Archive for the ‘History of Law’ Category

John Bingham–The Man

posted by Gerard Magliocca

Another interesting discovery in Cadiz was a recollection by William Lucas, who was a prominent African-American in the town (he was the municipal clerk for thirty years).  I think this gives us a taste of Bingham’s personality:

“It was my fortune to know Mr. Bingham intimately from my boyhood days.  Being a poor colored boy, I entered his family when about 17, and remained to do family chores and errands while attending the leading public schools—from 1867 to 1872.

From the first Mr. Bingham took a personal interest in me and assisted me much in my efforts to pass through schools here.  . . . In 1872 I graduated, and to rest up from school work I took a trip to Richmond Virginia to visit relatives there.

During this summer Mr. Bingham received his appointment to Japan, and now to show his deep interest in a poor unknown colored boy!  He was in need of a private secretary to accompany him to Japan.  No sooner did he arrive at his home after receiving his appointment; then he sought me out to take the position.  He came himself down to my mother’s house to offer me the place.  When he learned that I was away, he was quite insistent that I should go with him and asked mother to give him my address that he might send for me to come home at once.  My mother, in her ignorance supposed Japan, of which she had never heard, was somewhere clear outside of the world, and fearing I might go, and never return to her again, refused to give him the proper address or to inform me of the offer till it was too late, and so I lost the opportunity which I have many a time since sincerely regretted.  But I have never ceased to appreciate the friendly interest of Mr. Bingham as shown on that occasion.  That he in the zenith of his fame, should remember the errand boy at home and offer him a position of trust.”

Lucas then recalled another encounter with Bingham almost twenty-five years later:

“[M]y oldest son Fred, by accident fell from the roof of a house, sustaining injuries that, for many days, were thought to be fatal.  Day after day, we sat in hourly expectancy for that grim messenger to make his appearance.  During one of these dark sad days, I met Mr. Bingham on the street, who having heard of the accident, stopped me and said, ‘William Henry,” the name he always called me by, “How is Fred?”  When I had told him of his precarious condition, he said “Well, that is too bad.  You tell Fred that I am coming down to see him.”  He was then walking feebly with his cane himself and I hardly expected him to come down so far.  But that same evening I heard the tap of his cane on the porch.  Opening the door there was Mr. Bingham, who came in and sat down by the bedside of my sick boy.  It was a moment of surpassing interest.  Here was a great man who had thrilled the nation with his eloquence and whose statesmanship had won imperishable and lasting renown, sitting by what seemed to be the bedside of a poor dying colored boy; and with voice trembling with emotion and eyes dimmed with tears, he talked of the nearness of eternity and the kind love of the Heavenly Father, as tenderly as a mother would comfort her sick child.  And on going to leave, in bidding him good bye he said, chokingly with emotion, “Fred, in our Father’s house there are many mansions, we shall meet again.”

Toast by W.H. Lucas, Bingham Banquet, Oct. 5, 1901 (Harrison County Historical Society)

  May 11, 2011 at 8:15 am   Posted in: History of Law   Print This Post   2 Comments

John Bingham–Grass Roots Organizer

posted by Gerard Magliocca

One frustrating thing about my research on John Bingham is that I have not found many new primary sources.  In other words, I’ve gone through all of the known materials and am trying to track down the missing ones (I’ll say more next week about what might be in them), but I have not located much that was unknown.  There is, however, one significant exception.

What follows is an excerpt of a letter from Bingham to Salmon P. Chase written in 1845, when Bingham was a private lawyer in Ohio.  I think that this letter has not been quoted until now:

