Author: Kyle Graham

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Old Harvard Law School Course Catalogs (1835-1869; 1878-2006)

Harvard Law School has posted online its Course Catalogs for the academic years (or, as the older catalogs put it, “academical years”) 1835-1836 to 1868-69, and 1878-79 to 2005-06.

These bulletins are quite interesting.  The 1835-36 catalog, for example, relates facts such as the law school’s tuition at the time, $100 per annum (Yup, that’s right. $100. Law students: don’t depress yourself by entering this figure into an inflation calculator like this one. Seriously. Don’t do it.), the names and hometowns of its students, and the books that students would be expected to read in each course.  The 1842-43 bulletin advertises that law students can attend all of the University’s public lectures, including the well-regarded chemistry, mineralogy, and geology lectures given by Professor (and, later, convicted [but possibly innocent] murderer) John White Webster.

By reviewing the catalogs, one also can compare the courses that have been offered at the institution at different junctures. Reprinted, without comment (but with a little selective bolding to indicate some new additions to the curriculum), are the course offerings at 25-year (more or less) intervals between 1850-51 and 1950-51:

1850-1851: Agency; Corporations; Equity Jurisprudence; Blackstone; Evidence; Insurance; Law of Real Property; Roman Civil Law; Pleading; Wills and Administration; Equity Pleading; Kent’s Commentaries; Contracts; Arbitration; Bailments; Domestic Relations; Practice; Bills and Notes; Shipping and Admiralty; Criminal Law; Constitutional Law and Jurisprudence of the United States; Equity Jurisprudence Evidence and Practice; Sales; Partnership; Conflict of Laws.

1878-79: Real Property; Contracts; Torts; Criminal Law and Criminal Procedure; Civil Procedure at Common Law; Evidence; Property; Trusts, Mortgages, and other Titles in Equity; Sales of Personal Property; Bills of Exchange and Promissory Notes; Jurisdiction and Procedure in Equity; Corporations and Partnership; Constitutional Law and Conflict of Laws; Agency and Carriers; Jurisprudence; Wills and Administration.

1900-01: Contracts; Criminal Law and Procedure; Property; Torts; Civil Procedure at Common Law; Agency; Bills of Exchange and Promissory Notes; Carriers; Contracts and Quasi-Contracts; Evidence; Insurance; Jurisdiction and Procedure in Equity; Property (second year); Sales of Personal Property; Trusts; Admiralty; Bankruptcy; Damages; Law of Persons; Conflict of Laws; Constitutional Law; Corporations; International Law as Administered by the Courts; Jurisdiction and Procedure in Equity; Partnership; Property (third year); Surety and Mortgage; Comparative Jurisprudence; Civil Law of Spain and the Spanish Colonies; Civil Procedure under the New York Code; Administrative LawCourses offered, but not taught in 1900-01: The Interpretation of Statutes; Roman Law; Massachusetts Practice; Patent Law.

1925-26: Civil Procedure at Common Law; Contracts; Criminal Law; Property; Torts; Agency; Bills of Exchange and Promissory Notes; Contracts and Quasi Contracts; Equity; Evidence; Insurance – Marine, Fire, and Life; Persons and Domestic Relations; Property; Sales of Personal Property; Trusts; Conflict of Laws; Constitutional Law; Corporations; Equity; International Law as Administered by the Courts; Partnership; Patent Law; Property (second year); Public Utilities; Suretyship and Mortgage; Taxation; Admiralty; Bankruptcy; Contracts and Combinations in Restraint of Trade; Jurisdiction and Procedure of the Federal Courts; Labor Law; Municipal Corporations; Administrative Law; Constitutional Law – Seminar in Problems in Constitutional Law;  Evidence – Seminar in Problems in Evidence; History of English Law; International Law Problems; Jurisprudence: Theory of Law and Legislation, the Province of the Written and Unwritten Law, Problems of Law Reform in America; Persons and Domestic Relations; Roman Law, and the Principles of the Civil Law and Modern Codes as Developments thereof – an introduction to Comparative Law; Conflict of Laws: Advanced Course; Modern Developments in Procedural Law; Law of Mining and Water Rights. Courses offered, but not taught in 1925-26: Massachusetts Practice, Brief Making and Preparation of Cases; The Practice of Law.

