Monday, August 18, 2014

D.C. Area Legal History Roundtable

[Here is an announcement for the D.C. Area Legal History Roundtable, which will meet on Friday, September 12, 2014, from 12:00 noon - 4:00 Room 220, McDonough Hall, Georgetown University Law Center, 600 New Jersey Ave., NW, Washington, DC 20001-2075.]

The D.C. Area Legal History Roundtable is an informal gathering of scholars who live or work in and around Washington, D.C. It first met in 2006 at George Washington University Law School and later at the law schools of American University, the Catholic University of America, George Mason University and Georgetown University and at the Federal Judicial Center.  It will reconvene on Friday, September 12, at the Georgetown University Law Center.

The two-panel program appears below, along with other details.  Commentators are TBA.  Abstracts [for the papers after the jump.]

Please RSVP to by Friday, September 5, to provide an accurate count for lunch. 
12:00-1:00     Buffet Lunch

1:00-2:20     Original Intent and Original Meaning
Does the Magna Carta Embody a Proportionality Principle?
Craig S. Lerner, Associate Dean for Academic Affairs and Professor of Law, George Mason University Law School

Gouverneur Morris's Constitution
William Michael Treanor, Dean and Professor of Law, Georgetown University Law Center

2:20-1:35     Break

1:35-3:55     Judicial Dissenters and Consumer Activists

Dissent and the Constitutional Dialogue (Knopf/Atheneum, 2015).
        Chapter 1 + “Hugo L. Black in Betts v. Brady (1942)”
Melvyn Urofsky, Professor Emeritus of History, Virginia Commonwealth University

The Consumer’s Counsel, a chapter from “City of Debtors: Law, Loan Sharks, and the Shadow Economy of Urban Poverty, 1900-1970”  (Ph.D. thesis)
Anne Fleming, Associate Professor of Law, Georgetown University Law Center

Access: Construction blocks vehicular traffic north on Second Street, NW, between E Street and the Law Center.  The primary entrance to McDonough Hall is now from New Jersey Avenue, NW, up the stairs from street-level to the second floor.  Room 220 is at the end of the hallway just beyond and to the left of the guard’s desk.  Handicapped access to McDonough is best via the F Street door, on the Tower Green side of McDonough, where equipment provides direct contact with campus police.

Parking and Metro: Unfortunately, no on-site parking is available.  On-street parking is metered and limited.  By Metro, use either Union Station or Judiciary Square, as they are equidistant from the Law Center.

Further Information and Mailing List: For further information or to join our mailing list, please send your name and institutional affiliation (if any) to


Does the Magna Carta Embody a Proportionality Principle?  Craig S. Lerner, Associate Dean for Academic Affairs and Professor of Law, George Mason University School of Law

The year 2015 marks the 800th anniversary of the sealing of the Magna Carta.  Many of the planned celebrations claim support from this ancient text for positions on contested legal and political issues.  This Essay explores one of the claims made about the Magna Carta.      

American scholars often argue that the Magna Carta embodies a "proportionality principle" mandating that the punishment fit the crime.  Justices on the U.S. Supreme Court have claimed the authority of the Magna Carta when infusing the Eighth Amendment with a proportionality principle not immediately evident from its text.

As explored in this Essay, the argument that the Magna Carta embodies a proportionality principle seizes upon three Chapters (20 to 22) that provide that a penalty not exceed "the degree of the offense."  Yet these sections exclusively concern the Norman practice of amercements-a penalty imposed for a litany of administrative offenses that were almost never of a criminal nature.   Furthermore, given the prevalence of violent crime and the widespread acceptance of cruel punishment, it is implausible to project humanitarian motives onto the authors of Chapters 20 to 22.  It is true, of course, that the Magna Carta, like virtually every legal document in recorded history, embodies at some level a proportionality principle.  But as jurists purport to extract more meaningful and specific lessons from the Magna Carta on this and other points, their arguments lapse into poor scholarship and hopeless anachronism.?

Gouverneur Morris's Constitution
William Michael Treanor, Dean and Professor of Law, Georgetown University Law Center

[From the paper:] Seeking to bring their deliberations to a conclusion and coherence to the provisions that had been approved, the members of the constitutional convention decided to create a committee "to revise the style of and arrange the articles which had been agreed to by the House."  They elected to the committee Alexander Hamilton, William Johnson, Rufus King, James Madison, and Gouverneur Morris. The Committee went off to work on its own, with Morris selected as the lead drafter and James Wilson, although not a committee member, apparently informally reviewing the committee's work. A little more than three days later, on the morning of September 12, the Committee presented a proposed Constitution to the convention. Over the next few days, the weary delegates rapidly worked through the document and made a few largely insignificant changes to the Committee's draft (as well as hearing the objections to the Constitution from Edmund Randolph, Elbridge Gerry and George Mason). At the end of the day on September 15, they voted to adopt the Constitution.

