| Book Reviews |

Resurgence of the Warfare State: ernment. Certainly, these statutes and the Washington Post on Nov. 4, 2001, The Crisis Since 9/11 the supporting court decisions created advocating reinstating the draft in order the dangerous notion prevalent today: to fight the war on terror. Higgs op- By Robert Higgs that civil liberties may be sacrificed in a poses the draft on libertarian grounds. The Independent Institute, Oakland, CA, 2005. time of war (whether the war is real or These two essays are so limited in their 252 pages, $12.95. imagined). If you need any further per- focus that, unless you have read the suading on this point, Higgs painfully underlying article, you can safely skip reminds us that approximately 160,000 these two short pieces. Re v i e w e d b y Ca r o l A. Si g m o n d Japanese-Americans were interned dur- The fourth section discusses the ing World War II, none of whom were way in which the unhealthy relation- “Cry ‘Havoc,’ and let slip the dogs guilty of anything except being of Japa- ship of the military-industrial complex of war”—a line from Shakespeare’s Ju- nese extraction. That these acts were with the Department of Defense results lius Caesar—sums up the disturbing approved of by contemporary society in powerful imperatives favoring war premise of Resurgence of the Warfare and sustained by the courts at that time (real or imagined). The title of one es- State, which is that the so-called war demonstrates the value of war to any say says it all: “Suppose You Wanted on terror is less about battling terror- government that seeks to restrain pub- to Have a Permanent War.” In this sec- ism than about government augment- lic discourse, individual freedom, and tion, Higgs makes three basic points. ing its domestic power at the expense personal privacy. (1) By focusing public attention on a of individual liberty and personal pri- There is a sometimes implicit, some- common enemy, war blurs the social, vacy. Most unsettling is that the book’s times overt, theme that hangs over the class, and political differences within implicit thesis—that throwing out the book—the war on terror is a fraud. society; for example, Higgs notes, the bums in the present administration will According to Higgs, terror by its very United States’ battle with communism do nothing to stop relentless govern- nature is ad hoc, and it is not possi- was a unifying force in this country for ment intrusion into our privacy and ble to wage war against an idea or a 50 years. (2) Government uses periodic liberty—is true. small group in pursuit of an idea, even “crises” attributed to the common en- Resurgence of the Warfare State is if that pursuit is by suicide bombings. emy to maintain a level of fear among a collection of 47 writings by Robert A war requires more—a nation, a ter- the public that allows the government Higgs (assisted by occasional interview- ritory, organized armies, and the like. to continue its power grab at the ex- ers and co-authors) produced between A war on terror, Higgs writes, is by its pense of the people. One needs to Sept. 28, 2001, and Dec. 21, 2004, in- nature a war against individual thought look no further than the Bush admin- cluding interviews, essays, columns, and liberty (and not only that of people istration’s claims of a pending catastro- and a poem. The book is organized by overseas). Higgs’ point is well taken: if phe to distract opponents, such as the topic into eight sections, with the writ- the Bush administration had chosen the bogus claims of the threat of a terrorist ings in chronological order within each right battle, it might have called it the attack that it made just as John Kerry section. Albeit occasionally repetitious, “war against Al Qaeda,” but the Bush began to climb in the 2004 presidential the book works. administration abandoned the hunt for polls. (3) There is always a group that In the first section, titled “Crisis Bin Laden in order to attack Iraq. is financially interested in permanent and Leviathan, Again” (alluding to the The second section of the book, war. As an example, Higgs cites Vice author’s earlier book, Crisis and Le- “Airport (In)Security,” presents a fairly President Dick Cheney’s relationship viathan), Higgs, in his first interview conventional but well-reasoned ar- with Halliburton or the love of public after 9/11, introduces the book’s the- gument about the ineffectiveness of spending by members of Congress in sis: 20th- and 21st-century U.S. gov- government, when compared to pri- their respective districts. ernment leadership has used—and vate enterprise, in delivering the mail For those who do not approve of even sought out—crises in order to or making purchases. But Higgs’ basic the current President, the fifth section expand its powers. Higgs reminds point—that the government is com- of the book is a delight. Higgs consid- us that President Woodrow , pletely ineffective when it comes to ers whether George W. Bush is “un- with his own versions of the current airport security—has been proved by hinged,” is pursuing a “faith-based for- PATRIOT Act—the Espionage Act of recent reports from the Transportation eign policy,” or has a “crackpot” view 1917 and the Act of 1918—de- Safety Administration that its investiga- of reality. Some will find the author’s finitively put government power ahead tors were able to move bomb-making assessments amusing and others will of public discourse. These statutes frank- parts through airport screening. find them offensive, but Higgs’ real ly sought to stop all criticism of World The third section deals with the pos- point is that Bush’s war on terror and War I and resulted in the conviction of sible revival of the Selective Service and war in Iraq are of a piece with Presi- some 2,000 people who were guilty of the military draft. In one essay, Higgs dent John F. Kennedy’s Bay of Pigs nothing more than criticizing the war, reacts to an opinion piece by Charles disaster and the Cuban Missile Crisis: the draft, the armed forces, or the gov- Moskos and Paul Glastris, published in both resulted from power-hungry nov-

