Thursday, July 31, 2008
Megret on Slave Resistance
Champ on the History of the National Banking System
Hurst Prize to Goluboff and Lewis
Prof. Goluboff’s book, The Lost Promise of Civil Rights, inaugurates a new generation of studies in civil rights history. Bringing together labor history and civil rights history, it provides a new historical context for interpreting the Constitutional law of civil rights. Its retrieval of the possibility of constructing economic rights as civil rights, and its explanation of that position in the legal terms available in the 1940s, is especially illuminating. Its examination of lawyering opens many possibilities for new research in the history of civil rights by historically questioning the meaning of the concept itself and linking it in fundamental ways to a “practice” of civil rights law beyond the conventional parameters. Its conceptualization will have lasting impact by pointing the way to understand the complexity of the civil rights movement as it relates to other minority groups that were pushing the terms into social and economic action.This Hurst prize is for the best work in sociolegal history published in the previous calendar year. Now annual, the prize was biennial from inception in 1982 through 2002. In the spirit of Willard Hurst's own work, the field of sociolegal history is broadly defined to include the history of interrelationships between law and social, economic, and political change; the history of functions and impact of legal agencies, legislative and administrative as well as judicial; the social history of the legal profession; and similar topics. The Association seeks studies in legal history that explore the relationship between law and society or which illuminate the use, functions, and cultural meaning of law in society. Preference is normally given to books, but articles and monographs of exceptional quality may also be submitted. The Association discourages submissions of purely doctrinal studies in the evolution of appellate case law. Textbooks, case books and edited collections are not eligible for the prize.
Prof. Lewis’s book, The Boundaries of the Republic: Migrant Rights and the Limits of Universalism in France, 1918 1940, is a major contribution to the robust and growing field of sociolegal studies beyond the American context. Its many strengths provide conceptual models for future scholars. It eminently fulfills the goals of sociolegal scholarship promoted by the Prize in its integration of formal policy with everyday legal experience, especially by testing the application of policy in two different French cities. Its richly researched archival materials offer a framework that is both locally focused and comparative, moving beyond studies of one place or one immigrant group. By examining governance from the bottom up, it also demonstrates that the state is not monolithic but operates on several different registers simultaneously.
Wednesday, July 30, 2008
Rubin: Should Law Schools Support Faculty Research?
Law schools are predominantly financed by student tuition payments, yet a significant proportion of their expenditures do not directly benefit students, but rather support faculty research. Moreover, faculty research increasingly tends to be remote from law schools' pedagogic role. Thus that great bete noir of economists the cross-subsidy seems to be operating in force - students are paying for something that does not benefit them, and they are being compelled to do so by means of an intra-institutional transfer that they cannot control. This would appear to correspond to most people's notion of unfairness. This article has two purposes. The first is to identify the nature of the cross-subsidy with more precision, and the second is to explore the question of its possible justification or correction. It turns out that the cross-subsidy is a good deal more complex than it initially appears, and, as a result, a good deal less unfair. There is nonetheless a residual unfairness toward students that should be remedied. The remedy, however, does not involve reducing research costs or altering research to relate more closely to the curriculum, but rather lies in altering the curriculum to correspond more closely to existing faculty research.
What does this mean for legal historians? Rubin's curricular reform ideas might, at first glance, seem in tension with scholarship that doesn't have an immediate, practical pay-off. But this is not the case.
For Rubin, in spite of 20th century innovations in legal thought,
the Langdellian curriculum has staggered on...despite ongoing criticism, like a figure, whether hero or villain, from an action movie who keeps fighting on after absorbing an inconceivable number of apparently mortal injuries. As a result, scholarship and teaching have increasingly diverged.
The solution is not to steer researchers toward traditional common law subjects, but instead to "change in the curriculum so that it corresponds more closely to the up-to-date, intellectually stimulating research that faculty members are pursuing." While much curricular reform focuses on the first year, Rubin would instead focus on the third year, recommending an innovation that I think many legal historians would find compelling. He reimagines the third year, when many students have become bored with law school, as legal education's
pinnacle or capstone, the peak experience toward which the first two years of the program are directed. In the case of law school, this means that the third year at a research oriented institution should engage the students in research. Each student should be enrolled in a course that is organized around, or at least inspired by, the research program of the faculty member who is teaching the course. They should carry out their own research program as part of their participation in this course. To begin with, this would bring students into contact with some contemporary developments in law and legal practice. While such courses would necessarily be limited to a relatively narrow subject, the student would at least be given a sense of current developments in the field. Second, and probably more important, courses of this sort would provide students with active learning opportunities. Rather than sitting in large lecture halls, or even around a seminar table, for one more year, students would be conceiving, organizing, and carrying out a sustained project under the supervision of the faculty member and within the ambit of the faculty member’s own research agenda.