1950-1951: Agency; Civil Procedure; Contracts; Criminal Law; Property I, Torts, Accounting, Administrative Law, Commercial Law, Constitutional Law, Corporations I, Property II, Trusts, American Legal History, Comparative Law – The Civil Law System, Comparison of Soviet and American Law, Jurisprudence, Legislation, World Organization, Admiralty, Conflict of Laws, Corporations II-A, Corporations II-B, Creditors’ Rights A, Creditors’ Rights B, Domestic Relations A, Domestic Relations B, Equitable Remedies, Evidence, Federal Jurisdiction, Government Regulation of Business, Insurance, International Law, Labor Law A, Labor Law B, Municipal Corporations, Restitution, Suretyship, Taxation, Unfair Competition, Administrative Law Seminar, Administrative Law Seminar: Fact Finding; American Legal History Seminar; Antitrust Seminar; Comparative Law: The French, Western German or Swiss Legal System; Comparative Public Law; Conflict of Laws Seminar; Constitutional Litigation; Corporation Finance; Criminology and Administration of Criminal Justice; Government Contracts; Insurance Seminar; International Law Problems; Labor Law-Joint Seminar; Labor Law Seminar; Legal Problems of World Trade; Legislation Seminar; Problems in the Public Control of Atomic Energy; Problems of Contemporary Jurisprudence; Property III, Public Issue of Securities; Public Utilities; Taxation: Corporate Reorganizations and Distributions; Taxation: Special Tax Problems; Taxation: State and Local. Offered, but not for credit: Law and Medicine.

One of these days, if I ever try to prepare a family-tree flowchart that depicts the origins of the “modern” fields of law, I’ll probably perform a deeper dive into these bulletins. But that’s enough for now.

 

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Recent Unsent E-mails from Antonin Scalia to Richard Posner, as Retrieved from Justice Scalia’s “Deleted E-Mail” Files

To: Richard Posner

From: Antonin Scalia

Date: August 24, 2012

Re: Your Review of Reading Law

Dear Dick:

Thanks for your interesting review of Reading Law in The New Republic. Mr. Garner and I certainly appreciate your thoughts. I, personally, am especially pleased that you found time to mull over our humble text, given your busy schedule of giving NPR interviews criticizing Republicans as “goofy” on the one hand, and constructing baby-trading markets on the other.

Yours,

Antonin Scalia

 

To: Richard Posner

From: Antonin Scalia

Date: August 24, 2012

Re: Your Review of Reading Law

Dear Dick:

Came across your review of Reading Law in The New Republic.  I appreciate your comments, and even though you find fault with what we write, as they say, any publicity is good publicity! I would have written sooner, but I was busy re-reading a few of my favorite Court opinions: Black v. United States (2010), Carr v. United States (2010),  Lewis v. City of Chicago (2010), Chambers v. United States (2009), Hein v. Freedom from Religion Foundation, Inc. (2008). . . . Mercy.  The list could go on, and on.  So much to read!

Regards,

Antonin Scalia

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Are You Better Off Than You Were Four Years Ago?

We’re going to be hearing this question asked a lot over the next two months. I’m going to go out on a limb and speculate that most Democrats will answer the question with a “yes,” and most Republicans with a “no.”

Today, this phrase is most closely associated with Ronald Reagan, who used it to devastating effect in his 1980 debate with President Carter. Those of you who are pretty old, or who like reading books about the Great Depression, may recall that President Franklin D. Roosevelt asked his Fireside Chat listeners similar questions back in 1934, and invoked the same theme in his smashingly successful re-election campaign in 1936.

But the question (and its follow-ups, which recite specific ways in which you, or the country, may be better or worse off) is so obvious, and powerful, as a referendum on the incumbent’s tenure that it’d be surprising if FDR and his speechwriters were the first to think of it. And, it turns out, they weren’t. A quick search of old newspapers yielded this September 1900 edition of the Columbus (OH) Journal. If you follow the “Leading Questions” editorial (which begins in the middle of the page’s fifth column) to its bitter end, it provides:

WHOEVER YOU ARE

Are you not better off than you were four years ago? Are you not earning more money? Are you not spending more? Do you not wear better clothes? Do you not live better? Are you not happier? Do you want to go back again to those Democrat free-trade days? Is there any doubt about your vote?

I’ve also seen the same editorial in other newspapers printed during the 1900 campaign season, so I assume that a Republican official prepared the text and fed it to friendly newspaper editors across the country.

I tend to like the modern version of this series of questions better, since it eliminates the McKinley campaign’s unnecessary negatives. But the basic thrust of the message remains the same.

