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Historians of European history use the phrase “100 Days” to refer to the 111 days between Napoleon Bonaparte’s escape from exile on Elbe to the time when King Louis XVIII was restored (again) to the French throne. Napoleon’s defeat in the Battle of Waterloo took place during this period. An interesting fact about the phrase “100 Days,” perhaps, but it is not relevant to how we in the United States use the phrase today.

FDR’s First 100 Days Journalists and historians today refer to President Franklin Delano Roosevelt’s first 100 days in office as the benchmark for all subsequent U.S. presidents. Actually, the phrase referred to the time from when FDR called Congress into a special session on March 9, 1933, until Congress adjourned in mid-June of that year. The Roosevelt administration accomplished a lot in that time period: FDR outlined and got Congress to pass 15 major bills, most of the programs that came to be known as the “First New Deal.”

Obama’s First 100 Days The press is full of stories about what President Barack Obama’s administration has accomplished in its first 100 days. It has become a tradition of journalists to write such stories about each new presidential administration regardless of how useful such summaries or analyses are. Some of the analyses are critical, such as one that appeared online today in the New York Post. Some, such as Lynn Sweet’s blog for the Chicago Sun-Times, are sympathetic. Still others are somewhere in between, such as Gerald F. Sieb’s Wall Street Journal blog. Sieb says that Obama is a hard man to classify. He points out that some of Obama’s foreign policy is more popular among Republicans than Democrats. He cites the protectionist label on Obama despite the fact that Obama has been pushing free trade agreements made by the Bush administration. Also, he references Obama’s call for sending more U.S. troops to Afghanistan than the previous administration had planned on. The Obama administration itself is playing down the importance of the first hundred days, calling April 29, 2009, a “Hallmark holiday.”

Conclusion As an historian, I find it hard to sum up Obama’s first hundred days in office. We do not know which, if any, of the laws that he pushed and were passed by Congress are going to be effective. Despite a flurry of visits with foreign leaders, we are not sure what Obama’s foreign policy is going to be. Like most Americans, I am hopeful that things are going to get better with the country led by this president. But anything can happen, even unexpected events like the current swine flu outbreak.

David G. Post is the I. Herman Stern Professor of Law at the Beasley School of Law at Temple University, where he teaches intellectual property law and the law of cyberspace.  In his new book In Search of Jefferson’s Moose: Notes on the State of Cyberspace, he uses Thomas Jefferson’s views on natural history, law and governance in the New World to illuminate cyberspace’s technological, legal, and social complexities.  In the post below he looks at the implications of a court case in Italy.  Read his previous post here.

In a kind of reprise of the well-known Yahoo! case (involving a French lawsuit against Yahoo! for displaying Nazi memorabilia on its auction website in violation of French law) from a several years ago, four Google executives are facing criminal charges in an Italian court arising out of a third-party posting of a video at a Google site:

The Italian case relates to a three-minute movie uploaded to Google Video’s Italian site in 2006. In the video, four teenagers from the Northern city of Turin are seen teasing a boy with Down syndrome. After Google received two complaints about the content, the company says it removed the clip within 24 hours. But Italian officials, who didn’t return calls for this article, argue the video should never have been allowed to be uploaded in the first place.

Google concedes the content caused offense. In a statement the company says: “As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished.”

There’s a great deal one can say about this — indeed, one might even say you could write a whole book about it! At one level, it illustrates an interesting and important difference in substantive law: US law, through sec. 230 of the Communications Decency Act (oddly enough), provides intermediaries (like Google here) a very broad immunity from liability for third-party-provided content, while Italian law (I take it, not knowing much about Italian law) does not. It’s an important difference, because it reflects (presumably) a real difference of opinion, and of values, and of policy.

The hard question is: how can we realize the benefits of a truly global communications medium like the Net — the first truly global medium we’ve ever come up with, and whose promise is unimaginably immense — while different sovereigns impose their different visions of the good onto network traffic? We do not have a good answer for that, at the moment. The conventional wisdom here leads to results that are absurd.  To summarize: Italy can legitimately assert jurisdiction over Google if Google’s conduct is having “significant effects” within Italy, and Google has tangible assets (machines, offices, typewriters, servers) that are located in Italy (or executives who might set foot someday on Italian soil). Viewed from Google’s perspective, and the question “With what law does Google have an obligation to comply?”, the conventional wisdom says that Google has the obligation to comply with the law of all sovereigns within whose territory it has tangible assets, or where its executives might travel.  I call this “Jurisdictional Whack-a-Mole.”

