Archive for the ‘History of Law’ Category
What would LBJ do?
posted by Spencer Waller
I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate. This is the third volume of his-yet unfinished biography of the life of LBJ. This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.
All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.
Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President. First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power. Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.
These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957. Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960. Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support. To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.
Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition. Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible. The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made. The Southerners opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely. The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era. Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.
Does this remind you of anything currently going on in the Senate? We are seeing the same type of struggle now play out in the Senate over health care reform. Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding. Some bill, any bill, will probably ultimately pass. Obviously Harry Reid is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.
But the issues of power, leadership, and strategy remain. Is some bill better than no bill? Is this the first step to more comprehensive reform down the road? Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking? While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?
***
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October. I look forward to the new group of guest commentators for November including my Loyola-Chicago colleague Mike Zimmer.
October 31, 2009 at 6:58 pm
Tags: Civil Rights, filibuster, Harry Reid, health care, LBJ, Lyndon Johnson, Majority Leader, Master of the Senate, Robert Caro, Senate
Posted in: Civil Rights, Current Events, Health Law, History of Law, Politics, Race
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Shame on the Brits!
posted by Nate Oman
By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you! Read the rest of this post »
October 22, 2009 at 7:50 am
Posted in: History of Law, International & Comparative Law, Jurisprudence, Just for Fun, Law Practice, Politics, Weird
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Fire — Good or Bad?
posted by Jon Siegel
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?
October 16, 2009 at 6:28 am
Tags: statutory interpretation
Posted in: Architecture, History of Law
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The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid
posted by Spencer Waller
By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.
A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.
The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.
On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.
By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.
To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.
I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.
October 6, 2009 at 9:55 am
Tags: Chicago, Civil Procedure, Civil Rights, class actions, Constitutional Law, Olympics
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Culture, History of Law, Race, Supreme Court
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The Policy Arguments for and Against Driving on the Right Side of the Road
posted by Nate Oman
Generations of law professors have always insisted that there is some class of rules where the particular content of the law is less important than that we have some clear answer to a question. The paradigmatic example is a rule specifying which side of the road one ought to drive on. The decision, so the argument goes, is entirely arbitrary so long as we all pick a side.
Not so it would seem. Read the rest of this post »
August 24, 2009 at 8:04 am
Posted in: Current Events, History of Law, Jurisprudence
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Government Lawyers’ Ethical Obligations and the War on Terror
posted by Andrew Taslitz
Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.
These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.
The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.
May 8, 2009 at 4:05 pm
Tags: Add new tag
Posted in: Book Reviews, Civil Rights, Constitutional Law, Criminal Procedure, Culture, Current Events, History of Law, Law Practice, Politics
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Lawrence Friedman and the History of Privacy
posted by Neil Richards
I recently uploaded to SSRN a short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy (Stanford 2007). No book is perfect, but this one is probably the best book on the history of privacy law that I have read.
Here’s the abstract of my review:
A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic – a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.
May 7, 2009 at 8:42 am
Posted in: Articles and Books, Book Reviews, Cyberlaw, History of Law, Law and Humanities, Privacy
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The Forgotten Man
posted by Gerard Magliocca
A book that is getting a lot of attention these days is “The Forgotten Man: A New History of the Great Depression” by Amity Shlaes. Shlaes argues that FDR’s policies prolonged the economic downtown (or at least did not help). Now that we are in another severe recession, her book is being invoked by those who oppose to President Obama’s interventionist measures (such as economic stimulus) as evidence that the New Deal was a failure.
Let’s assume for purposes of discussion that Shlaes is right about the economics. Is that the end of the matter? I don’t think so. The next question is whether activist government was necessary to prevent something worse from happening. I’m not talking about a dictatorship. I’m simply referring to a political movement in favor of even more interventionist or redistributive policies that would have gained traction because the government was not doing enough.
