ASIL 2018 Recap: Legal Education and Professional Training in the Culture(s) of International Law

By Gabriela Femenia

On the final morning of the 2018 ASIL Annual Meeting, Anthea Roberts (Australian National University) moderated a nuanced panel discussion of the significance of global differences in legal education and professional training of international lawyers, considering their evolution over time and their impact on the practice and efficacy of international law, from both Western- and non-Western perspectives. The panel comprised Bryant Garth (UC Irvine School of Law), Lucy Reed (National University of Singapore Faculty of Law), Natalie Reid (Debevoise & Plimpton, LLP), and Carole Silver (Northwestern University Pritzker School of Law).

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Panel for the Legal Education and Professional Training in the Culture(s) of International Law at ASIL’s 2018 annual meeting.

The first point of discussion was legal education practice and the channels through which people in different countries come to the practice of law. Anthea Roberts presented some initial thoughts based on her recent book, Is International Law International? (2017), observing that legal education used to be a primarily national endeavor, with a small amount of movement at the graduate levels, but we are now seeing more people crossing borders to study law. While the majority still do so for the LLM degree, there is increasing study at the first-degree level. Roberts made two general points about the flow of students. First, the flow is asymmetrical: students go from the periphery to the core, and from non-western regions to the west, with most returning home to practice and bringing with them both ideas and materials. Second, there are clearly different cores for legal study (principally Anglophone, Francophone, and Russophone), and there are distinctive patterns of students from certain countries going to certain countries. Lucy Reed and Natalie Reid shared their own experiences both as former law students following similar trajectories to the core to obtain the necessary credentials for desired careers, as well as educators working with such students. Reed noted that there is a guided, funded outflow of students from China to the West in all fields, with China particularly interested in bringing back students trained in international economic law and law of the sea. There is no equivalent outflow from the U.S. of students sent abroad or investment in training lawyers in those fields, and it remains difficult to convince law faculty in the U.S. and Singapore that international law should be integrated into instruction. As a result, Asia is more present in international law practice than the U.S., and Reed suggested the consequence of this disparity is a more level but not necessarily more forward-looking playing field in international law.

Carole Silver observed that in some senses law education is wonderfully internationalized, but the program that most students attend, the LLM, is somewhat segregate as a result of being a one-year program, most of which do not allow students to participate in 1L courses, clinics, or moot courts.  LLMs do benefit from being part of diverse international classes, but there are limits on interacting with U.S. students, and there is often pushback from those students to hearing about how things are done in the LLMs’ home countries. As a result, more international students are enrolling in JD programs, and in those cases the flows are not from the periphery to the core. A quarter of foreign JD students go from Canada to the U.S., and 60% of all foreign JDs are from Canada, China, and Korea. Those students face some trouble integrating because they’re not American, and they tend to also distance themselves from LLMs because they’re not “international” students. They also put more effort into course selection, generally choosing business concentrations because transactional practice is easier to break into than litigation. Silver concluded that while there is a huge inflow of students to the U.S., there is also segmentation and social isolation at the micro level.

Bryant Garth reminded those present that, historically, the flow of students reflected colonial relationships, e.g. Commonwealth students getting to know each other in London, with a more recent substitution of the U.S. for those colonial relationships.  U.S.-style law schools are also now being established around the world, so the flow of students is no longer necessarily from one country to another, while there is increasing international competition for students, both in order to impart values and to obtain the tuition revenue.

The panelists then discussed the challenges faced by graduates returning to their home countries from the core. Reed pointed out that international law books are rarely available in Asia in the necessary languages, and many are still by the former colonial masters. Libraries are insufficient in many areas. New academics must also work alongside older colleagues who are not interested in changing their teaching, while at the same time facing pressure to publish in global journals in order to secure tenure, which prevents them from engaging with their local communities. Garth added that publication in international journals is difficult if the young professor does not buy into U.S.-dominated paradigms, further limiting the inclusion of local perspectives. Reid observed that the influence of U.S. perspectives plays out in practice as well; U.S. cases and sources are cited even if they are not the best examples, in order to resonate with an American audience, and most sources will be in English even if they’re not U.S. sources..

Anthea Roberts asked the panelists what could be done to address these challenges in legal education. Silver suggested intentionally requiring international students to offer specific contributions in class. Several panelists offered the Jessup competition as a model for bringing together students to develop a common language and toolkit.

