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Category: History of Law

11

Of Foxes, Hedgehogs, and Splitting Babies

kingsolomon 1.jpgLarry Solum takes the interesting continuing cross-blog discussion of foxes and hedgehogs started by Belle Lettre — including this blog’s own entry from Dan Filler — in a new direction by pointing out, politely, that the fox/hedgehog imagery is being used incorrectly. Go read Larry’s explanation, and then be sure to stay around for his delightful integration of the refined definition back into the discussion.

It made me think of other historical or literary images that are misused in modern legal discourse because so many of us are insufficiently familiar with them. I claim absolutely no high ground here — surely I do it myself. But the one that drives me crazy is “splitting the baby.” It may be objectionable as a cliche anyway, but it is even worse when used incorrectly.

In general “split the baby” gets used as a substitute for “split the difference,” “half a loaf,” or, more simply, “compromise.” (Thus explaining its frequent occurrence in legal discussions…) It shows up in that sense in places I otherwise love, like the Wall Street Journal Law Blog and NPR reports by Nina Totenberg.

The phrase originates in the Bible, specifically 1 Kings 3:16-28. Two women come before wise King Solomon, both claiming fervently to be the mother of an infant. Solomon calls for his sword and declares that he will cut the baby in two and give one half to each woman. When the true mother cries out in anguish, Solomon knows which woman should keep the child. If he had actually cut the child in half, of course, he would be remembered as a mad tyrant like Caligula and not the epitome of wise judicial temperament. Yet you might think from some lawyers’ metaphorical uses of the phrase that cutting a baby in half was laudable. One of the oldest literary or historical models of good judging deserves better from us.

Any other nominees?

[Cross-posted at Info/Law]

0

Anuj Desai on the Post Office and the First Amendment

Envelope 1a.jpgProfessor Anuj Desai (U. Wisconsin Law School) has posted his forthcoming article, The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine, on SSRN. Anuj’s paper is a fascinating history of the early Post Office and how statutory protection of letters influenced constitutional law. From the abstract:

We typically think of constitutional law as the product of text, structure, constitutional history, ethical and moral philosophy, or common law doctrine. At times, though, constitutional law comes directly from societal institutions; those institutions in turn are often rooted in legislative, not judicial, choices. In this article, I tell an intriguing story of constitutional lawmaking in which policy choices about an institution developed into constitutional law. I look at two important areas of First Amendment doctrine: First Amendment constraints on government spending, i.e., “unconstitutional conditions”; and what is known in First Amendment jurisprudence as “the right to receive.” I argue that the genesis of both doctrines can be found in legislative choices made during the formation of one of the nation’s first “administrative agencies,” a communications network that was viewed as the internet of its day: the United States Post Office. When the twentieth century Supreme Court held that the First Amendment can constrain government spending and then later, in a separate line of cases, established “the right to receive,” the Court initially relied on specific attributes of the post office. Those attributes in turn had been established by choices made by policymakers during the late eighteenth century. In short, the Court incorporated aspects of the early postal statutes into First Amendment doctrine. Legislative choices in effect became constitutional law.

I really enjoyed reading this article — it’s a very interesting piece, especially for anybody interested in legal history and First Amendment law.

1

Three Generations of Mormon Legal History

In the shameless self-promotion category, I have a new paper up on SSRN for your enjoyment. I have put up a couple of posts in the past here and elsewhere on Mormon legal history. My new SSRN paper — “Three Generations of Mormon Legal History: A Historiographic Introduction” — is meant as a primer on the subject for legal scholars interested in legal history or law and religion, as well as an argument about how I think the practice of Mormon legal history could be improved. Here is the abstract:

This is an essay on the past practice and future possibilities of Mormon legal history. For most legal scholars, the fact that there even is such a thing as “Mormon legal history” comes as a surprise, and the idea that it “should be proved . . . to be worthy of the interest of an intelligent man” may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of Mormon legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of Mormon legal history lies mainly in the idiosyncratic intellectual development of Mormon legal historiography itself. By explaining that development and introducing the work that has already been done on Mormon legal history, I hope to assist future scholars to better integrate Mormon legal experience into the mainstream discussions of the legal academy.

