This merger, however, is bad news for voters.  It would entrust 3/4s of e-voting machines into the hands of a company whose machines rival Diebold’s for inaccuracy and insecurity.  Consider this recent example.  In 2008, ES&S machines allocated votes cast in one race to a different race that was not even on the ballot.  As a result, the wrong candidate won a state House nomination race.  Given the consolidation [...]]]> Last month, Diebold announced that ES&S would purchase its e-voting business for $5 million plus some outstanding revenue.  Diebold’s shareholders no doubt rejoiced: while the company’s ATM machines have a strong reputation, its e-voting machines brought the company only grief.  Diebold even changed its e-voting unit’s name to Premier to protect the company’s otherwise strong brand name.

This merger, however, is bad news for voters.  It would entrust 3/4s of e-voting machines into the hands of a company whose machines rival Diebold’s for inaccuracy and insecurity.  Consider this recent example.  In 2008, ES&S machines allocated votes cast in one race to a different race that was not even on the ballot.  As a result, the wrong candidate won a state House nomination race.  Given the consolidation of the e-voting market, we can have little hope that future machines will be more secure.  Ed Felten explains that  “[t]he odds of one major e-voting company breaking from the pack and embracing up-to-date security engineering are now even slimmer than before.”  Because breaking into the e-voting business is expensive due to high accreditation costs, ES&S may face limp competition in bids for upcoming contracts.  Voting administrators thus may be unable to obtain important terms crucial to transparency and accountability, such as the placement of source code in escrow.

Although voters should lament this development, all isn’t lost.  As Joe Hall notes,  California Secretary of State Debra Bowen has provided wise advice to the Election Assistance Commission with regard to the integrity of e-voting systems.  Bowen urges that the EAC require greater disclosure of vulnerabilities, the adoption of procedures that jurisdictions can follow to collect and report data about incidents they experience with their voting systems, and the systematic collection of data from election officials about how voting systems perform during general elections.  This recalls the important work of Heather Gerken in her book The Democracy Index: Why Our Election System is Failing and How to Fix It.  The EAC would be wise to adopt these proposals, especially in light of the upcoming merger.

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century.  In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire.  But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department.  On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part [...]]]> Today is the 175th anniversary of the Great Fire of 1834, which destroyed most of the British Parliament buildings. A vivid audio description, by the Parliament’s current Clerk of the Records, can be found here. 

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century.  In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire.  But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department.  On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part of the heating system of the House of Lords.  About 4 pm that afternoon, the deputy Housekeeper, Mrs. Wright, was conducting some visitors through the  Lords chamber, and the visitors noticed that the floor was hot and had smoke seeping through it so thickly that they couldn’t see their hands in front of them.  But she did nothing. 

By 6 pm, the House of Lords was on fire.  Through the night, the fire spread to the House of Commons chamber, the Commons Library, and other Parliament buildings.  Heroic firefighting action by fireman, soldiers, and private citizens saved Westminster Hall.

Obviously the fire was a terrible, devastating event.  But it did have consequences that some might regard as beneficial.  Even as the fire occurred, Augustus Charles Pugin, an architecht, rejoiced that later additions to the Parliament buildings, which he regarded as ruining the original medieval structure,  were finally gone.

And there is something else too.  I became familiar with the 1834 fire when researching my forthcoming article, Law and Longitude.  The article is a legal analysis of the controversy occasioned by the Longitude Act of 1714, which established a public prize for the discovery of a method of finding longitude at sea.  (If you’ve read Dava Sobel’s delightful book, Longitude, you know all about it.)

Much of the controversy concerned the proper interpretation of the Longitude Act, and, in accordance with modern interpretive practices, I wanted to research the Act’s legislative history.  But I couldn’t!  The history was destroyed in the fire, except for such small portions as were preserved in the official Journals of the House of Commons.

Today there is, of course, a lively controversy about the use of legislative history in statutory interpretation.  But one thing is certain:  courts couldn’t use legislative history if the history were destroyed.  Then we would be compelled to live in the textualists’ ideal world, in which we could only look at the text of the statute and try to determine what it means.

If you had the choice, would you put all legislative history to the fire?

