Category: History of Law

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Graetz & Greenhouse on the Burger Court

Over at SCOTUSblog, I interviewed Michael J. Graetz and Linda A. Greenhouse in connection with their new book The Burger Court & the Rise of the Judicial Right (Simon & Schuster, 2016, pp. 450).

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Here is an excerpt:

Question: By the end of your book one gets the impression that Justice Powell – the “centrist” jurist – was both the great enabler of the Burger Court’s “counter-revolution,” on the one hand, and the great denier of that very charge, on the other hand. Is that true? What are your thoughts?       

Graetz & Greenhouse: You’re right – Powell’s role was very substantial, to a degree that surprised us. He commanded respect within the Court. His instincts were notably conservative: pro-business, pro-local and state discretion, ready to draw a line against recognizing new rights or handing new remedial powers to the federal courts. He also left a great set of papers (at Washington & Lee), making it easy to trace how often his deepest-held views prevailed and how those views, projected onto the pages of United States Reports, so often trace the story of the Burger Court.

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Working 9 to 5: What a Way to Make a Living

Joanna Grossman’s Nine to Five:  How Gender, Sex, and Sexuality Continue to Define the American Workplace is an invaluable contribution to the popular understanding of how gender works – or doesn’t – at work.  With wry humor and a clarity that’s all-too-rare among those who write about the law, Grossman provides a comprehensive, must-read primer for the lay reader.  But Nine to Five also is a bracing corrective to the notion that the issues raised by the popular 1980 movie of the same name are remotely as anachronistic as the bad fashion sported onscreen by Dabney Coleman, Jane Fonda, Dolly Parton, and Lily Tomlin. Read More

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How an Anarchist Changed Oliver Wendell Holmes’s Future

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Seattle, WA: Last evening I joined David Skover to see (yet again) Stephen Sondheim‘s dark musical, Assassins. Afterwards, I turned to David and said: “Well, not all of those assassinations proved for the worst. Holmes, after all, owed a debt to the anarchist who murdered President McKinley.” So here is a page from that story, the true one that is.  

* * * *

Leon Czolgosz

Leon Czolgosz

September 6, 1901 is one of the most important dates in American constitutional history, though few think of it as such. On that day Leon Czolgosz attempted to assassinate President William McKinley at the Pan-American Exposition in Buffalo, New York. Though the President would live several more days, the two shots the anarchist fired ultimately killed McKinley (he died on September 14th) and thereby put in motion a string of events that led to Oliver Wendell Holmes, Jr. becoming the fifty-eighth Justice on the Supreme Court.

But for the death of the President, the seat to be vacated by Justice Horace Gray would not have gone to then Chief Justice Holmes of the Massachusetts Supreme Judicial Court. No — President McKinley had other plans. Here’s what those plans were:

As the summer of 1901 wound down, it became apparent to McKinley and others that Justice Gray was ill and was likely to retire soon. So the President turned to his friend John Davis Long, then Secretary of the Navy, for advice. Though Long had nominated Holmes to the Massachusetts bench when he was governor, he did not recommend him for the U.S. Supreme Court. Instead, Long urged the president to select Alfred Hemenway, his law partner.  And Hemenway was prepared to accept the position if and when offered.

As it turned out, however, Horace’s delay in retiring combined with McKinley’s assassination changed everything. Thereafter, Henry Cabot Lodge, a U.S. senator from Massachusetts and one of Theodore Roosevelt’s close friends, recommend Holmes for Gray’s seat when the ailing Justice stepped down in July 1902. Roosevelt acted on Lodge’s suggestion and nominated Holmes. By December the Senate confirmed him, unanimously.

As ironic as it was, Oliver Wendell Holmes owed his justiceship to a crazed anarchist.

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FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)

Abstract

51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

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Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment Read More

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FAN 101.1 (First Amendment News) Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

Today, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to serve as an Associate Justice on the Supreme Court.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Judge Garland served as a law clerk to Second Circuit Judge Henry Friendly and thereafter as a clerk for Justice William J. Brennan. Garland’s clerkship at the Court was during the 1978-1979 Term.

