Daisy Bates Biography: a review

Cynthia Griggs Fleming reviews the biography of a woman at the center of the Little Rock school desegregation crisis: Grif Stockley, Daisy Bates: Civil Rights Crusader from Arkansas (University Press of Mississippi, 2005) She begins:

Grif Stockley's biography of Daisy Bates carefully places her at the center of the famous school crisis in Little Rock, Arkansas, in the late 1950s. The remarkable television footage of nine black children attempting to integrate Little Rock's Central High School in the fall of 1957 gripped a generation of Americans who watched the events unfold on the evening news night after night. Despite the publicity the crisis received, few people at that time knew of all of the maneuvering and posturing that went on behind the scenes among city, state, and federal officials, and local and national NAACP leaders. Stockley does a masterful job of explaining this situation, while carefully keeping Daisy Bates at the center of the action. At the same time, the author manages to convey the sense of urgency and fear that gripped the participants in this major school-desegregation crisis.

For the rest, click here.

Tamanaha on The Wizard of Oz and the Gold Standard

Brian Tamanaha has an interesting post over on Balkanization, quoting a long passage from Jack Weatherford, The History of Money (1997), on The Wizard of Oz as political allegory. It reads in part (these quotes from Weatherford):

The most memorable work of literature to come from the debate over gold and silver in the United States was The Wonderful Wizard of Oz, published in 1900, by journalist L. Frank Baum, who greatly distrusted the power of the city financiers and who supported a bimetallic dollar based on both gold and silver. Taking great literary license, he summarized and satirized the monetary debate and history of the era through a charming story about a naive but good Kansas farm girl named Dorothy, who represented the average rural American citizen. Baum seems to have based her character on the Populist orator Leslie Kelsey, nicknamed "the Kansas Tornado."

After the cyclone violently rips Dorothy and her dog out of Kansas and drops them in the East, Dorothy sets out on the gold road to fairyland, which Baum calls Oz, where the wicked witches and wizards of banking operate. Along the way she meets the Scarecrow, who represents the American farmer; the Tin Woodman, who represents the American factory worker; and the Cowardly Lion, who represents William Jennings Bryan. The party's march on Oz is a re-creation of the 1894 march of Coxey's Army, a group of unemployed men led by 'General' Jacob S. Coxey to demand another public issue of $500 million greenbacks and more work for common people.

The rest is here.

Anderson on Borgwardt, A New Deal for the World

Carol Anderson reviews Elizabeth Borgwardt, A New Deal for the World: America's Vision for Human Rights (Harvard University Press, 2005), on H-Net. She begins:

Elizabeth Borgwardt's A New Deal for the World: America's Vision for Human Rights is an outstanding book. It is elegantly written, deeply researched, and gracefully analytical. Borgwardt argues that the Roosevelt administration, confronted with the chaos and destruction of the Second World War, reached for the familiar. Believing in many ways that the New Deal's idealistic pragmatism could stabilize an international system blown apart by militarism, human rights violations, and economic protectionism and parochialism, Franklin Delano Roosevelt's administration set out to construct on the international level what it had built in the United States. Although not exactly a TVA for the world, it was close. This internationalist New Deal framework had an unshakeable faith that government could be harnessed for good and that political and economic rights, protected by multilateral institutions, could create a lasting peace.

For the rest, click here.

Supporting Legal History

As we near the end of the year, I hope that readers will remember legal history in end-of-the-year charitable giving. If you would like to support legal history, here are some ideas:

• Perhaps the most direct way to support legal history is to support the American Society for Legal History. The ASLH is a membership organization supporting all fields of legal history. The organization currently has an endowment campaign to provide more solid financial footing for its many activities. For information about the ASLH, go here, and for information on how to contribute, click on the link on the left side of the page for "endowment campaign."

• Archives in the gulf coast of the United States were affected by Hurricane Katrina, and are still rebuilding. One institution in need of support that has been a resource for a number of legal history-related works is the New Orleans Public Library. According to Diana Williams, the current Berger Fellow in Legal History at Harvard Law School, records in the Louisiana Division of the NOPL are "among the most important of New Orleans’ historic treasures, include municipal records dating back to 1769, as well as Orleans Parish court records dating back to 1804. They contain rich and scarcely tapped sources for the study of enslaved and free people of color." An appeal last year from Williams for support for NOPL, with helpful links and information, is here. Updated information and links for the library foundation are here. The direct link for on-line donations is here.

• Another way to remember legal history is to remember legal historians we have lost this year. Most well-known is Kermit Hall, President of SUNY Albany and a long-time, widely admired legal historian who died unexpectedly in August at the age of 61. Contributions in memory of Kermit can be made to the Kermit L. Hall and Phyllis A. Hall Inaugural Scholarship Fund, a need-based scholarship fund at SUNY Albany.

• Another unexpected loss this year was Kenneth Cmiel, University of Iowa, who passed away in February at the age of 51. Ken's newest, unfinished work is most well-known among historians of human rights. His work will be remembered at a panel at the American Historical Assn. meeting in Atlanta in January. A memorial fund for his young children has been established. Contributions can be sent to: Cmiel Children Memorial Fund, UI Community Credit Union, P.O. Box 2240, Iowa City, IA 52244-2244.

Grimshaw on Hobbins, The Trial of Joan of Arc

Patricia Grimshaw reviews Daniel Hobbins, The Trial of Joan of Arc (translated by Daniel Hobbins) (Harvard University Press, 2005), on H-Net. She begins:

While no portraits of Joan of Arc survive from her lifetime, we are very fortunate to have access to the record of her trial in several languages, including this latest, first-rate edition in English. Daniel Hobbins, an assistant professor of history at the University of Texas, Arlington, does an excellent job not only with his translation of the original texts themselves (in medieval French and Latin), but also with his introduction to the trial, Joan's life and the importance of the trial record as medieval literature.

For the rest, click here.

Recent Scholarship in Legal and Constitutional History

The Journal of American History is no longer publishing lists of recent scholarship in each issue. Instead, recent scholarship is more easily available on-line. The Recent Scholarship page is here. For each issue, the list is broken down by subject area. The December list of recent scholarship in Legal and Constitutional History is here. Highlights include:

• Finkelman, Paul, “Thomas Jefferson, Original Intent, and the Shaping of American Law: Learning Constitutional Law from the Writings of Jefferson,” New York University Annual Survey of American Law, 62 (no. 1, 2006), 45–84.
• Harris, Angela P., “From Stonewall to the Suburbs? Toward a Political Economy of Sexuality,” William & Mary Bill of Rights Journal, 14 (April 2006), 1539–82.
• Hobson, Charles F., “Defining the Office: John Marshall as Chief Justice,” University of Pennsylvania Law Review, 154 (June 2006), 1421–61.
• Mashaw, Jerry L., “Recovering American Administrative Law: Federalist Foundations, 1787–1801,” Yale Law Journal, 115 (April 2006), 1256–1344.
• Wexler, Natalie, “In the Beginning: The First Three Chief Justices,” University of Pennsylvania Law Review, 154 (June 2006), 1373–1419.
• White, G. Edward, “The Internal Powers of the Chief Justice: The Nineteenth-Century Legacy,” University of Pennsylvania Law Review, 154 (June 2006), 1463–1510.
• Harrigan, James R., “The Legal Context for Revolution: Common, Constitutional, and Natural Law in the American Colonies, 1760–1776” (Claremont Graduate University, 2006). Order No. DA3192282.
• Birdnow, Brian E., Communism, Anti-Communism, and the Federal Courts in Missouri, 1952–1958: The Trial of the St. Louis Five. (Lewiston, N.Y.: Mellen, 2005. iv, 227 pp. $109.95, isbn 0-7734-6101-9.)
• Kahn, Ronald, and Ken I. Kersch, eds., The Supreme Court and American Political Development. (Lawrence: University Press of Kansas, 2006. x, 494 pp. Cloth, $45.00, isbn 0-7006-1438-9. Paper, $19.95, isbn 0-7006-1439-7.)
• Killenbeck, Mark R., M’Culloch v. Maryland: Securing a Nation. (Lawrence: University Press of Kansas, 2006. xii, 227 pp. Cloth, $35.00, isbn 0-7006-1472-9. Paper, $16.95, isbn 0-7006-1473-7.)
• Ritter, Gretchen, The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order. (Stanford: Stanford University Press, 2006. xiv, 381 pp. Cloth, $70.00, isbn 978-0-8047-5378-4. Paper, $29.95, isbn 978-0-8047-5438-5.)