Garth asked the panel to what extent the field of international law had been affected by the globalization of law firms. Reid noted that it depended on the field, e.g. in international investment there has been a significant impact because the multinational firms guide the development of the law by picking the arbitrators who then create it. Reed added that cross-border transactions were more affected by big firm mergers than international law was.

In the brief time remaining, audience members solicited suggestions from the panel on how professors can improve international law classes.

New FCIL Librarian Series: ASIL Annual Meeting

By Jessica Pierucci

This is the fourth in a series of posts documenting my first year as a foreign, comparative, and international law (FCIL) librarian. I started in this newly-created role at the UCI Law Library in July 2017. The aim of this series is to document my year in the hope of inspiring aspiring FCIL librarians to join the field (and hopefully not scaring them away!) by discussing one librarian’s experience entering the field.

[Note: some of the links below open videos]

At the beginning of April, I attended, for the first time, the ASIL Annual Meeting in Washington, D.C. The conference happened to fall right at the peak of the cherry blossom bloom, so the scenery was amazing. But what I enjoyed most were the substance of the conference and the opportunities to connect with fellow FCIL librarians.

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Cherry blossoms in front of the Capitol Building.

Conference Sessions

The substantive sessions are 1.5-hour panels with four to six presenters . I appreciated the diversity of experience on each panel. For example, the panel, The 2018 Global Compact on Refugees: International Law in the Making?, included law professors from the United States and Canada, a political science professor, the president of HIAS, and an officer from the UNHCR. Each presenter was in some meaningful way connected to changes in international refugee laws and brought their unique perspective to a well-rounded discussion of the theory and application of the law.

I attended other similar panels on such varied topics as IUU fishing, peacekeeping, and trade, but also sat in for two panels related to international law education. Teaching International Law in an Age of Global Retreat from International Agreements brought together doctrinal and clinical professors who provided valuable insight on trends in international legal education and how they modify their courses to fit with the needs and curiosities of students. Legal Education and Professional Training in the Culture(s) of International Law had a particular focus on LL.M. students and other international students studying at law schools in the United States.

The keynote speakers provided powerful contributions to the conference’s overarching theme: International Law in Practice. One speaker, Sir Christopher Greenwood, gave an engaging talk discussing the challenges arising from the divide between international scholarship and practice, concerns about specialists in specific fields of international law working in isolation, and ways to inspire trust in international law.

If any of this piques your interest, you can watch videos of selected presentations now, and audio of others should be available soon. You’re sure to learn something new about international law from judges, practitioners, academics, representatives of IGOs and NGOs, and other experts in the field.

Networking

At the conference, I met and reconnected with a number of FCIL librarians, including quite a few who are also in their first few years in the field. I learned more about the International Legal Research Interest Group (ILRIG) by attending the group’s meeting. I attended the librarian dinner, a conference tradition, organized this year by incoming AALL FCIL-SIS Vice Chair/Chair-Elect Loren Turner. At the dinner, I learned about other librarians’ FCIL initiatives and projects at their institutions. At the ILRIG meeting and a subsequent breakfast, I learned details about the resurgence of EISIL and I look forward to serving as one of the editors as it migrates to a new platform on the ASIL website this year.

Now that I’ve attended a few conferences as a librarian, I’m starting to see some more familiar faces, although, there are still plenty of people I have yet to meet. FCIL librarians are a friendly bunch and it’s great to know I’m starting to develop a small network of colleagues I can call on if needed.

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The Library of Congress Main Reading Room.

Next Year

I definitely plan to attend the ASIL Annual Meeting in future years, and would encourage new FCIL librarians to put this high on their priority list. The exposure to high-level discussions on international law topics by so many experts in the field all in one place is unparalleled. The conference is a fantastic opportunity to meet like-minded colleagues, and its regular location of Washington, D.C. means a chance to visit such historic buildings as the Supreme Court of the United States and Library of Congress, which is an added bonus.

ASIL 2018 Recap: The Use of Force Against Non-State Actors

By Mariana Newman

At 11:00 a.m. on Thursday, April 15, 2018, a panel of international law professionals discussed states’ use of defensive force against non-state actors, specifically in the context of the counter-ISIL military campaign in Iraq and Syria. Monica Hakimi, Professor of Law at the University of Michigan School of Law, moderated the panel, which consisted of Katrina Cooper, the Deputy Head of Mission at the Australian Embassy in Washington; Paul McKell, Legal Director at the United Kingdom Foreign & Commonwealth Office; Asif Amin, the Head of International Law Development at the Ministry of Defence for the Kingdom of Denmark; and Patrick Luna, the Legal Advisor for the Permanent Mission of Brazil to the United Nations.

