Margaret Soltan of University Diaries, posts on "The Online Amplification Effect" at the Association of American Colleges and Universities website, arguing that it is in the interest of colleges and universities to engage, not ignore, blogging and the web. She writes, in part:
All of this information-turmoil will yield inaccuracies, to be sure. Things can happen fast, and not everyone understands what's going on. But what the turmoil's mainly doing is making democratic editorial decisions. The turmoil represents a collective consciousness outside the established media, a force that can, if it wishes, move a story up and up in importance, until the amount of online attention and discourse the story attracts becomes the story.
Universities are accustomed to operating with a great deal of secrecy--in tenure decisions most notably, but also in other institutional circumstances. The blatancy of the Web clashes mightily with the reticent ethos of campuses. Thus the disdain many professors express for Rate My Professors and other online student evaluation sources, and their continued indifference or hostility even to high-profile academic blogs of the sort maintained by legal scholar Richard Posner and Nobelist Gary Becker....
Many university administrators and faculty are hardwired to loathe the loose-jointed, populist, ramifying Web, and that is their prerogative. They are free to see its ways as a threat to serious scholarship, professorial autonomy, and so forth. But as the Web displaces physical newspapers and similar media to become the primary point of news access for more and more Americans, universities, with their often antiquated public relations offices and defensive instincts, are making themselves vulnerable to reputational damage.
This is particularly true when big, violent campus stories break, as they recently did at the University of Massachusetts Amherst (student riots) and Duquesne (a homicidal fight involving students and nonstudents). Student bloggers on the scene of these events are often the first to report them, so that when people Googled the names of the school involved, they were are as likely to be linked to these citizen journalists as to larger media outlets....
Universities should have lots of on-campus bloggers--students, faculty, administrators-- actively chronicling the life of the school, so that outsiders already know something of the reality of life there, and so that many voices at the university--official and unofficial--can have an immediate and accessible say in the presentation of its way of being to the world. What's needed is an understanding of the new ways in which events will be transcribed and aired; what's needed is the adoption of a substantial public online voice that can enter the fray with power and clarity.
Soltan's full essay is here. Hat tip: Cliopatria.
Wednesday, July 18, 2007
Tuesday, July 17, 2007
Baloch on Law Booksellers and Printers as Agents of Unchange
Tariq A. Baloch, Corpus Christi College, Oxford University, has posted the abstract for a new article, Law Booksellers and Printers as Agents of Unchange. It has just appeared in the Cambridge Law Journal. Here's the abstract:
This is the first in depth article on the impact of the practices of law booksellers and printers (“the booktrade”) on law book publishing in the 18th century. Using book history scholarship and archival evidence, including letters and printing records, it will show how the monopolistic business practices adopted by the booktrade during this century prevented more law books from being published than otherwise would have been. The article will show that it was only when the monopoly practices were successfully challenged in law at the end of the 18th century, that there was an explosion in the publication of law books. Finally, this article will make some observations on the major role this explosion in law books played in the transformation of the common law into the form we recognise today.
This is the first in depth article on the impact of the practices of law booksellers and printers (“the booktrade”) on law book publishing in the 18th century. Using book history scholarship and archival evidence, including letters and printing records, it will show how the monopolistic business practices adopted by the booktrade during this century prevented more law books from being published than otherwise would have been. The article will show that it was only when the monopoly practices were successfully challenged in law at the end of the 18th century, that there was an explosion in the publication of law books. Finally, this article will make some observations on the major role this explosion in law books played in the transformation of the common law into the form we recognise today.
Monday, July 16, 2007
Program on The Steel Seizure Case, July 25 in Washington, D.C.
From the Historical Society of the District of Columbia:
June 2007 marks the 55th anniversary of the Supreme Court's decision in the Steel Seizure Case. On June 2, 1952, the Supreme Court decided in Youngstown Sheet & Tube Co., v. Sawyer, 343 U.S. 579, that President Truman's seizure of most of the nation's steel mills to avert a nation-wide strike of steelworkers and keep the mills operating during the Korean War was an unauthorized, unconstitutional executive action that could not stand. The steel companies presented their claims initially to the U.S. District Court for the District of Columbia which ruled against the Government on all points and issued a preliminary injunction. The Court of Appeals for the District of Columbia Circuit promptly stayed the injunction, deeming it best that the issues raised be decided by the Supreme Court.
In a special program, "The Steel Seizure Case in Historical Perspective: Presidential Power in Wartime," a panel of experts brought together by the Society will analyze the decision and its enduring ramifications. Panelists include:
June 2007 marks the 55th anniversary of the Supreme Court's decision in the Steel Seizure Case. On June 2, 1952, the Supreme Court decided in Youngstown Sheet & Tube Co., v. Sawyer, 343 U.S. 579, that President Truman's seizure of most of the nation's steel mills to avert a nation-wide strike of steelworkers and keep the mills operating during the Korean War was an unauthorized, unconstitutional executive action that could not stand. The steel companies presented their claims initially to the U.S. District Court for the District of Columbia which ruled against the Government on all points and issued a preliminary injunction. The Court of Appeals for the District of Columbia Circuit promptly stayed the injunction, deeming it best that the issues raised be decided by the Supreme Court.
In a special program, "The Steel Seizure Case in Historical Perspective: Presidential Power in Wartime," a panel of experts brought together by the Society will analyze the decision and its enduring ramifications. Panelists include:
- Patricia Bellia, Constitutional Law Professor, Notre Dame Law School;
- John Q. Barrett, Professor, St. John's University School of Law and Biographer of Justice Robert H. Jackson;
- Louis Fisher, Senior Specialist in Separation of Powers with the Congressional Research Service of the Library of Congress and Author of "Presidential War Power;"
- Maeva Marcus, Author of "Truman and the Steel Seizure Case;" and
- Stanley L. Temko, Senior Counsel, Covington & Burling LLP, and Attorney for Petitioner United States Steel Corporation in the Steel Seizure Case.
- Carl Stern, former Legal Affairs Correspondent for NBC-TV, will moderate the discussion.
The program will be held on Wednesday, July 25, 2007, at 4:15 p.m. in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse. A reception will follow the program. Admission is free. No reservations are required. Seating will be available on a first-come-first-served basis
Hawkins on Free Expression's Pivotal Function in the Early Labor Movement
Jim Hawkins, University of Texas, currently a judicial law clerk, has posted an article, Papers, Petitions, and Parades: Free Expression's Pivotal Function in the Early Labor Movement. It appeared recently in the Berkeley Journal of Employment and Labor Law. Here's the abstract: In this manuscript, I describe and analyze the important role free speech played in the early labor movement. Labor scholars widely acknowledge free speech's essential function in the labor movement, so it is not surprising that early labor extensively used expression. It is surprising, however, that this use of expression has gone unnoticed by constitutional historians. First Amendment scholarship has largely neglected the history of free speech before the Civil War, and recent attempts to recapture this history have focused solely on the abolition movement - leaving early labor speech truly forgotten in the history of free speech.
Troeger reviews Kelley on the History of Historiography
The impact of war on the writing of history (or not) and the tendency of historians to forget are major themes in a review by Bertram Troeger, University of Jena, Germany, of Donald R. Kelley, Frontiers of History: Historical Inquiry in the Twentieth Century (Yale University Press, 2006) on H-Ideas. Hap tip to Cliopatria.
With the publication of Frontiers of History, Donald R. Kelley, Professor Emeritus at R
utgers University, has completed his three-volume survey of the history of Western historiography. In the other two works that belong to this tremendous project, Faces of History: Historical Inquiry from Herodotus to Herder (1998) and Fortunes of History: Historical Inquiry from Herder to Huizinga (2003), the author gives an account of the writing of history from antiquity to the early twentieth century. The last volume presents his readers not only with a description of the historiographical tendencies, ideas, methods, and debates that marked the twentieth century, but also with original comments on the most recent trends in historical studies.
Kelley's main focus is on the writings of professional historians in Britain, France, Germany, and the United States, but he occasionally includes other nationalities as well. His definition of the historical field that underlies this work is similarly wide. Given the late twentieth-century discussions on the linguistic turn and the textuality of history, it may not be surprising that he takes in various scholars of literature studies; however, Kelley also includes "prophets of decline"like Oswald Spengler (p. 82), and other writers who are generally located in the field of philosophy of history.
The plot of Kelley's work is as complex as its dramatis personae are numerous, and any short summary of this multifaceted narrative can only give a limited account of its various topics. The "anxieties of modernism"(p. 7) that characterized the years before the Great War form the subject of the author's first foray through the thicket of twentieth-century historiography. As far as the writing of history is concerned, these anxieties were felt particularly in Germany, whereas British historians,despite some adjustments like T. F. Tout's turn towards administrative history, self-confidently adhered to their Victorian historiographical legacy. Kelley's second chapter can serve as an illustration of the wide range of his work. On the one hand, he describes the effects of the Great War on history, and summarizes the battles historians fought over the value of their respective national traditions. On the other hand, he also provides an insight into the transformations of ancient history and the rise of prehistory caused, in particular, by new archaeological discoveries.
It is perhaps surprising for the reader of the next three chapters that the direct effects of the two World Wars on the writing of history were rather limited. Possibly the most immediate impact of the World Wars on historiography was the emigration of scholars to the United States, which strengthened the European influence on U.S. history in the face of occasional "American Exceptionalism" (p. 117). As far as greater reorientations and the establishment of new paradigms are concerned, however, one can gather from Kelley's work that peaceful times seem to have been more fruitful. This applies even to Germany, whose historians remained largely faithful to their historiographical traditions after the first World War, as well as after the second. New views and approaches like those of Ernst Kantorowicz and Eckhart Kehr formed an exception after 1918, and the influence of scholars like Friedrich Meinecke and Gerhard Ritter provided for continuity after 1945. It took another twenty years until a "New German Paradigm" firmly established itself (p. 170), a process that was linked to the names of Werner Conze, Jürgen Kocka, and Hans-Ulrich Wehler. In Britain it was "mostly business as usual after the trauma of the Great War" (p. 100), but the voices of Marxists and social reformers started to make themselves distinctly heard, and heavily source-based approaches, like that of Lewis Namier, were soon to challenge the Whig narrative. All in all, British historiography became increasingly characterized by conflicts between proponents of different ideologies and methodologies. Namier was opposed, in particular, by A. J. P. Taylor. The polarization reached a climax after the Second World War when controversies over ideology and revisionist approaches led to historical "Civil Wars in England" (p. 176), with Christopher Haigh, Geoffrey Elton, Christopher Hill, and Lawrence Stone forming the main combatants.
The impression of French historiography which can be gathered from Kelley's pages is more peaceful, which is, of course, due to the long-term hegemony of the Annales school. As Kelley shows, French historians were among the first to shift the historical focus to economic and social history. When Lucien Febvre and Marc Bloch joined forces in 1929, they started to establish a paradigm whose strong influence was felt "for the rest of the century" (p. 112). According to Kelley, one of the outstanding qualities of the Annales school was its ability to face the challenge of the social sciences without "undermining the autonomy and authority of history" (p. 113). Another strength lay in its integrative breadth, which permitted the retention of economic history, the study of mentalities, and Fernand Braudel's concepts of histoire totale and longue durée under the same roof.
Dealing with these (and many more) topics, Kelley does his best to guide the reader through a jungle of celebrated figures, historical methods, and ideas. Nevertheless, at times the reader is in danger of getting lost,left with the feeling that he has to be another Donald Kelley in order to be able to follow and fully enjoy the author's tightly-woven text. Sheer numbers can illustrate the dilemma: within twenty pages, the reader is introduced, on average, to 80 people and reads about 140 others who have already been mentioned earlier in the book. Certainly this complexity is in the nature of this work, and complaining about it would be like criticizing a bird for having wings. But, it is obvious that, despite Kelley's excellent prose, the book reaches the limits of what can be done in this format....
He goes on to comment on the linguistic turn, and claims that the influence of literary theory on historiography, to a great degree, amounted to an "effort to reduce history to its narrative incarnations"(p. 216). Dealing with Hayden White's influential contribution to the matter, he argues that any interpretation of the works of historians like Jules Michelet or Leopold von Ranke has to take into account their"heuristic practice," something which Hayden White's "neo-scholastic scheme" fails to do (p. 216). But Kelley's most important leitmotif, running through the pages of the whole work and becoming particularly visible towards its end, is his contention that historiography tends to be forgetful of previous methods, approaches, and ideas. "The wheel must always be reinvented, the fire restarted, the book rewritten;... novelties are announced so frequently that one is tempted to take innovationism--the 'fetish of the new'--as a permanent condition of the life of professional historians" (p. 189). In other words, historians prefer to get excited over supposedly new approaches, rather than to look back and discover that they are following trodden paths.
The polemical reaction to the fascinating irony of ascribing amnesia to the historian would be to ask Kelley how he managed to fill three volumes on historical ideas from antiquity to the present when there was really nothing new taking place. But Kelley does not deny that historiography underwent intellectual transformations, paradigmatic changes, and reorientations. What he tries to show is that all these new ideas were rooted in a tradition, something which many self-declared innovators failed to acknowledge. This "curious lack of historical sense" (p. 24) can be found, for instance, in the works of the early twentieth-century French "old guard" (Charles Seignobos and C. V. Langlois); Eileen Power, who was not conscious of the Victorian roots of her attempt to introduce her readers "to the invisible persons of past times" (p. 104); and the American "New History" as proclaimed by James Harvey Robinson in 1912. The full review is here.
