Where's Lexington and Concord in D.C. v. Heller?

Mike O'Shea has thoughts on tomorrow's argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it's often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there's nothing else to go on.

So I'm therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It's a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature -- people such as Samuel Adams and John Hancock -- and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops' progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I've described as the "paradigmatic case" of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of "the shot heard round the world."

I think the reason for this treatment in the Heller brief is clear: Lexington and Concord are a bit awkward for Heller's argument. For one thing, they don't fit well with the "individual rights" theory of Heller's brief, since Lexington and Concord are stories about colonial militias, albeit informally organized ones. But perhaps more importantly, if the lesson learned from Lexington and Concord is that individual citizens can keep arms to resist federal troops, that's too anachronistic even for originalists. After all, what was going on in Concord was not just gun ownership, but the collection of a large cache of arms by (from the British point of view) a large conspiracy against the national government. The colonists even had cannon, the most powerful weapons of the day. Saying the Second Amendment protects that is going a bit too far for comfort:

Respondent does not suggest that members of private paramilitary organizations have a right to commit violent acts under the auspices of acting as a citizen militia. The Framers, who organized the militia under the new constitution, doubtless agreed that citizens should not compete with legitimate government authority.

I'm not so doubtless. If Lexington and Concord were the paradigm case, then what at least some Framers had in mind was exactly that citizens should have the power to compete with legitimate (federal) government authority, just as they had in 1775. Indeed, that seems to be the point behind Madison's reassurance in Federalist No. 46 that the militia would be able to easily oppose federal troops should the national government become despotic.

I'm a little surprised, however, by the almost total absence of Lexington and Concord from the D.C. briefs, particularly the amici historians' brief. Perhaps they concluded that if Lexington and Concord were admitted to be the paradigmatic case, then D.C. loses, but I'm not sure that follows. In any event, the D.C. brief fails to mention the battles at all. Historians Jack Rakove, Saul Cornell, et al. spend much of their brief talking about the debate over control of the militias in 1788-89; the Second Amendment, they say, was part of that discussion:

It is equally unsurprising that the militia remained an object of constitutional concern in 1776. The American revolutionaries were conscious heirs of a radical Whig tradition that regarded standing armies as a bane to liberty, and which celebrated the idea of a citizens militia as the optimal form of military organization for a republic. See generally “No Standing Armies!” The Antiarmy Ideology in Seventeenth-century England (1974). This was a staple theme of eighteenth-century political writing, and its lessons were reinforced when Britain sent its standing army to Boston, first to enforce the Townshend duties (1768-1770) and then to compel obedience to the Coercive Acts of 1774.

Oh, and by the way, that reminds us:

The latter led to the outbreak of civil war in April 1775, when the militia organized by the Massachusetts Provincial Congress resisted the British march on Concord.

It's possible that I'm overestimating the importance of Lexington and Concord -- that I'm reading into it a significance seen in 1837 (the time of Emerson's poem) but not in 1789. Or, it's possible that the cause of the battles was foggy even in 1789 -- people remembered that a battle occurred, but not why. That would explain why the historians passed over it. (Or perhaps it's because actual historical events aren't studied much any more by historians.) But if the arms confiscation history of the battles was in fact salient in the minds of the Framers, then it has to be addressed. And I think Rakove, Cornell, et al. could have made it into a strong point that the Second Amendment is all about militia protection, not urban crime prevention. But they didn't, so Heller has really the only word on the subject.

Posted by Bruce Boyden at 02:26 AM | Comments (2) | TrackBack

Preaching to the Court House and Judging in the Temple

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts.The full version of my research is now up on SSRN for those interested. Here is the abstract:

A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century's end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession's claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons' rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the "public law" side of this story, showing how the federal government's effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.

Dowload it while its hot!

Posted by Nate Oman at 12:41 PM | Comments (0) | TrackBack

Book Review: Harold Schechter's The Devil's Gentleman

Harold Schechter, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century
Ballantine Books (October 2007)

Harold Schechter, an American literature professor at CUNY, has written a gripping account of the criminal trial and appeal of Roland Molineux, a case that grabbed headlines throughout the late 1890s. His book, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century (2007) is a page-turner, and it reads almost like a novel.

Roland Molineux, the son of a revered Civil War general, was accused of an elaborate scheme of sending medicines and potions containing cyanide in order to kill two men. One was his friend whom Molineux wanted out of the picture because he was having an affair with the woman Molineux had his sights on marrying. The other was the director of an athletic club to which Molineux belonged and whom Molineux hated. The result was two murders, one of which involved an unintended victim. Oddly, anonymously sending potions or food laced with poison in the mail was an effective way to kill at that time. People apparently thought nothing of ingesting things that were sent to them anonymously. Poison was a popular murder instrument at the time, and people viewed poisoning as an especially sinister and "unmanly" way to kill. And one could readily be poisoned not through any nefarious scheme, but by the medicines at the time, some of which contained cyanide and arsenic. The cure was often more deadly than the disease.