———————————————————————————————————————————-

“I think I may safely vouch for Liberty men generally in this vicinity, that your views and suggestions are fully approved.  We try to be as active as possible, in efforts to advance the cause, though we labor under many discouragements.  The counties of Scioto, Lawrence, Jackson, Gallia, and Meigs, are collectively, perhaps as inveterately Proslavery, as the same number of contiguous counties any where else in the State.  If there be any portion of the Ohio field demanding a greater share of anti-slavery Labor than any other, it would seem that these central frontier counties embrace that portion, and yet . . . have been wholly neglected.  Not a single Lecturer, document, or even extra newspaper has ever, to my knowledge, been sent into either of these counties, or any other kind of labor bestowed under the State Society’s patronage.  We have felt entirely neglected, and not a little surprised that the Committee should have found time to . . . direct three copies of their circular to the Post Office at Pine Grove.  For myself, hoping against hope I almost felt like hailing the circumstance as the harbinger of better days.  . . . . [T]he sending of Lecturers and printed documents into any part of the field where Liberty men are too few, or too poor to pay the expense, . . . seems to me imperative.  No doubt an immense amount of good might be done here, just in this very neighborhood, by the single week’s labor of a good Speaker . . . Being 10 miles from Gallipolis, back from the river, just far enough from that miserable pro-slavery atmosphere to be able to take breath without the danger of suffocation, and by dint of effort, obtained an under-current in our favor if we can . . . make a demonstration here, the influence will be seen and felt throughout the five counties . . . I pray you if possible, send us a laborer for a short time this fall, one who has a missionary spirit, whose heart and soul is in the cause; who will be willing to address small meetings or large ones, who will go from neighborhood to neighborhood, from one appointment to another . . . until this half-dead community shall begin to wake up and show signs of life . . .

It is all a mistake, that nothing can be done . . . in the large, wealthy, and populous portions of the State.  There people are entirely too fashionable—and it is just as different to get them to lay aside fashionable politics, as the fashionable . . . coat, or frock, or pair of breeches.  In the country we [are] not so accustomed to ape the fashions of the great, and considerations founded on moral truth and patriotism have more easy access to the heart and conscience, and produce more corresponding action.”

———————————————————————————————————————————

Bingham was 30 when he wrote this, and what’s striking to me is how similar it sounds to what any civil rights lawyer in any age might say.  Next week I’ll be in Cadiz (Bingham’s home for most of his life), and I’ll post from there if I find anything worthwhile in the local archives.

  April 28, 2011 at 10:17 am   Posted in: History of Law   Print This Post   One Comment

UCLA Law Review Vol. 58, Issue 3 (February 2011)

posted by UCLA Law Review

Volume 58, Issue 3 (February 2011)

Articles

Good Faith and Law Evasion	Samuel W. Buell	611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19	Katherine Florey	667
The Need for a Research Culture in the Forensic Sciences	Jennifer L. Mnookin et al.	725
Commentary on The Need for a Research Culture in the Forensic Sciences	Joseph P. Bono	781
Commentary on The Need for a Research Culture in the Forensic Sciences	Judge Nancy Gertner	789
Commentary on The Need for a Research Culture in the Forensic Sciences	Pierre Margot	795

Comments

What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation	Samuel M. Kidder	803
Defendant Class Actions and Patent Infringement Litigation	Matthew K. K. Sumida	843

  February 25, 2011 at 1:19 pm   Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court   Print This Post   No Comments

Interesting Cases That You’ve Never Heard Of — The Pueblo Indians

posted by Gerard Magliocca

  November 4, 2010 at 1:02 pm   Posted in: History of Law, Uncategorized   Print This Post   6 Comments

The Cross of Gold Speech — The Audio Version

posted by Gerard Magliocca

I was doing some research to put together a seminar on constitutional law and came across something surprising.  It turns out that William Jennings Bryan recorded his Cross of Gold Speech on a record in the 1920s.  Obviously, this is not the same as hearing the original version in a hall full of people, but it is neat to hear what he sounded like.

  October 28, 2010 at 1:06 pm   Posted in: History of Law   Print This Post   No Comments

Ronald Reagan and Gay Rights

posted by Gerard Magliocca

I wanted to follow up on my post on Monday reproducing Ronald Reagan’s 1978 op-ed against Proposition 6 (the “Briggs Amendment”), which would have barred gays from teaching in public schools.

The first thing that struck me was that Reagan linked his opposition to that measure to his opposition to another ballot measure that would have expanded state regulation of smoking.  This libertarian rationale was probably intended to ward off criticism from social conservatives who supported Proposition 6 (and seems to have worked).  (Personally, I agree with most of what the op-ed said about anti-smoking laws–I’m much more of a “live and let live” type in that respect, but that argument has not fared well over the past thirty years.)

Second, his argument against Proposition 6 was based in part on an overbreadth claim, especially with the measure’s language about prohibiting the advocacy of a gay lifestyle.  Reagan correctly pointed out that this could curtail the free speech rights of teachers outside of the classroom (even for straight teachers) and should be rejected on that basis.

Finally, he made the point that sexual orientation is determined very early in life.  He didn’t quite say that it was a inborn trait, but if you say that teachers don’t influence that much then that would imply that it must be set before you start school.