With the publication of Frontiers of History, Donald R. Kelley, Professor Emeritus at R
utgers University, has completed his three-volume survey of the history of Western historiography. In the other two works that belong to this tremendous project, Faces of History: Historical Inquiry from Herodotus to Herder (1998) and Fortunes of History: Historical Inquiry from Herder to Huizinga (2003), the author gives an account of the writing of history from antiquity to the early twentieth century. The last volume presents his readers not only with a description of the historiographical tendencies, ideas, methods, and debates that marked the twentieth century, but also with original comments on the most recent trends in historical studies.Kelley's main focus is on the writings of professional historians in Britain, France, Germany, and the United States, but he occasionally includes other nationalities as well. His definition of the historical field that underlies this work is similarly wide. Given the late twentieth-century discussions on the linguistic turn and the textuality of history, it may not be surprising that he takes in various scholars of literature studies; however, Kelley also includes "prophets of decline"like Oswald Spengler (p. 82), and other writers who are generally located in the field of philosophy of history.
The plot of Kelley's work is as complex as its dramatis personae are numerous, and any short summary of this multifaceted narrative can only give a limited account of its various topics. The "anxieties of modernism"(p. 7) that characterized the years before the Great War form the subject of the author's first foray through the thicket of twentieth-century historiography. As far as the writing of history is concerned, these anxieties were felt particularly in Germany, whereas British historians,despite some adjustments like T. F. Tout's turn towards administrative history, self-confidently adhered to their Victorian historiographical legacy. Kelley's second chapter can serve as an illustration of the wide range of his work. On the one hand, he describes the effects of the Great War on history, and summarizes the battles historians fought over the value of their respective national traditions. On the other hand, he also provides an insight into the transformations of ancient history and the rise of prehistory caused, in particular, by new archaeological discoveries.
It is perhaps surprising for the reader of the next three chapters that the direct effects of the two World Wars on the writing of history were rather limited. Possibly the most immediate impact of the World Wars on historiography was the emigration of scholars to the United States, which strengthened the European influence on U.S. history in the face of occasional "American Exceptionalism" (p. 117). As far as greater reorientations and the establishment of new paradigms are concerned, however, one can gather from Kelley's work that peaceful times seem to have been more fruitful. This applies even to Germany, whose historians remained largely faithful to their historiographical traditions after the first World War, as well as after the second. New views and approaches like those of Ernst Kantorowicz and Eckhart Kehr formed an exception after 1918, and the influence of scholars like Friedrich Meinecke and Gerhard Ritter provided for continuity after 1945. It took another twenty years until a "New German Paradigm" firmly established itself (p. 170), a process that was linked to the names of Werner Conze, Jürgen Kocka, and Hans-Ulrich Wehler. In Britain it was "mostly business as usual after the trauma of the Great War" (p. 100), but the voices of Marxists and social reformers started to make themselves distinctly heard, and heavily source-based approaches, like that of Lewis Namier, were soon to challenge the Whig narrative. All in all, British historiography became increasingly characterized by conflicts between proponents of different ideologies and methodologies. Namier was opposed, in particular, by A. J. P. Taylor. The polarization reached a climax after the Second World War when controversies over ideology and revisionist approaches led to historical "Civil Wars in England" (p. 176), with Christopher Haigh, Geoffrey Elton, Christopher Hill, and Lawrence Stone forming the main combatants.
The impression of French historiography which can be gathered from Kelley's pages is more peaceful, which is, of course, due to the long-term hegemony of the Annales school. As Kelley shows, French historians were among the first to shift the historical focus to economic and social history. When Lucien Febvre and Marc Bloch joined forces in 1929, they started to establish a paradigm whose strong influence was felt "for the rest of the century" (p. 112). According to Kelley, one of the outstanding qualities of the Annales school was its ability to face the challenge of the social sciences without "undermining the autonomy and authority of history" (p. 113). Another strength lay in its integrative breadth, which permitted the retention of economic history, the study of mentalities, and Fernand Braudel's concepts of histoire totale and longue durée under the same roof.
Dealing with these (and many more) topics, Kelley does his best to guide the reader through a jungle of celebrated figures, historical methods, and ideas. Nevertheless, at times the reader is in danger of getting lost,left with the feeling that he has to be another Donald Kelley in order to be able to follow and fully enjoy the author's tightly-woven text. Sheer numbers can illustrate the dilemma: within twenty pages, the reader is introduced, on average, to 80 people and reads about 140 others who have already been mentioned earlier in the book. Certainly this complexity is in the nature of this work, and complaining about it would be like criticizing a bird for having wings. But, it is obvious that, despite Kelley's excellent prose, the book reaches the limits of what can be done in this format....
He goes on to comment on the linguistic turn, and claims that the influence of literary theory on historiography, to a great degree, amounted to an "effort to reduce history to its narrative incarnations"(p. 216). Dealing with Hayden White's influential contribution to the matter, he argues that any interpretation of the works of historians like Jules Michelet or Leopold von Ranke has to take into account their"heuristic practice," something which Hayden White's "neo-scholastic scheme" fails to do (p. 216). But Kelley's most important leitmotif, running through the pages of the whole work and becoming particularly visible towards its end, is his contention that historiography tends to be forgetful of previous methods, approaches, and ideas. "The wheel must always be reinvented, the fire restarted, the book rewritten;... novelties are announced so frequently that one is tempted to take innovationism--the 'fetish of the new'--as a permanent condition of the life of professional historians" (p. 189). In other words, historians prefer to get excited over supposedly new approaches, rather than to look back and discover that they are following trodden paths.
The polemical reaction to the fascinating irony of ascribing amnesia to the historian would be to ask Kelley how he managed to fill three volumes on historical ideas from antiquity to the present when there was really nothing new taking place. But Kelley does not deny that historiography underwent intellectual transformations, paradigmatic changes, and reorientations. What he tries to show is that all these new ideas were rooted in a tradition, something which many self-declared innovators failed to acknowledge. This "curious lack of historical sense" (p. 24) can be found, for instance, in the works of the early twentieth-century French "old guard" (Charles Seignobos and C. V. Langlois); Eileen Power, who was not conscious of the Victorian roots of her attempt to introduce her readers "to the invisible persons of past times" (p. 104); and the American "New History" as proclaimed by James Harvey Robinson in 1912. The full review is here.
Saturday, July 14, 2007
Politics in Sunday's WaPo Book Section, with reviewed books on Nixon, Clinton & Cheney
There are reviews of books on three major political figures in this Sunday's Washington Post Book World. The most interesting is the least conventional: THE CONVICTION OF RICHARD NIXON: The Untold Story of the Frost/Nixon Interviews, by James Reston Jr., reviewed by Matthew Dallek. Dallek writes:
In 1976, former President Richard Nixon made an arrangement with the BritishContinue reading this excellent review here.celebrity David Frost: Frost would interview Nixon for more than 20 hours on camera and pay him $1 million. Nixon would make money, possibly build a reputation as a statesman and remind the American people of his presidential achievements. The stakes were just as high for Frost, who wanted to prove himself as a serious interviewer and burnish his celebrity credentials.
James Reston Jr. was teaching creative writing at the University of North Carolina when he was asked to join Frost's team as a Watergate adviser. Reston... viewed Nixon as a contemptible figure who, despite his 1974 resignation, "remained . . . uncontrite and unconvicted."
The Conviction of Richard Nixon is Reston's chronicle of his involvement in Frost's efforts to wrest an apology and an admission of wrongdoing from Nixon on national television. Written in 1977, the book was not published until this year. The unfinished manuscript helped inspire Peter Morgan's award-winning Broadway play, "Frost/Nixon."
Reston's memoir is a compact and gripping behind-the-scenes narrative focused on Frost's struggles to prepare for his encounter with the formidable Nixon. Reston captures Nixon's inner turmoil and myriad moods during the tapings. Nixon wiped his brow, touched his eye, and "his jawline seemed to elongate." He told anecdotes about lessons learned in politics that skated unevenly around Frost's questions. Vindictive and bewildered, angered and bemused, Nixon came across as an angst-ridden ex-president. Reston's portrait of Frost suggests an uninformed show business personality, who Reston initially felt was too lazy to confront a politician of Nixon's caliber.
Reston also conveys his own sense of himself as a partisan eager to impeach the president....
Above all, the book sheds important light on Nixon's failure to rehabilitate his reputation after his 1974 resignation. In the course of his research, Reston discovered undisclosed transcripts of conversations between Nixon and Charles Colson -- one of the Watergate conspirators -- that revealed Nixon's role in the coverup. Frost asked Nixon why he told Colson that "the President's losses got to be cut" and why he ordered his aides to "turn over any cash we got" to buy the Watergate burglars' silence. At another point, Frost tossed his clipboard onto the coffee table and asked whether Nixon was ready to admit his "wrongdoing," acknowledge that "the power of the presidency [had been] abused" and "apologize" to the American people for having dragged them "through two years of agony."
Under this barrage, Nixon finally was forced to admit that he had skirted the law, participated in a coverup, misled the country and "let the American people down." "For all those things" he said he felt "a very deep regret."
Other works reviewed:
For 
a review of CHENEY: The Untold Story of America's Most Powerful And 
Controversial Vice President, by Stephen F. Hayes, the sub-headline is: "A journalist attempts to plumb the depths of our secretive vice president." But the point of Karen DeYoung's review is that the author fails to do just that.
a review of CHENEY: The Untold Story of America's Most Powerful And 
Controversial Vice President, by Stephen F. Hayes, the sub-headline is: "A journalist attempts to plumb the depths of our secretive vice president." But the point of Karen DeYoung's review is that the author fails to do just that.Bryan Burrough finds BILL CLINTON: Mastering the Presidency by Nigel Hamilton, on Clinton's first term, a "minor contribution to the Clinton canon," and unfortunately spends a paragraph of the review sharing his personal Clinton fatigue and reluctance to read the book. So pass on the review to someone else, who might come to the same conclusion in a more worthwhile review.
Weiner, Legacy of Ashes: The History of the CIA, on Book TV this weekend
"Legacy of Ashes: The History of the CIA" by Tim Weiner is featured on After Words, this weekend on C-Span2 Book TV. Tim Weiner is interviewed by David Ignatius.
Saturday, July 14, at 9:00 PM (times Eastern, US)
Sunday, July 15, at 6:00 PM
Sunday, July 15, at 9:00 PM
Saturday, July 14, at 9:00 PM (times Eastern, US)
Sunday, July 15, at 6:00 PM
Sunday, July 15, at 9:00 PM
About the Program
Tim Weiner chronicles the history of the Central Intelligence Agency in his book “Legacy of Ashes: The History of the CIA.” Mr. Weiner’s research included the use of over 50,000 documents and interviews with ten directors of central intelligence. He analyses the inherent difficulties in maintaining classified information in an open democracy and argues that the CIA has consistently struggled in the field of espionage. Tim Weiner discusses his book with Washington Post columnist, David Ignatius.
Tim Weiner chronicles the history of the Central Intelligence Agency in his book “Legacy of Ashes: The History of the CIA.” Mr. Weiner’s research included the use of over 50,000 documents and interviews with ten directors of central intelligence. He analyses the inherent difficulties in maintaining classified information in an open democracy and argues that the CIA has consistently struggled in the field of espionage. Tim Weiner discusses his book with Washington Post columnist, David Ignatius.
About the Author
Tim Weiner
Tim Weiner is a journalist for the New York Times and has reported on the CIA for twenty years. Mr. Weiner received a Pulitzer Prize for his reportage of secret spending by the Pentagon in 1998 while working for the Philadelphia Inquirer. He is the author of "Blank Check: The Pentagon's Black Budget" and co-author of Betrayal: The Story of Aldrich Ames, an American Spy."
David Ignatius
David Ignatius is a columnist for The Washington Post. Mr. Ignatius has been with The Washington Post since 1986 and has served as the foreign editor, editor of the Outlook section, and assistant managing editor of business news. Prior to joining the paper he was a reporter for The Wall Street Journal. Mr. Ignatius is the author of six novels, including his latest book "Body of Lies."
Tim Weiner
Tim Weiner is a journalist for the New York Times and has reported on the CIA for twenty years. Mr. Weiner received a Pulitzer Prize for his reportage of secret spending by the Pentagon in 1998 while working for the Philadelphia Inquirer. He is the author of "Blank Check: The Pentagon's Black Budget" and co-author of Betrayal: The Story of Aldrich Ames, an American Spy."
David Ignatius
David Ignatius is a columnist for The Washington Post. Mr. Ignatius has been with The Washington Post since 1986 and has served as the foreign editor, editor of the Outlook section, and assistant managing editor of business news. Prior to joining the paper he was a reporter for The Wall Street Journal. Mr. Ignatius is the author of six novels, including his latest book "Body of Lies."
Friday, July 13, 2007
Archvists testify on Overclassification to House Intelligence Subcommittee
Congress Asks Archive to Testify About Overclassification of Records
Washington DC, July 12, 2007 - At a hearing of the House Permanent Select Intelligence Committee, Subcommittee on Intelligence Community Management, on classification of national security information and its implications, Archive General Counsel Meredith Fuchs testified today that unnecessary classification poses risks to our security and to the accountability and legitimacy of government agencies.
Referring to the Central Intelligence Agency's recent release of its "family jewels" file in response to an Archive Freedom of Information Act request, Ms. Fuchs noted, "The release helps the American public understand there is a genuine risk in having an unrestrained intelligence agency. It also shows that abuses have occurred and do occur without oversight."
Ms. Fuchs urged the subcommittee to consider measures that would reduce overclassification, including setting up inter-agency and intra-agency processes that would put countervailing pressure on classification of records and encourage declassification efforts. She also recommended changes to the Executive Order 12958, as amended, as well as periodic independent audits of classification decisions, procedures for challenging classification decisions, and adequate, current classification guides that include an explanation of the specific harm or threat that justifies the classification.
