Banner, Stuart 1963–

PERSONAL:

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

ADDRESSES:

Office—University of California—Los Angeles, School of Law, Box 951476, Los Angeles, CA 90095-1476; Yale Law School, P.O. Box 208215, New Haven, CT 06520. E-mail—[email protected]; [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, professor of law, 2001—; Yale Law School, New Haven, CT, visiting professor of law.

WRITINGS:

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

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

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

How the Indians Lost Their Land: Law and Power on the Frontier, Belknap Press of Harvard University Press (Cambridge, MA), 2005.

Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska, Harvard University Press (Cambridge, MA), 2007.

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.

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 the 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. He is also the author of How the Indians Lost Their Land: Law and Power on the Frontier, an examination of the land ownership disputes between white settlers and Native Indians. 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 laws 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 that "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 The 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 wrote 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 the 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." However, he also noted: "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." 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."

In his next book, How the Indians Lost Their Land, Banner takes a look at how Indians understood land deals with white settlers and how repeated land sales based on law eventually drove them from the East and into the West. He describes how the French and Indian war of 1763 led to land deals being treaties between nations instead of private contracts between individuals and groups. Prior to this war, according to the author, the English and others tended to recognize Indian ownership of land and made legal contracts with Indians that benefited both parties. The new perspective following the war led to settlers viewing Indian ownership of the land as incomplete and Indians as ultimately not having full legal rights to the property. Banner goes on to follow the change in land ownership legalities to a Supreme Court decision in 1823 giving the U.S. government rightful ownership of Indian property, a move that Banner contends was quasi-illegal and has recently been recognized as such by the courts as they rule in favor of tribes getting reparations for their ancestors' property. Writing in the Historian, F. Todd Smith noted that "the author clearly demonstrates the manner in which law was used to justify the dispossession of Native Americans within the territory ultimately controlled by the United States." Journal of Southern History contributor Andrew Cayton noted: "By the 1830s outnumbered and defeated American Indians were in no position to resist removal or, as Banner would have it, reject migration. Americans could afford the luxury of observing legal procedures because they operated from a superior military position."

Ultimately, as noted by Cayton, Banner describes the Indian's loss of their land not only within a legal framework but as a matter of power. Historian contributor Smith called How the Indians Lost Their Land a "valuable work [that] clearly explains the sometimes obtuse legal framework … used to dispossess the Indians … of … their lands." John Burch, writing in the Library Journal, noted that the author "convincingly argues that the [Indians'] land was transferred legally," adding, however, that this "does not mean that the transactions were fair."

Banner examines a similar topic in his Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska. This time he looks at the various ways that British and American settlers acquired large amounts of land from indigenous people throughout the Pacific, from Australia, New Zealand, Fiji, and Hawaii to Oregon, Washington, and British Columbia. The author points out variations in settler attitudes towards the indigenous peoples' ownership of the land as being a key to how well the indigenous people fared in their land ownership disputes. He also explores modern complaints and dispute over ownership of land between indigenous populations and various governments. Al Brophy, writing for the Legal History Blog, commented that the book "is an original and broadly conceived study of how colonial struggles over land still shape the relations between whites and indigenous people."

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; April, 2006, David E. Wilkins, review of How the Indians Lost Their Land: Law and Power on the Frontier, p. 470.

American Indian Culture and Research Journal, spring, 2006, James W. Oberly, review of How the Indians Lost Their Land, p. 160.

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 The Death Penalty, p. 974; October 1, 2005, Deborah Donovan, review of How the Indians Lost Their Land, p. 6.

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; April, 2006, L. Graves, review of How the Indians Lost Their Land, p. 1464.

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

Constitutional Commentary, spring, 2005, Judith T. Younger, "Whose America?"

Historian, summer, 2007, F. Todd Smith, review of How the Indians Lost Their Land, p. 317.

Journal of American History, September, 2006, James Taylor Carson, review of How the Indians Lost Their Land, p. 547.

Journal of American Studies, August, 2007, Richard A. Hawkins, review of How the Indians Lost Their Land, p. 471.

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

Journal of Southern History, February, 2007, Andrew Cayton, review of How the Indians Lost Their Land, p. 147.

Journal of the Early Republic, fall, 2007, Regna Darnell, review of How the Indians Lost Their Land, p. 514.

Library Journal, September 15, 2005, John Burch, review of How the Indians Lost Their Land, p. 75.

London Review of Books, February 9, 2006, Eric Foner, "Purchase and/or Conquest," review of How the Indians Lost Their Land, p. 17.

Natural Resources & Environment, spring, 2007, JoAnne L. Dunec, review of How the Indians Lost Their Land, p. 62.

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.

ONLINE

Legal History Blog,http://legalhistoryblog.blogspot.com/ (December 27, 2007), Peter Karsten, review of Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska.

UCLA Law,http://www.law.ucla.edu/ (January 21, 2008), faculty profile of author.

Yale Law School Web site,http://www.law.yale.edu/ (September 21, 2008), faculty profile of author.