Prof. Hakimi asked each panelist to articulate his or her state’s position on the use of force against non-state actors. Each country’s representative expressed their position on the question generally and with respect to ISIL in Syria and Iraq.

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The Use of Force Against Non-State Actors panel at ASIL 2018.

Australia

Katrina Cooper outlined Australia’s position: The “inherent” right to self-defense that is part of Article 51 of the UN Charter applies to attacks by non-state actors, but the defending state can take action against the non-state actor only, not the surrounding state. She explained that the case of using force against ISIL in Iraq was more straightforward legally since Iraq had consented to the use of force by asking other countries to help it defend itself. The case for the use of force against ISIL in Syria was “less clear-cut,” although Australia did conclude that it was legally justified. Cooper also mentioned that the “unwilling or unable” standard applied in the case of Syria.

United Kingdom

Next, Paul McKell stated the United Kingdom’s position: you can invoke the doctrine of self-defense to use force against non-state actors. McKell alluded to the history of the Caroline affair, which involved non-state actors, to argue that this is nothing new. Article 51 mentions an inherent right of individual or collective self-defense, and, according to McKell, it does not require a state to passively await an attack. An attack must be imminent, however, for a state to be able to take action in self-defense. McKell did concede that ideally you deal with non-state actors via law enforcement and the criminal justice system, but that that is not always possible. Like Cooper, McKell talked about the differences between the decision to use force in Iraq versus in Syria. In Iraq, the use of force was based on consent, whereas in Syria, the United Kingdom believed there was “a direct link between the presence and activities of ISIL in Syria and the ongoing attacks on Iraq.” They also determined that the Assad regime was “unwilling or unable to prevent these attacks.” One example that McKell mentioned of the UK’s use of force against non-state actors was the precision strike against UK citizen and ISIL member Reyaad Khan.

Denmark

Denmark’s representative, Asif Amin, explained that Denmark has four exceptions to a prohibition on the use of force: consent, self-defense, the authorization of a UN Security Council Resolution, and humanitarian interventions. In 2014, Denmark was part of the Iraq coalition and, like Australia and the UK, the legal basis for Denmark’s involvement was consent due to the invitation of the Iraqi government. Amin then read from Denmark’s Article 51 letter to the UN Security Council. According to Amin, Denmark is constantly evaluating the situation in Syria.

Brazil

Patrick Luna provided the counterpoint to the other three panelists’ reasoning, offering Brazil’s alternative view. According to Luna, Article 51 is an exception to Article 2(4) of the UN Charter’s prohibition on the use of force: they must be read hierarchically. Luna’s reading of the two articles has lead him to the conclusion that Article 51’s right of self-defense only applies to the use of force against state actors. Luna cited three International Court of Justice opinions, the Nicaragua case, the Wall advisory opinion, and the Congo v. Uganda opinion, all of which he said address self-defense in the context of state actors. Luna further argued that nothing in the travaux préparatoires of the UN Charter leads him to believe that self-defense applies to non-state actors. Luna argued that in order to use force in self-defense, a state needs to identify if the attack can be attributed to a state, otherwise must get consent of the state to act or seek a UN Security Council Chapter VII resolution.

Luna expressed some of Brazil’s concerns with an interpretation of Article 51 that permits the use of force in self-defense against non-state actors. He sees a potentially negative effect to using the term “non-state actors” as a substitute for “terrorists,” since “non-state actors” is a much broader concept. He also sees a risk to multilateralism: why search for multilateral solutions if force against non-state actors is permissible?

Responses

Cooper, McKell, and Amin then responded to Luna’s points. As to Luna’s point about Article 2(4) and Article 51 having to be read hierarchically, Cooper argued that because self-defense is described as an “inherent right” in Article 51, it therefore predates the UN Charter. She commented on the change in the nature and participants in this conflict, saying that “ISIL is a very different actor and the way it acts and mimics a state is new.”  Amin, in his follow-up remarks, agreed that the law needs to “develop to face new threats and new realities.”

