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Category: History of Law

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.

2

Going to Church to Sue Your Neighbor

puritan_men.jpgOf late I have been doing research on the resolution of civil disputes — tort, contract, and property cases — in ecclesiastical courts. Of course there are still religious communities that handle all intra-member litigation “in house.” I am surprised, however, how common this was among Americans in the 17th, 18th, and 19th centuries. It turns out that many American denominations are descended from either Calvinists or Anabaptists. Despite various nasty theological disputes in the 16th century, both groups were enthusiastic about the idea of church discipline and thought that one of the things that true Christian churches needed to do was excommunicate members who misbehaved. It was only a hop, skip, and a jump from this basic commitment to discipling members to a literal reading of passages in Matthew and Paul’s Letters to the Corinthians where the New Testament insists that disputes between brethren ought to be brought before the church rather than being taken before the ungodly. The result is that groups like the Quakers, the early Baptists, and the Mormons were all at one time or another quite aggressive about disciplining church members who sued other church members in secular court. However, rather than simply punishing members for hiring a lawyer, these disciplinary proceedings became a way in which congregations took jurisdiction over the underlying dispute, provding an ultimate settlement on the merits.

I wonder, however, if there was something more than theology and the perennial quest for low-cost dispute resolution at issue here. In particular, early Americans seem to have been a litigious lot. Roger Williams, for example, described one of his neighbors as “the salamander always delighting to live in the fire of contention as witnesses his several suits in law.” (In the folk cosmology of early America, the salamander was a creature that could live the heart of a fire.) Many of his compatriots seems to have shared this trait. That being the case, litigation was, if not a major life activity for many early Americans, at the very least was a very significant one. By shifting the forum in which this activity occurred from secular to ecclesiastical courts, religious groups were able create yet another bond with their members. Home is not only where the heart it. It is also where you litigate, particularlly if you are a salamander.

Finally, there seems to have been theatrical component to the interaction between litigation and religion. Brigham Young, for example, delivered a facinating sermon in 1856 denouncing litigation not only for the way in which it created discord among litigants but also as a demoralizing spectacle that tempted people to the courthouse to watch the show. Indeed, his denunciation of litigation sounds in many ways like contemporary denunciations of the theatre by Evangelical Protestants. The Mormon reaction to courts was much like the Mormon reaction to theatres (or dancing, another moral bugbear of the Second Great Awakening): rather than prohibiting it, they brought it in-house. Hence, dances were held in temples and church houses, plays were sponsored by ecclesiastical associations, and litigation was brought before “judges in Israel.” Once within the religious fold, however, litigation continued to be a spectacle and a show. Religious groups, however, radically changed the moral content of the performance. The amoral tourney of wits between trickster lawyers was transformed into a passion play of confession, repentance, and reconciliation as parties in ecclesiastical cases were frequently required as part of their settlements to perform acts of public atonement before their congregations.

2

The Law & Economics of Quaker Litigation

quakers.bmpI feel duty bound to write a post defending the honor of 17th century Quaker grandees. Their reputation has suffered enough. The Quakers had (still have?) a tradition of discouraging intra-Quaker litigation in the secular courts. In England, Quaker eschewal of litigation was founded in part on the religious inaccessibility of the courts. Courts required oaths, and Quakers, taking Christ’s admonition in the New Testament to “swear not” literally, refused to take oaths. Once the Quakers started founding settlements in America, however, this problem went away, as Pennsylvania law allowed for “affirmations” in place of oaths, an explicit religious accommodation that eventually found its way into the Constitution. Nevertheless, Quaker sermons and pamphlets continued to insist that Friends should resolve their disputes amicably before the Monthly Meetings of the Society rather than sue in the secular courts.

In his book Of “Good Laws” and “Good Men”: Law and Society in the Delaware Valley, 1680-1710, William Offutt compared the records of the Monthly Meetings with the local court records to determine the extent to which Quakers actually lived up to their own sermons. What he found was that despite the nominal threat of excommunication for filing suit against another Friend, Quakers were quite enthusiastic about suing one another. Looking at the records of the Monthly Meetings, in turn, he found that congregational leaders were more likely to “sue” other congregational leaders before the Monthly Meetings but that Quaker leaders were perfectly happy to sue ordinary Quakers before the secular courts. Offutt rather archly suggests that the reasons for this had to do with the (hypocritical) desire of Quaker elites to maintain their images with other Quaker elites. Economics, however, suggests a more charitable reading of the actions of Quaker leaders.