The book focuses considerably on the role that the media played in the justice system. The media in the latter half of the Nineteenth Century was rabidly sensationalistic. The rise of "Yellow Journalism" was one of the factors that prompted Samuel Warren and Louis Brandeis to write their famous article, The Right to Privacy in 1890. Yellow Journalism emerged as Joseph Pulitzer and William Randolph Hearst transformed the newspaper business, from small circulations and weak profits (sometimes even losses), to a booming success. In two years, for example, Pulitzer increased the circulation of the New York World from under 12,000 a day to 150,000 a day:

The very look of the paper underwent a radical alternation. Headlines now stretched over several columns or were splashed across the entire top of the page. And there were cartoons, caricatures, lurid illustrations, and other voyeuristic visual aids. Not only were grisly murders reported in graphic detail; they were diagrammed so that readers could picture the horrors more clearly. (p. 98)

The newspapers conducted their own investigations into criminal cases, interviewing witnesses, tracing leads, shadowing the police. In one instance, a newspaper even funded an investigation. The police needed to go through 50,000 sales slips at a pharmacy, and "they would have had an impossible time of it, since orders were full of Latin medical terms and abbreviations. Only people with pharmaceutical training could accomplish the task." The pharmaceutical supply company "couldn't afford to loan [its clerks with the requisite training] out for an indefinite period of time." Enter the media:

At that point, however, the yellow papers, with their genius for self-promotion, insinuated themselves into the proceedings. The World--which never wearied of trumpeting its own invaluable contributions to the case--offered to reimburse Smith for his clerks' time. (p. 164)

When it came to the trial, the newspapers presented it more as a play than as a real event. One newspaper "presented a summary of the case in the form of a stage play, complete with a 'Cast of Characters'; a synopsis of the 'Great Double Poisoning Drama' divided into acts and scenes." (p. 173). A different paper had its theater critic covering the trial, which drew an attack from another newspaper as stepping over the line. "The trial is dramatic but it is not a dramatic spectacle," the editorial decried. "A murder trial should not be made to wear the aspect of a public diversion." (p. 289)

The Devil's Gentleman is riveting and engaging, and it and captures a vivid slice of life at the turn of the Twentieth Century. It contains an extensive and very interesting account of police investigations, trials, and appeals at the time. The book chronicles step-by-step how the police and press pieced together the case, as well as demonstrates the impact of various courtroom strategies and evidence (there were two trials, each involving considerably different strategies and admitted evidence).

And along the way, the book contains some interesting tidbits of information. For example, Theodore Dreiser mulled over writing a novel based on the case, but abandoned the project. He found another crime which formed the basis of An American Tragedy. And the book notes that in the 1890s, "dealers in mail-order patent medicine brought in extra income by saving the correspondence they received from customers, then selling these letters to other mail-order firms." (p. 269). Selling people's personal information, it seems, was a popular pastime then, as it is now.

Posted by Daniel J. Solove at 02:13 AM | Comments (2) | TrackBack

Scenes from a Lawyer's Life

The Arts Section in today's New York Times highlights the renewed interest in the work of Diego Rivera, exemplified by a series of exhibitions ongoing in New York. The theme is Rivera's stepping out from behind the overwhelming interest in his third wife, Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude: their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.

We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to my wife's grandfather, Nathan Milstein, a lawyer in Detroit, who did work for and befriended Rivera and Kahlo. (Family legend has it that Kahlo made a pass at him, but this is unconfirmed.) Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929. Nathan passed away in 2003, having continued to practice until his late eighties, and his seventy-four year tenure as a member of the bar is supposedly one of the longest in Michigan history.

Alene and I spent many hours going through his voluminous files. One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these. The documents are tantalizing. For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children. Before that, he was supporting his mother and sisters. When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.) Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick. I have framed in my office my personal favorite: the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.

The Rivera piece inspired me to go back through some of the files this morning (a quiet Christmas task). I realize now it's entirely likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the F.B.I. director of long memory must have objected.

As to his practice, I'm just now organizing a series of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer. The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party. Bojer himself described it to a reporter as follows: "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York. Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation. There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England. Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units." (The Communist Party (Opposition), or the Communist Party (Majority Group) as it was originally called, was a splinter group from the main Communist Party USA, organized by Jay Lovestone. Lovestone shows up here; he visited Detroit, and met with Nathan and Bojer.)

