FCIL-SIS Book Discussion Group to Meet Again in Baltimore This Summer

By Susan GualtierKorematsu Cover

Over the past several years, the FCIL-SIS Book Discussion Group, started by Dan Wade in in 2014, has become a popular informal addition to the AALL Annual Meeting’s FCIL conference programming.  Each year, we select a book to read in advance of the conference and meet during the conference to enjoy a book discussion, lunch or snacks, and each other’s fine company.

This year, the group will meet on Monday, July 16, at 12:30.  As in past years, we will meet in the Registration Area, and will find a table or small room from there.  The event will be BYO lunch or snacks.

This year’s book selection is In the Shadow of Korematsu: Democratic Liberties and National Security, by Eric K. Yamamoto.  Professor Yamamoto is the Fred T. Korematsu Professor of Law and Social Justice at the William S. Richardson School of Law, University of Hawai`i. He is nationally and internationally recognized for his legal work and scholarship on civil procedure, as well as national security and civil liberties, and civil rights and social justice, with an emphasis on reconciliation initiatives and redress for historic injustice.  The following book description appears on the Oxford University Press website:

The national security and civil liberties tensions of the World War II mass incarceration link 9/11 and the 2015 Paris-San Bernardino attacks to the Trump era in America – an era darkened by accelerating discrimination against and intimidation of those asserting rights of freedom of religion, association and speech, and an era marked by increasingly volatile protests. This book discusses the broad civil liberties challenges posed by these past-into-the-future linkages highlighting pressing questions about the significance of judicial independence for a constitutional democracy committed both to security and to the rule of law. What will happen when those profiled, detained, harassed, or discriminated against under the mantle of national security turn to the courts for legal protection? How will the U.S. courts respond to the need to protect both society and fundamental democratic values of our political process? Will courts fall passively in line with the elective branches, as they did in Korematsu v. United States, or serve as the guardian of the Bill of Rights, scrutinizing claims of “pressing public necessity” as justification for curtailing fundamental liberties?

These queries paint three pictures portrayed in this book. First, they portray the present-day significance of the Supreme Court’s partially discredited, yet never overruled, 1944 decision upholding the constitutional validity of the mass Japanese American exclusion leading to indefinite incarceration – a decision later found to be driven by the government’s presentation of “intentional falsehoods” and “willful historical inaccuracies” to the Court. Second, the queries implicate prospects for judicial independence in adjudging Harassment, Exclusion, Incarceration disputes in contemporary America and beyond. Third, and even more broadly for security and liberty controversies, the queries engage the American populace in shaping law and policy at the ground level by placing the courts’ legitimacy on center stage. They address how critical legal advocacy and organized public pressure targeting judges and policymakers – realpolitik advocacy – at times can foster judicial fealty to constitutional principles while promoting the elective branches accountability for the benefit of all Americans. This book addresses who we are as Americans and whether we are genuinely committed to democracy governed by the Constitution.

This year’s book selection promises to foster a rich discussion, and we look forward to welcoming both past book group members and new members interested in joining the discussion.  Again, this is an informal event, and RSVPs are not necessary; however, please feel free to let us know if you are planning to participate, so that we can get a general head count ahead of time.  Any questions or comments can be emailed to Susan Gualtier at sgua@law.upenn.edu.  We look forward to seeing you all in Baltimore for another great book discussion!

Book Review: Law’s Picture Books — The Yale Law Library Collection

lawspicturebooksBy Stacia Stein

Michael Widener & Mark S. Weiner. Law’s Picture Books – The Yale Law Library Collection (Talbot Publishing, 2017). 220 p. Paperback $39.95.

The exhibition catalog of Law’s Picture Books is almost as beautiful as the exhibit itself. In curating the exhibit Michael Widener and Mark S. Weiner were interested in, not just the pictures in the books, but the book as object as well. As Weiner notes in his introduction, the images “generally weren’t experienced independently of the books in which they appeared.”  Therefore, viewing the images in an exhibition catalog, unmoored from their books might, at first, seem contrary to the spirit of the exhibit. However in bringing together pictorial highlights of the Yale Law Library Collection, the images are given a new context and the catalog itself becomes its own book as object to be appreciated. With lady justice smiling enigmatically from its jaunty blue cover, and with its thick glossy pages and squat square shape, Law’s Picture Books is a standout on any bookshelf. As to be expected of a catalog from such an exhibit, the pictures are indeed a delight. However, adding to the books charm, is the warmth, humor, and erudition of the curators which is revealed in the commentary.

