Category: History of Law

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FAN 61 (First Amendment News) Past & Prologue — Ralph Young on the History of Dissent & David Skover on Free Speech in a Robotic Era

In this post I highlight two new works (one on dissent, the other on data, etc.) to emphasize the importance of history, on the one hand, and the challenge of new technologies to inform the way we think about the First Amendment, on the other hand.

Let me start with history: Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. The First Amendment’s greatest virtue is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists,  and even nihilists and racists.

Professor Ralph Young

Professor Ralph Young

Enter Temple University Professor Ralph F. Young and his new book, Dissent: The History of an American Idea (New York University Press, 2015). Generally speaking, this 600-page tome, which follows Young’s various volumes titled Dissent in America, does a splendid job of chronicling much of the evolution of dissent in America. His panoramic account spans much in the history of dissent from the plight of the Puritans, to the fate of Native American Indians, to the struggle of abolitionists, to the campaigns of labor activists, to the crusades of feminists, to the sit-ins of civil rights demonstrators, to the marches of war protestors, to the anti-Establishment songs of Bob Dylan, to the Stonewall riots, to the politics of the Tea Party, to the antics of the Occupy Wall Street movement, and more! It is a remarkable achievement.

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Sadly missing from this otherwise impressive survey of dissent in the United States is any mention of the likes of:

That said, there is still more than a big bundle of worthwhile and eye-opening historical reading to be found between the covers of this engaging volume.

For a philosophical account of what exactly constitutes dissent, see Collins & Skover, On Dissent: Its Meaning in America (Cambridge University Press, 2013).

Forthcoming: Stephen J. Solomon, Revolutionary Dissent (Palgrave Macmillan, January 2016)

Disclosure: Though an ad for Dissent: The History of an American Idea appears on this page, I had no involvement with it and was not otherwise influenced (positively or otherwise) by it.

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Venturing on into the future: On May 26th Seattle University Law Professor David Skover will speak at the Third Annual Governance of Emerging Technologies Conference in Scottsdale, Arizona. His remarks will be delivered at the outset of a panel discussion entitled “Robotics & Autonomous Systems.” The panel will be moderated by Wendell Wallach. The other panelists are Kate Darling and Greg Garvey.  

Professor David Skover

Professor David Skover

Professor Skover’s remarks are based on a work-in-progress, tentatively titled “Intentionless Free Speech: Robots & Receivers” (of which I am the co-author) (NB: We chose the term “intentionless” because it conveys a meaning quite different than “unintentional.”) In brief, Skover’s remarks will examine why First Amendment coverage should be assigned to robotic expression, quite apart from whether such expression merits constitutional protection when balanced against a spectrum of potential harms. The paper argues that robotic expression puts into  bold relief the view that much First Amendment speech is protected because of the experience of a user or receiver. The paper builds on, or moves beyond, or takes issue with the works of robotic free speech scholars Jane Bambauer, James Grimmelmann, Timothy Wu, and Eugene Volokh, among others. The paper began as an outgrowth of a series of conversations with Professor Ryan Calo, whose support and encouragement have been invaluable in developing our ideas in this new and largely uncharted area.

“Intentionless Free Speech” is the latest installment of the authors’ ongoing examination of the relationship between law and technology. This venture began with a 1990 article entitled “The First Amendment in an Age of Paratroopers,” and then continued with a 1992 article entitled “Paratexts” (expanded and reconstituted in “Paratexts as Praxis” in 2010), and ultimately developed into a book entitled The Death of Discourse (1996 & 2nd ed., 2005).

Headline: “NYC Censorship Event Gets Censored” — Another Mohammed Controversy  Read More

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FAN 57 (First Amendment News) Press Group & Others Await Ruling re Release of 1942 Grand Jury Transcripts in Chicago Tribune Case

PETITION FOR ORDER DIRECTING RELEASE OF TRANSCRIPTS OF CERTAIN TESTIMONY FROM AUGUST 1942 GRAND JURY INVESTIGATION OF THE CHICAGO TRIBUNE

UnknownThat is the caption in the petition titled In re Petition of Elliot Carlson, et al, which was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. The judging presiding over the case is Chief Judge Ruben Castillo. In addition to the lead petitioner, the other parties in the case are: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

Stanley Johnston & Jay Loy Maloney

Stanley Johnston & J. Loy Maloney of the Tribune

The controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

The government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

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The Justice Department convened a grand jury in August of 1942 to investigate whether Johnston and his managing editor, J. Loy Maloney, along with the Tribune had violated the Espionage Act of 1917. On August 19, 1942, the grand jury declined to issue any indictments.

Tribune_The  CitadelJubilant over its victory, the Tribune ran a front-page cartoon the next day — the cartoon depicted the Tribune Tower as a citadel for press freedom.