Ms. Fuchs stated, "It does not help the system when the classification system and its oversight entity are disregarded and ignored, as in the reclassification of records at the National Archives that was exposed last year or in the conduct of the Vice President's office in refusing to report its classification activities to the Information Security Oversight Office."
Other witnesses included: J. William Leonard, Director of the Information Security Oversight Office; and Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists.
For More Information Contact:
Meredith Fuchs: 202/994-7000
http://www.nsarchive.org/
Hat tip: H-Diplo
Washington DC, July 12, 2007 - At a hearing of the House Permanent Select Intelligence Committee, Subcommittee on Intelligence Community Management, on classification of national security information and its implications, Archive General Counsel Meredith Fuchs testified today that unnecessary classification poses risks to our security and to the accountability and legitimacy of government agencies.
Referring to the Central Intelligence Agency's recent release of its "family jewels" file in response to an Archive Freedom of Information Act request, Ms. Fuchs noted, "The release helps the American public understand there is a genuine risk in having an unrestrained intelligence agency. It also shows that abuses have occurred and do occur without oversight."
Ms. Fuchs urged the subcommittee to consider measures that would reduce overclassification, including setting up inter-agency and intra-agency processes that would put countervailing pressure on classification of records and encourage declassification efforts. She also recommended changes to the Executive Order 12958, as amended, as well as periodic independent audits of classification decisions, procedures for challenging classification decisions, and adequate, current classification guides that include an explanation of the specific harm or threat that justifies the classification.
Ms. Fuchs stated, "It does not help the system when the classification system and its oversight entity are disregarded and ignored, as in the reclassification of records at the National Archives that was exposed last year or in the conduct of the Vice President's office in refusing to report its classification activities to the Information Security Oversight Office."
Other witnesses included: J. William Leonard, Director of the Information Security Oversight Office; and Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists.
For More Information Contact:
Meredith Fuchs: 202/994-7000
http://www.nsarchive.org/
Hat tip: H-Diplo
Teaching Market Advice Round-up
There have been good posts on various blogs recently with advice for those considering going on the law teaching market. Among them:
The Big Rock Candy Mountain: How to Get a Job in Law Teaching
The Big Rock Candy Mountain: How to Get a Job in Law Teaching
Aspiring Law Profs: Listing Teaching Interests
FAR Forms & the Case for Honesty
The Role of ReferencesThe Other Side of Appointments
Teaching Law without a Yale Degree
"How not to 'retire and teach'" And when you get to the place where you have to check "Fox" or "Hedgehog" on the FAR Form, you have to read this. If you see others, please add links in the comments. Good luck to all!
Hiett Prize in the Humanities
The Hiett Prize in the Humanities, given by The Dallas Institute of Humanities and Culture, is an annual award presented to a person whose work in the humanities shows extraordinary promise and has a significant public component related to contemporary culture. Its purpose is to encourage future leaders in the humanities by 1) recognizing their achievement and their potential and 2) assisting their work through a cash award of $50,000.
Candidates must be within the early stages of a career track in which the primary work is in a field centered in or directly related to one or more of the humanities and has a clearly public or practical dimension. Nominations will be accepted from anywhere in the United States. Application deadline is September 15, 2007, see the web site for more information. Hat tip AHA Blog.
Candidates must be within the early stages of a career track in which the primary work is in a field centered in or directly related to one or more of the humanities and has a clearly public or practical dimension. Nominations will be accepted from anywhere in the United States. Application deadline is September 15, 2007, see the web site for more information. Hat tip AHA Blog.
San Quentin Intake Records, 1909-1912
An essay by Bruce McKinney, What Book Collecting Beco
mes, in Americana Exchange, includes a link to San Quentin Prison intake records, 1909-1912, including these.
McKinney describes the database this way:
A set of the intake records for San Quentin Prison in Marin County, California, just across the bay from San Francisco. This is a set of sequentially numbered pages beginning with sheet 1 and continuing to 833 including details about each prisoner. These records, perhaps one of 2 to 4 sets, were prepared for law enforcement and possibly for San Quentin itself. They span the years 1909 into 1912, are mounted three to a page [11 x 14"], were originally bound into books but are now housed sheet by sheet in archival wraps and divided into four cases, each containing more than 100 leaves, mounted on two sides, printed, typed, many noted in hand and almost all with an "intake" photograph [2.75 x 3.25"]. The handwritten notes suggest these records remained within the prison or in the hands of enforcement well into the 1930s.
San Quentin was both a state prison and the local option for many of San Francisco's cases. It was, to quote Sergeant Joe Friday of Dragnet forty years later, "Full of people hard to understand." With this article is a database, created from these records, of all the men and women logged into San Quentin who passed through the San Francisco court system during this four year period. Intake photographs for each prisoner, apparently taken almost immediately after arrival, are affixed to each record. They are the blue links. Comparison of sentence with the appearance of the prisoner is telling.
Thanks to Mike Widener for the tip.
mes, in Americana Exchange, includes a link to San Quentin Prison intake records, 1909-1912, including these.McKinney describes the database this way:
A set of the intake records for San Quentin Prison in Marin County, California, just across the bay from San Francisco. This is a set of sequentially numbered pages beginning with sheet 1 and continuing to 833 including details about each prisoner. These records, perhaps one of 2 to 4 sets, were prepared for law enforcement and possibly for San Quentin itself. They span the years 1909 into 1912, are mounted three to a page [11 x 14"], were originally bound into books but are now housed sheet by sheet in archival wraps and divided into four cases, each containing more than 100 leaves, mounted on two sides, printed, typed, many noted in hand and almost all with an "intake" photograph [2.75 x 3.25"]. The handwritten notes suggest these records remained within the prison or in the hands of enforcement well into the 1930s.
San Quentin was both a state prison and the local option for many of San Francisco's cases. It was, to quote Sergeant Joe Friday of Dragnet forty years later, "Full of people hard to understand." With this article is a database, created from these records, of all the men and women logged into San Quentin who passed through the San Francisco court system during this four year period. Intake photographs for each prisoner, apparently taken almost immediately after arrival, are affixed to each record. They are the blue links. Comparison of sentence with the appearance of the prisoner is telling.
Thanks to Mike Widener for the tip.
Thursday, July 12, 2007
Gibson reviews Marshall, John Locke, Toleration and Early Enlightenment Culture
John Marshall, John Locke, Toleration and Early Enlightenment Culture: Religious Toleration and Arguments for Religious Toleration in Early Modern and Early Enlightenment Europe (Cambridge Studies in Early Modern British History Series)(Cambridge University Press, 2006) is reviewed for H-Albion by William Gibson, Oxford Brookes University. Hat tip to H-Law.
Historians of religious toleration in the early modern period have hitherto been de
pendent on W. K. Jordan's four- volume The Development of Religious Toleration in England (1932-1940) and Peter Zagorin's recent How the Idea of Religious Toleration Came to the West (2003). But Jordan focuses on England, whereas Marshall-- rightly--sees toleration as a European phenomenon; and Zagorin ranges more widely from the sixteenth century to the eighteenth century, while Marshall seeks to pursue a more limited "moment" in the 1680s and 1690s. Certainly the second half of the seventeenth century was a high point of persecution which seems to have given way in a number of countries to toleration. It was also a period in which there were multiple persecutions and tolerations, depending on the moment. In England the Anglican state's persecution of Nonconformity in the Clarendon Code flipped over into the united Protestant resistance to Catholicism under James, followed by the Glorious Revolution and the Toleration Act. Persecutors and advocates of toleration were often one and the same. Charles II, whose tolerant Declaration of Breda raised such hope in 1660, advocated restricting the franchise to Anglicans when he was King, but also issued the short-lived Declaration of Indulgence in 1672, and died a Catholic. Similarly, James II was both an inflexible Catholic, intolerant of other religious views,and the author of the Declarations of Indulgence in 1687 and 1688; and Archbishop William Sancroft, who supported Anglican legislation against Dissent in the 1660s and 1670s, wooed Dissenters in 1688 to prevent the triumph of James II's Catholic policies. However insincerely, all three adopted the logic of toleration to pursue their own ends, suggesting perhaps that they recognized the internal inconsistencies of persecution.
John Marshall's ambitious and wide-ranging book sets itself a challenging task. Firstly, Marshall traces the impact of religious violence and considers representations of intolerance across France,Piedmont, the Netherlands, Ireland, and Britain. Marshall treats this intolerance as a backdrop to Locke's ideas of toleration, which justified resistance to rulers and extended rights to people--but only contingently. Marshall then considers the arguments for toleration, and shows the complexity of the multiple voices, some of which sought to justify intolerance as well as toleration. Above all those who advocated intolerance were preoccupied with heterodoxy and heresy and this impeded the growth of toleration, not just in religious matters but also in sexual mores and attitudes to those of other religions such as Muslim and Jews. By the 1680s and 1690s, however, Marshall claims that a small group of émigrés [sic] in the Netherlands developed ideas of universal religious toleration, the group included Locke and conceived an "early Enlightenment culture" which was complementary to the republic of letters which emerged at the same time. This early Enlightenment culture was in opposition to the Inquisition and drew on Christianity of the first three centuries as a precedent of tolerant Christianity. But there were limits to this early Enlightenment culture of toleration. As the works of Pierre Bayle and Gilbert Burnet show, Protestant tolerance did not comprehend Catholicism, nor did it embrace atheism or sexual libertinism.
This brief summary of Marshall's argument does not capture the detail with which he clothes the discussion.
Continue reading here.
Historians of religious toleration in the early modern period have hitherto been de
pendent on W. K. Jordan's four- volume The Development of Religious Toleration in England (1932-1940) and Peter Zagorin's recent How the Idea of Religious Toleration Came to the West (2003). But Jordan focuses on England, whereas Marshall-- rightly--sees toleration as a European phenomenon; and Zagorin ranges more widely from the sixteenth century to the eighteenth century, while Marshall seeks to pursue a more limited "moment" in the 1680s and 1690s. Certainly the second half of the seventeenth century was a high point of persecution which seems to have given way in a number of countries to toleration. It was also a period in which there were multiple persecutions and tolerations, depending on the moment. In England the Anglican state's persecution of Nonconformity in the Clarendon Code flipped over into the united Protestant resistance to Catholicism under James, followed by the Glorious Revolution and the Toleration Act. Persecutors and advocates of toleration were often one and the same. Charles II, whose tolerant Declaration of Breda raised such hope in 1660, advocated restricting the franchise to Anglicans when he was King, but also issued the short-lived Declaration of Indulgence in 1672, and died a Catholic. Similarly, James II was both an inflexible Catholic, intolerant of other religious views,and the author of the Declarations of Indulgence in 1687 and 1688; and Archbishop William Sancroft, who supported Anglican legislation against Dissent in the 1660s and 1670s, wooed Dissenters in 1688 to prevent the triumph of James II's Catholic policies. However insincerely, all three adopted the logic of toleration to pursue their own ends, suggesting perhaps that they recognized the internal inconsistencies of persecution.John Marshall's ambitious and wide-ranging book sets itself a challenging task. Firstly, Marshall traces the impact of religious violence and considers representations of intolerance across France,Piedmont, the Netherlands, Ireland, and Britain. Marshall treats this intolerance as a backdrop to Locke's ideas of toleration, which justified resistance to rulers and extended rights to people--but only contingently. Marshall then considers the arguments for toleration, and shows the complexity of the multiple voices, some of which sought to justify intolerance as well as toleration. Above all those who advocated intolerance were preoccupied with heterodoxy and heresy and this impeded the growth of toleration, not just in religious matters but also in sexual mores and attitudes to those of other religions such as Muslim and Jews. By the 1680s and 1690s, however, Marshall claims that a small group of émigrés [sic] in the Netherlands developed ideas of universal religious toleration, the group included Locke and conceived an "early Enlightenment culture" which was complementary to the republic of letters which emerged at the same time. This early Enlightenment culture was in opposition to the Inquisition and drew on Christianity of the first three centuries as a precedent of tolerant Christianity. But there were limits to this early Enlightenment culture of toleration. As the works of Pierre Bayle and Gilbert Burnet show, Protestant tolerance did not comprehend Catholicism, nor did it embrace atheism or sexual libertinism.
This brief summary of Marshall's argument does not capture the detail with which he clothes the discussion.
Continue reading here.
Brinks reviews Godoy, Popular Injustice: Violence, Community and Law in Latin America
Angelina Snodgrass Godoy, Popular Injustice:Violence, Community, and Law in Latin America (Stanford University Press, 2006) is reviewed for H-Law by Daniel Brinks, Departmentof Government, University of Texas at Austin. Brinks writes:
In this compelling and disturbing book, Angelina Snodgrass Godoy offers a nuance
d analysis of a phenomenon that strikes at the very heart of democracy: mass popular uprisings which often led to the violent murder of people suspected of usually relatively minor crimes in post-civil war, democratic Guatemala. According to the UN mission to Guatemala, nearly five hundred such events were recorded in Guatemala from 1996 to2002, leading to the death of 235 people. The preferred lynching method in Guatemala is fire,rather than the rope: victims are doused in gasoline and burned alive. Often entire communities participate in elaborate ceremonies of public shaming and abuse before putting the suspected offender to death. The practice is not restricted to Guatemala, but seems especially prevalent there.
The lynchings Godoy describes raise the kind of fears discussed by Fareed Zakaria: fears of what might happen when popular sovereignty turns some measure of authority to "illiberal societies."[1]Godoy's book is richly ethnographic and theoretically informed, presenting in chilling detail and heartbreaking immediacy the depth of inhumanity and the deep normative struggles of participants in these elaborate rituals of death and violence. Moreover, Godoy points out,lynchings are just one of a panoply of hyper-punitive crime control tactics championed by elected politicians and publics across Latin America. The book pointedly raises a question that has considerable currency: what does it take to establish a rights-observing democracy in societies stripped of their social capital by the physical violence of internal war and brutal atrocities, and by the structural violence of a modernity that promises but does not deliver a dignified existence?