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Admittedly Dumb Idea (Number Three): Baby’s First Book of _____ Law

This is the third in a series (prior entries here and here) of admittedly dumb law-related ideas that I’ve had, and don’t quite have the filter to suppress.

A while ago, on my other site, I posted a simple Gashlycrumb Tinies-inspired abecedarian that drew from some notable Torts cases. The text provided as follows:

A is for Adams who a wire imperiled / B is for Byrne crushed flat by a barrel / C is for Carter who slipped on some ice / D is for Dillon who might have died twice / E is for Escola nicked by some pop / F is for Fletcher whose mine needed a mop / G is for Goodman who caught a train the wrong way / H is for Hood who said his saw didn’t say / I is for Intel whose computers were smeared / J is for Johnson whose baby flat disappeared / K is for Katko shot while he stole / L is for Levandoski who fell into a hole / M is for Murphy maimed on “The Flopper” / N is for Negri who slipped as a shopper / O is for O’Brien halting pool sales / P is for Palsgraf squashed by some scales / Q is for Quill who received quite a scare / R is for Rowland owed reasonable care / S is for Summers who can’t ID his shooter / T is for Tedla struck by a commuter / U is for Ultramares from whom a company did steal / V is for Vosburg whose leg didn’t heal / W is for Wagon Mound done in by a spark / X is for the unreasonable man who takes stairs in the dark / Y is for Ybarra who sued the whole set / Z is for Zeran defamed over the Net

Prior to posting the rhyme, I had thought a little bit about trying to find an artist who could prepare illustrations to accompany the text, combining the two, and then marketing the resulting book as something like “Baby’s First Book of Tort Law. ” I dropped this idea when other projects intervened, but still I think that someone could do well with a series of children’s books along similar lines: e.g., “Baby’s First Book of Secured Transactions,” “Baby’s First Book of Antitrust and Unfair Competition Law,” etc.

These books might not all fit within the abecedarian format. The letter X poses a huge problem here, seeing as how Black’s Law Dictionary includes only four words that begin with the letter. But that’s OK. “Baby’s First Book of Securities Regulation Law” could relate the story of a little lemonade stand that grew and grew, such that its founders ultimately had to decide whether to conduct a private stock placement and then an IPO, or alternatively, to seek funding for expansion through the JOBS Act’s crowd-sourcing option. “Baby’s First Book of Federal Jurisdiction” might discuss how, under AEDPA, a series of courts would assess an arguably untimely habeas petition filed by a plush stuffed-animal tiger that’s being detained in a cardboard-box jail in the living room. “Baby’s First Book of Law and Economics” would . . . you get the idea.

Admittedly, I suspect that very few children would purchase these books. At least the focus groups of four-year-olds that I’ve convened seem to suggest as much. But that’s not really the target market.  So if there are any interested illustrators out there, drop me a line.

 

 

 

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Overlong Resumes, Redux: What Would Alex Kozinski Do?

By way of seconding Gerard’s comments regarding resume (and CV) creep and its baneful effects, let me share with you the rather short resume of an incredibly well-accomplished person: Alex Kozinski, circa 1984, as he was applying for a position on the United States Court of Appeals for the Ninth Circuit.

Note that Judge Kozinski’s resume back then (as taken from the files of the Reagan Library) was all of two pages long, and that he didn’t go on and on explaining precisely what he did as a clerk for Chief Justice Burger, Judge Kennedy, or even as a judge on the Court of Claims. He didn’t even mention that he was once a contestant on “The Dating Game.”

Given that it’s interviewing season, this also might provide a good opportunity for me to offer a couple of resume tips to law students. I enjoy reviewing students’ resumes, and see a number of recurring errors along with what I consider to be poor judgment calls. I’ll offer a few suggestions, for what they’re worth, after the jump.

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Hantavirus in Yosemite

Among the bloggers on this site, it probably falls to me to discuss the spate of hantavirus cases tied to Camp Curry in Yosemite National Park. I’m a former park ranger, I used to live on Yosemite’s eastern shoulder, and I have some personal experience with hantavirus and related diseases. (When my wife and I moved to Mono County, we found affixed to the door of our new home a flier that advised us that one of our neighbors had just died from the plague. Welcome to the neighborhood.)