It is against that backdrop that Elliot Carlson (a naval historian) and his fellow petitioners requested the release of the transcripts of the testimony of all 13 witnesses who testified before the grand jury in connection with the Tribune investigation. The transcripts are apparently stored at a National Archives repository in College Park, MD (enclosures to Serials 1 through 11 for File Number 146-7-23-25).

In his declaration to the court, Carlson maintained that “[r]eleasing the grand jury testimony will fill in important gaps in the existing historical record and will provide valuable perspective on the relationship between the government and the press during national security crises – a subject that has never been more relevant. Historians and writers still disagree would the details of the Tribune scandal . . . but the grand jury testimony could settle the dispute.”

Government Opposes Release of 1942 Transcripts

On December 24, 2014, the government filed its response in opposition to the release of the grand jury transcripts. Its opposition was based on three basic arguments:

  1. “No Statute or Rule Provides for Release of Grand Jury Information for Reasons of Historical Interest”
  2. “Second Circuit Law Recognizing Historical Significance as a Special Circumstance Justifying Disclosure Is Flawed and Contrary to the Weight of  Supreme Court Jurisprudence,” and
  3. “The Supreme Court’s Rulemaking Body Has Rejected an Amendment to Rule 6(e) Based on Historical Interest”

In their reply memorandum, the Petitioners advanced two main arguments:

  1. “Courts have discretion to order disclosure of historical grand jury material in appropriate circumstances pursuant to their inherent authority,” and
  2. “The Coalition has demonstrated that disclosure of the testimony from the 1942 Tribune grand jury investigation is a proper exercise of this Court’s discretion.”

Lawyer for Petitioners: Brendan J. Healey

 Lawyer for the Government: Elizabeth J. Shapiro (U.S. Department of Justice)

A ruling is expected sometime within the next two months.

→ See also Editorial, “Breaking the code on a Chicago mystery from WWII,” Chicago Tribune, November 21, 2014

For some historical background, see:

  1. Lloyd Wendt, Chicago Tribune: The Rise of a Great American Newspaper (1979), pp. 627-636
  2. Michael S. Sweeney & Patrick S. Washburn, “‘Aint Justice Wonderful': The Chicago Tribune’s Battle of Midway Story and the Government’s Attempt at an Espionage Act Indictment in 1942,” Journalism & Communication Monographs December 5, 2013 (updated 2014)
  3. Dina Green, “Communication Intelligence and the Freedom of the Press. The Chicago Tribune’s Battle of Midway Dispatch and the Breaking of the Japanese Naval Code,” Journal of Contemporary History (1981)

ht: Katie Townsend

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Muzzle Awards ‘Honor’ First Amendment Violators

This from a news report in The Daily Progress: “The administration of a major university, the mayor of Peoria, Illinois, and an Alabama circuit judge are among this year’s recipients of the Jefferson Muzzle awards, given to people or institutions accused of stifling freedom of speech in the United States. Thomas Jefferson Center for the Protection of Free Expression . . . gives out the awards each year.”

Those receiving the awards were:

  1. Peoria, Illinois Mayor Jim Ardis
  2. Bergen Community College (NJ)
  3. Mora Co., New Mexico Board of Commissioners
  4. Bedford Co., Pennsylvania District Attorney Bill Higgins
  5. Alabama Circuit Court Judge Claud D. Neilson
  6. The Indiana Department of Corrections
  7. Asnuntuck Community College (CT)
  8. The University of Illinois at Urbana–Champaign

NB: Links are to stories re the reasons for bestowing the awards.

Video of Balkin-Redish Exchange Posted  Read More

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Looking Back — Francis Biddle, Censorship & the “Biddle List”

War threatens all civil rights. Francis Biddle, December 15, 1941

I was reading Sam Walker’s Today in Civil Liberties History (a daily historical calendar — quite good!) when I came upon this entry for today, circa April 14, 1942:

Attorney General Biddle OKs Censoring Father Coughlin’s Social Justice Magazine

“In a letter to Postmaster General Frank Walker on this day, Attorney General Francis Biddle (1886-1968) proposed banning the magazine Social Justice from the mails. Social Justice was the publication of Father Charles Coughlin, a Catholic priest in the Detroit area, who in the late 1930s became a public, ultra-conservative critic of President Franklin D. Roosevelt.”

Unknown“When the U.S. entered World War II, Coughlin became a critic of the war effort, in part because he was anti-Semitic. Coughlin’s criticisms were the reasons for Biddle’s censorship proposal. In the end, the Post Office did bar Social Justice from the mails. It was one of the relatively rare instances of suppression of dissent during World War II . . . .” (See Pittsburgh Post-Gazette, April 15, 1942 story here.)

Biddle, of course, was the one who had been a secretary to Justice Holmes (1911-1912), assistant to the U.S. Attorney (E-Dist., PA), chairman of the NLRB (1934-35), Third Circuit Judge (1939-1940), U.S. Solicitor General (1940), U.S. Attorney General (1941-45), and later a judge on the International Military Tribunal at Nuremberg (1945-1946) (Herbert Wechsler served as his main assistant), among other things. Biddle also wrote a biography of Holmes — Mr. Justice Holmes (1942), among other books.