This state of affairs may be due to the difficult nature of the task at hand.  Former NSA head General Michael Hayden recently said: [...]]]> Securing our networked environment is both crucial and difficult.  Six months ago, President Obama declared his Administration’s commitment to protect cyberspace from sabotage of all stripes.  For the President, the rise of online theft, electronic espionage, and military-related cyber assaults necessitated the appointment of a cyber czar to protect our cyber “national assets.”  The President has tried to fill that spot: Shane Harris of National Journal explains that “more candidates had declined the job than were still in the running for it.”  And despite our failed efforts at CoOp to recruit Orin Kerr for the job, the cyber czar position remains empty.

This state of affairs may be due to the difficult nature of the task at hand.  Former NSA head General Michael Hayden recently said: “There is no regime for us to work within to respond to cyberattack.  We are in a place where technology has long outstripped policy–let alone law–in term of what’s available.  We are going to have to rely on heroism instead of a plan.”  If Hayden has it right, it is no wonder that no one wants the job.

Nonetheless, the Administration may have already charted its path, one that entrusts the National Security Agency with protecting cyberspace.  According to the National Journal, Lt. General Keith B. Alexander, the NSA’s director, has been “setting up the central nervous system in the government’s campaign to defend cyberspace.”  The NSA will now, unlike the past, help oversee the networks of civilian government and privately-owned, criticial infrastructure (dams, railroads, hospitals, banks, food industry, hotels, telecommunications, postal, shipping, retail, transportation, and well everything else).  This is true even though DHS is charged with defending civilian networks and coordinating private sector protection.  Homeland Security Security Secretary Janet Napolitano said that NSA will provide DHS “technical assistance” on this issue.  In short, DHS will rely on the NSA for the tools, expertise, and resources to protect cyberspace.

So the NSA apparently will be overseeing and securing private networks, the same NSA that engaged in wholesale warrantless surveillance of Americans after 9/11 (and the agency that monitored telegrams coming in and out of the United States to detect individuals with communist ties in the 1950s and 1960s)?  Congress has, of course, limited the NSA’s warrantless wiretapping and the President has promised us greater transparency in government decision-making.  Nonetheless, NSA’s oversight over privately-owned systems and wholesale access to their contents raises serious concerns.  And because the NSA will direct these efforts in the name of national security and intelligence, little transparency will be forthcoming.  On another note, the question remains whether it was agency turf-war antics that led to Melissa Hathaway’s decision to leave government–she was the DHS official and most senior cyber expert in the White House who had been a leading candidate for the cyber czar post.  At the time of her resignation, Hathaway told the Washington Post that she “wasn’t willing to continue to wait any longer,” and she wasn’t “empowered” to make any changes.

At the same time, we erect our own digital dossiers about ourselves.  Our iPods teem with favorite songs; hard drives (and handy flash drives) store pictures and videos of loved ones.   This prompts a question about our ability to move past painful episodes, both socially and legally.  Mixed-tapes, love letters, and photos once got lost in the shuffle: tapes melted in glove compartments, letters got tossed in various moves, and photos were torn up.  Yet today digital natives may be more likely to collect, keep, and ruminate [...]]]> A recurrent theme in Dan Solove’s  important work is the privacy risks attendant to the ever-faster and powerful ability to collect, use and distribute information about us.  Digital dossiers trace and analyze our every move; millions of digital bits help tailor online and offline advertisements, educate employers and insurance companies, and otherwise impact countless decisions about us everyday.  

At the same time, we erect our own digital dossiers about ourselves.  Our iPods teem with favorite songs; hard drives (and handy flash drives) store pictures and videos of loved ones.   This prompts a question about our ability to move past painful episodes, both socially and legally.  Mixed-tapes, love letters, and photos once got lost in the shuffle: tapes melted in glove compartments, letters got tossed in various moves, and photos were torn up.  Yet today digital natives may be more likely to collect, keep, and ruminate over stored music, emails, videos, and photos than past generations.  And even if the young delete those reminders, online sellers and advertisers have long memories–their data-mining programs remember your former (and now painful) love of Led Zeppelin, Chaplin movies, and other shared (and now discarded) passions.  

Will this generation and their successors have a more difficult time moving on from difficult experiences?  Will they remain anchored, and held back, by them?  Aside from the psychological effect of sticky digital memories, will the inability to forget impact law?  Will persistent reminders of painful episodes make us more likely to seek legal action where we otherwise might have moved on?  Or will rapidly-changing technologies render software obsolete, thus having the same effect as the heat in one’s car or a move ensured the discarding of once treasured items?