“If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be – can legitimately be – applied to you. Your daughter’s junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having “significant effects” in one (or all) of those countries, and . . . the school’s obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.

That’s a strange kind of law – law that only gets revealed to the interacting parties ex post, and which can therefore no longer guide the behavior of those subject to it in any meaningful way.

This is a really hard problem, and it is one that we need to solve. If I had a simple solution that I could summarize in a brief blog posting, I would do so — and I would not have felt the need to write a whole book about it. I’m hoping the book’s website becomes a focus for some discussion about all this, because I’m pretty certain that we could use more discussion about it.

Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he reflects on the economic stimulus bill. In the article below he reflects on how the Republicans are doing in the Obama administration. Read his previous OUPblogs here.

The unity and clarity of message exhibited by the Republicans this past week seemed to suggest that they have found their role as loyal opposition in minority. This may be, but Republicans have an uphill battle before them. This week in politics, it was the President who won.

Bipartisanship only became a governing keyword in the 20th century because of the frequency of divided party control over the different branches of government. The fact is there is no need for
bipartisanship when a majority exists in the Congress, and the Republicans know it. This is why they have tried to make a virtue out of bipartisanship as an end in itself, decrying the way in which the economic stimulus bill was passed.

Yet Republicans were complaining about a 1,100 page bill that nobody had perused at the same time that they were arguing that it was a bill of pork and spending. Here’s the problem: the more Republicans made a stand against the process by which their input was stymied, the less credibility they had making a stand against the substance of the bill. So the wisest Republicans focused most of their attack on the process, because accusing the Democrats for not consulting with them is a face-saving strategy on the off-chance that the stimulus package actually works. In 2010, we shall see if their gamble paid off.

The truth is it is not easy being in the minority. In the run-up to the passage of the bill in the Senate, everywhere we heard that 60 was the new 50. But this may have been a higher bar than was necessary for the Democrats to cross. The fact is 50 may well have been enough, given the high political cost the Republicans would have had to bear if they filibustered a bill in a moment of perceived economic
emergency. As it is, Democrats are already accusing the opposition party for becoming the obstructionist party.

The President has only stood to gain from the Democrats’ victory in Congress. When the revised conference bill passed in the House, Congressional Democrats lavished praise on the president, even though they were the ones who had crafted and delivered on the bill. All the president did was go on the road in the final days before passage to sell it. This is hands-off leadership that has benefited him, because the cries of foul from the Republican aisle are mostly being leveled on congressional Democrats, not the president. But Obama’s gain does not come without strings. Both Nancy Pelosi and Harry Reid know that he needs them, so it is unclear for how long he would be able to stand above party in his hitherto futile effort to chase the ghost of bipartisanship.

For now, President Obama has won the battle, and the honeymoon is still his to enjoy. The stimulus package may have more spending than tax cuts in it, as Republicans assert, but congressional majorities agree with him that such spending is necessary. Without income support (making up $100 billion of the bill), unemployed workers would be forced to reduce spending, thereby causing a vicious contractionary circle. If the federal government did not offer support to cash-strapped state and local governments (making up $250 billion of the bill), more jobs would be lost, or so modal opinion seems to hold. The Daschle and Gregg nomination embarrassments reveal the danger of making lofty promises on the campaign trail that the reality of government may not permit, but they also pale in comparison to the significant achievement of passing the biggest economic stimulus package in US history. If the president’s fortunes tell us anything, they suggest that the Republican minority have not yet found their
footing.

All week on the OUPblog we will be celebrating the Lincoln Bicentennial.  Be sure to read Jennifer Weber’s post on how Lincoln almost failed, the excerpt from James M. McPherson’s Abraham Lincoln, and come back tomorrow for Craig L. Symonds post. In the original piece below Allen Guelzo, author of Lincoln: A Very Short Introduction, answers some FAQs about Lincoln.  Check back tomorrow for part three of this series.  You can read part one here

OUPblog: Lincoln had the highest regard for the U.S. Constitution, yet he assumed extraordinary powers during the Civil War and issued the Emancipation Proclamation. When we look at this story for lessons about the conduct of a government today, what should we find?

