CFP Workshop on the UN War Crimes Commission

[We have the following announcement.  DRE]

The United Nations War Crimes Commission (UNWCC), which operated from 1943-48, was a UN agency that supported localised prosecutions of international crimes committed during the Second World War. The Commission was composed of representatives from 16 Allied States and through its work war crimes and crimes against humanity were prosecuted in tribunals located in Europe and the Far East. Over the course of its lifetime, more than 2000 trials took place. The work of the UNWCC gives an insight into substantive and procedural international criminal law in the post war period.

Dr. Amina Adanan of Maynooth University Law Department is organising two online events this year, as part of her project on the UNWCC funded by the Royal Irish Academy. The aim of the project is to bring together UNWCC scholars from all over the world in an international collaborative network.

The first of these virtual events is a workshop, which will take place on 28 May 2021. The online workshop is an opportunity for UNWCC scholars to present on any aspect of their UNWCC research and receive feedback on their work from the other experts and attendees in a constructive environment. Presentations will be 10-15 mins and the event will include keynote lectures by leading scholars on the UNWCC.

Submissions for active participation in the workshop are sought by scholars working in the field. The closing date for submissions is 20 April 2021. For more information please click here.

Welcome, Samuel Fury Childs Daly!

 We are delighted to welcome our guest blogger for the month of April: Samuel Fury Childs Daly (Duke University). 

Professor Daly is a historian of twentieth-century Africa. His research combines the methods of legal, military, and social history to examine the post-independence period in both West and East Africa. He is the author of A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020), a study of the Biafra War (1967-70). Using an original body of legal records from the secessionist Republic of Biafra, the book looks at how technologies, survival practices, and moral ideologies emerging from the fighting shaped how crime was practiced and perceived after Biafra's defeat. Connecting the violence of the battlefield to violent crime, it sheds new light on law and politics in Africa after colonialism. 

Prof. Daly's current project is a transnational history of military desertion over the longue durée. From desertion in 17th-century Kongo armies to the African experience in the world wars, this project reveals how leaving the battlefield could be a productive act. At many points in African history, deserters founded communities, created new social orders, and generated fresh ideas about honor and obligation. 

Prof. Daly's other research interests include the global history of drug trading, customary law in the British empire, and the history of policing and prisons.

Welcome, Professor Daly!

--Mitra Sharafi

Law, Literature and America's Wars

Just out from the Oxford University Press: Cannons and Codes: Law, Literature, and America's Wars, edited by Alison L. LaCroix, Jonathan S. Masur, and Martha C. Nussbaum:

It can be said that western literature begins with a war story, the Iliad; and that this is true too of many non-Western literary traditions, such as the Mahabharata. And yet, though a profoundly human subject, war often appears to be by definition outside the realm of structures such as law and literature. When we speak of war, we often understand it as incapable of being rendered into rules or words. Lawyers struggle to fit the horrors of the battlefield, the torture chamber, or the makeshift hospital filled with wounded and dying civilians into the framework of legible rules and shared understandings that law assumes and demands. In the West's centuries-long effort to construct a formal law of war, the imperative has been to acknowledge the inhumanity of war while resisting the conclusion that it need therefore be without law. Writers, in contrast, seek to find the human within war--an individual story, perhaps even a moment of comprehension. Law and literature might in this way be said to share imperialist tendencies where war is concerned: toward extending their dominion to contain what might be uncontainable.

Law, literature, and war are thus all profoundly connected--and it is this connection this edited volume aims to explore, assembling essays by preeminent scholars to discuss the ways in which literary works can shed light on legal thinking about war, and how a deep understanding of law can lead to interpretive insights on literary works. Some of the contributions concern the lives of soldiers; others focus on civilians living in war zones who are caught up in the conflict; still others address themselves to the home front, far from the theatre of war. By collecting such diverse perspectives, the volume aims to illuminate how literature has reflected the totalizing nature of war and the ways in which it distorts law across domain.