Among the many illustrations Widener and Weiner included in the exhibition is a woodcut from De alluvionum iure universo, a 16th century treatise on riparian water rights by Battista Aimo. This centuries-old image surely sheds light upon historical laws, but it also sheds light upon Mike Widener’s collection development practice. For it was this woodcut, which simply and succinctly illustrates the effects of alluvium upon the size and shape of a piece of land, that inspired Widener to begin his decades long quest, first at University of Texas’s Tarlton Law Library and currently at Yale Law School’s Lillian Goldman Law Library, to uncover the legal illustrations of the past. Because of exhibitions like “Law’s Picture Books” these illustrations are now able to inspire further generations throughout the world to engage with legal history.

The images run the spectrum from the informative (who owns the fruit of a tree that grows at the intersection of several pieces of property) to the tawdry (a woman losing her inheritance for sleeping with a musician) to the mundane (the unlawful disposal of household garbage). The pictures bring the past alive, and the captions bring the pictures alive, highlighting fascinating details, raising interesting questions, and sometimes even engaging in word play.

The catalog, like the exhibit, is organized into 10 groupings: (1) Symbolizing the Law; (2) Depicting the Law; (3) Diagramming the Law; (4) Calculating the Law; (5) Staging the Law; (6) Inflicting the Law; (7) Arguing the Law; (8) Teaching the Law; (9) Laughing – and Crying – at the Law; and (10) Beautifying the Law.   There are no chronological or geographical limits, although the majority of the illustrations are from the U.S. and western Europe with dates ranging from 1473-2015.

In addition to reflections by the two curators and authors, the book includes essays by Jolanda E. Goldberg and Erin C. Blake which address the medieval history of the ars memoria and the history of book illustrations, respectively.  These essays both add to the reader’s appreciation and understanding of the illustrations that follow and add to the value of Laws Picture Books as a valuable pictorial and textual resource.

Teaching FCIL Research Series: Textual Selection

By Beau Steenken

Of all the decisions that go into designing a course, the selection of textbook perhaps impacts the students’ experience the most. Not only will students (presumably) spend dozens of hours diligently reading the text, but the organization of the text often informs, at least to some degree, the organization of the course. Similarly, the choices and selections made by the authors of texts can influence the choices of teachers adopting the text. (I find that there’s never enough time in a course to cover everything I’d like to in an ideal world, and the coverage of topics by the text helps with the necessary triage when deciding how to apportion limited class time.) Happily, those of us who teach FCIL research benefit from the availability of multiple high-quality textbook options.

When I was finalizing the syllabus for my first FCIL Research course a little over two years ago, I found myself seriously considering two texts, namely: International and Foreign Legal Research: a Coursebook by Marci Hoffman and Mary Rumsey[1]; and International Law Legal Research by Anthony S. Winer, Mary Ann E. Archer, and Lyonette Louis-Jacques[2]. Each text struck me as incredibly helpful and well-written, though the two works differ quite a bit in their coverage. For instance, Hoffman and Rumsey cover both international and foreign legal research, while Winer et al focus solely on researching international law (and mostly public international law at that). Also, Hoffman and Rumsey go a bit further in their coverage by providing topically-specific guidance (e.g. human rights research, international environmental law, etc.). While the inclusion of foreign research, comparative research, and private international law research made Hoffman and Rumsey appealing, ultimately I decided to go with Winer et al as the text for my course. I made this choice primarily because my course is a 1 credit hour course, and I could not envision working through everything covered by Hoffman and Rumsey in my limited class time. Secondary considerations were the fact that I also liked the historical background provided by Winer et al and the fact that Carolina Academic Press publications generally come with smaller price tags than works distributed by Martinus Nijhoff Publishers.