The facile analysis from outside Latin America is that these are backward societies, simply unprepared for democracy, and that popular sovereignty in such a society is something to be feared rather than welcomed. The equally facile analysis from inside Latin America is that these societies are merely responding to the failure of the state to impose order, by availing themselves of self-help mechanisms. Godoy goes a step further, arguing that these lynchings are expressive acts undertaken by communities battered by modernity. In her view, lynchings are attempts to send the state a message and simultaneously re-establish agency. They take place in communities thrown into a near perpetual state of fear and stripped of long term social cohesion by violence and neoliberal globalization. In her vision, these are not so much democracies to be feared, as democracies soaked in fear.
There is a recent quantitative analysis of this same phenomenon, which merits reading together with Godoy's. Carlos Mendoza, in a slim volume entitled Absence of the State and Collective Violence in Mayan Lands (2007), makes an important observation. The presence of collective violence in a municipality, he notes,is associated (positively and significantly) with the presence of a majority indigenous population.Mendoza argues, rightly, that these are collective acts, and therefore that the communities that engage in them must retain the capacity for collective action. Indeed, he theorizes that it is precisely the higher capacity for collective action of indigenous societies that enables violent collective responses, in the absence of state-backed order.He points out, for example, that non-indigenous communities have fewer (collective) lynchings,but vastly more (individual) homicides--indeed,the homicide rate in indigenous municipalities in Guatemala is lower than that in the United States. He argues, therefore, that it is not anomie and the lack of cohesion that produce mass violence, but their opposites; and that their counterpart in non-indigenous communities is not resort to the criminal justice system, but murder pure and simple. For Mendoza lynchings are also expressive acts, but he sees them as a message to potential transgressors, rather than the state:behave or you will be burned alive.
But Godoy also notices something important, which is missing from the quantitative analysis. Much of the collective violence against individual transgressors is accompanied by violence against whatever state presence does exist. Thus lynchings are accompanied by the destruction of municipal property, attacks on police or judicial officers, and so on. The justifications offered by community members tend in the same direction.The point seems to be not so much that the state is absent but that the state is against the local community; that the state is as much a problem asthe individuals being punished. Even worse, the point seems to be that it is the "liberal constitutional" part of "liberal constitutional democracy" that is the problem.
To continue reading this interesting review, click here.
In this compelling and disturbing book, Angelina Snodgrass Godoy offers a nuance
d analysis of a phenomenon that strikes at the very heart of democracy: mass popular uprisings which often led to the violent murder of people suspected of usually relatively minor crimes in post-civil war, democratic Guatemala. According to the UN mission to Guatemala, nearly five hundred such events were recorded in Guatemala from 1996 to2002, leading to the death of 235 people. The preferred lynching method in Guatemala is fire,rather than the rope: victims are doused in gasoline and burned alive. Often entire communities participate in elaborate ceremonies of public shaming and abuse before putting the suspected offender to death. The practice is not restricted to Guatemala, but seems especially prevalent there.The lynchings Godoy describes raise the kind of fears discussed by Fareed Zakaria: fears of what might happen when popular sovereignty turns some measure of authority to "illiberal societies."[1]Godoy's book is richly ethnographic and theoretically informed, presenting in chilling detail and heartbreaking immediacy the depth of inhumanity and the deep normative struggles of participants in these elaborate rituals of death and violence. Moreover, Godoy points out,lynchings are just one of a panoply of hyper-punitive crime control tactics championed by elected politicians and publics across Latin America. The book pointedly raises a question that has considerable currency: what does it take to establish a rights-observing democracy in societies stripped of their social capital by the physical violence of internal war and brutal atrocities, and by the structural violence of a modernity that promises but does not deliver a dignified existence?
The facile analysis from outside Latin America is that these are backward societies, simply unprepared for democracy, and that popular sovereignty in such a society is something to be feared rather than welcomed. The equally facile analysis from inside Latin America is that these societies are merely responding to the failure of the state to impose order, by availing themselves of self-help mechanisms. Godoy goes a step further, arguing that these lynchings are expressive acts undertaken by communities battered by modernity. In her view, lynchings are attempts to send the state a message and simultaneously re-establish agency. They take place in communities thrown into a near perpetual state of fear and stripped of long term social cohesion by violence and neoliberal globalization. In her vision, these are not so much democracies to be feared, as democracies soaked in fear.
There is a recent quantitative analysis of this same phenomenon, which merits reading together with Godoy's. Carlos Mendoza, in a slim volume entitled Absence of the State and Collective Violence in Mayan Lands (2007), makes an important observation. The presence of collective violence in a municipality, he notes,is associated (positively and significantly) with the presence of a majority indigenous population.Mendoza argues, rightly, that these are collective acts, and therefore that the communities that engage in them must retain the capacity for collective action. Indeed, he theorizes that it is precisely the higher capacity for collective action of indigenous societies that enables violent collective responses, in the absence of state-backed order.He points out, for example, that non-indigenous communities have fewer (collective) lynchings,but vastly more (individual) homicides--indeed,the homicide rate in indigenous municipalities in Guatemala is lower than that in the United States. He argues, therefore, that it is not anomie and the lack of cohesion that produce mass violence, but their opposites; and that their counterpart in non-indigenous communities is not resort to the criminal justice system, but murder pure and simple. For Mendoza lynchings are also expressive acts, but he sees them as a message to potential transgressors, rather than the state:behave or you will be burned alive.
But Godoy also notices something important, which is missing from the quantitative analysis. Much of the collective violence against individual transgressors is accompanied by violence against whatever state presence does exist. Thus lynchings are accompanied by the destruction of municipal property, attacks on police or judicial officers, and so on. The justifications offered by community members tend in the same direction.The point seems to be not so much that the state is absent but that the state is against the local community; that the state is as much a problem asthe individuals being punished. Even worse, the point seems to be that it is the "liberal constitutional" part of "liberal constitutional democracy" that is the problem.
To continue reading this interesting review, click here.
New Nixon Tapes
From today's New York Times: The National Archives made available on Wednesday more than 11 hours of tape recordings that show President Richard M. Nixon maneuvering in 1972 to remake the Republican Party in his image, crush South Vietnamese opposition to his efforts to end the Vietnam War and dole out patronage to ethnic groups based on how much they supported his re-election....
The most dramatic and revelatory tape recordings involving abuses of government power were disclosed in 1996 and included Nixon’s conversations as recorded by a hidden taping system as the Watergate scandal enveloped and eventually forced him from office.
The newly released recordings provide a fresh glimpse of the political Nixon, especially in the heady moments of his 1972 landslide re-election victory over his Democratic opponent, Senator George McGovern, as the Watergate clouds were just beginning to form.
The documents span a wider period and include a memorandum that may intrigue students of Nixon’s character. In the document, written in December 1970 to H. R. Haldeman, a top aide, Nixon expresses both anger and pain that his aides have not been able to establish an image of him as a warm and caring person. He makes several suggestions about how this could be accomplished, warning frequently in the single-spaced 11-page document that it must appear that the examples of his warmth were discovered by others and not promoted by White House aides. For the rest, and links to tapes, click here.
The most dramatic and revelatory tape recordings involving abuses of government power were disclosed in 1996 and included Nixon’s conversations as recorded by a hidden taping system as the Watergate scandal enveloped and eventually forced him from office.
The newly released recordings provide a fresh glimpse of the political Nixon, especially in the heady moments of his 1972 landslide re-election victory over his Democratic opponent, Senator George McGovern, as the Watergate clouds were just beginning to form.
The documents span a wider period and include a memorandum that may intrigue students of Nixon’s character. In the document, written in December 1970 to H. R. Haldeman, a top aide, Nixon expresses both anger and pain that his aides have not been able to establish an image of him as a warm and caring person. He makes several suggestions about how this could be accomplished, warning frequently in the single-spaced 11-page document that it must appear that the examples of his warmth were discovered by others and not promoted by White House aides. For the rest, and links to tapes, click here.
Gozzi on the History of International Law and Western Civilization
Gustavo Gozzi, University of Bologna - Department of Politics, Institutions, History, has posted a new paper, History of International Law and Western Civilization. Here's the abstract:
This paper discusses the origins 19th-century international law through the works of such scholars as Bluntschli, Lorimer, and Westlake, and then traces out its development into the 20th century. Nineteenth-century international law was forged entirely in Europe: it was the expression of a shared European consciousness and culture, and was geographically located within the community of European peoples, which meant a community of Christian, and hence “civilized,” peoples.
Despite this proclaimed superiority of European international law, and its underlying system of national sovereignties, it was recognized that “noncivilized” native peoples should be treated “humanely” as subjects entitled to the rights of man. This attitude strikes us as paternalistic today, considering that well into the second half of the 19th century the European system of laws was only one among a plurality of such systems across the world, prominent among which were the Sino-centric system in East Asia and the Islamo-centric system of the “Siyar.”
It was only toward the end of the 19th century that an international law emerged as the expression of an international “global society,” when the Ottoman Empire, China, and Japan found themselves forced to enter the regional international society revolving around Europe. Still, these nations stood on an unequal footing, forming a system based on colonial relations of domination.
This changed in the post–World War II period, when a larger community of nations developed that was not based on European dominance: it was now the consent of these nations that accounted for the existence of international law, which was being applied, or at least invoked, to assert various differences among them. This led to the extended world society we have today, made up of political systems profoundly different from one another because based on culture-specific concepts. So in order for a system to qualify as universal, it must now draw not only on Western but also on non-Western forms, legacies, and concepts. There are two areas of law that can illustrate how different civilizations might find such common ground, these being international private law and the international law of human rights. The paper's focus is on the latter issue of human rights, which are accordingly discussed on the basis of an “intercivilizational” approach.
This paper discusses the origins 19th-century international law through the works of such scholars as Bluntschli, Lorimer, and Westlake, and then traces out its development into the 20th century. Nineteenth-century international law was forged entirely in Europe: it was the expression of a shared European consciousness and culture, and was geographically located within the community of European peoples, which meant a community of Christian, and hence “civilized,” peoples.
Despite this proclaimed superiority of European international law, and its underlying system of national sovereignties, it was recognized that “noncivilized” native peoples should be treated “humanely” as subjects entitled to the rights of man. This attitude strikes us as paternalistic today, considering that well into the second half of the 19th century the European system of laws was only one among a plurality of such systems across the world, prominent among which were the Sino-centric system in East Asia and the Islamo-centric system of the “Siyar.”
It was only toward the end of the 19th century that an international law emerged as the expression of an international “global society,” when the Ottoman Empire, China, and Japan found themselves forced to enter the regional international society revolving around Europe. Still, these nations stood on an unequal footing, forming a system based on colonial relations of domination.
This changed in the post–World War II period, when a larger community of nations developed that was not based on European dominance: it was now the consent of these nations that accounted for the existence of international law, which was being applied, or at least invoked, to assert various differences among them. This led to the extended world society we have today, made up of political systems profoundly different from one another because based on culture-specific concepts. So in order for a system to qualify as universal, it must now draw not only on Western but also on non-Western forms, legacies, and concepts. There are two areas of law that can illustrate how different civilizations might find such common ground, these being international private law and the international law of human rights. The paper's focus is on the latter issue of human rights, which are accordingly discussed on the basis of an “intercivilizational” approach.
Wednesday, July 11, 2007
Leiter on Simpson, The Common Law and Legal Theory, in new Legal Philosophy Blog
Brian Leiter takes on A.W.B. Simpson's 1973 essay, The Common Law and Legal Theory, in a post on his new Legal Philosophy Blog, just launched.
Baker reviews Killenbeck, M'Culloch v. Maryland: Securing a Nation
Mark R. Killenbeck, M'Culloch v. Maryland: Securing a Nation (University Press of Kansas, 2006) is reviewed for H-Law by H. Robert Baker, Georgia State University. Baker begins:
Along with John F. A. Sanford (of Dred Scott fame), James W. McCulloh must stand
as the most famous man to lend his misspelled name to the Supreme Court canon. His case, McCulloch v. Maryland, put the Supreme Court's stamp of approval upon Congress's power to incorporate banks and on a Hamiltonian interpretation of the Constitution. The import of the decision was far greater than this, and it is doubtless one of Chief Justice John Marshall's gems. In his new survey of the case, Mark R. Killenbeck's examines the particulars of the opinion of the court and the storied newspaper exchange between Marshall and Spencer Roane (pseudonymous, of course) over merits of the decision. He also reveals the human side of the story in the shady dealings of James McCulloh as cashier of the Baltimore branch of the Bank of the United States and his quest for personal redemption.
As a survey designed to introduce readers to the case, this book has significant strengths. Killenbeck grounds his study in the familiar story of the constitutional controversy over the creation of the national bank in 1791. Hamilton and Jefferson's arguments are carefully reproduced, as are the debates in Congress. The narrative then follows the bank's life and eventual death in1811, and the creation of the second Bank of the United States in 1816.
This is, of course, the standard narrative leading up to the Supreme Court's handling of McCulloch v. Maryland. More impressively, Killenbeck takes seriously the range of constitutional arguments presented outside the Court. He gives ample time to the 1794 Senate debate of a constitutional amendment limiting the power of Congress to incorporate banks. He links this, albeit indirectly, with the controversial Alien and Sedition Acts, the Virginia and Kentucky resolutions, and the constitutional crisis they engendered before the election of 1800. This is a welcome contextualization of the bank controversy as one battle among many in a long constitutional war, and Killenbeck does a great service in recreating the political climate of the early republic.