TOC after the Jump.  DRE

Digital Exhibit: Horace R. Hansen and the Dachau War Crimes Trial

The Riesenfeld Rare Books Research Center at the University of Minnesota Law Library has mounted a new digital exhibit, A Witness to Barbarism: Horace R. Hansen and the Dachau War Crimes Trial.  From the exhibit:

The Dachau War Crimes Trials (1945–1947) represent the most extensive prosecutions undertaken by the occupying American forces in post-World War II Germany. In two years of American military trials, 489 criminal cases and 1,672 defendants were tried at Dachau. 1,416 individuals were convicted of crimes committed under the Nazi regime, and 279 death sentences were handed down. Together with the Nuremberg Trials (IMT and NMT), Tokyo Trial (IMTFE), and others, the Dachau Trials set a new standard for the prosecution of war crimes under international law, the legacy of which continues today.

Captain Horace R. Hansen (1910–1995), a graduate of the University of Minnesota and St. Paul College of Law, served as a chief prosecutor of the War Crimes Division of the U.S. Third Army in occupied Germany. From late 1945 to 1946, Hansen and his staff gathered evidence and helped to prepare cases for trial at Dachau, including three of the main concentration camp cases: the Dachau camp trial, and the Buchenwald and Mauthausen camp trials. Hansen’s work at Dachau helped to secure the convictions of Nazi war criminals and contributed to a historic new precedent for war crimes trials.

This exhibit provides a narrative of Horace Hansen’s work at Dachau and the main Dachau concentration camp trial. It also contains a section on Hansen’s journey to Dachau as a soldier and war crimes investigator, and on the genesis of Hansen’s later book about his experience, Witness to Barbarism (2002). The menu items at left correspond to the respective sections of the exhibit. The selected documents on this site include the full transcript of the Dachau concentration camp trial, other material related to the Dachau trials, and to Hansen’s wartime service. The documents and photographs are drawn from Horace R. Hansen’s archive, preserved in the Riesenfeld Rare Books Research Center at the University of Minnesota Law Library.

--Dan Ernst

Malcolm to Lecture on Benedict Arnold

The first lecture in a four-part series sponsored by the Norwich Historical Society in collaboration with the Connecticut League of History Organization will be delivered by Joyce Lee Malcom, George Mason University, the author of The Tragedy of Benedict Arnold: An American Life, on that Norwich-born figure's "complicated life."  The lecture, which will be held Thursday, Jan. 28, at 3 p.m. via Zoom, is is "free and open to the public, but pre-registration is required, here.

--Dan Ernst

Hirsch's "Soviet Judgment at Nuremberg" at WHS

The next meeting of the Washington History Seminar will be devoted to Francine Hirsch, University of Wisconsin-Madison, and her book, Soviet Judgment at Nuremberg: A New History of the International Military Tribunal After World War II.  It will be held on Thursday, November 12 at 4:00 pm ET.  Click here to register.

Organized in the wake of World War Two by the victorious Allies, the Nuremberg Trials were intended to hold the Nazis to account for their crimes and to restore a sense of justice to a world devastated by violence. As Francine Hirsch reveals in her groundbreaking new book, a major piece of the Nuremberg story has routinely been left out: the critical role of the Soviet Union. Soviet Judgment at Nuremberg offers a startlingly new view of the International Military Tribunal and a fresh perspective on the movement for international human rights that it helped launch.

--Dan Ernst

Gerstle & Isaac, eds., "States of Exception in American History"

New from the University of Chicago Press: States of Exception in American History, edited by Gary Gerstle (University of Cambridge) and Joel Isaac (University of Chicago). A description from the Press:

States of Exception in American History brings to light the remarkable number of instances since the Founding in which the protections of the Constitution have been overridden, held in abeyance, or deliberately weakened for certain members of the polity. In the United States, derogations from the rule of law seem to have been a feature of—not a bug in—the constitutional system.

The first comprehensive account of the politics of exceptions and emergencies in the history of the United States, this book weaves together historical studies of moments and spaces of exception with conceptual analyses of emergency, the state of exception, sovereignty, and dictatorship. The Civil War, the Great Depression, and the Cold War figure prominently in the essays; so do Francis Lieber, Frederick Douglass, John Dewey, Clinton Rossiter, and others who explored whether it was possible for the United States to survive states of emergency without losing its democratic way. States of Exception combines political theory and the history of political thought with histories of race and political institutions. It is both inspired by and illuminating of the American experience with constitutional rule in the age of terror and Trump.

