Archive for the ‘History of Law’ Category
posted by Brian Sheppard
When I first read the commentary concerning Michael Simkovic and Frank McIntyre’s “The Economic Value of a Law Degree,” I was most surprised by the attention that the commenters paid to the paper’s passing reference to the typewriter. S&M are aware that their work arrives at a time when it is popular to believe that technology has wrought a structural change to lawyers’ earnings. For their part, S&M cite Frank Miles Finch’s obloquy against typewriters in the first volume of the Columbia Law Review to show that worries of technological ruin are nothing new in our line of work. After listing several other examples (such as word processing and Westlaw), S&M maintain that “lawyers have prospered while adapting to once threatening new technologies and modes of work.”
Taken out of context, this last statement might sound as if S&M are engaging in bold fortunetelling based on a scant historical record, but a few paragraphs later, S&M concede that “past performance does not guarantee future returns” and “[t]he return to a law degree in 2020 can only be known for certain in 2020.” When read in conjunction with the rest of the paper, the typewriter reference serves as a brief and lighthearted reminder that we, like others before us, can fall victim to nostalgic gloom and doom.
Despite its minor role in the article, commenters have been eager to mention the typewriter observation, with references ranging from the favorable (here), to the neutral (here and here), to the mildly dismissive (here and here), to the critical (here). Having given some thought to the last entry on this list, Deborah Merritt’s wonderful blog entry on Law School Cafe, I now realize that I shouldn’t have been surprised by the attention paid to the typewriter; it turns out to be an important point for S&M to make.
Merritt argues contra S&M that (1) Finch was not engaging in sky-is-falling melodrama and (2) that the typewriter “may have contributed” to a structural change in lawyers’ earnings—specifically, the creation of three-year law schools and formal schooling requirements for bar admission. As to the first point, Merritt explains that Finch mentioned the typewriter to bolster his argument that apprenticeships had ceased to be a viable training environment for lawyers. He was not predicting that the typewriter would lead to the demise of his profession; rather, he was talking about the need for an adequate training substitute. As to the second point, Merritt points out that the New York bar adopted Finch’s recommendations, in part, because it was persuaded by his Columbia article. I add that the ABA would eventually adopt similar requirements as well, also referencing Finch’s article in the process. Merritt highlights that Finch’s main point was that the typewriter limited apprentices’ exposure to the study of important legal texts and created a difficult learning environment. As a result, Finch argued, law school was the far better educational option.
Merritt’s post is thoughtful, well-researched, and concise. Moreover, she is largely right. Finch was not engaging in nostalgic sky-is-falling reasoning. In S&M’s defense, however, the notion of a Typewriter Doomsday was not altogether uncommon in the early Twentieth Century. To take but one example, Arkansas law titan George B. Rose mentioned the following in a 1920 speech to the Tennessee Bar Association:
A great menace to the wellbeing of the bar is the disproportionate increase of its numbers. With the invention of the typewriter, the simplification of pleadings and the improved methods of travel, one lawyer can now do the work of two in the olden time; yet the proportion of lawyers to the remainder of the community has enormously increased.
Rose’s remarks were received with great applause and an honorary membership into the Tennessee bar.
More importantly, Merritt stands on solid ground when she argues that technological change contributed to a shift in the business practices of legal professionals and, in turn, the shape of American legal education. There can be little doubt that this shift can be described as “structural.”
But I disagree with Merritt insofar as she believes that a structural shift in schooling requirements weakens S&M’s paper. To the contrary, it helps the paper by providing a prima facie explanation for relative stability in the law degree’s value.
We must be mindful of the distinction between structural shifts in lawyers’ earnings and structural shifts in other aspects of the legal profession, such as educational requirements. Clearly, Merritt’s focus is the latter, and S&M’s focus is the former. And just because S&M have chosen to focus on one kind of structural shift does not mean that they have “dismissed” other structural shifts, as Merritt says. S&M readily acknowledge that the structural shifts can occur with law school enrollment:
These distinctions and widespread publicity may enable critics to influence college graduates’ career plans, the judiciary, and perhaps the future of legal education. They may have already contributed to a steep three-year decline in law school applications and enrollments.
