Tuesday, February 28, 2023

Camphuijsen, "Scripting Justice in Late Medieval Europe: Legal Practice and Communication in the Law Courts of Utrecht, York and Paris"

Amsterdam University Press has published Scripting Justice in Late Medieval Europe: Legal Practice and Communication in the Law Courts of Utrecht, York and Paris, by Frans Camphuijsen. A description from the Press:

Late medieval societies witnessed the emergence of a particular form of socio-legal practice and logic, focused on the law court and its legal process. In a context of legal pluralism, courts tried to carve out their own position by influencing people’s conception of what justice was and how one was supposed to achieve it. These “scripts of justice” took shape through a range of media, including texts, speech, embodied activities and the spaces used to perform all these. Looking beyond traditional historiographical narratives of state building or the professionalization of law, this book argues that the development of law courts was grounded in changing forms of multimedial interaction between those who sought justice and those who claimed to provide it. Through a comparative study of three markedly different types of courts, it involves both local contexts and broader developments in tracing the communication strategies of these late medieval claimants to socio-legal authority.

More information is available here. An interview with the author is available here, at New Books Network.

 -- Karen Tani

Thank You, Michael Ariens!

We're grateful to Michael Ariens for his posts this month on his new book, The Lawyer's Conscience.

Honor, Conscience, and Rules
The Zealous Rufus Choate
David Dudley Field and the Limits of Conscience
Lon L. Fuller and the 1969 ABA Code of Professional Responsibility
What's the Point of an Ethics Code?  The ABA's 1983 Model Rules
The Professionalism Crisis and Core Values

--Dan Ernst

Monday, February 27, 2023

Book Talk: Zhang's "Ideological Foundations of Qing Taxation"

[We have the following announcement.  DRE]

Please join the Lillian Goldman Law Library for a talk with Professor Taisu Zhang about his new book, The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions, with commentary by Professor Samuel Moyn.  This event will take place on Thursday, March 9, at 12:10 PM in SLB 127.  Boxed lunch will be available for those who register here by March 7.  This book talk will be recorded and available to watch on the Law Library’s YouTube channel following the event.

Gajda, "Seek and Hide: The Tangled History of the Right to Privacy"

We missed this book when it came out last year: Amy Gajda (Tulane Law School), Seek and Hide: The Tangled History of the Right to Privacy (Viking, 2022). A description from the Press:

Should everyone have privacy in their personal lives? Can privacy exist in a public place? Is there a right to be left alone even in the United States? You may be startled to realize that the original framers were sensitive to the importance of   privacy interests relating to sexuality and intimate life, but mostly just for powerful and privileged (and usually white) men. 

The battle between an individual’s right to privacy and the public’s right to know has been fought for centuries. The founders demanded privacy for all the wrong press-quashing reasons. Supreme Court jus­tice Louis Brandeis famously promoted First Amend­ment freedoms but argued strongly for privacy too; and presidents from Thomas Jefferson through Don­ald Trump confidently hid behind privacy despite intense public interest in their lives.  
Today privacy seems simultaneously under siege and surging. And that’s doubly dangerous, as legal expert Amy Gajda argues. Too little privacy leaves ordinary people vulnerable to those who deal in and publish soul-crushing secrets. Too much means the famous and infamous can cloak themselves in secrecy and dodge accountability.
Seek and Hide carries us from the very start, when privacy concepts first entered American law and society, to now, when the law al­lows a Silicon Valley titan to destroy a media site like Gawker out of spite. Muckraker Upton Sinclair, like Nellie Bly before him, pushed the envelope of privacy and propriety and then became a privacy advocate when journalists used the same techniques against him.  By the early 2000s we were on our way to today’s full-blown crisis in the digital age, worrying that smartphones, webcams, basement publishers, and the forever internet had erased the right to privacy completely.
Praise from reviewers:

“For anyone who mistakenly believes that the debate about press freedom and privacy is a twenty-first-century problem, Amy Gajda’s Seek and Hide is a reminder that ‘gotcha’ journalism, political sex scandals, and hand-wringing over new technologies date back to the Founding Era. In this gorgeously written, rollicking account of a very complicated, very Ameri­can history of the smackdown between privacy versus the right to know, Gajda offers indispensable and timely context for contemporary debates about the boundaries of both. Ultimately Seek and Hide also serves as a bracing reminder that the laws of privacy and politics are often shaped by self-interested parties with the most to gain and the most to hide.” -- Dahlia Lithwick 

“A magnificent book that shows us that the tension between the right to privacy and freedom of expres­sion is as old as this country yet as recent as social media and doorbell cameras. At a time when we all must be concerned about what it all means for each of us, Amy Gajda has written the definitive book about privacy and the right to know.”— Erwin Chemerinsky

An excerpt is available here, via the American Bar Association. An interview with Professor Gadja is available here, at New Books Network.

-- Karen Tani

Saturday, February 25, 2023

Weekend Roundup

  • John Mikhail, Georgetown Law, will deliver a Law Day lecture for the Supreme Court Historical Society on James Wilson and "We The People” on Tuesday, May 2, 2023 at Noon (ET) via Zoom.
  • John Witt on reanimating the modern Torts curriculum, collaborating with students, and writing legal history from the baseball field, as part of the Inside Yale Law School podcast.
  • The Policy History Conference in Columbus, Ohio from Wednesday, June 7 to Friday, June 9, 2023, has extended its paper and panel submission deadline to March 1, 2023.
  • Kevin M. Kruse and Julian E. Zelizer discuss Myth America: Historians Take On the Biggest Legends and Lies About Our Past on the ABA Journal’s Modern Law Library podcast.
  •  ICYMI: George Boyer Vashon, New York’s first Black lawyer (Law.com).  Elizabeth Jennings and the Desegregation of Public Transportation in New York City (Historical Society of the New York Courts).  Hidetaka Hirota, University of California, Berkeley, on the historical stigma of undocumented immigrants at Boston College (The Heights).

  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 24, 2023

Schlag's "Twilight of the American State"

Pierre Schlag, Colorado Law, has published Twilight of the American State (University of Michigan Press) open access, at the press’s website and on Kindle:

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.

How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.

Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.
--Dan Ernst

Thursday, February 23, 2023

Freedom of Speech, 1500-1850

We missed the publication of Freedom of speech, 1500-1850, a collection of essays edited by Robert Ingram, Jason Peacey and Alex W. Barber appearing in the University of Manchester Press’s book series, Politics, Culture and Society in Early Modern Britain:

This collection brings together historians, political theorists and literary scholars to provide historical perspectives on the modern debate over freedom of speech, particularly the question of whether limitations might be necessary given religious pluralism and concerns about hate speech. It integrates religion into the history of free speech and rethinks what is sometimes regarded as a coherent tradition of more or less absolutist justifications for free expression. Contributors examine the aims and effectiveness of government policies, the sometimes contingent ways in which freedom of speech became a reality and a wide range of canonical and non-canonical texts in which contemporaries outlined their ideas and ideals. Overall, the book argues that while the period from 1500 to 1850 witnessed considerable change in terms of both ideas and practices, these were more or less distinct from those that characterise modern debates.
TOC after the jump.