He also demystifies the Supreme Court's role in the process. The bank controversy was not a three-decade dispute seeking judicial resolution, but an ongoing constitutional disagreement that involved every branch of the government. Implicit in Killenbeck's narrative is the understanding that the Supreme Court was in no position to weigh in authoritatively on the subject during the 1790s. Things were different by 1819, but only because of the conscious workings of the Court's chief justice since 1801, John Marshall. In a valuable chapter, Killenbeck describes Marshall's efforts to transform the Supreme Court into a coequal branch of government that might speak with some authority on serious constitutional controversies. Coverage is given to Marshall's strong opinions in Marbury v. Madison (1803), Fletcher v. Peck (1810), as well as the trio of decisions of which McCulloch (1819) was a part(along with Dartmouth College and Sturges v. Crowninshield, both decided in1819). But this is not just intellectual history. Readers will encounter the boardinghouse in which all justices lived, the galleys of the Supreme Court packed to hear oral arguments by Daniel Webster, and snippets of the Washington social scene. These elements are not added just to color to the narrative. As Killenbeck makes clear, such matters impinged directly on Marshall's ability to mold the Court to his liking and upon the country's reception of the Court's decisions.
Along with John F. A. Sanford (of Dred Scott fame), James W. McCulloh must stand
as the most famous man to lend his misspelled name to the Supreme Court canon. His case, McCulloch v. Maryland, put the Supreme Court's stamp of approval upon Congress's power to incorporate banks and on a Hamiltonian interpretation of the Constitution. The import of the decision was far greater than this, and it is doubtless one of Chief Justice John Marshall's gems. In his new survey of the case, Mark R. Killenbeck's examines the particulars of the opinion of the court and the storied newspaper exchange between Marshall and Spencer Roane (pseudonymous, of course) over merits of the decision. He also reveals the human side of the story in the shady dealings of James McCulloh as cashier of the Baltimore branch of the Bank of the United States and his quest for personal redemption.As a survey designed to introduce readers to the case, this book has significant strengths. Killenbeck grounds his study in the familiar story of the constitutional controversy over the creation of the national bank in 1791. Hamilton and Jefferson's arguments are carefully reproduced, as are the debates in Congress. The narrative then follows the bank's life and eventual death in1811, and the creation of the second Bank of the United States in 1816.
This is, of course, the standard narrative leading up to the Supreme Court's handling of McCulloch v. Maryland. More impressively, Killenbeck takes seriously the range of constitutional arguments presented outside the Court. He gives ample time to the 1794 Senate debate of a constitutional amendment limiting the power of Congress to incorporate banks. He links this, albeit indirectly, with the controversial Alien and Sedition Acts, the Virginia and Kentucky resolutions, and the constitutional crisis they engendered before the election of 1800. This is a welcome contextualization of the bank controversy as one battle among many in a long constitutional war, and Killenbeck does a great service in recreating the political climate of the early republic.
He also demystifies the Supreme Court's role in the process. The bank controversy was not a three-decade dispute seeking judicial resolution, but an ongoing constitutional disagreement that involved every branch of the government. Implicit in Killenbeck's narrative is the understanding that the Supreme Court was in no position to weigh in authoritatively on the subject during the 1790s. Things were different by 1819, but only because of the conscious workings of the Court's chief justice since 1801, John Marshall. In a valuable chapter, Killenbeck describes Marshall's efforts to transform the Supreme Court into a coequal branch of government that might speak with some authority on serious constitutional controversies. Coverage is given to Marshall's strong opinions in Marbury v. Madison (1803), Fletcher v. Peck (1810), as well as the trio of decisions of which McCulloch (1819) was a part(along with Dartmouth College and Sturges v. Crowninshield, both decided in1819). But this is not just intellectual history. Readers will encounter the boardinghouse in which all justices lived, the galleys of the Supreme Court packed to hear oral arguments by Daniel Webster, and snippets of the Washington social scene. These elements are not added just to color to the narrative. As Killenbeck makes clear, such matters impinged directly on Marshall's ability to mold the Court to his liking and upon the country's reception of the Court's decisions.
To continue reading (recommened -- more to come), click here.
Tate on Christianity and the Legal Status of Abandoned Children in the Later Roman Empire
Joshua C. Tate, Southern Methodist University, Dedman School of Law (Visiting at the Univ. of Pennsylvania), has another new piece, Christianity and the Legal Status of Abandoned Children in the Later Roman Empire. It is forthcoming in the Journal of Law and Religion. Here's the abstract: Late Roman imperial legislation relating to abandoned or exposed children has been the subject of much debate. Some have argued that the constitutions of Constantine relating to abandoned children marked a new Christian influence, and that the years between Constantine and Justinian merely refined and explained Constantine's legislation. This paper argues that the legislation of Constantine was not distinctly Christian in content, but that some Christian influence can be seen in the rhetoric of imperial constitutions beginning in the fifth century, and that Christian ideas seem to have affected both the substance and the rhetoric of Justinian's legislation. The paper examines ideas relating to adoption in the New Testament and the writings of the church fathers, and considers the extent to which these ideas may have made an impact on the constitutions of the late Roman emperors. Particular emphasis is given to the use of the word misericordia in a constitution of Honorius to refer to the actions of the collector of abandoned children, as well as the notion, in Justinian's legislation, that adoption entails freedom. The paper concludes that the religious discourse of late antique Christianity shaped the theory, if not the practical effect, of imperial legislation relating to abandoned children.
Tuesday, July 10, 2007
Chen, Clash of Empires in the Realm of Law and History: A Case Study of the Sino-British Legal Dispute in 1784
Li Chen, Columbia, has posted a new paper, Clash of Empires in the Realm of Law and History: A Case Study of the Sino-British Legal Dispute in 1784. Here's the abstract:
Chinese law, Chinese sovereignty, and Chinese history are inseparably intertwined with one another in the issue of Western extraterritoriality. Pre-1840 Sino-British/Western legal disputes have been cited by numerous commentators and historians to explain or defend Western extraterritoriality in China from 1842 to 1943 as well as Western resistance to Chinese law and jurisdiction before that. Spearheading this enterprise, the British had primarily relied upon the Lady Hughes case in Canton in 1784 to argue that Chinese law was too arbitrary, sanguinary, and barbaric to govern Westerners in China. This discourse acquired such a hegemonic, epistemic status that scholars over the next two centuries have rarely questioned it. Utilizing both original English and Chinese records, this paper for the first time provided a detailed, critical reexamination of this landmark international dispute and its far-reaching historiographic impact. It argues that the centuries-long discourse of Chinese injustice and legal barbarity was largely constructed to retrospectively justify the British request for extraterritoriality in China. Unlike the traditional, simplistic narratives, this case study as a micro-history sheds fresh light on the complex process of negotiations and contestations between two empires and their respective agents in South China, with conflicting claims for sovereignty and imperial honor. It illustrates how much such power politics shaped our inherited knowledge of Chinese legal and political traditions and of early modern Sino-Western relations.
Chinese law, Chinese sovereignty, and Chinese history are inseparably intertwined with one another in the issue of Western extraterritoriality. Pre-1840 Sino-British/Western legal disputes have been cited by numerous commentators and historians to explain or defend Western extraterritoriality in China from 1842 to 1943 as well as Western resistance to Chinese law and jurisdiction before that. Spearheading this enterprise, the British had primarily relied upon the Lady Hughes case in Canton in 1784 to argue that Chinese law was too arbitrary, sanguinary, and barbaric to govern Westerners in China. This discourse acquired such a hegemonic, epistemic status that scholars over the next two centuries have rarely questioned it. Utilizing both original English and Chinese records, this paper for the first time provided a detailed, critical reexamination of this landmark international dispute and its far-reaching historiographic impact. It argues that the centuries-long discourse of Chinese injustice and legal barbarity was largely constructed to retrospectively justify the British request for extraterritoriality in China. Unlike the traditional, simplistic narratives, this case study as a micro-history sheds fresh light on the complex process of negotiations and contestations between two empires and their respective agents in South China, with conflicting claims for sovereignty and imperial honor. It illustrates how much such power politics shaped our inherited knowledge of Chinese legal and political traditions and of early modern Sino-Western relations.
Esquirol on law in Latin America and the role of Alejandro Alvarez: A Question of Identity
Jorge Luis Esquirol, Florida International University, has posted an abstract for a new paper, Alejandro Alvarez: A Question of Identity. The paper is not posted, but the author can be reached through his SSRN page. Here's the abstract:
Alejandro Alvarez is the grand architect of Latin American International Law. His work asserts the separate identity of law in Latin America. More than just a style or an approach, Alvarez's Latin American law consists of specific rules and doctrines which he characterized as particularly salient, if not exclusive, to Latin Americans. His identity project remains of great relevance to progressives today. This is especially so to those working in the field of comparative law and Latin America specifically. Identity projects have elicited much debate in recent years, and many scholars are still drawn to them.
With respect to Latin American law, however, most progressives reject the category's emancipatory potential and most others deploy it solely as a foil to suggest better, more efficient laws. Indeed, the notion of Latin American law since Alvarez has taken a beating. It has been re-encryted with meanings of deficiency, obsolescence, incompatible Europeanism, inefficiency and corruption. If anything, the identity marked by Latin American law as received by us today signals backwardness and oppression. Rather than a tool for empowerment, the mention of Latin Americanness produces the opposite - a call for reform. Alvarez's innovative and challenging appeal to greater autonomy and positively-valenced specifity of Latin American law has given way to images of deficiency and decay.
This piece focuses on the elements of Latin American specificity that Alvarez deploys to construct his vision of a Latin American legal identity. Many scholars working in the field today are grappling with exactly this problem. How does one employ Latin legal identity in progressive projects in light of its overwhelmingly negative associations affirmed by both the right and the left? This is a question that would not have been unfamiliar to Alvarez. He himself was working against the backdrop of Latin America as not clearly within the realm of civilized nations and its nations as not fully members of the international community.
Specifically, my Essay focuses on Alejandro Álvarez's seminal article, Latin America and International Law, published in 1909 in the American Journal of International Law. Offering an in-depth analysis of the text, it foregrounds the strategic meaning of Álvarez's work in light of the international politics of his day. It posits that, more than simply a diplomatic history of Latin American particularity, Álvarez presents the case for a different hemispheric international order, based on an "American International Law" extending to the United States. He draws primarily on Latin American precedents -- based on historical and stituational commonalities -- to argue for a common public law. He then engrafts an idiosyncratic interpretation of the Monroe Doctrine as the U.S.'s main contribution to this common law, as well as the fact of U.S. sponsorship of various Americas-wide conferences resulting in the ratification of regional treaties. Notably, and this is one of the main points of this Essay, Álvarez elevates certain Latin American states as leaders in regional international law and capable agents of its enforcement across the hemisphere. In short, this Essay advances the claim that Álvarez's project of pan-American law in effect entreats the United States to share its hegemony and wield its power in the region, jointly, with Latin America's "better constituted" states.
Alejandro Alvarez is the grand architect of Latin American International Law. His work asserts the separate identity of law in Latin America. More than just a style or an approach, Alvarez's Latin American law consists of specific rules and doctrines which he characterized as particularly salient, if not exclusive, to Latin Americans. His identity project remains of great relevance to progressives today. This is especially so to those working in the field of comparative law and Latin America specifically. Identity projects have elicited much debate in recent years, and many scholars are still drawn to them.
With respect to Latin American law, however, most progressives reject the category's emancipatory potential and most others deploy it solely as a foil to suggest better, more efficient laws. Indeed, the notion of Latin American law since Alvarez has taken a beating. It has been re-encryted with meanings of deficiency, obsolescence, incompatible Europeanism, inefficiency and corruption. If anything, the identity marked by Latin American law as received by us today signals backwardness and oppression. Rather than a tool for empowerment, the mention of Latin Americanness produces the opposite - a call for reform. Alvarez's innovative and challenging appeal to greater autonomy and positively-valenced specifity of Latin American law has given way to images of deficiency and decay.
This piece focuses on the elements of Latin American specificity that Alvarez deploys to construct his vision of a Latin American legal identity. Many scholars working in the field today are grappling with exactly this problem. How does one employ Latin legal identity in progressive projects in light of its overwhelmingly negative associations affirmed by both the right and the left? This is a question that would not have been unfamiliar to Alvarez. He himself was working against the backdrop of Latin America as not clearly within the realm of civilized nations and its nations as not fully members of the international community.
Specifically, my Essay focuses on Alejandro Álvarez's seminal article, Latin America and International Law, published in 1909 in the American Journal of International Law. Offering an in-depth analysis of the text, it foregrounds the strategic meaning of Álvarez's work in light of the international politics of his day. It posits that, more than simply a diplomatic history of Latin American particularity, Álvarez presents the case for a different hemispheric international order, based on an "American International Law" extending to the United States. He draws primarily on Latin American precedents -- based on historical and stituational commonalities -- to argue for a common public law. He then engrafts an idiosyncratic interpretation of the Monroe Doctrine as the U.S.'s main contribution to this common law, as well as the fact of U.S. sponsorship of various Americas-wide conferences resulting in the ratification of regional treaties. Notably, and this is one of the main points of this Essay, Álvarez elevates certain Latin American states as leaders in regional international law and capable agents of its enforcement across the hemisphere. In short, this Essay advances the claim that Álvarez's project of pan-American law in effect entreats the United States to share its hegemony and wield its power in the region, jointly, with Latin America's "better constituted" states.
