Author: Gerard Magliocca


Trial By Battle and the Civil War

Recently I came across a great article by Cynthia Nicoletti entitled “The American Civil War as a Trial by Battle.” (28 Law & Hist. Rev. 71 (2010)).  Trial by battle was one the dispute resolution mechanisms used under the early common-law writ system (basically, the litigants or their champions fought in single combat and the winner won the suit).  The theory behind this was that God would ensure that justice would prevail (presumably based on a preponderance of the evidence, but who knows what He uses).

While this system eventually fell out of favor and was replaced by jury trial, the Civil War was often described as a trial by battle on the issue of secession.  This served the interests of both sides in the conflict. Southerners claimed that their legal reasoning was right–they just lost on the battlefield. Northerners used the metaphor because it showed that their victory was God’s will.  Indeed, Lincoln alluded to this idea in his Second Inaugural:

“If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”


Representative Democracy

“One of the countless drawbacks of being in Congress is that I am compelled to receive impertinent letters from a jackass like you in which you say I promised to have the Sierra Madre mountains reforested and I have been in Congress two months and haven’t done it.  Will you please take two running jumps and go to hell.”

Congressman John McGroarty, engaged in constituent service (1934).


John Bingham Biography

I am pleased to announce that NYU Press is giving me a contract to write a John Bingham biography.  (I’m still working on the best title.  “John Bingham:  American Founding Son” is my favorite so far, but I’m open to other suggestions.)  I’m very excited about this book, though I recognize that it will consume much of my energy for the next few years.  This is also the first project where people other than me will care about how it turns out.  I hope that in the coming years I can engage all of you who are interested in Bingham as I try to do my best to present a balanced account of his extraordinary career.


Go Butler!!

I live three blocks from campus and walk to home games at Hinkle Fieldhouse, so this is unbelievably exciting.  Do you believe in miracles?  I’m starting to.

Now returning you to legal topics . . .


History of the Common Law

One of the best classes that I ever took (in college or law school) was John Langbein’s “History of the Common Law.”  Professor Langbein’s lectures were always fascinating and exceptionally lucid, partly because of the care (that I didn’t really understand then but do now) that he took with organizing and editing the course materials.

Now he (along with Bruce Smith and Renee Lerner) has produced a textbook from those materials.  The coverage is phenomenal–the writ system, the origins of jury trial, the law of torture, Star Chamber, church courts, legal education, the Year Books, and Equity among other things.  (They ignored maritime practice before the Lord High Admiral, but hey, no book is perfect).  Moreover, the book looks terrific, with lots of illustrations and excerpts from original documents.  It’s not inexpensive and you can’t get in on a Kindle, but this is something that is worth putting on your shelf.


Top 10 Books

I thought I’d join in on the thread going around asking people to name the ten books that influenced them. I’ll leave legal books out to make this more interesting.

1.  Inside the Third Reich (Albert Speer) – The best book about evil ever written, precisely because Speer (one of Hitler’s close friends and ministers) tries so hard to explain his actions without admitting that he knew about the Holocaust.  This requires more reading between the lines than any other book.

2.  On War (Carl Von Clausewitz) — This unfinished work captures certain fundamental concepts about politics in a way that no other does.

3.  I, Claudius (Robert Graves) — I’ve always identified with the main character for some reason.

4.  Moby Dick (Herman Melville) — “All visible objects are but as pasteboard masks.”  Plus, there are whales.

5.  Julius Caesar (William Shakespeare) — Maybe this shouldn’t count because it’s a play, but Antony’s funeral oration is one of the few speeches that I can recite from memory.  (Though I also love Caesar’s “I am constant as the Northern Star” speech right before he gets hacked to pieces.)

6.  Extraordinary Popular Delusions and the Madness of Crowds (Charles Mackay) — Still the best book on economic bubbles.

7.  The English Constitution (Walter Bagehot) — Well, OK this is a law book, but Bagehot was not a lawyer, so I’m making an exception.

8.  Titan (Ron Chernow) — This biography of John D. Rockefeller Sr. is a model for how I want to write my biography of John Bingham.  (More on that soon.)  Chernow’s biography of Alexander Hamilton deserves an honorable mention.

9.  Don Quixote (Miguel de Cervantes)  — There’s something oddly compelling about it.

10.  Lend Me Your Ears (William Safire) — Sure, it’s just an anthology of great speeches, but the study of rhetoric is underrated and you can’t do better than this volume.


“Under God” and Health Care

Let’s see if I can stir the pot with this one.  To my mind two purposes of legal reasoning are: (1) to expose gaps between the stated reason for an action and the real reason; and (2) to expose gaps between what the law requires and popular sentiment (or the preferences of judges).  Let’s look at two examples.

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Reforming the OLC

In a post a few weeks ago I noted that the reconciliation process on health care would test the practice (dating back to the 1970s) that rulings of the Senate parliamentarian are not overturned by the presiding officer (e.g., the Vice-President).  So far, on the most consequential legislation in decades, that tradition remains intact, which suggests that it is now a settled rule.

This raises the following question–if the parliamentarian’s office can consist entirely of civil servants, why can’t the same structure be used for the Office of Legal Counsel (OLC) in the Executive Branch?  For those who think that John Yoo’s work there was problematic because he just told the President what he wanted to hear, one solution would be to end the practice of having political appointees there at all.  Of course, the Attorney General or the President would retain the right to overrule opinions by the OLC civil servants, just as the Vice-President (or a Senate majority) can overrule the parliamentarian, but in time that power would probably wither away because the political costs of exercising it would be too high.

UPDATE:  Here is a paper by Brad Lipton that makes a similar argument.


Test Case on the Individual Mandate

Here’s something to chew on.  Let’s say you want to litigate the constitutionality of the individual mandate. Who would be the most sympathetic plaintiff?  (“I don’t want to buy health insurance because . . .” )  It can’t be somebody who is poor (they get subsidies) or has religious objections to medical care (they are exempted from the requirement).  Is it somebody who says that in my state I can only buy insurance from company X, and I don’t want to be insured by it for one reason or another?


Slender Majorities

An argument against the health care bill is that, as Jefferson said, “Great innovations should not be forced upon slender majorities.”  As a historical matter, you can find cases where this was done (two that come to mind are the renewal of the draft in 1940 (or maybe it was 1941), which passed by one vote in the House, and the [Cherokee] Removal Act of 1830, which survived the key procedural challenge in the House by one vote).

More generally, the proposition that broad bipartisan changes are somehow better than partisan ones is far from clear.  You can find plenty of major errors made by supermajorities (Prohibition) that reflected a kind of group-think mentality.  And you don’t often hear folks in parliamentary democracies lamenting the lack of bipartisan support–they just assume that the Government will put through its program and, if people don’t like it, they’ll vote somebody else in the next time.  The fetish for bipartisanship seems to be distinctly American.

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