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Jones on Protesting NFL Players

Martha S. Jones, professor of history at Johns Hopkins University and SLH author, recently penned an op-ed in the Washington Post titled “Trump said protesting NFL players ‘shouldn’t be in this country.’ We should take him seriously.” In the piece, Professor Jones responds to President Trump’s remarks regarding protesting NFL players and considers the  historical context for his actions.  Jones is the author of Birthright Citizens: A History of Race and Rights in Antebellum America (forthcoming from Cambridge University Press, Summer 2018). You can read the full op-ed here, on the Washington Post website.

Kolla on the Writing Process and Links Between Projects

Professor Edward Kolla of Georgetown University Qatar discusses the inspiration for his next project and its ties to his recently published book (Sovereignty, International Law, and the French Revolution) in this third segment of our interview series. You can watch the interview in the video clip below and follow along with the lightly edited transcript that follows. Want to learn more about Professor Kolla’s work? Check out  interview installments one and two in the Studies in Legal History video series.

So, I would say the writing process for the book was challenging; it was the first time I’ve done anything like this and so it was a lot of work (but I enjoyed it, obviously). I’m now straight into my next project, which is a similar project in terms of the history of international law. It’s about the history of the passport.

This project is born of my love of travel. I’ve always loved to travel; I’m sure I was standing in a lineup somewhere, staring down at my passport, waiting to go through immigration and thought, you know, “what is the history behind this document? I should probably know the history behind this document.” It’s actually quite an elusive history. In that way, it’s similar to my first book because the way that popular sovereignty enters discourse about international law is not something that is proactively decided by states. The principle of popular sovereignty does not become a principle of international law because all countries get together and agree on it; revolutionaries start embracing these ideas, they apply them in certain diplomatic situations, and slowly over time it becomes a principle of international law. The history of the passport is also one of legal happenstance. All states never got together and agreed they needed passports and that passports needed to look a certain way. It’s, again, a story of historical development, so in that way the projects are very similar.

The other overlap between the projects is that the French Revolution was an important moment in the history of the passport. Up until the French Revolution, it was taken for granted that if you were carrying some kind of identity document when you’re traveling, the person carrying that document is the person for whom it was intended. It was only at the time of the French Revolution that Revolutionaries started thinking, “Oh no! People could be smuggling, or émigrés could be escaping from France.” So they actually started to write the description of the bearer of these documents on the documents themselves. So, not just hair color or eye color, but shape of nose, and size of forehead. That was really the first moment that these documents started to include information about who the bearer was and this is obviously the precursor to the photographs and biometric data that are used in passports today.

Martha Jones on Birthright Citizens

In this video, Professor Martha Jones of the University of Michigan discusses her book Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, Summer 2018). The video, courtesy of Michigan Law, provides an overview of the forthcoming book and its implications for thinking about citizenship in America. An edited transcription follows.

 

I’m finishing a book called Birthright Citizens, which is a look at race and citizenship in a somewhat unexplored period. That is, the period before the U.S. Civil War; the period before the amendment of the Constitution, with the 14th Amendment providing birthright citizenship for the first time in the United States. My case study is three African Americans, former slaves, and their descendants. All with a mind toward understanding how, as a nation, we grapple with people who occupy this in-between status–neither slaves, nor fully free citizens. How, in law, do we regard those people? Most often that story is told through a somewhat notorious US Supreme Court case called Dread Scott vs. Sandford, in which the court, through Roger Taney, declaims that no black person can be a citizen of the United States. It turns out that, while Taney was quite sure about his ideas, he really was just one volley in what was an extended debate about race and citizenship before the Civil War.

So, for me, the story begins in the eighteen-twenties with three African American activists themselves, who–through local courthouses, high court arguments, legislatures, and political conventions–again and again make the argument that they are citizens of the United States. Again and again, they make the argument that by virtue of birthright, military service, and their contributions to the economic prosperity of the nation, they should be citizens.

It’s an important chapter in part because it tells a new version of the Fourteenth Amendment, which was not merely a creature of the U.S. Senate, but actually came out of the activism of free African Americans themselves. 

Binyamin Blum Reviews Likhovski for Jotwell

In January 2018, Binyamin Blum reviewed Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017) for Jotwell. The review can be found on the Jotwell website and is also reproduced below. You can learn more about the book by watching the series of short clips Professor Likhovski recorded for SLH concerning his project. 