Monday, July 9, 2007
Kubben, A Narrative on Dwarfs and Giants: The Batavian Republic and the Franco-Anglo Peace
Raymond Kubben, Tilburg University, has posted a new essay, A Narrative on Dwarfs and Giants. The Batavian Republic and the Franco-Anglo Peace. It will appear in IN THE EMBRACE OF FRANCE. THE LAW OF NATIONS AND CONSTITUTIONAL LAW IN THE FRENCH SATELLITE STATES OF THE REVOLUTIONARY AND NAPOLEONIC AGE (1789-1815), R.C.H. Lesaffer, R.M.H. Kubben and B.C.M. van Erp-Jacobs, Baden-Baden: Nomos Verlag, 2007. Here's the abstract: The ideal of legal equality, firmly based in natural law, stands as a cornerstone of eighteenth century thought on the law of nations and Revolutionary ideology. And yet, in the years after the thermidor coup d'état the French Republic reached a hegemonic position. The advance of the French Revolutionary armies caused the creation of sister republics in the Netherlands, Italy and Switzerland. Politically, at least, their regimes were dependent on the French government. However, the factual inequality in power and influence, does not give a conclusive indication of the sister republics' legal position. So the question remains whether the French hegemony, despite the ideological stress on equality, translated into unequal juridical status and forms? To find a beginning of an answer to this question this paper focuses on a heyday of the modern law of nations: the conclusion of a treaty. The involvement of the Batavian Republic in the Franco-Anglo peace negotiations leading to the Treaty of Amiens of March 1802 is analysed. To answer the question whether the Batavian Republic did have legislative equality in this peace settlement, four aspects of the Treaty of Amiens and its formation are being discussed: 1) the formation of the preliminary articles of peace of London; 2) the admittance of the Batavian representative to the conferences in Amiens; 3) his part in the negotiations; and 4) the text of the treaty. The analysis will show that the principle of consent was formally upheld and that the treaty text shows hardly a sign of inequality, whereas the Batavian Republic's representative clearly played a secondary role during the negotiations and the Batavian Republic thus did not participate on equal terms in the formation of the treaty. Although France clearly dominated the peace conference in accordance with its leading role in the revolutionary alliance, at least in public, appearances were still being kept up.
Guerra-Pujol on The Problem of Judicial Decrepitude: An Empirical View
For your Monday morning: F.E. Guerra-Pujol, Catholic University of Puerto Rico, has posted a new paper, The Problem of Judicial Decrepitude: An Empirical View. The essay quarrels with David Garrow's article: Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 University of Chicago Law Review 995 (2000). The definition of "decrepitude," relied on for the sake of argument by Guerra-Pujol, seems problematic, even if the question of judicial competence is a valid one. And a better title might be "The Problem of Judicial Decrepitude: A Critique," since there is no new empirical data here. The author instead assumes the accuracy of Garrow's data, but offers a critique of the way he evaluated it. Here's the abstract: Building on the work of historian David Garrow, this paper attempts to measure the true extent of the problem of judicial decrepitude among the members of the U.S. Supreme Court since the high court's inception in 1789. After presenting the relevant data, the author concludes (contra Garrow and others) that the incidence of judicial decrepitude is relatively infrequent and rare.
Sunday, July 8, 2007
Kittrie compares the 1930s with the present in Progress in Enforcing International Law Against Rogue States?
Orde F. Kittrie, Arizona State, has posted a new essay, Progress in Enforcing International Law Against Rogue States?: Comparing the 1930's With the Current Age of Nuclear Proliferation. It is forthcoming in PROGRESS IN INTERNATIONAL ORGANIZATION, Rebecca Bratspies and Russell Miller, eds., Spring 2008. Here's the abstract: This essay is a chapter in a forthcoming book, Progress in International Organization, which updates Professor Manley O. Hudson's 1932 book of the same title. In the introduction to his book, Hudson predicted that “when the history of our times comes to be written . . . our generation will be distinguished, above all else . . . for the progress which we have made in organizing the world for co-operation and peace.” Yet Hudson's interwar generation is today best known to history for its naïve appeasement of Axis aggression. The chapter first reviews how and why Hudson's generation failed to enforce international law during the 1930s against Nazi Germany, the Empire of Japan, and Mussolini's Italy, and how this failure contributed to the outbreak of World War II. Then it turns to one of the greatest security challenges of our time – the proliferation of nuclear weapons – and examines how and why the international community is again failing to take the enforcement measures necessary to prevent a major calamity. The chapter posits that while great progress has been made in many areas of international organization since Hudson's book was published in 1932, there has been relatively little progress on an issue pivotal to organizing the world for peace and security: enforcing international law against dangerous rogue states. Efforts to dissuade today's most dangerous rogue states – Iran and North Korea – from developing nuclear arsenals are often as toothless as were the efforts to dissuade the Axis powers from aggression prior to World War II. The results coming out of the Security Council today are sometimes practically indistinguishable from the results that emerged from the League of Nations during the interwar period. While the interwar generation was blinded in considerable part by naïve ideology, the Security Council today is being rendered ineffectual by avarice. The international community's hesitation to firmly enforce international law against Germany, Italy and Japan contributed to World War II's 60 million deaths in six years. War in this atomic age could be even deadlier. The fruits of progress in other areas of international organization once again risk being spoiled by a failure to firmly enforce international law against rogue states.
Muir reviews MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire
Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576-1640 (Cambridge University Press, 2006) is reviewed for H-Law by James Muir, Faculty of Law and Department of History and Classics, University of Alberta. Muir writes:
A Europ
ean monarch's claim to sovereignty over lands overseas in the fifteenth and sixteenth centuries was aimed at several audiences: her or his own subjects, those being colonized, and imperial rivals. In Sovereignty and Possession in the English New World, Ken MacMillan is particularly interested in the third of these, and he offers several interesting arguments about the ways sovereignty was asserted by Elizabeth I, James I, Charles I, and their subordinates. His key premise is that the legal foundations for the claims to American colonies lay in Roman law, not the local and (for Europe) peculiar common law of England. To demonstrate this he draws attention to legal documents, such as letters patent, and apparently non-legal things, such as maps. MacMillan presents his often fascinating and largely persuasive argument in this short, well-presented book.
MacMillan begins the substantive part of his book with the assertion that legal pluralism characterized English law in the Tudor-Stuart era. This is not a surprising claim, but his emphasis is different from that of other legal historians of empire. He is not interested in the legal pluralism of colonies as Lauren Benton was in Law and Colonial Cultures (2002). Drawing attention to legal pluralism in England, he seeks to overturn the pride of place given to the common law in the legal history of empire formation. By contrast, he asserts, "new found lands were outside of the realm of England and, therefore,outside the jurisdiction of the common law and the ordinary prerogative....Another legal system was, therefore, required to legitimize and oversee[colonization], one that would enable the crown to govern its foreign territories in a manner consistent with natural laws and liberties, and that would also enable it to gain the recognition of the supranational community"(p. 33). The last part is particularly important: England's claims had to be made to and legitimated before their European Imperial rivals. The Spanish crown, even if it rejected the claim, could at least understand one based on Roman law, while it would neither understand nor accept a common law argument.Tied to Roman law but separate was the royal prerogative. The monarch's prerogative powers were limited domestically, but were absolute in areas where the common law was silent or where foreign affairs were involved. For MacMillan, Roman law and the royal prerogative were parts of English legal pluralism central to the creation of empire.
Having established this thesis, he then proffers several related but distinct examples of the confluence of Roman law and the prerogative: the writings of John Dee, letters patent, fortifying and protecting settlements in the colonies, and maps of the world and North America. He concludes with an analysis of how these helped in negotiations with Spain and France in the 1600s over English claims to North American colonies. Interestingly, most of these topics appear, at first glance, to have little to do with legal history. The one obviously legal topic, the letters patent, explains how they were written,by whom, and how they were enforced internationally. It is a nice study of pre-Westphalian international law and builds particularly on the combination of the royal prerogative, exercised in the issuing of the letters, and Roman law, as the letters were typically drafted by civilian-trained lawyers at court.
One of the key figures in MacMillan's analysis is John Dee (1527-1608). Between 1577 and 1578, Dee produced a four-part manuscript, Brytanici Imperii Limites or The Limits of the British Empire that provided a geographical, historical,and legal analysis of the North Atlantic world and England's claim to it. The merging of historical and geographical knowledge with legal arguments reflected Dee's own broad interests and were a precursor to the later, more famous writings of Richard Hakluyt. MacMillan discusses Dee's use of contemporary English histories that described the empires established out of England by Brutus, King Arthur, and others. Using these and the rules of discovery and possession in Justinian's Digests, Dee asserted English claims for much of the North Atlantic. More influential, especially for Hakluyt, was Dee's argument about the Iberian misreading and failure to meet the requirements of the Papal Bull on which the Spanish and Portugese founded their claim to all of the Americas.
The focus on Roman law and the extensive analysis of John Dee do offer some new perspectives on the relationship between law and empire formation in England. To this point MacMillan's book is solid but not exciting. The chapter on fortifications, while related to the Roman law requirements of possession,seems almost out of place within the rest of the book, focusing, as the chapter does,on the experience in North America. The real innovation in the book begins with MacMillan's chapter on maps and empire. Describing in detail both manuscript and published maps, he shows the extent of geographical knowledge in England in the sixteenth and seventeenth centuries. He shows how the published maps were constructed deliberately to support the English crown's assertions of possession over the territories and to minimize the claims of its European counterparts. The languages of text; the orientation of the maps; the design and location of the cartouche; and the placement of other images on the map,among other aspects, are analyzed by MacMillan in relation to the ideological and legal arguments they could make. He underscores this argument by contrasting the published and manuscript maps drawn for broad and limited consumption.
MacMillan's discussion of maps, and his book as a whole, make a nice pairing with Brian Lockey's Law and Empire in English Renaissance Literature (2006). Both MacMillan and Lockey make convincing arguments for texts and documents not directly associated to law as being of significant importance in prompting and supporting the legal arguments upon which the empire had to be built, both at home and in relation to the other courts of Europe.
Ken MacMillan is a good writer: his arguments are clear, even while he engages and debates with an extensive historiography. The book as a whole often feels like a set of linked essays on a particular theme. The argument builds throughout, but individual chapters can often be read profitably on their own once the basic outlines of his thesis are understood. This book will be of use to those interested in the early political, intellectual, and legal history of the British Empire and provocative for those looking to expand the sources and framework of legal history research. The original review is here.
ean monarch's claim to sovereignty over lands overseas in the fifteenth and sixteenth centuries was aimed at several audiences: her or his own subjects, those being colonized, and imperial rivals. In Sovereignty and Possession in the English New World, Ken MacMillan is particularly interested in the third of these, and he offers several interesting arguments about the ways sovereignty was asserted by Elizabeth I, James I, Charles I, and their subordinates. His key premise is that the legal foundations for the claims to American colonies lay in Roman law, not the local and (for Europe) peculiar common law of England. To demonstrate this he draws attention to legal documents, such as letters patent, and apparently non-legal things, such as maps. MacMillan presents his often fascinating and largely persuasive argument in this short, well-presented book.MacMillan begins the substantive part of his book with the assertion that legal pluralism characterized English law in the Tudor-Stuart era. This is not a surprising claim, but his emphasis is different from that of other legal historians of empire. He is not interested in the legal pluralism of colonies as Lauren Benton was in Law and Colonial Cultures (2002). Drawing attention to legal pluralism in England, he seeks to overturn the pride of place given to the common law in the legal history of empire formation. By contrast, he asserts, "new found lands were outside of the realm of England and, therefore,outside the jurisdiction of the common law and the ordinary prerogative....Another legal system was, therefore, required to legitimize and oversee[colonization], one that would enable the crown to govern its foreign territories in a manner consistent with natural laws and liberties, and that would also enable it to gain the recognition of the supranational community"(p. 33). The last part is particularly important: England's claims had to be made to and legitimated before their European Imperial rivals. The Spanish crown, even if it rejected the claim, could at least understand one based on Roman law, while it would neither understand nor accept a common law argument.Tied to Roman law but separate was the royal prerogative. The monarch's prerogative powers were limited domestically, but were absolute in areas where the common law was silent or where foreign affairs were involved. For MacMillan, Roman law and the royal prerogative were parts of English legal pluralism central to the creation of empire.
Having established this thesis, he then proffers several related but distinct examples of the confluence of Roman law and the prerogative: the writings of John Dee, letters patent, fortifying and protecting settlements in the colonies, and maps of the world and North America. He concludes with an analysis of how these helped in negotiations with Spain and France in the 1600s over English claims to North American colonies. Interestingly, most of these topics appear, at first glance, to have little to do with legal history. The one obviously legal topic, the letters patent, explains how they were written,by whom, and how they were enforced internationally. It is a nice study of pre-Westphalian international law and builds particularly on the combination of the royal prerogative, exercised in the issuing of the letters, and Roman law, as the letters were typically drafted by civilian-trained lawyers at court.
One of the key figures in MacMillan's analysis is John Dee (1527-1608). Between 1577 and 1578, Dee produced a four-part manuscript, Brytanici Imperii Limites or The Limits of the British Empire that provided a geographical, historical,and legal analysis of the North Atlantic world and England's claim to it. The merging of historical and geographical knowledge with legal arguments reflected Dee's own broad interests and were a precursor to the later, more famous writings of Richard Hakluyt. MacMillan discusses Dee's use of contemporary English histories that described the empires established out of England by Brutus, King Arthur, and others. Using these and the rules of discovery and possession in Justinian's Digests, Dee asserted English claims for much of the North Atlantic. More influential, especially for Hakluyt, was Dee's argument about the Iberian misreading and failure to meet the requirements of the Papal Bull on which the Spanish and Portugese founded their claim to all of the Americas.