Call for Papers: Secession as an International Phenomenon

Conference on Secession as an International Phenomenon
Charleston, S.C., December, 6, 7, 8, 2007
Deadline for Proposals: January 1, 2007

ARENA (Association for Research on Ethnicity and Nationalism in the Americas), a new international organization whose mission is to broaden and enliven the conversation on nationalism, is sponsoring an international conference and book of essays on one of the most volatile forces of modern history. We will meet where modern secession began, in the heart of historic Charleston, for two and a half days of public addresses, research presentations, and lively discussion.

Open to all disciplines and to studies of separatism in all parts of the world, the conference is designed to encourage conversation and exchange particularly among scholars in history, politics, philosophy, sociology, and law. We invite papers that deal with historic or contemporary separatist movements and their opposition, or with theoretical approaches.

For more information, click here.

Kanner Prize for bibliographical and historical guide to research on women or gender history

Barbara "Penny" Kanner Prize

The Western Association of Women Historians will award $500 to the best scholarly bibliographical and historical guide to research focused on women or gender history. The Kanner Award is intended to promote the practice of bibliomethodology or autobiography in historical context.The bibliomethodology award should reflect the critical tools of the historian’s craft as they have been developed to provide research guides rather than library catalogues. The autobiography in historical context award should reflect the craft of history as developed and interpreted in individual lives. Book-length submissions are preferred but substantial guides in other forms (articles or book chapters) may also be considered. The bibliographical and the autobiography awards will be given in alternate years, with submissions for each award considered for two-year intervals from the date of publication. The 2007 award will be for bibliomethodology and published in 2005 or2006. KANNER PRIZE DEADLINE FOR 2007 IS POSTMARKED BY JANUARY 15, 2007. For submission information, click here.

WAWH dissertation, article and book awards, limited to members the organization, also have a Jan. 15 deadline and are announced here.

Call for Papers: Asia and The Other

ASIA AND THE OTHER, International Conference, National Taiwan Normal University Taipei, TAIWAN, June 23, 2007
Deadline for Proposals: December 31, 2006

The year 1984 witnessed the taking place of a pioneering conference entitled "Europe and Its Others." With the publication of Edward W. Said's Orientalism only a few years apart, the conference organized by the University of Essex engaged in discussions heralded in Said's monumental work and presented some of the most groundbreaking writings in the then-emerging field, "postcolonial theory," with the participation of numerous thought-provoking scholars, Said himself included.

Now, a little over two decades later, the Department of English at National Taiwan Normal University invites proposals for an international conference, ASIA AND THE OTHER, soliciting input on Asia's positioning in light of the question of the Other/other.

Presenting a similar-sounding theme with slight revision to the Essex conference, we would like to examine whether or not the idiom of the Self/Other demarcation is still relevant in the context of Asia. If yes,relevant in what ways? Is the present-day Asia still imagined in the same fashion as the old Orient once was? Does the rising economic force of Asia grant Asian countries "Occidentalist" optics through which they represent their others as old Orientalists did them? Without fixed conceptual presumptions, ASIA AND THE OTHER is interested not only in Asia's relations with "its" others, but also in Asia's relations with "the Other/other" as an ethical, political, epistemological, or ontological problematic.

For more information, click here.

Call for Papers: Conference on Animals and Society

Following on the success of the inaugural Animals and Society Conference held at the University of Western Australia in 2005, the Animals and Society Study Group (Australia) and the University of Tasmania are pleased to be hosting Animals and Society II: Considering Animals.

The conference aims to bring together researchers from a broad range of academic disciplines spanning the humanities, social sciences and physical sciences, as well as representatives from non-government organisations, industry and government, to examine the relationships between animals and humans from social, cultural, historical,geographical, environmental, moral, legal and political perspectives.

The meeting will be held July 3-6 2007, in Tasmania. For more information, click here.

Kent on Global Constitutionalism (or its absence) at the Founding

J. Andrew Kent, Climenko Fellow, Harvard, has a new paper/forthcoming article: A Textual and Historical Case Against a Global Constitution. Here's the abstract:

The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. "Against a Global Constitution" challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among the intended beneficiaries of important provisions and structures in the Constitution. But in contrast to globalism's desire to deploy a judicially enforced Bill of Rights abroad, "Against a Global Constitution" shows that, as a textual and historical matter, noncitizens are to be protected through diplomacy, enforcement of international law by the U.S. government, and nonconstitutional policy choices of the political branches.

Hamilton on Religious Pluralism & Disestablishment at the Founding

Marci Hamilton, Cardozo, has a new paper/forthcoming article on SSRN:
The Religious Origins of Disestablishment Principles. Here's the abstract:

Some have argued that Establishment Clause jurisprudence is the enemy of religion, and, in particular, Christianity. This Article reaches an opposing conclusion: Core principles behind current Establishment Clause jurisprudence were derived from Christian denominations at the time of the founding.

The United States did not begin as a unified Christian culture, but rather as a pluralistic collection of religious believers, some living in tension with other believers and some more tolerant. While it is true that the vast majority of denominations were Christian, the sense of difference among them was profound. There were Anglicans, Congregationalists, Methodists, Deists, Dutch Reformed, Baptists, Presbyterians, Quakers, and Catholics, as well as Jews. Protestants, taken as a whole, extended a strong influence, but the category, "Protestant," hides a wide array of religious beliefs and institutions - none of which ever held sole power over all of the colonies or states. The diversity of faith meant that there were numerous religious perspectives available to influence governing structures and theories. Conversely, it also means that no one religious tradition can claim sole responsibility for the structures that have been chosen.

There are numerous distinctive influences that led to basic establishment principles recognized today, including (1) the functional separation of church and state in the society; (2) a prohibition on government preferring one religion over another; (3) a right against government coercion of belief; (4) government tolerance of all religious belief (even if not all religious conduct); and (5) the necessity of embracing the principles of democratic republican governance even as one is a member of a church that employs very different governing principles.

This Article is an intellectual, religious history of the Establishment Clause. Today's Establishment Clause jurisprudence is illuminated when one learns how individual Christian denominations contributed to many of its basic principles.

Amann on Stevens on International Law Norms

Another new paper by Diane Amann, U.C. Davis. This time it's John Paul Stevens, Human Rights Judge. Here's the abstract:

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to midcentury experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a codebreaker Stevens played a role in the downing of the Japanese general responsible for attacking Pearl Harbor, and that this sowed seeds of concern about another targeted state killing, capital punishment. Also illuminating are memoranda from Stevens' clerkship with Justice Wiley Rutledge. Parts of Stevens' drafts found their way into two Rutledge opinions whose themes remain relevant: one decried executive detention of German nationals; the other, denial of meaningful review to an Italian teenager who had pleaded guilty to murder in a hearing at which the arresting officer acted as interpreter. Fully six years before the decision in Brown v. Board of Education, clerk Stevens advised that segregation be ruled unconstitutional.

NYT Book Review War Issue

The Sunday Book Review section of the New York Times is devoted to books on war, even though the editors note that "no one is quite sure what the meaning of 'war' is anymore." Featured books range from a new translation of The Aneid to Imperial Life in the Emerald City, a celebrated book about Iraq's Green Zone.

Legal history is not featured, unfortunately. On law there is a paired review of Ackerman, Before the Next Attack, and John Yoo, War By Other Means, principally raising expected criticism. In defending the Bush Administration's actions, "at the heart of Yoo's argument," writes Fareed Zakaria, "is the notion that we are at war....Everything...follows from this fundamental premise....But are we really at war? And if so, who are we at war against?" The practical difficulties of applying a traditional war model to the "war on terror" seem obvious, but in the face of questions about the outer limits of executive power and discretion, as Zakaria puts it, Yoo's answer is simply "trust us." While he finds more satisfying Ackerman's effort to think through the way the contemporary threat of terrorism affects our political and legal institutions, through an "emergency constitution" model, Zakaria faults both authors for inattention to the broader political context. For him this means in part public diplomacy. We need all the weapons at our disposal in this current conflict, he argues, and "perhaps our most potent weapons are the sense people around the world have had that the United States is an exemplar of rights and liberties and that it lives by those principles even under storm and stress." When we casts aside rights "and trade them for the traditional tools of dictatorships...will this trade really help us prevail?"