As to Luna’s comments on ICJ jurisprudence, McKell replied that the UK position is that there is nothing in the ICJ jurisprudence that prohibits states taking the action they have.

Conclusion

This was an fascinating discussion from legal advisors who were intimately involved in the practical application of this pressing question of international law. At one point toward the end of the panel, Luna expressed the wish that they were “having this discussion at the UN!”

ASIL 2018 Recap: Building Victim-Led Coalitions in the Pursuit of Accountability

By Amy Flick

One of the first programs in ASIL’s 2018 Annual Meeting was a look at how victim-led prosecution efforts after mass human rights events can be more effective than those brought by states. The panel, moderated by Reed Brody of Human Rights Watch, focused on the case against Hissène Habré, the former dictator of Chad. One of the speakers was Souleymane Guengueng, one of the Habré regime’s victims and an activist with the AVCRP, the Chadian Association of Victims of Political Repression and Crime. Guengueng was praised by Brody and the other speakers as a hero.

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Brody and Guengueng told his story of having been imprisoned and tortured and having vowed while in prison to seek justice. Once freed after the fall of Habré’s regime, he worked with Human Rights Watch and the ATPDH (the Chadian Association for the Promotion and Defense of Human Rights) to bring a case in Senegal against Habré and his henchmen. Souleymane Guengueng gathered documents and victim statements, and he and other victims persuaded Belgium to retain the Habré case even after it had repealed its universal jurisdiction law. After Belgium asked the International Court of Justice to order Senegal to prosecute the case or extradite Habré, the ICJ ruled that Senegal must submit the case to competent authorities for prosecution or extradite him. Only then did Senegal and the African Union establish the Extraordinary African Chambers, and Hissène Habré was indicted for crimes against humanity, torture, and war crimes.

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Testimony from victims and witnesses, and the thousands of documents recovered by Human Rights Watch, were crucial to the Extraordinary Chambers case. Jacqueline Moudeïna, a lawyers for the victims, was almost assassinated, but she persisted with the case and was a key to getting witnesses to testify about the acts of sexual slavery committed by Habré and his men. Guengueng concluded by saying that he maintained his story and worked for justice for 18 years and Habré was convicted. He said that torture victims must know what they want to come from their case, and in his case he wanted justice; if he had not seen the case through, he would be dead. Reed Brody noted that the conviction was upheld in April 2017; damages have not yet been paid, but the conviction was still a victory for the victims. Details about the Hissène Habré are in Brody’s paper on the case, Victims Bring a Dictator to Justice: The Case of Hissène Habré.

Kathy Roberts of The Center for Justice & Accountability spoke about the role of lawyers representing victims of atrocities, emphasizing that they are dedicated to the victims, while attorneys for the state have other priorities to consider. She pointed out that in the United States, victims cannot bring a criminal action, but they can find a forum by bringing a civil case under the Alien Tort Statute and the Victims of Torture Act. She discussed the case of Mohammed Samantar v. Yousuf, brought in the U.S. courts against Samantar for crimes against humanity committed during the civil war in Somalia. There was no international interest in the case, and Somalia was a U.S. ally, but victims were active in building routes to justice. After the massacre of the Issa people in Northern Somalia, survivors of torture interviewed fellow survivors and refugees. Amnesty International connected them with attorneys who filed the case in the U.S. courts, and took other actions such as helping to find mass graves and identify bodies.

Roberts noted that victims may have a mistrust of government authorities, including the courts. She compared the cases in the Special Judicial Chambers in Tunisia, which had strong victims and attorneys comfortable with bringing cases in the French-based civil law system, with the Special Chambers in Kosovo, where victims have only recently been allowed as parties to the case under the Criminal Procedure Code, and attorneys involved in international tribunals in Kosovo for years, with relationships to the victims, were not qualified to appear in the Special Chambers courts. In Kosovo, victims often do not know what is happening in their cases.

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Diane Orentlicher of American University Washington College of Law and author of the book Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, spoke last. She described how the lessons learned in the International Criminal Tribunal for the former Yugoslavia on the struggles of victims to be heard were recognized in the creation of the International Criminal Court. Delays in the ICTY meant that justice did not have the impact for victims that it would have coming sooner. The creation of the ICTY was a welcome development, but victims of the atrocities were already working, doing interviews, taking photos, and creating records. Rape victims had begun documenting what had happened to them and gathering testimony before the NATO intervention, even at great personal peril.  The ICTY did not see the survivors as their primary constituency. The ICC was set up with more detailed provisions for victim participation than the ICTY had. The need for victims to be kept informed was recognized. Orentlicher stressed that tribunals need to acknowledge the importance of victim witnesses and their lawyers, and they need to reach out to local communities to convey the message that the tribunal is about the survivors.