1

The Almost French Thirteenth Amendment

Here is a story that ought to fill don’t – cite – foreign – law – to – construe – the – constitution conservatives with horror. Of late I have been reading the legislative history of the Thirteenth Amendment. The language ultimately adopted was lifted virtually verbatim from the Northwest Ordinance of 1787. Senator Sumner of Massachusetts, however, did not like this langauge and proposed instead that the amendment should read:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States and the jurisdiction thereof.

The “all persons are equal before the law” language, however, also had a history. Sumner traced it back to the various declarations of rights contained in the constitutions of the French Revolution. He went on to note that “this article has been adopted in the charters of Belgium, Italy, Greece; so that is is now a well-known expression of a commanding principle of human rights.” Sumner’s language was defeated, of course, but not before Senator Howard had taken a swipe at Sumner’s Francophilia (and his knowledge of French history):

The learned Senator from Massachusetts, I apprehend, has made a very radical mistake in regard to the application of this language of the French constitution. The purpose for which this language was used in the original constitution of the French republic of 1791, was to abolish nobility and privileged classes. . . . It was never intended there as a means of abolishing slavery at all. The Convention of 1794 abolished slavery by another and separate decree expressly putting an end to slavery within the dominions of the French Republic and all it colonies.

Now, sir, I wish as much as the Senator from Massachusetts in making this amendment to use significant language, language that cannot be mistaken or misunderstood; but I prefer to dismiss all reference to French constitutions or French codes, and go back to the good old Anglo-Saxon language employed by our fathers . . . .

Indeed.

5

Roman Law and the Virtual Death Penalty

SPQR.jpgCriminal law is not really my area of interest, but some reading in Roman law has got me thinking about the death penalty. I’ve always found Roman history — particularlly the Republican period — very interesting and were I better at languages I would love to have been a classicist. Roman politics, especially in the late Republic, was a full contact sport as it were. Bribery, organized violence, assination, and — most importantly — criminal prosecution were an ordinary part of political hard ball.

If you read the texts of various Roman laws, particularlly very early legal texts like the Twelve Tables, it is awfully bloody minded stuff. (My favorite provision is the one that allows a debtor’s creditors to divide shares, meaning literally that they could dismember his body for non-payment of debts, presumeably on a pro rata basis.) In practice, however, the Romans were remarkably fastidious about killing one another. There was no system of incarceration, and generally speaking citizens were never executed. On the other hand, numerous Roman laws did call for the death penalty. In practice, however, someone sentenced to death was given several days before the sentence was carried out in which they could either kill themselves (this was a way of preserving the family estate) or go into exile. Indeed, by the late Republic the assumption was that a death sentence, particularlly for a political crime such as treason, was a de facto sentence of exile.

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6

Memory, the Reporters, and the Metaphysics of Law

book_report.gifI’ve been reading early nineteenth-century English contracts cases of late. One of the fascinating aspects of these cases is the way in which they deal with previously reported decisions. Everyone is familiar with the way in which judges narrow and distinguish earlier holdings. This, after all, is bread-and-butter lawyer stuff. Still, when we play this game we assume that the previous case refers to some stable and discoverable text, a judicial opinion. We can expand and contract the reasoning and pick at the facts, but the text remains the same.

Not so for the judges that I have been reading. Unlike their modern counterparts, their nineteenth-century lordships (or at least their early nineteenth-century lordships) did not seem to think that they were bound by the text of the earlier decision. Hence, judges would sometimes avoid previous, adverse holdings by noting that they “doubted” the accuracy of the reporter, and hence did not feel bound by the language cited by counsel. Of course, they didn’t do this willy-nilly. Rather, they would point out, for example, that volume 8 of Taunton’s reports was not really compiled by the esteemed Mr. Taunton and ought not to be trusted, etc. etc. Even more interestingly, leading advocates were regularly promoted to the bench, where they would then be called upon to apply cases that they had argued as attorneys. In such cases, judges seem to have felt justified in privileging their own memory of the case over the reported version.