During that Term the Court decided Hutchinson v. Proxmire (argued April 17, decided June 26, 1979). The vote was 8-1 with Chief Justice Warren Burger writing for the majority and Justice Brennan writing in dissent.

Facts in the Case: “In early 1975, Senator William Proxmire implemented what he called the “Golden Fleece Award of the Month.” The award was given out to governmental agencies which sponsored programs and research that Proxmire found to be a waste of tax dollars. One Golden Fleece went to federal agencies sponsoring the research of Ronald Hutchinson, a behavioral scientist. Proxmire detailed the “nonsense” of Hutchinson’s research on the floor of the Senate, in conferences with his staff, and in a newsletter sent to over 100,000 of his constituents. Hutchinson sued for libel, arguing that Proxmire’s statements defamed his character and caused him to endure financial loss.”

Issues: “The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue.”

First Amendment Ruling: Petitioner is not a “public figure” so as to make the “actual malice” standard of proof of New York Times Co. v. Sullivan applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. Nor is the concern about public expenditures sufficient to make petitioner a public figure, petitioner at no time having assumed any role of public prominence in the broad question of such concern.

Justice Brennan’s Dissent: “I disagree with the Court’s conclusion that Senator Proxmire’s newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States (1972).”

Counsel in the Supreme Court:

  • Michael E. Cavanaugh argued the cause and filed a briefs for Petitioner.
  • Alan Raywid argued the cause and filed a brief for Respondents.

Amicus Briefs:

  • Bruce J. Montgomery and John D. Lane filed a brief for the American Psychological Association et al. as amici curiae urging reversal.
  • Briefs of amici curiae urging affirmance were filed by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.
  • Chester H. Smith for Warren G. Magnuson et al. Stanley M. Brand filed a brief for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al.
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Picturing the Past — New Photo Book on the Interment of Japanese-Americans

During a recent visit to one of my favorite bookstores — Biblion books in Lewes, DE — I had the pleasure of meeting Professor James C. Curtis (Emeritus of History at the University of Delaware), who has just published Discriminating Views: Documentary Photography & The Japanese American Internment.  

Dorothea Lange photo: Manzanar, California, July 4, 1942, WRA

Dorothea Lange photo: Manzanar, California, July 4, 1942, WRA

The 235-page book, laid out on wide pages of fine stock paper, “focuses on photographers hired by the War Relocation Authority (WRA) and shows how their images were shaped by the government’s need to explain and justify the evacuation, confinement and eventual resettlement of over 110,000 Japanese Americans, two thirds of whom were American Citizens. Discriminating Views analyzes the work of Dorothea Lange, Clem Albers, Francis Stewart, Tom Clark, Hikaru Iwasaki and other WRA photographers. The Manzanar photographs of Ansel Adams come in for special consideration. The author contends that WRA photographs were instruments of propaganda that often reflected the prevailing racial attitudes of the era.”

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Journal of Legal Education: Volume 65, # 3, Spring 2016

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From the Editors

By Thomas D. Cobb & Kate O’Neill

Articles

           By Adam Chodorow & Philip Hackney

           By Lynn M. LoPucki

           By Justin McCrary, Joy Milligan, & James Phillips

           By Elaine Campbell

          By John C. Kleefeld & Katelyn Rattray

At the Lectern

           By Beth Hirschfelder Wilensky

Interview

           By Ronald K.L. Collins

Book Reviews

           By Duncan Farthing-Nichol

           By Michael Robertson

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The Tragedy & Lost Legacy of James M. Landis — Book Review by Duncan Farthing-Nichol

The current issue of the Journal of Legal Education has a fascinating book review by Duncan Farthing-Nichol of Justin O’Brien’s The Triumph, Tragedy and Lost Legacy of James M Landis: A Life on Fire (Oxford: Hart Publishing, 2014, pp. 187, $52.00 (cloth). Here is how the review opens:

Dean James Landis (1889-1964)

Dean James Landis (1889-1964)

