Category: History of Law

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Interview with Marvin Kalb: The Road to War, Presidential Commitments Honored and Betrayed

I could not have timed my chat with Marvin Kalb220px-Marvin_Kalb better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power:  the NSA’s PRISM program and leaked FISA court Verizon order.

Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:

[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.

Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.

The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegantseg3_ssa_3 synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.

Here are some highlights from our conversation:

DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?

MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?

DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?

MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.

DC: What do you think of this week’s revelations about PRISM and the Verizon order?

MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read More

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Debating Human Rights History

In 2010, Samuel Moyn published “The Last Utopia: Human Rights in History“, a book that provoked its readers to critically engage with questions about when human rights emerged as an agenda on the international political scene.  Moyn’s suggestion that this was a strikingly recent development (dating to 1977) raised deeper questions about the politics underlying human rights and its successes in displacing alternate utopian visions.  Last year, Moyn published a book review of Jenny Martinez‘s “The Slave Trade and the Origins of International Human Rights Law” and Kathryn Sikkink‘s “The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics“, criticizing both books for insufficiently acknowledging the limitations of international human rights law as an avenue for social and political reform.

This month’s Harvard Law Review contains two new and worthwhile contributions to the debate.  Philip Alston begins with a review of Jenny Martinez’s book, noting the importance of determining the origins of today’s human rights system as well as the lack of consensus around the answer to that question.   Alston notes the ways in which Martinez’s book contradicts Moyn’s thesis, situating each author within a typography of histoslave traderiographical debates.   He critiques both, noting that they present different definitions of human rights that carry buried analytical assumptions, and suggests that a meaningful history should recognize that human rights is a polycentric enterprise.  In other words, historians of human rights must examine ideas, social movements, legal traditions, and institutions in order to understand where human rights came from and where it is headed.

Jenny Martinez responds to Alston’s review, presenting a more nuanced view of her causal arguments than her critics, and taking on Moyn in the process.   She agrees with Alston that human rights is polycentric, and suggests that Moyn’s definition of human rights leaves out important aspects of the larger picture.  Martinez defends herself against claims that a pro-human rights bias infuses her work, and argues that an accurate account of human rights prior to 1977 is crucial in understanding the role of international law today and drawing lessons for current legal institutions.

The books and articles are worth reading for the rich factual analysis alone.  But there’s more to human rights history than that.  This is one of the most provocative debates in recent years about the analytical framework through which we understand human rights.  As Alston notes, “[t]here is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy.”

(hat tip to Jacob Katz Cogan, whose wonderful International Law Reporter alerted me to the Alston and Martinez articles; cross-posted on IntLawGrrls)

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Bright Ideas: Mark Weiner on his new book Rule of the Clan

Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.

His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:

A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.

The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”

I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.

Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?

Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.

So why clans now?

Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.

Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.

Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.

The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.

I think you are saying there is something about clans that helps us organize and understand our world. What is it?

It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.

By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.

Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?

Read More

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The Rule of the Clan – Mark Weiner’s new book

What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.

Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.

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The Ghost of Louis Brandeis on How to Teach Law School

Hello again Co-Op! I’m happy to be back for a short guest-blogging stint that was, er, supposed to start in January but Danielle graciously allowed me to postpone into February. I’m hoping to make up for the radio silence in the last couple of weeks of the month. Anyway, without further adieu, today’s topic: Over at Prawfsblawg, a vibrant debate is going on about the perennial subject of how to best teach law school. There’s a lot of good things to be said on both sides of the that debate. I’d like to call attention in particular to the comment by Ray Campbell, which is devoid of the absolutes that tend to abound in this area. I’ve expressed my own thoughts on this topic during previous go-rounds here and here and here.

But by “perennial,” I meant that this debate is really ancient. It far pre-dates the recent financial crisis and downturn in the legal market. It pre-dates the Carnegie Report in 2007. It pre-dates the MacCrate Report in 1992. It pre-dates the 1921 Carnegie Report. Indeed, it pre-dates most law schools altogether. Benjamin Spencer’s recent article on the skills vs. doctrine debate — which includes the question of who would be the best teachers for whatever it is the students should be learning — shows that it goes back to the 1870s, and an ABA Report that concluded that the existing method of study — one taught mainly by professors with substantial practice experience — was “too brief for useful purposes,” and that the schools were inviting “unfit” and unprepared students to fill their seats, were giving “examinations, which are such only in name,” and were allowing “degrees [to be] thrown away on the undeserving and the ignorant.”