Stock Xchange Image

This development has much significance.  It tells [...]]]> As I noted in a blog post late last year, Mark Zuckerberg, chief executive of Facebook, has predicted that “next year, people will share twice as much information as they share this year, and that next year, they will be sharing twice as much as they did the year before.”  He explained that “people are ever more willing to tell others what they are doing, who their friends are and even what they look like as they crawl home from a college party.  Recent statistics support his optimism (and then some).  Yesterday, Zuckerberg announced that his social networking site now has 250 million active users, up from 200 million users just three months ago and 150 million in January.

This development has much significance.  It tells us that social networking is no passing fad — it is deeply embedded in our daily lives and will likely remain so despite many parents’ dismay.  It suggests that we are more connected personally (and perhaps more distracted professionally).  And it means that we entrust Facebook with an exponentially increasing amount of data.  Facebook’s information security practices and privacy policies are thus worth watching carefully.  No doubt, this development will have other far-reaching impacts so your comments are most welcome.

Wikimedia Commons Image

This objection comes on top of earlier protests at the choice of [...]]]> The process of building a new memorial in Washington, DC always creates controversy. The forthcoming Martin Luther King Jr., National Memorial is no exception. The U.S. Commission of Fine Arts, which has veto power over the design, recently announced its objections to a model of the mammoth statue planned as a centerpiece of the site. The statue, at 28 feet intended to be significantly taller than Lincoln’s at his memorial, depicts Dr. King standing with his arms folded and a very serious expression on his face (see the model here). In a breathtakingly terrible choice of words, the Commission worried that the statute so envisioned is too “confrontational in character.”

This objection comes on top of earlier protests at the choice of a Chinese sculptor, Lei Yixin — some saying that a black person or at least an American should design the statue; others criticizing the use of Chinese granite instead of the good ol’ American kind, and others objecting that some of Lei’s earlier work celebrates Mao Zedong.

The new criticism claims to be aesthetic rather than political, but the two are so fundamentally intertwined in this setting that art cannot distinguish itself from politics. Take, for instance, the following from a Washington Post blogger:

Leaf through hundreds of photos of [King] and you see him standing before oceans of Americans, one arm raised to the sky, his mouth open in a call to unity. He reaches forward, rallying, cajoling, explaining. Or he is leaning in, head to head with Lyndon Johnson, and you can almost hear King, the gentle voice, the rock-hard logic. … Nowhere but in this proposed arms-crossed sculpture is King seen in the arrogant stance of a dictator, clad in a boxy suit, with an impassive, unapproachable mien, looking more like an East Bloc Politburo member than an inspirational, transformational preacher who won a war armed with nothing but truth and words.

Such controversy is par for the course. Several large memorials have been built on the National Mall in the last 15 years, including very large and prominent commemorations of the Korean War(1995), World War II (2004), and the presidency of Franklin Roosevelt (1997). WIkipedia quotes a writer in the Philadelphia Inquirer attacking the “pompous style” of the World War II Memorial as the sort “also favored by Hitler and Mussolini.” Disability activists agitated for a statue of FDR in which his wheelchair was visible (such a statue was later added on to the memorial). Most famous of all, remember the howls that greeted Maya Lin’s visionary design for the Vietnam Wall. And of course many have — quite correctly, in my view — criticized all these memorials for their giant scale and cacophony of cliche elements (Flags! Fountains! Inscribed quotes! Stone pillars representing something! Niches for reflection!). In this nifty illustrated essay for Slate, Witold Rybczynski tours the DC memorials and highlights, among other things, how didactic modern memorials have become, a feature surely shared by the plan for the King Memorial, as illustrated here.

Yet eventually all these were built; all are visited. More fundamentally, I wonder if this process of arguing over the nature of the memorial is itself part of its legacy. The debate captures, in miniature, the process of a culture communally shaping the narrative of its past. And in that vein, the thoughtful and diverse comments to the blog post quoted above are fascinating. For the most part, these are the kinds of comments I wish you saw more often on blogs. The very first commenter agrees with the aesthetic objection to the statue but doesn’t care if it’s “Made in China,” then someone a few down says “outsourcing of the memorial to China is appalling” but likes the design, and so on for screen after screen. This thing is a Rorschach blot!