Some chapters that are especially likely to interest our readership:

2 Negotiating the Rule of Law: Dilemmas of Security and Liberty Revisited

Ewa Atanassow and Ira Katznelson

4 The American Law of Overruling Necessity: The Exceptional Origins of State Police Power

William J. Novak

5 To Save the Country: Reason and Necessity in Constitutional Emergencies

John Fabian Witt

6 Powers of War in Times of Peace: Emergency Powers in the United States after the End of the Civil War

Gregory P. Downs

9 Constitutional Dictatorship in Twentieth-Century American Political Thought

Joel Isaac

10 Frederick Douglass and Constitutional Emergency: An Homage to the Political Creativity of Abolitionist Activism

Mariah Zeisberg

 

More information is available here.

 

-- Karen Tani

Losano on War Prohibitions in Postwar Constitutions of Japan, Italy and Germany

The Max Planck Institute for European Legal History announces a new publication, Three constitutions against war: Japan, Italy, Germany, by Mario G. Losano.  It is Volume 14 of the Open Access series Global Perspectives on Legal History:

The three defeated powers from the Second World War incorporated provisions prohibiting wars of aggression into their post-war constitutions, which are still in force. The first part of the book covers the difficult years for Japan, Italy and Germany between the end of the war and the start of peace (with the Nuremberg and Tokyo Trials, denazification, reparations and the renewal of the school system), analysing the birth of the three constitutions between 1947-49.

The consequences of defeat were different in each of the three countries, and hence each followed its own path in formulating the prohibition on war. However, the division of the world into two hostile blocs required the three countries to rearm, thus launching a process that resulted in the watering down of the original prohibition on war. In fact, the three countries’ involvement in international bodies requires each of them to participate in new wars, which are now branded as “peacekeeping” missions. There have thus been increasingly frequent calls to modify or even revoke these pacifist articles, above all in Japan (due to its geopolitical position).

The second part looks at three extensive annexes of documents that detail a specific aspect of each of the three states’ constitutional pathways. Japanese pacifism is examined with reference to the Allied documents that laid the groundwork for the post-war constitution. This leads to a consideration of current political debates concerning the amendment of the pacifist article, under pressure from Russian and Chinese interests coupled with the threat of North Korean aggression. With regard to Italy, its interest in Japan through the figure of the soldier-poet Gabriele D’Annunzio and his “samurai brother” is considered, alongside the now-forgotten “Partisans for Peace” movement, drawing on two unpublished documents. Germany, on the other hand, was divided into two countries after the World War II, with West Germany adopting a “Basic Law”, which has now been extended to the reunified Germany. The book considers excerpts from the reports of the constituent assembly concerning the adoption of the pacifist article. The equivalent East German legislation is documented in more summary terms, as that legal system is now little more than a historical footnote.

This threefold historical-constitutional inquiry provides an account of the birth and development of the pacifist article imposed by the victorious Allies, thus allowing for a better understanding of current debates concerning its impending modification.

--Dan Ernst

Benvenisti & Lustig, "Monopolizing War: Codifying the Laws of War to Reassert Governmental Authority, 1856–1874"

The February 2020 issue of the European Journal of International Law includes an article that may be of interest to readers: "Monopolizing War: Codifying the Laws of War to Reassert Governmental Authority, 1856–1874," by Eyal Benvenisti (University of Cambridge/Hebrew University of Jerusalem) and Doreen Lustig (Tel Aviv University). Here's the abstract:

