Is That Legal?

"Exporting American Dreams"

Tue, 06 May 2008 17:27:38 -0500

Did you know that Thurgood Marshall helped draft Kenya's Bill of Rights? Oh, come on. Do you expect me to believe that? Of course you didn't. Neither did I. But we'll all have a chance to learn more about this fascinating episode in Marshall's life this summer, when Mary Dudziak's new book "Exporting American Dreams: Thurgood Marshall's African Journey" hits the bookstores. It gets a great review from Publisher's Weekly. (Go here and scroll a bit more than halfway down.)

Berkeley's New Hire! Muller Scoops Leiter!

Tue, 29 Apr 2008 20:48:58 -0500

In looking over Boalt Hall's faculty web page just now, I noticed a new hire that had not even made it onto Brian Leiter's page: Not only that, but I found a picture of the professor getting started on his summer writing project:

"American Inquisition" Hits Youtube!

Sat, 26 Apr 2008 10:33:08 -0500

Back in December I did a 1/2-hour interview on public radio in Seattle about my book American Inquisition: The Hunt for Japanese American Disloyalty in World War II. I had entirely forgotten that the interviewer had a videocamera running until this video happened to pop up on youtube: It's a pretty good talk, I think, though I confess that my attention is mostly drawn to the facts that (a) the chair was very low, (b) I have more of a Philadelphia accent than I thought I did (you hear it especially in the "o" and "ow" sounds), (c) when I'm talking, I look a bit more like my mother than I thought I did.

Lights On, Nobody Home at the National Archives

Thu, 24 Apr 2008 20:30:26 -0500

I'm going to be working on a research project this summer that will require me to zero in on records of the Department of Justice, especially its Enemy Alien section, during a 10-month period from late 1941 to late 1942. This is highly specialized research that focuses on voluminous records catalogued in highly idiosyncratic ways. Finding aids and research guides are sparse. To do the work effectively, a researcher absolutely needs to consult with an archivist who lives and works with the records, and knows their ins and outs. So I contacted the National Archives today to find out who has replaced the expert on Justice Department records who recently retired. The answer: nobody. "We really have no one," I was told. I knew that staffing at the National Archives had been cut back dramatically, but I had no idea it had reached the point where there is no specialist dealing with a major group of records like those of the Department of Justice. Truly remarkable.

Vanishing.

Tue, 22 Apr 2008 19:24:12 -0500

I've been appointed Associate Dean for Faculty Development here at UNC Law School. So my blogging, which has been increasingly sporadic, will be ... even more sporadic. Sorry!

Deportation, Ioannina, 1943.

Wed, 16 Apr 2008 14:34:59 -0500

A friend pointed me to this small collection of photographs of the deportation by the Nazis of the Jews of Ioaninna, Greece, on March 25, 1943, to Auschwitz-Birkenau. I have seen many moving photos of the deportation of Jews, including photos of the deportation from Würzburg of a group that included my great-uncle Leopold and his wife Irene in April of 1942. But I don't think I've ever seen one as wrenching as this: And this one is pretty tough too -- especially the child on the right. It looks as though these photos captured the moment when the men were driven away.

How Times Have Changed!

Wed, 16 Apr 2008 12:04:38 -0500

Which very prominent lawyer penned this endorsement of Michael Dukakis for the Democratic nomination in 1988, praising him for, among many other things, his repudiation of Al Gore's "militaristic foreign policy"? (answer below the fold)