The more critical point is that breaking up structural shifts into various types can be a useful analytic tool. Distinguishing between structural shifts in the value of a law degree and structural shifts in access to the practice of law permits us to make an important observation—namely, that it is possible for the latter to prevent the former. Critics of S&M doubt that the past performance of law degree holders is a reliable predictor of future performance. We can hypothesize that, to the extent law degree holders can insulate themselves from exogenous forces that threaten the value of their services, they will increase the stability of the degree’s value and, therefore, the reliability of predictions based on their past performance. The underlying reasoning for the hypothesis is as follows. All other things being held constant, those who are within service industries that have the power and willingness to manipulate the supply of available service providers will likely be better at braving exogenous shocks than those who are not. Under those circumstances, when such measures are taken to protect those already possessing the credentials necessary to perform that service, the value of those credentials will tend to be relatively stable. Whether these measures have been or will be effective enough to stabilize the value of the law degree is a question worth considering.
There are several important gatekeepers to the practice of law: law schools, the American Bar Association, state bar associations, state supreme courts, etc. These gatekeepers possess, and sometimes use, tools that have the potential to protect the economic value of the law degree. They can change the qualifications for entry, expand or contract the domain of permissible services, raise or lower rate maximums, or regulate advertising practices, among other things. And while a considerable minority of law degree holders do not practice law (about 40% according to the SIPP data that S&M consider), there are enough practicing lawyers to give protectionist measures a fighting chance to stabilize the overall value of the degree.
Merritt deserves much credit for bringing this observation to the fore in connection with the S&M paper, although she did not expand upon it (an excusable omission in light of the fact that we are talking about a single blog post).
Having the luxury of multiple posts, I will use Part 2 to discuss a few of the protectionist measures that gatekeepers have taken over the last century. I will focus in particular on the measure that Merritt discusses–the advent of a law school prerequisite for admission to the bar.
posted by Arnold Kling
I reviewed Mark Weiner’s Rule of the Clan from a libertarian perspective.
Libertarians are impressed by order that emerges in an unplanned, decentralized way. No one knows how to make a pencil, and yet through the decentralized process of market trading, pencils are made readily available. If making a pencil does not require a central planner, then why do we need a strong central government?
The Hobbesian answer is that without a strong central government, we would have the “war of all against all.” The libertarian response echoes Karl Kraus. Kraus famously said something to the effect that “psychoanalysis is the disease which it purports to cure.” Libertarians point out that the state, which purports to be the cure for the war of all against all, is the leading cause of violent death and incarceration.
Weiner’s book contains a message for libertarians that is decidedly mixed. He argues, on the one hand, that there is a decentralized order that is an alternative to a strong central government. On the other hand, this order is not at all libertarian.
The decentralized order that Weiner describes is the rule of the clan. It is a cultural system in which individuals lack what we think of as liberty. Instead, the individual is subordinate to the extended family.
Libertarians have been known to use medieval Iceland as an example proving that a strong central government is not needed to maintain order. Weiner describes medieval Iceland as an example of the clan-based system of order, but from his depiction it is clearly not a model of a libertarian society.
Weiner uses legal historian Henry Maine’s distinction between a Society of Status and a Society of Contract. Rule of the clan embodies a society of status. Libertarians want to see a society of contract.
Libertarians see the “contract theory” of existing states as a fiction. I never signed an agreement giving authority to the people and institutions of my federal, state, and local government. Instead, those people and institutions have decided unilaterally what authority they can exercise over me.
Is it possible to extend the society of contract, giving less asymmetric power to the people and institutions that constitute the government? Libertarians believes that the answer is “yes.” However, Weiner claims that wherever the people and institutions of government lack strong asymmetric power, what we observe is the rule of the clan. Libertarians are faced with the burden of showing that while he may be correct in describing the decentralized orders that we have observed, there may yet emerge a more decentralized order that does not degenerate into the rule of the clan.
posted by Danielle Citron
I could not have timed my chat with Marvin Kalb better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power: the NSA’s PRISM program and leaked FISA court Verizon order.
Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:
[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.
Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.
The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegant synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.
Here are some highlights from our conversation:
DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?
MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?
DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?
MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.
DC: What do you think of this week’s revelations about PRISM and the Verizon order?
MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read the rest of this post »
posted by Jaya Ramji-Nogales
In 2010, Samuel Moyn published “The Last Utopia: Human Rights in History“, a book that provoked its readers to critically engage with questions about when human rights emerged as an agenda on the international political scene. Moyn’s suggestion that this was a strikingly recent development (dating to 1977) raised deeper questions about the politics underlying human rights and its successes in displacing alternate utopian visions. Last year, Moyn published a book review of Jenny Martinez‘s “The Slave Trade and the Origins of International Human Rights Law” and Kathryn Sikkink‘s “The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics“, criticizing both books for insufficiently acknowledging the limitations of international human rights law as an avenue for social and political reform.
This month’s Harvard Law Review contains two new and worthwhile contributions to the debate. Philip Alston begins with a review of Jenny Martinez’s book, noting the importance of determining the origins of today’s human rights system as well as the lack of consensus around the answer to that question. Alston notes the ways in which Martinez’s book contradicts Moyn’s thesis, situating each author within a typography of historiographical debates. He critiques both, noting that they present different definitions of human rights that carry buried analytical assumptions, and suggests that a meaningful history should recognize that human rights is a polycentric enterprise. In other words, historians of human rights must examine ideas, social movements, legal traditions, and institutions in order to understand where human rights came from and where it is headed.
Jenny Martinez responds to Alston’s review, presenting a more nuanced view of her causal arguments than her critics, and taking on Moyn in the process. She agrees with Alston that human rights is polycentric, and suggests that Moyn’s definition of human rights leaves out important aspects of the larger picture. Martinez defends herself against claims that a pro-human rights bias infuses her work, and argues that an accurate account of human rights prior to 1977 is crucial in understanding the role of international law today and drawing lessons for current legal institutions.
The books and articles are worth reading for the rich factual analysis alone. But there’s more to human rights history than that. This is one of the most provocative debates in recent years about the analytical framework through which we understand human rights. As Alston notes, “[t]here is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy.”
posted by Deven Desai
Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.
His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:
A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.
The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”
I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.
Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?
Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.
So why clans now?
Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.
Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.
Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.
The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.
I think you are saying there is something about clans that helps us organize and understand our world. What is it?
It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.
By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.
Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?
March 19, 2013 at 1:47 pm Tags: clans, Constitutional Law, international law, rule of law, terrorism, War on Terror Posted in: Articles and Books, Bright Ideas, Constitutional Law, History of Law, International & Comparative Law, Jurisprudence Print This Post One Comment
posted by Deven Desai
What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.
Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.
posted by Bruce Boyden
Hello again Co-Op! I’m happy to be back for a short guest-blogging stint that was, er, supposed to start in January but Danielle graciously allowed me to postpone into February. I’m hoping to make up for the radio silence in the last couple of weeks of the month. Anyway, without further adieu, today’s topic: Over at Prawfsblawg, a vibrant debate is going on about the perennial subject of how to best teach law school. There’s a lot of good things to be said on both sides of the that debate. I’d like to call attention in particular to the comment by Ray Campbell, which is devoid of the absolutes that tend to abound in this area. I’ve expressed my own thoughts on this topic during previous go-rounds here and here and here.
But by “perennial,” I meant that this debate is really ancient. It far pre-dates the recent financial crisis and downturn in the legal market. It pre-dates the Carnegie Report in 2007. It pre-dates the MacCrate Report in 1992. It pre-dates the 1921 Carnegie Report. Indeed, it pre-dates most law schools altogether. Benjamin Spencer’s recent article on the skills vs. doctrine debate — which includes the question of who would be the best teachers for whatever it is the students should be learning — shows that it goes back to the 1870s, and an ABA Report that concluded that the existing method of study — one taught mainly by professors with substantial practice experience — was “too brief for useful purposes,” and that the schools were inviting “unfit” and unprepared students to fill their seats, were giving “examinations, which are such only in name,” and were allowing “degrees [to be] thrown away on the undeserving and the ignorant.”
I was reminded of the length of time these sorts of discussions have been going on when I recently stumbled across a letter from the man pictured above, Louis Brandeis, to Dean Christopher Columbus Langdell of Harvard Law School. Langdell, of course, is possibly the single person most responsible for the form of legal education we have today. It was his idea at Harvard to replace classes taught by practicing lawyers with classes taught by academic law professors, hired soon after graduation after perhaps only a short judicial clerkship, and to extend the length of the program from eighteen months to three years. In particular, it was Langdell’s idea to teach law as a science, devoted to learning the general principles that pervade the law as revealed in cases, but not necessarily constituting the law of any particular jurisdiction. That is, Harvard would focus on a generalized notion of tort law, contracts law, etc., one that had the advantage, as Charles Whitebread used to say about the Model Penal Code, of being equally the law nowhere.