In The Triumph, Tragedy and Lost Legacy of James M Landis, Justin O’Brien asks why Harvard Law School has so far neglected to hang its portrait of James M. Landis (11). The library’s walls bow under the weight of history; Harvard’s twentieth-century deans gaze down en masse from the south end. But Landis, dean from 1937 to 1946, is not among them.1 Professor O’Brien traces the omission to Landis’ 1963 conviction for tax avoidance, a crime for which Landis was sentenced to thirty days in jail. The school, according to O’Brien, has let the conviction overshadow Landis’ vital role in shaping law and government. O’Brien reminds readers that Landis wrote and administered the Securities Act of 1933 and the Securities Exchange Act of 1934—the first serious efforts at federal securities regulation—and, in 1938, developed the most persuasive contemporary theory of government by administrative agency. The University of New South Wales professor also contends that Landis introduced social responsibility to legal education, an achievement that elevated law from a mere technical discipline to a means of seeking justice. Harvard, O’Brien concludes, should hang its Landis portrait.

I agree, but on somewhat different grounds. O’Brien lays a compelling case for Landis’ impact on administrative thought and practice. He moves too quickly, however, in naming Landis a transformative figure in legal education. Landis spoke in ambitious terms: He aimed for a legal education that transcended technique, reflected the rise of public law, and respected the new experts (economists, sociologists, and other specialists). He sought to instill a desire for justice in his students. Yet Landis did relatively little to institutionalize that vision, acting more as a caretaker than a reformer. If Harvard should hang Landis’ portrait, it is for his ideas and his story, rather than his deeds. . . . [read more here]

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FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

[T]he Central Hudson test is susceptible to a wide variety of interpretations . . . . Martin Redish (2001)

After a period of much controversy, the Court in 1980 in Central Hudson articulated a general test for determining the constitutionality of regulations of commercial speech. Although the test has subsequently been interpreted from radically different perspectives, and although it has been attacked by numerous Justices, it has nevertheless remained the dominant test. — Robert Post (2000)

Before Sorrell v. IMS Health Inc. (2011) and 44 Liquormart, Inc. v. Rhode Island (1996), there was Central Hudson Gas & Electric v. Public Service Commission (1980).

When it comes to commercial speech and the First Amendment, Central Hudson was the coin of the realm in its day. Recall, the vote was 8-1 with Justice Lewis Powell writing the majority opinion (joined by Justices Stewart, White, Marshall, and Chief Justice Burger), with separate concurrences by Justice Brennan, Blackmun, and Stevens. Justice William Rehnquist wrote a lone dissent.

David O. Stewart, former Powell law clerk

David O. Stewart

Recall as well that Telford Taylor (counsel for the prosecution at the Nuremberg Trials) argued the case on behalf of the Appellants and Burt Neuborne filed an amicus brief on behalf of the Long Island Lighting Co. supporting the Appellants.

Justice Powell was virtually silent during oral arguments. Justices Byron White, John Paul Stevens, Potter Stewart, William Rehnquist, and Harry Blackmun asked the lion’s share of the questions. Even so, the Chief Justice assigned the opinion to Justice Powell.

Central Hudson was the case where the famed four-prong test was announced. Recently, I had occasion to look through the Powell papers archived at the Washington and Lee School of Law library. In browsing through those papers, I came upon a batch of memos and draft opinions concerning the Central Hudson case.

Much to my surprise, a good friend of mine, David O. Stewart, played a major role as the law clerk responsible for drafting Justice Powell’s Central Hudson majority opinion. In that regard, I asked David if he would answer a few questions about the case and his involvement in it. He kindly agreed; his responses are set out below. Read More

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Can We Tolerate Tolerance?  

This is the third in a series of occasional short essays about free speech in America. Earlier installments can be found here and here.

We live in a tolerant society. Of course, that is an exaggeration. But when it comes to so many flashpoint issues – ranging from blasphemy to race-hate speech – we are far more tolerant than almost all other nations, so much so that we are routinely criticized for being too tolerant. It is our badge of honor . . . and dishonor.