On Fiscal History: A Cultural History of Tax Law
Binyamin Blum

Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.”During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.

This election episode epitomizes the declining relationship among tax, civic identity, and citizenship,1 which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions.

Spanning most of the twentieth century, Likhovski’s book is divided into three parts. Part I analyzes the transition from arbitrary and corrupt Ottoman taxation, extracted primarily by tax farmers (for-profit non-state intermediaries responsible for tax assessment and collection), towards a more rational taxation system, levied directly by a centralized Ottoman and later British state. With more accurate and detailed information about their subjects, these bureaucratic states were able to assess and levy taxes more equitably and efficiently. Part II, “The Ascendancy of Social Norms,” explores the final years of the British Mandate and the first years of Israeli statehood, an era when reliance on community norms to encourage compliance thrived. Drawing on the tradition of community taxes in the Jewish Diaspora and on Zionist civic republican ideology, Palestine’s Jewish inhabitants began introducing an array of self-imposed, “voluntary compulsory” taxes to support various causes: self-defense, unemployment benefits, public works, and the rescue of European Jewry, to name a few.

Though some organizations such as the Kartell Jüdischer Verbindungen, an organization of German-Zionist academics in Palestine, sought to impose these taxes through legal and quasi-legal mechanisms, taxes were enforced primarily through social networks. (P. 122.) The Jewish Agency encouraged payment through various media, such as literature and art propaganda, but without any formal backing (and despite certain reservations) of state officials and state law. Even resort to shaming through mechanisms such as “evader lists” was rare. Still, these taxes generated more than double the revenue collected by the colonial state, even after the British introduced an income tax in 1941. This civic republican ethos carried into the first decades of Israeli statehood. By creating a strong sense of community, the new “intimate fiscal state” successfully instilled a sense of duty, loyalty, and trust. It conveyed to its citizens the importance of paying for the establishment and maintenance of “their” state.

But this era was short-lived, lasting only two decades: As Likhovski explains in Part III, a convergence of related social, political, and cultural factors, such as an abating security threat, greater social heterogeneity, and (perhaps most importantly) the waning of collectivism, led to the decline of social norms concerning tax compliance. This social transformation contributed to the rising influence of tax professionals, namely, accountants and lawyers. Likhovski carefully and skillfully analyzes the interplay between their increasing involvement and the transformation of tax norms, which reflected—and were designed to counter—their involvement.

Likhovski argues that the connection between taxes and citizenship became even more tenuous as these experts became more deeply involved as intermediaries and policy designers, and as they began to reorient their duties from the state towards their clients—the individual tax-payers. Initially viewing their charge as ensuring that “tax laws be implemented justly and equally,” (P. 233) accountants fulfilled an educational role and enjoyed the trust of the state and taxpayer alike. But by the 1960s their statist rhetoric gave way to a more client-friendly approach. They also began openly criticizing tax policy, advocating tax simplification to eliminate state bureaucracy and to secure the interests of individuals, investors, and corporations. The legal profession followed a similar pattern: lawyers, who initially fit rather uncomfortably within the collectivist, industrial Zionist ethos, managed to establish their position in the Israeli collective as promoters of respect for the law and for the state. (P. 240.) Yet by the late 1960s, they too increasingly began perceiving their duty as primarily shielding clients from tax responsibilities rather than enforcing the state’s interests. Finally, during this same period, Israeli economists reexamined their fundamental assumptions regarding what may be called the “Homo Israelicus.” Initially convinced of Zionist exceptionalism, which placed the collective ahead of individual interest, by the 1970s Israeli economists were designing tax policy in a more scientific, universalist fashion. They reoriented their perspective from statist to individualist. This growing involvement of experts transformed tax legal norms in Israel, which became more flexible and intrusive to counter non-compliance and overly creative professional “tax planning.”

Some readers might criticize the disproportionate attention the book pays to Palestine and Israel’s Jewish community. Though Arab subjects and citizens do receive some consideration, the book focuses primarily on the Jewish community (and on Zionist Jews in particular) even though Palestine’s Arab population was significantly larger during most of the period analyzed. Still, given Likhovski’s inquiry, his selection is judicious. Though one may glean useful insights regarding the connection between tax and civic identity by thoroughly examining “outsider” groups, it is through the transformation in the social norms of insiders that this social phenomenon—namely, the weakening of the relationship between tax and civic identity—is best explored. It is within this group that one may observe the greatest ebb and flow in social norms concerning tax compliance, from voluntary to compliant to cautiously avoidant.