 

ASIL 2018 Recap: New Technologies in International Criminal and Human Rights Investigations and Fact-Finding

By Susan Gualtier

On Thursday, April 5th, I attended a panel entitled “New Technologies in International Criminal and Human Rights Investigations and Fact-Finding.”  The panel explored the increasing use of new technologies, such as social media, satellite data, mobile phone apps, and drone technology, in human rights fact-finding, particularly where sites are inaccessible or pose an especially high risk to human rights investigators.

The panelists first discussed their work with various technologies.  For example, Brad Samuels, of SITU Research, works with visual, panoramic, and geospatial representations that must be optimized for use in court. As Mr. Samuels explained, there might be many videos that capture the same moment in time, but from different viewpoints.  Part of his job is to use these videos to create an event reconstruction.  Jonathan Drake, from the American Association for the Advancement of Science, explained that part of the AAAS’s mission is to engage scientists in human rights and to further the use of science in advancing human rights.  The AAAS has performed grave site analysis and environmental analysis, using images to uncover lies by foreign governments.  They are currently considering how to integrate drones into human rights fact-finding and advancement.

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The panel then discussed issues surrounding the use of new and emerging technologies in human rights fact-finding.  For example, the use of smartphones to take videos and post them to social media has allowed more crimes to be exposed.  At the same time, it can be difficult to verify the accuracy of the information contained in the videos.  One way this problem has been addressed is through mobile phone apps, such as the eyeWitness to Atrocities app, which collects location data on the user from three different sources, provides a verified chain of custody for the video, and makes the user’s footage not editable.  However, there are benefits and drawbacks to such app technology.  On the one hand, it helps human rights workers to overcome access issues in situations where on-the-ground fact-finding would be impossible.  It also gives agency to the victims of the atrocities, rather than taking an imperialist, top down approach.  Nonetheless, the panelists all noted the need to be cautious when it comes to use of these apps.  While initial users have acted in good faith while generating evidence, several of the panelists expressed their concern that later users may have less noble intentions than the early adopters.  The panelists also noted the problem of visual bias (the preference for video representations, even in fields like politics where video cannot adequately capture much of the overall picture).  Scientific studies suggest that visual bias and the use of video evidence can introduce a host of problems into the courtroom.  What happens if we move toward mostly visual evidence, but that evidence is not necessarily representative of the situation as a whole?

Despite these and other issues, the types of evidence that can be captured using technology are extremely valuable to lawyers, judges, and other players in field of human rights work.  Technology has led to better results in investigations by providing access to witnesses and to physical documents that would otherwise be impossible to obtain.  It allows judges to see the violence for themselves when travel to the site of an atrocity would be impossible.  It even allows for more complete crime scene investigations.  Nonetheless, the panel urged that we proceed with caution.  There will need to be some guidelines or minimal standards for technology-generated evidence so that it will be admissible in court.  Tech designers are still much more risk-friendly, and perhaps too willing to let technologies fail, than are human rights attorneys, who need to protect witnesses and victims and to meet the demands of tribunals.  Moreover, we must remember that not everyone has access to technology; many of the places where we find human rights offenses are also places where people simply do not have access to mobile phones, apps, and social media.  And some of the worst accountability issues occur where there’s awareness anyway.  Ultimately, it is critical that those using the new technologies remain aware of its limitations.  We should not overemphasize the technological tools just because they are “cool.”  In the end, we should use them to bolster cases that are already based on traditional human rights fact-finding.

IALL 2017 Recap: The Rise and Fall of Jim Crow: Civil Rights Struggles in the American South

By Kim Nayyer

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Professor Joseph Crespino, Jimmy Carter Professor of 20th Century American Political History and South History Since Reconstruction, Emory University. Photo courtesy of Avery Le, October 23, 2017.

The conference theme, Civil Rights, Humans Rights, and Other Critical Issues in U.S. Law, was delivered with insight in this first academic session.  The speaker, Joseph Crespino, PhD, Jimmy Carter Professor of 20th Century American Political History and Southern History Since Reconstruction, Department of History, Emory University, brought retrospective and historical context to our understanding of present and historical race relations in the United States.