Even a superficial analysis shows that the document that the Committee of Style produced was not simply a lightly edited and rearranged version of the provisions referred to it. A little more than one hundred years ago, the constitutional historian Max Farrand, using the proceedings of the convention in combination with the Committee of Detail's draft, compiled the provisions referred to the Committee : That document (in Farrand's Reports) is fifteen pages long; the Committee of Style's report has a slimmed down 12 and one half pages.   The provisions referred to the Committee were comprised of 23 articles; the Committee of Style's report had 7. More substantively, one need look no further than the Preamble to realize that the Committee of Style did not simply employ the language previously adopted by the Convention. The preamble referred to the Committee of Style begins: "We the People of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. . . ." The Committee of Style's draft begins with the familiar (and dramatically more nationalistic) "We, the People of the United States . . ." Also obviously, the contract clause, voted down on the floor, had somehow emerged in the Committee of Style's draft Constitution....
In the more than 200 years since the constitutional convention, . . . no scholarly work has systematically compared the provisions referred to the Committee of Style with the draft the Committee produced. This essay offers such a comparison. It highlights a range of significant changes beyond the introductory words of the Preamble and the addition of the Contract Clause....

Dissent and the Constitutional Dialogue (Knopf/Atheneum, 2015)
Melvyn Urofsky, Professor Emeritus of History, Virginia Commonwealth University

[From Chapter 1:] Even today when four out of every five Supreme Court decisions includes one or more dissenting opinions, there is still a debate over the merit of a judge declaring that he thinks the majority of his colleagues misinterpreted the law. As will be clear from what follows, I strongly believe in dissent, and that it has an important role to play in our constitutional dialogue. 

That phrase–constitutional dialogue–includes not just debates justices on the high court have with one another in specific cases or over particular jurisprudential ideas, but includes discussions between and among jurists, members of Congress, the executive branch, administrative agencies, state and lower federal courts, the legal academy, and last, but certainly not least, the public. The Court–consciously or not–has always been subject to the will of the people.  It is this congruence of opinion between the citizenry and the judges that has been a source of both the Court's influence and the public's acceptance of the rule of law. . . .

As Justice Robert Jackson has reminded us, the vast preponderance of dissents are soon forgotten (the same might be said for many of the majority opinions as well); they play little part in the constitutional dialogue, and rarely become accepted by the Court at a later date.   But some dissents are important, and these are the ones we are concerned with, the so-called "canonical" or "prophetic" ones that became part of and influenced the constitutional dialogue.

The Consumer's Counsel, from "City of Debtors: Law, Loan Sharks, and the Shadow Economy of Urban Poverty, 1900-1970"  (Ph.D. thesis)
Anne Fleming, Associate Professor of Law, Georgetown University Law Center

Laws are like sausages, according to one often-quoted maxim: the more you know about how they are made, the less you respect the product.  So, readers beware.  This chapter presents a close study of the lawmaking process in New York in the late 1950s, warts and all.  But rather than disgust, it aims to broaden the reach of our legal histories beyond the more familiar courtroom settings.  In so doing, it reveals the importance of the institutional structures of state governance in shaping the legislative process, as well as the influence of other jurisdictions' policies on local lawmaking in a federal system.

This chapter shows that New York's success in enacting pioneering consumer credit reform legislation in the late 1950s rested on the timely convergence of two events.  First, in 1955, newly-elected governor Averell Harriman made good on a campaign pledge, to appoint the nation's first Consumer Counsel to his cabinet.  While the existence of the Counsel's office by no means ensured that consumer legislation would flower in New York, it did improve its chances significantly.  Equally vital was the governor's selection of a long-time consumer advocate, Persia Campbell, to fill the post. 

Second, the acts of out-of-states judges, sitting a thousand miles away, caused New York lenders to rethink their investment in the state's legal status quo.  Sales finance transactions had long been exempt from state usury laws under the judge-made "time-price" doctrine.  Thus, in the 1940s, the sales finance industry had vocally opposed new legal constraints on their business.  But the industry's stance on regulation quickly changed, when a 1952 Arkansas court decision opened the door to treating credit sales as loans "in disguise."  Fissures in the time-price doctrine, as well as Campbell's skillful navigation of the legislative bargaining process, led to a coup for the Harriman administration in 1957.  New York enacted a new, comprehensive sales finance law, more far-reaching than any yet adopted nationwide.