May 8, 2013 13:09 Age: 350 days

Time is of the Essence

Emory Law’s new faculty member uses the past to illuminate the most pressing problems of our day.

Mary L. Dudziak thinks that to get to the heart of a matter — in law and in scholarship — it can be helpful to start at the edges. To understand domestic law, she looks to its global impact; to understand contemporary war, she looks to its past. It is often at the borders between inside and outside, past and present, that we can more fully see the nature of the core.

Mary DudziakDudziak’s career has proceeded a bit like her way of thinking. She didn’t follow a straight path to law school and academics, but instead wanted to be a writer. In order to write, she needed to learn about the world. A commitment to social justice led her to work in the disability rights movement. The movement’s effort at legal reform inspired her to go to law school. And then her law and graduate work led her right back to writing.

Today, Dudziak (pronounced du-jäck) is a renowned legal historian and author. She seeks to have an impact on social policy in her writing, but her approach is to question the way problems are thought about. Her most engaging scholarship comes not simply from the conclusions she draws, but from reconceiving essential questions.      
Dudziak arrived at Emory last summer from the University of Southern California, where she was the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science. She is now Asa Griggs Candler Professor of Law and director of the newly created Project on War and Security in Law, Culture and Society. A graduate of Yale Law School with a PhD in American studies also  from Yale, she clerked for Judge Sam J. Ervin III, of the 4th U.S. Circuit Court of Appeals, and began her teaching career as a professor of law at the University of Iowa. She has also served as the John Hope Franklin Visiting Professor of American Legal History at Duke Law School and as the William Nelson Cromwell Visiting Professor of Law at Harvard.

“Mary is one of the leading legal historians in the United States today and perhaps the most preeminent of her generation,” says Robert Schapiro, dean and Asa Griggs Candler Professor of Law. “Her pathbreaking scholarship coupled with her strong devotion to teaching and engagement in vital matters of public concern make her a wonderful addition to our faculty. Her appointment builds on our existing strengths in international law and terrorism and in national security law, including our International Humanitarian Law Clinic.

“Also, she brings to the faculty an impressive and inspiring record of grant-funded research, including a fellowship from the Guggenheim Foundation. She offers an array of professional contacts through her leadership, scholarship, and energy to initiate new programs and interdisciplinary opportunities.” Dudziak’s scholarship has been supported also by fellowships from the American Council of Learned Societies; Membership in the School of Social Science, Institute for Advanced Study, Princeton; and the Law and Public Affairs Program at Princeton University.

Her 2012 book, War∙Time: An Idea, Its History, Its Consequences, addresses a contemporary conundrum: Why do we think of war as temporary, confined to time-limited “wartimes,” when American military engagement is persistent? Dudziak’s starting point is to focus on time itself, since wartime, on its own terms, is a temporal concept. We tend to think that wartime is always followed by peacetime, and therefore an essential aspect of wartime is that it is temporary. The assumption of temporariness becomes an argument for exceptional policies, such as torture. She notes that those who cross the line during war sometimes argue “that circumstances deprive them of agency; their acts are driven or determined by time.” If wartime is actually normal rather than exceptional time, she says, “then law during war must be seen as the form of law we usually practice, rather than a suspension of an idealized understanding of law.”

War·Time draws upon anthropology to show that ideas about time are specific to cultures, and not trans-historic. The book draws upon the numerous “small wars” in American history to show the way U.S. military engagement is continuous rather than episodic. Iconic wars like World War II often drive American thinking, but even World War II was not contained within tidy boundaries, as President Franklin Delano Roosevelt took action as commander in chief well before the Japanese attack on Pearl Harbor. There is a consequence to the prevalent idea that the American war experience is confined to limited “wartimes”: “the American people, largely isolated from the impacts of war, are not politically engaged on this issue, but leave war to the experts. This enhances executive branch autonomy, leaving us without an effective political check on the war power.”

Dudziak began considering the way historical study informs contemporary war politics because people asked her to. Her most difficult speaking invitation was in October 2001. The nation was reeling from the September 11 terrorist attacks, and a special panel was assembled at the American Studies Association annual meeting to reflect on it. Dudziak didn’t know what to say. But eventually, in the early hours the morning of the panel, the words simply came on their own. “Sometimes I think that September 11 is the longest day in American history,” she wrote. “Its sun arcs slowly across the sky, casting discordant shadows upon the earth. We long for this day to end. Then we might see a clearer pattern among the stars.”

At the time, some argued that it would be decades before historians would have anything meaningful to say about September 11. Dudziak argued that this event and its impact were too important for scholars to stay on the sidelines. Her remarks became an essay, “The Duty of the Living,” and her call for scholars to engage the contemporary crisis became a motivation for her own work.  

Dudziak was born into a family of scientists —  father a nuclear physicist, one sister a hydrogeologist, another a neuropsychologist. Turning away from science to the humanities and social sciences was her form of teenage rebellion. She called herself a feminist from the age of 16, participated in her first protest as a high school senior and wrote a column of political satire for the Dos Pueblos High School paper.

