Thursday, September 29, 2011

The Guilty

by Peter E. Gordon

New Republic

September 29, 2011

This past April marked the fiftieth anniversary of the trial of Adolf Eichmann. Captured in 1960 by the Mossad in Buenos Aires, where he had been living with his family under an assumed name, the former high-ranking SS officer and head of the Gestapo’s Department for Jewish Affairs was flown to Jerusalem, where he stood trial in an Israeli court for his pivotal role in both the design and the implementation of the Final Solution. By mid-August, Eichmann had been sentenced to death. He died by hanging in Ramle Prison in 1962, and it was decided to scatter his ashes at sea to prevent neo-Nazi efforts at commemoration.

The trial represented a true watershed in the postwar struggle to come to terms with the legacy of Nazism and the Holocaust. This anniversary thus serves as an appropriate occasion for assessing its long-term significance. The historian Deborah Lipstadt is an interesting person for the task. Although she is well-known for her studies of the American press during the Holocaust and for her comprehensive indictment of post-Holocaust revisionism, she is surely most famous for her courageous appearance in a British court to fend off charges of libel brought by the Holocaust-revisionist David Irving (an experience that she captured in full legal detail in her book History on Trial in 2005).

Lipstadt is hardly a bashful writer, and it is chiefly her sense of personal mission that distinguishes her narrative of the Eichmann trial. Like many of the works that have appeared in the ‘Jewish Encounters’ series from Schocken and Nextbook, Lipstadt’s book combines a familiar genre of historical summation with a more unusual species of personal and historical reflection. It is a serviceable summary of the events and the major themes of the trial itself. But readers already familiar with this story will not find much to surprise them in Lipstadt’s narrative. More interesting are Lipstadt’s remarks on Hannah Arendt, whose controversial interpretation of the trial is subjected – not surprisingly -- to a severe dismantling. But what will grab the reader’s attention most of all is the unusual way Lipstadt interweaves the narrative of the Eichmann trial with more speculative remarks on its significance in relation to revisionism.

It is worth pondering why a single trial should have had the impact it did. After all, the Eichmann trial was hardly the first courtroom prosecution of former Nazis. By the end of the 1940s, the series of trials carried out by the allied military tribunal at Nuremberg had issued nearly one hundred and fifty guilty verdicts. Lesser-known trials conducted by personnel of the United States military at the former Dachau concentration camps led to an even greater number of guilty verdicts. But the Eichmann trial was different in several ways. First and foremost, it was the trial of a single man rather than a crowd of men. In our own time, especially after the various scandals regarding the past crimes of erstwhile Nazis and collaborators, it is too easy to forget how stunning it must have seemed to witness a trial dedicated to the prosecution of a single individual. The sheer scale of Nazi war-crimes often tempts historians to philosophize in grand ways about the impossibility of representation. But when the isolated war-criminal is sitting in the courtroom in a glass box, some (though only some) of the difficulties of imagining human depravity are removed.

                            

Wednesday, September 28, 2011

The Myth of Judicial Activism

by Clark Neily

Wall Street Journal

September 28, 2011

For decades, politicians and the public have decried "judicial activism." Conservatives denounced the Supreme Court as "activist" when it allowed Guantanamo detainees access to federal courts in Boumedienne v. Bush, while liberals did the same when the court struck down limits on corporate political speech in Citizens United.

But is it true that there are a lot of judges making law instead of enforcing it? According to Government Unchecked, a new report from the Institute for Justice's Center for Judicial Engagement, the answer is emphatically "No."

If lawmaking were a sport, how often would we expect politicians to put the ball in the constitutional basket versus putting up constitutional bricks? In principle, the Supreme Court's strike-down rate should equal the rate that the other branches of government exceed their constitutional authority. Given how often it is accused of activism, one might think the Supreme Court's strike-down rate must be off the charts. In fact, the opposite is true.