For those of us from outside the U.S., Professor Crespino helpfully contextualized his talk with a specific and clear explanation of the Jim Crow era, presenting dates, events, and visual illustrations.[1] Whereas I’d read and seen reference to the terms “Jim Crow” and “Reconstruction,” I, as a non-American, didn’t fully understand the details and historical context. Briefly, Reconstruction is the era that began just post-US Civil War. The Civil War itself was a rebellion by southern states (the Confederacy) against the Union and centered on the issue of slavery. Stated simply, the victory of the Union resulted in the emancipation of slaves and the period known as the Reconstruction Era.

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Professor Crespino gives his talk on the rise and fall of Jim Crow at IALL 2017 in Atlanta. Photo courtesy of Avery Le, October 23, 2017.

Professor Crespino based his session on a course he teaches at Emory University, and he did an admirable job condensing “some of the highlights, some of the low lights” of his course into less than an hour. The session presented a substantial amount of content, and most of his time was dedicated to explaining the rise of the Jim Crow era despite Reconstruction. Professor Crespino concluded with discussion of markers of the fall of the Jim Crow regime. From my perspective, the session successfully elucidated this history and its present impact for international attendees while—based on my discussions with American colleagues—remaining stimulating and thought-provoking to American law librarians.

Professor Crespino outlined the history and meaning of Jim Crow, explaining that the term refers to legalized system of subjugation and disfranchisement, which followed by several decades the emancipation of freed people after the Civil War. Emancipation began with the 1865 passage of the 13th Amendment to the US Constitution. The Reconstruction Era continued with the 14th Amendment of 1868, which granted civil rights and some broad citizenship rights to former slaves, and the 15th Amendment of 1870, which gave black men the right to vote.

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Slide from Prof. Crespino’s presentation. Photo courtesy of Kim Nayyer, October 23, 2017.

We learned that the term “Jim Crow” came from a recurring character in racially degrading minstrel shows, in which white actors wore blackface in mocking and dehumanizing portrayals of comical slave characters. Those minstrel shows began in the years before the Civil War, the 1820s and 1830s, in the north as well as in the south. Professor Crespino noted that historians are unclear on why or how this Jim Crow character name came to refer to the segregationist system of laws, in the late nineteenth century.

Professor Crespino devoted much time to sharing his thinking on a question that had puzzled historians even into the 20th century: why it was that Jim Crow system of laws didn’t appear on the books until around the 1890s—after the end of Reconstruction in 1876. He offered several hypotheses rooted in historical context. First, the Jim Crow laws may have reflected folk practices that existed but were not codified during the period between Reconstruction and the beginning of the regime, wherein blacks and whites self-segregated. Some specific laws of the Jim Crow regime in the south created segregated public spaces and disfranchised black Americans and some poorer whites. This is even though in the 1870s and into the 1880s, blacks were in fact participating in public life in states of the former Confederacy.

Another theory about why the Jim Crow laws began to be enacted well after Emancipation and Reconstruction reflected the reality of post-slavery era blacks. Around the 1890s to the turn of the 20th century, there was a discourse of concern among white southerners about what Professor Crespino said was described as the “new Negro,” African Americans who were not born into or socialized within slavery or white supremacy. He described how the myth of the “loyal slave” worked hand in hand with the rise of Jim Crow, and he noted this trope was depicted in 20th century films such as Gone With the Wind.

Another factor that may have contributed to the rise of Jim Crow laws was a growing racist and pseudo-scientific narrative of characterizations of black people. He quoted from a newspaper of the era which demonstrated the racist discourse used to justify subjugation of blacks despite Emancipation. He observed this was reflected in another film heavily criticized for its false and racist depictions of black men, Birth of a Nation.

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Photo courtesy of Avery Le, October 23, 2017.

By the 1890s, those false and racist characterizations of black men had fed the crime of lynching, then perpetrated by mobs of whites attacking black men. Lynching refers to extralegal or mob violence. Professor Crespino explained that, until the1880s, lynching was a frontier America phenomenon whose victims were mostly white, and where law enforcement was insufficiently developed.