Francis Biddle

Francis Biddle

One more biographical note: he was a half second cousin four times removed of James Madison.

As recounted in a Wikipedia entry, “[d]uring World War II Biddle used the Espionage Act of 1917 to attempt to shut down ‘vermin publications.’ This included Father Coughlin’s publication entitled Social Justice. Biddle has also been ‘credited’ with the creation of what became known later as the ‘Attorney General’s List of Subversive Organizations.’ In fact, this list was originally known as ‘The Biddle List.'”

“In the Biddle List, eleven front groups originating in the Communist Party of the United States of America (CPUSA) were singled out as being ‘subversive’ and under the control of the Soviet Union. Unlike the later, more infamous Attorney General’s List of Subversive Organizations, which contained both left and right-wing organizations, the Biddle List contained only left-wing organizations as well as civil rights organizations tied to the CPUSA.”

Biddle List (1941): 

Contrast Francis Biddle, Remarks at the Dedication of the Thomas Jefferson Room, Library of Congress, December 15, 1941, on the occasion of the 150th Anniversary of the Bill of Rights. Here is an excerpt from those remarks:

War threatens all civil rights; and although we have fought wars before, and ourpersonal freedoms have survived, there have been periods of gross abuse, when hysteria and hate and fear ran high, and when minorities were unlawfully and cruelly abused. Every man who cares about freedom, about a government by law — ­and all freedom is based on fair administration of the law — must fight for it for the other man with whom he disagrees, for the right of the minority, for the chance for the underprivileged with the same passion of insistence as he claims for his own rights. If we care about democracy, we must care about it as a reality for others as well as for ourselves; yes, for aliens, for Germans, for Italians, for Japanese, for those who are vdth us as well as those who are against us: For the Bill of Rights protects not only American citizensbut all hunlan beings who live on our American soil, under our American flag. The rights of Anglo-Saxons, of Jews, of Catholics, of negroes, of Slavs, Indians — all are alike before the law. And this we must remember and sustain — ­ that is if we really love justice, and really hate the bayonet and the whip and the gun, and the whole Gestapo method as a way of handling human beings.

As far as I can tell, there has been no book-length biography of Francis Biddle, which strikes me as odd. Such a biography is long overdue and Biddle is certainly deserving of one.

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Does Scholarship Really Have an Impact? The Article that Revolutionized Privacy Law

Does scholarship really have an impact? For a long time, naysayers have attacked scholarship, especially scholarship about law. U.S. Supreme Court Chief Justice Roberts once remarked: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” He noted that when the academy addresses legal issues at “a particularly abstract, philosophical level . . . they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.” Judge Harry Edwards also has attacked legal scholarship as largely irrelevant.

Critics are quick to point out that much legal scholarship is not cited much — and many articles are never even cited by anyone other than the authors themselves in subsequent works.

But I think that a lot can be learned from the story of one of the most influential law articles of all. That article was Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).

Brandeis Right to Privacy 02

Warren and Brandeis discussed how journalism was becoming more sensationalistic: “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.” And they expressed concern about a new technology they called “instantaneous photograph[y.]” — the new smaller and cheaper cameras being marketed by the Eastman Kodak Company that made it possible for candid photos to be taken.

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James Madison and the Bill of Rights

97px-James_MadisonAs part of my research for my next book, I’ve been trying to see if Madison ever called what was ratified in 1791 the Bill of Rights or a bill of rights.  Thus far, I have come up empty.

One possible example was in an article that Madison wrote for The National Gazette in December 1791.  In this piece, entitled ‘Public Opinion,” he stated: “[A]s government is influenced by opinion, it must be so, by whatever influences opinion.  This decides the question concerning a Constitutional Declaration of Rights, which requires an influence on government, by becoming a part of the public opinion.”  This article came out four days after the first set of amendments was ratified.  Thus, in context maybe this passage was referring to what was just ratified as a “Declaration of Rights.”  If so, though, this was a pretty oblique way of making the point.

I’ve also gone through Madison’s Report on the Virginia Resolution, which contained a detailed analysis of the Alien and Sedition Acts.  In that Report, Madison refers only to “the amendments” and quotes from the First and Tenth Amendments.  He never calls the amendments a bill of rights or the bill of rights.

There are no references to the Bill of Rights in Madison’s presidential papers. We’ll see what I find when I go through his papers in retirement.