Over the 50-year period from 1954 to 2003, Congress enacted 16,015 laws, of which the Supreme Court struck down 104—just two-thirds of 1%. The court struck down an even smaller proportion of federal administrative regulations—about 0.5%—and a still smaller proportion of state laws: 455 out of one million laws passed, or less than one-twentieth of 1%.

More

Read the Report (PDF)

Saturday, September 24, 2011

Geof Stone Addresses First-Year Class

by Geoffrey Stone

University of Chicago Law School
Remarks for the Entering Students Dinner

September 23, 2011

When Dean Schill first invited me to speak this evening, I turned instinctively to memories of my own Entering Students Dinner . . . 43 years ago.

I vividly recall that evening, in this very room. Phil Neal was the Dean, I sat over there (point), at my table were, among others, my still very good friends Barry Alberts, Bart Lee, and Judy Mears (one of the very few women in my class), and the speaker was Grant Gilmore, one of the most distinguished legal scholars of his generation.

But to my surprise, when I thought back to Professor Gilmore speech, I found no memories. I drew a total blank. I had no recollection whatever of what he said, or why.

After reflecting on this for several days, I came to the reluctant and depressing conclusion that such is the likely, if not inevitable, fate of most talks on these sorts of occasions. Students are too distracted, too anxious, too eager to get started, and too curious about one another to hear anything we say on an occasion such as this.

With that rather dreary insight in mind, I decided to scale down my aspirations. If I cannot leave you this evening marked indelibly with some profound wisdom concerning the role of law in American society, then perhaps I can at least offer you something more modest to help you in the days immediately ahead.

More

Sunday, September 18, 2011

Our Progressive Constitution

by Geoffrey R. Stone

Huffington Post

September 17, 2011

Today is Constitution Day. It is a day to reflect, at least for a moment, on the American Constitution and how it has helped to shape our nation over more than two centuries. In simplest form, of course, the Constitution sets forth the rules of governance. It stipulates that there shall be one President, two Houses of Congress, the powers of the national government, limitations on the powers of the state and national governments, the minimum age of the President (35) and so on. In this simple sense, the Constitution establishes the rules of the game.

More fundamentally, however, the Constitution has served as the vehicle through which generations of Americans have made and remade their nation. When one steps back, as one should on Constitution Day, and considers the most profound changes in our society since 1789, it is easy to see that, by any reasonable measure, the Constitution has served in the long run as a progressive document that has enabled us to protect the rights, liberties and well-being of our people.

The original Constitution did not even have a Bill of Rights. That was added soon after ratification of the Constitution to ensure that the new national government would not abridge the freedom of speech or prohibit the free exercise of religion; that it would not engage in unreasonable searches and seizures or inflict cruel and unusual punishment; that it would not deprive people of life, liberty or property without due process of law or convict people of crimes without honoring their rights to a jury trial, to the assistance of counsel, and to present their own witnesses and to confront the witnesses against them.

More

Thursday, September 8, 2011

Monday, September 5, 2011

Court to Give Bundestag Bigger Say in Bailouts

Spiegel
September 5, 2011

On Wednesday, Germany's highest court will announce its ruling on a legal challenge against last year's Greek bailout. It is expected to strengthen the role of the German parliament in future euro bailouts. But German Finance Minister Wolfgang Schäuble has warned that the move could hamper the rescue fund's ability to act.


On Wednesday, eight German Federal Constitutional Court judges will announce their ruling on whether the German contributions to the first Greek bailout in 2010 and to the euro rescue fund were lawful, following a legal challenge brought last year. But they already made up their minds some time ago. Ever since the public hearing on the case in July, it is seen as certain that they will demand that the German parliament be substantially involved in all further rescue operations.

It was "partly accidental, partly intentional" that the date of the ruling, on Sept. 7, comes just a few weeks before the parliamentary vote on the latest measures to stabilize the single currency, the president of the Constitutional Court, Andreas Vosskuhle, said with a smile during a book presentation in Berlin last week.

More