And in the end, isn’t that a pretty good model for a memorial?

Chichén Itzá, Mexico

Christ Redeemer, Brazil

The Great Wall, China

Machu Picchu, Peru

Petra, Jordan

The Roman Colosseum, Italy

The Taj Mahal, India

I now have a completed draft of a paper that I am interested in workshopping at any school that might be interested in having an outside presenter during the summer. Here is an abstract:

Preaching in the Court House and Judging in the Temple

A number of American religious denominations – Quakers, Baptists, Mormons, and others – tried with varying degrees of success to opt out [...]]]> At last January’s AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one’s piece at other schools. Perhaps blogs can be used in the same way. Hence this post.

I now have a completed draft of a paper that I am interested in workshopping at any school that might be interested in having an outside presenter during the summer. Here is an abstract:

Preaching in the Court House and Judging in the Temple

A number of American religious denominations – Quakers, Baptists, Mormons, and others – tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Scholars of alternative dispute resolution have studied these ecclesiastical judiciaries as a chapter in the perpetual quest for low-cost alternatives to the expense and technicality of the common-law courts. Using the rise and decline of civil litigation in Mormon ecclesiastical courts during the nineteenth century as a case study, this paper argues that the move to bring civil litigation within the fold of the church must be understood against a much richer background of theological development and civic symbolism. Ultimately the Mormon courts emerged as a result of theological ideas with roots in the early sixteenth century and as a religious critique of the legal profession and the symbolic status of litigation in civic life. Likewise, their decline resulted from a combination of rising economic and legal complexity and the symbolic renegotiation of law’s meaning within the Mormon community.

If this sounds interesting to you, contact me at nboman-at-wm.edu.

1. Empire State Building, New York, NY 1931

2. The White House, Washington, DC 1792

3. Washington National Cathedral, Washington DC 1990

4. Thomas Jefferson Memorial, Washington, DC 1943

5. Golden Gate Bridge, San Francisco, CA 1937

6. US Capitol, Washington, DC 1865

7. Lincoln Memorial, Washington, DC 1922

8. Biltmore Estates/Vanderbilt Residence, Ashville, NC 1895

9. Chrysler Building, New York, NY 1930

10. Vietnam Veterans Memorial, Washingon, DC 1982

According to the survey results: “Other than the Bellagio Hotel and Casino, no building of the past decade made it in the top 30 in the poll of 2,000 people by Harris Interactive for the American Institute of Architects.”

I am also pleased that 6 [...]]]> The Wall Street Journal has the results of an interesting survey on people’s favorite architecture in America. The top 10:

1. Empire State Building, New York, NY 1931

2. The White House, Washington, DC 1792

3. Washington National Cathedral, Washington DC 1990

4. Thomas Jefferson Memorial, Washington, DC 1943

5. Golden Gate Bridge, San Francisco, CA 1937

6. US Capitol, Washington, DC 1865

7. Lincoln Memorial, Washington, DC 1922

8. Biltmore Estates/Vanderbilt Residence, Ashville, NC 1895

9. Chrysler Building, New York, NY 1930

10. Vietnam Veterans Memorial, Washingon, DC 1982

According to the survey results: “Other than the Bellagio Hotel and Casino, no building of the past decade made it in the top 30 in the poll of 2,000 people by Harris Interactive for the American Institute of Architects.”

I am also pleased that 6 out of the 10 come from Washington, DC, the city I live in.

The WSJ Law Blog notes: “Only three of the most beloved structures were law-related: The U.S. Supreme Court, which clocked in at #15, the University of Michigan Law Library at #94, and the federal courthouse in Islip, N.Y., at #97.”

More importantly, how can Lat, despite [...]]]> David Lat offers this post about a Cravath partner’s recent real estate sale. David makes some hay about a supposed tax break that made the sale even more profitable. It may be therefore worth noting that John Beerbower, the partner in question, was the lead attorney at Cravath on a recently resolved pro bono suit on behalf of the City of New York that resulted in a tax refund of $280,000,000 for New York’s police, firefighters, and sanitation workers injured in the line of duty. The refund resulting from the suit was the second largest in NYC history. (Full disclosure: I worked for John for almost two years. He’s a terrific lawyer and a wonderful person.)