Anyway, the entire op-ed is definitely worth reading.  That’s why I put it up.

  October 22, 2010 at 8:35 am   Posted in: History of Law   Print This Post   No Comments

George Washington and James Madison

posted by Gerard Magliocca

I am working my way through Ron Chernow’s terrific new biography of George Washington.  From a constitutional perspective, it’s interesting to reexamine how the Framers tried to figure out the practices of the new Government in 1789.  For instance, Washington came to the Senate in person a couple of times to complain or ask questions about some items of legislative business.  In effect, he was treating the Senate as the King treated the Privy Council, but quickly abandoned that model.  I was also charmed by the image of Washington going on a fishing trip with Jefferson and Hamilton in 1790. (My nominee for “smartest fishing boat” of all time.)  And I did not know that Washington became gravely ill in 1790 and that John Adams nearly became President then.  (That would have been a disaster.  No matter what David McCullough and Paul Giamatti say, that guy was a ridiculous pain-in-the-neck with almost no political skills.)

My favorite story, though, was that James Madison drafted Washington’s First Inaugural, drafted Congress’s reply to the Inaugural, and drafted Washington’s reply to the reply!  Do you feel lazy now?  I sure do.

  October 20, 2010 at 7:50 am   Posted in: History of Law   Print This Post   5 Comments

Book Review: Newman’s The Yale Biographical Dictionary of American Law

posted by William Shieber

Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (Yale University Press 2009)

The Yale Biographical Dictionary of American Law (The Yale Biographical Dictionary) attempts to “gather together for the first time in a single volume concise yet comprehensive biographical entries on the men and women who . . . are the most significant in the history of American law and have had a lasting impact and influence as judged by contemporaries or by history.”  Introduction, p. xii.

There are numerous entries in The Yale Biographical Dictionary which meet this goal.  The entries for recognized historical figures are sound.  Those for Chief Justice John Marshall,  Justice Louis Brandeis, Justice Felix Frankfurter, and Justice Oliver Wendell Holmes, Jr., for example, are succinct, clear, and accurate.  Flipping through the entries for lesser known historical personages can be revelatory.  The New York trial lawyer Emile Zola Berman, in 1964, successfully defended a 14-year-old African American boy in a rape case in Lafayette, Louisiana.  “They wanted the death penalty.  I was the Jew from New York, and he was a Negro kid.  It was tough, I can tell you.”  p.  41.  Myra Colby Braswell led a public campaign to get Mary Todd Lincoln released from involuntary committal at an insane asylum.  Fanny Holtzmann “persuaded Richard Rodgers and Oscar Hammerstein II to set Anna and the King of Siam to music.”  p. 273.

But while the idea behind The Yale Biographical Dictionary is sound, there are significant flaws in the execution.   As a result of these flaws, The Yale Biographical Dictionary could have been better than it actually is.  The flaws come from three sources: 1) a Yale Law School and law school faculty-centric focus on the biographical subjects; 2) problems in the selection of contributors; and 3) a failure, at times, to grapple with the complexities of the biographical subjects.

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  September 20, 2010 at 9:17 pm   Posted in: Book Reviews, Constitutional Law, History of Law   Print This Post   4 Comments

BRIGHT IDEAS: Collins on Justice Holmes and Free Speech

posted by Daniel Solove

In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr.   Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.

Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books.  Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout.  Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment.  There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.

I recently had a chance to talk with Ron about the book.

SOLOVE: What inspired you to write this book?

COLLINS: Long story.  It began when I was in law school and read Holmes’s 1919 free speech opinions.  And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time.  This was in the 1970s when I was an impressionable law student.  Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book.  That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes.  True, he challenged my mind, and I like that sort of thing even when I disagree with someone.

SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?

COLLINS: There are so many things; Holmes was such a complex man.  Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions.  So, not much surprise there.  I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.

SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?