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FAN 47 (First Amendment News) Anniversary Issue: Returning “Home” — Looking Back on Fox v. Washington (1915)

Anniversary: It was a year ago (February 10, 2014 to be precise) that I posted my first FAN column on Concurring Opinions. Now, 46-plus posts later (there were also a number of non-scheduled posts), I think the endeavor well worth the time to spread the First Amendment word — the serious and silly, the admirable and objectionable, the high and low, the liberal and conservative, and everything in between and beyond. Thanks to Dan Solove (our blog publisher) for inviting me onboard. Dan’s respect for the integrity of the work product and his encouragement to take it to “the next level” have made the adventure all the more challenging and exciting. Thanks also to all those who so kindly directed First Amendment news my way. In the coming year I hope to improve on what works while testing out a few new ways of how to look at our free speech world. — RKLC      

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“The agitator is the mostly roundly abused and at the same time most necessary individual in society.” Jay Fox 

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Ponder this creed: HOME is where freedom resides. That ideal was as much a personal hope as it was a political ideal for some who long ago traveled through Puget Sound to a cove in the Pacific Northwest. They toiled first to buy nearby land (26 acres) and then to build on it — not just log cabins but a commune of anarchists, radical feminists, artists, and free-thinking women and men dedicated to a way of living very much counter to the conventions of late 19th century America.

It began in 1896 when a group of free-spirt types, known as “Homeites,” set out to establish the utopian colony of Home. Things started out well in this idyllic community as more and more families came and pitched in to make Home their home. As they invested more and more of their lives into that experiment in freedom, their lifestyles drew more and more attention beyond the borders of their beloved Home. And that proved to be a problem — one with realpolitik consequences.

“In 1902, after charges of violation of the Comstock Act resulting from an article advocating free-love published in the local anarchist newspaper Discontent: Mother of Progress, Home’s post office was closed by postal inspectors and moved two miles to the smaller town of Lakebay.” (Source here). But that did not stop their counter-culture ways. True to their libertine life styles, some “Homeites” took to nude sun tanning in the woods of the Key Peninsula, near Tacoma in Washington State.

It was too good to last: In short time, four individuals were arrested for indecent exposure. Incensed by their arrests, on July 11, 1911 Jay Fox (1870-1961), the editor of The Agitator, published an essay entitled “The Nudes and the Prudes.” In it Fox — an independent-minded man devoted to halting “the crimes of capitalism” — urged boycotts of the businesses of those who railed against nude bathing.

Note: “The Agitator” bold text above is a copy of the original banner of Jay Fox’s publication.

According to Washington State historian and librarian Mary M. Carr, “The Agitator made its first appearance on November 18, 1910, although in his editorial Fox proclaimed that it appeared on November 11, the 25th [sic] anniversary of the execution of the Haymarket martyrs. (Actually, he was four days late for the 23d anniversary.) In its subtitle, The Agitator defined itself as an ‘Advocate of the Modem School, Industrial Unionism, and Individual Freedom.’ Fox declared that it would ‘stand for freedom first, last and all the time,’ and would promote the right of every person to express his opinions. He hoped to popularize knowledge so that common toilers, as well as the ‘rich and privileged class’ cou1d be ‘uplifted to philosophy and science.'”

“It is only by agitation that the laws of the land are made better. It is only by agitation that reforms have been broughtabout in the world. Show me a country where there is the most tyranny and I’ll show you the country where there is no free speech. This country was settled on that right, the right of free expression.”Jay Fox (January 11, 1912)

Not surprisingly, Fox’s passionate opposition to the prudish ways of those in power did not sit well with Washington State’s bluenose establishment. Hence, he was prosecuted  under a Washington statute that prohibited printing or circulating publications that encouraged a commission of a crime. Fox was tried and convicted in 1912 and received a two month sentence, which the Washington Supreme Court declined to set aside in State v. Fox, 71 Wash. 185 (1912). Review was then sought in the United States Supreme Court.

The lawyers Read More

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Grant Gilmore’s Resurrection . . . with a little help from Philip Bobbitt

 Grant was a magician in an age of bureaucrats. — Anthony Kronman (1982)

Grant Gilmore

Grant Gilmore

The Ages of American Law has been reissued with a new foreword and a new final chapter by Columbia Law School Professor Philip Bobbitt. More about that soon, but first a few words about the man recently reincarnated.

Grant Gilmore died on May 24, 1982 — the same date of Benjamin Cardozo’s birth (May 24, 1870). G.G. died in his sleep; he was 72.

Gilmore was a Yale man (AB, 1931, PhD, 1936 & L.L.B, 1942) bred in the Boston suburbs. He began his academic career teaching French at Yale, but he tired of it and so ventured into law. He taught at Yale Law School, University of Chicago Law School, the College of Law (now Moritz College of Law) at Ohio State University, and finally at Vermont Law School. His books included:

Though he was picked by the executors of the Oliver Wendell Holmes papers to do the definite biography of Justice Holmes (very strange!), it never came to pass. And he never published his PhD dissertation — Stephane Mallarme: A Biography and Interpretation (1936). By way of an interesting aside: In 1959 Professor Arthur Corbin privately recommended Gilmore to serve as an advisor for the drafting of The Restatement (2nd) of Contracts (also strange). As fate had it, that, too, never came to pass and Gilmore never became a “restater.”