The whole exercise raises an interesting question about the metaphysics of the law. We tend to think of law today as consisting of some set of texts. Even someone like Dworkin thinks that it consists of the interpretation of particular texts. Not so the nineteenth-century chancery judges that I have been reading. For them, law seems to have consisted of history, particular events in the past, and the point was to discover the basis of those events. Blackstone, of course, famously said that the decisions of the judges were not law but only evidence of law. He seems to have had in mind the unchanging laws of nature. More parochially, the judges I have been reading also saw reported cases as only evidence (and not always reliable evidence at that) of law, but they were looking for evidence of a somewhat less ethereal kind of corpus juris.

5

Preaching in the Court House: An Experiment in Blog Advertising

At last January’s AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one’s piece at other schools. Perhaps blogs can be used in the same way. Hence this post.

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0

Olde Fields, New Corn, and an Inscription

hlscrest.pngI have always been facinated by the confrontation between James I and Chief Justice Edward Coke over the nature of the common law. The king asserted the right to dictate the law because, he reasoned, law was simply the expression of natural reason and the king’s reason was as good as the judges. Coke responded by conceding that the law was reason, but insisted that it was an “artificial reason” that could only be gained by deep study and long experience. Coke’s response is cryptic, and historians of greater learning than I have lavished a great deal of attention on what precisely he meant in context. I take it, however, that Coke is claiming that rules built up in the law over the centuries represent a well of experience and wisdom that exceeds what we might acquire by rational construction on a tabula rasa. As it happens I am a big fan of the common law, and I tend to have more faith in judicial caususitry than in a priori philosophical speculations. In some sense, I believe in the artificial reason of the law.

Hence, I was fancinated when I ran across Felix Frankfurter’s dedication in his 1930 book The Labor Injunction. He wrote, “To Mr. Justice Brandeis, for whom law is not a system of artificial reason, but the application of ethical ideals, with freedom at the core.” The shifts in jurisprudential world views crammed into that inscription is really quite impressive. There is also a wonderful irony in the fact that Frankfurter no doubt penned these words at the Harvard Law School, which is of course covered with the law school’s crest on which are prominently displayed sheaves of wheat. The sheaves are an allusion to Coke and another of his maxims on the law: “From olde fields, springs forth new corn.” The dirt of experience and history imagined by Coke, however, strike me as quite different — less ethereal and celestial — than the “ethical ideals” for which Frankfurter praised Brandeis.

3

The Unfortunate Fate of the Law

parsonscase.jpgI sometimes think that it is the fate of the world to become boring. Consider modern litigation. To be sure, judges (along with soldiers and police) are the only government bureaucrats who get to wear special clothes and engage in formalized rituals, but I can’t help but feel that when it comes to legal spectacle, we have come down in the world.

“Court day” was an important civic ritual in nineteenth-century America. Few towns had permanent magistrates above the level of justices of the peace, and more complicated cases were handled by circuit courts that met – usually twice a year – at county seats. These gatherings were major social, economic, and political events. During the colonial period, they served to enact social hierarchies, with genteel magistrates decked out in the regalia of royal authority. In Massachusetts, for example, traveling justices were met at the county line by the sheriff, who would accompany them to the court house, where “[t]rumpets and drums or firearm volleys announced the justices’ arrival in town.” After independence, court day continued to enact social hierarchies, but it also developed into a rollicking democratic carnival. Court sessions were accompanied by peddlers on the courthouse square hawking their wares, which generally included a generous amount of alcohol. Drunken fights were common. Indeed, they were part of the appeal of court day, as one diarist complained in 1807 “a very Poor Court, no fighting or Gouging, very few Drunken people.” One veteran lawyer described Illinois court days in the 1840s and 1850s, noting that “the local belles came in to see and be seen” and the work continued in the court house “from ‘early morn till dewy eve’” while ribaldry in the tavern continued “from dewy eve to early morn.”