This may sound self-indulgent for faculty, but Rubin argues that it would provide students with a more "engaged, interactive educational experience" than traditional large courses. Further,
there is a vast range of other skills that a good lawyer must possess and that cannot be taught in a lecture format. Lawyers need to be able to gather facts, to organize large bodies of material, and to analyze this material in accordance with some theme or purpose. They need to be able to present the material, and their analysis of it, to their colleagues in an effective manner. They need to be able to critique a colleague’s work in a searching, rigorous manner, while remaining on good terms with that colleague. These are all skills that can be taught in a seminar format where students do a serious research project and present it in the class.
This is a reform agenda that legal historians and other interdisciplinary scholars need not be afraid of. Instead, Rubin aims to bring to legal education just the intensive sort of educational experience we enjoyed in our Ph.D. programs.
More details are in the article, which can be downloaded here.
Welcome to the Blogosphere: Bernadette Meyler's Findandreplace!
Among its many important pronouncements, Justice Kennedy's opinion in Boumediene took a significant step towards adopting a more historically nuanced approach to the common law backdrop of the Constitution than most of the justices--aside from Justice Souter--have previously espoused. While acknowledging "the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ" (p. 15), Justice Kennedy nevertheless focused some attention on "the common-law writ as it existed in 1789," which constitutes "the absolute minimum" of what the Suspension Clause protects (p. 16).
The Court's methodological innovations in this analysis were two-fold. First, Justice Kennedy explained that rather than placing absolute priority upon the formal articulation of a rule in England, one must examine "why common-law courts lacked . . . power" to issue the writ in certain contexts (p. 19). In responding to this question, he insisted that, in some instances, prudential concerns dictated the outcome of decisions at common law denying issuance of the writ.
Second, and even more importantly, Justice Kennedy maintained that the historical indeterminacy of the answer to the question of whether alien prisoners detained abroad were permitted access to the writ at common law did not prevent the Court from concluding that such individuals might be entitled to the writ. As he explained, "Both [the Government's and the petitioners'] arguments are premised . . . upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. . . . We decline, therefore, to infer too much, one way or another, from the lack of historical evidence on point" (p. 22). Justice Scalia, critiquing the majority's deployment of history in his dissent, instead argued that a lack of definitive evidence should lead to the assumption that no right of access to
the writ existed (pp. 7-8).
The majority's treatment of the status of the common law at the time of the Founding may mean that it is finally acknowledging the relevance to constitutional interpretation of something other than what John Reid has aptly named "forensic legal history." As Justice Kennedy wrote, citing to Paul Halliday and G.E. White's The Suspension Clause (pp. 12-15), "Recent scholarship points to the inherent shortcomings in the historical record." These shortcomings are inevitable when history is treated in all its complexity. At the same time, as I argued in Towards a Common Law Originalism, historical indeterminacy should not simply cause the Court to give up in despair; instead, it can valuably investigate the historical record to ascertain the reasons and arguments for the particular positions that this record might support before arriving at its own conclusions. By considering the pragmatic considerations that led English courts to deny the writ in various instances, Justice Kennedy did just that.
More posts are here.
Muller on Judging Thomas Ruffin and the Hindsight Defense
Judge Thomas Ruffin of the antebellum North Carolina Supreme Court enjoys the reputation as one of the great judges of the nineteenth century; some rank him among the greats of all American history. This reputation has been little tarnished by his authorship of State v. Mann, an opinion that has become one of the central texts of the American law of slavery due to its savage endorsement of the right of the temporary hirer of a slave to shoot her in the back without risking criminal sanction.
Tuesday, July 29, 2008
Recommendations needed: 100 legal history books for ACLS e-book project
To recommend books for the ACLS e-book project, please comment on this blog and/or email Jed Shugerman at email@example.com. Committee members are: Bruce Mann, chair; Charles Donahue, William Wiecek, Richard Bernstein and Jed Shugerman.