For those of you who haven’t been following this story, several cases of hantavirus—a nasty, potentially lethal disease with no known cure—have been traced back to a bevy of newish tent cabins in Camp Curry, a popular campground within Yosemite National Park. Hantavirus is associated with rodents, and it is believed that the mice that represent the disease vectors here nested in the insulation found inside the cabins’ walls.  As of writing, two people have died from the disease, a few others have become sick, and the Centers for Disease Control have announced that up to 10,000 park visitors may be at risk.

It’s difficult to assess the likely liability here, since we (or, at least, I) don’t know at least four important facts: (1) who, as between the park and its employees on the one hand and an independent contractor / concessionaire on the other, designed, built, and maintained the cabins; (2) what, if any, regulations and policy directives applied to the construction and maintenance of the cabins; (3) precisely what notice the park and /or contractor had regarding the threat of hantavirus in Camp Curry; and (4) what steps were taken to prevent infestation, post-construction. These facts bear upon the applicability of the Federal Tort Claims Act and its exception for discretionary functions, as well as the existence vel non of negligence.

It’s worth noting, however, that courts often interpret the discretionary-function exception quite broadly when they consider claims that allege that national-park employees mismanaged park resources, especially wildlife. Just last week, for example, a federal district court in Seattle dismissed a lawsuit arising out of a fatal mountain goat attack in Olympic National Park, on the ground that it generally lay within the sound discretion of park officials to decide how to manage the local mountain goat population. Earlier this year, the United States Court of Appeals for the Third Circuit affirmed a similar holding by a district court in a suit involving a barracuda attack in the Virgin Islands. Back in 2011, a Utah court reached a contrary decision in a case involving a fatal bear attack, but there, the bear already had attacked another park visitor, such that the plaintiffs could persuasively argue that it had to be destroyed, or other precautions taken.

I suspect that most judges feel out out of their element in second-guessing park officials’ decisions regarding human-wildlife interactions, unless stark facts exist that establish that park officials made a patently misguided decision. Garden-variety traffic accidents in the parks lie at the opposite extreme, for the most part, with judges being sufficiently familiar with these fact patterns that they accept a more searching, skeptical role. Somewhere in the middle lie signage cases, which certainly have their analogues in conventional civil practice, but which suffer from the sense that parks should remain relatively pristine, leaving more room for official discretion than would exist outside of a parks setting. This split raises some interesting questions regarding the appearance versus the reality of “expertise,” but those questions are probably best left for another time.

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Fossil Cycad National Monument: An Anniversary, of Sorts

Almost exactly fourteen years ago, around the time I began law school, I attended an informal presentation by an esteemed history professor at Yale, Robin Winks. The presentation was part of a series with the theme “Works in Progress.” Professor Winks told me and the dozen or so other attendees that his work in progress involved a book that would detail his visits to every single unit—more than 300 of them—within  the National Park system.

Professor Winks’ punctilious nature compelled him to visit not only currently recognized parks, monuments, and historic sites, but also those that had been decommissioned, transferred to another authority, or abolished outright. (National parks and monuments are creatures of statute and executive order, and therefore can of course be abolished by legislative act. Here is a list of parks and monuments that have met this fate.) In doing so, he tracked down and surveyed what remained of the one abolished monument that I knew well from my days as a seasonal ranger: Fossil Cycad National Monument, in South Dakota.

Fossil Cycad National Monument had a short, sad life. A prehistoric cycad resembled a modern palm tree, and served as Dinosaur Chow back in ancient times.  Discovery of a large bed of fossil cycads in the southern Black Hills in the late 1800s led to the designation of a monument there in 1922. (Then, as now, there were no strict criteria for qualification as a national park or monument, leading to dubious designations like the gone, and rarely remembered, Sully’s Hill National Park in North Dakota. A similar dynamic sometimes appears with sports halls of fame, where early selections for enshrinement sometimes seem ill-considered once time passes, and the criteria for inclusion become more settled. Fossil Cycad and Sully’s Hill represented, essentially, the Candy Cummings and Tommy McCarthy of the national park system.) As it turned out, however, no one really cared that much about a bunch of fossilized palm trees. No visitor center was ever built on the site, and no caretaker was appointed to ward off looters. Not that there was all that much to loot; as it turns out, all of the cycads visible from the surface were probably already gone by 1922, when President Harding created the monument.