kuehltextEarlier this year I was excited to notice that in the time between when I first taught my course and when I will next teach it in the fall, another excellent textbook has hit the market: International Legal Research in a Global Community by Heidi Frostestad Kuehl and Megan A. O’Brien.[3] Several aspects of the new text appeal to me, and I am planning on using it for my course next semester. First, in addition to covering public international legal research in a thorough and straight-forward manner, Kuehl and O’Brien also include a chapter on foreign legal research under the guise of cultural competence. Second, I like how Kuehl and O’Brien organize their book by introducing the sources of international law before turning to the research process itself to put everything together. As this is the organizational method I use to teach 1Ls, I anticipate this being a good fit with how I tend to design my courses. Finally, I think Kuehl and O’Brien’s tone and pacing will mesh very well with my 1 hour course. (While I personally love the historical background provided by Winer et al, I fear it may have eaten up too much of my limited course time the first time I taught the course, though this was probably due to a personal failing as once I start talking about history I have a hard time stopping and moving on to other things.)

All told, I’m quite excited to be trying out the new text in the fall, and I enjoyed investigating all three of these quality works. In fact, the investigation and comparison of the three texts also helped me think about the choices I am making for my course as I compared and contrasted the choices made by the authors of the three works. After all, a lot of the decisions of what to include in a course are similar to the decisions of what to include in a textbook, and approaching the decisions from other points of view can be enlightening.

If anyone is interested in learning more about the choices that go into creating a textbook or in hearing from FCIL research text authors about the specific approaches they took in creating their work, I encourage you to attend the FCIL-SIS Teaching Foreign and International Legal Research Interest Group meeting during AALL in Baltimore in July. Both Marci Hoffman and Heidi Frostestad Kuehl have agreed to share their experiences in writing their respective texts during the session, which will occur from 3:30 to 4:30 p.m. on Monday, July 16. It promises to be an interesting discussion, and may be of help in course design as well as text selection. I hope to see everyone there!

[1] Marci Hoffman & Mary Rumsey, International and Foreign Legal Research: a Coursebook (2d ed. 212).

[2] Anthony S. Winer, Mary Ann E. Archer, & Lyonette Louis-Jacques, International Law Legal Research (2013).

[3] Heidi Frostestad Kuehl & Megan A. O’Brien, International legal Research in a Global Community (2018).

Book Review: The Philosophy of Customary Law

By Susan Gualtier

philsophyofcustomarylawJames Bernard Murphy, The Philosophy of Customary Law (Oxford University Press, 2014). 160 p. Hardcover $83.00.

As someone with more than a passing interest in customary law, I looked forward to reading The Philosophy of Customary Law, by James Bernard Murphy, Professor of Government at Dartmouth College.[i]  In this book, Murphy posits that custom must be analyzed in terms of “two more basic logical concepts: convention and habit.”[ii]  He then offers a historical overview of four philosophers who have examined the concept of custom (Aristotle, Suárez, Bentham, and James C. Carter), highlighting how each built upon or reacted to his predecessors’ work.  Murphy includes a brief epilogue at the end of the book, in which he offers a few of his own thoughts on customary law.  Unfortunately, although the premise of the book seemed promising, I was disappointed in the execution.  Murphy largely ignores the legal framework for understanding customary law, and is more interested in the theory of human behavior more generally. He reaches no useful conclusions regarding customary law, at least from a practical standpoint, and it is unclear what this book can contribute to the discussion of customary law.

Despite its title, The Philosophy of Customary Law deals relatively little with customary law as we know it.  Most of the discussion of contemporary customary law occurs in the book’s introduction, where Murphy entirely ignores tribal, indigenous, and other customary law systems, instead minimizing the importance of customary law to that of a “gap-filler” only occasional referenced by Western common law courts in situations where no written law applies.  International custom merits a single paragraph in the introduction.  Murphy waves away the need to describe or differentiate for the reader the specific ways in which custom can comprise or inform the law.[iii]  Similarly, he dismisses what most of us will recognize as a critical element of establishing customary law, whether international or domestic: the subjective requirement that states or individuals observe a custom because they believe or intend it to have the force of law (“Instead of distinguishing the objective usage from the subjective attitudes of participants, I propose to distinguish the habitual (individual) dimension of custom from the conventional (social) dimension of custom.”[iv]).