--Dan Ernst.  H/t: RC

Armitage to Lecture on Opera and International Law

The Centre for Chinese and Comparative Law, City University of Hong Kong in partnership with Wuhan University School of Law and Fudan University School of Law announce the latest in its series of Distinguished Lectures in the History of International Law: What Has Opera To Do with International Law? by David Armitage, the Lloyd C. Blankfein Professor of History, Harvard University. It will take place via Zoom on March 27, 2023, at 9 pm Hong Kong Time, which is 2 pm London Time, 9 am Eastern Standard Time.  Register here.

--Dan Ernst

The Professionalism Crisis and Core Values

[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

At its 1983 annual meeting, the ABA promoted a "Presidential Showcase" on the subject of the lawyer's professional independence. The panelists largely concluded that such independence was diminishing. The lawyer's desire for independence from clients was being replaced by "commercialism," the "basic posture of 'my client, first, last, and always.'" The triumph of the client's interests over the lawyer's duty to the public generated what was called the "professionalism" crisis. In his last column for the ABA Journal, President Morris Harrell inveighed against commercialism. He urged lawyers embrace professionalism, which he defined as "involv[ing] acceptance of high ethical standards, which generally include a dedication to public services for the benefit and protection of society that looks beyond the mere earning of a livelihood." The importance of the topic led the ABA to showcase another panel on lawyer independence at its 1984 annual meeting. In between those showcases, Chief Justice Warren Burger spoke to the ABA at its February 1984 Midyear meeting about a loss of professionalism. The ABA responded to Burger's speech by creating a Committee on Professionalism. That committee issued a Report, known as the Stanley Report, recommending a recovery from this loss.

In 1988, the ABA's Tort and Insurance Practice Section (TIPS) adopted a "Lawyer's Creed of Professionalism," At the same meeting the ABA agreed to send to its members a "Lawyers' Pledge of Professionalism." As of 1990, "forty-five states ha[d] issued formal reports on lawyer professionalism." The ABA and state bar associations were joined in the professionalism crusade by the Conference of Chief Justices, which issued a "National Action Plan" on professionalism in 1999.

These efforts (and others) emphasizing the lawyer's duty to meet the tenets of professionalism were spurred by fears of economic insecurity and decline. The lawyer income premium over the median worker dropped significantly. Lawyers in private practice were "sorted" into those representing individuals and those representing corporations and other organizations. They were further sorted as legal specialization narrowed more finely the work of lawyers. With the notable exception of some personal injury lawyers, the income of those who ordinarily represented individuals stalled. The income of lawyers who represented organizations increased, but remaining a well-paid member of firm serving corporations became less secure for those other than "rainmakers" (a newly-coined term). Additionally, elite lawyers regularly wrote bemoaning the consequences of "rapid change" in technology and society, which generated an anxiousness regarding their status.

The professionalism crisis has arguably continued through the present. At the very least, it lasted until the turn of the millennium. In a 2015 count, 123 courts and lawyer organizations had adopted a civility or professionalism creed. If lawyers truly faced a professionalism crisis, the organizational adoption of creeds was a useful but insufficient response. An additional response began during the late 1990s. The ABA looked to identify the professional ideals all (or at least many) lawyers acknowledged. What were the profession's "core values"?

Although today the phrase "core values" is commonly used by private organizations, universities, and other institutions, particularly when an employee is charged with behaving contrary the employer's values, the phrase was not used within the legal profession until the publication in 1990 of an article titled The Future of the Legal Profession, written by Geoffrey Hazard, the most prominent American legal ethics expert of the era. Soon after Hazard's article was published, an important ABA Task Force listed four "fundamental values of the profession," which both overlapped and underdetermined such values.

At the end of the decade, two issues brought the question of core values back to the forefront of the ABA's work. First, the American Institute of Certified Public Accountants announced its intention to adopt a "vision statement" encouraging accountants to undertake work lawyers believed was in their domain. This led to a committee to assess whether law firms should be permitted to offer multidisciplinary practice, services that included both law and non-legal services in an institution owned by lawyers and non-lawyers alike. Second, the ABA created a committee to review the 1983 Model Rules and suggest amendments.

The ABA eventually rejected a proposal by the Multidisciplinary Practice Commission, which included the influential Hazard as a member, to permit multidisciplinary practice. It did so even though the Commission declared its recommendation fully protected the "core values of the legal profession." In 2001, the committee reviewing the Model Rules proposed two major amendments permitting a lawyer to disclose a client's confidential communication. The proposal was defeated after its opponents claimed they were the steadfast defenders of the profession's core values.

By early 2002, Enron and other high-flying businesses were bankrupt, and the ABA was engaged in damage control. It had created a Task Force to reassess the circumstances in which a lawyer might disclose a client's confidential communication. When the ABA debated in 2003 the proposed adoption of rules killed in 2001, proponents and opponents used the language of core values in attempting to persuade the undecided. This included comments made by two future ABA presidents, who voiced opposing views. Though they disagreed, both agreed that their position best protected the core values of the profession. Core values was an empty vessel, sufficiently capacious to store whatever struck a lawyer's fancy.

Wednesday, February 22, 2023

Barbas's "Actual Malice"

Just in time to rally support for its subject, Samantha Barbas, Buffalo Law, has published Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (University of California Press).  

Actual Malice tells the full story of New York Times v. Sullivan, the dramatic case that grew out of segregationists' attempts to quash reporting on the civil rights movement. In its landmark 1964 decision, the Supreme Court held that a public official must prove "actual malice" or reckless disregard of the truth to win a libel lawsuit, providing critical protections for free speech and freedom of the press.

Drawing on previously unexplored sources, including the archives of the New York Times Company and civil rights leaders, Samantha Barbas tracks the saga behind one of the most important First Amendment rulings in history. She situates the case within the turbulent 1960s and the history of the press, alongside striking portraits of the lawyers, officials, judges, activists, editors, and journalists who brought and defended the case. As the Sullivan doctrine faces growing controversy, Actual Malice reminds us of the stakes of the case that shaped American reporting and public discourse as we know it.

Today's notice in the NYT is here.

--Dan Ernst

Irish Legal History Student Essay Prize

[We have the following announcement.  DRE.]

The Irish Legal History Society is now accepting entries for its second student-essay competition.  Essays on any period of Irish legal history should submitted by the end of May 2023.  The winning entrant will receive a prize of €250.  The competition is open to under-graduate and post-graduate students.

Essays must be written in English, and be the work of students who are enrolled in a third-level institution in Ireland or abroad, or within a one-year expiration of that enrolment.  Essays must be no longer than 5,000 words – including all references.

The inaugural competition was won jointly by Jessica Commins (UCD/Amsterdam) and Andrew Byrne Keefe (TCD/Harvard).