Here's the ACLS description of the e-book project:
Humanities E-Book is a digital collection of over 1,700 full-text titles offered by the ACLS in collaboration with twelve learned societies, nearly 95 contributing publishers, and librarians at the University of Michigan’s Scholarly Publishing Office. The result is an online, fully searchable collection of high-quality books in the Humanities, recommended and reviewed by scholars and featuring unlimited multi-user access and free, downloadable MARC records.I expected that the books archived on-line would principally be classic older works that are out of print. If newer books were included, I assumed that they were unlikely to be commercially viable, since availability on-line might cut down on print sales. Both assumptions turned out to be wrong. Older works are certainly included, such as White Supremacy: a comparative study in American and South African history, by George Fredrickson (published in 1981, but still in print), but so are recent works. Race and reunion: the Civil War in American memory by David W. Blight is on the site. This book won several prizes and continues to sell well in print. The site has a great diversity of works.
Some works in legal history are already part of the ACLS project, including Devising liberty: preserving and creating freedom in the new American Republic by David Konig; Rethinking the new deal court: the structure of a constitutional revolution by Barry Cushman; Lawyers against labor: from individual rights to corporate liberalism by Daniel Ernst; The county courts of medieval England, 1150-1350 by Robert Palmer; Enterprise and American law, 1836-1937 by Herbert Hovenkamp; Abe Fortas: a biography by Laura Kalman; The Fourteenth Amendment: from political principle to judicial doctrine by William Nelson; Man and wife in America: a history by Hendrik Hartog, and more! Information on how to access these e-books is here.
Justice Accused: Antislavery and the Judicial Process by Robert M. Cover is not on the list, so I'll kick off the LHB recommendations with this one.
Coping with "gender devaluation" in the academy
The authors present job and salary statistics to reveal gender differentials: Only 29 percent of lawyers are women; tenured professors are four times more likely to be male; the average salary of female faculty is 80 percent of male faculty's average salary (216-17). Then they turn to their key source: in-depth interviews with 80 women faculty who taught at the University of California at Irvine between 2002 and 2006 (which they term "the largest systematic set of interview data on this topic", 230).
They conclude that women faculty members see a "subtle process by which women's work is devalued or minimized, so that work or positions once deemed powerful and conferring high status frequently become devalued as women increasingly take on these roles" (230). Women's response to this "gender devaluation" is not legal (women who tried that route "found it produced very little", 231), but informal collective action and indirect challenges, both of which are less likely to provoke the reprisals often triggered by overt action. The authors recommendations include redefining "the concept of professional success" so that "it allows for alternative models" that permit less linear progress (to allow men and women to meet family needs) and improving policies with respect to family leave, longer tracks to tenure, partner-hiring, and mentoring (231).
I was especially struck by one interviewee's insight:
"Q: Does the system need a change in terms of its rewarding structure, valuing service and other administrative, managerial work as much as research, for example?
Janina: But how do you build that into a review file? How do you say Faculty X did a great job keeping the faculty from being at each other's throats after a difficult personnel decision? No, what she did was, she went into the hall. She talked to everybody. She made them feel good. That's an invaluable contribution and yet we don't value it. There is no question that the system values research and publication over service. I think there are three ways to talk about this. Where are the moments in which we reveal our values?
(1) When we hire people. We never hire people who are good citizens; we hire those who have published, and published in the right places and published frequently enough. Then we look at their research and teaching. I can tell you, nobody is being hired in the University of California system for being a good teacher or being a good citizen.
(2) We can look at how people get promoted. . . . Imagine if teaching really mattered, what would our promotion cases look like? We would write that section as vigorously and in the same detail as the research section. . . .
(3) Service? Even less decisive than the teaching. I was actually called a chump for becoming a department chair. Why? It is a waste of time that could be spent on research and publication. It is not rewarded . . . " (229).
Dobija on the history of corporate governance and the East India Company, 1600-1612
Monday, July 28, 2008
History with children
There is nothing like having children of your own to make you realize that the present will soon be the past– which makes understanding that past even more important to me. I have often wondered (and will always wonder, I’m afraid) if I should be doing something more immediate to make the world a place in which I want my kids to live. But I also believe that reckoning with what’s come before is a powerful way to nudge the future in a better direction.
I’m not very good, however, at explaining what I do, and why it matters, to my kids. They are young (four and five years old), which is part of the challenge. But only part; it’s easy for non-academics to comprehend the work of teaching, but the research, and the institutional work (faculties do help make universities run, even as committee work is among the most disdained activities in the profession), are much harder to translate to outsiders. I’m still looking for clearer ways to explain the value created by producing good scholarship and building good law schools.
