Category: History of Law


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.


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


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.


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”.


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.”


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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