60 | The Federal Lawyer | March/April 2008 ice leaders overdosing on testosterone therefore, this administration has been networks, transportation systems, utili- and using contrived crises and for- no different from any other. ties, and other vital parts of the nation’s eign enemies for domestic purposes. Resurgence of the Warfare State infrastructure. Viewed through Higgs’ lens, I can visu- is intellectually stimulating, and— It is thus fitting that Michael Sheetz, alize the current front-runners for the whether you agree with its thesis or the author of Computer Forensics: An 2008 Democratic and Republican presi- not—you will be challenged by Higgs’ Essential Guide for Accountants, Law- dential nominations making the same meticulous research and compelling yers, and Managers, has a law en- mistakes. Higgs’ point is that the use logic. When you finish the book you forcement background as well as a of crises and foreign enemies is a prac- will be reminded, as I was, of Marc law degree. A frequent contributor to tice that is common to both political Antony’s call: “Cry ‘Havoc,’ and let slip magazines such as Law and Order, Po- parties, and both parties pose the same the dogs of war.” TFL lice Chief, and Police Officer Quarterly, danger to our privacy and freedom. Sheetz has a special interest in com- The sixth section, “Road to War,” Carol A. Sigmond is a partner at Dun- puter crime and served as the sergeant deals with the run-up to the war in nington, Bartholow & Miller, New York, of an investigative team in Ft. Stewart, Iraq. In the period before the war, NY, and is a member of the New York Ga., during Operation Desert Storm in Higgs was generally critical of the idea County Lawyers’ Board of Directors 1991. of a war with Iraq. In hindsight, Higgs and of the New York State Bar House The National Institute of Justice at had it right: Iraq did not pose a threat of Delegates. the Department of Justice also has an to the United States; therefore the war interest in computer crime. In April was unjustified. He makes the point Computer Forensics: An Essential 2004, the institute issued an outstand- best in his parody, “Nuke France.” As Guide for Accountants, Lawyers, ing report on the subject: “Forensic Ex- readers may recall, France was a vigor- and Managers amination of Digital Evidence: A Guide ous opponent of the Iraq war, and an for Law Enforcement.” Sheetz’s book anti-French hysteria arose in this coun- By Michael Sheetz measures up to the standards of this re- try. Against this backdrop, Higgs paro- John Wiley & Sons Inc., Hoboken, NJ, 2007. 152 port and delivers much useful informa- dies the administration’s “logic” for the pages, $50.00. tion in fewer than 150 pages of text. war against Iraq by arguing that France, For novices to the field, Computer with its large number of nuclear weap- Forensics covers the essential stages of ons and its proven delivery system as Re v i e w e d b y He i d i Bo g h o s i a n the seizure and analysis of computer well as its opposition to the Bush ad- Digital detectives are becoming evidence—namely, collecting and pre- ministration’s war policy, was a more the frontline soldiers of law enforce- serving the evidence and rendering an dangerous enemy of the United States ment. The field of computer forensics opinion about it. The book’s most im- than Iraq was; therefore, Higgs writes, is growing rapidly, with the demand portant lesson is that digital evidence is if a war against Iraq was justified, then for experts outpacing the need. Many fragile and ripe for inadvertent damage one against France was even more so. hard-to-crack homicides and other felo- if improperly handled during an ex- The book’s seventh section, “Slaugh- nies are solved on the basis of informa- amination. The stages of data gather- tering the Innocent,” deals with a topic tion unearthed by computer forensics ing are the most volatile; for example, that has not been given the attention it experts who analyze digitally stored even a single touch of the computer deserves by this country’s media. Higgs evidence and comprehensively report mouse by an inexperienced investiga- focuses on the mistreatment of detain- their findings to ensure its admissibility tor can jeopardize an entire course of ees at the Abu Ghraib prison as well in court. evidence collection and preservation. as on the killing and maiming of Iraqi Part of the reason that computer fo- Sheetz cautions that “[t]he very process civilians. He notes that, because Iraq rensics experts are in such demand is of turning on the computer will in fact posed no danger to the United States, that the cost of computer-related crimes change the evidence. ... The process these deaths and injuries cannot be jus- in the United States is burgeoning. The of starting a computer is the functional tified. FBI reports that cyber-crimes cost busi- equivalent of opening a book, erasing The eighth and final section is titled nesses more than $67 billion annual- several lines of the text, and replacing “Cake Walk” and presents a not-so- ly. But, in addition to crimes against the text with something new—every subtle dig at the Bush administration’s private industry, the country faces time you open it.” Sheetz convincingly failure to find weapons of mass de- the looming possibility of large-scale conveys the importance of document- struction in Iraq and the disaster that threats to national security. In 1998, the ing and explaining any change to dig- is the war in Iraq. I particularly liked U.S. Department of Justice and the FBI ital evidence if the evidence is to be Higgs’ poem, “WMD Blues.” Higgs’ ba- created the National Infrastructure Pro- used in court. sic point in this section is that, if the tection Center to safeguard national in- Sheetz is at his best when he is in Bush administration had been truthful frastructure networks and systems from the criminal detection mode. He writes: with us, we would have opposed the attacks, including computer-generated “The computer installation is the crime war in Iraq. But, as Higgs points out criminal acts such as hacking and scene, no different from the scene of a throughout the book, all administra- spreading viruses. The center guards tions need war to enhance their power; telecommunications systems, financial reviews continued on page 62

March/April 2008 | The Federal Lawyer | 61 reviews continued from page 61 murder or a burglary. Investigators must is digital fingerprinting that creates a Heidi Boghosian is executive direc- tor of the National Lawyers Guild and document how the suspected criminal unique hash value for every digital ob- a co-host on the nationally broadcast left the computer, just as they would ject. Examiners can detect changes to a civil liberties radio show “Law and file, because any change will produce document a murder scene.” In describ- Disorder,” whose Web site is lawand ing how investigators take control of a a different hash value. Hashing appar- disorder.org/index.php. case, Sheetz covers the salient points of ently solves the rootkit problem—a da- case assessment: determining the skill tabase of Windows and other programs level of the offender, identifying the holds all “true” hash values. Thus, by The Age of Turbulence: number of computers and any propri- hashing all the program files on the Adventures in a New World etary software, and evaluating the site. computer being investigated and com- A similar checklist appears in the report paring them to the “true” hash values in By Alan Greenspan produced by the National Institute of the database, investigators can identify The Penguin Press, New York, NY, 2007. 531 Justice. files that have been tampered with. pages, $35.00. Two chapters in Sheetz’s book— “In child pornography cases,” Sheetz “Computer Tools and the Forensic Ex- writes, “certain image files tend to cir- amination” and “Computers as Tools culate frequently and seem to be pe- Re v i e w e d b y Chr i s t o p h e r C. Fa i l l e for Evil”—are immensely enjoyable, rennial images in the most predators’ with the latter reading like the table- collections. Investigators have com- On one plausible reading of the po- top fantasy game, “Dungeons and piled databases of hash values for these litical and constitutional history of the Dragons.” One of the most interesting common images files.” He explains that United States, the relationship between chapters covers hackers and describes “investigators can compare the hash creditors and debtors has always been such practices as “war driving,” which values of individual files on the target more central than any other relation- involves random drives through neigh- computer with the database of known ship—more central than, say, the re- borhoods with wireless-enabled laptop pornographic images. A match proves lationship between landlords and ten- computers and scanning programs, in to a scientific certainty that the image, ants, between the owners of and the attempts to capture access keys. regardless of the name, is the contra- laborers upon the means of production, Sheetz explains that, “[a]s computer band file.” or between wholesalers and retailers. security administrators become more A drawback to Computer Forensics In order to understand this history, it is and more vigilant, frequent polling of is that it does not make it easy for read- important to realize that, until the fairly the system reveals unauthorized pro- ers to locate information by category. recent advent of inflation-adjusted in- cesses running and leads to the dis- Managers as well as legal and account- struments, it was a simple arithmeti- covery of the intruder.” In response, ing professionals would have benefited cal fact that any given year’s debtors some hackers use a “hooking device from an outline checklist with each stood to benefit from inflation. Debtors that allows the rootkit [a Trojan horse- chapter, which could serve as a quick would end up paying back loans with a type program that gains control of road map. In this respect, the report is- currency that was cheaper than the one computers at the system level] to high- sued by the National Institute of Justice they used to borrow the money. jack the system processes polled by the is far easier to navigate because of its Would debtors then constitute a per- system administrator and report back short and easily identifiable sections, manent constituency for inflation? As a whatever the hackers desire.” Accord- bullet points, and special notes. class analysis that conclusion is way ing to Sheetz, rootkits can be hard to Apart from this formatting concern, too simple. Most adults understand that detect with traditional virus protection however, Computer Forensics provides inflation has a variety of consequences. software. But he does not provide an a useful introduction to a ubiquitous For one, the creditors who lose out explanation of how to deal with hack- field. Classes in digital forensics are in this way will surely respond by in- ers who gain nearly total access to a now offered in approximately 100 col- creasing their rates in an effort to stay system with rootkits until later in the leges around the country, and federal ahead of inflation thereafter. Therefore, book, when Sheetz addresses the tools intelligence agencies such as the Na- a debtor who hopes to be able to con- used by computer forensic investiga- tional Security Agency are seeking ex- tinue to borrow in the future will be tors. It is at that point that we learn perts in the field. Familiarity with the faced with a conflict of interests. Exces- more details about rootkits and also subject is no longer necessary just for sive money creation helps the debtor that investigators have two kinds of fo- specialists. Sheetz points out that, al- by reducing the existing loan burden rensic examination techniques to assist though we have not experienced no- but hurts the debtor by increasing the in identifying certain rootkits. The tools table cyber-terrorist attacks, “the power (predictable) burden of the next year’s are to be used in tandem—accessing of the bit and byte could well be a borrowing. the system from a remote safe system, hundred times more powerful than the To see why this matters from the then comparing “the hash value of the airliners that struck the World Trade point of view of constitutional scholar- system files with the hash value of trust- Towers.” TFL ship, consider the debate in the 1830s ed binaries.” Hashing, Sheetz explains, between President Andrew Jackson