The American Civil Liberties Union was interested in intervening on Bojer's behalf. On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case. Baldwin stated: "The issue is far more than personal to him. This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership. It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party." Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway. He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.

As to Nathan's political views, here's an excerpt from his tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country. In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred. Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered. The ever oppressed alien is again victimized. The term alien becomes synonymous with undesirable. Deportation "drives" and "spectacular raids" then become common occurrences. Wholesale deportation follows as a panacea for what ails the nation. This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws. Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions. To espouse the cause of the under-privileged requires great courage. Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis. So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

Just an ordinary kid from an ordinary school in an ordinary city. Whose parents had been aliens.

(Cross-posted at Legal Profession Blog.)

Here's more from the tribute:

The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss. As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes. Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment. Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself. Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation. Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.

Posted by Jeff Lipshaw at 11:22 AM | Comments (1) | TrackBack

Law Talk: George R. R. Martin

In today's episode of Law Talk, we hear from George R. R. Martin, the prolific author of the "high fantasy" series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I've previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) "The American Tolkien."

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead's distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren't a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn't one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here's the interview again. Warning: it's a big file!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the "Law and Hard Fantasy" Interview Series, see:

• Fantasy’s Apocalyptic Turn
• The Law and Hard Fantasy Interview Series
• An Interview with Pat Rothfuss

Posted by Dave Hoffman at 12:26 PM | Comments (28) | TrackBack

Law Talk: Oman on Civil Cases in Church Courts

Last week I attended the annual meetings of the American Society for Legal History in Tempe, Arizona. It was a great conference and compared, say, to the AALS meetings all of the presenters had clearly actually written and thought out their presentations before hopping on the plane. In this week's episode I am broadcasting my own presentation at the conference. In early America many religious denominations tried to move civil disputes between church members into church courts, and lately I have been going through the records of Mormon church courts to see how the dealt with contract cases. As part of that research, I've written a paper that looks at the development of the Mormon judiciary, why Mormons sought to bring civil litigation within the church, and why they abandoned the effort around 1900. (I put up a short, preliminary version of my paper on SSRN.) My ASLH presentation shares some of my conclusions from that paper, which will be sent off to the law reviews this spring.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by Nate Oman at 12:00 PM | Comments (0) | TrackBack

Privacy's Other Path: Recovering the Law of Confidentiality

Dan and I have just uploaded the final published version of our article, Privacy's Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we're both very excited it's out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here's the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual's inviolate personality. English law, however, rejected Warren and Brandeis's conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law's divergent paths reveals that each body of law's conception of privacy has much to teach the other.

Posted by Neil Richards at 03:56 PM | Comments (0) | TrackBack

Very Cool

It is a measure of how geeky I am, that I think that this is one of the coolest websites I have seen for quite a while: The Yearbooks, online and searchable.

There is now no excuse for failure to include citations to 13th century case law in your next article or brief.

Posted by Nate Oman at 06:55 PM | Comments (1) | TrackBack

Roberson for the Social Networking Generation?

The New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of "loser" pen pal that cell phone subscribers could finally "dump." The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I'm most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan "flour of the family." Although the New York Court of Appeals rejected the young woman's claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article "The Right to Privacy" was adopted in a variety of related contexts, but this dimension of privacy -- the appropriation of likeness for commercial purposes -- has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that's a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one - the hurt feelings stemming from the unwanted exposure of one's likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it's no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce - we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.

Posted by Neil Richards at 12:39 PM | Comments (1) | TrackBack

Law Talk: Al Brophy on Slavery, Reparations, and Institutional Responsibility

In this week's episode of Law Talk, we hear from Professor Al Brophy of the University of Alabama Law School. In addition to his fame as a Co-Op guestblogger, Al is a legal historian with a special interest in issues of slavery and race in American law. Al is also interested in issues surrounding debates over reparations and apologies for slavery. In this podcast, he discusses how universities and colleges with links to slavery might deal with these issues, using the example of my own employer, The College of William & Mary.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by Nate Oman at 12:14 PM | Comments (0) | TrackBack

Orwellian Surveillance (Quite Literally)

When people think of surveillance, they frequently think of George Orwell, the English writer whose depictions of surveillance in his novel Nineteen Eighty-Four continue to resonate and inform our cultural and legal understandings of privacy. Orwell's critics (and even some of his friends) thought he was a bit paranoid, but recent documents released by the British government suggest he had a point. The documents show that Orwell was himself monitored by the British government's Special Branch police for over a decade because he was suspected of being a communist. A particularly amusing note in one of the documents explained that, referring to Orwell, "This man has advanced communist views ... He dresses in a bohemian fashion both at his office and in his leisure hours." The documents also reveal that Orwell apparently had tattoos on some of his knuckles, which he apparently picked up as a young man living in India.