Founded in 1988, the society examines, explores, and engages with all issues relating to legal history on the island of Ireland, from earliest times to the present day – including the work of Irish lawyers abroad.  Its mission is to encourage the study of, and advance the knowledge of, the history of Irish law.

Tuesday, February 21, 2023

What's the Point of an Ethics Code? The ABA's 1983 Model Rules

[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

In 1977, when the ABA began another evaluation of ethical standards, the American legal profession was still reeling from the effects of the Watergate scandal, the increasing entry of baby boomers into the profession, and a concomitant fall in real income. The effect of Watergate on lawyers may have been best encapsulated by the uproarious laughter by the audience when disgraced White House counsel John Dean mused to a congressional committee (a hearing nationally televised) that "there certainly are an awful lot of lawyers involved" in criminal behavior related to Watergate. In an inflationary era, with lawyer supply rising every year, real median income would fall 21% during the 1970s. The public's perception of lawyers was poor, and the economic prospects of lawyers was declared "grim" in a 1972 Business Week article. The proposed (partial) solution to these troubles was to re-think standards of lawyer conduct.

The Kutak Commission (named for its chair, ABA insider Robert Kutak) charged with this task had two options: It could follow the alleged ethos of the 1969 Code, what the Kutak Commission's Reporter Geoffrey C. Hazard, Jr. called the "basic posture of 'my client, first, last and always,' [which] allowed little room for development of the attorney's role as an officer of the court." The other approach was to emphasize the "theme" of "lawyer autonomy," the lawyer as social trustee, as one who represented private clients as well as a "determinable public interest."

The breadth of the Kutak Commission's perceived mandate was made clear at a 1977 meeting of its members The unattributed comment of one member asserted, "[O]ur Committee ought not to hesitate to promulgate statements of ethics it believes to be correct but which may not meet with the general approval of the Bar." It was unclear how that member thought the Commission's proposals would be approved by the very "Bar" that apparently disapproved. 

One consequence of Watergate was the view that sunlight was always the best disinfectant. Consequently, when Kutak sent a working draft to some interested ABA members ahead of its 1979 annual meeting, critics assailed the Commission for making only a limited release. Then they picked apart provisions of the working draft, though Kutak had emphasized that none of the provisions had been approved by the Commission, and the draft included "portions with which a majority disagree." A discussion draft was released by the Commission in early 1980. This draft emphasized that "lawyers are responsible to demands beyond those of their immediate clients."

Many who opposed the discussion draft rejected the Commission's rejection of the "basic posture." They equated the lawyer's duty to client and duty to the legal system. Relatedly, some critics considered duty to client and duty to the public interest as a zero-sum game. Thus, any duty to the public interest undermined the lawyer's duty to serve one's clients.

By the time the proposed final draft was released in May 1981, it had largely capitulated. Few references to "fairness" and to a duty to serve a determinable public interest remained. However, Kutak's introduction to this draft was steadfast in maintaining a lawyer was both a representative of a client and an officer of the court or of the legal system. Another year had passed when the final draft was sent to ABA leaders for discussion and vote at it 1982 annual meeting. The Commission portrayed the final draft as offering only a modest reform, shorn of all radical proposals. Nearly all references to the lawyer's duty to the public has disappeared, and the Commission's Report argued its rules "work[ed] no such shift in the profession's values."

Despite declaring defeat, the Commission's work was roundly criticized by the victors. The discussion in the House of Delegates in August 1982 was a disaster for the Commission. After lengthy debate, only one rule was adopted. When the ABA's Midyear Meeting rolled around in February 1983, Robert Kutak was dead from a heart attack, and the opponents of the Model Rules had filed 216 proposed amendments. The debate in the House of Delegates unveiled only extraordinary disagreement among lawyers about the social role of lawyers. An informal meeting of the disputants led to resolution, and the Model Rules of Professional Conduct were adopted by the ABA at its August 1983 meeting.

Even then, one delegate who may not have gotten the message proposed striking the following sentence from the hortatory Introduction: "Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done." The delegate believed that any statement indicating a lawyer might look beyond the client's immediate interest was unsupportable. The proposed amendment failed, but the idea animating it had taken hold.

The Model Rules ignored ethical considerations; the Rules were about rules, standards below which no lawyer was to act. The inward turn of lawyers was complete; no lawyer was bound (or even encouraged) to inquire into any determinable public interest. Yet somehow bar leaders were surprised when lawyers, after adoption of the Model Rules, looked "at nothing but the rules."

Monday, February 20, 2023

Roberts on Labor Control and Development in the British Empire

Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has posted Labor Control, Resistance, and the Advent of "Development": Modalities of Governance in the British Empire, C. 1926-1940, which is forthcoming in the Minnesota Journal of International Law:

This article examines the manner in which a new approach to governance, that of ‘development,’ evolved within the British Empire over the course of the late 1920s and 1930s. Throughout the period in question, and in continuity with previous periods, the British governed their empire through a range of coercive measures designed to control the population and compel their labor. Measures adopted and frequently relied upon included the delegation of police powers to private authorities, restrictive and extractive tax, movement and labor laws, recourse to forced labor, increasing reliance on militarized police, and growth in the intelligence services. Over the course of the 1930s protests broke out in numerous territories, both in opposition to British governance as a whole and in support of better conditions of work. These protests were threatening both in their own right and insofar as they made the empire susceptible to criticism by other great powers. In response, British colonial authorities adopted a new policy approach, under the heading of ‘development.’ While this new approach was in part sincerely motivated, the vision of ‘development’ adopted was also profoundly limited.
--Dan Ernst

Zhang's "Ideological Foundations of Qing Taxation"

Taisu Zhang, Yale Law School, has published The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions (Cambridge University Press):

How states develop the capacity to tax is a question of fundamental importance to political science, legal theory, economics, sociology, and history. Increasingly, scholars believe that China's relative economic decline in the 18th and 19th centuries was related to its weak fiscal institutions and limited revenue. This book argues that this fiscal weakness was fundamentally ideological in nature. Belief systems created through a confluence of traditional political ethics and the trauma of dynastic change imposed unusually deep and powerful constraints on fiscal policymaking and institutions throughout the final 250 years of China's imperial history. Through the Qing example, this book combs through several interaction dynamics between state institutions and ideologies. The latter shapes the former, but the former can also significantly reinforce the political durability of the latter. In addition to its historical analysis of ideological politics, this book makes a major contribution to the longstanding debate on Sino-European divergence.

