Category: History of Law


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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An Unusual Call to the Law

woodruff.jpgLaw seems to be a profession that produces family dynasties. For example, I clerked for a judge who was the scion of a great Southern legal family that had a duo of distinguished federal appellate judges and a couple of state supreme court justices to its credit. The Oman family, however, is but one generation removed from high country ranching on the western slope of the Rockies. I have, however, unearthed some judicial ancestors through my paternal grandmother.

My great, great grandfather was a man named Justin Call. He was born in Utah in the last half of the 19th century and came of age as the confrontation between the Mormon Church and the federal government reached white-hot intensity. The Mormons had committed themselves to creating a religious (indeed theocratic) commonwealth in Great Basin that was to include communitarian economic experiments, religious direction on political questions, and — most notoriously — polygamy. Not surprisingly, an America devoted to ideals of companionate monogamy and economic individualism was not about to let the Mormon viper rear its ugly head on the nation’s hearth. The result was a series of ever more punitive laws between the 1860s and the 1880s directed against Mormon polygamists and the Mormon Church as an institution. By 1890, thousands of Mormons had been incarcerated for polygamy and “unlawful cohabitation,” the Mormon Church lay in financial ruin with essentially all of its assets confiscated by the federal government, tens of thousands of Mormons had been disenfranchised, and Congress stood poised to pass legislation that would purge all Mormons from the voting rolls. Faced with institutional annihilation and permanent political subjugation for his people, Wilford Woodruff, president of the Mormon Church, issued the so-called “Manifesto,” which began the tortuous process of abandoning plural marriage and Mormonism’s 19th-century utopian ambitions.

Ironically, the Mormon efforts to resist the federal legal campaign had been hindered by their own anti-legalism. Zion — the name that Mormons gave to their vision of the godly society — was to be a place ruled by love and justice, not by the pettifogging technicalities of the common law. Accordingly, Brigham Young and his associates treated Mormons to a good generation or two of sermons denouncing the evils of lawyers and “going to law” against one’s brothers and sisters. Hence, when the legal confrontation came, Mormons found themselves without many — in Young’s phrase — “lawyers of their own to defend them.”

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The Oldest Law School

Litchfield.jpgWhat is the oldest law school in America? Being something of a frustrated historian and living with the two schools that duel for the this title, I’ve looked into the question. Harvard Law School claims to be “the oldest continuously operated law school” in the United States. William & Mary Law School, however, claims to be “the oldest law school in America.” Of course, neither of them is right.

Harvard’s claim is based on the fact that the Royal Professorship of Law was endowed at Harvard in 1806 (the money, incidentally, came from the sale of West Indian slaves) and continues to be a chair at the law school today. Not bad. William & Mary, however, can assert an earlier claim. In 1779 the college made George Wythe professor of law and police. At this point complications arise. William & Mary’s claim to preeminence is complicated by the Civil War. During the war the college shut down, and when it started again after the war their were no law professors. It wasn’t until the 1920s that William & Mary started up its law school again.

Interestingly, if you talk to folks at Harvard about this issue, they see the real competition not as William & Mary, but as the Litchfield Law School. In large part, this is probably simply New England snobbery toward all things intellectual south of the Mason-Dixon Line, but there is a certain logic to Harvard’s anxiety. Tapping Reeve was an attorney in Litchfield Connecticut in the 1770s. To supplement his income he, like many lawyers, took in clerks, who paid him some fee, did basic work, and in return learned the law from him. Reeve found that taking in clerks was lucrative enough that he began multiplying them until in 1784 he began using a very small, one-room school house to give law lectures in. The Litchfield School, however, did not survive petering out in the early 19th century.

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Dreyfus's Induction into the Legion of Honor J’accuse enfin le … conseil de guerre d’avoir violé le droit, en condamnant un accusé sur une pièce restée secrète….

Today is the 100th anniversary of the end of one of the more astounding legal episodes in modern history, the Dreyfus Affair. French President Jacques Chirac marked the occasion on July 12 (Fr.; BBC coverage) by giving a speech honoring Alfred Dreyfus, a French artillery captain convicted of treason in 1894. July 12, 1906, was the date on which the Supreme Court of Appeal reversed Dreyfus’s conviction and finally proclaimed him innocent; on July 21, in recognition of all he had been through, Dreyfus was made a Chevalier of the Legion of Honor in a ceremony held at the Ecole Militaire. In response to cheers of “Vive Dreyfus!”, Dreyfus famously responded, “No, gentlemen, I beg of you. Vive la France!”