I was reminded of the length of time these sorts of discussions have been going on when I recently stumbled across a letter from the man pictured above, Louis Brandeis, to Dean Christopher Columbus Langdell of Harvard Law School. Langdell, of course, is possibly the single person most responsible for the form of legal education we have today. It was his idea at Harvard to replace classes taught by practicing lawyers with classes taught by academic law professors, hired soon after graduation after perhaps only a short judicial clerkship, and to extend the length of the program from eighteen months to three years. In particular, it was Langdell’s idea to teach law as a science, devoted to learning the general principles that pervade the law as revealed in cases, but not necessarily constituting the law of any particular jurisdiction. That is, Harvard would focus on a generalized notion of tort law, contracts law, etc., one that had the advantage, as Charles Whitebread used to say about the Model Penal Code, of being equally the law nowhere.

Brandeis was a product of that model. He graduated from Harvard Law School in 1878, eight years after Langdell had started reforming Harvard and the first year the program was extended to three years. But a little more than ten years later he thought substantial alterations should be made to the curriculum. Brandeis worried, in effect, that Harvard Law students were not learning enough actual law:

To Christopher Columbus Langdell

December 30, 1889 Boston, Mass.

My Dear Prof. Langdell: My experience as one of the examiners for admission to the Suffolk bar has impressed upon me the importance of adding to the instruction at the School a thorough course on the peculiarities of Massachusetts law. I am aware that the introduction of such a course involves apparently a departure from the present policy of the School, but my experience and observation have convinced me that such a course would increase the usefullness as well as the membership of the School, and I therefore venture to submit to you with some detail my views of the proposed course, and the reasons which induce me to advocate it. Read More

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The British Response to the Declaration of Independence

I’ve always thought that a great book is waiting to be written about the British perspective on the American Revolution.  For example, have you ever seen the official response to the Declaration by King George III?  I hadn’t until recently.  Here it is.

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His Majesty’s Most Gracious Speech to Both Houses of Parliament on Thursday, October 31, 1776

My Lords, and Gentlemen,

Nothing could have afforded Me so much Satisfaction as to have been able to inform you, at the Opening of this Session, that the Troubles, which have so long distracted My Colonies in North America, were at an End; and that My unhappy People, recovered from their Delusion, had delivered themselves from the Oppression of their Leaders, and returned to their Duty. But so daring and desperate is the Spirit of those Leaders, whose Object has always been Dominion and Power, that they have now openly renounced all Allegiance to the Crown, and all political Connection with this Country. They have rejected, with Circumstances of Indignity and Insult, the Means of Conciliation held out to them under the Authority of Our Commission: and have presumed to set up their rebellious Confederacies for Independent States. If their Treason be suffered to take Root, much Mischief must grow from it, to the Safety of My loyal Colonies, to the Commerce of My Kingdoms, and indeed to the present System of all Europe. One great Advantage, however, will be derived from the Object of the Rebels being openly avowed, and clearly understood. We shall have Unanimity at Home, founded in the general Conviction of the Justice and Necessity of Our Measures.

. . .

My Lords, and Gentlemen, in this arduous Contest I can have no other Object but to promote the true Interests of all My Subjects. No people ever enjoyed more Happiness, or lived under a milder Government, than those now revolted Provinces: the Improvements in every Art, of which they boast, declare it: their Numbers, their Wealth, their Strength by Sea and Land, which they think sufficient to enable them to make Head against the whole Power of the Mother Country, are irrefragable Proofs of it. My Desire is to restore to them the Blessings of Law and Liberty, equally enjoyed by every British Subject, which they have fatally and desperately exchanged for all the Calamities of War, and the arbitrary Tyranny of their Chiefs.

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Los Angeles Civil Court Records, 1850-1859

This past summer, I spent a few weeks down at the Huntington Library in Pasadena, which houses Los Angeles County’s court records for the years 1850 to 1900.  There, I perused the Los Angeles District Court’s civil case files for the 1850-1859 time frame. (The district court of that era functioned as a state superior court does today.) I wanted to see what, if any, personal-injury actions were filed during that span—the Paleozoic Era of tort law—in what was (at the time) a very small, somewhat sleepy community.

The unsurprising answer: There weren’t a whole lot of personal-injury cases back then, at least in the district court. Out of the hundreds of case files that I reviewed, I didn’t come across even a single personal-injury case that sounded in negligence; there were four such cases that involved batteries or assaults. Debt-collection actions provided the vast majority of the district court’s docket. Other recurring case types included petitions for divorce; personal-service and other contract disputes; efforts (for naught) to recover on gambling debts; suits over horses, cattle, and timber that today, would sound in conversion or trespass to chattels; and a hodgepodge of other matters.

I wasn’t particularly surprised by the dearth of personal-injury lawsuits sounding in negligence. For one thing, there weren’t a whole lot of negligence lawsuits of any type, anywhere, back then, and there certainly wasn’t a robust infrastructure of caselaw and treatises that might advise small-town attorneys about how they should pursue a personal-injury claim sounding in negligence. Consider, for example, this 1852 New York  legal formbook.  The book includes draft complaints that allege claims for breach of promise to marry; “for keeping a dog used to bite mankind”; for criminal conversation with one’s wife; for debauching one’s daughter or servant; for assault and battery; and for false imprisonment–but nothing (aside from the vicious-dog suit, perhaps) that indicates how a negligence personal-injury suit should be alleged. Furthermore, 1850s Los Angeles wasn’t exposed to some potent harm-creating agents that would provide grist for the personal-injury mill (and catalyze claim consciousness among potential plaintiffs) in the decades to come. Among them, Los Angeles County wasn’t served by a railroad at the time, it didn’t boast other heavy industry, and it didn’t have the steamboat traffic that, say, Sacramento did.