Brandeis was a product of that model. He graduated from Harvard Law School in 1878, eight years after Langdell had started reforming Harvard and the first year the program was extended to three years. But a little more than ten years later he thought substantial alterations should be made to the curriculum. Brandeis worried, in effect, that Harvard Law students were not learning enough actual law:
To Christopher Columbus Langdell
December 30, 1889 Boston, Mass.
My Dear Prof. Langdell: My experience as one of the examiners for admission to the Suffolk bar has impressed upon me the importance of adding to the instruction at the School a thorough course on the peculiarities of Massachusetts law. I am aware that the introduction of such a course involves apparently a departure from the present policy of the School, but my experience and observation have convinced me that such a course would increase the usefullness as well as the membership of the School, and I therefore venture to submit to you with some detail my views of the proposed course, and the reasons which induce me to advocate it. Read the rest of this post »
posted by Gerard Magliocca
I’ve always thought that a great book is waiting to be written about the British perspective on the American Revolution. For example, have you ever seen the official response to the Declaration by King George III? I hadn’t until recently. Here it is.
His Majesty’s Most Gracious Speech to Both Houses of Parliament on Thursday, October 31, 1776
My Lords, and Gentlemen,
Nothing could have afforded Me so much Satisfaction as to have been able to inform you, at the Opening of this Session, that the Troubles, which have so long distracted My Colonies in North America, were at an End; and that My unhappy People, recovered from their Delusion, had delivered themselves from the Oppression of their Leaders, and returned to their Duty. But so daring and desperate is the Spirit of those Leaders, whose Object has always been Dominion and Power, that they have now openly renounced all Allegiance to the Crown, and all political Connection with this Country. They have rejected, with Circumstances of Indignity and Insult, the Means of Conciliation held out to them under the Authority of Our Commission: and have presumed to set up their rebellious Confederacies for Independent States. If their Treason be suffered to take Root, much Mischief must grow from it, to the Safety of My loyal Colonies, to the Commerce of My Kingdoms, and indeed to the present System of all Europe. One great Advantage, however, will be derived from the Object of the Rebels being openly avowed, and clearly understood. We shall have Unanimity at Home, founded in the general Conviction of the Justice and Necessity of Our Measures.
. . .
My Lords, and Gentlemen, in this arduous Contest I can have no other Object but to promote the true Interests of all My Subjects. No people ever enjoyed more Happiness, or lived under a milder Government, than those now revolted Provinces: the Improvements in every Art, of which they boast, declare it: their Numbers, their Wealth, their Strength by Sea and Land, which they think sufficient to enable them to make Head against the whole Power of the Mother Country, are irrefragable Proofs of it. My Desire is to restore to them the Blessings of Law and Liberty, equally enjoyed by every British Subject, which they have fatally and desperately exchanged for all the Calamities of War, and the arbitrary Tyranny of their Chiefs.
posted by Kyle Graham
This past summer, I spent a few weeks down at the Huntington Library in Pasadena, which houses Los Angeles County’s court records for the years 1850 to 1900. There, I perused the Los Angeles District Court’s civil case files for the 1850-1859 time frame. (The district court of that era functioned as a state superior court does today.) I wanted to see what, if any, personal-injury actions were filed during that span—the Paleozoic Era of tort law—in what was (at the time) a very small, somewhat sleepy community.
The unsurprising answer: There weren’t a whole lot of personal-injury cases back then, at least in the district court. Out of the hundreds of case files that I reviewed, I didn’t come across even a single personal-injury case that sounded in negligence; there were four such cases that involved batteries or assaults. Debt-collection actions provided the vast majority of the district court’s docket. Other recurring case types included petitions for divorce; personal-service and other contract disputes; efforts (for naught) to recover on gambling debts; suits over horses, cattle, and timber that today, would sound in conversion or trespass to chattels; and a hodgepodge of other matters.