More importantly, how can Lat, despite his well-placed sources (but dubious use of mensch as an adjective), have missed the key detail about that apartment, well-known to a generation of CSM summer associates: the neat round room with the amazingly detailed, historic, wallpaper?

Hat tip: BoingBoing

Ah, public monuments. They’re how we remember important events and help define who we think we are. Dan Solove’s recent posts on courthouses reminds me of how much we’re concerned with presenting the right image to communities. And there’s been a lot of writing about the function that courthouse architecture has served in American history. Moreover, lots of folks are writing these days about monuments and their meaning. Sanford Levinson’s charming book, Written in Stone covers a lot of ground in a little bit of space. And people are talking more about removing monuments from parks or renaming them (such as the Nathan Bedford Forrest Park in Memphis). Sewanee: The University of South is going through something like [...]]]>

Ah, public monuments. They’re how we remember important events and help define who we think we are. Dan Solove’s recent posts on courthouses reminds me of how much we’re concerned with presenting the right image to communities. And there’s been a lot of writing about the function that courthouse architecture has served in American history. Moreover, lots of folks are writing these days about monuments and their meaning. Sanford Levinson’s charming book, Written in Stone covers a lot of ground in a little bit of space. And people are talking more about removing monuments from parks or renaming them (such as the Nathan Bedford Forrest Park in Memphis). Sewanee: The University of South is going through something like this right now.

I haven’t seen any serious commentary (in the blogosphere or elsewhere) on the United Daughters of the Confederacy v. Vanderbilt University, decided last May by the Tennessee Court of Appeals. Perhaps, though, it warrants a little bit of attention. It has some things to say about long-term contracts, the right of donees to alter monuments (like changing the names of buildings), and even how we remember the Civil War. The case arose from the effort of Vanderbilt University in 2002 to rename a dormitory on its campus from “Confederate Memorial Hall” to “Memorial Hall.

According to the court of appeals’ opinion, Chancellor Gordon Gee began efforts to change the name when he arrived at the University in the summer of 2002. People on campus had been talking about renaming the building for some years; some thought it was appropirate. Not surprisingly, others did not. Now, name changes are incredibly controversial, and I have mixed feelings about them. There’s something to be said for keeping names up because we want to honor folks who contributed money or whose accomplishments deserve honor. Even in the case those who engaged in what some might now think of as rather reprehensible conduct, we might still want to continue to honor, because of other contributions they made. And because a name on a building is part of a tradition. On the other hand, names convey messages to folks; and sometimes those messages are unfriendly, even if not everyone sees them as unfriendly.

Chancellor Gee’s plans included changing the name of “Confederate Memorial Hall” on campus maps and on the front of the building to “Memorial Hall.” The United Daughters of the Confederacy (UDC) sued to prevent the change. The factual background is, well, a little complex. The UDC contributed $50,000 towards the building cost in the 1930s. But the history goes back to the 1910s, when the UDC was instrumental in building monuments and putting up plaques to the Confederate dead. The UDC’s history is well worth a read.

In the 1910s, the UDC began talking with Peabody College about providing funding for a dormitory. There were contracts (in 1913 and 1927), which together called for the UDC to provide $50,000 to build a dormitory. In return, Peabody would call the building “Confederate Memorial Hall” and allow the UDC to nominate young women who were descended from Confederate veterans to live rent-free in the building.

The UDC had trouble raising money. Then in 1933 there was a new contract drafted (which ratified the previous two), calling for $50,000 from the UDC and the rest of the money from the National Recovery Administration, a New Deal Agency. It provided that the agreement was void if the NRA didn’t provide funding. Turns out, that contract was never signed (that we can tell) and Peabody ended up getting funding from a bond they floated when the NRA said they wouldn’t provide money to a private school. Peabody went ahead and built the dormitory, named it “Confederate Memorial Hall” and housed young women nominated by the UDC free of charge.

Then, in 1979 Peabody, skirting the rim of bankruptcy, was acquired by Vanderbilt. As part of the acquisition agreement, Vanderbilt agreed to accept all liabilities of Peabody. But after 1979, they no longer accepted any new nominations from the UDC to house young women rent-free in Confederate Memorial Hall.

