All posts by Kelsey Salvesen

Nicoletti on the Treason Prosecution of Jefferson Davis

Cynthia Nicoletti, Professor of Law and History at the University of Virginia, recently sat down to discuss her latest book, Secession on Trial: The Treason Prosecution of Jefferson Davis (Cambridge University Press, 2017). In the clip below, she describes the fraught decision whether or not to prosecute Davis for treason, and the broader constitutional implications of the eventual decision. A lightly edited transcript follows.

I am Cynthia Nicoletti. I am a Professor of Law and a Professor of History at the University of Virginia. My new book is Secession on Trial: the Treason Prosecution of Jefferson Davis. One of the things that I argue in this book is that Davis’ treason trial is going to implicate the biggest constitutional question of the Civil War, which is the constitutionality of secession. One of the reasons that he’s not tried—the primary reason that he is not tried—is that the government is quite worried about the prospect of Davis’ acquittal (or, at least, their failure to convict him). They’re worried that Davis’ acquittal might provide a backdoor vindication of the right of secession, which is precisely what they are not hoping for.

There are two things that everybody knows about the legal history of the Civil War: everybody knows that the Civil War settled the question of secession’s constitutionality in favor of the permanency of the union. And everybody knows that the Civil War ended slavery. So, what the book really does, is it argues against– or complicates–one of the basic things that we know about the legal history of the Civil War. What I’m trying to show in the book is how fraught this question of the war settling the constitutionality of secession in the Union’s favor really was.

It was very important to me in writing this book that I treated this question as an open question, basically because I think that there wasn’t a clear answer as to whether or not the Constitution allowed secession. I want to bring the reader back into this time period where there hadn’t been 150 years where everybody clearly understood that secession was unconstitutional. What I’ve heard in general is that if only we had prosecuted Robert E. Lee and other Confederates for treason in the aftermath of the war, we wouldn’t be dealing with the specter of confederate statues and celebratory commemoration of Confederates. One thing that I hope that this book does, is that it might push against the easiness of such a narrative, because one of the things that the book talks about is how difficult it was to get treason convictions against Confederates.

 

Note: this video comes courtesy of UVA Law Communications. Any media relations inquiries can be sent to comm@law.virginia.edu.

Likhovski on His Writing Process

Sometimes the book you set out to write isn’t the book you end up with. Listen as SLH series author Professor Assaf Likhovski of Tel Aviv University discusses the process of writing his latest book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017). A lightly edited transcription follows.

It took me more than a decade to write this book, unfortunately, and I must say that I didn’t intend to write the type of book that ultimately was published. When I began thinking about this book, I was thinking it was something completely different; I’m a legal historian, but I also teach the basic tax course at my home institution, Tel Aviv University. When I was teaching tax cases, I felt very frustrated because I could tell my students about the doctrinal aspects of the cases, but I didn’t know anything about the political, cultural, or economic context.

There were all these cases that I really wanted to know more about, among them an important tax-avoidance case called Mefi that was decided by the Israeli Supreme Court in 1967, and there was nothing about the historical context of this case. But, there was a model that I could use; there was a legal historian Robert B. Stevens, who wrote a book in the 1970s about the British House of Lords. It’s called Law and Politics: the House of Lords as a Judicial Body. It examines all sorts of cases, among them tax cases, placing them in the political, economic, and cultural context of their time. And I thought that I could use the approach that Stevens’ book advocates in analyzing cases such as Mefi.

And that is what I did; actually, the last chapter of the book—chapter 6—was the first chapter that I actually wrote. It’s an analysis of the history of this specific tax-avoidance case and its role in Israeli tax law in the transition from a pro-taxpayer, to a pro-government approach to tax-avoidance. After I wrote an article about the Murphy case, I also wrote an article about British tax avoidance cases in the 1930s and another article about American tax avoidance cases in the 1930s; my idea was to write a comparative legal history of tax avoidance cases in Israel, the UK, and the United States. But, when I started enlarging the Israeli part of the book, looking more deeply into the history of tax avoidance, tax evasion, and economic and social and cultural history, I found so many materials that ultimately I ended up with a book which is only focused on the Israeli case. So, it didn’t come out as a comparative or transnational book; it’s merely focused on one specific tax jurisdiction, although I think that the story that I tell is relevant to other jurisdictions too.

Likhovski on “One of the Best Parts of Writing the Book”–His Sources

In a second clip from our 3-part interview,  series author Professor Assaf Likhovski describes the joy of discovering unexpected sources, and how those same sources fundamentally shaped his project. You can read more about Professor Likhovski’s book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017), here. If you missed part one of the interview–in which Professor Likhovski provides an overview of his book–you can catch up here. A transcription of the interview, lightly edited for clarity, follows.

