partial to John Ashworth's interpretation, which is that the increase in wage labor led to increased awareness of the ways that slavery interfered with wage labor. But this is a topic on which there's a lot to say.
So that led to me think about the connections of capitalism to common law development. Morton J. Horwitz' incredibly influential Transformation of American Law, 1780-1860 (1977) is in a lot of ways similar to Davis' Problem of Slavery in the Age of Revolution. Horwitz links development of the common law to the development of the market. And like Davis, Horwitz sees the correlation in class terms--judges worked in conjunction with lawyers to create a pro-development common law. (This rapidly becomes very complex; my apologies for the cryptic version here. I'm happy to play through permuations in the discussion.) That is, Davis and Horwitz see the market as creating divisions among Americans. Not too surprsing, I suppose. There's some pretty interesting stuff to talk about with the development of the market and the common law, as well. Did the common law evolve in a more pro-market direction from the Revolution throught the Civil War? (And there are even more basic questions, like what would that mean?)
What, I wonder, is the parallel to Haskell in the legal history literature? I'm wondering if there's some space for thinking through Haskell's interpretation of how the market transformed humans (mostly Americans') moral sensibilities in the legal system. Might we, for instance, test his thesis that the market created a wider sense of duty by looking at tort cases?
That question led me back to G. Edward White's intellectual history of tort law. White's mostly concerned with tort law post-1870, but in the first chapter he sketches a similar process to Haskell.
So here's a question: is there evidence of this "widening perception" in the antebellum tort cases? That is, can we detect any hints of such sentiments in cases from northern or southern judges in the period 1800-1860? So that sends me off to some of the formative tort cases, like Farwell v. Boston & Worcester R.R. or one of my new favorite cases, Thomas Ruffin's Heathcock v. Pennington, about a slave who died in a mine accident. Ruffin placed the loss on the slave's owner, rather than the owner of the mine.
One other question: while antislavery sentiments grew, they grew rather slowly. Even on the eve of Civil War, a majority of voters (so far as we can tell) we not terribly concerned with the welfare of slaves. I wonder if we ought also to be looking at the other side of the coin: the correlations between the market and proslavery thought? (I'm partial to Davis' and Ashworth's explanation, which is that the growth of antislavery had more to do with the competition between wage and slave labor than with widening horizons caused by the market.)
We certainly should bring into the discussion Eugene Genovese and Elizabeth Fox-Genovese's work on The Mind of the Master Class. (They argue that proslavery thinkers were anti-capitalist.) And in opposition to them, I'd wheel out some of the pro-market southern judges, who were also among the most prominent proslavery thinkers of the antebellum era (Thomas Ruffin and Joseph Lumpkin). Ah, this rapidly becomes to burdensome to sustain in a blog entry....
And with that I think it's time to decamp from my visit here at legalhistoryblog and return to writing University, Court, and Slave--which is about moral philosophy in the old South. I've had an absolutely wonderful time visiting and I very much hope that Mary will let me come back again sometime.
Tsai on Reconsidering Gobitis: Lessons in Presidential Leadership
Tuesday, February 19, 2008
Schulman & Zelizer, eds., Rightward Bound: Making America Conservative in the 1970s
Often considered a lost decade, a pause between the liberal Sixties and Reagan’s Eighties, the 1970s were indeed a watershed era when the forces of a conservative counter-revolution cohered. These years marked a significant moral and cultural turning point in which the conservative movement became the motive force driving politics for the ensuing three decades.
Interpreting the movement as more than a backlash against the rampant liberalization of American culture, racial conflict, the Vietnam War, and Watergate, these provocative and innovative essays look below the surface, discovering the tectonic shifts that paved the way for Reagan’s America. They reveal strains at the heart of the liberal coalition, resulting from struggles over jobs, taxes, and neighborhood reconstruction, while also investigating how the deindustrialization of northern cities, the rise of the suburbs, and the migration of people and capital to the Sunbelt helped conservatism gain momentum in the twentieth century. They demonstrate how the forces of the right coalesced in the 1970s and became, through the efforts of grassroots activists and political elites, a movement to reshape American values and policies.
A penetrating and provocative portrait of a critical decade in American history, Rightward Bound illuminates the seeds of both the successes and the failures of the conservative revolution. It helps us understand how, despite conservatism’s rise, persistent tensions remain today between its political power and the achievements of twentieth-century liberalism.
Endorsements include: Rightward Bound brilliantly demonstrates how American conservatism emerged as a full-blown movement in the 1970s and, in the process, created the United States of the twenty-first century. It is a wonderful book! --Laura Kalman, University of California, Santa Barbara A new generation of American historians demonstrates that the decade of the 1970s proved the crucial seed time for the rise of modern American conservatism. There was nothing inevitable about the nation's march to the right, which makes this book all the more fascinating and necessary for those who want to understand twenty-first century America. --Nelson Lichtenstein, author of Wal-Mart: The Face of Twenty-First-Century America
McMurtry Fellowship in Canadian Legal History
R. Roy McMurtry Fellowship in Legal History
The R. Roy McMurtry Fellowship in Legal History was created on the occasion of the retirement as Chief Justice of Ontario of the Hon. R. Roy McMurtry. It honours the contribution to Canadian legal history of Roy McMurtry, Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years (and currently) the Society's President. The fellowship was established byChief Justice McMurtry's friends and colleagues, and endowed by private donationsand the Law Foundation of Ontario.