COLLINS: Hard call.  But here they are, in no special order:

Read the rest of this post »

  August 30, 2010 at 10:07 am   Posted in: Book Reviews, Bright Ideas, Constitutional Law, First Amendment, History of Law, Interviews, Jurisprudence, Supreme Court   Print This Post   No Comments

A Contracts Chestnut for Tort Theorists

posted by Nate Oman

Of late I have been reading and thinking about the theory of private law, mostly torts. This is a bit odd as I am generally a “contracts guy” not a “torts guy.” What interests me for now, however, are those features that contract shares with tort, in particular the bilateralism of damages (wrongdoers pay victims) and private standing (the law empowers victims to act against wrongdoers rather than providing third-party enforcement or the like). One of the big debates in this area is between corrective justice theorists — like Ernest Weinrib and Jules Coleman — who see tort law as vindicating a duty compensation and civil recourse theorists — like Ben Zipursky, John Goldberg, and my soon-to-be colleague Jason Solomon — who see tort law as providing a means for victims to act against tortfeasors. I tend to think that the civil recourse folks have the upper hand in this debate. Indeed, I have even offered a modified civil recourse theory of contractual liability based on the dismemberment of goats. It occurs to me that a venerable debate from contract theory might be of use to the torts guys. Read the rest of this post »

  July 16, 2010 at 11:01 am   Posted in: Contract Law & Beyond, History of Law, Legal Theory, Tort Law   Print This Post   No Comments

Book Review: LaCroix’s The Ideological Origins of American Federalism

posted by Nicole Huberfeld

Alison L. LaCroix, The Ideological Origins of American Federalism (Harvard University Press, 2010) 314 pages, $35

A clamor about states’ rights and federalism currently suffuses the media, often in the context of the Patient Protection and Affordable Care Act and states’ attempts to challenge the constitutionality of this legislation.  These challenges use the term federalism to describe a bilateral political system whereby the states, as the assumed arbiter of good small government, should be protected from the national government’s assumed overreaching.  Alison LaCroix’s The Ideological Origins of American Federalism shows why these debates are wrongly framed and why federalism’s intellectual roots demand that federal structure be understood as much more than a war cry for states’ rights.  Many seem to conflate history or historical study with originalism, but the two are clearly different projects.  This book mines colonial history to understand federalism as a core structure with intellectual pedigree, but those searching for an originalist bent should probably look elsewhere.  On the other hand, anyone who wants to understand the structure and meaning of Our Federalism would be well served by taking the time to read Professor LaCroix’s book.

The history begins by studying the work of eighteenth century theorists to gain understanding of the intellectual and political debates surrounding “imperium in imperio,” literally the “dominion within the dominion.”  Though some believed that autonomous sub-government with substantive power within the larger imperial government was undesirable, it was also a structure that existed within the British Empire.  The early political theories of the empire and of Parliament’s legislative dominance formed a unique foundation for American politics.  This account conveys that colonial thinkers did not inherently have a problem with the king as sovereign over the colonies, or with Parliament as having legislative power over empire-wide concerns, but they also believed that the colonies should be able to govern themselves as to local matters.  The parallels between this colonial system and the soon-to-be formed American federal structure are clear.

The heart of the book is the discussion of James Madison’s ideas regarding the need for the national legislature to negate state laws in order to protect the coherence and power of the national government.  Madison apparently believed that Congress should be able to reverse state laws that contradicted federal efforts, similar to the role of Parliament in the Privy Council (a monarchical authority that reviewed colonial legislative and judicial acts), an idea LaCroix refers to as “Madison’s negative” or the “federal negative.” (138)  Madison was determined to ensure that the central government would not fail and could not be torn apart by the states, but others were not convinced that the federal negative was the proper route to ensuring state compliance.  However, as LaCroix describes it, the Privy Council had both legislative and judicial functions from which the prior colonists could learn.  Thus, the lawyer Thomas Jefferson’s compromise was to emphasize the power of judicial review through strong language in the Supremacy Clause and the concomitant structure of Article III courts, which were essentially an American invention.

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  July 13, 2010 at 12:23 am   Posted in: Book Reviews, Constitutional Law, History of Law   Print This Post   No Comments

UCLA Law Review Vol. 57, Issue 5 (June 2010)

posted by UCLA Law Review

Volume 57, Issue 5 (June 2010)

Articles

Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes	Nan D. Hunter	1129
Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality	Kathryn Abrams	1135
The Sex Discount	Kim Shayo Buchanan	1149

What Feminists Have to Lose in Same-Sex Marriage Litigation	Mary Ann Case	1199
Lawyering for Marriage Equality	Scott L. Cummings Douglas NeJaime	1235
Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive	William N. Eskridge, Jr.	1333

Sticky Intuitions and the Future of Sexual Orientation Discrimination	Suzanne B. Goldberg	1375
The Dissident Citizen	Sonia K. Katyal	1415
Raping Like a State	Teemu Ruskola	1477