Other reviews of interest include Mark Attwood Lawrence on Fursenko and Naftali, Khruschchev's Cold War, a book based on new research in Soviet archives painting the Soviet leader not as a "reckless buffoon" threatening the world's safety, e.g. in the Cuban Missle Crisis, but as a leader hoping ultimately to ease tensions to raise his nation's standard of living.

Legal historians might benefit from engaging another reviewed book, Max Boot, War Made New, on the history of military technology. The history of technology is not a usual subject in legal history. But surely in the 20th century at least, the history of war, the history of technology and the history of law intersect and develop together. David Kennedy has shown in his new book Of War and Law that law is a technology of war. In Boot's new work are lessons about the role of technology in history that we might bring into the study of law. As Josiah Bunting puts it, Boot argues that "technological innovation has a bleak dialectic: advances in warfare usually require adaptive mechanisms purchased at tactical cost." Bunting's example is the body armor of contemporary American soldiers, protecting them from harm, but leaving them "waddling like armadillos" and easier targets. What does this have to do with law and politics? Changes in war technologies affect not only the way the rules of engagement apply, but also the way war is percieved and viewed at home. Nuclear bombs ushered in a nuclear age, with its anxieties. "Smart bombs" are portrayed as cabining the impact of war to a precise target, making it more palatable. With our traditional focus on civil liberties and executive power, legal historians have largely left the exploration of the fuller implications of American militarization and military engagement to the military historians. But surely there is a larger story about the way the phenomenon of war has seeped into the structure of American governance, and American political culture, well before the terrorist attacks that inform much of the new scholarship. One part of this story is the dark dialectic of the march of technologies of destruction. In Boot's work, and in these other works on the history of war, perhaps there are places of engagement for a fuller legal history of American war.

New Journal: New Global Studies

Submissions are sought for a new journal, New Global Studies, edited by Nayan Chanda, Yale University, Akira Iriye, Harvard University and Bruce Mazlish, Massachusetts Institute of Technology. This journal is interdisciplinary and it may be a promising venue to move beyond questions of globalization and "internationalization" within particular disciplines. It should be of interest to legal historians pursuing global and transnational methodologies. Here's a description of the journal's aims:

Local, universal, world-historical, world-systemic, or global historiographies as well as work in sociology, anthropology and international relations have shed increasing light on the common history of humankind. Only comparatively recently, however, has human global self-awareness broken through the confines of scholarly specialization, and begun to enter the everyday popular life, action, psyche, imagination and consciousness on a mass, global scale. The step into space and the resultant view of the planet, the new computer and media technologies of mass communication, the global spread of multinational corporations and human rights, the unprecedented environmental changes and challenges, the promise and threat of nuclear power and explosions, all have led to the increasing self-experiencing of the globe as a "spaceship earth."

Many scholars and policy makers from different areas and academic disciplines have directed their efforts to trying to understand globalization. These efforts tend to be piecemeal and specialized, staying within particular disciplinary boundaries. This journal exists to address the process going on around us as a whole, and developing over time. It addresses globalization with a holistic perspective, a perspective that gives us a view on the past and present of the globalizing phenomena that will be invaluable to all who seek to comprehend this fundamental aspect of our society and its development.

Our focus is unabashedly on the new globalization that has manifested itself so vigorously in the period starting sometime after World War II. Starting from this relatively contemporary perspective, we are fully aware that the new globalization process, or processes, is on a spectrum with earlier forms of globalization. There are deep roots in the past that must be explored along with attention to the present flowering of the concept, when the idea of globalization became a conscious matter, partly suggested by the widespread use of the term itself.

Nevertheless, and in contrast with most historical journals, our primary emphasis is on the twentieth and twenty-first centuries. Our field of interest is both multidisciplinary and global rather than particular in that we are concerned with contemporary globalization per se and not merely with the extent to which it (or its progenitors) has had an impact at specific conjunctures. Thus New Global Studies interprets globalization with a historical and sociological angle as opposed to history or sociology with a global angle.

For more, click here.

Tamanaha: Law as a Means to an End

Brian Tamanaha has a new SSRN paper, How an Instrumental View of Law Corrodes the Rule of Law, but his real purpose is to draw readers to the fuller account in his new book, getting quite a bit of attention: Law as a Means to an End: Threat to the Rule of Law. Much of Tamanaha's work has been in jurisprudence, but this new work is of keen interest to legal historians.

Here's the book description:

The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.

And leading American legal historian Robert Gordon had this to say about it:

"Brian Tamanaha sounds a firebell in the night. He shows how the most progressive modern approaches to law, by undermining beliefs in its objectivity and formal rationality, and its rootedness in natural or customary standards of right conduct, have fatally undermined its claims to restrain power-seeking or serve the common good. Law is now seen simply as an instrument -- not as a limit on greed and power, but a means by which interests pursue their own selfish ends. And it's not only interest-groups and their lawyers, but judges and jurists, who have signed on to an instrumentalism that challenges the very ideas of the rule of law and the public interest. Tamanaha is not a nostalgic romantic. He does not think the old days can or should be recovered. He does not tell us what to do. But he illuminates our predicament with succinct history, clear-headed observation, and unflinchingly bleak analysis."

Tamanaha blogged about the book at PrawfsBlog. And Tamanaha is a regular blogger at Balkinization.

Bebchuk & Hamdani on the History of Federal Corporate Law

Lucian Bebchuk, Harvard and Assaf Hamdani, Bar Ilan University, have a new article: Federal Corporate Law: Lessons from History. Here's the abstract:

This paper analyzes the history of federal intervention in corporate law and draws from it lessons for the future. We show that federal intervention has generally not alternated between tightening state law restrictions on corporate insiders and relaxing them. Rather, federal law has systematically replaced state law arrangements with ones imposing tighter constraints on insiders. Without federal intervention, state law would have produced a corporate system that provides substantially weaker investor protection than the United States enjoys today. We also show that federal interventions have systematically taken advantage of additional tools (including public enforcement, criminal sanctions, gatekeeper liability, and agency-based regulations) beyond those that state law has chosen or been able to use. Overall, unless one views existing levels of investor protection as substantially excessive, past patterns suggest that state competition on its own is unlikely to produce an adequate level of investor protection. Furthermore, the recurring need for federal officials to rectify state law failures in order to provide investors with adequate protection indicates that federal lawmaking should be proactive rather than reactive. We thus recommend that, going forward, federal policymakers examine in a systematic and comprehensive fashion which corporate law areas should be federalized either because tighter restrictions on insiders are needed or because the additional tools available to federal law would be useful.

Barrett on Jackson and the Holocaust Evidence

From John Barrett, the gifted biographer of Justice Robert Jackson, came this message today, to his Jackson List:

As we close a week that included the Iranian government’s historically and morally absurd conference purporting to examine whether there was a Holocaust, it is well to remember that undeniable knowledge of the Holocaust is rooted deeply in the work 61 years ago of Justice Robert H. Jackson and his United States and Allied colleagues at Nuremberg, Germany.

On October 6, 1945, Justice Jackson and his counterpart chief prosecutors from France, the Soviet Union and the United Kingdom signed at Berlin the indictment on which Nazi defendants soon were brought to trial at Nuremberg before the International Military Tribunal. The indictment charged twenty-four persons and six organizations with the principal crime of engaging in a common plan or conspiracy to commit crimes against peace, war crimes and crimes against humanity. The indictment also charged most defendants with specific crimes against peace, war crimes and crimes against humanity.

