BANNER, Stuart 1963-

PERSONAL: Born 1963, in New York, NY; Education: Yale University, B.A., 1985; Stanford Law School, J.D., 1988.

ADDRESSES: Offıce—University of California—Los Angeles, School of Law, Box 951476, Los Angeles, CA 90095-1476. E-mail—[email protected].

CAREER: Clerked for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit; clerked for Justice Sandra Day O'Connor of the U.S. Supreme Court. Practiced law at Davis, Polk & Wardewell and at the Office of the Appellate Defender in New York, NY; taught for eight years at Washington University, St. Louis, MO; University of California, Los Angeles, School of Law, faculty member, 2001—.

WRITINGS:

Anglo-American Securities Regulation: Cultural andPolitical Roots, 1690-1860, Cambridge University Press (New York, NY), 1998.

Legal Systems in Conflict: Property and Sovereignty inMissouri, 1750-1860, University of Oklahoma Press (Norman, OK), 2000.

The Death Penalty: An American History, Harvard University Press (Cambridge, MA), 2002.

Contributor to periodicals, including Journal of Legal Studies, Journal of American History, Journal of the Early Republic, American Journal of Legal History, Wilson Quarterly, Law & Society Review, Reviews in American History, Law & Social Inquiry, Law & History Review, Washington University Legal Quarterly, Texas Legal Review, Virginia Law Review, Ohio State Legal Journal, and Stanford Law Review. Former articles editor for the Stanford Law Review.

WORK IN PROGRESS: Chapter "Traces of Slavery: Race and the Death Penalty in Historical Perspective" for publication in Race and the Death Penalty, edited by Austin Sarat and Charles Ogletree.

SIDELIGHTS: A law professor who once clerked for U.S. Supreme Court Justice Sandra Day O'Connor, Stuart Banner has written several books on U.S. legal history. His first is Anglo-American Securities Regulation: Cultural and Political Roots, 1690-1860, which looks at the English origins and early development of American securities regulation. In Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860, Banner traces how Spanish legal traditions came to be replaced by written American laws in what is now Missouri. Banner's most widely reviewed book is The Death Penalty: An American History. This work shows how use of the death penalty has changed since the colonial era, looking at the methods and settings, crimes punishable by death, philosophies, and legal issues that are part of this history. The interdisciplinary nature of Banner's books, which include cultural, economic, legal, philosophical, and historical interests, make them appealing to a wide range of readers.

While researching Anglo-American Securities Regulation, Banner made use of traditional legal documentation and looked for references to the subject in nonlegal materials such as novels, broadsides, and engravings. This study of the earliest securities markets in England and United States made him conclude that regulation dates farther back than had been shown previously. Reviewers enjoyed the book's broad range of references and commended Banner's synthesis of his materials. In the Business History Review, Lance E. Davis warned that the book's title might mislead readers into thinking that the book was a comparative analysis of English and American markets. Davis described it as "a fascinating book" and added, "The author has done an excellent job capturing the evolution of the public's perception of the formal securities markets and of the actions of the brokers who bought and sold on those markets." Richard Sylla commented in the Journal of Interdisciplinary History that it was "an excellent book, partly for showing that most of the issues concerning modern securities regulation were raised, if not always resolved, before 1860." In a review for Business History, R. C. Michie observed that this "well researched, carefully written and meticulous study" was an "admirable introduction" to the subject, while also wishing for more consideration of the issue of stock exchange self-regulation.

The difficulty of documenting law as it existed under Spanish rule is one of the intriguing aspects of Legal Systems in Conflict. Banner shows how property rights, particularly the practice of designating communal grazing areas, was based on unwritten Spanish and French traditions. He details how these practices were replaced by codified American law that focused on private ownership of land. The book's emphasis on property rights frustrated Thomas D. Morris, who reviewed the work for the American Historical Review. While he called it "a bold attempt to deal with interpretive theory in legal history," Morris was disappointed that Banner did not consider a broader scope of legal issues, including criminal justice and slavery. Other reviewers expressed contrasting views. In Agricultural History, Gordon Morris Bakken wrote, "This book is important because of its close study of the intersections of law and culture. It is honest about the limitations of historical documentation and assertive in its conclusions." William E. Foley called the book "a carefully crafted account" in the Western Historical Quarterly and remarked, "Banner's careful delineation of the use of local customs and manners in the resolution of commonplace disputes under the French and Spanish regimes constitutes the most original portion of this fine study."