When I began writing my book, I used rather conventional sources, such as case law and archival documents found in governmental archives (such as the British National Archives or the Israel State Archives). But, as time progressed, I discovered that I had more interest in writing the social history of tax compliance, rather than just focusing on the official, top-down governmental history. And so I moved to really exciting sources–such as propaganda posters, tax movies, children’s poems, and literature dealing with tax compliance and tax non-compliance. And these sources were found in archives which were not conventional archives. For example, in the book I discuss a really fascinating institution, called the Tax Museum, which exists in Jerusalem. And this is a museum that displays objects related to taxation, but also contains a small archive with fascinating visual materials related to the history of tax compliance in Israel.

I really enjoyed actually discovering these materials which not many people—I think nobody before me—has thought relevant for the writing of tax history in Israel. And it was a great experience doing the research for the project; it was actually one of the best parts of writing the book.

There were some sources that were missing; for example, in chapter four of my book, I discuss the history of tax compliance in the Arab sector of Israeli society in the 1950s, and it was very difficult to find sources discussing tax compliance among Arabs in that period. I used some sources from the state comptroller’s office, but I could not come across many relevant sources, apart from official documents about the Arabs–which are obviously biased because they represent the point of view of the government, rather than Arab taxpayers. So this is a part of my book that I feel could have been better had I been able to use more sources that I could not find.

Likhovski on Tax Law and Social Norms in Mandatory Palestine and Israel

Assaf Likhovski, Professor of Law and Legal History at Tel Aviv University, was kind enough to sit down recently to discuss his recent book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017). In this clip, he gives a short overview of the book and its importance both to the history of tax compliance and to contemporary events. An edited transcription follows.

My book, Tax Law and Social Norms in Mandatory Palestine and Israel, tells the story of what I call the intimate fiscal state. This is a type of state that attempted to use social norms, rather than legal ones, to induce compliance. In my book I show how this type of state rose, and later declined, in one specific location: mandatory Palestine and the state of Israel in the middle decades of the twentieth century. My story is focused on Israel, but I think it actually tells a story which is applicable to other tax jurisdictions in the middle decades of the twentieth century. Now, the story that I tell is obviously of interest to tax historians and to legal historians, but I think it also has some contemporary relevance to people interested in the current global crisis that we are witnessing these very days. A large factor in this crisis is a decline of tax compliance by wealthy individuals and by corporations, for example due to the proliferation of offshore tax havens. This fiscal crisis leads to a political crisis because it undermines the trust that ordinary citizens have in the state and in their fellow taxpayers, and it leads to political movements, such as populist nationalism, that arise out of this crisis. So I think going back to the past and looking at the way in which states in the past have tried to induce compliance is actually relevant to people interested, not in history, but in contemporary politics. Israeli tax compliance is far from perfect, but I think the story of how the Israeli state attempted to induce tax compliance in the mid-twentieth century is actually very relevant even for people interested in the present and not in the past.

Reviews Roll In For McKinley’s Fractional Freedoms

Professor Michelle McKinley’s recent publication with Studies in Legal History, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, 2016) continues to garner favorable reviews:

You can read Susan Hogue Negrete’s October 2017 review of Fractional Freedoms in H-LatAm here.

Lea VanderVelde’s November 2017 review of Fractional Freedoms in Law and History Review Volume 35, Issue 4 is available here.

H-Law published Lyman Johnson’s review of Fractional Freedoms in December 2017. You can read that review here.

Paul Garfinkel Honored with the Helen and Howard R. Marraro Prize

Series author Paul Garfinkel has been honored by the American Historical Association’s Helen and Howard R. Marraro Prize for 2017 for his Criminal Law in Liberal and Fascist Italy (Cambridge University Press, 2016). The award recognizes outstanding work in Italian history or Italian-American relations. Garfinkel’s book is the first comprehensive history of the development of penal policy between the period of Italian unification and the rise of fascism, offering an important revisionist account of the respective roles of liberal and Lombrosian ‘positivist’ jurists in the development of the new criminal codes.

The American Society of Legal History Annual Meeting 2017

The American Society of Legal History will hold its annual meeting in Las Vegas on October 26th, 27th, and 28th. SLH is particularly excited about the Friday afternoon “author meets reader” session on Michelle McKinley’s book Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600–1700. Fractional Freedoms, which was awarded the 2017 Judy Ewell Award for the Best Publication in Women’s History, presented by the Rocky Mountain Council for Latin American Studies (RMCLAS), explores how thousands of slaves in colonial Peru were able to secure their freedom and keep their families intact through the use of legal mechanisms. Through extensive archival research, Professor McKinley excavated the experiences of enslaved women whose historical footprint is barely visible in the official record. In doing so she complicates the way we think about life under slavery and demonstrates the degree to which slaves were able to exercise their own agency, despite being ensnared by the Atlantic slave trade.

