legal history

“For those of us who enjoyed the rare privilege of clerking for Justice John Paul Stevens … there was only one Boss. And it was not Bruce Springsteen.”

WASHINGTON – So begins “Justice John Paul Stevens leaves behind a rich legacy that we cannot forget,” the op-ed I published last week in the Washington Post. It offers personal and professional reflections on the Supreme Court Justice, for whom I served as a law clerk in OT’88.

He died last Tuesday, just months shy of his 100th birthday, after serving on the Court for an extraordinary 3-1/2 decades, from 1975 to 2010.

I’d written as well in the past about aspects of his career:

John Paul Stevens, Originalist,” 106 Northwestern University Law Review 743 (2012)

John Paul Stevens and Equally Impartial Government,” 43 University of California Davis Law Review 885 (2010)

John Paul Stevens, Human Rights Judge,” 74 Fordham Law Review 1569 (2006)

John Paul Stevens and the American Century” (SCOTUSblog, April 20, 2010)

Three More Anecdotes from Clerks” (Blog of Legal Times, April 11, 2010)

Steeped in Tradition” (Blog of Legal Times, April 9, 2010)

Memorial services for Justice Stevens begin this morning, with a ceremony in the Court’s marble rotunda, where he will lie in repose till midnight, with interment at Arlington National Cemetery tomorrow.

It’s an honor to be in attendance at these historic events.

(At top, 2007 AP photo (credit); below, poster for 2009 symposium I organized while a law professor at the University of California-Davis

Coomee Rustom Strooker-Dantra, 1937 (credit)

I’m very pleased to have posted a draft of my most recent paper, Glimpses of Women at the Tokyo Tribunal, online. The work arises out of my ongoing scholarly research into the roles that women and others played in the post-World War II international criminal trials. (prior posts) This research focuses primarily on trials at Nuremberg rather than at Tokyo; however, as this essay indicates, the issues and even the personnel in the two forums overlapped considerably.

Many women are brought to the fore in Glimpses; for example: 5 American lawyers, Virginia Bowman, Lucille Brunner, Eleanor Jackson, Helen Grigware Lambert, Grace Kanode Llewellyn, and Bettie Renner; 1 Dutch lawyer, Coomee Rustom Strooker-Dantra, who had been born in what is now Myanmar; and 1 American, memoir-writer Elaine B. Fischel, who assisted defense counsel but did not herself  become a lawyer until after her Tokyo service.

From left, Eleanor Jackson, Virginia Bowman, Grace Kanode Llewellyn, Bettie Renner, and Lucille Brunner, in Los Angeles Times, 15 April 1946 (credit)

Other women also figure – including some who have been introduced into the Tokyo narrative through a documentary, a feature film, and a miniseries, each analyzed in the essay.

Intended as a chapter in a forthcoming essay collection marking the 70th anniversary of the Tokyo Trial judgment, this draft manuscript forms part of the Dean Rusk International Law Center Research Paper Series at SSRN. It may be found in numerous SSRN sites, including the International, Transnational and Comparative Criminal Law eJournal, of which I am the Editor-in-Chief. I was honored to have presented it during last November’s American Society of International Law Midyear Meeting Research Forum at UCLA Law.

Here’s the abstract:

Compared to its Nuremberg counterpart, the International Military Tribunal for the Far East has scarcely been visible in the seven decades since both tribunals’ inception. Recently the situation has changed, as publications of IMTFE documents have occurred alongside divers legal and historical writings, as well as two films and a miniseries. These new accounts give new visibility to the Tokyo Trial – or at least to the roles that men played at those trials. This essay identifies several of the women at Tokyo and explores roles they played there, with emphasis on lawyers and analysts for the prosecution and the defense. As was the case with my 2010 essay, “Portraits of Women at Nuremberg,” the discussion is preliminary, offering glimpses of the Tokyo women in an effort to encourage further research.

The full manuscript may be downloaded here.

Elaine B. Fischel with Tokyo defense counsel, 12 September 1946 (credit)

OXFORD – A capstone of my Hilary-Trinity Term visit here took place yesterday, when I presented “A New History of the Nuremberg Trials: Figuring Women and Others into the Narrative” to law students and faculty who gathered at the Bonavero Institute of Human Rights, located at Oxford University’s Mansfield College. The Oxford Transitional Justice Research network cosponsored.

Professor Kate O’Regan, director of the institute and a former judge on the Constitutional Court of South Africa, opened my Research Visitor Seminar. Then came my  presentation of my research on the roles women played at Nuremberg – not only the Trial of the Major War Criminals before the International Military Tribunal, but also the 12 subsequent American trials before what are known as the Nuremberg Military Tribunals. Next, Dapo Akande, Professor of Public International Law at Oxford’s Blavatnik School of Government, offered discussant’s remarks before opening the floor for a stimulating round of Q&A.