UNLIKE any other candidate, the voters know what to expect if they elect Gov. Michael S. Dukakis as their next president. Dukakis is the only Democrat in the race who has a proven track record of success, and he has also demonstrated the personal qualities of honesty, candor, and integrity that set him apart from his competitors. Dukakis is the only candidate who has run a government. Sen. Paul Simon, Rep. Richard Gephardt, and Sen. Albert Gore '69 have built their careers on Capitol Hill, while Jesse Jackson has never held elected office. Dukakis is the only one who has balanced a budget, formulated a legislative program, led a cabinet, and acted as an executive. He has learned the need for compromise and agreement, which will serve him well in Washington. He has drawn his experience from the act of governing, not sitting in a comfortable Washington office building worrying about PACs and interest groups. Dukakis' record as governor of Massachusetts illustrates a record of tangible achievement, rather than the theoretical--and at times fanciful--plans of his competitors. Fiscal prudence and compassionate, practical social programs have become the Dukakis trademark. Massachusetts has led the nation in its workfare programs, its housing and education initiatives, and in its insurance and health legislation. And the governor is the only candidate who can make good on his promises for economic success. Under the Dukakis administration, the state became known as the "Massachusetts miracle" for its booming economic growth--employment hovers around 2 percent, three points below the national average. Dukakis has implemented policies which have fostered innovation and growth, while he has personally encouraged the partnerships between industry, government, and universities that have made Massachusetts one of the nation's high-tech, export centers. Dukakis can rightfully claim some credit for transforming a state once called "Taxachusetts"--beset with high unemployment, crime, and a declining economy--into the nation's top economic success. UNLIKE Reagan, Dukakis' management style displays a "hands-on" philosophy. The recent shake-ups in the Dukakis campaign hierarchy, in which Dukakis fired two of his most trusted advisors for unethical practices, show that for him, the ends do not justify the means. This is a refreshing and attractive attitude after eight years of the most scandal-ridden administration in history, presided over by a man who neither knows nor cares what his subordinates do in his name. But Dukakis is not only running as governor of Massachusetts, but as a man who can apply his knowledge and expertise to national problems--such as trade, foreign affairs, and the environment. Dukakis rightly places himself against Gephardt's call for sweeping protectionist legislation and instead calls for national attention on rehabilitating our weaker industries. Dukakis considers the best policies to be limited protection of only the most hard-hit industries--such as oil and textiles--only so long as to allow them time to catch up with existing technologies. The governor's vision comes through in his plan for a national energy program, which would help reduce our dependence on foreign energy production. This includes tax breaks for Texas oil producers and development of alternate energy supplies. This would decrease our dependence on nuclear energy, which Dukakis has fought in his battle against the Seabrook nuclear plant. Dukakis has moved to develop a coherent foreign policy, one that recognizes that America can no longer dictate to the rest of the world. President Dukakis would use both negotiation and a newly-revamped and efficient military to live in a multipolar, not a bipolar, world. Perhaps what we need now is a president who can bring intelligence and good sense to foreign policy, not a strict ideology as a "hawk" or a "dove." Dukakis would be an "owl." DUKAKIS has proved himself a "man of the people." He rides to the office on the T and he buys his suits from Filene's basement. Dukakis, in fact, has better proven himself to be "one of us" in the South than has Gore, whose Washington upbringing, prep school/Harvard ties and liberal voting record are taken as evidence that he has betrayed the South. Dukakis has an excellent reputation for honesty and straight-forwardness, qualities which have deflected much of the moral criticism that has plagued the other candidates. America's love for these virtues, which Reagan captialized on in his campaigns, shows the importance they hold for voters. On many issues Dukakis shows fundamental disagreement with other candidates and he emerges with more of a discernable identity than others. He repudiates Gore's militaristic foreign policy, Simon's ludicrous public works-balanced budget proposals, and Jackson's unfeasible visions. Michael Dukakis is the man among all the presidential contenders who has consistently shown his desire to address the needs of all Americans. His record has not favored the rich or the poor, but has treated all fairly with an aim toward social justice and sensitivity from the government. His record as a chief executive and his inherent integrity show that he is the man who can succeed in this effort. We support him for the Democratic Presidential nomination.