Orwell was being watched because he was feared to be a communist, a charge that we know (and the government finally figured out after watching him for a decade) to be nonsense. But watching people because they were communists was considered perfectly acceptable in the context of the communist era. One wonders what (and who) is in the surveillance files currently being created by Western governments as part of the war on terrorism. Unfortunately, absent a leak or the extended passage of time, we may never know.

Posted by Neil Richards at 04:20 PM | Comments (5) | TrackBack

Law Talk: Richard Epstein and the Classical Liberal Constitution

In the latest episode of "Law Talk," I speak with Professor Richard Epstein of the University of Chicago and Stanford's Hoover Institute (currently visiting at NYU). Epstein, of course, is known as one of the most articulate and prolific academic defenders of libertarian or classical liberal approaches to the law. In this episode, he discusses one of his current projects, a volume to be published by Basic Books on the classical liberal history of the constitution. Enjoy!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by Nate Oman at 10:02 AM | Comments (0) | TrackBack

Intellectual Privacy

Late last week, I finally sent my latest article out to the law reviews. It's called "Intellectual Privacy," and it's about the ways that certain kinds of privacy protections advance, rather than inhibit, First Amendment values. I'm really excited about the project, which I believe has something useful to say about both a number of recent legal issues (involving the War on Terror and also the War on Pornography) as well as our understandings of First Amendment theory. I'm hoping to post it on SSRN shortly, but in the meantime, here's the abstract:

The use of information about intellectual activity has become central to a wide variety of modern legal problems. In this paper, I offer a theory of intellectual privacy, the critically-important interest lurking beneath the surface of these disputes. Intellectual privacy refers to the zone of protection necessary for free thought and cognition in which individuals can make up their minds about a wide variety of issues both important and trivial. Unlike many other notions of privacy, which are in tension with free speech, intellectual privacy safeguards critical First Amendment values. First, I show how intellectual privacy has been underappreciated in a number of contemporary disputes, including warrantless wiretapping and data mining by government, private-sector uses of personal information relating to intellectual activity, and the introduction of reading habits as evidence in criminal trials. Second, I present a theory of intellectual privacy having four elements – the freedom of thought and belief, spatial privacy, the right of intellectual exploration, and the confidentiality of communications. Third, I show how and why intellectual privacy should be an essential part of our First Amendment theory, and suggest some ways in which it could be better incorporated into both constitutional doctrine and the fabric of our legal culture more generally.

Posted by Neil Richards at 10:13 PM | Comments (0) | TrackBack

Virginia and the Birth of Corporate Law

I enjoy reading local history, and one of the great advantages of living a mile from Jamestown, Virginia is that lots of people have written about my local history. In addition to stories of starving colonists and massacred (and massacring) Indians, Jamestown is also a story of corporate law. The colonization of America was not a government funded operation. Rather, it was an exercise in high risk venture capital, funded by private investors in the hope of big profits. In the end, of course, the Virginia Company failed to pay big and the government ultimately bought the investors out, taking over the colony, somewhat like a bail-out of a hedge fund. Along the way, Virginia made some interesting corporate law.

The company's third charter, in particular, is interesting. Virginia was organized by a royal charter that gave the company a corporate existence, set up its governing structure, and defined the scope of its business. Originally, the number of investors was sharply limited and the governing structure was largely independent of their control. The company found it necessary, however, to return to king and parliament to tinker with their charter. The third charter was provoked by the desire of the company to extend its jurisdiction to take in most of the western Atlantic. In particular, they wanted control of Bermuda, where a Virginia-bound ship had wrecked, living about 120 colonists to live on the island for nearly a year while they built a ship to take them to Virginia. (The incident served as the inspiration for Shakespeare's play The Tempest.) The new charter, however, did several things beyond giving the company control over "The Devil's Isles."

First, it massively broadened the investor base of the company, essentially creating a market in Virginia Company shares where none had existed before. Second, it revamped the governance structure so that the board of governors was elected by the shareholders rather than being appointed by the crown. Thirdly, and most interestingly in my view, it dispensed with the oath of supremacy for investors. This meant that Catholics would be allowed to buy shares in good conscience. The last move is interesting because while the colony remained militantly Protestant and anti-Catholic (or at least anti-Spanish), the innovation does mark the beginning of a shift toward a view of commerce as a realm in which religious differences need not be an impediment to peaceful cooperation. A small move, to be sure, but done several decades before the Peace of Westphalia, it was a not insignificant innovation.