The Dreyfus Affair is a story about an egregious abuse of the legal system, driven primarily by a powerful current of French antisemitism and by a desire to shield the French military from its own mistakes. It involves procedurally flawed court-martials, secret evidence, conspiracies, theft of government secrets, deportation to a brutal island prison, leaks to the press, leak prosecutions, riots by antisemitic mobs, and a cover-up and whitewash perpetrated at the highest levels of the French military. As that list should indicate, the affair is ripe with allegorical potential, for all sorts of different purposes, but Americans aren’t very familiar with it.

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The Cruel Irony of Property Rights


I have an acquaintance who is working on Ph.D. in early American history. Her dissertation is on the institutional ownership of slaves, and a recent conversation with her has gotten me thinking. Focusing her research on Virginia, she has found that slave owning by churches was quite wide spread. Apparently this was mainly an Episcopalian and Presbyterian thing. (Methodists and Baptists were less enthusiastic.) Then, as now, the wealthy would often make bequests of property to churches, mainly for the support of ministers. Also, churches would sometimes purchase slaves as a way of investing their endowments. The interesting question is whether or not being owned by a religious corporation made a slave better or worse off.

I confess that when I first heard about this, I was hoping that the answer would be that slaves were better off by being owned by churches. I was hoping that Christian notions of charity would have played at least some role in how slaves were treated, and that the churches would have ameliorated the injustice of owning slaves with some humanity. Not so. The answer, however, has less to do with the ideological failure of Christian charity — although that seems to have happened to be sure — than with plain old fashion property rights. In most congregations, church property was not controlled by the minister but by the vestry, a committee of powerful members of the congregation. The minister was often simply a salaried employee who served at the pleasure of the vestry. The vestry, in turn, tended to be cheap. They weren’t always excited about expending scarce church funds of things like doctors for injured slaves or other expenditures to ameliorate their condition. In particular, when a church owned slaves but lacked the capital to provide for them, it was sometimes extremely difficult for the vestry’s to raise funds for slave-related expenses. In contrast, slaves that were privately owned were regarded as an expensive investment that many owners were unwilling to wantonly harm through a false economy. In short, institutionally owned slaves where quite literally victims of the tragedy of the commons.

In a cruel irony, clearer property rights in human beings in this case seems to have improved their material condition.


Cyberspace as Marchland

Wind Farm at South Point, HIThe picture I provided to Dan for his introductory post was taken at South Point on the Big Island of Hawaii, which my wife and I visited last month on our honeymoon. South Point is, as the name implies, the southernmost point on the Big Island and therefore the southernmost point in the United States. It is accessible only via an 11-mile-long, one-lane, barely paved road that cuts directly through a sparsely inhabited, windswept plain to the ocean. At the end of the road, the only signs of life are the makeshift parking lot for visitors, a nondescript navigational beacon, and a rickety pair of boat launches. The area is as isolated as it looks. Although other parts of the island are booming, particularly the area around Kona, the south side of the island, and South Point in particular, has been left behind. The guide books all warn against paying for parking at the nearby “Visitor’s Center;” in fact it is an abandoned building, and the people charging are squatters, not state employees. The proprietor at one of the B&B’s we stayed at told us that people go to live at South Point when they don’t want to be found.

The area is also littered with the remains of failed business ventures. One of the more spectacular of these is the wind farm just north of South Point, pictured above. I have no idea who built the wind farm, or why. But there are now several dozen wind mills standing in various states of disrepair. A few still spin, making a plaintive low whistle that you can listen to if you stop the car and turn the engine off (your entertainment mileage may vary). Most are rusted in place. Several have one or more blades missing. The scene reminded me of what Shelley must have had in mind when he wrote Ozymandias, thinking of Luxor and knowing little of ancient Egypt’s history:

“My name is Ozymandias, king of kings:

Look on my works, ye mighty, and despair!”

Nothing beside remains: round the decay

Of that colossal wreck, boundless and bare,

The lone and level sands stretch far away.