April 22, 2009 at 8:30 am
Posted in: History of Law
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John Bingham
posted by Gerard Magliocca
After I finish my book on Populist and Progressive era constitutionalism, my next book will be a biography of John Bingham (1815-1900), the principal drafter of Section One of the Fourteenth Amendment. It’s a bit daunting, as I’ve never written a biography before and much of the relevant material is scattered around the country. Nevertheless, given his importance (Hugo Black called Bingham the “James Madison of the Fourteenth Amendment”), he really deserves a full-fledged biography (not to mention an HBO miniseries, if anyone wants to buy the rights from me). There was one written by Erving Beauregard about twenty years ago, but it is pretty obscure and was based on an inaccurate view of Bingham’s role that dates back to Charles Fairman’s flawed scholarship in the 1940s.
April 8, 2009 at 12:45 pm
Posted in: Articles and Books, History of Law
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John Hope Franklin 1915-2009
posted by Gerard Magliocca
I wanted to note the passing of John Hope Franklin, the great historian of the African-American experience in this country, who passed away last week. Professor Franklin was part of Thurgood Marshall’s team during the Brown litigation, and his 1947 book “From Slavery to Freedom: A History of American-Americans” is still considered a classic in the field.
I had the pleasure of meeting Professor Franklin three years ago when I was doing research at the FDR Library in Hyde Park. The reading room there is rather small and only a few people were there when he came walking in with a librarian who blurted out, “Hey, everybody! It’s John Hope Franklin.” We all went over to chat and he couldn’t have been more gracious, asking me about my work in detail. (He did seem a tad disappointed when I told him I was a lawyer rather than a historian, but that passed quickly.) I was struck by his approach because I’d seen an interview with him not long before where he explained that as a young man he met W.E.B. Dubois, who was pretty nasty and dismissive towards him — a lowly graduate student. He made sure not to treat others that way.
John Hope Franklin led an exemplary life as a scholar and a citizen. We can all aspire to that standard, but it’ll be hard to match.
April 4, 2009 at 8:52 am
Posted in: Civil Rights, History of Law
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Law and Tradition (herein of Iowa, Coke, Hale, and Selden)
posted by Nate Oman
In the Iowa Supreme Court’s opinion declaring traditional marriage unconstitutional, the justices dealt with the claim that the law was justified because it protected the integrity of the tradition of heterosexual marriage. The opinion states:
A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification.
As presented by the Court (and for all I know as presented by the attorneys defending the law), the argument sounds circular and absurd. As a technical matter the court was applying intermediate scrutiny, but as presented by the Court the appeal to tradition would seem to fail even a rational basis test.
To anyone with a familiarity with the history of the common law, the notion that the appeal to tradition is circular or vacuous is striking. The classical common law theorists of the seventeenth century – Coke, Hale, and Selden – thought that tradition was the primary justification for the law’s authority. Independent of the particular issue of same-sex marriage, the Iowa Supreme Court’s opinion shows how far our legal thinking has traveled.
It is, of course, always easy to dismiss the strange thoughts of the past as so much benighted nonsense, and to look at the seventeenth century appeal to tradition as a bit of rhetorical clap trap and nothing more. Certainly, there was more than a little bit of fiction in the appeal to immemorial custom. The appeal to tradition, however, was not without its reasons.
There are, it seems to me, at least three reasons for adhering to tradition because it is tradition.
April 3, 2009 at 10:20 pm
Posted in: Constitutional Law, History of Law
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Government Competence During Recessions
posted by Dave Hoffman
An often raised objection to President Obama’s economic policy (or its natural extensions) is that the government is ill-suited to run private firms. I want to raise two counter-arguments that I think diminishes the force of that claim, and which I haven’t seen elsewhere: (1) government workers are smarter during severe recessions; and (2) we know more than we used to about what makes non-profit governance work.