It is unclear whether, by so openly dismissing the basic framework of customary law analysis, Murphy intends to create a groundbreaking new way of thinking about customary law, or if he simply cares more about philosophizing than about the practicalities of legal analysis and application.  I hoped that the four main chapters of the book, each of which deal with a different philosopher and/or school of philosophical thought, might shed more light on his purpose and provoke me to think differently about customary law.  The first chapter focuses on Aristotle and his distinction between ethos, which might be characterized loosely as habit or second nature, and nomos, which might be characterized as either convention or law–and more specifically, according to Murphy’s etymological analysis, “convention stemm(ing) from an act of deliberate stipulation.”[v] Noting Aristotle’s identification of nomos with logos (reason), Murphy states, “As applied to custom, Aristotle’s close identification of nomos and logos seems odd. … Customs seem to arise from human conduct but not from any deliberate design.”[vi]  But is that the case?  Murphy seems to see “deliberate design” as a process limited in time – a transaction rather than an evolution.  It is arguably not very difficult to see the connection between ethos and logos if you consider the subjective requirement that participants in a customary law system believe that a custom constitutes a legal requirement or intend for it to do so.  It is Murphy who has severed the connection between reason and custom, and who then seems to take issue with Aristotle’s use of nomos to describe both social convention and law.  Murphy cites enough commentators that I (not being a student of philosophy myself) believe him when he states that Aristotle’s language is often unclear.  However, I was struck by what seemed to be a resistance to the idea that the development of custom could be intentional or rational, which seems to indicate a limited perception of, or perhaps a limited respect for, the richness and potential efficacy of customary law.

This resistance carries into the second chapter, which begins with the statement that “customs are not in general deliberately made.”[vii]  This chapter describes the work of Francisco Suárez, particularly in relation to that of his predecessor, Thomas Aquinas, and seems primarily to take issue with Suárez’s belief that law “expresses the will of the lawgiver.”[viii]  Again, however, much of the argument seems to originate with a limited view of customary law.  Murphy cannot reconcile Suárez’s definition of “law” with his understanding of custom, because he cannot see the individual participants as the lawmakers (“Only an author can form an intention to communicate and customs usually have no author”[ix]), and because he rejects the idea that the participants, either individually or as a group, can exercise reason, intent, or will (“Because customs are not designed or made by any one person, what kind of will or intention do they signify?  No one wills custom into being as a legislator might will a statute into being.  Customs simply arise will-nilly.”[x]).

The final two chapters offer more of the same, although Murphy seems to settle into a more traditional definition of customary law, including its subjective element, during his critique of Bentham.  Nonetheless, he returns to the ideas of “habit” and “convention” toward the end of the chapter in order to conclude that Bentham failed to adequately grasp the concept of custom (“What is largely missing in Bentham’s account is a description of how conventions become habitualized and how habits become conventionalized: the essential nature of custom never comes into focus … customs rest upon a real relation between individual habits and social conventions.  Hence, customs escape the net of Bentham’s logic.”[xi]).  The book ends with a brief epilogue, in which Murphy offers a few of his own reflections on the relationship between custom and law.  However, his primary argument here has little to do with customary law.  Instead, he concludes with the notion that written law should become a matter of custom (or, more specifically, “habit” – or second nature – if we are to use Murphy’s framework.)  In Murphy’s view, “it is better to conform to good laws by customary habit, than by constant recourse to lawyers.”[xii]  This is a fine statement, indeed, but one that, as a conclusion to a book on the topic of customary law, contributes little, if anything, to the field.

It is probable that I simply disagree with Murphy that custom can or should be analyzed through the concepts of habit and convention – or perhaps the book just does not explain how doing so adds to the discussion.  Rather than clarifying or broadening our understanding of customary law, the attempt to boil custom down to these two concepts would seem to limit our ability to work with custom as a legal concept or to form any useful framework for its analysis – an irony, since Murphy states in his epilogue that “[o]ur philosophers of law rightly understand that the puzzles about customary law arise mainly because of inadequate conceptions of custom.”[xiii] Murphy’s purpose appears to be disagreement with previous thinkers for the sake of disagreement (an approach which, incidentally, leads to most of my frustration with the field of philosophy in general).  It is also possible that this book was an academic exercise rather than a sincere attempt to contribute to the study or practice of customary law.