Parenting takes so much time and energy it’s an easy target when looking for excuses about not writing enough. But I think the forced slow-down can be beneficial, too, in finding the right topic, argument, sources, ideas. As Emily Dickinson wrote, “Your thoughts don’t have words every day” (1452).
Having children has also forced me to see multiple perspectives and to be precise with language. Perhaps most important to me as a teacher, it has made me appreciate anew the unruliness of learning.
The other day, my housemates and I had straightened out the playroom, imposing order on a sea of stuffed animals, dress-up clothes, books, blocks, and plastic. Between dinner and bedtime that evening, that fleeting order was entirely undone: there were toys scattered everywhere, across the carpet, on couches, under tables. It was worse than the usual chaos; things had literally been turned upside down. Irritated, I asked the girls, “What were you doing up there?” They said (as they always do in response to that unhelpful question), “We were playing.” “What were you playing?!” I asked, intent on getting an answer. “Tornado!” they exclaimed happily.
As I cleaned up again (and failed, alas, to post the blog entry I had been contemplating that day), I thought about how they’ve learned –in less than a year of being Californians –how close we live to disaster and how to we try to prepare for it (part of “Tornado” was packing food and shoes for the road). They didn’t learn because we told them about it, but because it's where we live.
Ernst on Willard Hurst at the Board of Economic Welfare
Jane Mayer, American ideals, and military lawyers
Despite its grim title, Mayer’s book does more than call out villains (a fairly despicable David Addington stars as Public Enemy No. 1, but many others lurk alongside). In both her book (its dedication professes her “love of American history and admiration for those who have fought to fulfill the promise of the country’s ideals”) and interviews (on Letterman she said that there are “many good guys in the military, and in the FBI”), Mayer is careful to give credit to those who resisted “the dark side”.
Among those who come out best in her account are uniformed military lawyers. Mayer documents how the JAG corps was bypassed, ignored, and isolated while key decisions were made about military commissions, the laws of war, and the rules regarding the treatment of prisoners. This is not a new interpretation; Mayer’s narrative echoes charges made repeatedly in press coverage (including her own work in The New Yorker) of the White House’s frequent dismissal of military legal expertise. For example, in the drafting of the military commission order, the services’ top lawyers were “marginalized,” in the words of Rear Admiral Donald J. Guter (88) (Guter is now dean of Duquesne Law School), and ultimately blind-sided by the rash proposal to authorize a new version of military commissions. The infamous “torture memos” triggered shock and outrage from many military lawyers: “The memos from uniformed lawyers to the politically appointed general counsel were brimming with barely concealed disbelief at the direction the Justice Department was proposing for soldiers to take “ (232).
Mayer draws on interviews, government reports, legal analyses, and an already extensive body of scholarship to build a damning critique of post 9/11 legal conclusions and political actions. But not yet answered is the central historical question: why did the U.S. adopt legal and military practices so wrongful in the face of such powerful opposition? Judge advocates and other officials who realized, in real time, that grave mistakes were being made could not stop the Bush administration despite what Mayer casts as truly valiant efforts.
The hubris of a few misguided individuals may be enough explanation for now. But eventually, we have to reconcile the impotence of Mayer’s “good guys” with her faith in American ideals-- and her hope for the future.
Friday, July 25, 2008
Frank at Fuld Hall
The Institute for Advanced Study in Princeton is surely the best residential fellowship for your dog. Not only do dogs love the trails in the woods, but there is a dog-friendly environment on campus, so that Frank regularly accompanies me to the office. If you have more than one pet, however, you will have a dilemma. In Member housing, there is a one-pet rule. For that one pet, it can be heavenly.
Please excuse sparse posting from me until Monday.
A Conference in Honor of Morton Horwitz
The Harvard Civil Rights-Civil Liberties Law Review
The Illinois Legal History Program
Are pleased to announce:
A Conference in Honor of Professor Morton Horwitz
Harvard Law School
September 26 & 27, 2008
Roundtable I: The Constitution, the Courts and American Legal Thought
Frank Michelman - The Constitution of Change
Terry Fisher - The Transformation of Morton Horwitz
Robert Gordon - Horwitz on Lawyers’ and Judges’ Uses of History
Dalia Tsuk - Transformations: Pluralism, Individualism, and Democracy
Ed Purcell – Horwitzian Themes in the History of the Federal Courts
Martha Minow - After Brown: Law and Social Science
Duncan Kennedy - Morton Horwitz and Critical Legal History
Moderator: Daniel W. Hamilton
Roundtable II: Contract, the Market and Technology in Law and Legal Theory
Barbara Black –Some Contract History
Lewis Grossman - The Benefits and Evils of Competition: James Coolidge Carter’s Supreme Court Advocacy
Yochai Benkler - Transformations in the Digitally Networked Environment: The Second Time As Farce?