The Tennessee Chancellor found (p. 10 of majority) that it was “impracticable and unduly burdensome for Vanderbilt to continue to perform that part of the contract pertaining to the maintenance of the name ‘Confederate’ on the building and at the same time pursue its academic purpose of obtaining a racially diverse faculty and student body.” The UDC appealed.

Now watch these moves by the Judge William C. Koch for the majority of the Tennesee Court of Appeals, because I think they’re pretty interesting.

First, the court (following the Chancellor) reads a contract into the parties’ course of dealings. That is, even though the 1933 contract was never signed (and even if it had been, the NRA never provided funding), the court found that there was a contract through Peabody’s acceptance of the $50,000, through the naming of “Confederate Memorial Hall,” and through their acceptance of women to live in the the hall.

Second (see especially note 13), it found the contract was divisible between the UDC’s right to nominate women to live rent-free and the name of the Hall. If those rights weren’t divisible, then the statute of limitations would have run on the UDC’s right to enforce the contract in the early 1980s. Not surprising here. But that leads to a strange result when , third, the court awards damages on the entire $50,000. That is, while the contract was divisible into parts for purposes of statute of limitations, it was not divisible for purposes of damages.

There is a lot more than one might say about the majority opinion. One of them is: it converted the Chancellor’s interpretation of the contract as creating a charitable trust, which is subject to cy pres or other equitable modification, into a straight-out gift, which was not subject to such equitable modifications. My friend John Eason has a very good article on this, which was cited by the majority. The opinion’s also interesting to me from a property perspective. The majority requires that the name continue as long as the building stands–which sounds a lot like an equitable servitude to me. (Vanderbilt must maintain the name “Confederate Memorial Hall” on the building.) Sounds like a nearly perpetual servitude to me. As I say, there’s a lot in this rich opinion. I bet the case will be a staple of contracts (and maybe trusts) classes in the future.

But what is perhaps even more interesting to me (as a legal historian) is Judge William B. Cain’s concurrence. For those of us interested in judges’ thinking, the concurrence opens a window on the thought of Judge William Cain. It which consists in large part of a quotation from the memoirs of Union General Joshua Lawrence Chamberlain. Chamberlain is an important figure; he fought and was wounded at Gettysburg. Chamberlain accepted the surrender at Appamatox.

Before the War, he was a moral philosophy professor at Bowdoin College in Maine. (Moral philosophy professors were important in the years before the war. Stonewall Jackson taught moral philosophy at VMI, for instance. Moral philosophy was a class in applied ethics. I think we can understand much about antebellum judging by looking to moral philosophy texts, not because the lessons students learned in college controlled their behavior later, but because the texts give us an understanding of how people at the time thought. There’s some fine work on moral philosophy recently, including Mark Bailey’s Guardians of the Moral Order and Peter Carmichael’s The Last Generation. Francis Wayland, who was president of Brown University before the Civil War, wrote an important moral philosophy treatise, which is quite helpful in understanding antebellum thinking about the rule of law and things like the right (or non-right) to disobey the fugitive slave act of 1850. But now we’re getting rather far afield from the issue at hand.). My friend Jeremiah Goulka has recently published a book on Chamberlain.

Anyway, about the time of the fiftieth anniversary of Gettsyburg, as folks North and South were struggling with the memory of the war and with reunion, he published his memoirs. Judge Cain quotes Chamberlain’s text, which honored the soldiers on both North and South:

Before us in proud humiliation stood the embodiment of manhood: men whom neither toils and sufferings, nor the fact of death, nor disaster, nor hopelessness could bend from their resolve; standing before us now, thin, worn, and famished, but erect, and with eyes looking level into ours, waking memories that bound us together as no other bond;–was not such manhood to be welcomed back into a Union so tested and assured? Instructions had been given; and when the head of each division column comes opposite our group, our bugle sounds the signal and instantly our whole line from right to left, regiment by regiment in succession, gives the soldier’s salutation, from the “order arms” to the old “carry”–the marching salute. Gordon at the head of the column, riding with heavy spirit and downcast face, catches the sound of shifting arms, looks up, and, taking the meaning, wheels superbly, making with himself and his horse one uplifted figure, with profound salutation as he drops the point of his sword to the boot toe; then facing to his own command, gives word for his successive brigades to pass us with the same position of the manual,–honor answering honor. On our part not a sound of trumpet more, nor roll of drum; not a cheer, nor word nor whisper of vain-glorying, nor motion of man standing again at the order, but an awed stillness rather, and breath-holding, as if it were the passing of the dead! . . .