What has always interested me about customary law is how it operates “on the ground” – how it changes and evolves, how it differs based on geography and culture, and how external factors can assist with or complicate its application.  Given that my interest is practical rather than philosophical, I am clearly not the intended audience for Murphy’s book.  Those with a background in legal philosophy might find this book interesting, but it has little relevance to the practicalities of researching or practicing customary law.

[i] James Bernard Murphy, The Philosophy of Customary Law (2014).

[ii] Id. at xiii.

[iii] Id.

[iv] Id.

[v] Id. at 9.

[vi] Id. at 10.

[vii] Id. at 23.

[viii] Id. at 28.

[ix] Id. at 25.

[x] Id. at 41.

[xi] Id. at 87.

[xii] Id. at 124.

[xiii] Id. at 117.

Two New Books from Yale

By Dan Wade

The Yale Law Library sponsored two book talks for books published by Yale faculty dealing with Foreign and International Law.

Internationalists (002)Monday night’s talk, held at the Yale Book Store and filmed by C-Span, featured Oona Hathaway, a professor of International Law, and Scott Shapiro, a professor of Jurisprudence who teaches a course in Transnational Law.  The pair were quite entertaining in discussing their new history of international law and, particularly, the law of war: The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017).  The work is not a sequential history, but rather takes historical vignettes to show how the law, especially the law of war, has evolved.  Their style is witty and they tell many excellent stories; it is almost the page-turner that Philippe Sands’ East West Street is. (Did you see the review of East West Street in the most current issue of AJIL, 111:2, April 2017?)  The Internationalists is fun to read and yet has a thesis about how to understand international law.  It begins with the 16th century and Grotius, who is deemed to formulate the law of the Old World Order, i.e. “Might Makes Right”; sees the Kellogg-Briand Pact of 1928 (though, the authors prefer calling it the the Paris Peace Pact because Secretary of State Frank Kellogg was so Trump-esque), where the nations of the world sat down and agreed to renounce wars as an instrument of national policy and effectively created a New World Order; and concludes with an assessment of the contemporary scene.  I’ll let the law professors debate whitmanbookthe validity of their interpretation, but I can certainly recommend the book at one level as a wonderful, “light” read.

I have not yet had the chance to read the book that featured in Wednesday’s book talk: James Q. Whitman’s Hitler’s American Model: The United States and the Making of Nazi Race Law (Princeton: Princeton University Press, 2017). Jim is a professor of Legal History and Comparative Law at Yale.  His thesis is that the Nazis based their race laws, the Nuremberg Laws of 1935, on American laws rising out of Jim Crow and state miscegenation laws. This is certainly an intriguing idea!

Happy Reading!

Announcement: FCIL-SIS (Informal) Book Discussion Group at AALL Annual Meeting

By Dan Wade

disarray_0The FCIL-SIS Book Discussion Group will meet at the Annual Meeting on Monday between 12:15 and 2:00p.m. We are gathering at the AALL Annual Meeting Registration Desk at 12:15p.m.

The book under discussion this year is A World in Disarray, by Richard Haass (New York: Penguin, 2017). Haass has been President of the Council of Foreign Relations since 2003. After graduating from Oberlin and receiving his M.Phil and D.Phil from Oxford, Haass worked for the Department of State and the Department of Defense. Between 2001 and 2003 he served the George W. Bush Administration by assuming the dual role of Director of Policy Planning at the State Department, where he became a close adviser to Secretary of State Colin Powell, and United States Special Envoy for Northern Ireland, for which he received the Department of State’s Distinguished Service Award. The book under discussion is Haass’ twelfth book, and it very much follows the line of thinking set out in probably his best known work, The Reluctant Sheriff,  in which he writes, “what will prove crucial is the ability of the United States to persuade others to adopt and abide by its preferences—and the will and ability of the United States to act as sheriff, to mobilize itself and others to insist on them when resistance emerges.” (p.44). In the present book he mellows some and invokes the principle of sovereign obligation, where a state works towards meeting the interests of other states. In the final chapter he addresses the issue of our country in disarray. (No, it is not about Donald Trump’s foreign policy.) Here he calls for more military spending. You can imagine how that analysis sits with this Connecticut Yankee and ordained minister (emeritus) of a historic peace church, e.g., Friends and Mennonites. The book does have value. I thought the discussion of R2P and United States debt were two of the high points.