By the time he died, the complex and cantankerous Gilmore had made his mark on the law, and a notable though peculiar mark it was. For all his fame and infamy, no gravestone marked his memory. His scattered ashes were his final consideration, illusory as that may seem.

Ironically, this bold and blazing scholar left his papers to the Harvard Law School — the same institution that held firmly to the conviction that “inspiration should be distrusted,” or so Gilmore put it in 1963, albeit with a critical cutting edge.

∇ ∇ ∇

Philip Bobbitt

Philip Bobbitt

And now, like the Phoenix of old, he returns to find new life. Or at least that part of him arising from The Ages of American Lawwhich has just been republished in Kindle form. Here, as Professor Bobbitt recounts it, is how it came to pass: “In late 2011, I was approached by an editor at Yale University Press, who was considering a revised edition of Grant Gilmore’s classic, The Ages of American Law. I responded that I would be pleased if the Press would publish, as a Foreword to such an edition, my 1975 essay in the Yale Law Journal introducing one of Gilmore’s lectures, ‘The Age of Anxiety,’ which he reworked to form Chapter 4 of the book. After reading that essay,” adds Bobbitt, “the editor proposed that it be published as a ‘historical document with a preface to provide context’ and that I should also draft a new section bringing it up to date, as apparently some readers wished in the classes in which the book is taught.”

41seNslJYSL._BO2,204,203,200_PIsitb-sticker-v3-big,TopRight,0,-55_SX278_SY278_PIkin4,BottomRight,1,22_AA300_SH20_OU01_That is how Bobbitt’s fascinating foreword begins. But there is much more, about Robert Cover, the famed Storrs Lectures (Oct. 1974), and young Philip Bobbitt’s role in it all. (Gilmore thanked Bobbitt in the acknowledgements to Ages. It was, after all, Bobbitt who had drafted the “Editors’ Introduction” to Gilmore’s “The Age of Anxiety” essay published in 1975 in the Yale Law Journal).

Bonus: There is a new 50-age chapter (#6) added to Ages: it is by Bobbitt and is titled “The Age of Consent,” which first appeared last year in the Yale Law Journal.

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 Book Review of The Ages of American Law, Mark Tushnet, American Journal of Legal History (1977).

→ Ellen A. Peters, “Grant Gilmore and the Illusion of Certainty,” Yale Law Journal (1982)

2010 State of the Union Address
2010 State of the Union Address
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FAN 44 (First Amendment News) Citizens United: it was 5 years ago today — 13 First Amendment lawyers & scholars offer differing views

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” [President Obama] said of the Citizens United v. Federal Election Commission decision, which allowed corporations to donate to political candidates. Justice Samuel Alito then shook his head and whispered, “not true.” — Tessa Berenson, Time (2015)

On this day five years ago the Supreme Court, by a 5-4 vote, handed down its decision in Citizens United v. Federal Election Commission (transcripts here and here & audio file — argument and re-argumament —  here).

As you will see, the comments below span a wide rhetorical range. On the one hand, some view Citizens United as “one of the worst decisions in the history of the United States Supreme Court” (Geof Stone), while others argue that the Court in Citizens United “reaffirmed and applied core First Amendment principles” (Joel Gora). See below for the full spectrum of views.   

Speaking of money and speech, the Court now has before it a First Amendment challenge to a panhandling law — Thayer v. City of Worcester (distributed for Conference of Jan. 9, 2015).

Before proceeding to the comments, I thought it might be useful to provide a few hyperlinked historical facts about the case. 

The documentary that prompted the litigation

Hillary: The Movie

The Petitioner

The Lawyer for the Petitioner in the District Court

Three-Judge District Court per curiam opinion here

The Lawyers who argued the case in the Supreme Court 

  1. Theodore B. Olson (argued the cause for the Appellant)
  2. Floyd Abrams (on behalf of Senator Mitch McConnell, as amicus curiae, in support of the Appellant)
  3. Malcolm L. Stewart (Deputy S.G., Department of Justice, argued the cause for the Appellee)
  4. Elena Kagan (Solicitor General, Department of Justice, reargued the cause for the Appellee)
  5. Seth P. Waxman (on behalf of Senators John McCain et al. as amici curiae in support of the Appellee)

Five Years Later — Lawyers & Scholars Offer Comments 

Floyd Abrams: “Academics, it seems fair to say, are overwhelmingly critical of the Citizens United ruling. If they were irate about  Buckley v. Valeo (1976) — formerly their consensus choice as the worst Supreme Court ruling since Dred Scott (1856) — they are apoplectic about Citizens United.  At the core of the both rulings is the now familiar proposition first uttered by the Supreme Court in Buckley  and repeated with approval in Citizens United that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” If one accepts that notion, as I do, the ruling in Citizens United follows naturally and a documentary-like movie that castigated Hillary Clinton when she last sought the presidency must be protected by the First Amendment. If one does not, one naturally enough can join the four Citizens United dissenters in concluding that it is constitutional to impose criminal penalties for the airing of that film on television. For me, that was not a difficult choice five years ago and it is not one today.”