A final theory historians offer to explain the rise of Jim Crow laws is the serious economic unrest of the time, which gave rise to a third party movement called the Populist party. Destabilizing southern politics for a time, the Populist movement rose mostly among rural farmers who felt disempowered by the economic forces that were the reality of their daily lives. Thomas Watson, a leader of this movement, talked about the common economic interests of blacks and whites, but did not propose or advocate integration.

To Professor Crespino, the most convincing reason Jim Crow laws appeared so long after Reconstruction is the view that segregation laws were a product of modernity or the growing urbanization of the south in the twentieth century. New public spaces were arising—for example, railroad cars— which didn’t have a history of “racial etiquette” or regulation. This opened the door to the “separate but equal” ruling in Plessy v Ferguson, in which the majority denied the right of Mr. Plessy to sit in a railroad car of his choosing. Professor Crespino reminded us that, at the time, this separate but equal outlook was actually considered to be a necessary tool of regulation or government reform, but in retrospect clearly made subordinate and inferior allocations for black people. When we look at the words of the majority’s reasoning now, their arrogance is blatant. The dissent, by Justice John Marshall Harlan, was consistent with his approach to those segregation decisions, which earned him the nickname “The Great Dissenter.”

Professor Crespino explained three kinds of consolidation in the Jim Crow regime. In addition to legal consolidation, seen in cases like Plessy, a political consolidation was seen in the shifts in the Republican party. Until then, the Republican party had been framed as the party of Lincoln, of emancipation, of equality. The Lodge Bill of 1890 was a last Republican effort to empower the federal government to enforce the voting rights of blacks to vote. It failed in Congress because southern Democrats allied with some Republicans to prevent its passage.

Finally, a cultural consolidation, in movies and books for example, took hold by the turn of the 20th century. Professor Crespino referred again to the heavily criticized film, Birth of a Nation and the book it was based on, which actually celebrated the Ku Klux Klan. He described the rise of a new interpretation of Reconstruction. Instead of seeing the movement toward civil rights of former slaves, some people justified their later aims by retrospectively re-characterizing Reconstruction as a tragic era (which Professor Crespino notes was the title of a book popular at the time).

Professor Crespino concluded his talk by pointing to three markers of the fall of Jim Crow. He referred to the nineteen-teens as being the period of the seeds of the dismantling, though it coincided with some of the cultural retrenchment he just described. Even as The Birth of a Nation was screening, political developments began to undermine the Jim Crow era.

The first marker was the beginning of the migration of African Americans out of the south. At 1910, 90% of African Americans lived in the southern states. Only 50 years later, half as many African Americans lived outside the south as in those states, with a population shift from the rural south to the urban north. Because blacks could vote in those northern districts, the US began to see African American members of Congress in the late 1920s and1930s, which led to a big change in the political and government discourse from that of the 1890s. In 1928, Oscar De Priest, the first African-American Congressman, was elected, representing a Chicago district.

The second marker was the New Deal, the programs of the Franklin Roosevelt administration, carried out through initiatives pursued by First Lady Eleanor Roosevelt. She engaged in social efforts and symbolic actions to advance the civil rights and societal participation of African Americans.

The third marker toward dismantling of the Jim Crow era noted was World War II. African Americans served and became empowered by their service to advance deserved civil rights. These were accompanied with new Supreme Court decisions, such as Smith v Allwright (1944), which disallowed discriminatory voting practices, and Brown v Board of Education (1954), which declared segregated public schools to be unconstitutional.

I found this talk remarkably timely and illuminating. One of the most profound impacts of Professor Crespino’s presentation is the sense that much of this history also rings sadly and even frighteningly familiar; it echoes in some of the uglier rhetoric of recent months. We see arguments about the present plight of relatively poor and economically dispossessed Americans giving rise to nationalist or racist populism, for example. To me, though, Professor Crespino’s presentation recalled quite precisely the arguments of Ta-Nenisi Coates in his book, We Were Eight Years in Power: An American Tragedy. Mr. Coates likens the years of the Obama administration, in a way, to the period of Reconstruction. In fact, though President Obama was in office for eight years, his title refers to the 1875 words of South Carolina Congressman Thomas Miller, in reference to Reconstruction and its civil and social equality measures (Coates at xiii).

Coates even, I think, alludes to the later tragic reinterpretations of that era by those who would not want to see a black person as president. These writings echo Professor Crespino’s description of the “threat” of the “New Negro” that gave rise to the Jim Crow regime, likening this to racial tensions and perhaps overt anti-black discourse in the years since the first Obama administration. “Friends began to darkly recall the ghosts of post-Reconstruction. The election of Donald Trump confirmed everything I knew of my country and none of what I could accept. The idea that America would follow its first black president with Donald Trump accorded with its history” (Coates at 336).