1. Government Eats Brains During Severe Downturns
Because it is familiar, consider the market for legal jobs. A year ago, or two, top law students would be trading present income for the possibility of future income & (difficult to quantify) life satisfaction if they took a job with a government agency instead of a large private firm. That calculation being uncertain, many argued that government jobs were disproportionately filled by individuals seeking to increase the power and prestige of the State, i.e., that they weren’t maximizing wealth. Today, that calculation looks different. Students have to consider the likelihood that the firm will rescind their offers, either before they start work or after. (Odds helpfully summarized here.) So, assume that a student has an offer from (say) Ditto Dot, LLP, with a starting salary of $150K, and she determines that the likelihood that the firm will honor its offer is 50%. The student’s expected salary, obviously, is 75K. A DOJ job (taken after a clerkship) pays in that zone, and there is zero chance that the job will disappear. Since the likelihood that some of these firms will honor their offers appears to be significantly lower than 50%, the DOJ now “pays more” than large parts of the private sector. (Incidentally: another argument against increased federal judicial pay.) Thus, the competition for government jobs should be much more fierce today than it was last year, and will be severe in the Fall hiring season. The result ought to be better qualified government lawyers at all levels.
This same dynamic will be in play in other government departments, including the Treasury & the Fed. During very severe recessions, Washington will be a tremendous talent magnet. Thus, though it is true that the government will never be as nimble as a private firm, our views about its relative level of competence may be unduly influenced by its performance during the times of plenty that we’ve had over the last two generations. Better employees should lead to better government work.
2. Non-profit organizations can work well
At the same time, I think that the claim that the profit motive is necessary to drive effectively governed institutions also needs a bit of rethinking. Universities and other complex non-profits thrive because of internal cultures of performance, driven by strong leaders. Nonetheless, they can be incredibly effective, at making money (consider the success of Yale’s endowment), at inculcating loyalty, at being stable, etc. The literature on non-profit governance is just beginning to influence the legal academy, but appears to offer some promising ideas about how to structure a non-profit so that it can function well absent traditional market pressures. The government, though not a non-profit technically, ends up looking something like it in terms of how its employees are governed and rewarded. We might draw on the lessons of the NP literature in thinking about how to organize the new public-private firms that we’ve seized – at least for the brief period of time that we will be running them.
April 1, 2009 at 10:09 am
Posted in: Current Events, Economic Analysis of Law, History of Law
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The Bard of the Financial Crisis
posted by Nate Oman
Over the weekend, I re-read A Merchant of Venice, and I was struck by the fact that Shakespeare manages to include in the play virtually every element of the current financial crisis. Scene one begins with a discussion of risk assessment, and Antonio’s belief that he has managed to tame the vagaries of commercial fate through diversification. Asked by Salarino if he “Is sad to think upon his merchandise” (I.i.40), Antonio responds:
Believe me, no. I thank my fortune for it
My ventures are not in one bottom trusted,
Nor to one place; nor is my whole estate
Upon the fortune of this present year.
Therefore my merchandise makes me not sad. (I.i.41-45)
Having ignored the problem of fat tails and black swans, Antonio decides to engage in a bit of dodgy finance. He borrows in the wholesale market from Shylock under terms that appear favorable, but have a huge downside in the unlikely event of his default. Antonio, of course, is unconcerned. From his point of view he is getting cheap money by taking on what seems like an extremely remote risk. He then takes these borrowed funds and uses them to make what can only be described as a no doc, subprime loan. Bassiano wants money for a speculative venture — the wooing “In Belmont [of] a lady richly left” (I.i.161) — and Antonio agrees, in effect renting out his credit rating:
Try what my credit in Venice can do;
That shall be racked even to the uttermost
To furnish thee to Belmont to fair Portia.