See here re brief filed by Mr. Abrams in Citizens United; see also his “Citizens United and Its Critics,” Yale L.J. Online (2010)

Mr. Jan W. Baran

Mr. Jan W. Baran

Jan W. Baran: “The Court was correct to protect political speech by all citizens and groups, including corporations and unions. Current so-called reform efforts, including proposals to amend the Constitution, prove that the First Amendment is all that stands between political freedom and government control of speech. Contrary to President Obama’s dire predictions, corporations are not distorting political debate and foreign money (which is illegal) has not flooded campaigns. It is the Obama re-election committee that became the first campaign to raise and spend $1 billion.  So much for campaign money distorting the system.”

 See here re brief filed by Mr. Baran in Citizens United.

Robert Corn-Revere: “Citizens United is like a political Rorschach Test. But when divorced from its many critics’ policy preferences, it is a pretty straightforward First Amendment case that concludes there are constitutional difficulties with making political speech a federal crime.  And, along the way, the Court reached a number of important (and usually overlooked) constitutional findings. One key conclusion is that “[w]e must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” The Court observed that “[t]he Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.” This fundamental constitutional principle is increasingly important as we witness seismic changes in the global media environment. And it is just one of several important pillars of the case.”

Number of articles about Citizens United in the 27 months following the decision 

New York Times         1100

Washington Post        327

USA Today                  220

Wall Street Journal    195

 This count includes columns and opinion pieces but not blog posts.

 Source: Douglas Spencer & Abby Wood, Indiana L. J. (2014)

Allen Dickerson: “Citizens United has become a symbol onto which politicians and commentators project their own hopes, agendas, and insecurities. But cutting through the rhetoric, the case asked a simple question: on what principled basis could the government ban a nonprofit’s documentary while permitting corporate newspaper endorsements? The Court, correctly, said ‘none.’ Nevertheless, legislatures and regulators continue to draw distinctions between different types of speech, and different types of speakers, and the result is a level of bureaucratic complexity average Americans cannot hope to navigate. Five years after Citizens United showed us our error, burdened by a national debate that yields more heat than light, we continue to avoid the difficult task of reforming that troubling approach to political engagement.”

Professor Joel Gora

Professor Joel Gora

Joel Gora: “The Supreme Court’s Citizens United decision was a landmark of political freedom. By striking down government bans on political speech by labor unions, corporations and non-profit organizations, the Court reaffirmed and applied core First Amendment principles. These include the concepts that protecting political speech against government censorship is at the core of the First Amendment’s mission, that the government cannot be empowered to decide which people or groups can speak about government and politics, what they can say, or how much they can say, and that democracy requires as much information as possible from diverse and antagonistic sources.”

“Embodying these principles, the Citizens United decision has had a number of salutary consequences. It has provided doctrinal support for further easing of campaign finance limits on political speech and association.  Second, the rejection of such limits has turned attention properly to more positive efforts to address our admitted campaign finance system difficulties. Finally, although the predicted tsunami of corporate spending “drowning our democracy” never materialized, the Court’s decision has helped spark an increase in overall political funding which has helped make our elections more competitive and the electorate better informed. All in all, I submit, a good day’s work for political freedom and democracy.”

 See here re brief coauthored by Professor Gora in Citizens United.

Richard Hasen: “After five years, it has become clear that Citizens United is only part of the problem. If the Court reversed it tomorrow (something I am not expecting), we would still have Super PACs funded by very wealthy individuals, loads of undisclosed money coming through 501(c)(4)’s and other organizations, and an increased ability for those with economic power to transform it into political power. It is time to rethink first principles — which is my current book project. Stay tuned.”

→ See Professor Hasen’s Legislation, Statutory Interpretation, and Election Law (ch. 13, 2014) re his comments on Citizens United

Forthcoming Book

Elizabeth Price Foley, Defending Citizens United: How Campaign Finance Laws Restrict Free Speech (Praeger, Oct. 31, 2015)

Alan Morrison: “The fight with the Court over Citizens United should not be over whether corporations have rights to make political expenditures, but whether the Court’s ruling in Buckley v. Valeo (1976) that there can be no limits on independent expenditures and that there are no constitutional or other values that can even be considered in assessing that ruling. Here are some examples.  The pre-Buckley decision in United States v. O’Brien (1968), recognized that the right to political protest could be overcome by the Government’s interest in enforcing its selective service laws. In Burson v. Freeman (1992), the Court upheld a law prohibiting the core political activities of soliciting votes and distributing of campaign materials within 100 feet of a polling place.  And cases like Ward v. Rock Against Racism (1989), would surely support an ordinance that banned sound trucks from blaring at more than 100 decibels at midnight.  Post Citizens United, the Court summarily upheld the law that bans all contributions and independent expenditures solely because the plaintiffs were neither U.S. citizens nor permanent resident aliens.  Bluman v. FEC (2012). (See also here.)”