I’m grateful to all at the Institute for this event and the hospitality I’ve enjoyed during my stay at a Bonavero Research Visitor and Mansfield College Visiting Fellow. Grateful, too, for the opportunities I’ve had to present this work elsewhere in Europe, at the Irish Centre for Human Rights at the National University of Ireland Galway, University of Stockholm, University of Göttingen, and Max Planck Institute Luxembourg.

A warm welcoming of new members highlighted the recent annual meeting of the American Society of International Law.

Those welcomed included two luminaries – a Nobel Peace Prizewinner and a U.S. Presidential candidate – plus untold others, as reflected in this resolution, adopted by ASIL’s General Assembly:

RESOLVED,

That the American Society of International Law, wishing to provide recognition and posthumous redress to women who were excluded from membership in the Society during its early years, hereby confers membership on JANE ADDAMS, BELVA ANN LOCKWOOD, and any other women whose applications for membership were denied from 1906-1921.

FURTHER RESOLVED,

That the Society should undertake additional research to determine which members of other groups also were excluded from membership over the course of the Society’s history, and merit similar redress.

ASIL President Lucinda A. Low (left) introduced the resolutions, one of her last acts before handing the presidency to Professor Sean D. Murphy. Low, a partner at Steptoe & Johnson LLP, acted in response to a member inquiry – an inquiry prompted, as Low told ASIL members, by “International Law and the Future of Peace,” the speech I gave upon receiving the 2013 Prominent Woman in International Law award of ASIL’s Women in International Law Interest Group. As I indicated in that speech, original credit is owed to yet another ASIL President: Professor Alona Evans (below left), the 1st woman elected to lead the Society, in 1980, her tenure cut short by her death at age 63 that same year.

Six years earlier, Evans and Carol Per Lee Plumb had published “Women and the American Society of International Law” in the American Journal of International Law. They reported that ASIL, founded in 1906, had refused women’s applications for membership until 1921, the year after the U.S. Constitution was amended to give women the right to vote. Applicants before that time included:

► Lockwood (1830-1917) (top, middle), an attorney-activist who gained admittance to the District of Columbia bar in 1873 thanks to the intervention of U.S. President Ulysses Grant. Thereafter, she became the 1st woman to appear on an official ballot as a candidate for U.S. President, and also the 1st to argue a case before the U.S. Supreme Court.

► Addams (1860-1935) (top, right), the Chicago settlement house leader whose achievements including chairing the 1915 International Congress of Women at The Hague and serving and the 1st President of the Women’s International League for Peace and Freedom. She would earn the Peace Prize in 1931.

According to Evans’ co-authored article, when Addams sought ASIL membership, she was sent a letter in which she was “invited, instead, to subscribe to the Journal ‘for the same amount as the annual dues ….’” That letter constitutes one of the few remaining records of such applications; it is for this reason that the 2018 Resolution refers to all women, known and unknown, who were denied membership.

Similarly lacking is evidence of how members of other groups fared in ASIL. (The sole African-American person elected ASIL President, C. Clyde Ferguson Jr., served just before Evans.) The Society has further resolved to seek this information and grant redress.

As for Evans, President Low indicated that the Society is considering how best to honor her legacy. These resolutions surely constitute a superb 1st step.

fergusonCHICAGO – Within the rich program of the just-concluded American Society of International Law Midyear Meeting was a discovery. A discovery for me, at least, regarding an important milestone in ASIL’s century-plus history.

I have written before about women who blazed trails in the Society since its founding in 1906. Among several notables is Dr. Alona Evans, the Wellesley political science professor (and mentor of then-student Hillary Rodham) who was elected ASIL’s first woman president in 1980. Evans, who died in office the same year, would be followed by other women: Georgetown Law professor Edith Brown Weiss (1994-1996) Anne-Marie Slaughter (2002-2004), now president of the New America thinktank, Freshfields partner Lucy Reed (2008-2010), and, since the spring of this year, Columbia Law Professor Lori Fisler Damrosch.

I’ve also written about Goler Teal Butcher, Howard Law professor, U.S. State Department diplomat, and Amnesty International activist. Butcher, an African American woman, was friend, mentor, and inspiration to many; indeed, the Society named its human rights medal after her. (See here and here.)

I have not written about the Society’s first (and only) African American president, however. There is a simple reason for that omission: though I have seen the full list of past ASIL presidents, I did not learn until this ASIL’s Midyear that one of them, C. Clyde Ferguson Jr., was a person of African American heritage. He is pictured at top; photo credit.