Professor Mark Lilla

Professor Mark Lilla

Mindful of the events in France and Denmark earlier this year, I wonder: Will we continue to tolerate toleration if our world takes a terrible turn? My question has less to do with what is being tagged as the “terrorist’s veto” than with a more complex problem, and one therefore even more difficult to resolve. This problem occurred to me when I first read an eye-opening essay by Mark Lilla in the New York Review of Books, an essay entitled “France on Fire.” Here is a very brief excerpt:

“For the past quarter-century a political and intellectual culture war over the place of Islam in French society has been bubbling along, and every few years some event — a student wears a burka to school, riots erupt in a poor neighborhood, a mosque is attacked, the National Front wins a local election — renews hostilities.”

I want to extrapolate from that essay (at once insightful and provocative) in order to outline a phenomenon that may be hurling our way, a phenomenon related to toleration and dissident speech.

Before I do, however, let turn to the glorious side of the toleration equation by way of a well-known case, West Virginia State Board of Education v. Barnette (1943). Recall the Jehovah’s Witnesses’ flag-salute case, the one with that liberty-inspiring majority opinion by Justice Robert Jackson. In words that should be fixed in every lawmaker’s consciousness, Jackson declared: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” The judgment in that case affirming First Amendment freedom is all the more amazing given that it was rendered in wartime and involved a religious sect that was then very much hated in various quarters of American society. (See Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000).)

The (Hypothetical) Problem

Against that backdrop, imagine the following scenario. Assume that the editors of a respectable libertarian magazine elected to publish several satirical cartoons of the Prophet Muhammad in order to make a First Amendment point and to take a stand against the “terrorist’s veto.” Assume thereafter that the Charlie Hebdo incident replayed itself in Cincinnati (the headquarters of my hypothetical magazine). Ten people who work for the magazine are murdered and two Muslim extremists take credit. Both of the terrorists are later killed in a shootout with police that also results in the deaths of two local police officers.

Here is where I begin to extrapolate from Professor Lilla’s essay. Now assume the following additional scenarios, replete with a few quotations from the Lilla essay”

  1. The Governor of Ohio calls for a moment of mourning with heads bowed on the day following the tragedy (say, the time is 11:00 a.m.);
  2. A “noticeable number” of Muslim public high school students in Cincinnati refuse, on religious and political grounds, to bow their heads;
  3. “And not only that. Some [tell] their teachers that the victims got what they deserved because no one should be allowed to mock the Prophet”;
  4. “Others celebrate the killers on social media, and circulate rumors that the entire crisis was manufactured by the government and/or Zionist agents”; and
  5. The parents (some of whom work for state and local governments) of some of these Muslim-American students speak openly (though not at work) to defend their children and endorse the positions they took.

Note that the Muslim-Americans in the above scenarios were otherwise peaceful and law abiding. And some Muslim-American leaders sought to counteract the messages of the violent extremists among them. That said, let me stir the pot a bit more with a few more scenarios and related questions:

  1. So far as government entities are involved, how far are we willing to go to accommodate (culturally, statutorily, and constitutionally) the religious views of the more observant and separatist Muslim-Americans who harbor what we would see as extreme views concerning homosexuality, female purity, and Jews and Israel?
  2. Finally, let me again from quote Professor Lilla to raise a final question: Some “students and their parents demand separate swimming hours or refuse to let their children go on school trips where the sexes might mix. . . . There are fathers who won’t shake hands with female teachers, or let their wives speak alone to male teachers. There are cases of children refusing to sing, or dance, or learn an instrument, or draw a face, or use a mathematical symbol that resembles a cross. The question of dress and social mixing has led to the abandonment of gym classes in many places. Children also feel emboldened to refuse to read authors or books that they find religiously unacceptable: Rousseau, Molière, and Madame Bovary. Certain subjects are taboo: evolution, sex ed, the Shoah. As one father told a teacher, ‘I forbid you to mention Jesus to my son.’” Does our commitment to religious freedom extend that far so as to accommodate the genuine religious views of those who hold them?

Let me be clear: I do not mean to demean Muslim-Americans as a class, nor do I wish to be understood as saying the above scenarios mirror the sentiments of most Muslim-Americans . I trust they are not. Then again, I may disagree with some of them, and sometimes vigorously, on several of the issues flagged above. But I also believe in toleration, and the ever-present need to be sensitive to the plight of minorities of all ideological, political, and religious stripes.

So where does that leave us?

Testing Our Tolerance Read More