This indictment was the first governmental document to use the new word “genocide.” The indictment charged the Nazi “annihilation” of European Jewry in stark, numerical terms: “Of the 9,600,000 Jews who lived in parts of Europe under Nazi domination, it is conservatively estimated that 5,700,000 have disappeared, most of them deliberately put to death by Nazi conspirators. Only the remnants of the Jewish population of Europe remain.”

On November 21, 1945, Jackson delivered his opening statement before the IMT at Nuremberg. In a long section captioned "Crimes Against the Jews," Jackson described what the evidence would show:

The most savage and numerous crimes planned and committed by the Nazis were those against the Jews. Those in Germany in 1933 numbered about 500,000. In the aggregate, they had made for themselves positions which excited envy, and had accumulated properties which excited the avarice of the Nazis. They were few enough to be helpless and numerous enough to be held up as a menace.

Let there be no misunderstanding about the charge of persecuting Jews. What we charge against these defendants is not those arrogances and pretensions which frequently accompany the intermingling of different peoples and which are likely, despite the honest efforts of government, to produce regrettable crimes and convulsions. It is my purpose to show a plan and design, to which all Nazis were fanatically committed, to annihilate all Jewish people. These crimes were organized and promoted by the Party leadership, executed and protected by the Nazi officials, as we shall convince you by written orders of the Secret State Police itself.

The persecution of the Jews was a continuous and deliberate policy. It was a policy directed against other nations as well as against the Jews themselves. Anti-Semitism was promoted to divide and embitter the democratic peoples and to soften their resistance to the Nazi aggression. …

Anti-Semitism also has been aptly credited with being a "spearhead of terror." The ghetto was the laboratory for testing repressive measures. Jewish property was the first to be expropriated, but the custom grew and included similar measures against anti-Nazi Germans, Poles, Czechs, Frenchmen, and Belgians. Extermination of the Jews enabled the Nazis to bring a practiced hand to similar measures against Poles, Serbs, and Greeks. The plight of the Jew was a constant threat to opposition or discontent among other elements of Europe's population—pacifists, conservatives, Communists, Catholics, Protestants, Socialists. It was in fact, a threat to every dissenting opinion and to every non-Nazi's life.

The persecution policy against the Jews commenced with nonviolent measures, such as disfranchisement and discriminations against their religion, and the placing of impediments in the way of success in economic life. It moved rapidly to organized mass violence against them, physical isolation in ghettos, deportation, forced labor, mass starvation, and extermination. The Government, the Party formations indicted before you as criminal organizations, the Secret State Police, the Army, private and semi-public associations, and "spontaneous" mobs that were carefully inspired from official sources, were all agencies that were concerned in this persecution. Nor was it directed against individual Jews for personal bad citizenship or unpopularity. The avowed purpose was the destruction of the Jewish people as a whole, as an end in itself, as a measure of preparation for war, and as a discipline of conquered peoples.

The conspiracy or common plan to exterminate the Jew was so methodically and thoroughly pursued, that despite the German defeat and Nazi prostration this Nazi aim largely has succeeded. Only remnants of the European Jewish population remain in Germany, in the countries which Germany occupied, and in those which were her satellites or collaborators. Of the 9,600,000 Jews who lived in Nazi-dominated Europe, 60 percent are authoritatively estimated to have perished. Five million seven hundred thousand Jews are missing from the countries in which they formerly lived, and over 4,500,000 cannot be accounted for by the normal death rate nor by immigration; nor are they included among displaced persons. History does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty.

In the ensuing, early days of the trial, the United States presented much of its evidence concerning the first and central count in the case, the common plan and conspiracy to commit crimes against peace, war crimes and crimes against humanity. The evidence consisted of voluminous Nazi documents that had been captured, translated, analyzed and organized by the Allies. The evidence was summarized in trial briefs that Jackson’s senior assistants read before the IMT, the defendants and, given the public nature of the trial, the world press corps.

On the afternoon of Thursday, November 29, 1945, which was the eighth trial day, Jackson’s assistant Sidney S. Alderman announced to the Tribunal that he would at that point present motion picture evidence. Thomas J. Dodd, another U.S. prosecutor, explained that the evidence, which had already been screened for defense attorneys, was

documentary film on concentration camps. This is by no means the entire proof which the prosecution will offer with respect to the subject of concentration camps, but this film which we offer represents in a brief and unforgettable form an explanation of what the words "concentration camp" imply.

Dodd then introduced his colleague Commander James B. Donovan (USNR). “The United States,” said Donovan,

now offers in evidence an official documentary motion picture report on Nazi concentration camps. This report has been compiled from motion pictures taken by Allied military photographers as the Allied armies in the West liberated the areas in which these camps were located. The accompanying narration is taken directly from the reports of the military photographers who filmed the camps. ...

After the courtroom lights were dimmed, U.S. personnel played one hour of film. It primarily depicted concentration camp conditions, including emaciated, brutalized survivors in the midst of many, many corpses, at the times of their liberation. It included movie footage of concentration camps at Leipzig, Pegnig, Ohrdruf, Hadamar, Breendonck, Hannover, Arnstadt, Mauthausen, Buchenwald, Dachau and Belsen. It also included German photographs that had been captured by the Soviets, including photographs of mutilated concentration camp prisoners, of executions and mutilations of Slovenian partisans, and of Auschwitz. The film also included French photographs of tortured prisoners, bodies and concentration camp conditions.

...A coincidence to consider, for today and for history, is that in 1945, November 29th on the Julian calendar was also, on the Jewish calendar, the 25th day of Kislev, the third month. It thus marked the first night of Chanukah, a holiday celebrating Jewish survival.

In the Nuremberg trial process, most participants were non-Jews. Many probably did not reflect on the coincidence, and frankly on the stark juxtaposition, of the showing of the concentration camp film evidence concluding as the sun set and Chanukah thus began. The film evidence also was, by itself, fully absorbing and deeply disturbing material for reflection—Lord Lawrence was so upset that after court he initially could not take his tea; the American judges, Francis Biddle and John Parker, spoke that evening about how the film had horrified every judge.

But some “Nurembergers” were attentive to direct connections between their trial work and the circumstances in which the surviving Jews of Europe—the “remnants”—now lived. Major Joseph Dainow, for example, a lawyer on Jackson’s staff who had assembled key parts of the documentary evidence that Alderman had presented to the Tribunal earlier in the week, was a Jew who was, alongside his legal work, doing what he could to assist Jewish survivors in the immediate area.

On that Thursday evening, Major Dainow went to services at the synagogue in Fürth, just two miles from the Palace of Justice where the trial was occurring and the prisoners were held, for the lighting of the first Chanukah candle. Dainow, a father away from his own young children, gave the man in charge a package for the children of congregation. The package was filled with candy rations and chocolate bars that Dainow had been saving for weeks. The man was grateful but also concerned to comply exactly with Dainow’s wishes. Children “up to what age?,” he asked. No limit, Dainow replied, and he told the man to use his own judgment.

Tonight Jews around the world, including in Fürth and in Nuremberg and in Iran, will light the first Chanukah candle. May their candles, and all human judgment, burn brightly.

For a link to other posts by Barrett on Robert Jackson, and information about the Jackson List, go here.

Tidmarsh on Dickerson and the African American Bar before Brown

Jay Tidmarsh, Notre Dame, has a review essay on Robert J. Blakely with Marcus Shepard, Earl B. Dickerson: A Voice for Freedom and Equality (Northwestern University Press 2006). The essay is titled Cradled in the Declaration of Independence. Here's the abstract:

This book review engages recent scholarship on the nature of civil-rights lawyering in the African-American bar in the generation before Brown v. Board of Education. Using the recent biography of Earl Burrus Dickerson, one of the leaders of the African-American bar before World War II, as its vehicle, the review finds support for the emerging thesis that, in the years before Brown, the African-American civil-rights bar was not focused on ending de jure segregation in public institutions, but rather on building up African-American institutions. Contrary to recent scholarship, however, the review suggests that Dickerson personally preferred a more integrationist strategy, and his efforts to build up African-American institutions was less a conscious strategy than a realization of the limitations on his ability to practice law as he wished. Freedom of action, rather than racial equality, was Dickerson's great motivator.