62 | The Federal Lawyer | March/April 2008 and his allies on the one hand, and gold and silver of the state [where this world to regard this not as inflation nor the head of the national , Nicho- hypothetical branch bank is] must be as debt cancellation, but as “economic las Biddle, along with his allies on the sent there to meet them.” The branch stimulus.” other. We tend to think of this (and of steal the specie (that is, precious an earlier generation’s parallel debate metals or coins) of the South and West, From World War II to the War in between Hamilton and Jefferson) in he said, “gorge to repletion, then vomit Vietnam narrow legalistic terms. But when we their load into the vast receptacles of In 1944, at Bretton Woods, N.H., study the speeches made by members the Northeast, and gorge again,” he Roosevelt’s brightest economic and fi- of the U.S. Congress during the Jackso- added. nancial minds met with their counter- nian era, we quickly discover that the When reading such a debate, it is parts from the United Kingdom; Keynes argument at that time was about credit worth remembering that “dollar bills” himself was among the latter group. and—as a consequence—it was about in the sense we take for granted today These financial experts were confident the constant value of money. During didn’t really exist between the ratifica- that World War II was going their way, Senate debate on May 23, 1832, for tion of the U.S. Constitution and the and they met to discuss what kind of example, Daniel Webster thundered Civil War. A dollar was simply a mint- financial and monetary relations the in opposition to the Jacksonians, “Or- ed coin, and it was always minted in a capitalists among the victorious pow- dinary tyranny, oppression, excessive precious metal. Any note redeemable ers would have when the war ended. taxation: these bear lightly upon the in cash was, consequently, redeemable In this context, the two leading coun- mass of the community, compared in a precious metal because that’s what tries agreed to a partial restoration of with fraudulent currencies and the rob- cash was at the time. It also helps to the gold-dollar tie and to a separate beries committed by depreciated pa- remember that land sales in the West dollar-pound tie. per.” Webster was referring to the fact, were one of the major sources of rev- At about the time that the Allies were which no serious economist then or enue for the federal government. The hammering out this issue, a physician now disputes, that the depreciation of land was bought, in the first instance, working for a draft board in New York a currency confuses economic calcula- on credit, then over time in specie as City told a young man, Alan Green- tions, erodes household savings, and those notes came due, creating the span, that he had a spot in his lung and can undermine productivity. flow of money to the east and north that it could be tubercular. After a visit The charge, in short (and in my that so irked Benton. to a specialist the next day (and still own words, which are less eloquent As the 19th century neared its end, with no definitive diagnosis) Green- than Webster’s), was that the Jackso- William Jennings Bryan would echo span was classified as unfit to serve in nians wanted to leave the chartering Benton, denouncing bankers who the military. With this perfectly honor- of banks in the hands of the states so proposed to “crucify mankind upon able exemption from military service, that those banks could issue their own a cross of gold.” This is no legalistic Greenspan launched a brief career as notes that would function as unsound argument; the language of binge and a journeyman musician—a saxophone money—to engage in “wildcat bank- purge is, of course, emotional and in- player in the dance bands of the day. ing,” as it was called. Keep the charter- dicates the depth of feeling that credit But let’s return to what happened in ing in the hands of the United States, evokes. Such issues were integral to New Hampshire. The negotiators there Webster was saying, and preserve the the development of regional animos- decided that the value of the U.S. dol- strength of the pivotal national bank; ity that brought about the Civil War. lar would be fixed so that $35 would doing so will keep the dollar strong After that war, when issues that were thereafter buy an ounce of gold. The and prevent the creation of pseudo- much the same re-emerged, they had U.S. government would never again al- currencies that might compete with it more of a west/east tilt to them than low its citizens to present their dollars within each state that was tempted to the old south/north tilt. But the par- and demand gold in return, but foreign issue notes of its own. Webster was ticipants knew of the continuity: Bryan governments and their central banks also saying that, even though debtors knew that he was re-making Benton’s could do exactly that. The United King- might constitute the political constitu- arguments, and J.P. Morgan and Mark dom and each of the other countries ency for wildcat banking, before long Hanna knew that they had replaced that agreed to participate in the Bretton they would rue the result, seeing it as Biddle and Webster. Woods system agreed to keep its cur- worse than tyranny. Skipping forward again, we should rency within a narrow band of a speci- Thomas Hart Benton, the senator note that the lengthy presidency of fied ratio vis-à-vis the U.S. dollar ($1 to from Missouri, rose to reply to Webster Franklin D. Roosevelt produced at least £4.03) so that its value was also ulti- that day. As Webster had warned of two crucial changes in monetary policy, mately backed by the value of gold. inflation, Benton warned of an overly both of which had consequences for the The evolution (or unraveling) of restrictive money supply. “If notes are relationship between creditors and debt- the Bretton Woods accord between issued,” Benton said, “they are payable ors. In 1933, Roosevelt took the United Roosevelt’s day and Richard Nixon’s at the branch bank, and an adequate States off the gold standard, thereby al- day was a complicated affair. What supply of gold and silver must be kept lowing for the creation of money with- we need most to remember, though, is on hand to redeem them; but these or- out the need to back it with a precious ders being drawn on Philadelphia, the metal. John Maynard Keynes taught the reviews continued on page 64