John Yoo, Karl Bendetsen, Firing, and Hiring

Wed, 16 Apr 2008 11:12:51 -0500

Some are mooting the idea of stripping John C. Yoo of his tenure at Boalt Hall, but I recoil in horror from the notion. I say this not out of any admiration for the legal advice he rendered while in the Office of Legal Counsel, nor because of any personal connection to him. (I met him only once, before his OLC days, when he was on the Federalist Society's law school speaker's circuit.) I say it because firing academics to punish them for their views is abhorrent. I suppose I might think about it differently if Yoo were someday convicted of some sort of criminal offense for his OLC activities (which strikes me as very unlikely). But if Boalt Hall were now to fire Yoo, it would, I think, go down as one of the more serious blows to academic freedom in our nation's history. I guess this aligns me more with Sandy Levinson in the disagreement he is having at Balkinization with Stephen Griffin, who, as I read him, is arguing for Yoo's dismissal. Griffin's analogy of Yoo to Karl Bendetsen subtly shifts the inquiry, however. He asks how we would respond if Bendetsen applied to teach a course on military law at our law school, and suggests that Boalt Hall will continue to have a Yoo problem so long as there are lots of people who would not hire Karl Bendetsen. I would not hire Karl Bendetsen into a tenured or tenure-track position at my law school if he were circulating his CV after his stint in the Western Defense Command helping to engineer the incarceration of Japanese Americans. But if he took a leave of absence from my law school to work in the Western Defense Command, and there ended up helping engineer that program, I would not fire him when he got back after the war. (It's worth noting, in this connection, that the Leflar Law Center, the home of the University of Arkansas School of Law, is named for Robert A. Leflar, a former dean who, as a government lawyer, helped to run the Jerome and Rohwer War Relocation Centers in Arkansas.) It strikes me as pretty easy to make the case for not hiring John C. Yoo -- and, it goes without saying, for not conferring on him the honor of a distinguished lectureship, as Canisius College very recently did. Crossing the line to firing him would be a fateful step.

Glimpses.

Mon, 14 Apr 2008 14:23:15 -0500

Somebody just pointed me to these excellent high-resolution photographs of scenes from the incarceration of Japanese Americans in World War II. I especially like the photos of the wall postings.

Some Thoughts About The Phrase "Concentration Camp"

Sun, 13 Apr 2008 15:38:28 -0500

Jennifer at Mixed Race America relates another episode in the seemingly endless debate over the use of the term "concentration camps" to describe what the U.S. government termed Japanese American "Relocation Centers" in World War II. This is not a new debate. Indeed, it began while the camps were still open. Remember that in Korematsu v. United States, decided in 1944, Justice Roberts called them "concentration camps," a phrase for which Justice Black took him to task. At the level of ordinary usage, Justice Roberts had the better of the argument; it was Justice Black who was getting an early start on revisionism. In ordinary conversation, everyone from FDR down to the detainees in the camps called them "concentration camps" back then. Here, for example is an excerpt from an article from the NY Times in January 1943 about plans to recruit soldiers out of the camps: But it's not enough for us today simply to point out that people in 1942 or 1943 called them "concentration camps"; we are using the words in 2008, and the phrase took on a different meaning when the horrors of the Nazi genocide became linked it. To the average American today, "concentration camp" principally means "confinement site for genocide." The camps for Japanese Americans were not confinement sites for genocide. I guess I can see why, in the eyes of a person like "Older American Historian" (referred to in the post at Mixed Race America), the term "concentration camp" might seem like a suspect effort to depict the camps as places even worse than they were. But that's not why scholars use the term "concentration camp." We use it chiefly for a different, and far better grounded, rhetorical reason: to defeat euphemism. The government clothed each step of the process of evicting and detaining Japanese Americans in sweet-sounding words of assistance: exile was "evacuation"; detention and scattering were "relocation." The camps were "relocation centers" in government parlance. These were all Orwell-speak. And everyone knew it; hence the ubiquitous "concentration camp" in day-to-day conversation. We have another purpose in using the term "concentration camp" -- to remind readers and listeners (or to bring to their attention, if they'd never thought about it before) of what the American and the Nazi camps actually had in common: the forced warehousing of a racially defined enemy of the state. Justice Frank Murphy saw this common thread in 1943, when he wrote (in Hirabayashi v. United States) of the "melancholy resemblance" that the U.S. program against Japanese Americans bore to the treatment of Jews in Europe. So there are definitely rhetorical reasons for using the term "concentration camp," but "Older American Historian" apparently mistook them for an effort to capture genocidal meaning from the Nazi Holocaust. The points are principally to deny a legacy of American euphemism, and secondarily to emphasize the racial scapegoating that characterized the confinement. None of this means that "concentration camp" is a term to be thrown about loosely. In my view, the term has become so laden with the connotation of genocide that scholars should not use it in speaking of or writing about the Japanese American experience without briefly explaining that the term is historically accurate, necessary to defeat euphemism, and not a claim of identity with the Nazis' camps in Europe. But properly explained, "concentration camp" strikes me as an accurate -- indeed, a necessary -- term for the Japanese American "relocation centers" of World War II.