I wasn’t particularly surprised by the dearth of personal-injury lawsuits sounding in negligence. For one thing, there weren’t a whole lot of negligence lawsuits of any type, anywhere, back then, and there certainly wasn’t a robust infrastructure of caselaw and treatises that might advise small-town attorneys about how they should pursue a personal-injury claim sounding in negligence. Consider, for example, this 1852 New York legal formbook. The book includes draft complaints that allege claims for breach of promise to marry; “for keeping a dog used to bite mankind”; for criminal conversation with one’s wife; for debauching one’s daughter or servant; for assault and battery; and for false imprisonment–but nothing (aside from the vicious-dog suit, perhaps) that indicates how a negligence personal-injury suit should be alleged. Furthermore, 1850s Los Angeles wasn’t exposed to some potent harm-creating agents that would provide grist for the personal-injury mill (and catalyze claim consciousness among potential plaintiffs) in the decades to come. Among them, Los Angeles County wasn’t served by a railroad at the time, it didn’t boast other heavy industry, and it didn’t have the steamboat traffic that, say, Sacramento did.
I’m a torts partisan, but I still found the case files interesting. For one thing, depositions were a heck of a lot shorter back in the days before typewriters; the need to have a local notary transcribe the proceedings by hand apparently placed strict de facto limits on litigants’ ability to wear out a deposition witness with questions. Complaints were short and to the point, too, at least for the most part. Also, I wondered about the consequences of, or possible gamesmanship associated with, some local attorneys’ utterly inscrutable handwriting.
In case any of you are wondering how an 1850 tort case was pled, the following represents the entirety of a complaint (minus the caption and signatures) drafted by local attorneys and filed with the Los Angeles District Court that year:
Your petitioner George W. Robinson a resident citizen of the state and county aforesaid and plaintiff in this suit complaints of Jose Lugo, a citizen of the State of California and of the County of Los Angeles and Defendant in this suit for that whereas heretofore to wit on the 20th day of July AD 1850 in the county of Los Angeles and State of California the said Defendant with force and arms to wit with pistols [lassoes?] + guns then and there assaulted and violently beat the said plaintiff in his person inflicting upon him the said plaintiff [?] and various wounds and bruises to wit four severe wounds on his head four wounds on his right arm four wounds on the left arm ten wounds on the body ten wounds on the right led ten wounds on the left leg whereby and by reason whereof the said plaintiff was greatly injured suffered much pain and loss of blood was put to great expense in paying physicians to effect a cure of the aforesaid wounds and suffered much loss of time being unable by reason of said wounds to pursue his lawful and necessary business as he otherwise could and would have done and also put him the said plaintiff to much other trouble expense pain and inconvenience by reason of the aforesaid assault and battery, whereby and by reason whereof the plaintiff avers that he has been damnified and hath sustained damage to the amount of ten thousand dollars the said plaintiff further complains and states unto the Court that at the time and place aforesaid the said plaintiff then and there being a free citizen of the State of California and having a free full and perfect right to enjoy his liberty he the said Defendant then and there willfully maliciously and without any just or reasonable cause whatsoever with force and arms and deadly weapons (and without and legal process whatsoever) pursued seized upon and bound with cords the person of the Plaintiff thereby [?] him the said plaintiff of his liberty for a long space of time to wit for the space of three days whereby and by reason of the premises the plaintiff avers he was put to great pain and trouble in body and in mind as well as great inconvenience and loss of time whereby and by reason of the premises he avers that he has been damnified and hath sustain and demands of defendant damage to the amount of twenty thousand dollars and therefore he brings suit.
posted by Kyle Graham
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.
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:
To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.
The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.
August 30, 2012 at 9:30 am Tags: constitution, Constitutional Law, Courts, founding, framers, history, Politics, Supreme Court Posted in: Constitutional Law, Courts, Current Events, History of Law, Jurisprudence, Law Rev (Stanford), Politics, Supreme Court Print This Post No Comments
posted by Gerard Magliocca
I turned the Bingham biography into the publisher today. While there will be more changes in the coming months, the clock is running for publication. Thanks to all of you who read drafts or helped me along the way. You’ll be properly acknowledged in the final product!
Now, back to watching the Olympics.
posted by Gerard Magliocca
I’ve put the Bingham biography though the first of what promises to be many revisions. In thinking about the project from 30,000 feet , I think the most revisionist part of the book involves Thaddeus Stevens’ role in Reconstruction.