And so, precisely 55 years ago–on September 1, 1957–Fossil Cycad National Monument was officially abolished by an act of Congress. Today, what was once Fossil Cycad National Monument is indistinguishable from the surrounding ranch land.  And unfortunately, we’ll probably never get to read Professor Winks’ impressions of the site. He died in 2003, before he published his book. I’ve often wondered what became of Professor Winks’ notes relating his journeys; I would love to read them, if they still exist.

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Dinesh D’Souza and “Life After Bork”

First of all, if Gerard thinks that a little thing like Clint Eastwood at the RNC is going to preempt my sixteen-city Conversations With A Chair tour, he’s sorely mistaken.

Turning to more pressing matters, with his new film, “2016: Obama’s America,” conservative pundit Dinesh D’Souza is back in the news.  It seems like a lifetime–or more accurately, 25 years–ago when D’Souza was a young staffer at the Reagan White House. There, he wrote memos like this one: “Life After Bork,” which I copied from the archives at the Ronald Reagan Presidential Library during a visit there a few months ago. 

In this memo, prepared after the Robert Bork nomination debacle, D’Souza offers some interesting (possibly prescient) thoughts about how future nominees should be packaged and present themselves. I’ll leave it to those of you who download the memo to identify its highlights. As for its missteps, consider the closing words of this excerpt: “Our solace here lies in two facts: first, it is entirely consistent with original intent jurisprudence that important decisions rest with legislative bodies; and second, no future liberal Democrat is going to be able to sail through the way that Thurgood Marshall, Abner Mikva and Ruth Ginsberg [sic] did.”

Wait, what?

 

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Some Words of Advice for Law Students, from 1811

As the year draws to a close, it might be worthwhile to review the following advice, provided to American law students (clerks, really) precisely two centuries ago.  These words of wisdom come from William Wright’s Advice on the Study of the Law, as published by Baltimore’s Edward J. Coale  with “additional notes for the American student” back in 1811.  (One can view the complete text here, on Google Books.)

  • The student should commence with a firm resolution to become one of the most eminent attornies [sic] of the age : and though the difficulties which he will at first meet with may be great, he should not despond; because despondency will produce negligence. Let him persevere, and he will succeed.
  • Genius is more equally distributed among mankind than is generally allowed. . . . If all men would accustom themselves to reflection, few would be ignorant; and their want of reflection proceeds from their own folly and love of leisure, and not from the insufficiency of their natural endowments.
  • Habits of attention and application, properly directed, produce what is commonly called genius.
  • The student should make himself most intimately acquainted with the practice which is likely to be the most useful.
  • Mankind will undoubtedly form their opinion of the morals and attainments of the young lawyer from those of his companions. . . . If he selects for his confidential friends the libertine, the dishonourable, the malevolent, the trifler, or the uneducated, among such he will himself be classed.
  • The companions of a student should be few; if they are numerous, he will probably be induced to sacrifice more time to friendship and pleasure than is consistent with his professional duties, and his hopes of honourable distinction.
  • Politeness, says Lord Chatham, is benevolence in trifles. This then is all I require of the student.
  • Young men should carefully guard themselves against forming any attachment, even upon honourable principles, till years shall have matured their judgment, and a proper course of study supplied them with knowledge sufficient to enter on the world and to transact their professional business with accuracy. Attachments formed too early in life are commonly of a romantic nature, and tend to dissipate thought and unhinge the mind, and seldom terminate so happily as lively imaginations are willing to expect.
  • An attorney should commence his professional labours with the laudable resolution of preventing litigation, as much as possible; for petty suits are always vexatious, and seldom productive of advantage either to the litigant parties or to society.
  • When consulted professionally, a young attorney should not, if he can avoid it, give his opinion hastily; but consider and re-consider.
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Some Selected New Year’s Resolutions of the Federal Judiciary

Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit:

Write at least one opinion in which every word is a contraction

United States Supreme Court Chief Justice John Roberts:

On June 29, at precisely 6:30 a.m., move part in hair from left side of head to the right side; change it back moments later

United States Supreme Court Associate Justice Sandra Day O’Connor (retired):

Track down John Riggins; tell him to “loosen up”

Guido Calabresi, Senior Judge, United States Court of Appeals for the Second Circuit:

Climactic showdown with 101-year-old Ron Coase atop the Eiffel Tower

United States Supreme Court Associate Justice Anthony Kennedy:

Finally receive “SWNGVOT” personalized license plate from the Washington, DC, Department of Motor Vehicles

***

If any of you have heard of any other judge’s resolution, please feel free to relate it in the comments below.