Greg Mark - On Limited Liability: A Speculative Essay on Evolution and Justification
Katherine Stone - John R. Commons and the Origins of Legal Realism; Or, The Other Tragedy of the Commons
Oren Bracha - Geniuses and Owners: The Construction of Inventors and the Emergence of American Intellectual Property
Steven Wilf - The Moral Lives of Intellectual Properties
Moderator: Alfred Brophy
1:00 - 2:10 p.m.
Stan Katz and Dirk Hartog - Our First Encounters with Morty: Notes toward the Historiography of American Legal History after the Coming of Morty
Ted White The Origins of Modern American Legal History
2:15 - 4:00 p.m.
Roundtable III: Colonial Law, the Revolution and the Early Republic
Daniel Hulsebosch - Debating the Transformation of American Law: James Kent, Joseph Story, and the Legacy of the Revolution
Alison LaCroix - Drawing and Redrawing the Line: The Pre-Revolutionary Origins of Federal Ideas of Sovereignty
Mary Bilder - Colonial Constitutionalism and Constitutional Law
Sally Hadden - DeSaussure and Ford: A Charleston Law Firm of the 1790s
Christine Desan - Contract and the Coming of Capitalism
Rob Steinfeld - Conflicting Visions of Constitutional Order and Judicial Review in the Early Republic
Fred Konefsky - Boston Culture and the Social Meaning and Construction of the Charles River Bridge Case
Moderator: Jed Shugerman 4:15 - 6:00 p.m.
Roundtable IV: New Legal Perspectives on the Long Nineteenth Century
Polly J. Price - Stability and Change in Antebellum Property Law
Daniel W. Hamilton – Emancipation and the Common Law: Litigating Human Property after the Civil War
Alfred Brophy – Progress and Law in Antebellum Literary Addresses
David Barron - War Powers in Historical Perspective
Sandy Kedar - The Transformation of the Israeli Land Regime
Constance Backhouse - Anti-Semitism and the Law in Québec City: The Plamondon Case, 1910-1915
Elizabeth Blackmar - Historical Materialism and the Languages of Law, Ideology, and Common Sense
Chris Tomlins - One More Time: Marxism and the History of Law
Moderator: Ariela Dubler
Saturday, September 27
9:00 - 10:45 a.m.
Roundtable V: The Warren Court, Rights and Democracy
Owen Fiss - The Warren Court and the Pursuit of Justice
Mark Tushnet - The Warren Court and the Limits of Justice
Chris Schmidt - Hugo Black's Civil Rights Movement
Tony Freyer - The Warren Court As History
Stephen A. Siegel - The Death and Rebirth of the Clear and Present Danger Test
William Simon - Morton Horwitz, Critical Legal Studies, and the Warren Court
Thomas Green - Freedom, Responsibility and the Criminal Trial Jury in American Legal Thought
Lawrence Friedman - Fundamental Rights in Historical Perspective
Moderator: Kenneth Mack
11:00 - 12:45 p.m.
Roundtable VI: The History and Historiography of Legal History
Charles Donahue, Jr. – Whither Legal History?
Sanford Levinson and Jack Balkin - Morton Horwitz and The Rule of Law
Laura Kalman - Transformations
Bill Nelson – Who Should Judge Legal History: Lawyers or Historians?
Assaf Likhovski - Two Horwitzian Journeys
James Hackney - Professor Horwitz’s Post-Modern Transformation
William Michael Treanor - Morton Horwitz: Legal Historian as Lawyer and Historian
David Sugarman – The Influence of Morton Horwitz in the English-Speaking World Beyond the USA
Moderator: Bruce Mann
Mort Horwitz - Remarks
Introduction: Pnina Lahav
For more information, contact:
University of Illinois College of Law
Thursday, July 24, 2008
Call for Papers: Justice and Public Space(s) in the Western World, from Antiquity to the Present
Montreal, May 7 and 8, 2009
Due date for proposals: September 15, 2008
This conference seeks to stimulate reflections on the multiple, historically constructed relationships between justice and public space in the Western world from Antiquity to the present. In light of recent discussions and criticisms of the Habermasian conception of the public
sphere, the intent is to situate judicial history within a broader perspective which takes into account the different forms and functions of public space across time. While all approaches are of interest, four themes seem especially promising in this regard.