In this article, we challenge the canonical narrative about civil society’s efforts to discipline warfare during the mid-19th century – a narrative of progressive evolution of Enlightenment-inspired laws of war, later to be termed international humanitarian law. Conversely, our historical account shows how the debate over participation in international law-making and the content of the law reflected social and political tensions within and between European states. While the multifaceted influence of civil society was an important catalyst for the inter-governmental codification of the laws of war, the content of that codification did not simply reflect humanitarian sensibilities. Rather, as civil society posed a threat to the governmental monopoly over the regulation of war, the turn to inter-state codification of IHL also assisted governments in securing their authority as the sole regulators in the international terrain. We argue that, in codifying the laws of war, the main concern of key European governments was not to protect civilians from combatants’ fire, but rather to protect combatants from civilians eager to take up arms to defend their nation – even against their own governments’ wishes. We further argue that the concern with placing ‘a gun on the shoulder of every socialist’ extended far beyond the battlefield. Monarchs and emperors turned to international law to put the dreaded nationalist and revolutionary genies back in the bottle. These concerns were brought to the fore most forcefully in the Franco-Prussian War of 1870–1871 and the subsequent short-lived, but violent, rise of the Paris Commune. These events formed the backdrop to the Brussels Declaration of 1874, the first comprehensive text on the laws of war. This Declaration exposed civilians to war’s harms and supported the growing capitalist economy by ensuring that market interests would be protected from the scourge of war and the consequences of defeat.

The full article is gated, unfortunately.
-- Karen Tani

Waxman on Hughes and the War Power

Matthew C. Waxman, Columbia Law School, has posted Constitutional War Powers in World War I: Charles Evans Hughes and the Power to Wage War Successfully, which appeared in  the Journal of Supreme Court History 44 (November 2019): 267-277:

Charles Evans Hughes (NYPL)

On September 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” This moment and those words were a collision between the onset of “total war,” Lochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes’s statement—including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.

--Dan Ernst

Bohrer on the Attempt to Try the Kaiser

Ziv Bohrer, Bar-Ilan University Faculty of Law, has posted The (Failed) Attempt to Try the Kaiser and the Long (Forgotten) History of International Criminal Law: Thoughts Following The Trial of the Kaiser by William A Schabas, which appears in the Israel Law Review 53 (2020): 159-186

Kaiser Wilhelm II (NYPL)

The conventional historic account maintains that International Criminal Law (ICL) was ‘born’ after the Second World War. This account is incomplete, as William Schabas’s book – The Trial of the Kaiser (2018) – captivatingly shows, by richly portraying the (aborted) First World War initiative to try the German Kaiser in an international tribunal. But, this article (after providing an overview of Schabas’s book) argues that Schabas’s account, of a First World War ICL ‘birth’, is also incomplete. First World War-era ICL was but one link in a much longer historical chain. The article demonstrates this fact by presenting certain elements of ICL’s long (forgotten) history that provide answers to questions that have been left unanswered, not only by the conventional account (of a Second World War ICL ‘birth’), but also by Schabas’s account (of a First World War ICL ‘birth’). As the article shortly discusses, the unveiling of a greater ICL history indicates that international criminal tribunals were not a modern innovation, as well as reveals the origins of ‘crimes against humanity’, of ‘aggression’ and of the universal jurisdiction doctrine. The article further discusses reasons for the dis-remembrance of ICL’s long history, the importance of acknowledging that history and the likelihood of it becoming widely acknowledged any time soon. 

--Dan Ernst

Waxman and Weitzman on the Montgomery Ward Seizure

Over at Lawfare, Matthew Waxman and Samuel Weitzman have posted a nice essay, with Francis Biddle at its center, Remembering the Montgomery Ward Seizure: FDR and War Production Powers.

Chen on the Chinese Tradition of Administrative Law

Albert H. Y. Chen, The University of Hong Kong Faculty of Law, has posted The Chinese Tradition of Administrative Law:

For most of the time during the last two millennia, China was a dynastic empire ruled by an emperor with the assistance of a highly developed mandarinate of imperial organs. “Administrative law” in the modern sense of a set of legal norms enacted by the legislature or developed by the judiciary that simultaneously empower and constrain state organs and officials for the purpose of protecting the rights and liberties of subjects or citizens did not exist in traditional China. But there did exist for more than two millenniums elaborate and sophisticated rules regulating the powers and functions of each component of the highly complex and extensive machinery of imperial organs and officials, and prescribing in detail the duties of officials as well as the multiple and complicated monitoring, supervisory and disciplinary mechanisms applicable to the exercise of powers and performance of duties by officials in different state organs.

By the late 19th century, Qing China’s increasing subordination to Western imperialism and semi-colonialism convinced significant numbers of Chinese political and scholarly elite that there was a desperate need for China to “save” and strengthen itself by pursuing modernization. In the legal and political domains, this generally meant extensive borrowing or transplant of Western political and legal institutions. After China's defeat by Japan in the Sino-Japanese War of 1894–1895, Japan’s experience of successful modernisation was widely admired by Chinese intellectuals, and the Japanese model was perceived as one that China should imitate in its self-strengthening efforts.