Posted by Nate Oman at 07:47 AM | Comments (1) | TrackBack

Benjamin Carp: Rebels Rising

It is a Monday, and I thought you guys might be interested in some cross-disciplinary posting. (My Friday fun post having left you "baffled".) So I invited Benjamin L. Carp, an Assistant Professor of History at Tufts University, to write up a little review of his new (and well-received) book from Oxford Press, Rebels Rising: Cities and the American Revolution. Ben has previously written articles on firefighters (sub. req.), nationalism (sub. req.), and the destruction of New York City (sub. req.) Ben's comments on the book, which may intrigue ahistorical law prof types enough to motivate a purchase, follow after the jump.

About a month ago, Nate Oman wrote a neat post entitled Why I Read History. He wrote in particular that history (though it implies something temporal) helps him to find a “sense of place.”

I liked Oman’s post, since it echoes the goals I had while researching and writing Rebels Rising. I was interested in the politics of the Revolutionary movement, and I wanted to tell a story of the Revolution that conveyed a “sense of place.” Rebels Rising looks at the coming of the American Revolution in the cities: it settings include the Boston waterfront, New York City taverns, Newport churches (and synagogue), Charleston households, and the State House and State House Yard in Philadelphia (now Independence Hall and Independence Square).

Although late colonial American cities were small (the largest, Philadelphia, may have had fewer than 40,000 people), they were still dense, pluralistic places—hubs of communication and exchange. Cities, therefore, offered unique opportunities for political activity and the formation of political coalitions. A look at political mobilization helps to reveal how and where the Revolution unfolded, not just when and why.

The shape of Revolutionary debates was hotly contested. At a mass meeting in the State House Yard on June 18, 1774, the Reverend Dr. William Smith (the first head of what became the University of Pennsylvania) asked that “every person may be allowed to speak his mind freely, and to conclude what he has to offer, without any such outward marks of approbation or disapprobation, as clapping or hissing.” Smith was right to worry, because when the meeting’s chairmen announced a slate of candidates for a committee of correspondence, the crowd asked “what right they had to dictate.”

Because of this discomfort with noisy, disorderly debates, the stuffy Pennsylvania Assembly had long asserted the right to close the doors of its meetings. Newspaper writers had attacked “the absurd and tyrannical custom of shutting the Assembly doors against you, whose interest and right it is to enter whenever you think it necessary to your security.” Yet even Benjamin Franklin, in 1764, had been part of an Assembly committee that defended Pennsylvania’s restrictions on public debates. When Pennsylvania’s radicals adopted a new constitution in 1776, it mandated that “The Doors of the . . . General Assembly, shall be and remain open for the Admission of all persons, who behave decently except only when the welfare of this State may require the doors to be shut.” Whether it was a dockside riot, a tavern debate, a boycott on tea, or a continent-wide fast day, expressions of political mobilization were subject to challenge.

These challenges raised a variety of interesting questions. In the face of an unresponsive legislature, what were the effects of politics “out of doors”? What were the benefits and risks of suddenly throwing open the doors to debate? When mobilizing for rebellion, how far would the limits of the civic community extend? At a time when Senator Barack Obama is emphasizing his roots as a community organizer and Americans are arguing over when “the welfare of this State” justifies limits on free speech, I think it’s interesting to take a look at how city dwellers of the 1770s organized a political movement along with their neighbors.

By the end of the Revolutionary War, Americans were already forgetting (or deemphasizing) the contributions of the cities to the Revolution. The Founders framed the Constitution and chose the location of the capital during a time when Americans regarded the cities with distrust and distaste. Whether this explains anything about subsequent political and legal structures with regard to cities, I leave for others to judge. This is a book on the court of public opinion—from the courthouse to the pub across the street—and how it shaped the American republic.

Good stuff! Go ahead, spend a few bucks and learn something new. Oh, and if you are a reader of this blog, and a professor in another discipline who has a new book out that you think would interest our readers, drop me a line. Maybe we can make this a regular feature: "scholarship by people who don't need to bluebook."

Posted by Dave Hoffman at 05:58 PM | Comments (0) | TrackBack

Of Foxes, Hedgehogs, and Splitting Babies

Larry Solum takes the interesting continuing cross-blog discussion of foxes and hedgehogs started by Belle Lettre -- including this blog's own entry from Dan Filler -- in a new direction by pointing out, politely, that the fox/hedgehog imagery is being used incorrectly. Go read Larry's explanation, and then be sure to stay around for his delightful integration of the refined definition back into the discussion.

It made me think of other historical or literary images that are misused in modern legal discourse because so many of us are insufficiently familiar with them. I claim absolutely no high ground here -- surely I do it myself. But the one that drives me crazy is "splitting the baby." It may be objectionable as a cliche anyway, but it is even worse when used incorrectly.