March/April 2008 | The Federal Lawyer | 63 reviews continued from page 63 that, at first, the U.S. trade balance was above that amount, a simple arbitrage per money. at a huge surplus. It was in everybody’s possibility arose. A central bank could I would have loved to have had interest to reduce that surplus—to have present its dollars to the United States Greenspan’s comments on this dollars to flow out of the United States in return for gold, then sell that gold in change—not because I would have in order to pay for goods and servic- the marketplace for a risk-free profit. granted them authority over my own es that would come into the country, Obviously, that process could go on judgments, but because his reactions thereby providing liquidity to the world forever only if the United States had in- themselves would constitute a datum economy. finite amounts of the stuff. by which we might hope to better un- The possibility that the central banks In 1967, Greenspan signed on as derstand his own subsequent tenure at of other nations would use these newly an economics and domestic policy ad- the Federal Reserve. Does he think that acquired dollars to buy gold from the viser with Richard Nixon’s campaign the Bretton Woods system was salvage- U.S. Treasury was, of course, written for President. Greenspan reports that able and that more should have been into the agreement, and nobody con- he was very impressed by Nixon’s acu- done to try to salvage it? Or does he sidered that at all worrisome. At war’s men: believe that Triffin’s dilemma was fatal end, after all, the United States had $26 and that any administration in office at billion in gold reserves. Furthermore, Without wasting time on chitchat, the time would have had to close the there was no good reason to demand he drew me out with thought- window when Nixon did? gold from the United States. The newly ful questions about economics acquired dollars of the other participant and policy. When he set forth The Consequences of a Free Float of nations with so many shattered battle- his ideas, he did so in perfectly Currencies ground scenes among them might sure- turned sentences and paragraphs. What resulted after the Bretton ly be put to better uses than that. Final- … He could listen for five minutes Woods arrangement came to an end ly, even if another nation’s central bank on a subject he couldn’t possibly was a system in which every currency desperately wanted to stockpile gold, know much about—a breaking became a matter of governmental fiat, buying it from the U.S. Treasury was news event, for instance—then with most currencies in a state of free not mandatory. There was a worldwide get out there and sound as knowl- float against most others (although market in gold—there were gold mines edgeable as a professor. I would there are some fixes that are more or and gold merchants everywhere. say that he and Bill Clinton were less rigid). Does Greenspan think that But a self-destruct mechanism was by far the smartest presidents I’ve this is an ideal situation? written into this agreement. As the worked with. But it’s instructive to fast-forward economies of Europe revived during again—to the summer of 1987, when the 1950s, the problem became evident By the time Nixon was inaugurated President Ronald Reagan offered Alan to many observers, and the problem in 1969, however, Greenspan had be- Greenspan the top job at America’s turned out to be an unsustainable rela- come disenchanted with him. Behind central bank: chairman of the Federal tionship between debtors and creditors. that impressive intellect Greenspan saw Reserve. Greenspan’s tenure will be The matter was written up in formal a disturbingly misanthropic personal- remembered for a long time and for terms by economist Robert Triffin and ity. Greenspan offered advice infor- several reasons. He’ll be remembered became known as the “Triffin dilem- mally thereafter, but he took no offi- as the man who financed the “dotcom” ma.” In any world system with a single cial post with the Nixon administration boom that began in 1995, even though key currency nation, either that nation until 1974, when it was falling apart. at the outset he recognized it himself as maintains equilibrium in its balance of Until then, he remained at the helm of an example of “irrational exuberance.” payments, or it goes increasingly into Townsend-Greenspan. He’ll be remembered as point man in debt. If the nation maintains equilib- In The Age of Turbulence, Green- the U.S. response to a wave of currency rium, or (worse!) goes into a surplus, span devotes about five pages to the crises in East Asia and Russia in 1997 then the other nations will suffer from period from 1969 to 1974. He uses and 1998. And he may be remembered the unavailability of the key currency those pages to chronicle his reactions as an enthusiast of precisely the sort of and thus from a lack of liquidity. Yet to the income tax surcharge, the wage subprime mortgages that have caused if the key nation increasingly goes into and price freeze, and the post-freeze grave financial turmoil in the months debt, there will come a point at which controls and their gradual unraveling. since the release of his memoir. the nation’s ability to meet its obliga- The book contains nothing about what The dotcom boom isn’t in any very tions will come into question, with de- may have been the most important direct sense a story of the relationship stabilizing effects. economic and financial development of debtor to creditor. It was a stock Put more concretely, what was go- of that period: the formal dissolution market boom, and one that was no ing to happen once that worldwide un- of the system agreed upon at Bretton more highly leveraged than stock mar- official market price of gold diverged Woods. Nixon closed the gold window ket booms usually are. Furthermore, significantly from the official price of in 1971, returning the United States to the current subprime crisis continues $35 an ounce? As the market price rose Roosevelt’s earlier experiment with pa- to unfold, and I prefer to analyze situ-

64 | The Federal Lawyer | March/April 2008 ations in which I have the benefit of free float as a system. It has an internal teenth-Century New York Case hindsight. Therefore, the remainder of flaw that is every bit as severe as the That Put the Whale on Trial and this review will focus on the second one Triffin identified in its precursor. Challenged the Order of point of those listed above. The free float of currencies makes Nature In July 1997, Thailand devalued the the value of government-issued bonds baht, setting off a chain of events that (which are, of course, denominated in By D. Graham Burnett had enormous consequences every- the local currency) more volatile than Princeton University Press, Princeton, NJ, 2007. where and kept many central bankers they would otherwise be in some sort 266 pages, $29.95. awake. By the end of 1997, not only of fixed system. Furthermore, the pos- Thailand’s economy but also the econ- sibility of a currency crisis implies the omies of Hong Kong, the Philippines, possibility of an outright bond default Re v i e w e d b y Ge o r g e W. Go w e n and Singapore had been hit hard by on the part of some nation’s strapped Don’t judge any book by its cover, the “contagion” caused by the devalu- treasury. When these crises arise, the certainly not Trying Leviathan: The ation of the baht. Currency speculators Greenspans and Rubins of the major Nineteenth-Century New York Case such as George Soros received much of powers work to resolve them, but to That Put the Whale on Trial and Chal- the blame for this in the world press— the extent these officials’ solutions are lenged the Order of Nature, which has which was probably unfair. In Novem- successful, they increase volatility even a charming circa 1810 depiction of a ber 1997, a senior official at the Bank more going forward. whale on its cover. Even though the of Japan apparently called Greenspan An interesting question to ask your- word “trying” in the title bespeaks both to warn him that “the dam is bursting” self is the following: Do I drive more a court trial and the process of render- and that South Korea would be the carefully, or less so, when I know ing whale blubber, this book, when next victim of the impending flood. that I am inadequately insured? Most placed on a library shelf, would fit bet- In describing this period, Green- psychologists would agree one drives ter under “New York City history” than span’s memoirs parallel those of Robert more carefully when carrying inad- under litigation or whaling. And, even Rubin, who was secretary of the trea- equate insurance. Similarly, under the though the subtitle speaks invitingly of sury at the time. The two men and their crisis management model, the major a whale and a trial, these words are in- respective teams feared that each crisis financial powers become the insurers cluded, in part, as excuses for lengthy in this sequence would be an Armaged- for debtor nations’ treasuries—from dissertations on other matters. This re- don. After receiving the call from Japan Thailand with its baht to Mexico with view, nevertheless, will focus on the in fall 1997, for example, the top offi- its peso—and the volatility of the cur- trial. cials from the Federal Reserve and the rency over time tends to increase as Much of Trying Leviathan is devot- Treasury Department worked together confidence in this informal “insurance” ed to erudite discussions of zoology, making old-fashioned telephone calls spreads. Indeed, the United States is and, from these discussions, Burnett to officials of the largest banks in the the greatest debtor nation of all, and leaps to the thesis that the “American world and talking them out of any plan at times in recent years it has seemed identity” may be rooted in a “nature- to call Korea’s loans, so that no one to rely on China and Japan as its insur- nationalism.” At one point he trumpets, would force that republic into default. ers. “From the practical to the symbolic, Although the U.S. stock market The problem, stated generally and from ornithology to paleontology, from continued its long bull run, economic formally, is that volatility creates peri- Lewis and Clark to Cole’s The Course of shocks around the world continued the odic crises, which create periodic res- Empire, we are reminded that America following year. In summer 1998, Russia cues, which in turn increase volatility. forged a particular kind of link between devalued the ruble and defaulted on its Alan Greenspan, of course, doesn’t de- natural history and nationalism, and bonds. That development, in turn, led serve the blame for creating this prob- used the language of nature to narrate to the collapse of Long-Term Capital lem. Blame is an unhelpful exercise in their nation, to call it into being.” So be Management and its rescue by a con- any event. Call it blame, bad karma, or it, but what about trying leviathan? sortium of counter-parties, with a good the latest phase of the debtor/creditor The trial in the case of Maurice v. deal of prodding from officials in the dialectic if you are inclined to Hegelian Judd was held during the final days of Federal Reserve system working under formulations. But Greenspan’s career, December 1818 in the Mayor’s Court Greenspan. and his apologia in this book, together in City Hall. The case involved a New The central banker’s or treasury offi- surely illustrate the problem. TFL York statute that levied a fee for the cial’s perspective on such events makes inspection, gauging, and certification them seem all too exciting. It’s all a bit Christopher Faille is a financial cor- of casks of “fish oils.” The defendant like a Hollywood movie, in which di- respondent for an Internet-based news was charged with failing to pay the fee, sasters are barely averted when some service and is a member of the Con- and his defense was that his casks con- alert bystander calls a cape-wearing necticut bar. He maintains a blog, tained whale oil, not fish oil. Today, of hero, who swoops down just in time, “Pragmatism Refreshed,” at cfaille. course, we all know that whale oil is saving creditors and debtors alike by blogspot.com. not fish oil, because a whale is a mam- preventing a default. But that is pre- cisely the problem with the worldwide Trying Leviathan: The Nine- reviews continued on page 66