Commenting on Professor McKinley’s book is a panel of experts on slavery, race, and Latin American Law: Victor Uribe of Florida International University, Kelly Kennington of Auburn University, and Carolina Gonzalez of the University of Chile. The session will take place Friday afternoon at 2:15 in Room 102 of UNLV’s Boyd School of Law.

Secession on Trial: The Treason Prosecution of Jefferson Davis

Cynthia Nicoletti. Cambridge University Press (October 2017). Available to order via Cambridge University Press or Amazon.

This book focuses on the post-Civil War treason prosecution of Confederate President Jefferson Davis, which was seen as a test case on the major question that animated the Civil War: the constitutionality of secession. The case never went to trial because it threatened to undercut the meaning and significance of Union victory. Cynthia Nicoletti describes the interactions of the lawyers who worked on both sides of the Davis case – who saw its potential to disrupt the verdict of the battlefield against secession. In the aftermath of the Civil War, Americans engaged in a wide-ranging debate over the legitimacy and effectiveness of war as a method of legal adjudication. Instead of risking the ‘wrong’ outcome in the highly volatile Davis case, the Supreme Court took the opportunity to pronounce secession unconstitutional in Texas v. White (1869).
Endorsements:

 

Advance praise: ‘The genius of Nicoletti’s work is that the Davis case provides a window into the persistent belief in American minds (even in the North) that secession was possible. That belief made the trial and execution of Davis that much more problematic than scholars have seen. Nicoletti backs up these claims with unsurpassed knowledge of legal proceedings and impressive research.’ William Blair, Director of Richard Civil War Era Center and Walter L. and Helen P. Ferree Professor, Penn State University, and author of With Malice Toward Some: Treason and Loyalty in the Civil War Era

Advance praise: ‘Cynthia Nicoletti tackles a hugely important topic: the post-Civil War resolution of the legal status of the Confederacy. The prosecution of Jefferson Davis squarely posed the question whether the Confederacy had become a separate country by seceding. If it had, southerners insisted there could be no treason. If it had not, many of the war powers asserted by the North would be called into question. Nicoletti brilliantly tracks the efforts of jurists and politicians to work through momentous questions about the American constitutional order.’ John Fabian Witt, Yale Law School, Connecticut, and author of Lincoln’s Code: The Laws of War in American History

Advance praise: ‘Nicoletti’s beautifully written book studies a crucially important trial that never happened. She situates Davis’s treason case in the wider context of public discussions about how to treat officials of the former Confederacy and what to do about secession. Law, as Nicoletti argues, was not separate from other aspects of life in this period; it was deeply implicated within them and, thus, inseparable from them.’ Laura Edwards, Peabody Family Professor of History, Duke University, North Carolina and author of A Legal History of the Civil War and Reconstruction: A Nation of Rights

Sovereignty, International Law, and the French Revolution

Edward James Kolla. Cambridge University Press, October 2017. Available via Cambridge University Press and Amazon.

The advent of the principle of popular sovereignty during the French Revolution inspired an unintended but momentous change in international law. Edward James Kolla explains that between 1789 and 1799, the idea that peoples ought to determine their fates in international affairs, just as they were taking power domestically in France, inspired a series of new and interconnected claims to territory. Drawing on case studies from Avignon, Belgium, the Rhineland, the Netherlands, Switzerland, and Italy, Kolla traces how French revolutionary diplomats and leaders gradually applied principles derived from new domestic political philosophy and law to the international stage. Instead of obtaining land via dynastic inheritance or conquest in war, the will of the people would now determine the title and status of territory. However, the principle of popular sovereignty also opened up new justifications for aggressive conquest, and this history foreshadowed some of the most controversial questions in international relations today.
Endorsements:

When the right of peoples to self-determination creates an international law immediately to the advantage of the French Revolution and ultimately for our present world, a brilliant paradoxical book explaining how French Revolution was a key experiment for our modernity.
-Jean-Clément Martin, Université Paris 1 Sorbonne

Kolla’s bold and thought-provoking study transforms our view of the French Revolution’s importance for international law. Kolla persuasively argues for positive advances, rooted in the doctrine of popularity sovereignty, and for an indirect “ripple” effect which provided an important foundation for the decisive nineteenth-century advance in international law.
-Professor Hamish Scott, Oxford University

Kolla makes a major contribution towards the development of modern international law. By combining political narratives with legal analysis he sheds new light on the impact of revolutionary ideas, in particular with relation to popular sovereignty, on international relations and their legal organization.
-Randall C. H. Lessafer, Tilburg Law School

In this brilliant and thoughtful study of international law during the French Revolution, Kolla presents a fascinating history of the principle of national self-determination, as it developed over a century before Woodrow Wilson brought this idea to Versailles. Kolla’s book will be of great interest to historians of modern Europe, political theorists, and legal scholars.
-Dan Edelstein, Stanford University