Law and Society Assn. Prizes

The work of legal historians is eligible for consideration for a variety of prizes awarded by the Law and Society Association, including article and dissertation prizes. Descriptions of prizes are on the LSA website. Most unfortunately, the website does not have deadline information, or submission information. For that, you have to go to the LSA newsletter. Here's a link to the November 2006 newletter. Or go here, and click on November 2006. Then you need to scroll through the PDF file for award info. (I suppose the silver lining for your efforts is that if it's that hard to find, it limits the pool and increases your chances!)

The Article prize is for "exceptional scholarship in socio-legal studies for a journal article or chapter in an edited book published within the previous two years." The deadline is January 15.

The Dissertation prize deadline is TODAY! December 15, but is January 15 for year-end defenders. Go here for more info, and to the newsletter, here, for submission info.

The International prize deadline is January 31.

The deadline for Student Paper Prizes is February 1.

More information on the Hurst Prize in legal history was posted earlier on the Legal History Blog (deadline today!). Go here.

Cummings on Public Interest Law at the end of the 20th Century

Scott Cummings, UCLA, has a new paper: The Internationalization of Public Interest Law. Here's the abstract:

This Article is an account of profound changes in the organization and practice of public interest law that have emerged over the past 25 years against the backdrop of globalization. Its central claim is that as the United States has become more globally interdependent, the institutional context of public interest law has been transformed, elevating transnational mobility as a basic feature of legal practice. The Article specifically examines three vectors of global change that have reshaped the terrain of US public interest law: the increasing magnitude and scope of undocumented immigration; the growth of free trade and its governing institutions; and the heightened political influence of human rights. It suggests that each of these trends has contributed to important institutional revisions within the US public interest system: the rise of immigrant rights as a distinctive category of public interest practice; the emergence of transnational advocacy as a response to the impact of US economic policy abroad; and the movement to promote domestic human rights, both as a way to resist the deregulatory thrust of market integration at home and to defend civil rights and civil liberties in the face of domestic conservatism and the War on Terror. After mapping the institutional scope and density of these changes, the Article appraises their influence on the goals public interest lawyers pursue, the tactics they deploy, and the professional roles they assume in the modern era.

Which Historical Lunatic Are You?

If you are grading exams or papers, you probably need this, from Rum and Monkey, via Cliopatria:

Test your own Historical Lunacy here.

(True confessions: I am Charles VI of France, also known as Charles the Mad or Charles the Well-Beloved!)

Berkshire Conference Book & Article Prizes

Berkshire Conference of Women Historians Annual Prizes
Deadline: January 15, 2007

The Berkshire Conference First Book Prize, which carries a $1000 award, is a prize for a first book in any field of history written by a woman who is normally resident in North America. Books need not focus on women's history. Only books published in 2006 will be considered.

The Berkshire Conference Article Prize, which carries a $500 award, is awarded for an article in any field of history published in 2006 by a woman who is normally resident in North America. Articles need not focus on women's history.

For more details, click here.

Call for Proposals: Berkshire Conference on the History of Women

The next Berkshire Conference on the History of Women is planned for June 12-15, 2008 (not a misprint) at the University of Minnesota, but the deadline in the call for papers is February 1, 2007. This is a terrific, dynamic conference. It is held every three years. It covers all fields related to the history of women, and is a great place for a legal history paper. And yes, men appear on panels, too. (As to why it is called "The Berks" even though it is not always in the Berkshires, and for other useful info on this organization begun by women historians in 1930, go here.) For information about the conference and how to submit a proposal, click here.

UC Irvine Summer Seminar: Critical Theory

The University of California Humanities Research Institute (UCHRI) invites applications from scholars--faculty of all ranks and graduate students--wishing to participate in the fourth annual Seminar in Experimental Critical Theory (SECT): Cartographies of the Theological-Political, at U.C. Irvine, August 6-17, 2007.

Deadline: February 15, 2007.

Conveners: William Connolly, Johns Hopkins University, Charles Hirschkind, UC Berkeley, Saba Mahmood, UC Berkeley. Participants include: Wendy Brown, UC Berkeley, Judith Butler, UC Berkeley, Richard Thompson Ford, Stanford University, Achille Mbembe, Wits Institute for Social and Economic Research, University of Witwatersrand, and UC Irvine, Tariq Ramadan, Oxford University,Gauri Viswanathan, Columbia University.

For a full description and application info, click here.

New Insights on Blackmun from Cooperstown

Roger Abrams, Northeastern, has an enviable gig this year: Scholar in Residence at the Baseball Hall of Fame in Cooperstown. While there he is writing a book, The Dark Side of the Diamond. In the meantime, Prof. Abrams has a new paper on SSRN, filling us in on Justice Blackmun and baseball, Blackmun's List. Here's the abstract:

In Flood v. Kuhn, 407 U.S. 258 (1972), a majority of the Supreme Court voted to reaffirm its holding from a half-century earlier that the business of baseball did not affect interstate commerce and thus was exempt from the antitrust laws. In Part I of his remarkable majority opinion, Justice Harry Blackmun regales the wonders of baseball and then lists, without citation, “the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season.” He lists 88 names of ballplayers, owners, managers, one umpire and one sports writer.

In this paper, I reveal for the first time the source of Blackmun's list. In addition, using Justice Blackmun's papers from the Library of Congress and other sources, I explore the Justice's personal views about the game and relate his comments over the years to what he characterized in correspondence as his most favorite opinion.

Although Justice Blackmun took time to extol baseball's eternal verities, he could not have considered how baseball's reserve system impacted on the lives of the men he celebrated in his list. Using interviews conducted in the 1960s by Lawrence Ritter that are now at the Baseball Hall of Fame in Cooperstown (where I currently serve on my sabbatical as Scholar-in-Residence), the paper reconstructs the careers and experiences of the men on Blackmun's list from their earliest professional games until their retirements.

H-Net Review of Kazin & McCartin on Americanism

There is much on talk on Americanism (and anti-Americanism) in the history world these days, with roundtables on the topic in both the Journal of American History and the American Historical Review this past fall. To add to the discussion, Saverio Giovacchini, Univ. of Maryland Dept. of History, has a review on H-Net of Michael Kazin and Joseph McCartin, eds., Americanism: New Perspectives on the History of an Ideal (University of North Carolina Press, 2006). Giovacchini writes, in part,

This timely collection of essays edited by Michael Kazin and Joseph A. McCartin addresses the central term of the contemporary debate about Americanism. That Americanism is alive and kicking in the United States is indeed almost as certain as the fact that its Doppelganger, anti-Americanism, controls the hearts and minds of many everywhere else. The question the editors want to address is whether American progressives can fruitfully embrace Americanism to advance liberal goals. The editors' reply is a resounding yes. In their opinion, the ideals of Americanism "deserve not just to endure but to be revived and practiced as the foundation of a new kind of progressive politics" (p. 16). The issue here is less one of morality than of pragmatism: a sort of Leftist call for realism and Realpolitik animates Kazins and McCartin's provocative introductory essay. It would be nice if the world were united, they argue, but it is not, and in the absence of a planetary government we need to elect a sensible one in the most powerful nation state on the face of the earth. And to do that, we need a nationalist language that maintains "the ability to speak convincingly to [our] fellow citizens".

...The problem with the liberal nationalist position and, ultimately, with the introduction and many of the essays in this thoughtful volume is that they refuse to contemplate the possibility that liberalism in the United States was at its most successful when it was less nationalist, that is, when it was more active in looking for international engagements at a political and intellectual level. The 1930s, which many refer to as the decade of liberalism triumphant, was not only the decade of the "exiles' returns" to America, Irving Berlin's God Bless America (1938), or Earl Robinson's and John LaTouche Ballad for Americans (1939). As Daniel Rodgers has persuasively argued, the New Deal was also the moment when American liberalism reaped the fruits of decades of intense intellectual Atlantic cross-fertilization....

For the rest, go here.