- Justice has long been a key concern in public opinion. But the notion of justice as constructed by the public deserves critical scrutiny. With regards to changes in the justice system, some studies of legal culture have attributed a very real transformative power to public opinion, whereas others have emphasized the predominant role of legal specialists. Regardless of its relationship with such specialized interest groups, public opinion can nevertheless certainly be seen as a force which has helped shape the evolution of judicial institutions.
- Conversely, it is also useful to examine the role of justice in the construction or the control of public opinion. The judicial sphere has above all been a locus of speech and of writing through which information has circulated, from public rumour to the everyday practices brought to light by legal practitioners. It has also been a space for discussions and debates publicized by the press and by judicial publications. Justice has moreover long been a spectacle, whether within the courts or in public, and has thereby contributed to the construction of popular representations of and attitudes towards authority. Finally, the courts have also been regulators of public opinion : magistrates, as guardians of public liberty, have contributed directly to the vitality of the democratic public sphere, but have also acted as censors to limit or even repress speech and writing.
- The phenomenon of the judicialization of politics also suggests other avenues that merit study. Current news provides frequent examples of the intrusion of the judicial into spheres where the democratic will and public debate should in theory reign supreme. Considered from a historical perspective, this phenomenon allows for reflections on the role of justice in the construction of the public sphere, for example through examinations of such long-standing issues as judicial independence or the political uses of the courts.
- Finally, there is the growing importance of state justice as a locus for the resolution of conflicts related to broader social issues. Since at least the end of the nineteenth century, the justice system has in effect become a central part of the development of new forms of state intervention in areas such as labour, health or childhood. To what extent and in what manner was this a form of judicialization of social problems, whereby areas previously considered private became objects of state intervention ?
Proposals should be sent to : firstname.lastname@example.org. More information is here. Hat tip: H-Law.
Wednesday, July 23, 2008
Reviewed: Mayer, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals
“The Dark Side,” Jane Mayer’s gripping new account of the war on terror, is really the story of two wars: the far-flung battle against Islamic radicalism, and the bitter, closed-doors domestic struggle over whether the president should have limitless power to wage it. The euphemistically named but often grisly particulars of the fight against Al Qaeda — the “extraordinary renditions” by hooded agents in unmarked planes, the secret “black site” prisons across the globe, the “enhanced” interrogation techniques, the “reverse rendition” of detainees lucky enough to be found innocent and dumped blindfolded at remote borders — are harrowingly recounted here, complete with fresh revelations. But in Ms. Mayer’s hands the story of bureaucratic jockeying in well-upholstered offices and in the fine print of legal documents makes for an equally absorbing and disturbing story. It’s a cage match between the Constitution and a cabal of ideological extremists, and the Constitution goes down.
Tuesday, July 22, 2008
Mullins reviews Slaughter, Human Rights, Inc.: The World Novel, Narrative Form, and International Law
The title of Joseph Slaughter's masterful new book Human Rights, Inc. accurately suggests that the author offers a critical view of contemporary human rights work as too closely allied with corporations and the market logics that late capitalism so assiduously promotes. But rather than analyzing the political economy of human rights, Slaughter takes the question of human rights"incorporation" in an entirely new--and urgently needed--direction. Liberal ideology and neoliberal economic practices may well provide one context for understanding the rapid diffusion of human rights discourse over the past six decades, but Slaughter asks us to consider how human rights have come to make sense--in his phrase, to make common sense--to billions of people from heterogeneous social, philosophical, and theological backgrounds. His answer: that the conceptual framework of rights has been incorporated not only intonational constitutions and international covenants but also into modern human subjectivity. Most startlingly, he argues that a great deal of this incorporative work has been accomplished by a particular genre of novel: the Bildungsroman.
This is an argument that will especially appeal to literary historians, for Slaughter has infused renewed vitality into the critical history of the novel.Readers outside literature departments may wish to read his second chapter especially carefully in order to appreciate what the Bildungsroman is, and what it has to do with human rights. Essentially, Slaughter builds on the work of Georg Lukács and other historians and theorists of the novel who have argued that novels of "Bildung" (or the maturation and self-formation of a youthful protagonist, typically through a journey and a series of challenges) enact as a cultural practice the emergence of the modern, bourgeois, liberal subject of rights. Slaughter brings to this long-standing appreciation of the ideological dimensions of the Bildungsroman the critical practices of postcolonial theory,and he closely analyzes a handful of expertly selected novels from Europe,Latin America, Africa, and the South Asian diaspora.
