Category: History of Law

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.

0

Law Professors, Petitions and Kristallnacht

Not long ago, I was asked to sign a petition, circulating among law professors, that condemns the recent pepper-spraying of protesters at the University of California-Davis. This invitation rekindled my interest in the origins of these petitions.

Law professors qua law professors have become engaged in topical public controversies since the early 1900s. Some law professors spoke out about the Sacco-Vanzetti trial, and many professors took well-publicized positions on Franklin Roosevelt’s court-packing plan. I am unfamiliar with any widely distributed petition as to either event, however. (Although the AALS did initiate, only to abandon, a poll of law faculties designed to gauge their support or opposition to FDR’s plan.)

The first petition I have found that specifically requested the support of American law faculties circulated almost exactly 73 years ago, in early December 1938. This petition was prepared and distributed by telegram shortly after the Kristallnacht pogroms, and read as follows:

Faculty of Law [Institution, Location]

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution. The invitation being wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland. The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith, race or political convictions and that particularly in the so called Concentration Camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective governments.

The telegram, which on its face requested the support of each contacted institution (as opposed to the endorsement of individual professors) met with a range of responses. Some American law faculties (including those at Yale, the University of Chicago, the University of Michigan, the University of California-Berkeley, and the University of Colorado) signed on to the petition. At Harvard, it was agreed that individual professors could endorse the petition, if they so chose, but that no such backing would come from the general faculty, speaking as a whole and for the institution generally.

Today, it’s assumed that individual professors, as opposed to the institutions where they work, represent the proper signatories of a petition such at the one circulated by the University of Amsterdam law faculty. Were assumptions different, one presumes that there would be a lot fewer petitions in circulation. Plus faculty meetings would become much longer.

0

Summers v. Tice: The Rest of the Story

Most law students encounter Summers v. Tice in their introductory Torts courses. If you are (or were) among these students, you probably recall the basic facts: two negligent hunters, two simultaneous (or nearly so) shotgun discharges, one injured companion (shot in the right eye [necessitating its removal] and upper lip), only one culprit, but no way for the plaintiff to tell who shot him. Given these circumstances, the Summers court flipped the burden to each of the two defendants to exonerate himself, rather than allowing the plaintiff to founder on the shoals of but-for causation and the preponderance standard of proof.

The California Supreme Court’s opinion in Summers is pretty short, and I’ve long been curious about the defenses that the defendants (Harold Tice and Ernest Simonson) raised in this case. So I went to the California State Archives a while back and read through the case file.

An interesting story emerged. Whereas Simonson did not put on a very aggressive defense at trial, Tice did. Simonson conceded that both he and Tice had fired shots that could have caused Summers’ injury. Tice, by contrast, testified that Simonson, and Simonson alone, had shot the plaintiff, and that in fact Tice had not fired his gun for minutes prior to the fateful blast. To the same effect, Tice produced two deputy sheriffs as witnesses. These men testified that when they interviewed Simonson shortly after the accident, Simonson had told them that he was “the one” who had fired the shot (though on cross-examination, one of the deputies hedged a bit on this point).

Moreover, Tice argued that but for the plaintiff’s own negligence, he could have identified his assailant.  Specifically, Tice testified that he had been using No. 6 shot, whereas Simonson had been using No. 7½ shot. The two pellets are of slightly different size, and capable of distinction.  Summers himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home.  These facts, if accepted, place a very different spin on the case. One could no longer say that the defendants were in a better position than the plaintiff was to identify who fired the injurious shot, which of course was a key ingredient to the Summers decision.

Unfortunately for Tice, he apparently did not strike the trial judge (it was a bench trial) as a particularly persuasive witness. The judge made findings of fact that “the defendants, and each of them, were guilty of gross negligence in firing a gun in the general direction of the plaintiff”; that Tice’s testimony that he had not fired his gun for minutes prior to the accident was untrue; and that both defendants were using No. 7½ shot.

These findings of fact paved the way for the California Supreme Court’s decision above, following a short-lived reversal by the Court of Appeal.

The lesson, if there is one: Credibility matters.

Summers v. Tice, kind of

5

“Mad Men” Meets Prosser?

I recently visited the American Law Institute archives, maintained by the University of Pennsylvania. There, I dove into the ALI records that relate to the development the Restatement (Second) of Torts. The documents I saw reveal a great deal about the creation of this treatise, and the atmosphere in which it was prepared.

For example, have you ever wondered what the scholars responsible for the Restatement drank, when they met back in the 1950s? Me neither, but I was nevertheless impressed by this beverage menu for a 1956 meeting of the Second Restatement’s advisory committee. If nothing else, it establishes that the committee had the good sense to repair to an establishment that offered both manhattans and martinis by the gallon.