In general "split the baby" gets used as a substitute for "split the difference," "half a loaf," or, more simply, "compromise." (Thus explaining its frequent occurrence in legal discussions...) It shows up in that sense in places I otherwise love, like the Wall Street Journal Law Blog and NPR reports by Nina Totenberg.

The phrase originates in the Bible, specifically 1 Kings 3:16-28. Two women come before wise King Solomon, both claiming fervently to be the mother of an infant. Solomon calls for his sword and declares that he will cut the baby in two and give one half to each woman. When the true mother cries out in anguish, Solomon knows which woman should keep the child. If he had actually cut the child in half, of course, he would be remembered as a mad tyrant like Caligula and not the epitome of wise judicial temperament. Yet you might think from some lawyers' metaphorical uses of the phrase that cutting a baby in half was laudable. One of the oldest literary or historical models of good judging deserves better from us.

Any other nominees?

[Cross-posted at Info/Law]

Posted by William McGeveran at 10:06 PM | Comments (11) | TrackBack

Anuj Desai on the Post Office and the First Amendment

Professor Anuj Desai (U. Wisconsin Law School) has posted his forthcoming article, The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine, on SSRN. Anuj's paper is a fascinating history of the early Post Office and how statutory protection of letters influenced constitutional law. From the abstract:

We typically think of constitutional law as the product of text, structure, constitutional history, ethical and moral philosophy, or common law doctrine. At times, though, constitutional law comes directly from societal institutions; those institutions in turn are often rooted in legislative, not judicial, choices. In this article, I tell an intriguing story of constitutional lawmaking in which policy choices about an institution developed into constitutional law. I look at two important areas of First Amendment doctrine: First Amendment constraints on government spending, i.e., "unconstitutional conditions"; and what is known in First Amendment jurisprudence as "the right to receive." I argue that the genesis of both doctrines can be found in legislative choices made during the formation of one of the nation's first "administrative agencies," a communications network that was viewed as the internet of its day: the United States Post Office. When the twentieth century Supreme Court held that the First Amendment can constrain government spending and then later, in a separate line of cases, established "the right to receive," the Court initially relied on specific attributes of the post office. Those attributes in turn had been established by choices made by policymakers during the late eighteenth century. In short, the Court incorporated aspects of the early postal statutes into First Amendment doctrine. Legislative choices in effect became constitutional law.

I really enjoyed reading this article -- it's a very interesting piece, especially for anybody interested in legal history and First Amendment law.

Posted by Daniel J. Solove at 12:33 PM | Comments (0) | TrackBack

Three Generations of Mormon Legal History

In the shameless self-promotion category, I have a new paper up on SSRN for your enjoyment. I have put up a couple of posts in the past here and elsewhere on Mormon legal history. My new SSRN paper -- "Three Generations of Mormon Legal History: A Historiographic Introduction" -- is meant as a primer on the subject for legal scholars interested in legal history or law and religion, as well as an argument about how I think the practice of Mormon legal history could be improved. Here is the abstract:

This is an essay on the past practice and future possibilities of Mormon legal history. For most legal scholars, the fact that there even is such a thing as “Mormon legal history” comes as a surprise, and the idea that it “should be proved . . . to be worthy of the interest of an intelligent man” may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of Mormon legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of Mormon legal history lies mainly in the idiosyncratic intellectual development of Mormon legal historiography itself. By explaining that development and introducing the work that has already been done on Mormon legal history, I hope to assist future scholars to better integrate Mormon legal experience into the mainstream discussions of the legal academy.

Posted by Nate Oman at 07:59 AM | Comments (1) | TrackBack

The Almost French Thirteenth Amendment

Here is a story that ought to fill don't - cite - foreign - law - to - construe - the - constitution conservatives with horror. Of late I have been reading the legislative history of the Thirteenth Amendment. The language ultimately adopted was lifted virtually verbatim from the Northwest Ordinance of 1787. Senator Sumner of Massachusetts, however, did not like this langauge and proposed instead that the amendment should read:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States and the jurisdiction thereof.

The "all persons are equal before the law" language, however, also had a history. Sumner traced it back to the various declarations of rights contained in the constitutions of the French Revolution. He went on to note that "this article has been adopted in the charters of Belgium, Italy, Greece; so that is is now a well-known expression of a commanding principle of human rights." Sumner's language was defeated, of course, but not before Senator Howard had taken a swipe at Sumner's Francophilia (and his knowledge of French history):

The learned Senator from Massachusetts, I apprehend, has made a very radical mistake in regard to the application of this language of the French constitution. The purpose for which this language was used in the original constitution of the French republic of 1791, was to abolish nobility and privileged classes. . . . It was never intended there as a means of abolishing slavery at all. The Convention of 1794 abolished slavery by another and separate decree expressly putting an end to slavery within the dominions of the French Republic and all it colonies.