What emerges from his sustained scrutiny of the "world novel's" engagement with Bildung through the lens of political, literary, and cultural theory is the bracing argument that narrative fiction acts "as a cultural surrogate for the missing warrant and executive sanction of human rights law, supplying (in both content and form) a culturally symbolic legitimacy for the authority of human rights law and the imagination of an international human rights order" (p. 85). Put another way, novels perform the work of incorporating, naturalizing, and normalizing human rights in diverse societies--so that people around the world today believe in human rights even though states flagrantly violate them, and even though international enforcement of human rights is at best highly constrained.
Military commission underway
The DefenseLink military commission site maintains an extensive collection of filings and scheduling information on the Hamdan trial and the commissions in general. Reviewing the documents posted there suggests how daunting it is to create, sui generis, a brand-new criminal justice system. Dozens of motions and hundreds of exhibits (most heavily redacted) demonstrate the struggle facing prosecutors, defense counsel, judges, and commission members as they try to fit the familiar practice of courts-martial and federal criminal trials into the byzantine rules of the military commissions. Uncertainty persists at every turn, from bureaucratic detail to animating concepts: Were counsel appropriately detailed or inappropriately replaced? Whither expert witnesses? What constitutes "armed conflict"? And of course, the most remarked-upon feature of the trials, the battle over the potential admissibility of evidence obtained via torture. In the World War II Nazi saboteur case, the most frequently cited historical predecessor to the new commissions, there were but a handful of military lawyers and officers who worked for but a few weeks; today, there have already been hundreds of attorneys and military officers involved during the nearly seven years since the President's first military order regarding the trial of detainees.
Monday, July 21, 2008
How to get an NEH Grant
In 2007, NEH received 4,498 applications for projects ranging from documentary filmmaking to the preservation of artifacts to institutes for schoolteachers to scholarly research. Most of these applications were turned down. Is it so hard to get a grant from NEH? In a word, yes. We can fund only a small portion of the applications we receive, and the competition is stiff.
Given the odds, some applicants have wondered if there is a secret to getting a grant. A magic formula or maybe a special handshake? Well, actually, no.
One of the tips:
Does my project have a strong humanities component? That’s the first question you should ask yourself if you’re thinking about applying for an NEH grant. We hate to belabor the obvious, but if a major portion of your project is not devoted to some area or topic in the humanities, it won’t be funded.
Read the rest here. Many of the suggestions are good advice when applying for funding from any source.
Sunday, July 20, 2008
Weekend Booknotes: constitutional design, Rorty, animal protection, and more
Cindy Skach's book on Weimar Germany and the French Fifth Republic is a treasure trove of insights not only about the politics of these two countries, but also about the more general significance of constitutional design for the effective functioning of a political system. It brings to the fore the particular political system of 'semi-presidentialism' and offers cautionary analyses for those tempted to believe that it is the perfect 'third way' between parliamentarianism and presidentialism. It deserves wide readership among historians, political scientists, and legal academics.
Saturday, July 19, 2008
Huang on Modern European Jurisprudence and the Japanese Reconstruction of Qing Political Law
Mehrotra on Mergers, Taxes, and Historical Materialism
Friday, July 18, 2008
Fernandez on Copying and Copyright Issues at the Litchfield Law School
Thursday, July 17, 2008
Grechenig and Gelter compare Law and Economics in Germany and the United States
Wednesday, July 16, 2008
Marriage in California
The National Center for Lesbian Rights (NCLR) argued in its petition that the initiative, which would strip same-sex couples of the right to marry, is such a significant change in the California Constitution that it constitutes a revision, not a mere amendment, to the Constitution and therefore requires a more deliberative democratic process before being presented to voters. If passed, the measure would strip a fundamental right from a specified minority – which is just the sort of majoritarian action that courts, not electorates, are best positioned to reckon with. Donna Ryu, a clinical professor of law at
For me, having recently moved into the democratic chaos of
But it’s being part of a California lesbian family that makes me feel as if history –and marriage—have been thrust upon me, like it or not. Everyone has asked, “so, are you getting married now?!” Yes, I think we are, but I can’t help but be startled by the question. Perhaps I should have spent more time preparing for this moment of liberation; instead, I was figuring out how to build a relationship in spite of legal and political obstacles--and developing a healthy skepticism about marriage as an institution. From Harriet Jacobs, Incidents in the Life of a Slave Girl (302): “Reader, my story ends with freedom; not in the usual way, with marriage.”