Amann on the Rehnquist Era

Diane Marie Amann, U.C. Davis, has a new paper/forthcoming article on SSRN, taking up the use of international law in domestic cases, International Law and Rehnquist-Era Reversals. Here's the abstract:

In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the Court's longstanding tradition of consulting external norms. The article gives the interpretive practice qualified approval. Thus it calls upon Justices both to articulate when it is appropriate to look to external sources and to set forth a framework for consultation. At a minimum, foreign jurisprudence ought to shed the light of experience on issues like those in the case before the Court; it must arise out of a legal culture that shares with the United States a commitment to fundamental rights; and the way in which the jurisprudence influenced the Court must be set forth in a reasoned explanation. Whether the Court would pursue such a path remained uncertain, however, as the era of the new Chief Justice began.

Down with Interdisciplinarity? Or Up with Legal History?

An article being discussed in the blogosphere (e.g. Leiter Reports) is Anthony D'Amato, The Interdisciplinary Turn in Legal Education. At a time when an increasing number of law school hires have Ph.D.s, D'Amato argues against interdisciplinarity.

One of D'Amato's claims is that disciplines are like sects.

"Disciplines and sects share the trait that their primary audiences are themselves. They proselytize their own initiates at great lengths before even thinking of proselytizing outsiders. Internal reiteration and refinement of the discipline’s core ideas always take priority." (18)

Hmmm. It seems to me that in history, if anything the current criticism is that historians are spending too much time speaking to outsiders. The question instead has been whether the pressures to write for a broader public undermine the careful practice of history.

But perhaps D'Amato is not talking about historians. As Dan Markel notes, D'Amato's own examples of what law teaching requires repeatedly invoke questions of legal history.

Here's D'Amato: "How many law teachers understand the origins of the jury system and the evolving bifurcation of facts and law (which remains an issue today in the phrase “a mixed question of fact and law”)? How many know that the early jurors asked questions of the parties and their attorneys, and were accustomed to going around the neighborhood interviewing citizens and poking into evidence? How many are aware of the self-protective reaction of the judges in turning to formalism?"

While he warns against "history for history’s sake," the bottom line is that his attack on the disciplines that inform legal scholarship turns out, instead, to be an embrace of just one: legal history.

Muller on Iran Holocaust Conference

Eric Muller at Is that Legal? has an evocative post in light of the Holocaust Conference in Iran. It is about his great-uncle Leopold, who did not survive the Holocaust to tell his own story. For the rest, go here.

Fellowships, American Antiquarian Society

The American Antiquarian Society in Worcester, Massachusetts offers long- and short-term fellowships. Some deadlines have passed, but the remaining deadline is January 15, 2007.

AAS-National Endowment for the Humanities Long-Term Fellowships: At least three fellowships will be awarded for periods extending from four to twelve months. Funds come from the National Endowment for the Humanities. All awards are for a period of residence to use the AAS library's resources for research and writing. The following long-term awards are intended for scholars beyond the doctorate. For more information, click here.

The American Antiquarian Society offers short-term visiting academic research fellowships tenable for one to three months each year. The short-term fellowships are available for scholars holding the Ph.D. and for doctoral candidates engaged in dissertation research. Candidates holding a recognized terminal degree appropriate to the area of proposed research, such as the master's degree in library science or M.F.A., are also eligible to apply. For a list of fellowships and application information, click here.

For information about the AAS Library's collections, including its on-line digital records, go here.

Fellowships, W.E.B. Dubois Institutue, Harvard

W.E.B. Dubois Institutue for African and African American Research, Harvard University
Fellowships -- Deadline: February 20

The Fellows Program is at the heart of the activities of the W. E. B. Du Bois Institute for African and African American Research. Founded in 1975 as the W. E. B. Du Bois Institute for Afro-American Research, the Institute has annually appointed scholars who conduct individual research for a period of one to two semesters in a variety of fields within African and African American Studies.

For more info and application procedures, click here.

PINOCHET: A Declassified Documentary Obit

From the National Security Archive, via H-Diplo:

As Chile prepared to bury General Augusto Pinochet, the National Security Archive today posted a selection of declassified U.S. documents that illuminate the former dictator's record of repression. The documents include CIA records on Pinochet's role in the Washington D.C. car bombing that killed former Chilean ambassador Orlando Letelier and his American colleague Ronni Moffitt, Defense Intelligence Agency biographic reports on Pinochet, and transcripts of meetings in which Secretary of State Henry Kissinger resisted bringing pressure on the Chilean military for its human rights atrocities.

"Pinochet's death has denied his victims a final judicial reckoning," said Peter Kornbluh, who directs the Archive's Chile Documentation Project. "But the declassified documents do contribute to the ultimate verdict of history on his atrocities."

Most of the documents posted today are drawn from a collection of 24,000 declassified records that were released by the Clinton administration after Pinochet's October, 1998, arrest in London. Many of them are reproduced in Kornbluh's book, The Pinochet File: A Declassified Dossier on Atrocity and Accountability.

Pinochet died of complications from a heart attack on December 10, which was, by coincidence, International Human Rights Day.

Sindelar on McSheffrey on Marriage, Sex, and Civic Culture in Late Medieval London

Arlene Sindelar's review of Shannon McSheffrey, Marriage, Sex, and Civic Culture in Late Medieval London (Philadelphia: University of Pennsylvania Press, 2006) has appeared on H-Law. It begins:

Shannon McSheffrey introduces her study of marriage and governance in laterfifteenth-century London with a particularly dramatic vignette in which anirate father attempted to force a young man he claimed "violated" his daughterto marry her then and there at home. He employed every weapon available in hisarsenal: the weight of his own authority expressed through righteous anger andphysical violence; his daughter's shame and angry disappointment; and thethreat of a ruined reputation by denouncing him before the mayor and aldermen(p. 1-2). It is a particularly well-chosen story, weaving together all theissues McSheffrey subsequently unravels in her well-researched and rewardingbook: patriarchal authority and canon law, reputation and honor, socialpressure and civic culture. She argues that although both marriage and sexualrelationships were the intimate personal concern of the two participants, theywere also matters of public concern in which relatives, friends, civic officials, and parish priests all felt a responsibility to intervene.

For the rest, click here.

Hurst Prize Deadline this Week

Call for Nominations for 2007 James Willard Hurst Prize in Sociolegal History
Deadline: December 15

The Law and Society Association seeks nominations for the 2007 James Willard Hurst Prize, to be awarded for the best work in sociolegal history published in calendar year 2006. This annual prize (biennial from inception in 1982 through 2002) consists of a certificate and $500, which may be shared among multiple awardees. The prize will be presented at the 2007 Meetings in Berlin in July. A list of past recipients may be found on the Association website. Nomination procedures are described its the Newsletter, and posted here.

[The LSA is burying some important details , including the deadline, in the LSA newsletter, and it would be best to put them on their website! All of the pertinent details are in this post.]

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.

For further information contact the 2007 committee chair, Michael Grossberg,
grossber@ indiana.edu. If you have a title (or titles) that you would like to
nominate, please send a copy to each of the six committee members listed here by December 15, 2006.

Michael Grossberg, chair
Department of History
Ballantine Hall
Indiana University
Bloomington IN 47405-7103

Elizabeth R. Dale
234 Keene-Flint Hall
University of Florida
PO Box 117320
Gainesville FL 32611-7320

Lawrence Friedman
School of Law
Stanford University
559 Nathan Abbott Way
Stanford CA 94305-8610

Joanna Grossman
39 Vail Street
Northport, NY 11768
(Hofstra University)

David Konig
School of Law, Campus Box 1120
Washington University
One Brookings Drive
St. Louis MO 63130

Sanford Levinson
Law School
University of Texas
727 E. Dean Keeton Street
Austin TX 78705-3224

Saul Cornell on HNN

There is a feature on Second Amendment scholar Saul Cornell, Ohio University, at History News Network, which profiles "Top Young Historians." (Middle-aged folks, at least to a point, get to be young again for HNN. So if youth is your goal, be a historian.) Cornell is the author of A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America and The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828.

Cornell commented: "No matter what aspect of the gun issue you work on you inevitably run into people with pretty strong feelings. I think it is safe to say that if I had written a history of the 3rd Amendment, I would not get angry e-mails from people with names like “glockboy@gunnet.com” or have bloggers with names like, “geek with an uzi” denounce me as part of some insidious conspiracy."