What is this but the remnant of Mahones Division, last seen by us at the North Anna? its thinned ranks of worn, bright-eyed men recalling scenes of costly valor and ever-remembered history.

Now the sad great pageant–Longstreet and his men! What shall we give them for greeting that has not already been spoken in volleys of thunder and written in lines of fire on all the riverbanks of Virginia? Shall we go back to Gaines Mill and Malvern Hill? Or to the Antietam of Maryland, or Gettysburg of Pennsylvania?–deepest graven of all. For here is what remains of Kershaws Division, which left 40 per cent. of its men at Antietam, and at Gettysburg with Barksdales and Semmes Brigades tore through the Peach Orchard, rolling up the right of our gallant Third Corps, sweeping over the proud batteries of Massachusetts–Bigelow and Philips,–where under the smoke we saw the earth brown and blue with prostrate bodies of horses and men, and the tongues of overturned cannon and caissons pointing grim and stark in the air. . . .

Then in the Wilderness, at Spottsylvania and thereafter, Kershaws Divison again, in deeds of awful glory, held their name and fame, until fate met them at Sailors Creek, where Kershaw himself, and Ewell, and so many more, gave up their arms and hopes,–all, indeed, but manhoods honor. . . .

Ah, is this Picketts Divison?–this little group left of those who on the lurid last day of Gettysburg breasted level cross-fire and thunderbolts of storm, to be strewn back drifting wrecks, where after that awful, futile, pitiful charge we buried them in graves a furlong wide, with names unknown! Met again in the terrible cyclone-sweep over the breast-works at Five Forks; met now, so thin, so pale, purged of the mortal,–as if knowing pain or joy no more. How could we help falling on our knees, all of us together, and praying God to pity and forgive us all!

Joshua Lawrence Chamberlain, The Passing of the Armies 260-62 (Stan Clark Military Books 1994) (1915).

What’s significant to me is the way that Chamberlain’s thoughts appear again, nearly one hundred years later, in a judicial opinion. They are a reminder of how north and south reconciled after the war and the meaning of the monuments to the Confederacy to many. As the concurrance later observed,

It is to the memory of these men that Confederate Memorial Hall was built and, to that end and at great personal sacrifice in the midst of the Great Depression, that the United Daughters of the Confederacy raised and contributed to Peabody College more than one-third of the total cost of the construction of the dormitory.

Architects have responded to a call for ideas on expanding the Mall, particularly into East Potomac Park, with visions of plazas, museums, a new Supreme Court building, stores — and beaches.

Many people’s first reactions might be: Beaches? In Washington, DC? But I’m a law nerd, so my reaction was: A new Supreme Court building? On the Mall?

Sure enough, one [...]]]> I was reading a Washington Post article about plans to expand the Mall in Washington DC because of all the clutter from new monuments, museums, and memorials. On this page, the Post has a few visions for the new expanded Mall, which would utilize East Potomac Park. I was quite surprised when I read the caption at the top of the drawings:

Architects have responded to a call for ideas on expanding the Mall, particularly into East Potomac Park, with visions of plazas, museums, a new Supreme Court building, stores — and beaches.

Many people’s first reactions might be: Beaches? In Washington, DC? But I’m a law nerd, so my reaction was: A new Supreme Court building? On the Mall?

Sure enough, one of the proposals has a new Supreme Court building sitting not too far from the Jefferson Memorial. I’m not too keen on this idea.

First, I think that the current Supreme Court building is glorious, and I wonder whether we really need a new Supreme Court building. As Jason Mazzone notes, the Court certainly hasn’t been expanding its workload of late, so why would it need more space?

Second, I wonder whether the new location is a commentary on the Supreme Court. Instead of its current location behind the Capitol, it will sit rather isolated in a place near memorials. Is this insinuating that the Court has become isolated and aloof, sitting on an island practically all by itself? Is it insinuating that the Court has become an historical relic, something that mattered once in the past but that is now relegated to serving largely as a memorial?

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