I believe our group will be smaller this year, and if you are interested in foreign policy, world order, and international relations, please feel free to join us, even if you haven’t read the book. I will reserve a couple of extra places at the lunch table.

Recap: FCIL-SIS Book Group

By Jennifer Allison

ewstSpearheaded by Dan Wade of the Yale Law School Library, the FCIL-SIS Book Group met again this year at the AALL annual meeting. Of the two finalists, the book chosen by the participants was East West Street: On the Origins of “Genocide” and “Crimes Against Humanity”, by Philippe Sands (published in 2016 by Knopf, ISBN 978-0385350716).

The participants in the book group included:

  • Dan Wade, Yale
  • John Wilson, UCLA
  • Lyonette Louis-Jacques, University of Chicago
  • Loren Turner, University of Minnesota
  • Jennifer Allison, Harvard
  • Daniel Donahue, University of Houston
  • Marilyn Raisch, Georgetown
  • Evelyn Ma, Yale

After a bit of a location mix-up, the group settled on meeting at the conference hotel’s American Craft  Kitchen & Bar.  Over delicious food and drinks, the conversation about this interesting and unexpected book flowed.

Most of the group’s participants gave the book a thumbs-up, although there were definitely mixed reviews regarding the book’s somewhat unusual format.  Although it was a non-fiction account of the development of the crime of genocide, Sands wove this information into the stories of four people from an Eastern European city, that, throughout its history, has had a number of names, including Lemberg, Lwów, Lvov, and as it is known today, Lviv.

One of the four people whose story was told was Sands’ maternal grandfather, a Jew who left his hometown for Vienna in the early 20th century, and then fled Vienna for Paris in the late 1930s.  The book featured extensive descriptions of the grandfather’s early life, the fate of his family in what was, during the war, the Polish city of Lwów, and his later years in Paris, where the author spent time with him.

Sands also told the stories of two men who had studied at the law faculty of the University of Lwów:

  • Raphael Lemkin taught at Duke Law School and worked with the American lawyers who were involved in the Nuremberg trials. In his book Axis Rule in Occupied Europe, he offered the first definition of the word “genocide.”
  • Hersch Lauterpacht was an international lawyer who taught at the London School of Economics and Cambridge University. He worked with the Nuremberg Trials’ team of British lawyers.

The book’s fourth biographical figure was the German lawyer Hans Frank, who served the Nazi regime as both a lawyer and the Governor General of occupied Poland.  He was a defendant in the Nuremberg Trials, where he was convicted of the murder of Polish Jews.  He was sentenced to death and executed.

Although biographical information of these four figures was woven throughout the book, the main focus of its second half was the Nuremberg Trials, from the preparation (in which the allies’ legal teams debated whether to use the newly-introduced crime of “genocide” in their prosecution of the Nazi defendants), through the trial proceedings and the outcome.

Some of the members of the book group were not enamored of the book’s extensive use of biographical narrative, and would have preferred that the book focus merely on the earliest development of genocide of a legal norm that could be used by lawyers to prosecute war criminals.  In fact, a few people said that, if they were to read the book again, they would skip its first half entirely.  However, other members of the group felt that the inclusion of the biographical stories made the work more accessible to non-scholars; specifically, “it made it a serious book about genocide that I could recommend to my mom, or sister, one that they would actually read.”

There were other concerns about the book among the group.  As Dan Wade pointed out, “This book likely would not have passed a law school preemption check.”  Perhaps he is correct.  Ana Filipa Vrdoljak, a law professor at the University of Western Australia Faculty of Law, published an article that covered a remarkably similar topic in 2009: Human Rights and Genocide: The Word of Lauterpacht and Lemkin in Modern International Law (20 Eur. J. Int’l L. 1163 (2009)). The article tracked the life paths of these two figures, from their education at the University of Lwów Faculty of Law, through their lives and careers in the United States and England, to their participation in the Nuremberg Trials, in similar detail to Sands’ book.  Of course, Vrdoljak’s article discussed neither Sands’ grandfather nor Hans Frank in any detail, and the presence of the content of those two individuals added a level of narrative complexity and interest to the book that is not present in the article.  Still, Dan’s was a valid point.

Overall, it was a very successful and enjoyable book group meeting.  Hopefully this is a tradition that has been firmly established and will continue at AALL meetings into the future.