The Gay Tipping Point

Kenji Yoshino

1537

  July 5, 2010 at 7:12 pm   Posted in: Articles and Books, Constitutional Law, Current Events, Feminism and Gender, History of Law, Immigration, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Law School, Legal Theory, Politics, Psychology and Behavior, Supreme Court   Print This Post   No Comments

Book Review: Gordon S. Wood, Empire of Liberty

posted by Nate Oman

Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009)

This is a big book by one of the greatest living scholars of the early Republic. It is worth reading. Gordon Wood, of course, is the author of The Creation of the American Republic and numerous other works on the founding period. Empire of Liberty weighs in at 738 pages and is part of the not yet complete Oxford History of the United States. This volume covers the period from the adoption of the Constitution to the end of the War of 1812. It is a marvelous synthesis of contemporary scholarship on the period and a well-spent career by a careful and imaginative scholar. Enough with the superlatives and adjectives.

The book is organized as a narrative, with a nice mix of a somewhat gossipy treatment of elite politics interspersed with chapters on social history. On the social history front, the book is strong on economics and (thankfully from my point of view) religion. If there was one subject where I wasn’t entirely impressed, it was his treatment of military history. Having gone through a Civil War history phase as an adolescent, however, I suspect that I probably have a higher tolerance for the analysis of troop movements, battles, and logistics than the ordinary reader. Also, the volume has a good bibliographic essay, which is extremely useful as a scholar from another discipline who might be interested in using some of the literature on this period.

Wood has two chapters that will be of special interest to lawyers and legal scholars. The first is “Law and an Independent Judiciary” and the second is “Chief Justice John Marshall and the Origins of Judicial Review.” Both of these chapters are heavily weighted toward federal constitutional law and the rise of the Supreme Court. However, in comparison to Howe’s What Hath God Wrought (the next volume in the Oxford History and another book that is worth reading), Wood has a more in depth discussion of legal developments beyond the Supreme Court. His discussion of the intellectual roots of judicial independence in eighteenth-century English legal thought is excellent, as is his discussion of the politics of debtor-creditor law in the early Republic. Finally, while I feel called upon to carp at the way that developments in the common law consistently get relegated to second place vis-a-vis constitutional law in most histories, I was fascinated by Wood’s discussion of Marshall’s maneuverings against Jefferson. My employer is pleased to claim both men as alums (although the claim is stronger in the case of Jefferson than Marshall), but as between the two, Marshall comes across as the more pleasant, canny, and ultimately wise man.

In terms of political history, Wood organizes his narrative around the rise of Jeffersonian democracy. It’s a story in which the losers are, to my mind, ultimately much more interesting than the winners. One of the ways that Wood illustrates this story is through a series of portraits of middling political figures — congressmen, unsuccessful senators, successful grandees in state legislatures, and the like — which make for a nice contrast to a story dominated by Washingtons, Adamas, Jeffersons, and Hamiltons. I found myself sympathizing — if not entirely agreeing — with curmudgeonly Federalists like James Fenimore Cooper who had to live on in the increasingly crass and democratic society that Jefferson helped to midwife even if it was not ultimately his creation. Indeed, at the end of the book Wood provides a striking portrait of Jefferson in retirement, increasingly crotchety, disoriented by the grasping hucksterism of nineteenth-century America, and, perhaps most pathetically, more and more apologetic for slavery while still desperately clinging to the increasingly threadbare mantle of enlightenment prophet of human freedom. Indeed, Wood ends the volume with a peroration on the evil of slavery and its blight on the nation. It is, I think, the least compelling prose in the book, but there is no denying the evil that it condemns or the way in which it came to warp so much of American political, social, and intellectual life.

  June 21, 2010 at 9:36 am   Posted in: Book Reviews, History of Law   Print This Post   No Comments

The Founders and the Tea Party

posted by Nate Oman

I’ve found it interesting to see the way in which the tea party movement (and some of my neighbors who are involved in it) invoke the Founders and the constitution. Without exception every law professor with whom I have talked treats these tropes with derision, seeing the tea party movement as a bit of reactionary hysteria or worse. I think, however, that there is a deep affinity with some of the ways of political thinking one sees among at least some tea partiers and the political thinking of the founding generation.