Go presently inquire, and so will I,
Where money is; and I no question make
To have it of my trust or for my sake. (I.i.180-185)
Shylock, for his part, does not approve of the loose monetary policy in Venice, which he rightly blames on wild lending practices, such as Antonio’s loans:
How like a fawning publican he looks.I hate him for he is a Christian;
But more, for what is low simplicity,
He lends out money gratis and brings down
The rate of usance here with us in Venice. (I.iii.38-42)
March 24, 2009 at 11:33 am
Posted in: Articles and Books, Bankruptcy, Behavioral Law and Economics, Consumer Protection Law, Contract Law & Beyond, Current Events, History of Law, Humor, Law and Humanities
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The Worst Contract Ever
posted by Nate Oman
I just finished Simon Schama’s Rough Crossings: Britain, Slaves, and the American Revolution. I leave an assessment of its ultimate merits to the historical experts on slavery in the late 18th-century Atlantic world, but I thoroughly enjoyed the book. By taking characters that usually sit at the margins of narratives about the American Revolution — slaves who escaped to British lines — and placing them at the center of the story, a story that ultimately sits in Britain looking west rather than American looking east, it made an old story new. Also, despite his efforts at even handedness, one can’t help but pick up on the fun that Schama is having poking at American hypocrisy and lauding “British Freedom” (the name that one of the escaped American slaves actually took). To be sure, Schama is at pains to point out the frequent expediency and hypocrisy of British policy toward African-Americans. This is not a bit of Rule Britannia flag waving. Still, reading about Glanville Sharpe and other English abolitionists, or the final English general in America — Guy Carleton — a blustering non-entity who nevertheless refused to abandon escaped slaves to their masters, despite pressure from Washington and more-or-less explicit language in the Peace of Paris gave my inner Anglo-phile a thrill. As a contract geek, however, the most fascinating part of the book was the story of The Zong, an episode that surely must stand as the most hideous example of perverse incentives in the history of contract drafting.
January 9, 2009 at 12:13 pm
Posted in: History of Law
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William Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791
posted by Daniel Solove
I’m delighted to announce the publication of William J. Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602 – 1791 (Oxford University Press, January 2009). The book has just come out in print, hot off the press, and it’s an absolutely essential volume for any scholar of constitutional history, criminal procedure, or the Fourth Amendment.
Cuddihy’s book is the most comprehensive history of the Fourth Amendment I’ve ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it’s worth every penny.
I first encountered the book as an unpublished manuscript (which was completed over 15 years ago) when I was doing research into the history of the Fourth Amendment. I kept seeing it cited in articles and judicial opinions (it was cited by the U.S. Supreme Court a few times) and so I tracked it down. I couldn’t believe that this detailed, exhaustive, and immensely valuable research had never been published. William Cuddihy wrote it while a doctoral student under the late eminent legal historian Leonard Levy. I contacted Cuddihy and helped him find a publisher. And so I’m delighted that the manuscript is now in print, revised, updated, and with an afterward that responds to scholarship by Akhil Amar and Thomas Davies. I wrote a short preface for the book, in which I conclude:
No other work on the Fourth Amendment has synthesized so many sources, let alone done so as deftly and clearly as Professor Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791. I am very honored to introduce it.
Get your copy today. Tell your librarian to get a copy for your school’s library. It’s truly an impressive book, and is indispensable for anyone who wants to understand the origins of the Fourth Amendment.
December 18, 2008 at 6:41 pm
Posted in: Articles and Books, Book Reviews, Constitutional Law, Criminal Procedure, History of Law, Privacy, Privacy (Law Enforcement)
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Soothsayer Law
posted by Nate Oman
According to the WashPo, St. Johnsbury, Vermont has decided to make the plunge and legalize soothsaying. It turns out that a number of jurisdictions still have anti-fortunetelling statutes on the books. Contemporary Pennsylvania law, for example states:
A person is guilty of a misdemeanor of the third degree if he pretends for gain or lucre, to tell fortunes or predict future events, by cards, tokens, the inspection of the head or hands of any person, or by the age of anyone, or by consulting the movements of the heavenly bodies, or in any other manner, or for gain or lucre, pretends to effect any purpose by spells, charms, necromancy, or incantation, or advises the taking or administering of what are commonly called love powders or potions, or prepares the same to be taken or administered, or publishes by card, circular, sign, newspaper or other means that he can predict future events, or for gain or lucre, pretends to enable anyone to get or to recover stolen property, or to tell where lost property is, or to stop bad luck, or to give good luck, or to put bad luck on a person or animal, or to stop or injure the business or health of a person or shorten his life, or to give success in business, enterprise, speculation, and games of chance, or to win the affection of a person, or to make one person marry another, or to induce a person to make or alter a will, or to tell where money or other property is hidden, or to tell where to dig for treasure, or to make a person to dispose of property in favor of another. (18 Pa.C.S.A. § 7104 )
The law apparently dates back to an 1861 state statute. A quick Westlaw search reveals reported cases dealing with anti-fortunetelling statues in California, Illinois, Maryland, New York, Washington, and other states.