But, one might think, the fact that these drinks were available at the meeting doesn’t mean that they were consumed there. Well, before taking a position on this question, it might be wise to review this schedule for the session, which indicates that drinks were to be served before lunch, at lunch, and at the close of each day’s discussions.

(Images courtesy the University of Pennsylvania University Archives and Records Center, American Law Institute Archives [Restatement (Second) Category; Restatement (Second) Torts Record Group, Box 25, File Folder 25-2])

8

Leo, J. Edgar, and Ruth

Hoover or DiCaprio?

Clint Eastwood’s biopic of J. Edgar Hoover opens nationwide tomorrow.  The New York Times’s Manohla Dargis liked it, and liked Leonardo DiCaprio in it.  So, if you can’t wait until the April release of Titanic 3D to get your Leo fix, this is your weekend.  Of course, J. Edgar is no Jack Dawson.  So you may need another reason to see the film.

Here’s one.  According to the Times review, the film begins with a voiceover by the title character: “Communism is not a political party — it is a disease.”  Strong words, but strongly felt by many back then (and a few even now).  And that’s a point worth remembering today as we continue to fight the sadly named “GWOT” — the Global War on Terror. 

Consider the year 1952, the midpoint of Hoover’s reign.  The Soviet Union had successfully tested three atomic bombs.  The Korean War was entering its third year, with hundreds of thousands of military and civilian casualties.  President Truman’s proclamation of a national emergency to fight the “world conquest by communist imperialism” led Congress to pass the Emergency Powers Continuation Act, extending the statutory duration of a wide variety of exceptional presidential powers.  Senator Joseph McCarthy had discovered communists infiltrating the United States Government.

Of course, Hoover wasn’t alone fighting communists.  Besides politicians like McCarthy, Hoover’s contemporary for much of his career was Ruth B. Shipley, the Chief of the State Department’s Passport Office.  (As it happens, Ruth’s older brother, A. Bruce Bielaski, preceded Hoover as the Director of the Bureau of Investigation, the precursor to the FBI.)  As I detail in a recent article in the Connecticut Law Review based on materials from the National Archives, Shipley controlled travel then with paper files and miles of file cabinets, but her method resonates with how we control travel today, using computerized terrorist watchlists.  Mrs. Shipley took second to no one in her zeal to keep communists and other subversives grounded.

Ruth B. Shipley, not Kate Winslet

In my forthcoming book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists (University of Michigan Press, forthcoming 2012), I argue that Mrs. Shipley’s approach was just an analogue version of the digital No Fly List used today.  The legal and policy premises are exactly the same: some people are too dangerous to travel, but for various reasons can’t be charged with a crime or otherwise detained.  (The No Fly List is just one of many watchlists; for example, there is one for maritime travel, too.)  It is up to the FBI’s Terrorist Screening Center to craft the lists that contain their names, just as Mrs. Shipley’s Passport Office red-flagged (ironically enough) the passport applications of Americans deemed too dangerous to travel.  Your chance of obtaining redress against this system for claims of mistake or misjudgment are as slim today as they were back then, also for many of the same reasons.

A recurring criticism of my argument is that this historical analogy doesn’t work.  I’ll revisit the issue later this month (I’m about to fly — FBI-permitting — to the University of Connecticut School of Law to present my case there).  But for now, as a simple test, ask yourself whether the words of one of the country’s most successful Supreme Court lawyers describe your (and Leo’s) world or the world of Ruth and J. Edgar:

“In short, several officials gather secretly behind closed doors, peruse secret intelligence reports and purport to arrive at a fair judgment affecting not only the citizen’s right to travel but also his reputation and possibly his livelihood and financial well-being.”

The year was 1952.  The source is Eugene Gressman, The Undue Process of Passports, 127 New Republic 13, 14 (Sept. 8, 1952).

32

The meaning of the Three-Fifths Clause

The ConstitutionIt’s very common to hear progressive writers criticize the racial inequality in the Constitution. One common such criticism invokes the Three-Fifths Clause — that is, writers criticize the Constitution as a document which unjustly labels slaves as merely “three-fifths of a person.” This sort of statement suggests that the Three-Fifths Clause created some sort of legally diminished status for Blacks, perhaps granting them only three-fifths of others’ rights or protections.

The idea that the Constitution is problematic because it labels slaves “three-fifths of a person” comes up frequently in news stories and online conversations. For instance, the New York Times discussion earlier this year about House members reading the Constitution noted that, “Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.”

This sort of framing, while common, reflects a fundamental misunderstanding of the Three-Fifths Clause and of what the Constitution does and does not say about race. Read More