This essay will therefore begin with the introduction and reception of Japanese administrative law in China in the late Qing Dynasty. It will then survey the study of comparative law and the influence of foreign law on the development of Chinese administrative law in the Republic of China era (1911–1949) and after the establishment of the People's Republic of China (1949-). Major developments in Chinese administrative law in both the Republican era and the Communist era will also be briefly outlined as the context of administrative law scholarship. It will be seen that the story of the study of comparative and foreign administrative law in modern China is very closely intertwined with the story of the development of Chinese administrative law itself.

--Dan Ernst

Kelly on Militarized Medicine and Corporate Punishment in Australia

Catherine Kelly, University of Bristol, has posted Medicine, Law, and the Lash: Militarized Medicine and Corporal Punishment in the Australian Colonies 1788–1850, which is forthcoming in Legal History:

The service of medical practitioners in the early Australian colonies was inextricably bound up with a heavily militarized culture. This article explores the relationships between those medical practitioners, legal punishment, and the British Empire in the first half of the nineteenth century. The service of medical practitioners in the Australian colonies, coming as it did so close on the heels of two generations of war, gives us an important insight into the effects of the Napoleonic wars both upon the practice of medicine in the service of the British State, and also the State’s attitude to the use of medical expertise. In the military spaces of transport and colony, the medical officer became an important lynch pin in the discipline and control exercised over convict bodies. Military medical expertise was useful to the State in understanding the best ways to discomfort and hurt convicts, without quite killing them. This expertise was further cultivated by the State in the ongoing design of the medical role in the colonies that came to hark forward to the prison officer of the later nineteenth century whose position, balanced precariously between punishment and care, has been of such interest to penologists and medical historians.

–Dan Ernst

Weekend Roundup

• Reuven S. Avi-Yonah, University of Michigan Law School, has posted Why Study Tax History?, a review of volume 9 of Studies in the History of Tax Law, ed. P. Harris and D. de Cogan (Hart, 2019). 

• Congratulations to Emory Law's Deborah Dinner upon her being selected for an ACLS Frederick Burkhardt Residential Fellowship.  She received it for A Nation at Risk: Private Insurance and the Law in Modern America.  Congratulations, too, to Erik Linstrum, Associate Professor, History, University of Virginia, for Age of Emergency: Living with Violence at the End of Empire.

• Mary Dudziak recently tweeted out a link to the panel she moderated at SHAFR on in 2017 on War, Law, and Restraint, with Rosa Brooks, Jack Goldsmith, Helen Kinsella and John Fabian Witt.

• Some thoughts on epidemics in South Asian legal history: how the 1896 bubonic plague hit legal Bombay (-MS).  Voting during the Spanish Flu (Slate) and in today's NYT.  Polly J. Price (Emory) on quarantine in US history.  Frank Snowden’s lectures on “Epidemics in Western Society Since 1600,” including the final one, which calls “SARS, avian flu, and swine flu as ‘dress rehearsals’ for ‘something more serious.’” H/t: John Fabian Witt

• Ellen Carol DuBois on The Thorny Road to the Nineteenth Amendment (Smithsonian).

• There's a ton of ideas flying around as instructors switch to online teaching. Our Twitter favorites: a timely assignment idea if your other lesson plans fall through, some online archives you may not know about, academic resources going open-access, and even kindly guest lecture offers. And of course: "I Will Survive" and the horse drawing.  Also, it turns out you aren't funnier than Arkansas Law's Alex Nunn.  (Wait for it!)

•  Last weekend we mentioned Reuel Schiller's chapter in Beyond the New Deal Order: U.S. Politics from the Great Depression to the Great Recession, edited by Gary Gerstle, Nelson Lichtenstein, and Alice O’Connor (University of Pennsylvania Press, 2019).  Here's another chapter of interest: Sophia Z. Lee (University of Pennsylvania): "Rights in the New Deal Order and Beyond."