At the same time, she was deeply engaged with the arts. She performed in children’s theater when growing up in Santa Barbara, Calif. At the University of California, Berkeley, Dudziak played a leading role in a musical comedy her senior year. And she is likely the only law professor today to have reprised the 1960s Philip Morris bellhop for a college production. But it was her interest in civil rights that landed her a summer internship at the American Council on Education in Washington, D.C. There, she worked on the implementation of Section 504 of the Rehabilitation Act of 1973, which extended civil rights to persons with disabilities in federally funded programs, including higher education. When she returned to Berkeley, she worked on the committee charged with implementing Section 504 on the campus.

After Dudziak graduated with highest honors in sociology in 1978, her work on disability rights issues enabled her to get a job working for Judith Heumann, a leader in the disability rights movement. “I saw it all at the ground level when sit-ins and nonviolent direct action were in full swing,” she says. “I had one of the most fabulous jobs a young person could have.”

Because of her writing skills, she was asked to edit an amicus curiae brief in the first Section 504 case to be heard in the U.S. Supreme Court. The experience helped her understand how law could be a tool for social change. That’s when law school became her next step.

Dudziak says Yale Law School offered the most expansive interdisciplinary curriculum, but she felt she needed more than that. Her work in the disability movement was often driven by immediate needs such as drastic funding cuts in services to disabled people when California voters passed Proposition 13, a limitation on property taxes. She felt that she needed to understand the big picture, the vision of justice underlying social change efforts. This was impossible when managing a crisis. And she felt that a legal education would not provide her with the broader understanding she yearned for. So, even though putting herself through school, she applied to graduate school and eventually earned a PhD in American studies from Yale.

It was a summer public interest law position that led to some of her early scholarship. As an intern at the American Civil Liberties Union national office, she was asked to do historical work for continuing litigation in the original desegregation case, Brown v. Board of Education. She became interested in the way Topeka, Kan., where the Brown case was filed, came to terms with its role in what was considered the American dilemma. “The history of desegregation in Topeka is fascinating and complicated,” says Dudziak. The local school board voted to desegregate before Brown because they thought segregation was not an American practice. “This was a curious statement, in part because it expressed an understanding of what was ‘American’ and defined a long-standing American practice as being outside the boundaries of American conduct.” After Brown, during the Cold War years when the House Un-American Activities Committee was investigating alleged subversives, the concept of un-Americanism used in the civil rights context played out on the broader ­political stage.

This eventually led to a question for Dudziak that she was determined to answer: Why did Brown take place during the McCarthy Era? Why were some civil rights expanded at the same time that others were repressed? The U.S. Department of Justice amicus curiae brief in Brown provided a clue. It argued that U.S. race discrimination was criticized around the world and undermined U.S. relations, especially with nations emerging from colonialism. Her research ultimately led her to archival records of the State Department that document in detail the way American civil rights crises harmed the American global image and the way American presidents from Truman through Johnson believed that they needed to make progress on civil rights to win the Cold War. This research led to her first book, Cold War Civil Rights: Race and the Image of American Democracy, published in 2000 and widely assigned in college courses.

Having studied the way American civil rights law was affected by its global impact, Dudziak turned next to the role of one American lawyer, Thurgood Marshall, in global constitutional development. Marshall was lead counsel in Brown and became the first African American Supreme Court justice. One of the highlights of his life was his role as constitutional advisor to Kenyans as they sought independence in the early 1960s. Dudziak uncovered the story through research in Kenya, England and the United States.  Her book Exporting American Dreams: Thurgood Marshall’s African Journey was published in 2008.

Dudziak also has published two edited collections:  September 11 in History: A Watershed Moment? (2003) and Legal Borderlands: Law and the Construction of American Borders (2005), co-edited with Leti Volpp. She is also a blogger, creating the “Legal History Blog” in 2006, which is now the “go to” online site for legal history. “I wanted to give legal history a more dynamic presence. And I wanted to make the work of legal historians more accessible to people in other fields,” Dudziak says. She stepped down from the “Legal History Blog” in 2012 but continues as a contributor to the prominent constitutional law blog, “Balkanization.”

This academic also finds her voice in the classroom, and asking her to choose a favorite between writing and teaching, she says, is like asking which child a parent loves more. Teaching, for her, is gratifying when she sees students grow, even though sometimes they are unhappy about having been pushed to do so.

Last fall she taught a class in foreign relations law and this spring is teaching the first-year constitutional law class and a seminar and colloquium on War and Security in Law, Culture and Society. Although interdisciplinary in her scholarship, she likes teaching traditional “black letter law” classes, such as constitutional law, that relate to her scholarship.

Dudziak’s next book is an account of the impact of war on American law and politics that explores war and militarization across time, rather than within discrete wartimes that often structure American histories. Under contract with Oxford University Press, the book’s working title is How War Made America: A Twentieth Century History.

She hopes to change the way Americans think about war. Dudziak is passionate that the American people should be politically engaged with decisions about the uses of U.S. military force around the world. She sees this as the only effective check on presidential unilateralism. “Our constitution proceeds from ‘we the people,’ and we’re supposed to be the bedrock.” Many scholars complain that Congress has let its role in declaring war atrophy, leaving us without a political check on presidential power. But for Dudziak, the ultimate responsibility lies with the people themselves.  “Congress won’t be engaged if the people aren’t engaged,” she insists. “And how can we act as a check if we aren’t actively involved?”

Jennifer Bryon Owen and Susan Soper

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