Thursday, February 19, 2009

Tales from the Classroom: The Rule of Law

As I mentioned in posts last summer (here and here), I’ve organized my legal history course in terms of the emergence and consolidation of political regimes in the United States from the late 1890s through the early 1960s. I’m teaching it again this semester and thought I’d describe a recent class, entitled “The Rule of Law.” I assign three main readings:
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (1885; London: Macmillan, 1902), 182-83, 189, 191, 198-99, 322-49

Robert H. Jackson, “The Administrative Process,” Journal of Social Philosophy 5 (1940): 146-47

Louis Anthes, “Island of Duty: The Practice of Immigration Law on Ellis Island,” New York University Review of Law and Social Change 24 (1998): 563-66, 569-76, 580-83, 584-94
I start by reminding my students of an earlier class, in which we discussed the curriculum Ernst Freund unsuccessfully proposed in 1902 for the University of Chicago’s new law school, as well as the ideal of the Rechtsstaat, which informed Freund’s pedagogy. I’m then in a position to present Dicey’s famous account of the Rule of Law as a court-centered and Anglo-American variant of a more general ideal. When I focus on Dicey’s claim that in England no person was made to “suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land,” I have the great pleasure of introducing my students to the locus classicus for something they’ve heard expressed, in various ways, many times before. (Lately, the most common context for their “ah-ha moments” has been habeas corpus review of Guantanamo’s military tribunals.)

I say something about how Dicey’s deprecation of the droit administratif caricatures the administrative courts of the Continent (the Freund class helps here) and supplement Dicey’s reference to the common lawyers’ battle with prerogative courts under the Stuarts with my own (I’m afraid) cartoonish account of the Prohibitions del Roy. Before leaving Dicey I introduce a distinction I’ve been using in some articles on administrative law during the New Deal, between “institutional Diceyism,” which requires meaningful judicial review by courts of general jurisdiction (those "ordinary Courts of the land”) and “procedural Diceyism,” which is satisfied as long as the agencies themselves act in the “ordinary legal manner”–that is, with judicialized procedures. (For the articles, see here and here.)

Then comes the pivot of the class, as we turn from Dicey to an edited version of Louis Anthes’s account of lawyers and the exclusion of aliens at Ellis Island in the 1890s. Anthes nicely quotes a federal judge who rejected a habeas suit with the explanation: “If the Commissioners wish to order an alien drawn, quartered, and chucked overboard they could do so without interference.” (So much for institutional Diceyism.) That turns out to be only the beginning of our investigation of lawyers and the immigration bureaucracy, because Anthes provides case studies of several who represented aliens on Ellis Island. Those who usually appeared in the "ordinary Courts" of New York City complained loudly when the inspectors refused to permit cross-examination and violated the common law of evidence in their boards of special inquiry (such as the one pictured at left). Such lawyers usually lost, as the inspectors and the port commissioner felt no obligation to follow the “ordinary legal manner” of the courts. (At this point I refer to the Robert Jackson reading, in which he voices–sympathetically, but without really endorsing–the courtroom lawyer’s dim view of the administrative process.) One might think that lawyers have nothing to contribute to this American droit administratif, and as long as they insist on being “officers of the court,” they really don’t. But Anthes also shows us an experienced immigration lawyer, Henry Gottlieb, who gathers information and presents it in keeping with the inspectors’ own routines and informal guidelines. This “officer of the state” won the bulk of his cases.

The class ends with the students appreciating, in Diceyan terms, Peter Schuck’s observation that immigration was a “realm in which government authority is at its zenith, and individual entitlement is at the nadir.” Gottlieb prefigures the “Washington lawyers” they’ll encounter later in the course. More generally, they’ll understand the ideological stakes for landmark cases on the judicial review of administrative agencies (such as Ben Avon, Crowell v. Benson, and Morgan v. United States), the long legislative campaign that ultimately produced the Administrative Procedure Act, and–one hopes–their own role as lawyers with an administrative practice.

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