• From the Washington Post's "Made by History" section: William Horne (Villanova University), "In the hands of racist officials, the covid-19 pandemic may be a weapon." 

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

Weekend Roundup

• The conference Critical Legal Studies: Intellectual History and the history of the present, will be held at Princeton University, on February 27-28, 2020.  “Prompted by plans to create a Critical Legal Studies Archive at the Princeton University Mudd Library, the conference will bring together those who participated in CLS in its heyday; key figures from contemporaneous movements in the US and abroad; and people interested today in this history and its contemporary significance.”  The conference is free and open to the public and sponsored by Princeton's Program in Law and Public Affairs.

• Over at Lawfare: Matthew Waxman, Columbia Law, on The Mexican-American War and Constitutional War Powers.

• Kellen Funk, Columbia Law, has Twitter-reviewed Mortenson and Bagley's Nondelegation at the Founding.

• At The Historical Society of the New York State Courts: A biographical sketch of Harold Arnoldus Stevens.  Also, a YouTube video in which member of the Society's Board of Trustees discusses "how we have tragically lost details of historic NY events of national importance."
  

• ICYMI: Exploring the history of Underground Railroad, in the Youngstown Vindicator.  Brooklyn’s courts celebrate Black History Month, in the Brooklyn Daily Eagle.  One barrister's love for the horse hair wig, courtesy of the ABC and Law Fuel.   Law in frontier Oregon, in the Redmond Spokesman.  Better late than never: The NYT obituary of Homer Plessy.

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

Kessler on the New Look Selective Service System

Jeremy Kessler, Columbia Law School, has posted New Look Constitutionalism: The Cold War Critique of Military Manpower Administration, which is forthcoming in the University of Pennsylvania Law Review 167 (2019): 1749-1782:

Between 1953 and 1960, the United States’ overall military and intelligence-gathering capacities grew enormously, driven by President Eisenhower’s “New Look” approach to fighting the Cold War. But the distribution of powers within this New Look national-security state, the shape of its institutional structures, and its sources of legitimacy remained up for grabs. The eventual settlement of these issues would depend on administrative constitutionalism—the process by which the administrative state both shapes and is shaped by constitutional norms, often through ostensibly non-constitutional law and policymaking.

Constitutional concerns about civil liberties, administrative procedure, and the separation of powers ran highest in those branches of the national security state responsible for regulating civilian and military manpower, such as the Loyalty-Security Program, an inter-agency effort to root out ideologically deviant federal employees, and the Selective Service System, the civilian agency created in 1940 to register, classify, and select millions of young men for compulsory military service. This Article focuses on the Selective Service System, which has received far less attention from legal scholars despite the fact that it exercised authority over a far larger (and arguably more vulnerable) population than did the Loyalty-Security Program. Administrative constitutionalism inflected every stage of the New Look draft’s development: from the size and composition of draft calls; to the arguments that draft administrators made when lobbying their congressional patrons; to the competing interpretations of the Selective Service System’s organic statute and regulations offered by Justice Department and Selective Service lawyers; to judicial review of these interpretations; to how executive branch lawyers responded to—and sometimes tried to preempt—judicial criticism by modifying the substance and procedure of draft decisionmaking.

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may be more usefully understood as products, rather than preconditions, of administrative constitutionalism.

--Dan Ernst

Downs, "The Second American Revolution The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic"

The University of North Carolina Press has published The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic (Nov. 2019), by Gregory P. Downs (University of California, Davis). A description from the Press:

Much of the confusion about a central event in United States history begins with the name: the Civil War. In reality, the Civil War was not merely civil--meaning national--and not merely a war, but instead an international conflict of ideas as well as armies. Its implications transformed the U.S. Constitution and reshaped a world order, as political and economic systems grounded in slavery and empire clashed with the democratic process of republican forms of government. And it spilled over national boundaries, tying the United States together with Cuba, Spain, Mexico, Britain, and France in a struggle over the future of slavery and of republics.

Here Gregory P. Downs argues that we can see the Civil War anew by understanding it as a revolution. More than a fight to preserve the Union and end slavery, the conflict refashioned a nation, in part by remaking its Constitution. More than a struggle of brother against brother, it entailed remaking an Atlantic world that centered in surprising ways on Cuba and Spain. Downs introduces a range of actors not often considered as central to the conflict but clearly engaged in broader questions and acts they regarded as revolutionary. This expansive canvas allows Downs to describe a broad and world-shaking war with implications far greater than often recognized.