Credit for my discovery belongs to Blacks in the American Society of International Law – BASIL – a task force that held its formative session at the Chicago meeting. The first component of President Damrosch’s inclusion initiative, BASIL is designed to affirm and expand the tradition of black international lawyers, jurists and academics in the United States. It is co-chaired by ASIL Honorary President Gabrielle Kirk McDonald, whose career includes service as a judge on the U.S. District Court, the International Criminal Tribunal for the former Yugoslavia, and the Iran-U.S. Claims Tribunal, along with Adrien K. Wing, the Bessie Dutton Murray Professor of Law at the University of Iowa. I’m honored to serve as a member of this task force, along with Elizabeth “Betsy” Andersen, Angela Banks, Bartram Brown, Donald Francis Donovan, Jeremy Levitt, Makau Mutua, Natalie Reid, Henry Richardson, and Edith Brown Weiss.

As preparation for our inaugural session, BASIL co-chairs distributed, among other things, a 1994 essay written in memory of Ferguson. Born to a pastor’s family during the Depression, he was barred from attending college in his home state on account of race. Ferguson was graduated cum laude from Harvard Law School and hired as that school’s first African American law professor – for a long time, according to the essay, he was Harvard Law’s “only full-time minority professor.” A human rights scholar, activist, and diplomat, Ferguson served inter alia as dean of Howard University School of Law and as U.S. Ambassador to Uganda. Professor Butcher and he frequently collaborated on issues related to southern Africa.

Elected ASIL’s president in 1978, Ferguson was succeeded two years later by Professor Evans. The fact that the Society chose two pathbreaking leaders in a row is noteworthy. Indeed, it calls out for a legal historian to asil_logoplumb this pivotal moment in ASIL’s history. One hopes that BASIL, alone or in conjunction with WILIG, the Society’s Women in International Law Interest Group, will answer that call.

eventWASHINGTON – Yesterday I had the honor of serving as Distinguished Discussant for the 16th Annual Grotius Lecture, a keynote event at the ongoing joint meeting of the American Society of International Law and the International Law Association. Delivering the lecture was NYU Global Law Professor Radhika Coomaraswamy, whose former posts include Special Representative of the U.N. Secretary-General on Children & Armed Conflict and U.N. Special Rapporteur on Violence against Women. (event video here) Her talk was entitled “Women and Children: The Cutting Edge of International Law.”

Below is a version of my remarks in response, prepared and delivered in my personal capacity. The final, fully footnoted article is set to appear in due course, along with that of Professor Coomaraswamy, in the American University International Law Review, thanks to the lecture’s cosponsor, American University Washington College of Law.

The Post-Postcolonial Woman or Child

“‘Let the child be excused by his age, the woman by her sex,’ says Seneca in the treatise in which he vents his anger upon anger.” So wrote the namesake of this lecture, Hugo Grotius, in his masterwork entitled The Law of War and Peace. With this 60862quotation, “Let the child be excused by his age, the woman by her sex,” Grotius traced to the writings of an ancient Roman philosopher the injunction against harming women and children in time of war. Grotius’ reiteration of Seneca’s words tacitly admitted that as late as 1625, armies still were violating the injunction. Sadly, the same is true 389 years later. Today neither women nor children are excused from wartime assaults, violence, and upheaval. In Syria alone, three years of conflict have left well over 100,000 persons dead, and forced another 2.5 million persons to flee their country. Women and children are included in those statistics. Conflicts elsewhere generate similarly grim numbers, as Professor Coomaraswamy indicated by her references to the Central African Republic, to the Democratic Republic of the Congo, and to her own homeland of Sri Lanka. Indeed, outrage at the persistent violation of laws protecting women and children undergirds the Grotius Lecture that we have just heard.

Commensurate with her distinguished career in international law academia, policy, and practice, Professor Coomaraswamy has presented a vast and intricate tapestry of global developments. It would be impossible for me to comment in full in the time allotted. Instead, I propose to pull five strands out of the fabric of her lecture and to weave them anew, as a means to invite the imagining of a possible future, that of “the post-postcolonial woman or child.”
My first strand addresses Professor Coomaraswamy’s statements of concern about postcolonial theorists prevalent in the global south. These scholars, she said,

‘reject the human rights framework as part of the ‘liberal’ ‘imperialist’ project especially when it comes to cultural practices. … [They] rejec[t] the dominance of the European Enlightenment and the sacredness of the power of reason.’

My response might raise hackles among some of those scholars, for it begins with this claim: We are all postcolonials now.

By way of example, both of my own countries of citizenship are postcolonial states. Read Full Article

In “John Paul Stevens, Originalist,” an article published last year in Northwestern University Law Review, I examined how Justice Stevens, during his 34-plus years on the U.S. Supreme Court, had treated the interpretive methodology known as originalism. I wrote of a 1985 speech in which Edwin Meese III, President Ronald Reagan’s Attorney General, “urged adoption of a single standard –  ‘a Jurisprudence of Original Intention’ that would obligate judges to be guided solely by what the Framers chiefshad meant when they selected the words of the Constitution.'” Justice Stevens pushed back in his own speech the same year and in a 1986 lecture, The Third Branch of Liberty. “Stevens,” I wrote, “identified ‘the probable intent of the Framers’ to give to ‘future generations of judges’ the power and duty to check majoritarian abuses of individual liberty.” After examining Stevens’ treatment of history in cases involving the 2d Amendment, my article quoted Stevens’ Five Chiefs: A Supreme Court Memoir 226 (2011):

‘Historical analysis is usually relevant and interesting, but it is only one of many guides to sound adjudication.’