Here are some encomia:

A theoretically elegant, evidence-rich, and innovative explanation for why imperial China declined and fell. The Ideological Foundations of Qing Taxation sheds light on the roots of the 'Great Divergence' in economic development between China and Europe. A tremendous achievement that deserves to be widely read.' Yuhua Wang, Professor of Government, Harvard University

'This book is a brilliant new take on comparative economic history. Skillfully integrating institutional analysis, economics, and political thought, Zhang provides us with an erudite, deeply learned account of the Qing's failure to expand tax capacity, drawing us into contemplation of a path not taken.' Tom Ginsburg, Leo Spitz Distinguished Service Professor of International Law, University of Chicago

'In this refreshing and incisive work, Taisu Zhang shows us how the weakness of the late Qing regime depended less on structural constraints than on a specific worldview about the proper role of the state. Low taxation was a deliberate choice, made in response to the presumed lessons of history, and it would have far-reaching implications. This will be of interest to anyone who wants to understand long trends in Chinese political development.' David Stasavage, Julius Silver Professor, New York University

'In this characteristically ambitious book, Taisu Zhang looks for obstacles on China's path to modernization in a surprising place: tax capacity. He explains the unwillingness of China's nineteenth-century rulers to raise taxes neither in terms of eternal cultural values nor structural factors, but rather as the outcome of a specific type of conservatism that can be explained historically.' Michael Szonyi, Frank Wen-hsiung Wu Professor of Chinese History, Harvard University

--Dan Ernst

Saturday, February 18, 2023

Weekend Roundup

  • Over at Environment, Law, and History, David Schorr has been blogging about his article on "Nature versus the Common Law." Here and here.
  • That Supreme Court Historical Society-sponsored lecture, "Frederick Douglass and African-American Claims to Constitutional Citizenship," by Bradley Rebeiro, Brigham Young University Law, is now viewable on YouTube.
  • Kurt Lash and Kermit Roosevelt discuss the Slaughterhouse Cases with Jeffrey Rosen on the National Constitution Center's podcast.
  • The new Editor-in-Chief of the Virginia Law Review has a shout-out to Cynthia Nicoletti for her legal history courses.
  • On February 27, 2023, from 4:00 - 5:00 p.m. ET, via YouTube Livestream, the Levin Center for Oversight and Democracy of Wayne State University Law School will host an interview of U.S. Representative Bennie Thompson “on his long and distinguished career in Congress and the important oversight work he has led culminating in his recent chairmanship of the U.S. House Select Committee to Investigate the January 6 Attack on the U.S. Capitol.”
  • In the Pittsburgh Post-Gazette, Ph.D. candidate Angus McLeod (University of Pennsylvania) offers a historian's take on the big school finance case recently decided in Pennsylvania.
  • ICYMI: Emily Bazelon on Bakke (NYT Magazine).  Allan Levine on “the tragic case of Pesach Rubenstein, sentenced to die in 1876 after a sensational murder trial” (The Tablet).  Originalism will kill women, says Madibe Dennie (The Atlantic).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 17, 2023

Gomez-Arostegui and Bottomley on 18th-C Patent Infringement Suits

Tomas Gomez-Arostegui, Lewis & Clark Law School, and Sean Bottomley, Northumbria University, have posted Patent-Infringement Suits and the Right to a Jury Trial, which is forthcoming in the American University Law Review:

This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on 18th-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and that therefore litigants today who seek only injunctive relief possess no such right either. But as we demonstrate here, the relevant historical record shows the contrary, and thus many litigants have a constitutional right to a jury where the courts presently deny them. We reach our conclusion after undertaking the most comprehensive treatment of the subject to date, which includes marshaling hundreds of 18th-century records (mostly in manuscript) from the National Archives of the U.K. and elsewhere.
--Dan Ernst

Thursday, February 16, 2023

Lon L. Fuller and the 1969 ABA Code of Professional Responsibility

[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

It is a mystery why the ABA agreed in the early 1950s to let its unauthorized practice committee undertake an effort to investigate the professional responsibility of lawyers, and to do so jointly with a committee of the Association of American Law Schools (AALS). It's a further mystery why the ABA-AALS Joint Conference's final result was so popular with the ABA. Finally, it's a mystery why Harvard Law School Professor Lon L. Fuller decided to shoulder most of the Conference's work.

In mid-1954, Fuller, then an AALS member of the Joint Conference, wrote a "second revised draft" for the Joint Conference. He wrote in the aftermath of the televised Army-McCarthy hearings, which may account for the draft's focus on why lawyers engage in public service when representing unpopular clients. He received comments from members, was named joint chairman, and followed up with a May 2, 1955 "final draft" to the Joint Conference. Two years passed before Fuller's second final draft (October 1, 1957) was distributed. This draft included an expanded section on the role of the lawyer as courtroom advocate. This draft was published in the ABA Journal (December 1958) and the South Carolina Law Quarterly (Spring 1959).

Professional Responsibility: A Statement, begins with a call to the "special obligations" of those who claim membership in a profession. One aspect of the lawyer's special obligations was to consider, not merely the legal task at hand, but one's work in light of the "ideals" giving meaning to that work. Dedication to these ideals allowed the lawyer to "reconcile a fidelity to those he serves along with an equal fidelity to an office." Such dedication moved the lawyer beyond the concerns of self-interest. When lawyers recognized the important social role they played, they considered the reasons that supported the profession's ethical "restraints," not merely the restraints themselves.

The Joint Conference's focus on the legal profession's "ideals," purposes, and goals was unusual. The Statement avoided lapsing into mere platitudes. And its brevity allowed Fuller to ignore the mind-numbing discussions of the details regarding ethical "restraints." The Statement offered a positive message that the ordinary work of the ordinary lawyer was crucial to the functioning of a democratic society.

An ABA committee began working on a new code of professional responsibility in 1964. Fuller played no role in its deliberations or conclusions. However, the committee's reporter, John F. Sutton Jr., was an admirer of Fuller's work. A University of Texas law professor, Sutton had led a Texas effort to amend its code of ethics a few years earlier. As finally adopted by the ABA in 1969, the Code of Professional Responsibility consisted on nine "axiomatic" canons, followed by Ethical Considerations "aspirational in character," and Disciplinary Rules "mandatory in character." Sutton adapted Fuller's view (found in The Morality of the Law (1964)) that law comprised two moralities, one of aspiration and the other of duty, to the professional responsibilities of the lawyer, thus leading to Ethical Considerations and Disciplinary Rules. Sutton also relied on the Joint Conference's Statement when drafting the Code. The Statement was cited more than twenty times in the Code, more than any other reference.

The Code was adopted without amendment by the ABA House of Delegates in August 1969. In less than three years it was adopted as law in forty-three states and the District of Columbia, ordinarily with few changes. (An additional four state bar associations adopted it as applicable to their members.) And by 1977, the ABA Code of Professional Responsibility was attacked in the ABA Journal as jejune, a mere "transitional document representing a middle stage in the development of a law for lawyers." This was appellation was particularly directed toward the Ethical Considerations, initially understood as the heart of the Code. The Code, as Sutton knew better than anyone, had some major problems, including a bias for some traditional ethical rules that Sutton decried as "at worst obstreperous and obstructionistic." But the die had been cast. The ABA had decided to embark on another effort to re-state the ethical constraints binding the actions of lawyers. The debates on these Model Rules of Professional Conduct exposed a yawning divide among lawyers.