March/April 2008 | The Federal Lawyer | 65 reviews continued from page 65 mal, not a fish. And most people knew Now we return to the courtroom. “On the 27th of February [the judge] that in 1818 too; the problem for the The trial, which dealt with the question reconvened the court, and, perusing defendant was that, in those days, most of whether whale oil was fish oil and the new amendment, deployed an un- people nevertheless called a whale a thereby subject to the inspection fee, impeachably perverse legal analysis to fish. They reasoned: “mammalia or lasted three days. The jury heard testi- affirm the jury’s verdict against Judd: Magnolia he swims & lives in the sea”; mony from legislators on legislative in- since the legislature had decided that therefore he is a fish. Dr. Johnson’s tent (which seemed ambiguous), from the law needed amendment so as not dictionary, in fact, defined a “fish” as naturalists on the difference between to reach whale oil, he reasoned, this as “an animal existing only in water.” This fish and warm-blooded mammals such much as proved that the previous lan- view derived from Genesis, which gave as whales (there are many differences, guage of the statute did reach whale man dominion “over the fish of the sea, all of which are enumerated repeat- oil; otherwise, why did it need to be and over the fowl of the air, and over edly in this book), from New England changed so as not to include it?” … every creeping thing that creepeth whalers (testifying that a whale is not In addition to the collection of rev- upon the earth.” Whales can’t fly or a fish), from dealers in whale oil (who enue, the basis for the law in question creep, so they must be fish, even if they said that whale oil should not be con- was to protect the public from adulter- are mammals. It was just a matter of se- fused with low-quality liver oil that ated oils. Casks could be mostly filled mantics, with the defendant taking the comes from fish), and from ordinary with water, with only a film of oil on more modern approach of declining to English-speaking New Yorkers (who the surface. This brings to mind the call a whale a fish. stated that whales are like fish). Dur- 1962 , inexplicably Again, however, this book contains ing the trial, Blackstone was quoted: not mentioned by Burnett. Vast loans much about New York City’s history. “Words are generally to be understood were obtained by a person named Burnett tells us that, early in the 19th in their usual and most known signifi- Tino De Angelis; the loans were se- century, natural history museums blos- cation; not so much regarding the pro- cured by shipments of oils floating on somed in New York City. Devoid of priety of grammar, as their general and water. When the scandal was exposed, outlets for mass entertainment, citizens popular use.” , , flocked to view oddities, natural or oth- On Dec. 31, 1818, it took the jury Bank Leumi, and others suffered losses erwise. Burnett recounts: 15 minutes to decide for the plaintiff, of about $175 million (well over a bil- determining that the fee was owed, lion dollars in today’s dollars). This has The whale jaw was perhaps [John because, as the New-York Gazette re- nothing to do with whales, but it is cer- Scudder’s] greatest commercial ported, “a whale is a fish and whale oil tainly another good New York story. success of all. Hacked from an is fish oil.” The author of this book is (See Norman C. Miller’s The Great Sal- animal taken on Long Island’s not a lawyer, but he is astute enough ad Oil Swindle, published in 1965.) South Shore in the spring of 1814, to note that the plaintiff’s attorney had Trying Leviathan is a good try, but and transported by coasting ves- toyed with the prejudices of the New the average reader may find it trying. sel and cart to a choice spot on York jury. Burnett points out that, in TFL Broadway just above City Hall those days (before professional base- Park, this massive archway of ball), “‘Yankee’ was an epithet in New George W. Gowen is a partner with the bone and flesh weighed nearly York City, meaning as it did a New Eng- New York law firm of Dunnington, Bar- 4,000 pounds, and a dozen men lander—someone without the Dutch tholow & Miller, LLP. He represents pri- could stand between its six-foot blood that distinguished the true citizen vate clients and has served as counsel curtains of baleen. ... [T]he news- of the city once known as ‘New Am- to leading sports organizations and as papers were instantly plastered sterdam.’” By using the term “Yankee,” chair of humane and environmental with advertisements exhorting the plaintiff’s lawyer planted the seed organizations. curious New Yorkers to “seize the in the jury’s mind that those whalers present opportunity” and avail who testified that a whale is not a fish James Madison and the Struggle themselves (for the rock-bottom were New Englanders, and therefore for the Bill of Rights fee of twenty-five cents) of the their testimony was surely suspect. chance to see “the jaw of this In a move that would be highly un- By Richard Labunski mammoth of the deep,” a wonder usual today, the judge stayed the jury’s Oxford University Press, New York, NY, 2006. “beautiful beyond description.” verdict in order to give the legislature 336 pages, $28.00. By the next week a festival atmo- time to clarify the law, which it did. Just sphere prevailed, and Scudder, over a month after the verdict, the law never afraid to gild the lily, had was amended to provide that “liver oil, Re v i e w e d b y Da n i e l L. Ka p l a n engaged his favorite band ... to commonly called fish oil, shall be in- perform evening concerts under spected ... and that all other oils shall Sometimes the tail really does wag the whale jaw. be exempt from inspection.” But the the dog. Few lawyers can recite the ac- case did not end there. Burnett writes: tual ruling in United States v. Carolene