Amidst the long and voluminous debate over the death penalty in the United States, Banner's Death Penalty was called the first comprehensive review of the subject. Banner tells the story of how the death penalty has been transformed since the seventeenth century, when more crimes were punishable by death and executions by hanging and burning were rare, public, and had a strong religious message. Among other issues, the construction of more prisons, new ideas about rehabilitation, and the perceived cruelty of execution methods affected sentencing and how executions were conducted. Banner also discusses the popularity of the death penalty, which was at its lowest ebb in the 1960s, and the legal confusion that surrounds it following Supreme Court decisions of the 1970s.

The Death Penalty was notable for its calm, nonpartisan perspective and interest to readers on both sides of the death penalty debate. The wide chronological and thematic coverage of the book resulted in a variety of responses. Commentary's Jonathan Kay commented that this "dispassionate and comprehensive history" was hampered because it "suffers from the defects of its chief virtue, which is Banner's almost clinical detachment from his material." According to Michael Stern in American Lawyer, the most interesting aspect of the book was the two concluding chapters on the relatively recent Supreme Court rulings, which he felt were "more conventional, but more compelling" than the earlier chapters. In the New Republic, Richard A. Posner remarked that "a narrative of executions not only has a cumulative effect that is depressing, but it becomes less fascinating when it reaches modern times and so recounts a history that is already familiar." He concluded, "Still, Stuart Banner's book is fine and balanced and important."

The difficulty of Banner's subject was highlighted in the American Prospect by Josh Kurtz, who warned that the book was "not for the squeamish" and recommended it as a "timely" work that was "comprehensively researched, with a calm and modulated narrative style." In Public Interest, Nelson Lund wrote, "Notwithstanding its somber subject matter . . . [the book] is a joy to read. Besides being lucid and informative, Banner is almost preternaturally even handed in his presentation." Booklist's David Pitt found that "the author deftly balances history and politics, crafting a book that will be valuable to anyone interested in knowing more about capital punishment." And in a review for the Times Literary Supplement, David Garland remarked that the "lucid, richly researched book brings us, for the first time, a comprehensive history of American capital punishment." Garland judged that "the book's well-ordered narrative is interspersed with individual case histories that give flesh and blood to the account, providing a necessary emotional charge to a work that is otherwise dispassionate in tone."

BIOGRAPHICAL AND CRITICAL SOURCES:

PERIODICALS

Agricultural History, winter, 2002, Gordon Morris Bakken, review of Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860, p. 129.

American Historical Review, June, 2001, Thomas D. Morris, review of Legal Systems in Conflict, pp. 976-977.

American Lawyer, September, 2002, Michael Stern, review of The Death Penalty: An American History, p. 71.

American Prospect, July 1, 2002, Josh Kurtz, "The American Way of Death," p. 36.

Booklist, February 15, 2002, David Pitt, review of TheDeath Penalty, p. 974.

Business History, October, 1999, R. C. Michie, review of Anglo-American Securities Regulation: Cultural and Political Roots, 1690-1860, p. 117.

Business History Review, summer, 1999, Lance E. Davis, review of Anglo-American Securities Regulation, p. 329.

Choice, November, 2002, R. C. Cottrell, review of The Death Penalty, p. 535.

Commentary, June, 2002, Jonathan Kay, "Capital Punishment," p. 65.

Journal of Interdisciplinary History, spring, 2000, Richard Sylla, review of Anglo-American Securities Regulation, p. 665.

New Republic, April 1, 2002, Richard A. Posner, "Capitol Crimes," p. 32.

Public Interest, fall, 2002, Nelson Lund, review of The Death Penalty, p. 122.

Times Literary Supplement, October 25, 2002, David Garland, "Judicial Lightning," pp. 6-7.*