Allen Guelzo: When we say that Lincoln exercised “extraordinary powers,” it sounds as though we were accusing him of making himself a dictator. But the Constitution itself gives the President some extraordinary powers when it designates the President as Commander-in-Chief in time of war or rebellion – and Lincoln was certainly willing to use those “war powers” during the Civil War. But looked at in retrospect, Lincoln used them very cautiously. Even the Emancipation Proclamation was issued as a “war powers” proclamation, with all kinds of restraints and caveats to keep it strictly within the legal bounds of military necessity. The Constitution was, for Lincoln, the frame mounted around the “apples of gold” in the Declaration of Independence, and you could not damage one without damaging the other.

OUPblog: During the Civil War, Lincoln declared martial law and suspended habeas corpus. He ordered the arrest of draft resisters and opponents of the draft, newspaper editors, judges, and other prominent opponents. He argued that it was an issue of self-preservation of the nation, as described in Article II, section one of the Constitution. What about opponents of the President’s policies?

Guelzo: Lincoln was a far better lawyer than I am, and he could answer that question with much more attention to constitutional law. But it is significant that the same issues are once again before us – not only that, but the same accusations of violations of rights, and the same response that the nature of the threat justifies extraordinary actions in national self-defense. One thing to bear in mind is that Lincoln has, on the whole, been judged fairly mildly, first, because the threat to the survival if the United States in 1861-65 has been seen as very real, and second, because, at the end of the day, the steps Lincoln took were not out of balance with the nature of the threat. (Those steps, by the way, included suppressing draft riots, executing a slave trader, and even exiling a political dissident). If anything, Lincoln once said, his administration would probably be remembered for treading too lightly on wartime civil liberties cases.

Charles O. Jones is Non-Resident Senior Fellow at The Brookings Institution and the author of many books including Passages to the Presidency and Preparing to be President: The Memos of Richard E. Neustadt. In his most recent book, The American Presidency: A Very Short Introduction, Jones has written a marvelously concise survey that is packed with information about the presidency, some of it quite surprising. We learn, for example, that the Founders adopted the word “president” over “governor” and other alternatives because it suggested a light hand, as in one who presides, rather than rules.  In the original article below Jones analyzes Obama’s term as President-Elect.

Following his victory, President-Elect Barack Obama conducted a model transition, one suited to the standards set by successful transitions in the post-World War II era, most notably those of John F. Kennedy in 1960 and Ronald W. Reagan in 1980. Obama played it by the book, revealing that “change you can believe in” is to be achieved by governing methods he can trust.

During the 1960 campaign Kennedy reportedly said: “If I am elected, I don’t want to wake up on November 9 [the morning after the election] and ask myself ‘What in the world do I do now?’” The answer to that question was then, and remains, fairly simple. You prepare to be president. Arrangements begin with clear notions of who you have become, what the job entails, and who can be of help.

Obama became a presidential candidate in the 2008 campaign. That assertion is less trite than it appears. John McCain remained a maverick senator running for president, Hillary Clinton was an heir apparent First Lady, John Kerry a backbench senator in 2004, Al Gore an heir apparent Vice President in 2000. No one of these aspirants fully adopted the role of presidential candidate. Obama did.

Not having become an in-house senator in his brief service or been in a position to imagine himself an heir apparent, Obama was free to acquaint himself with the style and demands of a national campaign. He learned the role well enough to hire a compatible supporting cast and to script a message absent allusions to the past. “Change: That’s what you want? That’s what I will give you.”

The October surprise on Wall Street illustrated his differences with McCain. Obama remained the presidential candidate he had become. McCain suspended his campaign to resume his familiar role as the maverick senator. Yet the complex financial issues involved required neither a campaigner nor a nonconformist. Obama understood and stayed out of it; McCain rushed in where he was not needed or welcome.