66 | The Federal Lawyer | March/April 2008 Products Co., 304 U.S. 144 (1938), but that such a bill would “give great quiet specific protections of individual rights. most recollect the decision’s seminal to the people” and offering to cobble Many Americans, having undergone footnote 4, in which the Supreme Court, one together out of existing state bills years of bloody conflict to throw off though retreating from its substantive “in a few hours,” he was unanimously the yoke of an oppressive sovereign, due process line of cases, reserved rebuffed. Labunski notes that “[f]atigue were not prepared to take it on faith protection for “discrete and insular mi- was certainly a factor.” But there were that a new über-sovereign, homegrown norities.” And the very rights to which more principled objections as well— though it might be, would scrupulously the famous footnote refers derive from chief among them, the one articulated refrain from trampling their cherished yet another dog wagger: the first 10 by Alexander Hamilton in The Federal- liberties. Among the anti-Federalists amendments to the U.S. Constitution. ist No. 84, in which he asked, “[W]hy sounding this theme most loudly was The framers gave us a groundbreaking declare things shall not be done, which the patriot firebrand, Patrick Henry. tripartite system of government that there is no power to do?” The new Perhaps it was inevitable that Patrick has thrived for more than two centu- national government was to exercise Henry would become a sworn enemy ries, but when most Americans think only explicitly enumerated powers, in of the Constitution. After all, he had of the Constitution they think of their contrast to the plenary powers of state made his name in Virginia by bravely “rights”—and the big-ticket individual governments, and it seemed pointless declaring in open court in the “Parson’s rights are not in the original Constitu- to bar the federal government from ex- Cause”—more than a decade prior to tion, but in the first 10 revisions to the ercising powers that it did not enjoy to the Declaration of Independence— document. Presumably because these begin with. The states had their own that when George III declared a duly amendments proclaim rights tangibly bills of rights, or could enact them, enacted law of Virginia null and void, enjoyed by individuals and directly en- and the idea of incorporating a bill of he “degenerated into a Tyrant, and forceable by them against the awesome rights into the Constitution struck some forfeits all rights to his subjects’ obe- power of their government, the Bill of as not merely capricious but danger- dience.” In itself, such defiance might Rights continues to capture the imagi- ous. The very existence of such an betoken only a dedication to fighting nation of citizens as no other part of enumeration, it was feared, would sug- tyrannical measures imposed by a dis- the Constitution does. What the struc- gest that, but for the bill, the federal tant and unresponsive monarch. But ture of the Constitution would suggest government would enjoy the power to a broader review of Henry’s political are mere afterthoughts have come to infringe these rights. career reveals an additional, more pa- be popularly seen, and revered, as the By the same token, enumerat- rochial motivation: a fierce dedication essence of our national charter. ing rights would tend to suggest that to combating any encroachments on In light of this fact, it seems fair to the national government enjoyed the the sovereignty of Virginia. While serv- ask why the framers didn’t include the power to infringe any rights that were ing in the Virginia House of Burgesses, Bill of Rights in the original document. not enumerated. Madison himself ex- Henry had advanced both these agen- The answer is that most of the key pressed grave doubts about the efficacy das, introducing not only a resolution players—including James Madison, the of “parchment barriers” against oppres- denouncing the Stamp Act but also subject of Richard Labunski’s book— sion, noting in a letter to Thomas Jeffer- one allowing Virginians to ignore laws believed that a bill of rights would be son that Virginia’s own bill of rights had passed by any entity other than the Vir- an ineffectual distraction from the es- been “violated in every instance where ginia legislature. To Henry, legitimate sential nation-building project at hand. it has been opposed to a popular cur- sovereignty pretty much ended at the Indeed, notwithstanding the title of rent.” Jefferson’s response pointed out Virginia border, and all measures tend- Labunski’s very readable book, the that a bill of rights would place a “legal ing to interpose the will of a federal story he tells is in reality the story of check” in the hands of the judiciary, “a entity into Virginia’s affairs were to be Madison’s struggle for the Constitution body, which if rendered independent, viewed with extreme suspicion. —with the Bill of Rights effort under- & kept strictly to their own department As the ratifying convention began in taken grudgingly, albeit energetically, merits great confidence for their learn- Virginia, the stage was set for an ep- as a means of saving the Constitution ing and integrity.” Although, in hind- ochal contest between Patrick Henry, and its “more perfect union” from a sight, Jefferson’s point seems perfectly with his commanding voice and his stillbirth. obvious, at the time of this exchange, “overpowering bursts of eloquence,” The story begins at the Constitu- except for the Supreme Court, the fed- and James Madison, a frail, diminutive tional Convention in Philadelphia, dur- eral judiciary was entirely hypothetical, figure, who spoke so quietly that the ing most of which Madison sat in the and Marbury v. Madison was barely a convention’s stenographer repeatedly front row furiously scribbling notes for gleam in John Marshall’s eye. found that he “could not be heard dis- posterity. After many days of swelter- The bill-less Constitution was deliv- tinctly.” The stakes were high. It was ing heat and contentious and tedious ered to Congress, and its text quickly difficult to conceive of ratification of debates, the delegates were relieved to began to be reproduced in newspa- the Constitution without Virginia, be- find the Constitution ready for inspec- pers. Instead of acclaim for the fram- cause support for the new plan of gov- tion. When George Mason, the delegate ers’ achievement, however, the docu- ernment was shored up largely by the from Virginia, strenuously objected to ment sparked an outpouring of dismay the absence of a bill of rights, noting and outrage at the absence of a list of reviews continued on page 68