Though Likhovski’s account is, as he acknowledges, primarily top-down, he draws on a broad array of sources to depict a vivid social and cultural history of taxation. He relies not only on judicial decisions and legislative histories but also on propaganda films, posters, and literature produced by Israeli taxation authorities and Israel’s Tax Museum, and on children’s books and satire. The result is a highly entertaining read. Likhovski once again demonstrates his outstanding aptitude for storytelling that combines a keen eye for unusual details with broad theoretical insights. Though Likhovski’s book focuses on Palestine/Israel, it offers broader insights concerning fiscal citizenship and how tax evasion has transformed over time from vice to virtue. As one visitor to Israel’s Tax Museum noted: “I do not believe that one [could] find such a subject, that is really so dry, exciting, but I did.” (P. 175.) I think most readers will agree.

  1. Or what Lawrence Zelenak has termed “fiscal citizenship.” See Lawrence Zelenak, Learning to Love Form 1040: Two Cheers for the Return-Based Mass Income Tax (2013). []

Binyamin Blum, On Fiscal Citizenship: A Cultural History of Tax Law, JOTWELL (January 11, 2018) (reviewing Assaf Likhovski, Tax Law and Social Norms in Mandatory Palestine and Israel (2017)), https://legalhist.jotwell.com/fiscal-citizenship-cultural-history-tax-law/.

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. If you missed the first or second clips in this interview series, you can catch up on the SLH website.

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.

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:

“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

“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

“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

Reviews:

George Rutherglen reviewed Secession on Trial in December 2017 for the Virginia Law Review (v. 103, pp 72-93). You can read the review online here.

D. Schultz reviewed Secession on Trial for Choice Reviews v. 55 no. 7 (March 2018).

Henry Cohen reviewed the book in the May 2018 The Federal Lawyer. 

Peter Charles Hoffer reviewed the book in the Spring 2018 Civil War Book Review. 

Al Trophy reviewed the book for The Journal of the Civil War Era in September 2018.

 

About the Author:

Cynthia Nicoletti is a legal historian and professor of law at the University of Virginia School of Law. She has been the recipient of a number of awards and fellowships, including the William Nelson Cromwell Prize for the best dissertation in legal history, awarded by the American Society for Legal History in 2011. Her book, Secession on Trial: The Treason Prosecution of Jefferson Davis, was published in October 2017. You can read Professor Nicoletti’s faculty profile on the Virginia Law website, accessible here.

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

Reviews:

Joshua Meeks reviewed Kolla’s book for H-Net in February 2018.
Richard Harding reviewed Sovereignty, International Law, and the French Revolution in H-France Review v. 18 (May 2018) no. 116.

About the Author:

Edward J. Kolla is an Associate Professor at Georgetown University Qatar. His areas of expertise are European international relations, political cultural, and intellectual history–and especially the history of international law. Professor Kolla has previously held major fellowships from the Institute for Historical Studies at the University of Texas at Austin, the Camargo Foundation, and the French government. His first book, Sovereignty, International Law, and the French Revolution (Cambridge University Press, 2017) examines the impact and effect of the French Revolution on international law, specifically tracing the emergence of popular sovereignty as a justification for claims to territory. He is currently working on a project that looks at the history of the passport.

You can watch Professor Kolla discuss his book and upcoming project as part of the SLH video series here.

An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson

Studies in Legal History (SLH) is pleased to share with our readers an exchange between Robert W. Gordon and William Nelson on critical legal studies. This exchange, of interest to legal historians, was not included in SLH’s publication of Gordon’s collected essays because of its nature as a dialogue between the two scholars, rather than a free-standing work by Gordon. However, we recognized the import of this interchange as it intersects with Gordon’s work and issues of great moment to the field, so we are making it available here (click the link below to read the exchange as a PDF). You can also read more about Gordon’s recent publication with the series, Taming the Past: Essays on Law and History and History in Law (Cambridge University Press, 2017) here.

Gordon-Nelson Exchange-1