Advance praise:

"A bold and refreshing interpretation of the Civil War that challenges scholars to bring the singular story out of its narrow, hyperspecialized confines of national history, reframing it into a watershed moment shaped by hemispheric and global forces that remade the nineteenth-century Atlantic world."--Matt D. Childs

"With beautiful, elegant prose, Downs takes the old topic of the revolutionary quality of the Civil War and moves it forward in unexpected and exciting ways by putting it in conversation with the revolutionary nature of the Atlantic in the same period. This is a truly pioneering and innovative book."--Michael Vorenberg

More information is available here.

-- Karen Tani

Haan on the Dow Proxy Fight over Napalm

Sarah C. Haan, Washington and Lee University School of Law, has posted Civil Rights and Shareholder Activism: SEC v. Medical Committee for Human Rights, which is forthcoming in the Washington and Lee Law Review:

Napalm Bomb Production, Rocky Mountain Arsenal (LC)

Between 1968 and 1972, Medical Committee for Human Rights, a civil rights organization, fought the Dow Chemical Company and the U.S. Securities and Exchange Commission over its shareholder rights. The battle focused on a shareholder proposal demanding that Dow stop selling napalm for use in the Vietnam War. Dow rejected Medical Committee’s proposal and the SEC approved the company’s decision to exclude it from its proxy statement. However, in 1970, on the heels of the most tumultuous proxy season in American history, a unanimous, 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit sided with Medical Committee and suggested that the napalm proposal should have gone to a shareholder vote. The D.C. Circuit’s decision, authored by a conservative federal judge, faulted the SEC for failing to justify Dow’s inhibition of corporate democracy, in which Dow’s shareholders would have considered whether to “have their assets used in a manner which they believe to be more socially responsible but possibly less profitable than that which is dictated by present company policy.”

Ultimately, Medical Committee’s fight reached the U.S. Supreme Court, where it was billed as one of the term’s major cases. But after a last-minute reversal by the SEC, Justice Thurgood Marshall declared the case moot, and Medical Committee’s gains for corporate democracy were lost. Justice William O. Douglas, who had once served as the Chair of the SEC, dissented, noting presciently that the issues raised by the case were unlikely to go away.

As civil rights history, SEC v. Medical Committee for Human Rights has never received much attention. As corporate law history, it has largely receded from memory. Yet the case marked the beginning of a period, spanning decades and leading up to the current day, in which the contours of corporate democracy have remained vague and contested. Offering new insights from archival documents, this Article tells the history of this important litigation.

--Dan Ernst

Morieux on 18th-century prisoners

Due out in November 2019 by Renaud Morieux, University of Cambridge is The Society of Prisoners: Anglo-French Wars and Incarceration in the Eighteenth Century with Oxford University Press. From the publisher:

In the eighteenth century, as wars between Britain, France, and their allies raged across the world, hundreds of thousands of people were captured, detained, or exchanged. They were shipped across oceans, marched across continents, or held in an indeterminate limbo. The Society of Prisoners challenges us to rethink the paradoxes of the prisoner of war, defined at once as an enemy and as a fellow human being whose life must be spared. Amidst the emergence of new codifications of international law, the practical distinctions between a prisoner of war, a hostage, a criminal, and a slave were not always clear-cut. Renaud Morieux's vivid and lucid account uses war captivity as a point of departure, investigating how the state transformed itself at war, and how whole societies experienced international conflicts. The detention of foreigners on home soil created the conditions for multifaceted exchanges with the host populations, involving prison guards, priests, pedlars, and philanthropists. Thus, while the imprisonment of enemies signals the extension of Anglo-French rivalry throughout the world, the mass incarceration of foreign soldiers and sailors also illustrates the persistence of non-conflictual relations amidst war. Taking the reader beyond Britain and France, as far as the West Indies and St Helena, this story resonates in our own time, questioning the dividing line between war and peace, and forcing us to confront the untenable situations in which the status of the enemy is left to the whim of the captor.

Table of Contents after the jump: