Category: History of Law

1

John Bingham and Thaddeus Stevens

I’ve put the Bingham biography though the first of what promises to be many revisions.  In thinking about the project from 30,000 feet , I think the most revisionist part of the book involves Thaddeus Stevens’ role in Reconstruction.

Stevens was (and still is) a lightning rod for that period.  To critics, he was a fanatic who wanted vengeance (in contrast to Lincoln’s conciliatory approach) and was willing to keep the South under military occupation for decades, if necessary, to achieve his aims.  To admirers, he was the most egalitarian Republican leader and the only one who understood that, without wealth redistribution and an extended federal presence, the South would revert to its racist ways and deny equality to the former slaves.  What everyone seems to agree on, though, is that he was the leader of the House Republicans and the most dominant figure on Capitol Hill until his death in 1868.

My research calls his power into question. It would be more accurate to say that he and Bingham were the two leaders of the House Republicans, and when they disagreed Bingham usually prevailed. This means that more of the credit and the blame for Reconstruction falls on Bingham’s shoulders, and the debate between Stevens and Bingham turns out to be far more complex than most think.

Blogging from me will be light or nonexistent in the next few weeks.  Other projects need attention.

8

James Wilson

One question I’ve been asked is whether I’ll write another biography and, if so, about whom.  I’m not sure, but I do have some ground rules that are helpful for anyone considering this kind of project.

1.  Never write about a living person.

This is true for several reasons.  First, it’s a story without an ending.  Second, the person can do a lot to control or influence the book. Third, other people are far less likely to tell you the truth about the subject.  Fourth, lots of relevant documents will be unavailable.

2.  Don’t write about someone who is famous only as a judge.

Judges are generally boring people, though there is the occasional exception who has a colorful personal life (Justice William O. Douglas). If a judge had an lively political or professional career before going to the bench (Earl Warren, for example), then that can work, but a book that just moves from one opinion to another is tough sledding.

3.  Find someone about whom no book has been written in decades

If you want to make money, writing another book about Lincoln or Washington is fine.  To make a scholarly contribution, though, you need to say something new.  That can be done about an old subject because new documents or new insights come with every generation. Thus, the fact that a book was written about X fifty years ago does not preclude writing another book now.

4.  They have to be important enough (or fascinating enough) to justify a couple of years of your working life.

My leading candidate–and I’m starting to think hard about this–is James Wilson. Wilson was born in Scotland and emigrated to the United States in the 1760s. He wrote one of the first sophisticated pamphlets challenging parliamentary supremacy over the colonies, signed the Declaration of Independence, was one of the most influential members of the Constitutional Convention, and served as one the first Supreme Court Justices.  He is largely unknown because he died on the run from creditors after making a series of bad investments in land.  The last full biography of him was written in the 1950s, so this might be a good time to do one.  Plus, there’s always room for another Founding Father book.

5

Louis Pollak (1922-2012)

From the federal courthouse comes the very sad news that Senior District Court Judge Louis Pollak has died.  Judge Pollak, a jurisprudential giant, mentor to many, and former dean of both Yale and Penn Law Schools, served on the bench from 1978 until his death.  He will be missed.

 

(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)

1

Announcement for the Paul Murphy Prize

The American Society for Legal History announces the Paul Murphy Prize to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. The award will be given out two times only, in 2012 and 2013. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.

The award honors Paul L. Murphy (1923-1997), who spent much of his career at the University of Minnesota where he rose to the rank of Regent’s Professor of History and American Studies. At the time of his death, he was in the second year of his term as president of the ASLH. During his tenure at Minnesota he became one of the nation’s leading constitutional historians and a mentor to generations of undergraduate and graduate students. Among his most important books were: The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972); World War I and the Origin of Civil Liberties in the United States (1979); Historic Background of the Bill of Rights, Vol. 1 (1990); and The Shaping of the First Amendment: 1791 to the Present (1991). In addition, civil liberties played a fundamental role in the argument he developed in what was likely his most influential book, The Constitution in Crisis Times 1918-1969 (The New American Nation Series, 1972). Murphy’s commitment to civil liberties and his passion for the subject was evident in his deeds as well as his words. He was an ardent and committed member of the American Civil Liberties Union throughout his life. For additional information on Murphy please see the tribute to him in the Law and History Review, 16 (Spring 1998), ix-xi.

To be considered for this award, authors or nominators should send a book proposal with chapter descriptions, a discussion of the book’s contributions, and a time-line for completion; a sample chapter; and a c.v. to committee chair Mary L. Dudziak (mdudziak@law.usc.edu). Submissions via e-mail are preferred, and attachments can be in Word or PDF. Please put “Murphy Prize” in the subject line. If you must submit by hardcopy, please send four copies of these materials to arrive by the deadline to this address: Professor Mary L. Dudziak, USC Gould School of Law, 699 Exposition Blvd, Los Angeles, CA 90089. The deadline for receipt of proposals for this year’s award is June 30, 2012.

Members of the Murphy Prize Committee are:
Mary L. Dudziak, Chair, University of Southern California
Robert Kaczorowski, Fordham University
Serena Mayeri, University of Pennsylvania
David M. Rabban, University of Texas

 

1

Some Words of Advice for Law Students, from 1811

As the year draws to a close, it might be worthwhile to review the following advice, provided to American law students (clerks, really) precisely two centuries ago.  These words of wisdom come from William Wright’s Advice on the Study of the Law, as published by Baltimore’s Edward J. Coale  with “additional notes for the American student” back in 1811.  (One can view the complete text here, on Google Books.)

  • The student should commence with a firm resolution to become one of the most eminent attornies [sic] of the age : and though the difficulties which he will at first meet with may be great, he should not despond; because despondency will produce negligence. Let him persevere, and he will succeed.
  • Genius is more equally distributed among mankind than is generally allowed. . . . If all men would accustom themselves to reflection, few would be ignorant; and their want of reflection proceeds from their own folly and love of leisure, and not from the insufficiency of their natural endowments.
  • Habits of attention and application, properly directed, produce what is commonly called genius.
  • The student should make himself most intimately acquainted with the practice which is likely to be the most useful.
  • Mankind will undoubtedly form their opinion of the morals and attainments of the young lawyer from those of his companions. . . . If he selects for his confidential friends the libertine, the dishonourable, the malevolent, the trifler, or the uneducated, among such he will himself be classed.
  • The companions of a student should be few; if they are numerous, he will probably be induced to sacrifice more time to friendship and pleasure than is consistent with his professional duties, and his hopes of honourable distinction.
  • Politeness, says Lord Chatham, is benevolence in trifles. This then is all I require of the student.
  • Young men should carefully guard themselves against forming any attachment, even upon honourable principles, till years shall have matured their judgment, and a proper course of study supplied them with knowledge sufficient to enter on the world and to transact their professional business with accuracy. Attachments formed too early in life are commonly of a romantic nature, and tend to dissipate thought and unhinge the mind, and seldom terminate so happily as lively imaginations are willing to expect.
  • An attorney should commence his professional labours with the laudable resolution of preventing litigation, as much as possible; for petty suits are always vexatious, and seldom productive of advantage either to the litigant parties or to society.
  • When consulted professionally, a young attorney should not, if he can avoid it, give his opinion hastily; but consider and re-consider.
2

The Phone Booths in Katz v. United States?

I’ve chipped away at the K2-esque stack of Crim Pro and Torts exams that sit on my desk. Plus, if I grade another examination right now, my margin comments will consist solely of “all work and no play makes Jack a dull boy.” So, notwithstanding my earlier prediction that grading would prevent further posts, I am allowing myself this entry as a reward and respite.

Here, I want to share an (arguably) interesting video with this blog’s readers.  As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case.   The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood.  As those of you who teach Crim Pro, or who took this course in law school already know, Katz is the wellspring of the “reasonable expectation of privacy” standard that has become the touchstone for Fourth Amendment analysis.

I use PowerPoints in my classes, and I’ve been searching fruitlessly for good visuals for the Katz v. United States case for some time. Stock photos of 1950s college-age kids stuffing themselves into telephone booths, movie posters for the Colin Farrell vehicle “Phone Booth,” and my simple line drawings don’t really convey the scene quite as well as I would like.

Toward this purpose, while procrastinating from grading examinations today, I came across a website that hosts several scrolling videos of the Sunset Strip in Los Angeles,  circa the mid-1960s.  I thought that one of these videos might show the fateful bank of phone booths, and in any event, continuing my search for same would provide an extremely valid excuse not to grade more exams.

According to the Ninth Circuit’s opinion below in Katz, the bank of three phone booths that Katz used was on the 8200 block of Sunset Boulevard.  And, sure enough, if one scrolls down to the fourth video on the page—the one that’s 2:48 in length—about 49 seconds in, one can see a bank of three phone booths on the 8200 block. (How do I know which block this is?  The Jay Ward studios—home of Bullwinkle the Moose, and featuring a conspicuous Bullwinkle statue in front—were located at 8217 Sunset Boulevard, quite close to the phone booths.)

I don’t know for certain that these are the phone booths involved in Katz (the caption for the video indicates it was recorded in 1967, whereas the facts in Katz took place in 1965; plus, I don’t know whether there was another set of phone booths on the [unfilmed] north side of the street), but they might well be.  Just thought I’d pass it along; even if these aren’t the same phone booths, the video conveys a nice sense of time and place for the case.

1

Back for One (or Two) Last Things—An Offer and a Request

D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.

So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester.  (Emphasis here on “hopefully.”)

2. Criminal Procedure < 1965 Interview Subjects Wanted

Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.

In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.

I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.

In any event, happy holidays to you all.

6

Hammontree v. Jenner: The Rest of the Story

Schoolhouse Ruins, Metropolis, NV

I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays.  In a related story, this will be my last guest-blogger post on the site.  Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience.  It’s been fun, at least for me.

I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.)  This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.

The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should govern a tort suit stemming from a driver’s unanticipated seizure behind the wheel.  Unlike Summers v. Tice, which I discussed in a previous post, Hammontree has not cast a substantial precedential shadow. The appellate opinion is short, and gives little sign that the court considered the issue presented to be especially difficult.

The significance of the Hammontree decision derives from its leadoff spot in Franklin, Rabin & Green’s casebook Tort Law and Alternatives, which I use in my Torts class (I’ve spoken to both the defense attorney at trial in Hammontree and the defense attorney on appeal; both were quite surprised that the case found its way into a textbook.)  The authors leverage the case in a variety of ways, using it to introduce the distinction between strict liability and negligence, along with themes such as legal ethics, the mechanics of a tort case, and the nature of precedent.

Last year, I went down to Los Angeles court archives and dug up copies of the original court filings in Hammontree for the use of my students, and others.   If anyone is interested in these documents (I find it quite helpful to show novice one-L students what a complaint, answer, motion for summary judgment, etc., look like, which goes a long way toward demystifying these documents), I’ve given them to Christopher Robinette over at the TortsProf blog, who kindly has posted them here.

The documents didn’t contain any big surprises, but they did harbor a few facts that may be interesting and useful to those of you who teach the case.  Now that I’ve scared off (or bored to death) 99 percent of this blog’s readers, I’ll explain to the hardy few who remain, after the jump.

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3

On Elevators, Frightened Horses, and Disappearing Types of Tort Claims

The other day, a woman was killed in a horrific elevator accident in New York City.  

Happily, this is a rare occurrence, though one that’s well-represented in Torts casebooks.  Over at Point of Law, Ted Frank has blogged before about the dwindling number of accidents that involve elevators.  In his post, Ted cites to a 1926 New York Times newspaper article, which I subsequently dug up, that relates 87 deaths connected to elevators and elevator shafts in 1925—just in the city of New York!  Somewhat comfortingly, however, only 36 of these people were crushed by elevators.  Forty-seven fell into elevator shafts (which is still somewhat traumatic to me, especially after I watched this scene as an impressionable youth), three were killed when elevators fell, and one “fell through a dumbwaiter” (eep).

I don’t know how many of these elevator-related accidents led to tort suits.  A quick online search, however, suggests that these cases were once pretty common.  These suits appear to have percolated in the 1870s and 1880s, and developed into a well-recognized type of case by the 1890s or the early 1900s, at the latest.

This development paralleled the construction of the first wave of high-rise structures in American cities (the first modern “skyscraper,” the Home Insurance Building in Chicago, was built in 1884).   I don’t know if  there’s a causal connection between the proliferation of high-rises and the development of the elevator-suit case type (after all, any multistory building could claim an elevator, and lots of early cases involved apartment buildings and department stores that clearly were not skyscrapers), but it bears mentioning that Illinois, home of many early skyscrapers, produced a large number of appellate decisions involving elevators during this time period; perhaps appellate courts with discretionary jurisdiction in that state decided that these cases were worth hearing, if only because the construction of more high-rise buildings would mean more elevators, and a greater need for appellate precedent to guide the cases that would result from accidents involving these devices.

I’ll go into a little more detail about the disappearance of tort subspecies like the falling-elevator cases, after the jump.

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5

A Century and a Quarter of Law School Examinations

Earlier this year, Harvard Law School posted examinations given at the institution between 1871 and 1995. I spent a little time the other day skimming through them, concentrating on examinations given in Torts and Constitutional Law courses.

With Torts, as with other classes, the most obvious change involved the gradual lengthening of exam questions. Gone are the days when a professor could ask, “What is an assault? How does it differ from a battery?,” questions posed on this 1871 Torts exam. But more than the questions have changed; one also can detect many shifts in the substantive law by reviewing the tests.

For example, old Torts exams concentrated upon the intentional torts. Of the 14 questions on the 1871 examination, four involved trespass; two, defamation; and there were also questions on nuisance, conversion, assault and battery, false imprisonment, fraud, and malicious prosecution. Modern tests, as one would expect, are much more concerned with the nuances of negligence doctrine.

The exams also illustrate how a given issue may “move” from one area of law to another, as time passes and new fields emerge. Some questions in early Torts exams would today seem much more at home in a Criminal Procedure or Antitrust final. (Consider, for instance, the 1873-1874 Torts question, “When can an officer arrest without a warrant, and when can a private person arrest without a warrant?”)

Trends aside, some of the most interesting questions in old exams were wholly topical at the time they were written. Professor James Thayer’s Constitutional Law examinations, in particular, skewed toward current events. Take, for example, this question, from an examination given during the 1881–82 academic year: “Could Guiteau have waived a jury? Would it make any difference if we suppose a statute purporting to authorize this? Why?” Guiteau, of course, was the (likely deranged) assassin of President James Garfield.

Or this, from Thayer’s 1896–97 examination (with my apologies for the incorporated language, which was, of course, a product of the time): “The State of X forbids the carrying of negroes or other colored persons and whites as passengers in the same car on any railroad in the State. In returning from a “Parliament of Religions” at Chicago, a Hindoo, a Moor, an Ethiopian and Mr. Booker Washington had taken passage from Chicago on a through train, making no separation of passengers, to a point requiring them to pass through State X. On reaching the line of that State, these travelers were all required to shift into a car for negroes. They refuse to go and were ejected from the train. In an action for assault against the conductor the question is raised of the constitutionality of the State law. How should the question be decided? Why?”

Sound somewhat familiar?  Personally, I find this question interesting mostly because Thayer tees up the issue by way of an assault action. But then, I teach Torts.