JACH 1:1

The inaugural (Winter 2023) issue of the Journal of American Constitutional History, published by the University of Wisconsin Law School, whose David S. Schwartz is Editor-in-Chief, is now live.  

The Soul of a Free Government: The Influence of John Adams’s A Defence on the Constitutional Convention by Mary Sarah Bilder

Contrary to the conventional modern view, John Adams’s A Defence of the Constitutions of Government of the United States of America (1787) was deeply influential on the Constitutional Convention.
“Not a Lawyer’s Contract:” Reflections on FDR’s Constitution Day Address by Gerard N. Magliocca
Franklin Roosevelt’s oration marking the sesquicentennial of the Constitution’s proposal is the most profound discussion of our founding document by a modern president.
The Public Defender Movement in the Age of Mass Incarceration: Georgia’s Experience by Robert L. Tsai
Focusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003.

--Dan Ernst

Wednesday, February 15, 2023

Ablavsky and Allread on Indigenous Peoples' Debates over the US Constitution

Gregory Ablavsky, Stanford Law School, and W. Tanner Allread, Stanford University, have posted We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution, which is forthcoming in the Columbia Law Review:

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates.

This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore its significance for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the early republic, Native peoples both invoked and critiqued the document as they faced Removal.

This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and post-constitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.
--Dan Ernst

Tuesday, February 14, 2023

David Dudley Field and the Limits of Conscience

David Dudley Field (Harper's Weekly; NYPL)
[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

A notice printed in the December 16, 1870 issue of the New York Times titled James Fisk's Lawyers discussed the general retainer agreement between Fisk and the law firm of Field and Shearman, headed by David Dudley Field. The Times reported and rejected the firm's claim that "it was the duty of the advocate to accept all cases offered him." Ten days later, the Times reprinted stories from two other newspapers about Field and Shearman's decision to take a general retainer from Fisk. One of the two simply reprinted the December 16 Times article, which gave the Times another opportunity to criticize the firm's claim that it was duty-bound to represent any client wishing to hire it. The second article came from the December 7, 1870 issue of Samuel Bowles' Springfield Massachusetts Republican. That article quoted a letter from a young, unnamed New York lawyer, who like Field, was raised in western Massachusetts. The letter accused Field of receiving more than $200,000 in legal fees for his work for the Erie Railway and its principal owners, Fisk and Jay Gould. Though remunerative, the writer claimed Field had "destroyed his reputation as a high-toned lawyer with the public," and "lawyers disliked him for his avarice and meanness." Finally, the correspondent claimed the late and revered New York lawyer James T. Brady had once accused Field of being "'the king of the pettifoggers,' which title has stuck to Field ever since."

Field was then 65 years old. He was well known, both for his legal talents and his antebellum work as a legal reformer. He also seemed compelled to respond to any criticism from anyone. Field sent a letter to Bowles asking that he publicly disavow the contents of the letter. Bowles refused. They, joined by Field's son Dudley Field, continued a correspondence soon published in pamphlet form.

By the end of 1870, Field had represented Fisk, Gould, and the Erie for almost three years. He had just agreed to defend the notorious Tammany Hall leader William "Boss" Tweed against criminal charges. And public criticisms of his professional behavior had just begun. When initially representing the Erie, Field had accused Judge George G. Barnard of unlawfully conspiring with America's wealthiest person, Cornelius "Commodore" Vanderbilt, to take control of the Erie. After that Erie "war" was settled, Field and his clients had a rapprochement with Barnard, first absolving him of any corrupt wrongdoing in concert with Vanderbilt (Barnard had also been accused of taking bribes, in his own court, by James Brady-Barnard neither denied it nor castigated Brady for his accusation, and Barnard had been accused of corruption by Field's partner Thomas Shearman even earlier). Now Barnard issued injunctions in favor of the Erie at the faintest whisper from its lawyers, including Field.

In the third of the four Erie "wars," Field represented the Erie in its attempted takeover of the Albany & Susquehanna (A&S) railroad. Barnard issued an arrest warrant for the officers of the A&S at the request of Field and Shearman, which included arresting A&S lawyer Henry Smith, making it impossible for him to defend the interests of A&S. Another judge, later assessing this extraordinary event, concluded the Erie's lawyers had "fraudulently procured an order for [their] arrest."   

Bowles's criticisms were soon followed in an unsigned, three-part article in The Nation, lawyer Francis C. Barlow soon revealed himself as its author. The New York Tribune criticized Field in a January 31, 1871 article, and Barlow wrote letters to its editor published on March 7-9, quickly followed by a pamphlet, Facts for Mr. Field. The North American Review published two articles criticizing Field's conduct, one by Albert Stickney and the other by Charles Francis Adams, both of whom attempted to answer Field's question, what specific professional misconduct did I engage in? Those articles caused the Boston-based American Law Review, edited by Oliver Wendell Holmes Jr. and Arthur Sedgwick, to opine that the Association of the Bar of the City of New York (ABCNY) investigate and, if necessary, disbar Field.

Field and his defenders responded to every criticism. A common response was that Field was improperly tarred with the "bad motives" of his clients. He was simply doing what every good lawyer should do: "everything for his client that he can honestly do." Though the Field fracas was in abeyance for the rest of 1871, successful anticorruption efforts in New York made reformers ascendant and Field on the defensive. The ABCNY began investigating Judge Barnard and two other judges who were believed in the Erie's pocket, Albert Cardozo (father of Benjamin) and John McCunn. Field's accuser Albert Stickney aided the state Assembly's impeachment investigation, in part by sharply cross-examining Field. Cardozo resigned from office, McCunn died three days after he was convicted, and Barnard was convicted and removed from office in August 1872. He was convicted of twenty-five articles of impeachment, including all related to the Erie wars.

The conviction of Barnard may have emboldened Stickney, who renewed his condemnation of Field's behavior, publishing them in Galaxy. At the same time, he, joined by two fellow Barnard prosecutors, proposed the ABCNY's judiciary committee make recommendations concerning the lawyers connected with Barnard, Cardozo, and McCunn, meaning David Dudley Field, Dudley Field, and Thomas Shearman.  In an extraordinary meeting in December 1872, Field demanded he be tried immediately and be either expelled or cleared. Much of Field's defense (as published the next day, for he was unable to read the entire speech at the meeting) consisted of ad hominem attacks on Stickney (who sought "the little newspaper notoriety that he has coveted, begged and earned") and other accusers. Field also defended his actions by pointing to letters of support written by twelve lawyers and judges who, at Field's behest, assessed whether he acted unprofessionally or improperly. Several relied on the absence of evidence that Field possessed "knowledge" of Barnard's corruption to justify Field's actions.
The December meeting ended with no one satisfied. Field's demand was postponed for a month; when the ABCNY next met, the judiciary committee washed its hands of the matter. No action against Field would be taken.

Field lived for another twenty years, dying in 1894. The treasurer of the ABCNY informed its executive committee of Field's death. Ordinarily, the ABCNY would commission work on Field's memorial. Instead, it decided not to mention Field or commemorate his life "in any way."

Monday, February 13, 2023

Morris L. Cohen Student Essay Competition

[We have the following announcement.  DRE]

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Gale, a Cengage company, announces the Thirteenth Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $1,000.00 prize from Gale, a Cengage company, and will be invited to present their paper to AALL members via webinar.

Winning and runner-up entries will be invited to submit their entries to UNBOUND: A Review of Legal History and Rare Books, the official journal of LH&RB. Past winning essays have gone on to be accepted by journals such as N.Y.U. Law Review, American Journal of Legal History, University of South Florida Law Review, William & Mary Journal of Women and the Law, the Yale Journal of Law & the Humanities, and French Historical Review.

The entry form and instructions are available at the LH&RB website. Entries must be submitted by 11:59 p.m., May 15, 2023 (EDT).

Please direct questions to Linda K. Tesar, Chair, Morris L. Cohen Student Essay Competition Committee (lktesar@wm.edu).

CFP: Constitutional History: Comparative Perspectives

[We have the following call for papers. DRE]

Constitutional History: Comparative Perspectives.  September 14-15, 2023; Bologna, Italy.  An international conference sponsored by University of Illinois College of Law; University of Bologna Department of Legal Studies; and the Center for Constitutional Studies and Democratic Development (Johns Hopkins University SAIS Europe–University of Bologna)

Paper proposals are invited for the Fifth Illinois-Bologna conference on Constitutional History: Comparative Perspectives. The conference will be held in Bologna at the Department of Legal Studies of the University of Bologna on September 14-15, 2023.  The conference keynote speaker will be Professor Miroslaw Granat, former Justice of the Constitutional Court of Poland.  

Accompanying the spread of constitutional government around the world has been a profound interest in the comparative aspects of constitutional law. Scholars have catalogued the differing features of national constitutions and examined how different constitutional systems resolve common legal issues. So, too, judges faced with legal questions have sought guidance in the decisions of constitutional courts of other nations. While comparative constitutional law is therefore a well-established field, less attention has been paid so far to the comparative dimensions of constitutional history. This international conference series aims to address that shortcoming by energizing the study and analysis of constitutional history from comparative perspectives. It provides a forum for presentation and discussion of current research on issues of constitutional history that cross national boundaries. It also brings together scholars who, at present, are working on constitutional histories of single jurisdictions—with the expectation that conversations among these scholars will allow for sharing of methodologies and point also to fresh areas of research that may transcend national boundaries.

For 2023, the focus of the conference is Landmark Judgments.  Landmark judgments are foundational decisions that, rather than merely resolving a concrete case, set a key precedent, introduce a major legal principle or concept, or substantially impact the trajectory of the law. Such judgments, typically issued by Supreme Courts and Constitutional Courts, are found throughout the world. Examples include Marbury v. Madison (1803) and Brown v. Board of Education (1954) in the United States; Reference re Secession of Quebec (1998) in Canada; Décision Liberté d'association (1971) in France;  the Lüth Judgment (1958) in Germany; and S v Makwanyane and Another (1995) in South Africa.

Landmark judgments in constitutional cases invite numerous questions that can benefit from comparative analysis. How do landmark judgments become landmark? What is their history? What determines their trajectory? What kinds of influence do these leading cases exert at the domestic level? When, how and to what extent do landmark judgments exert influence in other jurisdictions? Do landmark judgments gain different meaning when they travel abroad? Who decides whether a case qualifies as a landmark? Do some jurisdictions produce more landmark judgments than others? How easy is it to challenge, overturn or displace a landmark decision? Can a ruling be a landmark if it is widely perceived as erroneous?  What is the role of landmark judgments outside of the courts, in the political sphere and in society more generally?

We invite papers that consider these and related questions about landmark judgments in constitutional cases and that can serve as the basis for a discussion among scholars interested in exploring landmarks from a comparative perspective. Papers that focus on a single jurisdiction—and even a single case—are welcome as are papers that examine landmark judgments from multiple jurisdictions.  

Scholars interested in presenting a paper at the conference should first e-mail a title and summary of the proposed paper along with a CV to Professor Jason Mazzone at mazzonej[@]illinois.edu. There is no word limit for the proposals but proposals in the range of 500-1,000 words are typical. Proposals received by April 1, 2023, will receive priority. After that date, submitted proposals will be considered if space remains.

For those whose abstracts are accepted, draft papers will be required for circulation to other participants three weeks prior to the conference.

Subject to the usual requirements of peer review, papers from the conference will be published as a single volume by Brill. Authors who accept an invitation to present a paper at the conference must agree to have the paper included in the published volume. Additional information about length and formatting requirements for the final versions of the papers will be provided to authors.

Conference participants are responsible for their own travel and accommodation expenses.

Saturday, February 11, 2023

Weekend Roundup

  • "This semester, Boston College is hosting the Boston-Area Legal History Colloquium, a distinctive forum where budding legal historians can receive feedback on works-in-progress" (BC News).
  • "A federal judge seemed frustrated Wednesday over the limited amount of historical evidence and expert analysis presented to the U.S. Court of Appeals for the Fifth Circuit in a case seeking to overturn a federal law prohibiting people under indictment from buying firearms" (LAW.com).
  • The New-York Historical Society's Bonnie and Richard Reiss Graduate Institute for Constitutional History's spring seminar has been announced.  “The Constitutional History of Misinformation" will meet in person at the New-York Historical Society, Fridays, April 21 and 28, May 12 and 19, 2023 | 2–5 pm, with livestream participation will to admitted students who do not live in the New York Metropolitan Area or who are unable to attend a class in person. There is no tuition.  The Instructors are Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, and Matthew Connelly, professor of history at Columbia University.  
  • The Harvard Law Review reviews Brad Snyder's biography of Felix Frankfurter, Democratic Justice, here.
  • ICYMI: Shaun Ossei-Owusu, Penn Law, on "velvet-rope discrimination" (Penn Today). James Whitman, Yale Law, on Jim Crow and the Nazis (ABA Journal). Leslie Reagan "talks abortion history, post-Roe reality" (Daily Northwestern).  Ralph Richard banks on that AP African American studies course (SLS Legal Aggregate).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 10, 2023

CFP: Social and Historical Perspectives on Calculation in Law

 [We have the following Call for Papers.  DRE]

Just Computation? Social and Historical Perspectives on Calculation in Law, Harvard University
September 8-9, 2023

Datasets, algorithms, and statistical models are increasingly dominating legal spaces as instruments for rendering “just” decisions. Academic and popular critiques have shown that the application of such tools to delicate social problems exacerbates the very inequities they were meant to curb, whether in allocating welfare, evaluating credit, hiring, policing, and so on. Missing from this ongoing discussion, however, is a broader perspective on how computation has shaped—and been shaped by—law and governance across time and place. How have different legal orders made sense of numbers and new methods of calculation? How does the law shape the conditions under which numerical evidence is deemed legitimate? Why have political communities come to accept that fraught matters of justice might be resolved through recondite numbers, and how has that commitment evolved? At a time when the authority of quantitative tools is on the rise, what can courtroom contests tell us about the making of facts and their history?

This conference provides an opportunity to grapple with these and other pressing questions by inquiring deeper into the history and politics of numbers as evidence, legal proof, policy instruments, and even tools for representing and contesting injustice. We will bring together scholars from a host of disciplines including the humanities and social sciences, data science and legal studies interested in how the quantification of social life and decision-making raises fundamental concerns about justice and fairness across different time periods and geographies. We believe that approaching these questions from a critical perspective can help invigorate and inform the vital discussions that have formed around “AI ethics” and “Fairness, Accountability, and Transparency” in computing systems. By convening a rich, interdisciplinary conversation on the relationship between law and computation, broadly construed, we hope to attract a range of scholars interested in honing their work for a special issue on these complicated and urgent issues.

Contributors.  We seek papers from scholars from across the humanities and social sciences, as well as those coming from schools of information, policy, and law. Early career scholars in particular are encouraged to apply. While the workshop is oriented toward contemporary issues, it seeks to re-frame them by bringing different time periods and geographies to the table, so we are interested in submissions that consider these questions beyond the contemporary Global North. We will also accept co-authored papers.

Publication.  This conference will be a platform for authors to workshop papers intended for a special issue of the interdisciplinary legal studies journal such as Law & Social Inquiry, whose editors have expressed interest. Though we intend to submit abstracts as a proposal for this journal, we remain open to alternatives and will discuss options over the course of the workshop. Accepted participants will be asked to submit a draft paper (max. 8000 words) and give a short presentation on their material for feedback from the group. Further deadlines and requirements will be specified depending on the format of the journal and the intended publication schedule. Please submit your abstracts to the conference only if you are willing to eventually submit your paper for a special issue. We will aim for final papers to be submitted by the end of the year 2023.


March 24: Deadline to submit abstracts
Mid-April: Decisions sent out for accepted abstracts
End July: Deadline to submit final papers for internal circulations
Sept 8-9: In-person workshop in Cambridge, MA
End of 2023: Submit final papers

Funding.  For presenters traveling from outside of the Boston area, we will guarantee travel stipends of $400, with the possibility of more funding and housing assistance as we secure more partnerships.

Organizers.  Michael F. McGovern (mmcgovern@princeton.edu), Program in the History of Science,  Princeton University; Pariroo Rattan (pariroorattan@g.harvard.edu), Program in Public Policy, Harvard Kennedy School, Harvard University; William Deringer (deringer@mit.edu),
Program in Science, Technology, and Society, Massachusetts Institute of Technology

Please submit your 400-word abstract (not including references) and a short bio of no more than 250 words by March 24th via this submission form. Authors whose papers are accepted will be expected to provide full paper drafts two weeks prior to the conference, which will be circulated to all conference participants. Please send your questions to justcomputation2023@gmail.com. We look forward to reading your submissions!

Thursday, February 9, 2023

Bernick on Movement Administrative Law

Evan D. Bernick, Northern Illinois University College of Law, has posted Movement Administrative Procedure, his contribution to that Notre Dame symposium.  It is forthcoming in the Notre Dame Law Review:

The Administrative Procedure Act of 1946 operates as a “sub-constitution” for the modern U.S. administrative state, both empowering and constraining federal regulatory agencies. This Article argues that the APA should be transformed. Addressing interrelated contemporary crises of economic precarity, systemic racial inequality, and environmental destruction requires moving beyond the APA we have known for nearly a century.

The conventional account of the APA holds that it was a carefully deliberated compromise with no particular ideological valence. This Article challenges that account by scrutinizing it through the lens of movement law—an approach to legal scholarship that is informed by and supportive of left social movements that seek to transform the political, economic, and social status quo. It contends that the APA was shaped by a pluralist conception of democracy as interest-group competition; fear of communism; a southern congressional veto on social and economic legislation from which people of color might have benefited; and the elite bar’s values and interests. These political-economic origins help us understand why a purportedly neutral compromise has operated to the advantage of business interests and hindered the sort of transformative change that contemporary left social movements seek.

In the service of building beyond the APA, the Article introduces guiding principles for movement administrative procedure—an approach to administrative governance that prioritizes robust contestatory democracy. Movement administrative procedure is committed to reckoning with structural inequalities that impede access to and effective participation in the regulatory process and shifting power over agency policy to race-class subjugated groups who would otherwise lack it. To acknowledge the APA's democratic deficits is not to cede ground to those who regard administrative governance as illegitimate. It is to appreciate that there are more important and pressing crises than abstract legitimacy debates, and that those crises must be met democratically if they are to be met at all. 
--Dan Ernst

Call for Submissions: California Supreme Court Historical Society 2023 Selma Moidel Smith Student Writing Competition

We have the following call for submissions: 

The California Supreme Court Historical Society (CSCHS) is pleased to announce its call for submissions to the 2023 Selma Moidel Smith Student Writing Competition in California Legal History. 

The $5,000 first-place, $2,500 second-place, and $1,000 third-place prizes will be awarded to the best papers on California or pre-California legal history, broadly considered. Acceptable topics include, but are not limited to, those addressing constitutional, judicial, social, and/or cultural aspects of California’s legal past, as well as the evolution of California law, such as water law or criminal law. A larger region than just the state would also be eligible, if there is a sufficient focus on California.

Examples of papers that have impressed past evaluation committees include a study of the history of the death penalty in California, the evolution of California law governing the transfer of juveniles to adult court, the effectiveness of constitutional amendments in western states, a study of the San Fernando Valley’s effort to secede from Los Angeles, a gender-based analysis of California tort law, and a survey of California’s vagrancy and racial exclusion laws. 

While we have no maximum length, we generally encourage papers of at least 7,500 words, counting notes and other explanatory matter.

The competition is open to all students and recent graduates in history and/or law, provided that they did not have full-time academic employment at the time the paper was written. The paper must also be unpublished, and all prize winners will be published in California Legal History, CSCHS’s journal.

Papers may be self-nominated or sent in by a professor or supervisor. To ensure anonymity, the author’s name should appear only on a separate cover page, along with the author’s mailing address, telephone number, email address, and the name of their school.

Submissions are due no later than May 1, 2023 and should be sent to director@cschs.org with the subject line “Smith Prize.” The winners will be announced on June 30, 2023.

For the Prize Committee
Christian Fritz
Sarah Barringer Gordon
Laura Kalman

More information about the competition is available here

-- Karen Tani

The Zealous Rufus Choate

[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

Rufus Choate (NYPL)

Following the death of Boston lawyer Rufus Choate in 1859, his political nemesis Wendell Phillips remarked, "This is Choate, who made it safe to murder, and of whose health thieves inquired before they began to steal." An early and admiring biographer offered some confirmation of Phillips' statement. In a civil case in which two ship captains were accused of conspiring to scuttle one of the ships to steal its contents, Choate, representing the accused conspirator Captain Maxey, cross-examined the other captain, one Pitman. Pitman claimed the conspiracy was Maxey's idea. When Choate asked Pitman, "What did he say? Tell us how and what he spoke to you?"Pitman replied, "Why he told us there was a man in Boston named Choate and he'd get us off if they caught us with the money in our boots." (A slightly less charitable version was recorded in the diary of Richard Henry Dana, Jr., opposing counsel in the case.)