Now, sir, I wish as much as the Senator from Massachusetts in making this amendment to use significant language, language that cannot be mistaken or misunderstood; but I prefer to dismiss all reference to French constitutions or French codes, and go back to the good old Anglo-Saxon language employed by our fathers . . . .

Indeed.

Posted by Nate Oman at 04:01 PM | Comments (1) | TrackBack

Roman Law and the Virtual Death Penalty

Criminal law is not really my area of interest, but some reading in Roman law has got me thinking about the death penalty. I've always found Roman history -- particularlly the Republican period -- very interesting and were I better at languages I would love to have been a classicist. Roman politics, especially in the late Republic, was a full contact sport as it were. Bribery, organized violence, assination, and -- most importantly -- criminal prosecution were an ordinary part of political hard ball.

If you read the texts of various Roman laws, particularlly very early legal texts like the Twelve Tables, it is awfully bloody minded stuff. (My favorite provision is the one that allows a debtor's creditors to divide shares, meaning literally that they could dismember his body for non-payment of debts, presumeably on a pro rata basis.) In practice, however, the Romans were remarkably fastidious about killing one another. There was no system of incarceration, and generally speaking citizens were never executed. On the other hand, numerous Roman laws did call for the death penalty. In practice, however, someone sentenced to death was given several days before the sentence was carried out in which they could either kill themselves (this was a way of preserving the family estate) or go into exile. Indeed, by the late Republic the assumption was that a death sentence, particularlly for a political crime such as treason, was a de facto sentence of exile.

I suspect that moderns are incapable of really feeling what exile meant for an ancient Roman, the horror of being seperate from the graves and shrines of one's ancestors, the loss of citizenship (which was a religious as well as a civic event; indeed there was precious little distinction between the concepts), etc. etc. Of course in the social breakdown of the late Republic, many an exiled Roman patrician was happy enough to enjoy life in some Greek speaking city like Athens or Rhodes. Still, exile was a death of sorts.

The interesting thing to me about the Roman practice of exile is that it seemed to allow the community to maintain the appearance and practice of capital punishment without actually killing anyone. The civitas could express its ultimate moral and legal condemnation -- "This many is worthy of death" -- without actually making the irrevocable step of strangling the guilty party, or at least not strangling all that many guilty parties. It was a kind of virtual death penalty.

Posted by Nate Oman at 02:35 PM | Comments (2) | TrackBack

Memory, the Reporters, and the Metaphysics of Law

I've been reading early nineteenth-century English contracts cases of late. One of the fascinating aspects of these cases is the way in which they deal with previously reported decisions. Everyone is familiar with the way in which judges narrow and distinguish earlier holdings. This, after all, is bread-and-butter lawyer stuff. Still, when we play this game we assume that the previous case refers to some stable and discoverable text, a judicial opinion. We can expand and contract the reasoning and pick at the facts, but the text remains the same.

Not so for the judges that I have been reading. Unlike their modern counterparts, their nineteenth-century lordships (or at least their early nineteenth-century lordships) did not seem to think that they were bound by the text of the earlier decision. Hence, judges would sometimes avoid previous, adverse holdings by noting that they "doubted" the accuracy of the reporter, and hence did not feel bound by the language cited by counsel. Of course, they didn't do this willy-nilly. Rather, they would point out, for example, that volume 8 of Taunton's reports was not really compiled by the esteemed Mr. Taunton and ought not to be trusted, etc. etc. Even more interestingly, leading advocates were regularly promoted to the bench, where they would then be called upon to apply cases that they had argued as attorneys. In such cases, judges seem to have felt justified in privileging their own memory of the case over the reported version.

The whole exercise raises an interesting question about the metaphysics of the law. We tend to think of law today as consisting of some set of texts. Even someone like Dworkin thinks that it consists of the interpretation of particular texts. Not so the nineteenth-century chancery judges that I have been reading. For them, law seems to have consisted of history, particular events in the past, and the point was to discover the basis of those events. Blackstone, of course, famously said that the decisions of the judges were not law but only evidence of law. He seems to have had in mind the unchanging laws of nature. More parochially, the judges I have been reading also saw reported cases as only evidence (and not always reliable evidence at that) of law, but they were looking for evidence of a somewhat less ethereal kind of corpus juris.

Posted by Nate Oman at 01:42 PM | Comments (6) | TrackBack

Preaching in the Court House: An Experiment in Blog Advertising

At last January's AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one's piece at other schools. Perhaps blogs can be used in the same way. Hence this post.