Stevens was (and still is) a lightning rod for that period. To critics, he was a fanatic who wanted vengeance (in contrast to Lincoln’s conciliatory approach) and was willing to keep the South under military occupation for decades, if necessary, to achieve his aims. To admirers, he was the most egalitarian Republican leader and the only one who understood that, without wealth redistribution and an extended federal presence, the South would revert to its racist ways and deny equality to the former slaves. What everyone seems to agree on, though, is that he was the leader of the House Republicans and the most dominant figure on Capitol Hill until his death in 1868.
My research calls his power into question. It would be more accurate to say that he and Bingham were the two leaders of the House Republicans, and when they disagreed Bingham usually prevailed. This means that more of the credit and the blame for Reconstruction falls on Bingham’s shoulders, and the debate between Stevens and Bingham turns out to be far more complex than most think.
Blogging from me will be light or nonexistent in the next few weeks. Other projects need attention.
posted by Gerard Magliocca
One question I’ve been asked is whether I’ll write another biography and, if so, about whom. I’m not sure, but I do have some ground rules that are helpful for anyone considering this kind of project.
1. Never write about a living person.
This is true for several reasons. First, it’s a story without an ending. Second, the person can do a lot to control or influence the book. Third, other people are far less likely to tell you the truth about the subject. Fourth, lots of relevant documents will be unavailable.
2. Don’t write about someone who is famous only as a judge.
Judges are generally boring people, though there is the occasional exception who has a colorful personal life (Justice William O. Douglas). If a judge had an lively political or professional career before going to the bench (Earl Warren, for example), then that can work, but a book that just moves from one opinion to another is tough sledding.
3. Find someone about whom no book has been written in decades
If you want to make money, writing another book about Lincoln or Washington is fine. To make a scholarly contribution, though, you need to say something new. That can be done about an old subject because new documents or new insights come with every generation. Thus, the fact that a book was written about X fifty years ago does not preclude writing another book now.
4. They have to be important enough (or fascinating enough) to justify a couple of years of your working life.
My leading candidate–and I’m starting to think hard about this–is James Wilson. Wilson was born in Scotland and emigrated to the United States in the 1760s. He wrote one of the first sophisticated pamphlets challenging parliamentary supremacy over the colonies, signed the Declaration of Independence, was one of the most influential members of the Constitutional Convention, and served as one the first Supreme Court Justices. He is largely unknown because he died on the run from creditors after making a series of bad investments in land. The last full biography of him was written in the 1950s, so this might be a good time to do one. Plus, there’s always room for another Founding Father book.
posted by Dave Hoffman
From the federal courthouse comes the very sad news that Senior District Court Judge Louis Pollak has died. Judge Pollak, a jurisprudential giant, mentor to many, and former dean of both Yale and Penn Law Schools, served on the bench from 1978 until his death. He will be missed.
(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)
posted by Danielle Citron
The American Society for Legal History announces the Paul Murphy Prize to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. The award will be given out two times only, in 2012 and 2013. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.
The award honors Paul L. Murphy (1923-1997), who spent much of his career at the University of Minnesota where he rose to the rank of Regent’s Professor of History and American Studies. At the time of his death, he was in the second year of his term as president of the ASLH. During his tenure at Minnesota he became one of the nation’s leading constitutional historians and a mentor to generations of undergraduate and graduate students. Among his most important books were: The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972); World War I and the Origin of Civil Liberties in the United States (1979); Historic Background of the Bill of Rights, Vol. 1 (1990); and The Shaping of the First Amendment: 1791 to the Present (1991). In addition, civil liberties played a fundamental role in the argument he developed in what was likely his most influential book, The Constitution in Crisis Times 1918-1969 (The New American Nation Series, 1972). Murphy’s commitment to civil liberties and his passion for the subject was evident in his deeds as well as his words. He was an ardent and committed member of the American Civil Liberties Union throughout his life. For additional information on Murphy please see the tribute to him in the Law and History Review, 16 (Spring 1998), ix-xi.
To be considered for this award, authors or nominators should send a book proposal with chapter descriptions, a discussion of the book’s contributions, and a time-line for completion; a sample chapter; and a c.v. to committee chair Mary L. Dudziak (firstname.lastname@example.org). Submissions via e-mail are preferred, and attachments can be in Word or PDF. Please put “Murphy Prize” in the subject line. If you must submit by hardcopy, please send four copies of these materials to arrive by the deadline to this address: Professor Mary L. Dudziak, USC Gould School of Law, 699 Exposition Blvd, Los Angeles, CA 90089. The deadline for receipt of proposals for this year’s award is June 30, 2012.