Memo to McCain: Repealing the Alternative Minimum Tax Will Increase Federal Revenues . . . Duh!

Sat, 12 Apr 2008 11:57:01 -0500

It's tax time, and many Americans are again feeling the pinch of the Alternative Minimum Tax -- a tax calculation imposed long ago to insure that the wealthiest Americans paid taxes. Unfortunately, the AMT was not indexed to inflation, so over time, bracket creep brought it to the middle class. What's surprising to me is John McCain has not been on the stump demanding that Congress just eliminate the AMT. Yes, just repeal it. Why? Because, according to McCain, tax cuts increase federal revenues. That is, tax cuts pay for themselves and then some. (Yippee!) Supply-Side economic-types live and breath the truism that tax cuts actually increase growth in the economy and, hence, revenues to the Treasury. So how much easier could the answer be in solving the AMT crisis (or any crisis really)? Just cut the damn AMT out of the Internal Revenue Code and . . . bingo! . . . Americans will start making more money and the federal budget will be balanced. Isn't that right? Isn't that the way tax cuts have worked in America since McCain became one of those Reagan foot soldiers back in 1981? So why isn't the GOP demanding the repeal of the AMT on the ground that the damned tax-and-spend Democrat[ ] Party is once again in the way of progress? Here's a thought . . . maybe the GOP isn't demanding the AMT's repeal on Supply-Side grounds because the AMT is now a *middle-class* tax problem. It's not like the high-enders will reap the big rewards from its repeal. And if the high-enders aren't going to get oodles more money in their stockings at Christmas, then why bother? My point? That the GOP -- and John McCain -- is full of shit on taxes and tax cuts. Someone should call him on it . . . but I won't be holding my breath.

Click Through To Her Notes If You Want To Read About The Mute Parrot.

Thu, 10 Apr 2008 12:35:45 -0500

Think the life of a reporter for the NYTimes would be glamorous? Think again.

Pandora!

Wed, 09 Apr 2008 12:24:55 -0500

I know that I must be the third-from-last person in the universe to learn about Pandora Radio, but I'll mention it here just in case one of the other two might be reading. Utterly brilliant. Fabulous. I lack the words to describe what a great idea this thing is. You tell it which artists you like. It creates a "radio station" for you that features music that's similar to what you like. I gave it just a few hints, and it has just played for me, in succession, "Shot With His Own Gun" by Elvis Costello, "If Not for You" by Bob Dylan, and "Your Mother Should Know" by the Beatles. And now it's playing Nick Lowe's version of "I Knew the Bride (When She Used to Rock 'n Roll)". And it is often throwing in bands I don't know well, like Weezer and Nada Surf. And you can create multiple stations -- so I have a separate roots reggae and ska station that I can listen to when I'm in the mood for that. Damn! This is good stuff! Try it.

Tradition! (Sort of)

Fri, 04 Apr 2008 15:32:32 -0500

"I was really glad they put my mom in a bed right across from where you were working!"

Mon, 31 Mar 2008 13:44:02 -0500

When I used to live in the NY area, I loved looking at the "missed connections" ads in the Village Voice. They were such a great glimpse into tiny little slices of people's lives. Now, of course, there's craigslist, which does the same thing, only better. So ... ER docs at UNC, take note.