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February 3, 2006

The Japanese American Cases -- A Bigger Disaster Than We Realized

A
new paper of mine is now available on the Social Science Research Network. It's called "The Japanese American Cases -- A Bigger Disaster Than We Realized." It'll be published later this year in the Howard Law Review as part of a mini-symposium on loyalty and the criminal law.

You can download and read it by clicking here.

This is the abstract:

"Sixty-one years ago, Eugene V. Rostow published the first major academic article on the Japanese American internment of World War II. The article's title left little doubt about Rostow's view of the Supreme Court's decisions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944): "The Japanese American Cases – A Disaster." Rostow's claim was that these two cases were a substantive disaster of constitutional doctrine—a fundamentally mistaken endorsement of a repressive military program.

Rostow's conceptualization of the "disaster" of the "Japanese American cases" continues to define—and, in a sense, to confine—our view of the legal history of this wartime period. There are, in fact, many more wartime "Japanese American cases" to remember than Korematsu and Hirabayashi. These two cases were really just one small part of a much broader program of litigation in which the government sought both to capitalize on and to reinforce the image of Japanese Americans as disloyal subversives.

This Article broadens Rostow's assessment of the "Japanese American cases" as a "disaster" by recasting both of those terms. It widens the focus of the term "Japanese American cases" to include stories of the many wartime Japanese American cases that the literature has slighted or forgotten. This broader view reveals that the Japanese American cases of World War II were a disaster of a different sort: a litigative debacle, in which an astonishing number of cases ended in acquittals, dismissals, stern judicial rebukes, and other repudiations of the government's legal and factual positions. The Article concludes that the overall litigative project was a misadventure in using the law—especially the criminal law—to tar a racial group with the badges of disloyalty during wartime."

Posted by Eric at February 3, 2006 2:36 PM

Comments

When you look at the Bush administration track record on terror prosecutions over the last five years.... yeah, we're doing it again.

Posted by: Ahistoricality at February 3, 2006 3:31 PM

Off topic, but your legal opinion would certainly be appreciated.

Prof. DeLong asks for informed comment on the Libby case and presidential pardons.

http://www.j-bradford-delong.net/movable_type/

It's currently the second post down, "Scooter Libby: What's going on..."

I would certainly like to see you weigh in. If you're not already reading DeLong's blog, you'll be glad to know about it.

Thanks.

Posted by: Karlsfini at February 5, 2006 10:53 AM

Fun Rostow fact:
Eugene V. Rostow was named after Eugene V. Debs.

Posted by: Kevin at February 6, 2006 12:03 PM