First, many tea partiers invoke the constitution in political debate. This may seem unremarkable, but it does gesture toward a certain view of politics that is both genuinely congruent with the founders political thinking and, I believe, deeply mistaken. Gordon Wood has written about what he calls the “adjudicative politics” that were held up as an ideal by the American revolutionaries and the politicians of the early republic. In this vision, there is a single, unitary public good and the job of statesmen is to act as kind of super-adjudicators, applying known principles of good government to particular issues. As Wood documents, this vision of politics broke down in the 1790s and 1800s as it became clear that there was no widespread agreement on the meaning of the public good. Rather politics, far from being an exercise in adjudication, consisted of a continuous debate about the content of the public good and – more unsettling to the adjudicative model – the bargaining between constituencies over claims to political power.

So what does this have to do with the tea partiers? Read the rest of this post »

  June 10, 2010 at 9:43 am   Posted in: History of Law, Politics   Print This Post   6 Comments

Book Review: A Giant of American Law (Reviewing Urofsky’s Louis D. Brandeis)

posted by Stuart Shiffman

Louis D. Brandeis: A Life, by Melvin I. Urofsky.  Pantheon, Sept. 2009.  976 pp.

The politics and jurisprudence of Supreme Court justices have always been  spread broadly across the legal spectrum. Depending upon the descriptive phrase in vogue at the time, court members have been portrayed as conservatives, liberals, moderates, activists, strict constructionists, pragmatists, originalists and countless other terms that often attempt to oversimplify and label judicial beliefs. At any given moment in its history, the members of the Supreme Court have rarely found themselves in philosophical unanimity.

The nine justices currently serving on our highest court do share one common trait on their distinguished resumes. All came to the court from service on the federal courts of appeal. Indeed, to a man and woman, their judicial and federal experience far outweighs any legal background outside of the judiciary. While some of the current justices had private practice experience during their legal careers, it was their judicial background that was perhaps the most influential factor in their nomination and confirmation to the Supreme Court.

Depending upon one’s personal viewpoint regarding federal judicial experience as a sine qua non for selection to the Supreme Court, reading Melvin Urofsky’s Louis D. Brandeis: A Life, one cannot help but be struck by the undeniable fact that the political climate of the 21^st Century means that a man like   Brandeis would have great difficulty being nominated and confirmed to any vacancy on the Supreme Court. Because Brandeis was an outstanding and passionate advocate for causes both popular and unpopular he had a lengthy legal record that would certainly give opponents of his nomination substantial ammunition to battle his occupying a seat on the Court.

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  May 12, 2010 at 12:09 am   Posted in: Book Reviews, Constitutional Law, History of Law, Law and Humanities, Privacy, Privacy (Electronic Surveillance), Supreme Court   Print This Post   2 Comments

A map of slave states

posted by Kaimipono D. Wenger

Quick question: How many states had slave laws, at any point from 1776 independence to 1865? Think about it, and then click the link to continue. Read the rest of this post »

  May 6, 2010 at 10:18 pm   Posted in: History of Law, Race   Print This Post   5 Comments

Research Mystery — I Need Your Help!

posted by Gerard Magliocca

A key part of my examination of John Bingham’s life involves his relationship with Titus Basfield, an African-American college classmate who later became a minister.  In a study of Bingham written twenty years ago, Erving Beauregard claimed that Bingham and Basfield were lifelong friends and corresponded about political and legal issues.  Beauregard also quoted from some of those letters, which contained some interesting insights into Bingham’s thinking about the Fourteenth Amendment.

Here’s the problem–nobody knows where these letters are.  Beauregard (who is deceased) did not make copies of those documents and no other scholar has seen them.  They are cited as belonging to “Lloyd Martin, Portsmouth, Ohio,” but there is no other information.  Some suspect that these sources were fabricated, but I’m going to treat that as a last-resort explanation.  My working assumption is that this collection is privately held and that the trick is to track down what has happened to them and then make sure that they are made available to researchers.

If anyone has any insights about this, I’d be much obliged to hear them.

  April 9, 2010 at 9:44 am   Posted in: History of Law   Print This Post   6 Comments

Church-owned Cows and Inflation

posted by Nate Oman

I recently taught Sherwood v. Walker, the famous case involving a Michigan cow named Rose 2nd of Aberlone, as well as a number of other mistake cases in contracts dealing with cows. I’ve got bovine jurisprudence on the mind. It seems that the same is true for Eugene Volokh, who recently noted a case involving a “church owned cow.” The cow in question was owned by the Mormon Church and seems to have negligently collided with a motorcycle. In the interests of extending our jurisprudential understanding of cows, I can’t resist adding another twist to the church-owned cow story.