The fellowship is to support graduate (preferably doctoral) students or those with a recently completed doctorate, to conduct research in Canadian legal history, for one year. Scholars working on any topic in the field of Canadian legal history are eligible. Applicants should be in a graduate programme at an Ontario University or, if they have a completed doctorate, be affiliated with an Ontario University. The fellowship may be held concurrently with other awards for graduate study. Eligibility is not limited to history and law programmes; persons in cognate disciplines such as criminology or political science may apply, provided the subject of the research they will conduct as a McMurtry fellow in Canadian legal history.
The selection committee may take financial need into consideration.The first fellowship will be awarded in July 2008, and will have a value of at least $16,000. Applications will be assessed by a committee appointed by the Osgoode Society for Canadian Legal History. Those interested should apply by sending a full c.v. and a statement of the research they would conduct as a McMurtry fellow to Marilyn Macfarlane, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6. The deadline for applications is April 15,2008. For more information contact email@example.com.
Hat tip: H-Law.
Carrington: Could and Should America Have Made an Ottoman Republic in 1919
Monday, February 18, 2008
Teles, The Rise of the Conservative Legal Movement
Starting in the 1970s, conservatives learned that electoral victory did not easily convert into a reversal of important liberal accomplishments, especially in the law. As a result, conservatives' mobilizing efforts increasingly turned to law schools, professional networks, public interest groups, and the judiciary--areas traditionally controlled by liberals. Drawing from internal documents, as well as interviews with key conservative figures, The Rise of the Conservative Legal Movement examines this sometimes fitful, and still only partially successful, conservative challenge to liberal domination of the law and American legal institutions.
Unlike accounts that depict the conservatives as fiendishly skilled, The Rise of the Conservative Legal Movement reveals the formidable challenges that conservatives faced in competing with legal liberalism. Steven Teles explores how conservative mobilization was shaped by the legal profession, the legacy of the liberal movement, and the difficulties in matching strategic opportunities with effective organizational responses. He explains how foundations and groups promoting conservative ideas built a network designed to dislodge legal liberalism from American elite institutions. And he portrays the reality, not of a grand strategy masterfully pursued, but of individuals and political entrepreneurs learning from trial and error.
Using previously unavailable materials from the Olin Foundation, Federalist Society, Center for Individual Rights, Institute for Justice, and Law and Economics Center, The Rise of the Conservative Legal Movement provides an unprecedented look at the inner life of the conservative movement. Lawyers, historians, sociologists, political scientists, and activists seeking to learn from the conservative experience in the law will find it compelling reading.
"A timely and important book. Drawing on inside accounts from key players, Teles tells the remarkable story of how conservatives overthrew liberal legal assumptions; more importantly, he shows how successful ideas depend on building organizations, institutions, and networks to propagate and defend them."--Jack M. Balkin, Yale Law School
Margeton on Legislative Histories and Librarians
Of Legislative Histories and Librarians: The Early Years briefly chronicles the interest of legal librarians in legislative history research during the period from the 1930s through the 1980s. It describes the materials that are included in a legislative history of a Congressional enactment, and how law firms and agencies created library services to systematically collect bills, resolutions, reports, hearings and the all-important Congressional debate. The piece highlights the special contributions to legislative history research by the Law Librarians' Society of Washington, D.C., whose members identified local law firms and agencies that had bound legislative histories for loan (Union List of Legislative Histories), as well as several local law librarians who made significant contributions to the art of tracking Congressional bills and building impressive collections of bound legislative histories. The author notes that federal agency libraries also played an important role in legislative history research, as did private publishers who were instrumental in distributing early collections in hard copy and micro format. Of particular note was the work of the Library of Congress, whose Bill Status system was one of the first automated bill tracking systems, and Congressional Information Service, a company that developed an abstracting and indexing system for Congressional hearings and reports and a practical microfiche distribution service.
Donald on Approaching Comparative Company Law
Sunday, February 17, 2008
The Great Gatsby and The Fashion of Literature
My visit at legalhistoryblog is drawing to a close (perhaps Mary fears that I'll never leave!), but Dan Filler's post over at thefacultylounge on why we teach the death penalty (one hypothesis is that profs find it interesting) and this morning's New York Times story on the shifting fortunes of The Great Gatsby (it's at a high part of the sine curve right now, up from near obscurity in the 1950s0) reminds me that what's in fashion changes over time.
So why does seemingly every high school student read The Great Gatsby? Well, in part because Robert Redford played him the 1974 movie. Rather similar to the renaissance of Herman Melville's Billy Budd. I take it Billy Budd (which wasn't published until the twentieth century--the profits from sales when it was in copyright went to Harvard's History of American Civilization Program, I am told) was popularized in legal circles by Robert Cover's Justice Accused. (I might have thought that Cover would also use Harriet Beecher Stowe's obscure Dred: A Tale of the Great Dismal Swamp for the same purpose: to tell the conflicts that judges get into between their antislavery feelings and the proslavery law. And I'm increasingly thinking that there's a pretty important story to tell about proslavery judges (like Henry Lumpkin of Georgia) who reach antislavery results.