Kornhauser on Hidden Taxes and the 1936 Election
Tuesday, July 15, 2008
Civilians and war casualties
Much like Drew Faust's recent book on the dead of the Civil War, The Republic of Suffering: Death and the American Civil War (Knopf, 2008), Slim's book (if less elegantly, with the fervor of a humanitarian activist rather than the authority of a master historian) helps to strip away the veneer of civility that we routinely impose on the brutality of modern warfare.
Slim identifies common military strategies as blatantly "anti-civilian" and suggests (hopefully) that "pro-civilian thinking and behavior" (7) can alter the violent balance of war and shift conflict toward the protection of civilians. He writes that "[a]bove all, this is a book about intention and suffering, identity and ambiguity, tolerance and compassion" (7). He seeks to complicate our understanding not simply of "citizen" or "soldier" but of "civilian" itself (8).
Slim's effort to sort out the essence and liabilities of the "civilian" label is especially intriguing;
he points out that civilians are often regarded with suspicion and as lacking integrity by soldiers, and that the sacrificial rhetoric of war accepts, and even promotes, not only military but also civilian casualties as a necessary prerequisite to positive change. Death and suffering can become their own justification in the face of a need to give meaning to tremendous and otherwise inexplicable loss -- a reckoning that Faust finds in the mourning for and celebration of the Civil War dead (her preface is entitled "The Work of Death"). She writes that Oliver Wendell Holmes Jr.'s 1895 Memorial Day Speech "became emblematic of the elegiac view of the war that hailed death as an end in itself" (The Republic of Suffering, 270).
For a military historian's perspective on Slim's volume and other aspects of war, past and present, see Mark Grimsley's blog. Grimsley is a historian at Ohio State who is now the Harold K. Johnson Professor of Military History at the U.S. Army War College.
Grossman on the categories of "food" and "drug" in legal history
Hovenkamp on The Neoclassical Crisis in U.S. Competition Policy, 1890-1955
Monday, July 14, 2008
Lim on The Great Power Balance, the United Nations, and What the Framers Intended
Sunday, July 13, 2008
Moore on Sir Thomas More's Final Years: Silence, Silencing and Constitutional Change
Through an examination of Sir Thomas More's final years, culminating with his trial on charges of treason, and with particular attention to the theme of silence, this article studies the profound constitutional amendment which attended the English Reformation. More is remarkable not only for having opposed Henry VIII's procurement of this amendment, but particularly for having expressed his dissidence through a principled silence, thereby refusing to express either support for, or censure of, the king. The author begins by arguing that this silence expressed a precise anti-Reformation argument of constitutional law. The author then turns to More's trial and, holding that it constituted the forum within which the new, post-Reformation, English constitution was founded, argues that the precise mode of the new constitution's founding was the silencing of the old legal order by the new.
Saturday, July 12, 2008
80 Essential History Blogs
If you're wondering where to get started, today Ralph Luker posts a list of just eighty. "There is a group of history blogs that seem to me to be central to history blogging," he writes.
I don't presume to say that they are The Top 100 Liberal Arts Professor Blogs. Nor do I even suggest that they are better than other history blogs that are not on the list. I do mean to say that, without them, history education on the internet would be seriously impoverished. Below the fold are 80 history blogs that I recommend. You'll recognize some of them. Others, you may not yet have discovered:
- AHA Today
- Ancient World Bloggers Group
- Axis of Evel Knieval
- Blog Them Out of the Stone Age
- The Bowery Boys
- Britannica Blog
- Built History
- Cabinet of Wonders
- Cardinal Wolsey's Today in History
- Chapati Mystery
- The China Beat
- Civil War Memory
- Civil Warriors
- A Corner of 10th Century Europe
- Curious Expeditions
- Early Modern Notes
- Early Modern Whale
- Easily Distracted
- The Edge of the American West
- Europe Endless
- A Historian's Craft
- History is Elementary
- History Unfolding
- Hugo Schwyzer
- Pink Tentacle
- Politics & Letters
- Positive Liberty
- Progressive Historians
- The Proletarian
- Public Historian
Thanks to Ralph, and happy reading, everyone!