The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. As a result of this practice, in the nineteenth century, the church acquired large herds of cattle as well as other food stuffs. It then issued so-called “tithing scrip,” which was in effect private currency. The holder of scrip could redeem it for foodstuffs, including beef, at church storehouses. The scrip then circulated as money, in effect providing liquidity to the perpetually cash starved economies of the Intermountain West in the nineteenth century. Because the currency was in effect backed by cows, however, it was subject to some odd monetary pressures. For example, when a particularly harsh winter killed off a large proportion of the church’s cattle herds, it was forced to reduce the purchasing power of tithing scrip at church storehouses because there simply wasn’t as much beef available as previously. The result was price inflation as the value of the scrip declined.

As part of its efforts to raise revenue during the Civil War, the U.S. government passed a series of banking acts designed to decrease government borrowing costs. All nationally chartered banks were required to hold their reserves in the form of treasury bonds, and non-federally chartered institutions were hit with a heavy tax on the notes that they issued. The effect was to slap a punitive tax on any bank depositor who did not loan his or her savings to the U.S. government. During the 1880s federal prosecutors in Utah decided that the various scrip-issuing bodies of the Mormon church were subject to this tax, and demanded decades of back taxes, eventually killing off the scrip and replacing it with currency issued by federally chartered banks.

Taxes. Regulation. Inflation. Cows. Some things never change.

  April 7, 2010 at 10:39 am   Posted in: Agricultural Law, Contract Law & Beyond, Food, History of Law, Just for Fun, Religion   Print This Post   One Comment

Book Review: The Charge Was Treason — The Trial of John Brown

posted by George Conk

John Brown’s Trial by Brian McGinty.  Harvard University Press, 2009.  384 pp. $27.85

That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.

§ 8 The Bill of Rights, Constitution of the Commonwealth of Virginia, June 12, 1776

Now when many believe it is weakness to treat as criminals those who attacked us on September 11, 2001 Brian McGinty’s John Brown’s Trial is a timely arrival.  His compelling narrative shows Virginia thought it had something to prove by both the swiftness and the propriety of the trial and prosecution that began eight days after the anti-slavery warrior’s capture and ended forty seven days later with Brown’s death by public hanging on December 2, 1859.  Yet Virginia afforded a trial by jury, and Brown was represented by appointed lawyers, slaveholders who diligently advocated for the leader of a cause they deplored.

The modern narrative is of the Bill of Rights imposed clause-by-clause on the states by the  Supreme Court. But we see in McGinty’s account that Virginia did not need the Sixth Amendment.  The 1787 Federal Convention’s omission of a bill of rights was not oversight but reliance on the States which, like Virginia in 1776, had adopted bills of rights.

On October 16, 1859 `Captain’ John Brown and a company of twenty one  overwhelmed the lightly defended United States Arsenal at Harpers Ferry.   Like Khalid Sheikh Mohammed John Brown was seized on the battlefield. Yet no one pressed for a court martial.   Virginia Governor Henry Alexander Wise embraced trial in state court.  No one denounced a civilian jury trial as a plan to “wrap our enemies in our Bill of Rights” as former federal prosecutor Andrew McCarthy said of the plan to try 9/11 planners in federal court in New York.

An `unlawful combatant’ and enemy of the slave state, Brown’s raided Harper’s Ferry as part of a plan to free the slaves.  His men pledged allegiance to Brown as Commander in Chief.  His anti-slavery “Provisional Constitution and Ordinances of the People of the United States” included a new constitutional office – Commander in Chief.  Since Article II of the 1787 Constitution designates the President “commander in chief of the Army and Navy of the United States” there could be little doubt of Brown’s seditious intent despite his protestations after capture.

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  April 6, 2010 at 2:38 pm   Posted in: Book Reviews, Constitutional Law, History of Law   Print This Post   No Comments

William Prosser and the Privacy Torts

posted by Daniel Solove

I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law).  The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010).  It was written as part of a symposium “Prosser’s Privacy at 50.”

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.

For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed.  Here’s the abstract of our paper:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Comments are welcome.

  March 15, 2010 at 5:35 am   Posted in: Articles and Books, First Amendment, History of Law, Jurisprudence, Media Law, Privacy, Privacy (Gossip & Shaming), Tort Law   Print This Post   No Comments

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