 See here re brief coauthored by Mr. Morrison in Citizens United.

Professor Tamara Piety

Professor Tamara Piety

Tamara Piety: “Citizens United legitimated the notion that corporations (and capital) are embattled, “disfavored” speakers entitled to the special solicitude of the courts’ counter-majoritarian power, as if they were a discrete and insular minority which lacked access to the political process, rather than a force that is very nearly constituent of it. It relies on an implied (and specious) syllogism: if discrimination against people is bad, and corporations are people, then “discriminating” between corporations and natural persons, or between types of corporations, is likewise bad. This reasoning animates Hobby Lobby (2014) and is echoed in Sorrell v. IMS Health (2011), with “marketing” standing in for “corporation” and “speech” for “people.” This line of argument has destabilized much corporate and regulatory law.  For its proponents, Citizens United has been fabulously successful; but that success has come at some political cost. Citizens United has tarnished the Court’s public image. It seems likely that the decision will be cut back, but how and from which direction is difficult to predict.”

→ See Professor Piety’s Brandishing the First Amendment (2012) re her comments on Citizens United

Ilya Shapiro: “Citizens United is one of the most misunderstood high-profile cases ever and it’s both more and less important than you might think. It’s more important because it revealed the unworkability of our current system of campaign regulation. It’s less important because it doesn’t stand for half of what many people say it does. By removing limits on independent associational speech—spending on political advertising by people unconnected to candidates and parties—it weakened the government’s control of who can speak, how much, and on what subject. That’s a good thing. After all, people don’t lose their rights when they get together, whether it be in unions, non-profit advocacy groups, private clubs, for-profit enterprises, or any other form.”

 See here re brief coauthored by Mr. Shapiro in Citizens United; see also his op-ed “Citizens United Misunderstood, USA Today, Jan. 20, 2015

Professor Geoffrey Stone

Professor Geoffrey Stone

Geoffrey Stone: “Citizens United may well turn out to be one of the worst decisions in the history of the United States Supreme Court. As Oliver Wendell Holmes recognized almost a century ago, the American political system depends upon the reasonable functioning of the “marketplace of ideas.” It has always been clear that that “marketplace” is imperfect. But until now, it was generally able to reflect the views of the majority of the American people. With its decision in Citizens United, the Supreme Court has unleashed forces that seriously threaten to corrupt and distort that “marketplace” in ways that stand the First Amendment on its head and endanger the future of American democracy.”

See Professor Stone’s article “Citizens United & Conservative Judicial Activism,” U. Ill. L. Rev. (2012)

Nadine Strossen: “From President Obama,  in his  State of the Union Address the following week, to major media outlets, the vast majority of Citizens United’s critics misstate its holdings. Almost never mentioned are the crucial facts that it protects the rights of non-profit corporations and unions to spend their own money on their own messages; too often asserted is the falsehood that it permits wealthy for-profit corporations (or anyone, for that matter) to make unlimited contributions to candidates’ campaigns.”

See here re Professor Strossen’s comments on Citizens United

Fred Wertheimer: “The ideologically driven Citizens United decision has left the nation’s campaign finance and political system in shambles. It is one of the worst Supreme Court decisions ever made. The Court ignored the country’s history, its own jurisprudence and the need to protect America’s system of representative government against corruption – a need recognized by the Founding Fathers. Citizens United will not stand the test of time. It will end up in the dustbin of history.”

 See here re brief coauthored by Mr. Wertheimer in Citizens United.

Larry Tribe on Citizens United

Forthcoming: The working title is “Dividing Citizens United: The Case v. The Controversy.” The piece will appear in Constitutional Commentary.

Adam Winkler: “Citizens United is one of the most controversial Supreme Court decisions in a generation. Yet the decision is widely misunderstood by the public. From Occupy Wall Street to the White House, Citizens United has inspired critics who insist that corporations are not people. Yet the Supreme Court did not rely on corporate personhood in Citizens United. Justice Anthony Kennedy’s majority opinion never refers to corporations as people and nothing in the reasoning of the opinion turns on personhood. Justice Kennedy instead insists corporations are “associations of citizens” whose rights derive from the natural people who make up the firm. This is a problematic formulation that hides the corporation and allows the Court to avoid asking hard questions about what rights corporations as such should have. Justice Kennedy’s approach equates a business corporation with a voluntary membership organization like the NAACP, both equally entitled to assert the rights of its members.”

“Corporations are people under corporate law. That was their original purpose. And corporations must have some constitutional rights, such as the right to property and due process. Yet they shouldn’t have all the same rights as people, such as the right to vote or hold office. Constitutional doctrine would be improved if instead of hiding the corporation, we recognized that corporations are indeed people — and then asked which rights these corporate people ought to have.”