[1] I understand from a conversation with Professor Crespino that his session was recorded. It a recording was made and will be publicly available, I’ll update this post with a link.

IALL 2017 Recap: Pre-Conference Workshop: Well, Isn’t That Special? A How-To Workshop on Creating and Using Archives and Special Collections in a Legal Research Context

By John Bamgbose

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Workshop attendees pay rapt attention to the presentations.

The 36th annual course on International Law and Legal Information has come and gone. However, one of the things that will remain green in the hearts of the participants is the pre-conference workshop, which will remain in the annals of history of the association as the first of its kind in the 36 years of the workshop. On an unusually warm October afternoon, participants gathered from different parts of the world. The workshop provided the opportunity for some first timers to begin their familiarization and networking before the official opening ceremony which was to later take place in the evening. The pre-conference workshop’s theme was “Well, Isn’t That Special? A How-to Workshop on Creating and Using Archives and Special Collections in a Legal Research Context.”

Vanessa King, Assistant Law Librarian for Special Collections, and Jason LeMay, Assistant Law Librarian for Cataloging and Metadata, both of Emory University’s Hugh F. MacMillan Law Library, opened the floor by examining the topic entitled, “Special Collections: What Are They and How Do We Build Them?”

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Vanessa King, Assistant Law Librarian for Special Collections at Emory University, presents at IALL 2017’s pre-conference workshop.

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Jason LeMay, Assistant Law Librarian for Cataloging and Metadata, shows off some of Emory University’s rare collections.

The session provided a list of conservative and preservative measures that should be put in place to ensure that rare collections acquired in the law library are better preserved.  Libraries must consider the temperature and humidity level of the storage area.  Other germane issues include security concerns, the environmental condition, shelving, and storage demands.  After the presentation, attendees were able to view some of the rare collections, under the guidance of Mr. LeMay.  The resources ranged from paper-based collections of different sizes and ages.  The session further enumerated factors that should be considered before starting up special collections.

The second session of the workshop, entitled “Making Special Collections Accessible to Users: Cataloging and Finding Aids,” took another interesting dimension by taking a cursory look at the technical activities that would guarantee proper arrangement of collections in a manner that library patrons could easily access the rare collections.  The session was given by Clayton McGahee, Archives Manager at Emory University Libraries, and Marjorie Crawford, Head of Technical Services and Automated Services, Rutgers Law Library.

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Marjorie Crawford, Head of Technical Services and Automated Services, Rutgers Law Library, speaks during her presentation on making special collections accessible to users.

Mr. McGahee’s presentation began with an overview of the finding aids available at Emory University.  He noted that, while the transition to an electronic system is important in the knowledge economy, it is essential to set up standards.  Ms. Crawford concluded the presentation with some nuggets to keep in mind when cataloging rare books and the available tools that can be leveraged when cataloging.

In the third session, “Using Archives and Special Collections in Your Classroom,” Professor Donna Troka, Associate Director of Teaching and Pedagogy at Emory’s Center for Faculty Development and Excellence, and Gabrielle Dudley, the Instruction Archivist and QEP Librarian at Emory’s Stuart A. Rose Manuscript, Archives, and Rare Book Library, chronicled their collaborative experience on a project called “Resisting Racism: From Civil Rights to #BlackLivesMatter.”  Their presentation was a case study of best practice for collaborative engagement between the library and the faculty.  Professor Troka describes how the collaboration came to be and then narrated the step-by-step process on how the project worked.  Students structured their findings on how demographics, such as gender, sexuality, and race have functioned in anti-racist movements across history.  The course gave rise to a physical exhibition in 2016 and a digital exhibit in fall 2016.

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Professor Donna Troka, Associate Director of Teaching and Pedagogy, and Gabrielle Dudley, Instruction Archivist, Emory University, a moment before their presentation.

Acknowledgements:  This recap was made possible due to the efforts of:
  1. Cornell Law Library, which generously provided me with conference participation support as part of the Bitner Research Fellowship package;
  2. Monica, whose camera was used to capture the pictures; and
  3. An IALL board member who granted me her pre-conference slot, which enabled me to attend the workshop.