As a young lawyer Choate practiced in Essex County, north of Boston. Residents wondered how none of Choate's criminally accused clients was ever convicted. Later in his career, newspaper publisher Samuel Bowles concluded Choate's "disregard of truth and justice in the undertaking and trial of causes" was "notorious." One obituary concluded "the lightnings of [Choate's] genius were brandished with little regard to consequences," including whether he had "struck down the fair fabrics of public virtue and public integrity."

Possibly his most notorious case was his defense of accused murderer Albert J. Tirrell. Tirrell was married by living in a brothel with his mistress, Maria Bickford. A fire was detected soon after someone was heard leaving the room in which Tirrell and Bickford were staying. When the fire was snuffed, residents found Bickford dead, her throat cut ear to ear. Tirrell was eventually captured and stood trial. Choate's two inconsistent defenses were (1) Bickford slashed her own throat, for "suicide is the natural death of her class," or (2) Tirrell had killed Bickford while sleepwalking. At the conclusion of his widely publicized trial, Tirrell was acquitted of murder. The following year he was acquitted of arson.

One of Choate's many biographers linked Choate's defense of Tirrell to the charge that "Mr. Choate was somewhat unscrupulous in his defense of criminals. But there was never a greater misapprehension." Choate was simply doing what all lawyers were supposed to do: zealously represent one's clients, even and especially unpopular clients.      

Theophilus Parsons Jr., a contemporary of Choate's and a professor at the Harvard Law School, spoke to students about Choate's work. He distinguished Choate's "forensic" mind from Daniel Webster's "judicial" mind. Those possessing a forensic mind "see only what offers itself to them as their own side"; the latter answer such questions "in their own minds." The forensic mind was capable of making a bad case a winnable one, a talent lacking in a judicial mind. Choate and other like-minded persons possessed a "dangerous power." But Choate, said Parsons, was the rare person who could resist the "enormous temptation" to distort events, though he offered no examples.

Parsons then declared there existed two distinct theories of the lawyer's duty when representing clients. The first was that "an honest lawyer will remember that he should be devoted to the service of truth and of justice." The second argued "it is always the duty of a lawyer to be faithful and true to the client who places his interests, perhaps his life, in his hands." The good news was that these theories were "extremes." In between, there "lies the difficult and narrow path which the lawyer should pursue." Success lay in neither ignoring the morality of the cause nor "sav[ing] his conscience by the sacrifice of his judgment."

Parsons then offered some examples of when the lawyer successfully trod this narrow path. Assume two very credible witnesses observed the defendant commit murder, and told others what they saw. The witnesses then died before trial. It was the duty of the defendant's lawyer to object to the hearsay testimony of those who heard the deceased witnesses accuse the defendant, even when that meant the defendant went free. Zealous representation by a lawyer of the criminally accused client was essential to the rule of law. 

The difficulty with Parson's hypothetical example is not that it presents a hard case, but an easy one. It would have been more useful for Parsons to look particularly at examples taken from Choate's cases. Was Choate merely acting as a zealous advocate in claiming Maria Bickford slit her own throat?     

Benjamin Curtis, the Boston lawyer who famously resigned from the Supreme Court after it issued its decision in Dred Scott v. Sandford (1857), also defended Choate's zeal in an 1859 speech to the Massachusetts Supreme Judicial Court. He claimed Choate was no "brawler for hire." Further, he never showed "any want of loyalty to truth, or any deference to wrong." Instead, his "zealous discharge of this duty" was consistent with "the most devoted duty to truth and justice." Others echoed Curtis' sentiments. It seemed, however, that Curtis was speaking less of Choate than of a revision of the lawyer's role, one Curtis had taken. Curtis concluded that, since truth and justice were found "on both sides," it was up to the tribunal to determine which side had the better argument. Curtis used the example of Choate to relieve the lawyer of any responsibility for the moral nature of the cause. Instead, the lawyer zealously served the autonomous interests of clients, in the manner of Choate.

Wednesday, February 8, 2023

Stern on Mansfield and Burrow's Law Reports

Simon Stern, University of Toronto Faculty of Law, has posted Mansfield, Burrow, and the Reformulation of the Legal Decision, which is forthcoming in British Law and Literature in the Long Eighteenth Century, ed. Melissa Ganz (Cambridge University Press):

Lord Mansfield (NYPL)
Whereas scholarship on the role of precedents and precedential reasoning in law has tended to focus on questions concerning a commitment to stare decisis, and the nature of analogy and justification, this discussion focuses on rhetorical and formal features of legal opinions, such that they present themselves as eligible for use as precedents. A judge’s deliberate effort to create a precedent manifests a distinctive conception of the judicial role—a conception that carries with it a raft of assumptions about the law’s role in guiding behavior, the public’s access to judicial decisions, and judges’ ability to understand and anticipate the typical person’s response (such that the proposed solution can be expected to achieve its goal). Lord Mansfield, Chief Justice of the King’s Bench from 1756 to 1788, used a range of rhetorical and formal features to indicate that he was changing the law and to signal that a given decision should govern future cases. These include express rejection of earlier cases, careful articulation of the holding in a prominent place to enable its future use, and more explicit presentation of the facts than many of his precursors and contemporaries. His law reporter, James Burrow, credited as the creator of the headnote, complemented these efforts through his use of typography and page layout. Burrow’s ideas about clearer, fuller, and more focused reporting of legal decisions probably owed a considerable amount to his longstanding involvement with the Royal Society, whose published Transactions exhibit a series of generic changes in the first half of the eighteenth century, anticipating in some respects those that Burrow would adopt.
--Dan Ernst

Taylor's "Constructing the Family"

Luke Taylor, Lincoln Alexander School of Law, Toronto Metropolitan University, has published Constructing the Family: Marriage and Work in Nineteenth-Century English Law (University of Toronto Press):

In nineteenth-century England, legal conceptions of work and family changed in fundamental ways. Notably, significant legal moves came into play that changed the legal understanding of the family.

Constructing the Family
examines the evolution of the legal-discursive framework governing work and family relations. Luke Taylor considers the intersecting intellectual and institutional forces that contributed to the dissolution of the household, the establishment of separate spheres of work and family, and the emergence of modern legal and social ideas concerning work and family. He shows how specific legal-institutional moves contributed to the creation of the family's categorical status in the social and legal order and a distinct and exceptional body of rules – Family Law – for its governance.

Shedding light on the historical processes that contributed to the emergence of English family law, Constructing the Family shows how work and family became separate regulatory domains, and in so doing reveals the contingent nature of the modern legal family.

--Dan Ernst