And here's one of the blurbs about his 2nd Amendment book: "Cornell is, with Jack Rakove, one of the two leading interpreters of the Second Amendment. Historian Saul Cornell, who declares that the originalist argument for the individual rights approach is based on a false reading of the legislative history and legal context. Cornell therefore might simply accept Rakove's modest view of the positive role of the Amendment. However, Cornell also temptingly suggests that some "new paradigm" of Second Amendment scholarship may emerge, one that views the right to bear arms as neither collective nor individual but rather as a "civic right," in the nature of a civic republican right to be exercised by those "capable of exercising it in a virtuous manner." There is something ironic about a key part of Cornell's thesis. In his deft and lawyerly arguments for the originalist collective rights view, Cornell underscores the later eruption of individual rights rhetoric in nineteenth-century state constitutions in order to stress the absence of any such view in 1791 -- Stanford Law Professor Robert Weissberg, Edwin Huddleston Professor of Law in a recent review of the state of the scholarly debate on the Second Amendment

For the rest, click here.

Yovel on Territory on SSRN

Jonathan Yovel, Haifa and Columbia, has a new paper: Imagining Territories: Space, Place, and the Anticity. Here's the abstract:

This essay explores the concept of "Territory" in some of its cultural forms, as well as looks into cultural and linguistic conditions for territories-talk. Initially, it engages territory as a pre-political representation and explores its formal relation to space and to place. It contrasts territory with the concept of the city (in fact, an anticity), especially as reflected in renaissance and early modern art/architecture, with examples from Schedel, Bellini, Breugel and others, as well as from contemporary graphic works (Moebius, Qual, Nowak). The tension between place and non-place (in a much more divisive way than in Augé's work) is further explored through Derrida's deconstruction of in/out relations and the Hellenic ritual of pharmakon, and through observations concerning several literary works including Oedipus in Colonus, Kafka's The Trial and Calvino's Invisible Cities. Moving from the cultural to the political, Territories are then explored on the background of the legal concept of res nullius, crucial in the intellectual development that generated colonialism. The work then moves from pre-modernity and early modernity to apply the analysis of the non-place to media representations (both visual and linguistic) of the Iraq and other conflicts. Other theoretical frameworks dealt with are Jaus' "reception aesthetics," new work in narrative analysis of spatial relations, and the meaning of conceptualization according to Wittgenstein, Barthes, and Austin.

Web Site Reviews in Journal of American History

The December issue of the Journal of American History is out, including a new set of website reviews. My review of three Brown v. Board of Education-related historical websites is here. There are three other reviews this month, including one by Lila Corwin Berman of the website Jewish Women and the Feminist Revolution. Earlier reviews of possible interest to legal historians are posted as well, including the Thomas Jefferson Digital Archive and Freedom Bound: The Underground Railroad in Lycoming County, PA. For a full list, click here. The reviews are also posted on the Gateway to American history on the web: History Matters.

Grant and Fellowship Database

The best database I'm aware of for grants and fellowships of interest to legal historians is a database maintained by the American Historical Association. The database is searchable by field, and contains information about grants and fellowships in a variety of fields of history. It is not restricted to American history. The AHA is a U.S.-based organization, but covers all fields of history. A link to the database is on the AHA home page.

To use the database, you have to be a member of the AHA. Membership fees are on a sliding scale based on income. There are reduced fees for students and K-12 teachers. With membership, you get the American Historical Review.

Recommended for anyone looking for research funding in legal history: Join the AHA so that you have access to the database at least one year before you plan to apply. Most applications are due in the fall for the subsequent academic year, but deadlines vary.

Upcoming 12/15 deadline: Huntington Fellowships

A number of short- and long-term fellowships are available at the Huntington Library in San Marino, CA (Los Angeles metro area). Applications must be postmarked by this Friday, 12/15. There are fellowships for junior and senior scholars, targeted to those whose research fits the Huntington's collection. A number of legal historians have benefited from the Huntington in recent years. Here's a description:

The Huntington is an independent research center with holdings in British and American history, literature, art history, and the history of science and medicine. The Library collections range chronologically from the eleventh century to the present and include a half-million rare books, nearly six million manuscripts, 600,000 photographs, and a large ephemera collection, supported by a half-million reference works. Within the general fields listed above there are many areas of special strength, including: Middle Ages • Renaissance • Eighteenth Century • Nineteenth- and Twentieth-Century Literature • History of Science • British Drama • Colonial America • American Civil War • Western America • California. The Art Collections contain notable British and American paintings, fine prints, photographs, and an art reference library.

The Huntington will award to scholars over one hundred fellowships for the academic year 2007-2008. These fellowships derive from a variety of funding sources and have different terms. Recipients of all fellowships are expected to be in continuous residence at the Huntington and to participate in and make a contribution to its intellectual life. Application deadline – all fellowships: December 15, 2006. Applications postmarked after the deadline will not be considered.

The details are here.

New Book: Motomura, Americans in Waiting

Hiroshi Motomura, Univ. of North Carolina, a leading immigration law scholar, has just published a new book, Americans in Waiting: The Lost Story of Immigration (Oxford Univ. Press, 2006). Here' s the description:

America is unquestionably a nation of immigrants. And yet throughout its history the practicalities of immigration have inspired more questions than consensus. Who should be admitted? What should the path to citizenship be? Despite national security concerns over enemies penetrating our borders, the number of foreign-born people living in the United States grew to 35 million in 2005, an all-time high. A coherent and rational immigrant policy is more necessary than ever.

In Americans in Waiting , Hiroshi Motomura discovers in our national past a simple yet powerful approach to immigration and citizenship. Rewriting the conventional story, Motomura uncovers how for over 150 years, many immigrants were immediately put on track to U.S. citizenship. They were eligible to homestead land on the western frontier and entitled to overseas diplomatic protection. Citizens-to-be were even allowed to vote. In sum, immigration was assumed to be a transition to citizenship, and immigrants were future citizens--Americans in waiting.

Once central to law and policy, this view has all but vanished. Beginning in the early twentieth century, the United States began to treat its immigrants in one of two ways: as signatories to a "contract" that sets the terms of their stay in this country, or as "affiliates" who can earn rights only as they become, over time, enmeshed in the nation's life. Immigration is now seen too often as a problem to be solved, rather than a pillar of our nation's strength.

"Motomura recovers an important conception of immigration implicit in U.S. law and policy in earlier times: the idea of immigrants as future citizens. In Motomuras skillful hands, the concept takes on new life and provides important insights into current debates on citizenship. With comprehensive historical sweep and theoretical insight, Americans in Waiting masterfully charts the way to more inclusive policies that are true to the U.S.s identity as a nation of immigrants and that promote a robust and cohesive notion of citizenship."--T. Alexander Aleinikoff, author of Semblances of Sovereignty: The Constitution, The State, and American Citizenship

Crowe and Karpowitz on Supreme Court Length of Service

Where have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice. Justin Crowe, PhD candidate, Princeton and Christopher Karpowitz, BYU Political Science and Princeton Center for Human Values take up this topic in a new paper, just posted. Here's the abstract:

Against the backdrop of a decade-long wait for the next Supreme Court vacancy, legal academics from across the political spectrum have proposed or supported significant constitutional or statutory reforms designed to limit the terms of Supreme Court justices and increase the pace of turnover at the Court. Fearing a Court that is increasingly out of touch with the national mood and staffed by justices of advanced age, advocates of term and age limits contend that the trend in Supreme Court tenures is inexorably upward. But are Supreme Court justices really serving longer now than in the past? If so, why? And what might such trends mean for American constitutional democracy? In a debate otherwise dominated by law professors - and largely without careful empirical analysis - we place the issue of judicial tenure in historical perspective, with special attention to the institutional development of the Court, the changing politics of the appointments process and the types of individuals who emerge from it, and to a lesser extent, broader socio-demographic trends in technology and medicine. In the process, we show how proponents of reforms designed to end life tenure have ignored a significant factor influencing patterns in judicial service: the decline of the “short term” justice. Trends in judicial tenure, we argue, cannot be explained solely by more justices serving unusually long terms; rather, they are driven at least in part by the fact that fewer justices are serving relatively short terms. In this paper, we consider why justices have retired after only short-service throughout much of history, why they rarely do so today, the conditions under which future justices might be compelled to serve shorter terms, and the democratic gains and losses associated with short-term service on the Court. In sum, by following the rise and fall of the short-term justice over the course of American political development, we offer a new perspective, grounded in political science, on an issue currently occupying the attention of lawyers, journalists, and policymakers alike.