Though Stevens left the bench in 2010, he scarcely may be called retired. He’s written the just-quoted memoir and several New York Review of Books essays, and given a host of speeches. The latest of these was delivered in Louisville, Kentucky, a couple weeks ago – just 2 days before Stevens celebrated his 93d birthday, to be exact. Entitled “Glittering Generalities and Historic Myths,” it illustrates the role that history continues to play in Stevens’ thinking about law. Stevens identified instances in which the Court contributed to the making and maintenance of myths, some of which, he said, “have a longer life expectancy than the truth.” Identification of each myth implied disapproval of the decisions that had relied on them.

► Thus incurring criticism was the Court’s recent 2d Amendment cases; in particular, the most recent, McDonald v. Chicago (2010).

As I described beginning on 757 of my “Originalist” article, McDonald marked the last case in which Stevens wrote. His solo opinion drew retort from his longtime sparring partner on matters of constitutional interpretation, Justice Antonin Scalia. Stevens’ Louisville speech challenged as myth 2 views of history that underlay the majority’s invalidation in McDonald, on federal constitutional grounds, of a local gun-control ordinance: 1st, the view that the Court got it wrong in Slaughter-House Cases (1873); and 2d, the view that the Court got it right in  United States v. Cruikshank (1875).

Justices were not wrong but right in upholding local health laws in Slaughter-House, Stevens wrote, though “unfortunately” they rested their decision on a little-used, and in his view not-useful, constitutional ground. They were not right but wrong, Stevens ColfaxMassacreadded, to set aside in Cruikshank 3 convictions for the April 13, 1873, killings of scores of African-American men in Colfax, Louisiana. (image credit) (As Stevens noted, Charles Lane depicted these events in The Day Freedom Died (2009).) The release of the defendants in Cruikshank enabled a “myth that they were heroes fighting for a noble cause,” Stevens wrote, not to mention a myth “that laws that failed to preserve white supremacy were ‘misrule.'” Stevens’ speech endorsed the lower court’s articulation of state action doctrine. In an expansive rendering that anticipated the next century’s human rights jurisprudence, that court, in United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871), had defined denial of equal protection as follows:

‘Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for the protection of his fundamental rights, as well as the enactment of such laws.’

► Also drawing Stevens’ attention were 2 decisions dating from the World War II era – an era that, as I have written here and here, informed Stevens’ own jurisprudence in the aftermath of the terrorist attacks against U.S. targets on September 11, 2001.

quirinAddressed 1st was Ex parte Quirin (1942), in which the Court unanimously approved secret-tribunal convictions of 8 Germans who’d landed on U.S. soil with the aim of committing sabotage. Among the 8 was a man presumed a U.S. citizen, so that in post-9/11 legal discourse the judgment has been cited as authority that citizens may be treated as “enemy combatants” and thus deprived of a panoply of rights. Quirin mythology also includes, Stevens wrote, “the mythical inference that their apprehension was the product of superior intelligence work by the FBI.” (image credit) In fact, citing Jess Bravin’s Terror Courts (2013), Stevens noted that the FBI learned of the plot only when a conspirator turned himself in.

Discussed 2d was In re Yamashita (1946), in which a majority of the Court sustained an overseas U.S. military commission’s capital conviction of the general who, as Stevens wrote, “had assumed command of the Japanese forces in the Philippines shortly before the war ended.” Today thyamae decision is the taproot for the doctrine of command responsibility, by which superiors are held liable for failing to prevent their troops from committing atrocities. But it did not win the favor of Stevens, who clerked for a Yamashita dissenter, Justice Wiley B. Rutledge Jr., a couple years later. Stevens’ speech cited Yamashita’s Ghost: War Crimes, MacArthur’s Justice, and Command Accountability (2012), in which author Allan Ryan dispels “the myth that General Yamashita was a war criminal because he failed to prevent the troops under his command from committing unspeakably cruel atrocities.” In fact, Ryan’s book contends “not just that the General did not authorize any of the atrocities – but that he did not even know about them and probably could not have prevented them even if he had ….” (credit for photo of trial of Yamashita) The former Justice concluded:

‘If the prosecution’s theory of the case were applied to the American Army in the Viet Nam conflict, General Westmoreland would receive the death penalty for failing to prevent the My Lai atrocities.’