The focus on Roman law and the extensive analysis of John Dee do offer some new perspectives on the relationship between law and empire formation in England. To this point MacMillan's book is solid but not exciting. The chapter on fortifications, while related to the Roman law requirements of possession,seems almost out of place within the rest of the book, focusing, as the chapter does,on the experience in North America. The real innovation in the book begins with MacMillan's chapter on maps and empire. Describing in detail both manuscript and published maps, he shows the extent of geographical knowledge in England in the sixteenth and seventeenth centuries. He shows how the published maps were constructed deliberately to support the English crown's assertions of possession over the territories and to minimize the claims of its European counterparts. The languages of text; the orientation of the maps; the design and location of the cartouche; and the placement of other images on the map,among other aspects, are analyzed by MacMillan in relation to the ideological and legal arguments they could make. He underscores this argument by contrasting the published and manuscript maps drawn for broad and limited consumption.
MacMillan's discussion of maps, and his book as a whole, make a nice pairing with Brian Lockey's Law and Empire in English Renaissance Literature (2006). Both MacMillan and Lockey make convincing arguments for texts and documents not directly associated to law as being of significant importance in prompting and supporting the legal arguments upon which the empire had to be built, both at home and in relation to the other courts of Europe.
Ken MacMillan is a good writer: his arguments are clear, even while he engages and debates with an extensive historiography. The book as a whole often feels like a set of linked essays on a particular theme. The argument builds throughout, but individual chapters can often be read profitably on their own once the basic outlines of his thesis are understood. This book will be of use to those interested in the early political, intellectual, and legal history of the British Empire and provocative for those looking to expand the sources and framework of legal history research. The original review is here.
Saturday, July 7, 2007
Two reviews of Stephen Carter, New England White
The hot new book reviewed this weekend is not a history book, but New England White, a new novel by Stephen L. Carter, Yale Law School. Christopher Bentley in the New York Times calls the book "stylishly written" and finds the plot "sufficiently expansive to allow room for some serious thinking about the progress of 'the darker nation' at a time when neither political party has much time for the intractable challenges of race and poverty, an
d when 'as far as white America knew, nobody black ever had money or education before, say, affirmative action.'" But the review not to miss is by the Washington Post's thoughtful deputy Book World editor Jabari Asim. Asim writes:
No matter how our ancestors got here -- in the holds of slave ships, through the gates of Ellis Island, via a long trek across the Bering Straits or thanks to a nifty gift of land from the British crown -- on these shores we can all become, for better or worse, something else entirely, at least for a while. In this sense, the United States is the ultimate land of make-believe, and the proud black strivers who populate Stephen L. Carter's new novel are among its most fervent pretenders. As members of the elite vanguard whom W.E.B. DuBois famously called the Talented Tenth, they convince themselves from time to time that our nation's once rock-solid color lines are now paper-thin abstractions that anyone can surmount. Well, anyone with good breeding, a capacious intellect and a briefcase brimming with postgraduate degrees.
And yet Carter's ambitious black achievers are constantly running up against the limits their skin imposes. In the lily-white 'burbs where his characters scheme and toil, African American homeowners are denied access to residents-only beaches, stranded motorists are refused assistance from their suspicious white neighbors, and even law professors harbor "the secret fear of false arrest that every black male in America nurtures somewhere deep within." Little embers of injustice and dissatisfaction are ever present, occasionally erupting into flames. What are we to make of Carter's parade of bonfires and vanities?...
[Asim includes a basic plot summary, but notes that] the author is only partly concerned with whodunit; he'd rather ponder why any of us does the things we do -- especially the bad things....Human weakness is troubling, fascinating stuff, and Carter has spent much of his career plumbing its depths....It's perversely pleasurable, then, to find that his fictional creations are reliably rude, dishonest and deliciously sinful....
Like a modern-day version of sociologist E. Franklin Frazier, Carter casts a critical light on the lifestyles of the black and privileged. In his novels, as in real life, they must demonstrate a voluminous knowledge of mainstream culture -- its history, politics, neuroses, etc. -- while serving tirelessly as spokespersons for and guardians of their own embattled slice of marginalia. Little wonder, then, as Carter dryly notes, "black Americans at the top of their professions seemed to feel the need from time to time to slough off the personas that brought success in the wider, white world -- and to escape the small whispers and slights whose existence they secretly feared -- and hang out instead with the successful of their own nation."...
But dismissing these hardworking professionals as pampered sell-outs would be far too simple, so Carter wisely endows them with an extra layer of complexity. He reveals that they haven't really turned their backs on pursuing justice; they've simply brought it over to the "dark" side. To continue reading, click here.
d when 'as far as white America knew, nobody black ever had money or education before, say, affirmative action.'" But the review not to miss is by the Washington Post's thoughtful deputy Book World editor Jabari Asim. Asim writes:No matter how our ancestors got here -- in the holds of slave ships, through the gates of Ellis Island, via a long trek across the Bering Straits or thanks to a nifty gift of land from the British crown -- on these shores we can all become, for better or worse, something else entirely, at least for a while. In this sense, the United States is the ultimate land of make-believe, and the proud black strivers who populate Stephen L. Carter's new novel are among its most fervent pretenders. As members of the elite vanguard whom W.E.B. DuBois famously called the Talented Tenth, they convince themselves from time to time that our nation's once rock-solid color lines are now paper-thin abstractions that anyone can surmount. Well, anyone with good breeding, a capacious intellect and a briefcase brimming with postgraduate degrees.
And yet Carter's ambitious black achievers are constantly running up against the limits their skin imposes. In the lily-white 'burbs where his characters scheme and toil, African American homeowners are denied access to residents-only beaches, stranded motorists are refused assistance from their suspicious white neighbors, and even law professors harbor "the secret fear of false arrest that every black male in America nurtures somewhere deep within." Little embers of injustice and dissatisfaction are ever present, occasionally erupting into flames. What are we to make of Carter's parade of bonfires and vanities?...
[Asim includes a basic plot summary, but notes that] the author is only partly concerned with whodunit; he'd rather ponder why any of us does the things we do -- especially the bad things....Human weakness is troubling, fascinating stuff, and Carter has spent much of his career plumbing its depths....It's perversely pleasurable, then, to find that his fictional creations are reliably rude, dishonest and deliciously sinful....
Like a modern-day version of sociologist E. Franklin Frazier, Carter casts a critical light on the lifestyles of the black and privileged. In his novels, as in real life, they must demonstrate a voluminous knowledge of mainstream culture -- its history, politics, neuroses, etc. -- while serving tirelessly as spokespersons for and guardians of their own embattled slice of marginalia. Little wonder, then, as Carter dryly notes, "black Americans at the top of their professions seemed to feel the need from time to time to slough off the personas that brought success in the wider, white world -- and to escape the small whispers and slights whose existence they secretly feared -- and hang out instead with the successful of their own nation."...
But dismissing these hardworking professionals as pampered sell-outs would be far too simple, so Carter wisely endows them with an extra layer of complexity. He reveals that they haven't really turned their backs on pursuing justice; they've simply brought it over to the "dark" side. To continue reading, click here.
Friday, July 6, 2007
Brophy on Considering Reparations for the Dred Scott Case
Alfred L. Brophy, University of Alabama, has posted a new essay, Considering Reparations for the Dred Scott Case. It is forthcoming in DRED SCOTT, Christopher Bracy, David Konig, and Paul Finkelman, eds., 2008. Here's the abstract:
Considering Reparations for the Dred Scott Case, which was prepared for a volume reassessing Dred Scott on its 150th anniversary, asks how the case might fit into discussion of reparations for slavery. Is some reparative action advisable for that case standing by itself? Or might Dred Scott be used as part of a larger discussion. The brief essay begins with a brief assessment of where the movement for reparations for slavery is right now; then it turns to the case and asks what the Supreme Court's culpability might be and what, if any, harm the opinion causes today. The paper then turns to what reparations models might fit Dred Scott today, including a truth commission, apology, or reconstructed doctrine surrounding the Reconstruction Amendments.
Considering Reparations for the Dred Scott Case, which was prepared for a volume reassessing Dred Scott on its 150th anniversary, asks how the case might fit into discussion of reparations for slavery. Is some reparative action advisable for that case standing by itself? Or might Dred Scott be used as part of a larger discussion. The brief essay begins with a brief assessment of where the movement for reparations for slavery is right now; then it turns to the case and asks what the Supreme Court's culpability might be and what, if any, harm the opinion causes today. The paper then turns to what reparations models might fit Dred Scott today, including a truth commission, apology, or reconstructed doctrine surrounding the Reconstruction Amendments.
Cairns reviews Streib, The Fairer Death: Executing Women in Ohio
Victor L. Streib, The Fairer Death: Executing Women in Ohio (University of Ohio Press, 2006) is reviewed for H-Law by Kathleen A. Cairns, Department of History, Cal Poly San Luis Obispo. Cairns writes:
Trying to figure out why some killers are condemned and executed, while others c
ommitting similar crimes manage to evade the ultimate penalty, is akin to attempting to thread a needle with a blade of grass. That is to say, it's well nigh impossible. Comparing condemned women to their more fortunate "sisters"appears, on its face, to be a somewhat easier task. Women are, after all, executed in far fewer numbers than men. A total of 568 women have been hanged, gassed, electrocuted, and injected since 1632, representing less than 3 percent of all the executions in America. Since 1900, the percentage has dropped even further, to less than 1 percent of all executed inmates.
Narrowing the study to a single state would seem to bring the topic into microscopic focus. Nineteen states have executed women....Even the most "death-friendly" state for women--New York--has only executed seven women in its entire history; eight if you count Ethel Rosenberg, electrocuted at Sing Sing by the federal government for espionage in June 1953.
How hard can it be to compare such a small sampling of women? Difficult, as Victor Streib discovered after closely examining the cases of four women executed in Ohio and eleven other women who were condemned but not executed. Nine of the eleven had their death sentences overturned and two currently reside on Death Row.
In his new book, The Fairer Death: Executing Women in Ohio, Streib struggles mightily to come up with common denominators that link all of the cases. He concludes that race plays a significant role. Other than ethnicity, the circumstances of the crimes, time periods, and personalities of the defendants are too diverse to allow for firm conclusions. Nonetheless, Streib's work is a valuable addition to the rich body of work on the death penalty in America.
Streib is a law professor at Ohio Northern University, as well as a prolific author and an attorney who has represented female death row inmates, though regretfully he does not reveal which ones. Despite his background, The Fairer Death is not a work of advocacy, he states, but an effort, "based on academic research," to "explore an interesting topic" (p. xi). Recognizing that the lopsided percentage of men on death rows across the United States reveals inherent inequities in the legal system, Streib set out to examine the underpinnings of this discrepancy, what it demonstrates about society's ideas on gender and how these expectations play out in criminal cases involving women and capital punishment....
Death penalty statutes themselves are not to blame for the vast over-representation of condemned men, Streib asserts, because they contain no overt gender bias. But deeply ingrained gender ideology does play a significant role in how the laws are applied....
In this observation, Streib reinforces work done by other scholars, such as Ann Jones in Women Who Kill (1996) and Vicki Jensen in Why Women Kill: Homicide and Gender Ideology (2001), who argue that men and women in general possess different motivations for murder.
For the rest, click here.
Cairns is the author of a related book: The Enigma Woman: The Death Sentence of Nellie May Madison (Univ. of Nebraska Press) on the first woman on death row in California.
Trying to figure out why some killers are condemned and executed, while others c
ommitting similar crimes manage to evade the ultimate penalty, is akin to attempting to thread a needle with a blade of grass. That is to say, it's well nigh impossible. Comparing condemned women to their more fortunate "sisters"appears, on its face, to be a somewhat easier task. Women are, after all, executed in far fewer numbers than men. A total of 568 women have been hanged, gassed, electrocuted, and injected since 1632, representing less than 3 percent of all the executions in America. Since 1900, the percentage has dropped even further, to less than 1 percent of all executed inmates.Narrowing the study to a single state would seem to bring the topic into microscopic focus. Nineteen states have executed women....Even the most "death-friendly" state for women--New York--has only executed seven women in its entire history; eight if you count Ethel Rosenberg, electrocuted at Sing Sing by the federal government for espionage in June 1953.
How hard can it be to compare such a small sampling of women? Difficult, as Victor Streib discovered after closely examining the cases of four women executed in Ohio and eleven other women who were condemned but not executed. Nine of the eleven had their death sentences overturned and two currently reside on Death Row.
In his new book, The Fairer Death: Executing Women in Ohio, Streib struggles mightily to come up with common denominators that link all of the cases. He concludes that race plays a significant role. Other than ethnicity, the circumstances of the crimes, time periods, and personalities of the defendants are too diverse to allow for firm conclusions. Nonetheless, Streib's work is a valuable addition to the rich body of work on the death penalty in America.
Streib is a law professor at Ohio Northern University, as well as a prolific author and an attorney who has represented female death row inmates, though regretfully he does not reveal which ones. Despite his background, The Fairer Death is not a work of advocacy, he states, but an effort, "based on academic research," to "explore an interesting topic" (p. xi). Recognizing that the lopsided percentage of men on death rows across the United States reveals inherent inequities in the legal system, Streib set out to examine the underpinnings of this discrepancy, what it demonstrates about society's ideas on gender and how these expectations play out in criminal cases involving women and capital punishment....
Death penalty statutes themselves are not to blame for the vast over-representation of condemned men, Streib asserts, because they contain no overt gender bias. But deeply ingrained gender ideology does play a significant role in how the laws are applied....
In this observation, Streib reinforces work done by other scholars, such as Ann Jones in Women Who Kill (1996) and Vicki Jensen in Why Women Kill: Homicide and Gender Ideology (2001), who argue that men and women in general possess different motivations for murder.