The whole thing strikes me as an apt metaphor for cyberspace. Getting there requires tying South Point and Ozymandias to colonial America, turbulence, the Gunfight at the O.K. Corral, and peer-to-peer filesharing.

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Our Founding Fruitcakes?

Trumbull, The Declaration of IndependenceHello! I’m excited to try this whole blogging thing from the other side of the comment line. Thanks to everyone at Concurring Opinions (Co-Op? Con-Op?) for letting me visit for a bit.

My research at the moment focuses on copyright and content protection (a/k/a DRM), but I thought I’d start off with one of my other loves, history. (If academics are divided between hedgehogs and foxes — “The fox knows many things, but the hedgehog knows one big thing” — I’m definitely more of a fox.) And what more appropriate topic, given the recent July 4th holiday, than the Founding and what it means for constitutional interpretation.

Lawyers tend to revere the Founding as a magical moment of almost perfect democracy. Obviously, most are aware that many of the Founders owned slaves, and that suffrage was limited to white male property holders. But the Founders created a democratic nation that has lasted and thrived for over two centuries, and it seems reasonable to attribute to them some special wisdom and foresight in establishing a political culture and a government that would withstand the whips and scorns of time.

I’m not saying that’s wrong, exactly. But it is interesting to go back and look at what was actually motivating the revolutionaries in that “magical moment,” and to discover them saying some things that make them look positively bonkers. What does that mean about the significance we should attach to what the Founders thought about anything? For example, should we continue to take the Founders’ fear of executive power seriously?

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18th Century Venture Capitalists

dismal.jpgAs I posted earlier, of late I have been reading Virginia history. I have one title to suggest: Charles Royster, The Fabulous History of the Dismal Swamp Company. It is an tremendously detailed history of one of the great 18th century land speculations, the attempt to drain and sell the Great Dismal Swamp on the Virginia-North Carolina border. George Washington was one of the movers and shakers in the company, but other characters in the story include names like George Wythe, Richard Henry Lee, Patrick Henry, and a host of other luminaries from the American Revolution, as well as lesser known names like Christopher Gist, a Virginia merchant who helped to found Lloyd’s maritime insurance business.

Royster is a good writer and — for me at least — the narrative works nicely. The research represented by the book is awe-inspiring and the result is an enormous wealth of detail about everything from family politics (everyone who was anyone is colonial Virginia was related to everyone else) to imperial politics. At the center of the story, however, is what amounts to a venture capital deal.

To me one of the most fascinating parts of the story is the role that the events of the American Revolution play in it. The Dismal Swamp Company was founded as the Seven Years War (aka the French and Indian War) was coming to an end and its story twists through the years leading up to independence. Furthermore, given the vast scale of the project it inevitably became entangled in colonial and ultimately metropolitan politics. Hence, the events of the Revolution play out in the story, but in a new angle. They are not at center stage. Rather, the Stamp Act and Patrick Henry’s fiery speeches in the House of Burgesses are secondary characters who come on and off stage only as they impact the unfolding drama of the deal.

If one sees history in legal terms, the plots are often structured around public law stories in general and constitutional ones in particular. Royster’s book is, in a sense, the private law story of the American Revolution. He is not a legal historian, but the law is hardly a bit player in his story. The drama, however, centers less around constitutional arguments about rights and representation than around bills of exchange, maritime insurance contracts, mortgages, debts, collection actions, wrangles over title to land, corporate governance, and the like, all of which propel the characters in the story via various complicated paths to ruin or fortune.

Definitely worth reading.


Why I Read History


I mainly read history because it is fun. I do, however, occasionally have other reasons. For example, I think that reading history can be an important part of our moral education. Aristotle argues in his Ethics that one ought not to expect a greater level of certainty from a field than the field can deliver. In context, he was making the point that abstract ethical precepts and concepts will only get one so far when it comes to leading a good life. At some point or another, judgment is inevitable. Judgment is not a matter of deducing conclusions from abstract premises. Rather, it is a matter of making good decisions based on wisdom accumulated by experience. History is useful, I think, because it can be a surrogate for experience. We can only live so much, but by reading about the past we can accumulate a vast fund of particulars from the lives of others that can yield a kind of wisdom.

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