March/April 2008 | The Federal Lawyer | 67 reviews continued from page 67 expectation that a Virginian—George endlessly bickering with neigh- ison was small and sickly, and, even Washington, the only figure capable of boring states, and threatening to though he had been commissioned a commanding nearly universal trust and use the military power of its for- colonel in the Orange County militia, respect—would serve as the new na- eign partner. he had never seen combat because of tion’s first President. If Virginia failed his poor health. to ratify the Constitution, Washington Labunski’s rhetoric can be over- But Madison pulled through again would be ineligible for the office. wrought, but his essential point is and, by his own reckoning, he did Labunski describes the likely results sound: When the Virginia delegates so by stressing his dedication to get- of a rejection of the Constitution by Vir- met to consider ratification, our fate as ting a bill of rights enacted by the First ginia: a rapid shift in momentum toward a nation rested on Madison’s narrow Congress. Shortly before the voting, the anti-Federalist view, leading to the shoulders. Madison confided to Washington that defeat of ratification, followed by the And Madison came through, of the issue “most likely to affect the elec- calling of a second constitutional con- course. By all accounts, the force of tion” was the perception that he was vention. The second convention would Henry’s rhetoric was impossible to re- “dogmatically attached to the Constitu- not have enjoyed the advantages of the sist while he was speaking, but when tion in every clause, syllable & letter” first—principal among which was the he stopped, the keen listener was left and would oppose any amendments. element of surprise. The delegates to with little of substance. By contrast, ac- Therefore, Madison attacked this per- the first Constitutional Convention had cording to one witness, when Madison ception directly, pledging to the voters been charged with the modest task of spoke (assuming one could hear him), that, if elected, he would sponsor a bill revising the Articles of Confederation. he conveyed “plain, ingenious, & ele- of rights in the First Congress and do all Instead, they had devised a plan for an gant reasoning” that quietly dismantled that he could to get it enacted. Virgin- entirely new system of federal govern- Henry’s oratorical flourishes and con- ia’s voters approved, sending Madison ment. In essence, they had been sent to vinced the delegates of the wisdom of to Federal Hall in New York to repre- Philadelphia to propose repairs to the the federal scheme. As a result, Virgin- sent them in the new House. gearshift on a bicycle and had returned, ia’s delegates voted in favor of ratifica- Madison quickly set to work deliv- instead, with plans to build a Bentley. tion. ering on his campaign promise. His Labunski plausibly speculates that, in a But the anti-Federalists were not yet tone, however, was grudging, and it second convention, it would have been ready to throw in the towel. Support remained evident that his chief aim in impossible to repeat such a stunt. Wary for the Constitution was wobbly, calls pushing the amendments was to fore- of another bid for centralizing power, for a second constitutional convention stall a second convention and the likely the state legislatures would have given had not subsided, and the absence of a unraveling of the Constitution to which their delegates strict instructions to re- bill of rights continued to be a rallying that would lead. He told his fellow rep- fuse to compromise on issues that had point for opponents of the new govern- resentatives that a bill of rights would been deemed fundamental. The result ment. Taking this issue off the table was be “salutary” in that it would “quiet the would have been a stalemate and an to be one of Madison’s chief aims when minds of people,” and he sought to as- inability to propose another scheme for he took a seat in the House of Repre- sure them (and perhaps himself) that a workable federal government. Labun- sentatives, but the anti-Federalists were it could be enacted without “effecting ski describes the imagined results: determined to prevent him from getting [sic] the essential principles of the Con- there. In drawing up Virginia’s election stitution.” He addressed his own be- With no viable federal govern- districts, Henry and his cohorts in the lief that a bill of rights would be noth- ment in place, states formed re- Virginia legislature strung together anti- ing more than a “parchment barrier” gional alliances and established Federalist-leaning counties in a bid to against oppression, arguing (weakly) ties to foreign nations. Northern ensure Madison’s defeat—an early in- that the rights would sell themselves, states joined together and sided stance of the practice that would be because their enumeration would with England. Virginia, North Car- named after the “gerrymandering” Mas- “establish the public opinion in their olina, South Carolina, and Geor- sachusetts governor, Elbridge Gerry, in favor, and rouse the attention of the gia created a southern confeder- 1812. The anti-Federalists also recruited whole community.” And he used thinly acy aligned with France. Citizens James Monroe, the dashing war hero, coded language to remind his fellow in the West banded together and to run against Madison. Once again, representatives that the insertion of a chose Spain as their ally so they as at the Virginia ratifying convention, bill of rights would suck the wind out were guaranteed access to the Madison seemed overmatched. Mon- of the sails of the anti-Federalists, who Mississippi River. roe was physically impressive, had a were bent on dismantling the govern- sterling war record—he had crossed ment of which they were a part: “It Instead of a unified, affluent na- the Delaware River with George Wash- will be a desirable thing,” he noted, tion, America became a land of ington, been wounded in action, and “to extinguish from the bosom of every regional confederacies, each jeal- served as military commissioner of Vir- member of the community any appre- ously guarding its independence, ginia—and was universally liked. Mad- hensions, that there are those among

68 | The Federal Lawyer | March/April 2008 his countrymen who wish to deprive ments,” Virginia joined the requisite As the well-recounted story by Labun- them of the liberty for which they val- three-fourths of the state legislatures to ski shows, they also serve who only iantly fought and honorably bled.” ratify the amendments, adding to the stand and mumble. TFL Madison knew it was important to Constitution the rights cherished by win this battle, and he fought it hard, Americans to this day. Daniel L. Kaplan is an assistant federal but his heart wasn’t in it. Having just Labunski teaches at the University public defender in the District of Arizo- taken his seat in the government that of Kentucky School of Journalism and na and the president of the Federal Bar he had worked so hard to create, it Telecommunications and has a Ph.D. Association’s Phoenix Chapter. must have been galling to find himself in political science as well as a J.D. compelled to advocate tinkering with He is not a historian, and he doesn’t Brutality on Trial: “Hellfire” it in ways he considered unnecessary. write like one, which has advantages Pedersen, “Fighting” Hansen, He may well have sympathized with and disadvantages. A historian might and the Seamen’s Act of 1915 Representative James Jackson of Geor- be more focused on developing an ar- gia, who complained that dithering gument, less interested in speculating By E. Kay Gibson over a pointless enumeration of rights about such matters as how humiliat- University Press of Florida, Gainesville, FL, would degrade the new government’s ing it must have been for Madison to 2006. 225 pages, $34.95. image in the eyes of foreign nations, delay his fellow carriage-riders while or with John Vining of Delaware, who relieving his perpetually distressed argued that taking up amendments bowels, and less apt to be as much of Re v i e w e d b y Ha r o l d L. Bu rs t y n would be the equivalent of “suspend- a cheerleader for his subject as Labun- ing the operations of government, and ski is for Madison. But James Madison The Seamen’s Act of 1915 is among may be productive of its ruin,” or even and the Struggle for the Bill of Rights the most prominent of the many re- with Aedanus Burke of South Caro- does not pretend to be something it is forms enacted during Woodrow Wil- lina, who scornfully analogized the not, and Labunski’s gee-whiz tone is son’s first term as President. Prodded by amendments to “a tub thrown out to actually refreshing. Andrew Furuseth, the longtime leader a whale, to secure the freight of the Labunski’s exploration of the rivalry of the seamen’s unions, Sen. Robert M. ship and its peaceable voyage.” But between James Madison and Patrick (“Fighting Bob”) LaFollette of Wiscon- Madison fought on. The House passed Henry is particularly interesting and sin introduced the statute. On March the amendments and sent them on to may provide a touch of validation for 4, 1915, in the last-night scramble of the Senate, which revised them exten- anyone who has ever felt inadequate a lame-duck session, Congress passed sively. In one particularly significant by comparison to the Patrick Henrys “An Act To promote the welfare of modification, the Senate removed an of the world. The book notes an in- American seamen in the merchant ma- amendment that Madison apparently triguing contrast that John Marshall rine of the United States …” (38 Stat. genuinely did support, having at- drew between the two men when he 1164). tempted to insert a similar measure at observed that, of all the men he knew, Among its features, the Seamen’s the Constitutional Convention—a pro- Henry had “the greatest power to per- Act reaffirmed the abolition of flog- vision declaring, “No state shall violate suade,” while Madison “had the great- ging and other forms of corporal pun- the equal rights of conscience, or the est power to convince.” Marshall pre- ishment aboard ships that sailed under freedom of the press, or the trial by sumably meant to distinguish between the U.S. flag. Even though flogging and jury in criminal cases.” As Labunski Henry’s ability to manipulate others other forms of corporal punishment observes, this rebuff was not surpris- through charisma and emotional ap- had been abolished by the White Act ing, because the “senators mostly saw peals, and Madison’s ability to win of 1898 (30 Stat. 761), the practice ap- themselves as protecting the interests them over with compelling reasoning. parently continued. The Seamen’s Act of the states and the legislatures that Marshall’s distinction seems especially of 1915, consequently, extended the li- elected them.” The Senate passed the apt in light of the context in which this ability for such punishment beyond the modified enumeration of rights sent rivalry unfolded. If ours was indeed to vessel’s master to the vessel itself or its them to the states for ratification. be a nation of laws, and not of men— owner, who, like the master, would be Patrick Henry still smelled a rat, a polity committed to timeless ideals, liable for damages to the person who however. He fought against ratifica- rather than a mob drawn together had been punished illegally. tion of the amendments, warning that by a demagogue—it was crucial that One of the few shipowners who they were nothing but a sop designed the delegates to the Virginia conven- supported passage of the Seamen’s to distract the people from the “exor- tion who met to ratify the Constitu- Act was also the mayor of San Fran- bitancy of Power granted away by the tion should be convinced by Madison cisco and president of Hind, Rolph Constitution from the People.” But mo- and not persuaded by Henry. Spine- & Company: James Rolph Jr. (1869– mentum had shifted strongly in favor tingling rhetoric certainly has its place, 1934). When Rolph ran for mayor in of the new government. With Henry particularly in the early stages of a just 1911, he had received Furuseth’s sup- fuming that “Virginia has been outwit- revolution. But the project of creating port. How ironic, then, that it was a ship ted, & her reserved rights sacrificed by a lasting democracy calls for a differ- the ingenious wording of the amend- ent, less visceral, form of leadership. reviews continued on page 70