On November 5, Obama became president-elect. That role too requires an understanding of how to behave. The most important guideline: There is a president, you’re not him. Corollaries: Remind the staff not to jump the gun—their time as big shots will come. Follow the book in making appointments and organizing White House staff. Don’t promise more in the first 100 days than can be delivered. Stay out of the way, preferably away from Washington, but be accessible and nice to the press. Find out how the White House works—inside the building itself and outside in the government. Accept the help offered by the incumbent administration in learning about departments, agencies, and budgets. Visit, but don’t invade, the workaday government. Be nice to Congressional leaders but wary of their advice. Find friends in the opposition party—you will need them. Can the arrogance of a victor—that goes even more for staff.

These rules are in accord with the Law of Commonsense. Yet President Elect Bill Clinton and his staff ignored most, if not all, these advisories. Obama and his aides paid heed to all, thereby winning praise and favorable comparisons to the Kennedy and Reagan transitions.

Knowing who you have become should aid immeasurably in learning what the job entails. The rules cited here provide orientation for the most important role—President of he United States. It all starts with understanding the separation of powers. The three branches, plus the bureaucracy, share and compete for powers permitting them to get into each other’s business. For example, Congress spent the last two years curbing executive powers the new president may wish he had.

Two facts are relevant to understanding the new job: 1. The president is not the government. 2. A new president joins a government already at work. The new Congress is mostly populated by members from the last Congress; judges serve life terms; and the bureaucracy is forever. What is new is a President Obama, his staff, and appointees, all charged to make what is already there work effectively under new leadership. One other fact: The choices presidents make today have an effect on persuasive power in the future. One need only review President Bush’s decision to invade Iraq, relying on bad intelligence, for a contemporary illustration. Support for his leadership never recovered.

It is too early to know the depth of Obama’s savvy in serving as chief executive. He has no record and it is impossible to “game” the presidential experience. But there are positive clues from the campaign and the transition that the president-elect recognizes what is coming. The campaign showed he knows how to hire and keep good help. He understands the need, recognizes talent, communicates purposes, and commands loyalty. Furthermore, lacking experience himself, he has demonstrated strength of character and resolve in hiring those who do have the knowledge and skills he requires as president.

The process of selecting staff and cabinet positions was impressive. He assigned the major White House staff positions early, thus reducing job anxiety among his campaign operatives and allowing them to settle in during the transition to aid him and connect with establishment figures. The cabinet and ancillary selections were announced in policy clusters, thus showcasing “teams” rather than drawing attention to a single appointment. Further, the sequence revealed policy priorities, as with the early selections of the economic and national security teams. The president-elect himself made the announcements, his physical presence leaving little doubt as to who was in charge. And whereas diversity was the result, emphasis in each case was on the capability and experience of those chosen. One notable effect of this orderly process was to project an aura of leadership.

There was a casualty. Bill Richardson withdrew prior to a confirmation hearing. One case is par for the course and can have the effect of increased scrutiny of the rest.

Does this positive start ensure a successful Obama presidency? Hardly. Unscheduled events occur and unwelcome change happens, as with Israel’s assault in Gaza. Expect more agenda-bending events to interfere with the new president’s plans, hopefully not as dramatic as 9/11 for his predecessor.
The record as I read it, however, indicates that as a candidate and president-elect Barack Obama has verified an aptitude for leadership and for knowing who can best help him lead. Less clear is whether he understands that neither he nor Congress can quickly fix much of what is wrong in the nation and the world. In a separated powers government, confidence in knowing what to do is only part of getting it done.

I’m sure I’ll be dribbling out these little notices for the next few months, but I just learned that Bill Ivey has been appointed “to lead the Obama transition team with responsibility for the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute of Museum and Library Services.” Here’s an interesting article about Ivey discussing how cultural pushes by administrations are not seem in the same way as actual public policies.

This post appears courtesy of guest blogger Mary Beth Woehler of the University of Houston-Downtown.

This is the story of our grandmothers and great-grandmothers; they lived only 90 years ago.

Via resourceshelf, this account of the Memorandum of Agreement that was the result of arbitration between the American Federation of Government Employees Council 238 and the EPA. Please see the linked documents for information from Public Employees for Environmental Responsibility on why the EPAs compliance — which they termed “grudging” — was not acceptable to EPA library workers.

“Even as many collections remain in crates, EPA has decided to micromanage what is left,” [PEER Director Carol] Goldberg added, noting that the agency has still not accounted for many of the library holdings it had removed. “Professional librarians should be making these management decisions, not political appointees.”

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