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14

The Athenian Model

redrope.gifThe USA Today reports that shirking jury duty is an worsening problem. In response, local registrars are becoming punitive:

Tulare jury candidates who fail to show are warned that they could be found in contempt of court. If they do not respond, a second letter is sent, warning that a warrant will be issued for their arrest . . .

In Danville, Ill., a 19-year-old woman was found in contempt of court and sentenced to 14 days in jail for failing to appear for jury duty.

In Topeka, no-shows have been fined up to $100 a day.

In Grand Rapids, Mich., warrants were issued recently for the arrests of 56 people who failed to go to court and explain why they couldn’t serve.

It’s a trend. A foolish one. Why are folks always reaching for sticks, when there are carrots near to hand?

Seriously, jailing citizens for failing to be civic minded is, I think, a bad way of encouraging compliance. Why not try shaming, as the Athenians did with their famous red rope?

But, backwards.

Jurors ought to be given a public reward that will encourage norms of civic engagement. Like, say, a bumper sticker (“I love my state so I served on a jury.”), a t-shirt (“I’m not too sexy for jury service”), a newspaper advertisement (“Pennsylvania salutes its jurors . . . “), or a red ribbon. Such small rewards will have the incidental positive effect of making people happier with the experience itself. Jail time, by contrast, will only reduce civic support for the jury system, and will be unlikely to be enforced at levels sufficient to really deter shirking. And, tangible rewards are better than the empty rhetoric that currently marks the legal system’s approach to the reward-punishment problem:

“Conscientious service brings its own reward in the personal satisfaction that an important task has been well done. The effectiveness of our system of justice is measured by the integrity and dedication of the jurors who serve in our courts.”

9

Trial by Lots

paper_rock.jpgAfter one particularly frustrating and confusing day in law school, I remember vehemently defending trial by ordeal to one of my classmates. (Unfortunately, I was that kind of law student.) For example, in ancient Israel they seem to have resolved litigation from time to time by resort to a kind of holy set of dice, known as the Urim and Thummim, which would be cast to decide who would win a case. There is much to commend such a system. It is quick, efficient, eliminates any advantage that one party might have because of wealth or power, and in an actuarial sense it is completely predictable. One can’t say the same thing, for example, about American tort law. It would seem that the Honorable Gregory Prensell of the U.S. District Court for the Middle District of Florida shares some of these sentiments. In Avista Management, Inc. v. Wausau Underwriters Ins. Co., No. 6:05-CV1430ORL31JGG, 2006 WL 1562246 (M.D. Fla. June 6, 2006), he issued the following order:

This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion–the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts–it is

ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED.

I still think it would have been cooler if Judge Prensell had ordered the parties to throw a set of sacred dice.

11

Anthony Trollope on Lawyer TV Shows

trollope.jpgOne of the unhappy side effects of a legal education is that it destroys your ability to enjoy lawyer movies and attorney TV shows. After I acquired the vast expertise of a single semester of law school, my wife informed me that I had become absolutely insufferable as a partner for watching “Law & Order” because I kept saying things like “That isn’t really how it works…” And “Law & Order” is actually a pretty accurate lawyer show. (Of course, watching ER with my wife is a pain.) Well, it would seem that legal nitpicking of the portrayal of the law in fiction is not new. I recently found the following complaint written by Anthony Trollope in his novel Phineas Finn (1869):

The poor fictionist very frequently finds himself to have been wrong in his description of things in general, and is told so, roughly by the critics, and tenderly by the friends of his bosom. He is moved to tell of things of which he omits to learn the nature before he tells them – as should be done by a strictly honest fictionist. . . . And then those terrible meshes of the Law! How is a fictionist, in these excited days, to create the needed biting interest without legal difficulties; and how again is he to steer his little bark clear of so many rocks, — when the rocks and the shoals have been purposefully arranged to make the taking of a pilot on board necessary? As to those law meshes, a benevolent pilot will, indeed, now and again give a poor fictionist a helping hand, — not used, however, generally, with much discretion.

McCoy.jpgIt would seem that litigation (notice that there are no TV shows – or Victorian novels – about transactional lawyers) has been “the biting interest” of fiction in “excited days” for some time, and the springes of the law (to use Holmes’ wonderful phrase) have been trapping unwary writers for many years.