For the rest, click here.
Cairns is the author of a related book: The Enigma Woman: The Death Sentence of Nellie May Madison (Univ. of Nebraska Press) on the first woman on death row in California.
Thursday, July 5, 2007
From the Editors: What makes a good Author Blog?
I was a little sheepish about mentioning to anyone at my press that I have a blog. I was afraid the reaction might be like that of my 16-year-old daughter, who, upon hearing that I like to blog first thing in the morning, said: "Well, you could be writing your book!"
But apparently blogs are recommended. Or at least recommended when the book is written. The Penguin Blog offered some advice recently. And they break it down to four basic guidelines. (Hat tip to OUP Blog.)
1) It should be personal - but not mundane.
2) The author should write about their work as well as their interests.
3) They should be entertaining company.
4) Posts should be regular and frequent.
Well, the Legal History Blog fails on at least one criteria: it is not "personal." I don't want it to be "personal." And frankly, not all readers want it to be "personal." Hopefully there can be a corner, even in the blogosphere, for a refuge from the cult of personality. So my advice to academic author bloggers: unless that sort of blogging appeals to you, I think (hope) you can engage a readership without needing to abandon your privacy.
On the question of whether blogging disrupts writing, for some writers that is surely the case. But not for everyone. What writers do is...write. A blog gives you a place for some of that, and keeps you writing even when there's a snag in the book research or some other delay. Before I had a blog, I would write op-eds, which sometimes were published, but like most op-ed writers, most often they were not. With a blog, the ideas just go out, without the frustrating process of trying to place them in a paper while the news cycle quickly expires. And, with a blog like this one, many posts (e.g. SSRN papers) can be done very quickly, even when I am facing a deadline. So my take is that whether you should blog while finishing that book depends on what sort of writer you are, and what sort of blogging you might do. Here's more from Penguin: What makes a good author blog? The World Wide Web was made for finding things out. It's the first place I turn whenever I've got an enquiry, whether it's to find a plumber quickly or discover what Dickens' character I am. But sadly, the interweb cannot always help us. Sometimes when we type in a search term to the Google gods nothing relevant comes back despite scouring page after page of results. This is rare and annoying, but hardly surprising. The World Wide Web is not a mirror held up to the world. It more resembles something you'd find in an old fairground hall of mirrors: the silver backing flaking off and leaving black spots of nothing, the glass scratched and misted, the familiar no longer so distinct if not bent entirely out of shape, the multiple reflections and distortions giving you a headache. If you're an author, however, especially a new one, you're pretty much expected - by your agent and your publisher - to have a presence in this strange mirror world. If people want to know about you or your work, the web is the first place they'll look. If there's nothing there to find, so the wisdom runs, that's a potential reader lost, a word-of-mouth champion who'll never say your name out loud. Unfortunately, for most authors, your agent and publisher aren't likely to put up the money for your own website. So what is an author to do? Well, these days most are advised to have a blog. But that just creates a whole host of problems for the author. What should an author blog about? How often should they post? Should they post for their readers or themselves? Might it interfere with their other writing? In short, what makes a good author blog? Clearly, the answers to these questions are as numerous as there are readers and writers, and therefore so riddled with contradictions as to be almost meaningless. However, it seems to me that a good author blog is simply a platform and, behaving a bit like any well-made table, requires four sturdy legs upon which to stand: 1) It should be personal - but not mundane. 2) The author should write about their work as well as their interests. 3) They should be entertaining company. 4) Posts should be regular and frequent. Unsurprisingly, few author blogs manage all four. Most writers have more pressing matters to attend to. However, for any author intending to blog, I would suggest they visit Neil Gaiman's journal. More recommended blogs and more advice from Penguin is here.
But apparently blogs are recommended. Or at least recommended when the book is written. The Penguin Blog offered some advice recently. And they break it down to four basic guidelines. (Hat tip to OUP Blog.)
1) It should be personal - but not mundane.
2) The author should write about their work as well as their interests.
3) They should be entertaining company.
4) Posts should be regular and frequent.
Well, the Legal History Blog fails on at least one criteria: it is not "personal." I don't want it to be "personal." And frankly, not all readers want it to be "personal." Hopefully there can be a corner, even in the blogosphere, for a refuge from the cult of personality. So my advice to academic author bloggers: unless that sort of blogging appeals to you, I think (hope) you can engage a readership without needing to abandon your privacy.
On the question of whether blogging disrupts writing, for some writers that is surely the case. But not for everyone. What writers do is...write. A blog gives you a place for some of that, and keeps you writing even when there's a snag in the book research or some other delay. Before I had a blog, I would write op-eds, which sometimes were published, but like most op-ed writers, most often they were not. With a blog, the ideas just go out, without the frustrating process of trying to place them in a paper while the news cycle quickly expires. And, with a blog like this one, many posts (e.g. SSRN papers) can be done very quickly, even when I am facing a deadline. So my take is that whether you should blog while finishing that book depends on what sort of writer you are, and what sort of blogging you might do. Here's more from Penguin: What makes a good author blog? The World Wide Web was made for finding things out. It's the first place I turn whenever I've got an enquiry, whether it's to find a plumber quickly or discover what Dickens' character I am. But sadly, the interweb cannot always help us. Sometimes when we type in a search term to the Google gods nothing relevant comes back despite scouring page after page of results. This is rare and annoying, but hardly surprising. The World Wide Web is not a mirror held up to the world. It more resembles something you'd find in an old fairground hall of mirrors: the silver backing flaking off and leaving black spots of nothing, the glass scratched and misted, the familiar no longer so distinct if not bent entirely out of shape, the multiple reflections and distortions giving you a headache. If you're an author, however, especially a new one, you're pretty much expected - by your agent and your publisher - to have a presence in this strange mirror world. If people want to know about you or your work, the web is the first place they'll look. If there's nothing there to find, so the wisdom runs, that's a potential reader lost, a word-of-mouth champion who'll never say your name out loud. Unfortunately, for most authors, your agent and publisher aren't likely to put up the money for your own website. So what is an author to do? Well, these days most are advised to have a blog. But that just creates a whole host of problems for the author. What should an author blog about? How often should they post? Should they post for their readers or themselves? Might it interfere with their other writing? In short, what makes a good author blog? Clearly, the answers to these questions are as numerous as there are readers and writers, and therefore so riddled with contradictions as to be almost meaningless. However, it seems to me that a good author blog is simply a platform and, behaving a bit like any well-made table, requires four sturdy legs upon which to stand: 1) It should be personal - but not mundane. 2) The author should write about their work as well as their interests. 3) They should be entertaining company. 4) Posts should be regular and frequent. Unsurprisingly, few author blogs manage all four. Most writers have more pressing matters to attend to. However, for any author intending to blog, I would suggest they visit Neil Gaiman's journal. More recommended blogs and more advice from Penguin is here.
Mack, Which Side is Brown On?
UPDATE: Be sure to read Ken Mack's response in the comments following this post.
Ken Mack, Harvard Law School, who is writing a greatly anticipated history of civil rights lawyers, had this to say in the Los Angeles Times on Wednesday:
The implications of the review seem to be that the question of whether Justice Roberts got the history of Brown right is so wide open, that it is not possible to answer the question. While Mack is right that questions of historical interpretation are not straightforward, and, by implication, the invocation of history by courts and lawyers is problematic, I disagree with Mack about whether the history of Brown was so muddled back in 1954.
Robert Carter himself was very clear about it when interviewed about Roberts' use of his Brown oral argument, after the opinion was released. As the New York Times reported, “All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”
The difference between Mack's take on the issue and Carter's may not be a failure of memory, although it is the case that historical figures remember the past differently as time continues to unfold. Perhaps it is in part a question of focus: on the right, or on the remedy. Judge Carter and his colleagues worked for an interpretation of the right -- 14th amendment equality -- that would invalidate laws that were a product of a history of racial subordination. They worked to overturn a system of discrimination informed by an ideology that one race (whites) was superior to others. As an initial remedy, they sought to have the bar to African American enrollment in white schools come down. Even this remedy was postponed, for most students -- even named plaintiffs -- for many years.
There was always a difference of opinion within communities and among leaders about what the world might look like when enforced segregation was a thing of the past. It was W.E.B. DuBois, for example, who angered his NAACP colleagues in the 1930s when he argued that what African American children needed was not integrated schools, but a good education. These questions legitimately arise in contemporary school cases once the barriers to entry are abolished, but the impact of unconstitutional racial subordination must be remedied.
But Roberts' opinion was not about how best to remedy racial subordination. His opinion was about the substance of the 14th amendment right. He used Carter's words to support an argument that Carter did not make in Brown: that when School Boards consider racial balance as part of their educational policies, having the goal of improving the education of everyone, they are engaging in the kind of behavior Carter sought to eradicate in Brown.
The equivocation that Mack finds in Carter's past words is equivocation about remedies. When it came to the meaning of the right itself, I'll take my cue from the chorus of Brown's surviving participants. “The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Jack Greenberg said. And from William T. Coleman: “to say that the people Brown was supposed to protect are the people it’s now not going to protect....It's dirty pool."
Ken Mack, Harvard Law School, who is writing a greatly anticipated history of civil rights lawyers, had this to say in the Los Angeles Times on Wednesday:
AS THE Supreme Court wrestled with race-conscious school assignments in Seattle and Louisville, Ky., last week, the justices drew historical figures into the debate. In the most heated bits from the various opinions, each side accused the other of contradicting the objectives of the individuals who laid the groundwork for Brown vs. Board of Education.Mack uses Justice John Marshall Harlan, author of the famous dissent in Plessy v. Ferguson, and Charles Hamilton Houston, the initial architect of the legal strategy leading to Brown as two examples. Then he continues:
In his opinion, Chief Justice John G. Roberts Jr. quoted Robert L. Carter — the black plaintiffs' attorney in Brown — to support the proposition that the Constitution prohibits school districts from taking race into account in student assignment. Justices John Paul Stevens and Stephen G. Breyer, on the other hand, argued that the principles of racial integration expressed in Brown required the high court to uphold the school districts' use of race.
Roberts' argument carried the day. But the justices' disagreement illustrates a problem well known to generations of law school students: When trying to decide a hard case, you can find two valid, established legal principles that will lead to two diametrically opposing conclusions. This observation was first articulated by an early 20th century group of reformers called "legal realists." The hardest cases, they noted, are the products of long-standing, unresolved societal conflicts — so precedents often support both sides. As one phrased it, legal principles "are in the habit of hunting in pairs."
The same problem plagues historical interpretations. But that doesn't prevent supporters and opponents of race-consciousness from buttressing their stances with references to the principles held by famous civil rights figures. "History will be heard," asserted Roberts. But if history speaks on this subject, it does so in two voices....
Even Carter, invoked to great effect by Roberts, presents a similar historical problem. Carter, 90, is a federal judge in New York, and he recently published an autobiography. One cannot read it without concluding that he followed a set of lifelong moral principles that were utterly opposed to racial segregation. When Brown was wending its way through the courts, it was certainly possible to find him arguing that any use of race in school assignment is constitutionally suspect.For the full op-ed (recommended) click here.Yet Carter later admitted that his efforts in Brown were focused on overturning Plessy's separate-but-equal doctrine, not at formulating a legal rule to guide future attempts to create racial equality. Indeed, within a decade of the Brown decision, he confessed to having mixed feelings about the use of race-conscious remedies to achieve integration, though he eventually firmly endorsed them....
History has a lot to tell us, but it rarely provides a clear signpost. In hard cases, historical precedents, just like legal ones, are in the habit of hunting in pairs.
The implications of the review seem to be that the question of whether Justice Roberts got the history of Brown right is so wide open, that it is not possible to answer the question. While Mack is right that questions of historical interpretation are not straightforward, and, by implication, the invocation of history by courts and lawyers is problematic, I disagree with Mack about whether the history of Brown was so muddled back in 1954.
Robert Carter himself was very clear about it when interviewed about Roberts' use of his Brown oral argument, after the opinion was released. As the New York Times reported, “All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”
The difference between Mack's take on the issue and Carter's may not be a failure of memory, although it is the case that historical figures remember the past differently as time continues to unfold. Perhaps it is in part a question of focus: on the right, or on the remedy. Judge Carter and his colleagues worked for an interpretation of the right -- 14th amendment equality -- that would invalidate laws that were a product of a history of racial subordination. They worked to overturn a system of discrimination informed by an ideology that one race (whites) was superior to others. As an initial remedy, they sought to have the bar to African American enrollment in white schools come down. Even this remedy was postponed, for most students -- even named plaintiffs -- for many years.
There was always a difference of opinion within communities and among leaders about what the world might look like when enforced segregation was a thing of the past. It was W.E.B. DuBois, for example, who angered his NAACP colleagues in the 1930s when he argued that what African American children needed was not integrated schools, but a good education. These questions legitimately arise in contemporary school cases once the barriers to entry are abolished, but the impact of unconstitutional racial subordination must be remedied.
But Roberts' opinion was not about how best to remedy racial subordination. His opinion was about the substance of the 14th amendment right. He used Carter's words to support an argument that Carter did not make in Brown: that when School Boards consider racial balance as part of their educational policies, having the goal of improving the education of everyone, they are engaging in the kind of behavior Carter sought to eradicate in Brown.
The equivocation that Mack finds in Carter's past words is equivocation about remedies. When it came to the meaning of the right itself, I'll take my cue from the chorus of Brown's surviving participants. “The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Jack Greenberg said. And from William T. Coleman: “to say that the people Brown was supposed to protect are the people it’s now not going to protect....It's dirty pool."
Shavar Jeffries at BlackProf offers his take on the Brown opinion itself here.
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