Kaufman on Incorporation in Early America

Jason Kaufman, Dept. of Sociology, Harvard, has a new a paper: Origins of the Asymmetric Society: Political Autonomy, Legal Innovation, and Freedom of Incorporation in the Early United States. Here's the abstract:

This article explores the origins of a phenomenon of lasting and profound impact on American society: the private business corporation. Business is only part of our concern here, however. Seen in comparative-historical terms, the modern private corporation was born in colonial (i.e. pre-Revolutionary) America. Surprisingly, this occurred not only because of the business needs of colonial Americans but also as a result of their own struggles for political autonomy. More specifically, the post-Revolutionary doctrine of freedom of incorporation first emerged in states that were originally chartered as private corporations. These “corporate colonies'” experienced repeated conflict with the Crown over their rights and privileges as corporations. Once re-chartered as independent states, their respective legislatures transformed constituents' relationship to the means of incorporation in such a way that would lead to lasting changes in American social, civil, and economic life. Quantitative data on the history of post-Revolutionary incorporation rates in the American states, as well as the early banking industries in the United States and Canada, are offered as illustration of this phenomenon. Concluding remarks are made about the interdependent development of states and markets, particularly in post-colonial nations, as well as the nature of institutional-legal transformation more generally.

Web Resource: Civil Rights Litigation Clearinghouse

Thanks to Margo Schlanger for a tip about a great new web resource, made available by Washington University Law School. The Civil Rights Litigation Clearinghouse provides on-line access to documents in civil rights cases in the areas of Child Welfare, Disability Rights, Election/Voting Rights, Immigration, Jail Conditions, Juvenile Institution, Mental Health Facility, Mental Retardation Facility, Nursing Home Conditions, Police Non-Profiling, Police Profiling, Prison Conditions, Public Housing, School Desegregation. According to the website: "The site is dedicated to injunctive rather than damages litigation—that is, to cases seeking policy or operational change, not cases seeking money. For each of the categories, our eventual goal is to include a close-to-comprehensive catalog of the cases in which plaintiffs have actually been awarded or negotiated such change."

Case-related documents go beyond links to court opinions. What makes this resource so valuable is that Schlanger and her colleagues are making available documents through the course of litigation at the trial court level and after. The site is still in development, and coverage is more complete for newer cases than for older ones, but some of the interesting documents you can find include:

• The original complaint filed in the school desegregation case Brown v. Board of Education (1954).
• The complaint in Lozano v. City of Hazleton, Pennsylvania (2006), challenging an ordinance penalizing those who rent to or hire undocumented immigrants.
• Links to hundreds of voting rights and prison conditions cases.

Also particularly helpful is an essay by Margo Schlanger and Denise Lieberman about using the records for research and teaching, published in the UMKC Law Review, and available on the site and here.

The St. Louis Dispatch reported on the project here, noting that "Over the last 50 years, civil rights litigation has spurred dramatic changes in American life, affecting hiring, housing, voting, education, law enforcement and the justice system itself. The litigation has produced countless reams of important documents, which are difficult and time-consuming to find and search through. To remedy the problem — and preserve a critical part of our nation's history — a team of professors and students at the Washington University School of Law has created a free electronic library that opened to the public for the first time last month. The Civil Rights Litigation Clearinghouse, the brainchild of law professor Margo Schlanger, houses thousands of documents including settlements, court orders, opinions, case study research, key filings and other papers related to more than 1,000 civil rights cases."

A limitation of the site is that links for court opinions often take you to the subscription services Westlaw and Lexis. Researchers without access to those services can often paste the casenames into Google, and find the cases at non-subscription sites like FindLaw. Even with this limitation, the Clearinghouse is a superb resource.

More on Originalism: Price on State Courts

Polly Price, Emory, has just posted this paper on SSRN, A Constitutional Significance for Precedent: Originalism, Stare Decisis and Property Rights. Here's the abstract:

A judge's obligation to consult precedent before deciding a case has been a core feature of the Rule of Law in the United States, whether the relevant source of law at issue is statutory, constitutional, or common law. If there is general agreement that a court's prior precedent has some significance for future decisions, there is virtually none about the extent to which the later court is obligated to defer to the earlier precedent.

This article, written for a symposium dedicated to the topic, “Originalism and Precedent,” suggests that conclusions about the founding era's commitment to stare decisis are seriously incomplete without studying the practices of state courts with respect to economic expectation interests. (Other contributors to this symposium include Steve Smith, University of San Diego School of Law, Gary Lawson, Boston University, and Stephen B. Presser, Northwestern University School of Law.) The earliest articulations of the concept of precedent in the United States explicitly link stare decisis to property rules. In the formative era, state court judges invoked the predominant property discourse of vested rights and the Contracts Clause to preserve property rules that they believed necessary to avoid disrupting settled transactions, at least when property reliance interests were at stake. This is important because most civil cases of that period involved property or contract disputes, and these judges tended to view the common law as a mechanism for ordering relations between individuals in terms of property rights. Many judges imposed upon themselves external limits on discretion to change law, and these limits are readily linked to political rhetoric from the founding era emphasizing the sanctity of private property.

This historical understanding of the role of precedent is equivalent to the modern “judicial takings” debate, which asks whether state courts can effectively police their own boundaries with respect to the settled property expectations that legislatures are constitutionally bound to respect. The rhetoric used in the post-founding period through the Civil War suggests many state court judges believed that they should. Many state courts recognized the possibility that changes to common-law rules could deprive citizens of property interests, and sought to guard against it. The rhetoric of courts in the formative era makes clear that the stare decisis property rule had an ideological purpose – a pragmatic concern for economic stability.

Fisher on Friedman: The Historian in the Cellar

"Get out of the light, Lawrence Friedman has told legions of legal historians, and go down to the cellar. Upstairs you'll find only the history of appellate law....But the law of society—the law as it’s lived—is not the law made by common law judges, or even elected lawmakers, who leave their tracks above ground. It is instead the shadow of that law, cast across the streets and shops and tenements of town. The stuff of the law, especially criminal law, concerns those dredged up from the bottom of society. And they leave their tracks in the cellar."

"So down he went."

And so begins George Fisher's marvelous essay, The Historian in the Cellar, on Lawrence Friedman and his work, available on-line in the current issue of the Stanford Law Review.

Bilder on the Origins of Judicial Review

Mary Sarah Bilder's important reinterpretation of early U.S. constitutional history, The Corporate Origins of Judicial Review, has been published in the Yale Law Journal and is available on-line here. Here's the abstract:

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to the Constitution—what is now referred to as judicial review. This history helps to resolve certain debates over the origins of judicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation must not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution.

Berger Visiting Fellowship in Legal History at Harvard

Raoul Berger Visiting Fellowship in Legal History, 2007-08
Deadline: February 1, 2007

The Harvard Law School announces a fellowship in legal history funded by a generous donation from the estate of the late Raoul Berger.

The School is seeking fellows who have a JD degree, who have completed the required coursework for their doctorate degree, or who have recently been awarded the doctorate degree. A JD is not required. We will also consider applicants who are beginning a teaching career in either law or history. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period. Fellows are expected to spend the majority of their time on their own research. They are also asked to help to coordinate the Legal History Colloquium, which meets four or five times each semester. The Berger Fellow is invited to present their own work. Fellows will be required to be in residence at the Harvard Law School during the academic year (September through May).

Applicants for the fellowship for 2007-08 should address a letter to the co-chairs of the Berger Fellowship Program, Professors Bruce Mann and Jed Shugerman, at the Harvard Law School, Cambridge, MA 02318.

For further information visit the website or contact:
Carol Igoe
Harvard Law School
Griswold 4 North
Cambridge, MA 02138
617-495-4863
cigoe@law.harvard.edu