I’m a torts partisan, but I still found the case files interesting. For one thing, depositions were a heck of a lot shorter back in the days before typewriters; the need to have a local notary transcribe the proceedings by hand apparently placed strict de facto limits on litigants’ ability to wear out a deposition witness with questions. Complaints were short and to the point, too, at least for the most part. Also, I wondered about the consequences of, or possible gamesmanship associated with, some local attorneys’ utterly inscrutable handwriting.

In case any of you are wondering how an 1850 tort case was pled, the following represents the entirety of a complaint (minus the caption and signatures) drafted by local attorneys and filed with the Los Angeles District Court that year:

Your petitioner George W. Robinson a resident citizen of the state and county aforesaid and plaintiff in this suit complaints of Jose Lugo, a citizen of the State of California and of the County of Los Angeles and Defendant in this suit for that whereas heretofore to wit on the 20th day of July AD 1850 in the county of Los Angeles and State of California the said Defendant with force and arms to wit with pistols [lassoes?] + guns then and there assaulted and violently beat the said plaintiff in his person inflicting upon him the said plaintiff [?] and various wounds and bruises to wit four severe wounds on his head four wounds on his right arm four wounds on the left arm ten wounds on the body ten wounds on the right led ten wounds on the left leg whereby and by reason whereof the said plaintiff was greatly injured suffered much pain and loss of blood was put to great expense in paying physicians to effect a cure of the aforesaid wounds and suffered much loss of time being unable by reason of said wounds to pursue his lawful and necessary business as he otherwise could and would have done and also put him the said plaintiff to much other trouble expense pain and inconvenience by reason of the aforesaid assault and battery, whereby and by reason whereof the plaintiff avers that he has been damnified and hath sustained damage to the amount of ten thousand dollars the said plaintiff further complains and states unto the Court that at the time and place aforesaid the said plaintiff then and there being a free citizen of the State of California and having a free full and perfect right to enjoy his liberty he the said Defendant then and there willfully maliciously and without any just or reasonable cause whatsoever with force and arms and deadly weapons (and without and legal process whatsoever) pursued seized upon and bound with cords the person of the Plaintiff thereby [?] him the said plaintiff of his liberty for a long space of time to wit for the space of three days whereby and by reason of the premises the plaintiff avers he was put to great pain and trouble in body and in mind as well as great inconvenience and loss of time whereby and by reason of the premises he avers that he has been damnified and hath sustain and demands of defendant damage to the amount of twenty thousand dollars and therefore he brings suit.

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Are You Better Off Than You Were Four Years Ago?

We’re going to be hearing this question asked a lot over the next two months. I’m going to go out on a limb and speculate that most Democrats will answer the question with a “yes,” and most Republicans with a “no.”

Today, this phrase is most closely associated with Ronald Reagan, who used it to devastating effect in his 1980 debate with President Carter. Those of you who are pretty old, or who like reading books about the Great Depression, may recall that President Franklin D. Roosevelt asked his Fireside Chat listeners similar questions back in 1934, and invoked the same theme in his smashingly successful re-election campaign in 1936.

But the question (and its follow-ups, which recite specific ways in which you, or the country, may be better or worse off) is so obvious, and powerful, as a referendum on the incumbent’s tenure that it’d be surprising if FDR and his speechwriters were the first to think of it. And, it turns out, they weren’t. A quick search of old newspapers yielded this September 1900 edition of the Columbus (OH) Journal. If you follow the “Leading Questions” editorial (which begins in the middle of the page’s fifth column) to its bitter end, it provides:

WHOEVER YOU ARE

Are you not better off than you were four years ago? Are you not earning more money? Are you not spending more? Do you not wear better clothes? Do you not live better? Are you not happier? Do you want to go back again to those Democrat free-trade days? Is there any doubt about your vote?

I’ve also seen the same editorial in other newspapers printed during the 1900 campaign season, so I assume that a Republican official prepared the text and fed it to friendly newspaper editors across the country.

I tend to like the modern version of this series of questions better, since it eliminates the McKinley campaign’s unnecessary negatives. But the basic thrust of the message remains the same.

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Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

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Start the Countdown

I turned the Bingham biography into the publisher today.  While there will be more changes in the coming months, the clock is running for publication.  Thanks to all of you who read drafts or helped me along the way.  You’ll be properly acknowledged in the final product!

Now, back to watching the Olympics.