George C. Cooke’s 1834 painting Patrick Henry Arguing the Parson’s Case in the Hanover County Courthouse (above right) anachronistically provides an image of the kind of communal drama associated with a nineteenth-century court day. The lawyer stands in a small but packed courtroom. The spectators, who are intently focused on his oratory, crowd around a rough-hued bench where the lawyers sit. They spill out the open door into the square beyond. In the foreground is a pair of children playing in the courtroom with a hoop and stick, while in the background we see the sign for a tavern that waits to refresh the crowd of thirsty spectators. Indeed, there was a symbiotic relationship between courthouses and taverns. Many frontier courts sat in the public rooms of taverns in the absence courthouses. Likewise, in some cases taverns were purposefully established close to courthouses to service the people who gathered to watch the judges and lawyers. In short, as one scholar has written:

Courtroom trials . . . provided prime entertainment for the community. . . . [C]ourtrooms were always crowded because the drama, tragedy, and comedy of real life occurred there. With judges and lawyers as the star actors, the courtroom substituted for theater, concert halls, and the opera. Spectators in the courtroom expected a good show from the lawyers, the judges, the witnesses, and the other participants.

Of course given the American love affair with lawyer shows on television, one would assume that modern litigation has the same entertainment value. Modern lawyers know better. Laboring through discovery requests in practice, I couldn’t help but think wistfully of how much more fun it would be if the odd drunken brawl broke out during a deposition.

7

The Burkean Paradox

burke.jpgEdmund Burke was a big defender of the worth of received institutions and prejudices. If I understand his argument correctly it goes something like this:

Society has lots of traditions, practices, and prejudices that are difficult to justify with clearly stated rationales. Sometimes we do something just because that is the way it has always been done. The fact that we don’t have a clear idea about why we have a particular practice does not mean, however, that we should feel free to change it and rationalize it at will. The fact that something has survived from time immemorial means that it may well be the incarnation of collective wisdom that exceeds our rational understanding. After all, reason is limited and we might be wrong. Accordingly, we ought to afford tradition great respect, tampering with it in favor of rational redesign only when absolutely forced.

I find this line of reasoning — call it the Burkean Argument — paradoxically powerful and utterly unpersuasive. It seems powerful to me because the two central premises of the argument seem to me to be quite clearly true. Reason is a necessarily limited instrument, and there is no denying that our deepest convictions about things could be wrong. Likewise, it seems to me that the importance of social institutions quite frequently exceeds our conscious or common-sense understanding of them. Indeed, most social science is premised on the notion that the proper understanding of human institutions exceeds our common-sense understanding of them. If this was not the case, then social science would have nothing to tell us that we didn’t already know.

The problem with the Burkean Argument is that it also strikes me as equally true that some social institutions and practices are just old. We do them because that is the way that we have done them, but they are ultimately meaningless and stupid. The problem with the Burkean Argument is that it provides us with no way of telling which institutions represent the accumulated wisdom of the ages and which institutions are just old. From the point of view of the Burkean Argument the fact that we can’t see a reason for something is not evidence that it is just old. The accumulated wisdom of the ages necessarily exceeds our attempts at argument and theorization. At the same time, the absence of a clear reason for a practice is also not evidence that it represents the accumulated wisdom of the ages. It may just be old. I don’t really see any way out of this paradox. Hence, I think that the Burkean Argument is both valid and useless.

Accordingly, it seems that we are justified in either ignoring all appeals to the Burkean Argument and blithely going forward based on our own understanding. Alternatively, we can adopt a curmudgeonly conservatism, standing athwart the path of History shouting “Stop!” Down one path lies Robbespiere, and down the other lies the defense of rotten boroughs and segregation. Take your pick.