Witchcraft and cursing, of course, were crimes at common law on the straight-forward theory that they were a method of harming others that ought to be suppressed. One may dispute the metaphysics behind this crime, but as a normative matter it seems simple enough. One might even object to love potions as a kind of officious intermeddling. The suppression of fortunetelling — along with other forms of beneficent magic like peering in stones to find lost treasure — however, rests on a more subtle calculation, some of it less than pretty.
September 7, 2008 at 5:42 pm
Posted in: Consumer Protection Law, Contract Law & Beyond, Criminal Law, Culture, History of Law
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Eric Muller on the Lies of Hirabayashi
posted by Daniel Solove
Professor Eric Muller (U. North Carolina School of Law) has posted a new paper, Hirabyashi: The Biggest Lie of the Greatest Generation on SSRN. From the abstract:
This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in the case of Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. While the government’s submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of a Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans. Even more disturbingly, the archival record demonstrates that at the time that Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.
The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the “Oriental” as an invading horde may have overpowered the lawyers’ evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision – which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures – deserves to be installed in the Supreme Court’s Hall of Shame, alongside Korematsu, Dred Scott, and the Court’s other biggest mistakes.
According to Eric’s blog post about his article: “My article documents all of this from primary archival sources, and then goes on to speculate about what might have led Justice Department lawyers to such a large and consequential deception.”
August 19, 2008 at 10:10 pm
Posted in: Articles and Books, Consumer Protection Law, History of Law
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The History of Contract Law and Bibliographic Angst
posted by Nate Oman
My research assistant recently asked me if I could suggest a good book to read on the history of contract law. I had him for contracts last spring, I talk a fair amount about history in my class, and he’s interested (or at least is pretending to be to make me feel better). I found myself a bit tongue tied. Were he English, the answer to the question would be easy enough. Read P.S. Atiyah, The Rise and Fall of Freedom of Contract, A.W.B. Simpson, A History of the Common Law of Contract, or David Ibbetson, A Historical Introduction to the Law of Obligations. Indeed, given that the history of American contract law is in part at least the history of English contract law, I mentioned all of these books but then dismissed them. They aren’t really what he was looking for. He wants something a bit more recent and American with a bit less emphasis on the medieval writs and the seventeenth century revolution in assumpsit. So what to suggest?
July 31, 2008 at 12:00 pm
Posted in: Contract Law & Beyond, History of Law, Law School (Teaching)
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Cardozo and Posner on Contracts and Torts
posted by Lawrence Cunningham
Several recent inquiries (for example, here and here) investigate aspects of judicial decision making, including empirical studies of influence, reputation and productivity.
A decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.
This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental and pragmatic method (although Cardozo showed hints of a proto-pragmatist). Notably, Cardozo’s and Posner’s reproduction frequency shared a couple of similarities. Each had an aggregate of 13 opinions reproduced in the casebooks and 6 of each of these had appeared in just 1 casebook apiece. On the other hand, Cardozo had 2 opinions that were clearly canonical, being reproduced in nearly every casebook, while Posner’s most frequently reproduced opinion appeared in only 2/3 of the books.
This summer, I’m beginning a like inquiry on comparative judicial contributions to Torts. Some similarities and some differences from the Contracts study appear in the preliminary data (being ably developed by my research assistants, Matt Albanese, Dana Parsons and Paul Stepnowsky).
July 1, 2008 at 10:50 am
Posted in: Contract Law & Beyond, Economic Analysis of Law, Empirical Analysis of Law, History of Law, Jurisprudence, Law School (Teaching), Legal Theory, Tort Law
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“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh
posted by Nate Oman
I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.
Where Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.
According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.
June 10, 2008 at 12:37 pm
Posted in: Articles and Books, History of Law, International & Comparative Law, Jurisprudence, Legal Ethics, Legal Theory, Religion
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