I now have a completed draft of a paper that I am interested in workshopping at any school that might be interested in having an outside presenter during the summer. Here is an abstract:

Preaching in the Court House and Judging in the Temple

A number of American religious denominations – Quakers, Baptists, Mormons, and others – tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Scholars of alternative dispute resolution have studied these ecclesiastical judiciaries as a chapter in the perpetual quest for low-cost alternatives to the expense and technicality of the common-law courts. Using the rise and decline of civil litigation in Mormon ecclesiastical courts during the nineteenth century as a case study, this paper argues that the move to bring civil litigation within the fold of the church must be understood against a much richer background of theological development and civic symbolism. Ultimately the Mormon courts emerged as a result of theological ideas with roots in the early sixteenth century and as a religious critique of the legal profession and the symbolic status of litigation in civic life. Likewise, their decline resulted from a combination of rising economic and legal complexity and the symbolic renegotiation of law’s meaning within the Mormon community.

If this sounds interesting to you, contact me at nboman-at-wm.edu.

Posted by Nate Oman at 10:47 AM | Comments (5) | TrackBack

Olde Fields, New Corn, and an Inscription

I have always been facinated by the confrontation between James I and Chief Justice Edward Coke over the nature of the common law. The king asserted the right to dictate the law because, he reasoned, law was simply the expression of natural reason and the king's reason was as good as the judges. Coke responded by conceding that the law was reason, but insisted that it was an "artificial reason" that could only be gained by deep study and long experience. Coke's response is cryptic, and historians of greater learning than I have lavished a great deal of attention on what precisely he meant in context. I take it, however, that Coke is claiming that rules built up in the law over the centuries represent a well of experience and wisdom that exceeds what we might acquire by rational construction on a tabula rasa. As it happens I am a big fan of the common law, and I tend to have more faith in judicial caususitry than in a priori philosophical speculations. In some sense, I believe in the artificial reason of the law.

Hence, I was fancinated when I ran across Felix Frankfurter's dedication in his 1930 book The Labor Injunction. He wrote, "To Mr. Justice Brandeis, for whom law is not a system of artificial reason, but the application of ethical ideals, with freedom at the core." The shifts in jurisprudential world views crammed into that inscription is really quite impressive. There is also a wonderful irony in the fact that Frankfurter no doubt penned these words at the Harvard Law School, which is of course covered with the law school's crest on which are prominently displayed sheaves of wheat. The sheaves are an allusion to Coke and another of his maxims on the law: "From olde fields, springs forth new corn." The dirt of experience and history imagined by Coke, however, strike me as quite different -- less ethereal and celestial -- than the "ethical ideals" for which Frankfurter praised Brandeis.

Posted by Nate Oman at 11:44 AM | Comments (0) | TrackBack

The Unfortunate Fate of the Law

I sometimes think that it is the fate of the world to become boring. Consider modern litigation. To be sure, judges (along with soldiers and police) are the only government bureaucrats who get to wear special clothes and engage in formalized rituals, but I can't help but feel that when it comes to legal spectacle, we have come down in the world.

“Court day” was an important civic ritual in nineteenth-century America. Few towns had permanent magistrates above the level of justices of the peace, and more complicated cases were handled by circuit courts that met – usually twice a year – at county seats. These gatherings were major social, economic, and political events. During the colonial period, they served to enact social hierarchies, with genteel magistrates decked out in the regalia of royal authority. In Massachusetts, for example, traveling justices were met at the county line by the sheriff, who would accompany them to the court house, where “[t]rumpets and drums or firearm volleys announced the justices’ arrival in town.” After independence, court day continued to enact social hierarchies, but it also developed into a rollicking democratic carnival. Court sessions were accompanied by peddlers on the courthouse square hawking their wares, which generally included a generous amount of alcohol. Drunken fights were common. Indeed, they were part of the appeal of court day, as one diarist complained in 1807 “a very Poor Court, no fighting or Gouging, very few Drunken people.” One veteran lawyer described Illinois court days in the 1840s and 1850s, noting that “the local belles came in to see and be seen” and the work continued in the court house “from ‘early morn till dewy eve’” while ribaldry in the tavern continued “from dewy eve to early morn.”

George C. Cooke’s 1834 painting Patrick Henry Arguing the Parson’s Case in the Hanover County Courthouse (above right) anachronistically provides an image of the kind of communal drama associated with a nineteenth-century court day. The lawyer stands in a small but packed courtroom. The spectators, who are intently focused on his oratory, crowd around a rough-hued bench where the lawyers sit. They spill out the open door into the square beyond. In the foreground is a pair of children playing in the courtroom with a hoop and stick, while in the background we see the sign for a tavern that waits to refresh the crowd of thirsty spectators. Indeed, there was a symbiotic relationship between courthouses and taverns. Many frontier courts sat in the pu