Of course it could be worse. I once watched “24” with a friend of mine who works for the CIA. He would constantly be saying things like, “I can’t tell you guys any more, but this part is SO NOT realistic.” In his heart of hearts, however, I know that he wants to be Jack Bower. (He claims to be an accountant for the CIA, but my wife and I are convinced that he is actually a free-lance assassin on the “Company’s” payroll.)

Of course it goes without saying that no matter how often lawyers pick at “Law & Order’s” nits, they all want to be Jack McCoy.

2

More on the Origins of the Footnote Fetish

A few weeks ago, I blogged on my theory of the legal footnote fetish, arguing that it arose out of the reliance of American lawyers on American editions of English treatises where the most important material was in the footnotes. Today, while doing research on another project, I came across additional evidence in support of my theory. S.M. Phillipps’s Treatise on the Law of Evidence was published in England in 1815. (There had been earlier English editions.) A year later, John A. Dunlap published an American edition to the treatise. In his introduction, Dunlap discussed — of course — his footnotes:

The design of the editor was, principally, to collect the decisions of the different courts in the United States, connected with the subject of the following work, the undoubted merit of which justly entitles it to a preference to all former treatises on the law of evidence. The exuberance of the subject itself, and a solicitude to insert every thing which could be deemed useful, have swelled the notes greatly beyond what was originally expected and intended: and yet the learned reader will perceive tha they might have been made still more extensive; that much has beeen omitted by design, and much, no doubt, through inadvertence.

My claim is that law review editors inherited from this tradition of Americanizing English treatises the same “solicitude to insert every thing which could be deemed useful” no matter how much it might “swell[] the notes greatly beyond what was originally expected and intended”.

13

Scrabble and Law French

scrabble.jpgUnder the rules of Scrabble, one cannot use non-English words. As it happens, I have married into a family that is intensely competitive about Scrabble and not above a captious reading of the rules. Naturally enough, the question arises of whether or not words in “law French” can be used in Scrabble.

Law French, of course, is the bastardized version of French that was used by the English law courts from about 1250 until about 1500. The important thing to realize about “law French” is that it is not the same thing as French, and it never was. Rather, David Franklin has observed that “law French” seems to have sounded much more like the sort of French spoken in Monty Python and the Holy Grail. To give you some feel for the language, here is an example from a 17th century case:

Richardson Chief Justice de Common Banc al assises de Salisbury in Summer 1631 fuit assault per prisoner la condemne pur felony, que puis son condemnation ject un brickbat a le dit justice, que narrowly mist, et pur ceo immediately fuit indictment drawn per Noy envers le prisoner et son dexter manus ampute et fix al gibbet, sur que luy mesme immediatement hange in presence de Court.

Not surprisingly, actual French people who have had the misfortune to become acquainted with “law French” refuse to accept it as their own language. For example, a French diplomat during the reign of Elizabeth I wrote that it “may be worthily compared to some old ruines of some faire building, where so many brambles and thorns are grown, that scarecely it appeareth that ever there had bin any house.”

Not surprisingly, this creates problem for Scrabble. Consider, for example, the words like trover, replevin, or detinue. It is not enough to claim that these are terms that are frequent in ordinary (to the extent that legalese is ordinary) conversation. I have tried that argument and lost. The response is that there are any number of Latin and other phrases that are used regularly by English speakers that are nevertheless verboten in Scrabble. For example, the word “verboten” is German. Likewise, the frequent use of, say, the phrase “vox populi” does not mean that either vox or populi can be used as Scrabble words. Detinue, my in-laws insist, is just a French word that lawyers use. Lawyers also use Latin words, they argue, and we are not giving those to you. My response is to argue that they aren’t actually French words at all. Indeed, some variations, such as “replevy” or “repleviable” were never words even in the old Norman French from which “law French” is descended.

To which they respond, “Fine. So lawyers have their own special pseudo-French language. We’re still not going to recognize it as English.”

2

Blackstone and the Origin of the American Footnote Fetish

footnote1.gifOne of the well-worn complaints about legal writing is that it is over-footnoted. One has only to open the pages of any American law review to see what folks are talking about. Interestingly, however, this does seem to be a peculiarly American phenomena. I read articles in English law journals fairly frequently, and they just don’t have to same footnote fetish as their trans-Atlantic cousins. Most folks I’ve talked to about this blame the student editors. Student editors are ignorant, and so articles get larded with footnotes either (a) to impress the editors into accepting the piece, or (b) because the student editors demand the footnotes to assuage their fear that they are publishing nonsense. (Never mind that these two explanations are not entirely consistent with one another.) For myself, I blame William Blackstone.

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