Members of the Murphy Prize Committee are:
Mary L. Dudziak, Chair, University of Southern California
Robert Kaczorowski, Fordham University
Serena Mayeri, University of Pennsylvania
David M. Rabban, University of Texas
posted by Kyle Graham
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.
posted by Kyle Graham
I’ve chipped away at the K2-esque stack of Crim Pro and Torts exams that sit on my desk. Plus, if I grade another examination right now, my margin comments will consist solely of “all work and no play makes Jack a dull boy.” So, notwithstanding my earlier prediction that grading would prevent further posts, I am allowing myself this entry as a reward and respite.
Here, I want to share an (arguably) interesting video with this blog’s readers. As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case. The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood. As those of you who teach Crim Pro, or who took this course in law school already know, Katz is the wellspring of the “reasonable expectation of privacy” standard that has become the touchstone for Fourth Amendment analysis.
I use PowerPoints in my classes, and I’ve been searching fruitlessly for good visuals for the Katz v. United States case for some time. Stock photos of 1950s college-age kids stuffing themselves into telephone booths, movie posters for the Colin Farrell vehicle “Phone Booth,” and my simple line drawings don’t really convey the scene quite as well as I would like.
Toward this purpose, while procrastinating from grading examinations today, I came across a website that hosts several scrolling videos of the Sunset Strip in Los Angeles, circa the mid-1960s. I thought that one of these videos might show the fateful bank of phone booths, and in any event, continuing my search for same would provide an extremely valid excuse not to grade more exams.
According to the Ninth Circuit’s opinion below in Katz, the bank of three phone booths that Katz used was on the 8200 block of Sunset Boulevard. And, sure enough, if one scrolls down to the fourth video on the page—the one that’s 2:48 in length—about 49 seconds in, one can see a bank of three phone booths on the 8200 block. (How do I know which block this is? The Jay Ward studios—home of Bullwinkle the Moose, and featuring a conspicuous Bullwinkle statue in front—were located at 8217 Sunset Boulevard, quite close to the phone booths.)
I don’t know for certain that these are the phone booths involved in Katz (the caption for the video indicates it was recorded in 1967, whereas the facts in Katz took place in 1965; plus, I don’t know whether there was another set of phone booths on the [unfilmed] north side of the street), but they might well be. Just thought I’d pass it along; even if these aren’t the same phone booths, the video conveys a nice sense of time and place for the case.
posted by Kyle Graham
D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:
1. Criminal Procedure DVD Offer
First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.
I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.
So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester. (Emphasis here on “hopefully.”)
2. Criminal Procedure < 1965 Interview Subjects Wanted
Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.
In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.
I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.
In any event, happy holidays to you all.
posted by Kyle Graham
I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays. In a related story, this will be my last guest-blogger post on the site. Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience. It’s been fun, at least for me.
I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.) This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.
The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should govern a tort suit stemming from a driver’s unanticipated seizure behind the wheel. Unlike Summers v. Tice, which I discussed in a previous post, Hammontree has not cast a substantial precedential shadow. The appellate opinion is short, and gives little sign that the court considered the issue presented to be especially difficult.
The significance of the Hammontree decision derives from its leadoff spot in Franklin, Rabin & Green’s casebook Tort Law and Alternatives, which I use in my Torts class. (I’ve spoken to both the defense attorney at trial in Hammontree and the defense attorney on appeal; both were quite surprised that the case found its way into a textbook.) The authors leverage the case in a variety of ways, using it to introduce the distinction between strict liability and negligence, along with themes such as legal ethics, the mechanics of a tort case, and the nature of precedent.
Last year, I went down to Los Angeles court archives and dug up copies of the original court filings in Hammontree for the use of my students, and others. If anyone is interested in these documents (I find it quite helpful to show novice one-L students what a complaint, answer, motion for summary judgment, etc., look like, which goes a long way toward demystifying these documents), I’ve given them to Christopher Robinette over at the TortsProf blog, who kindly has posted them here.
The documents didn’t contain any big surprises, but they did harbor a few facts that may be interesting and useful to those of you who teach the case. Now that I’ve scared off (or bored to death) 99 percent of this blog’s readers, I’ll explain to the hardy few who remain, after the jump.