All this causes me to wonder what other literature is out there waiting to be discovered, particularly what other literature is out there waiting to tell us something about jurisprudence. Couple of suggestions (all from the nineteenth century) are Catharine Sedgwick's Clarence, James Fenimore Cooper's trilogy on the anti-rent movement, and Nathaniel Beverly Tucker's George Balcombe.
Reviewed: Kramer, Dynamic of Destruction, and Stone, World War I
World War II "seems to have a monopoly on much of the twentieth century’s worst cruelties," Gibson writes. But Kramer "wants us to re-examine the First World War for evidence of similar violence, in kind if not in scale, and for clues as to why the 1914–45 era as a whole has become synonymous with a particularly cynical type of warfare." He uses the mass killings and destruction following the German invasion of Louvain, Belgium, "as a starting point for a discussion of some of the wanton awfulness that Europeans perpetrated on each other (and the world) during the first half of the twentieth century." But
the case of Louvain was not unique, nor was it the first town where the Occupiers perpetrated atrocities. Because of its cultural importance, and because of the number of citizens murdered, however, Louvain has become synonymous with the crimes committed by the Germans in the First World War, as Auschwitz has for the later conflict. At the same time, Kramer argues that, though particularly heinous, Louvain was part of a broader trend – and one not necessarily the exclusive purview of Germany’s Sonderweg. Crimes against civilians and enemy combatants had become part of warfare in the early twentieth century – despite the good efforts of various international conventions and organizations such as the Red Cross.One factor behind the violence was "the enemy within, a recurring problem – sometimes real, oftentimes imagined – for nation states in the era of the First World War....The Russian, German, Austro-Hungarian and Ottoman Empires contained large minorities whose loyalty to their rulers remained in doubt." In addition, "the totality of the First World War, and by that one means the total mobilization of the nation’s resources in the pursuit of total victory, has to be taken into account....Total war required the dehumanization of the enemy, which included the mobilization of the civilian populace for hatred."
Reviewed: McGinty, Lincoln and the Court
Lincoln's struggle to withstand judicial review is the subject of Brian McGinty's fascinating book. Lincoln thought that the Southern rebellion posed an existential threat to the United States, and that he, as commander-in-chief, was authorized to take extraordinary measures to save the Union. These included the suspension of habeas corpus without prior congressional approval, a blockade of Southern states by U.S. warships and the emancipation of slaves without compensation.The HUP book description claims that "McGinty rescues the story of Abraham Lincoln and the Supreme Court from long and undeserved neglect," but as Lane notes the topic of Lincoln and the Court "has been covered in other recent books." Still, "the issue of presidential power in wartime is as fresh as today's headlines."
History has generally been kind to Lincoln's approach, but it was controversial in its time. Taney challenged the suspension of habeas corpus in the 1861 case of ex parte Merryman, asserting that it was "too plain and too well settled to be open to dispute" that only Congress could suspend the right to challenge an unlawful detention in court. But McGinty, a lawyer as well as a historian, shows that the law was cloudier than Taney acknowledged -- and that the Southern-sympathizing chief justice completely failed to take account of the secessionist disorder raging around Washington.
Fortunately for Lincoln, Congress subsequently ratified his decision on habeas.....
Saturday, February 16, 2008
Romero on Maldef and the Legal Investment in a Multi-Colored America
Oman, Preaching to the Court House and Judging in the Temple
Zeitlow on The Promise of Congressional Enforcement of the Thirteenth Amendment
Friday, February 15, 2008
Ford on The Plurality of Settler Sovereignty in early New South Wales
Thursday, February 14, 2008
Jones on Free Women of Color in the Antebellum North
Wednesday, February 13, 2008
Jones on Critical Race Theory: New Strateges for Civil Rights in the New Millennium?
Bederman on Romero's Enduring Legacy
David J. Bederman, Emory, has posted a new paper on admiralty law history: Romero's Enduring Legacy. Here's the abstract: This paper was delivered as part of the Eighth Nicholas J. Healy Lecture: Admiralty's Greatest Supreme Court Hits, on May 3, 2007, as part of a series of scholarship on landmark admiralty cases. The 1959 decision of the U.S. Supreme Court in Romero v. International Terminal Operating Company, continues to exercise an odd influence on contemporary thinking about admiralty jurisdiction and procedure. To the extent that the Supreme Court's decision explores the division-of-power between state courts and federal tribunals in the fashioning of maritime law, it offers a unique discourse on the juxtaposition of substantive law and jurisdictional competence that is relevant not only for general constitutional interpretation, but also for the every-day work of admiralty practitioners throughout the land. Romero is a tribute not only to the relevance of constitutional theory, but also the imperatives of practice, in making a coherent maritime law for all ages.