March/April 2008 | The Federal Lawyer | 69 reviews continued from page 69 owned by Hind, Rolph & Company, the him and his sons. The rest of the crew jury acquitted Capt. Pedersen and his barkentine Puako, whose master, Capt. showed signs of the beatings. The Brit- older son, both of whom were defend- Adolph C. Pedersen, and mates (Ped- ish officer who boarded the Puako, in ed by Dudley Field Malone, of mur- ersen’s 17- and 18-year-old sons), be- response to Pedersen’s signaling “Want dering the two drowned crew mem- came the first to be convicted under the assistance: mutiny,” reported that “the bers. Because neither Consul General act. With problems like these, it is no master of the Puako was out of his Murphy nor Capt. Elliott Howe of the surprise that Hind, Rolph & Company mind.” After the Puako was towed into South African police were able to ar- did not survive long as a shipowner. Capetown, Pedersen reported to the rive in time to testify at the trial, the Despite the problems aboard his ships, South African authorities that his crew government could not present its best however, James Rolph Jr. served San members were “German spies who had witnesses to confirm the sailors’ ac- Francisco as mayor for 19 years, resign- attempted to kill the ship’s officers and counts. In the second trial of the three ing only in 1930 to become governor destroy the vessel.” The captain had Pedersens for “felonious assault and of California. Four years later, he died placed the crew members in irons and maltreatment of the crew,” the judge in office. forced them to sign incriminating state- delayed the trial long enough for Mur- By the time the Seamen’s Act be- ments. phy, Howe, and a vice consul to tes- came law, sail had given way almost Consul General Murphy, no sup- tify. The jury convicted all three men. entirely to steam. Only in carrying bulk porter of the captain, had the men fed, Capt. Pedersen was sentenced to 18 cargoes (such as coal, lumber, grain, or obtained their statements, and wired months in prison, and his sons were guano) long distances could a sailing the U.S. State Department in Washing- each sentenced to six months. Their vessel compete with a steamship, even ton, D.C., both to confirm that Peder- appeal failed, and they went to prison though the former’s wind was free and sen’s accusations were nonsense and in 1921. In 1924, in San Francisco, an the latter’s coal or oil was costly. During to get approval for working with the admiralty action against the ship (that , the decline of sail grew South African authorities to determine is, a libel) on behalf of six sailors in- faster. The shortage of masters and the truth. Another seaman died from jured by the Pedersens led to an award mates qualified for sail, which was ap- pneumonia, perhaps weakened by of damages. parent as early as 1900, increased with repeated beatings. Only the personal Brutality also occurred aboard an- conscription after the United States en- intervention of Secretary of State Rob- other Rolph ship—the four-masted tered the war. ert Lansing persuaded Hind, Rolph & barkentine Rolph. Frederick Hansen be- Late in April 1918, the American Company that there was a problem. came the first mate of this ship in 1919. ship Puako, under Capt. Adolph C. Rolph authorized Murphy to get a new His mistreatment of his shipmates led Pedersen, set sail from Victoria, Brit- captain and crew for the Puako. The the U.S. consul in Antofagasta, Chile, ish Columbia, with a load of lumber ship sailed to Sydney under a tempo- to pay him off in 1921 and arrange for headed for Capetown, South Africa. rary master, a Briton, where it found his return to the United States to face On her previous voyage to Capetown an American crew, and then set sail for charges. But because the Chilean au- in 1917, Pedersen’s problems with his Seattle with its load of copra (dried co- thorities did not want to get involved, crew had led the U.S. consul general conut). Two members of the original they refused to hold Hansen, and he there, George H. Murphy, to write to crew sailed with the Puako; the rest of disappeared. When he turned up in his superiors that Pedersen “is not a the injured men stayed behind awaiting Seattle in 1922, he was convicted and man who is fit to creditably command return to the United States at U.S. gov- sentenced to five years of hard labor. an American vessel in foreign trade.” ernment expense in order to appear as Before the libel against the Pua- Unfortunately, Murphy did not have witnesses at the upcoming trial. ko, sailors whom Hansen had injured sufficient evidence to remove Pedersen As authorized by the Seamen’s Act, aboard the Rolph libeled that ship and from command, as the law would have in October 1918, Murphy discharged received substantial awards. To safe- allowed him to do. Pedersen, his sons, the carpenter, and guard any judgment the court might Pedersen had great difficulty as- one seaman from the Puako; and the award, the U.S. marshal seized the sembling a crew for the 1918 voyage; South Africans jailed the men. Murphy Rolph in 1921, and the ship lay idle in therefore, he hired his two sons as ordered the ship to be searched and San Francisco Bay thereafter. The Rolph his mates as well as an old friend as sent the logbooks, confiscated weap- never sailed on a commercial voyage the ship’s carpenter. But, despite Ped- ons, and other evidence that had been again. ersen’s reputation and his nickname, found onboard to Washington. In Janu- Kay Gibson has mined a substantial “Hellfire,” he eventually found another ary 1919, the Pedersens and their for- number of records from several branch- 12 men to sign on. mer shipmates sailed under guard from es of the National Archives to finally When the Puako again arrived off Capetown to London, were transferred tell an important story in the history of Capetown in late August 1918, two crew there to the U.S. Navy, and returned to maritime labor and the legal protection members were dead, having jumped the United States in March. it has received. Drawing on earlier re- overboard rather than suffer any more The two trials that followed took search done by her husband, Charles of Pedersen’s wrath and beatings from place in New York City. In the first, the Dana Gibson, and Harold Huycke,

70 | The Federal Lawyer | March/April 2008 both master mariners, she has crafted a readable account of both the legal background and consequences of the events at sea that led to these trials and judgments. Despite the meticulous de- tail, it is a rousing story. Anyone inter- ested in the history of labor, especially its relation to admiralty law, should read this book. And anyone who is an admiralty lawyer (“proctor in admiral- ty”) must read it. TFL

Harold L. Burstyn is in private practice in Syracuse, N.Y. From 1996 to 2001, he was the patent attorney for the Air Force Research Laboratory in Rome, N.Y. He teaches law to engineering and computer science students at Syracuse University, where he researches the rela- tion between patent law and the history of science and technology. A former na- val officer, he has published a book, ar- ticles, and reviews related to the history of seafaring.

Federal Bar Association Membership Application Raising the Bar to New Heights TFL-3-08

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