See here re Professor Winkler’s “Three Misconceptions in Citizens United

__________________

Event: Citizens United v. FEC after Five Years Read More

Posner
10

Afterword: Posner at 75 – “It’s My Job”

Take him for all and all. William Shakespeare (circa 1600)

I live on my own credit. Friedrich Nietzsche (1888)

I believe in cremation. No tombstone for me. – Richard Posner (2013)

This is twelfth and final installment in the Posner on Posner series. (Note: some of the hyperlinks below may open in Firefox or Chrome but not in Safari.)

His temperament: largely solitary and characteristically confident. His manner: often distant and frequently detached. His character: habitually unconventional. He seems indifferent to creeds and causes. And he can be steel-like — cold, calculating, and controlling. Then again, catch him at the right part of the day, at the right tick of  the clock, and with the right circle of people and he can be witty and lively in his own unique way.

In all of these respects and others, one soon enough senses the obvious: Richard Posner is different. Nothing pejorative here, just descriptive. Besides, it has been a feature of his persona for so long as to have become his trademark. While there have been a few modifications of his views over the decades, the man himself has remained basically the same, though he may (?) have mellowed a bit. That said, Posner is ever the maverick; that is his calling card to the world.

The more we learn of him, the more he defies the norm of how most people think about most judges. Though we already know much about the public work of this jurist, there is still much to learn about the man himself — his inner thoughts, his private communications, and his personal traits. The biographical story is, after all, the most revealing of all stories.

The Boxer

Richard Posner turned 75 earlier this year (on January 11th – the same date of William James’ birth). The New York born jurist is in good health and exercises regularly: “A great deal,” he told me. “It’s my principal non-working activity.” When not reading or writing, he expends his energy on an elliptical trainer and does balance exercises. “I have an elliptical trainer at home and also do a lot of walking outside,” he adds. He takes heart-pumping walks inside, too, and is known for climbing “the stairs to his office on the 27th floor of the Everett M. Dirksen Federal Building in Chicago.”

UnknownTo look at his fit frame one might guess that he exercises. And like all else in his life – be it mental or physical – Posner takes such matters seriously. “I have a personal trainer twice a week. He puts me through all sorts of strenuous exercises, including push-ups and pull-ups.” And then there is “boxing with a sixty-pound hanging leather punching bag (not a live person).”

Though he dislikes professional boxing, he sure loves to box . . . with a boxing bag, that is. He pounds away with his Everlast gloves landing blow after body blow at this stuffed specimen of a man. It is all part of his private workout regimen in the basement of his trainer’s quarters. “I had [a punching bag] of my own,” he says, “but I had to give it away because it upset the cat [the famed Pixie]. The bag was suspended from a steel frame that, because of the unevenness of the floor in the only room in which the contraption fit, rattled disconcertingly.” So he took his pounding elsewhere. And why this form of exercise? “My doctor says that boxing is excellent exercise,” he adds.

The boxing image fits – well, sort of. On the one hand, Richard Posner is a natural born boxer given all the cerebral bouts he has been in over the years – and he still returns to that ring time and again like a resilient Rocky Balboa. On the other hand, Richard Posner is too brainy / too soft mannered / and too genteel to engage in the real sport. Besides, he’s too pragmatic to like such a brutal sport: “I worry about brain damage to professional boxers,” he tells me.

Mix his cerebral and physical sides and what do you have? Quite simply, a man who likes to punch but doesn’t like boxing; a man who savors the sport of dialogic give-and-take but disdains the mano a mano reality of the ring; and a man who, at 75, is determined to remain mentally and physically fit, if only to force the Grim Reaper to go several extra rounds.

Holmes & Posner: Similar Yet Very Different

Justice Holmes

Justice Holmes

Sometimes comparisons are made between Oliver Wendell Holmes and Richard Posner. And Holmes is the jurist Posner most respects – that “most illustrious figure in the history of American law” is how he described him in the book Posner edited of the great Justice’s works. However true such comparisons might be, it is useful to consider how the two jurists were situated at the same points in their lives. To do that, one must turn the biographical clocks back and then forward.

* * * *

1916 was a good year, a very good one for Justice Holmes. That said, he penned no great opinions or scholarly works and gave no significant speeches that year. And yet it was a memorable year. Why? Because that was the year that Holmes turned 75 on March 8th. Four events occurred that year that made it a special one in the jurist’s life.

First, there was the small dinner party that his wife Fanny had arranged. It was a modest affair: a few friends (all accomplished men), some good food and drink, and birthday well wishes to cap it all off. As the guests left, the tall and tired jurist headed towards his library when he suddenly heard strange sounds – the sounds of birds, many of them. What could it be? He went downstairs to find out. Much to his surprise, and there beyond the parlor, was young group of admirers tooting away with bird callers in his birthday honor. All Fanny’s doing, of course. There was “much laughter and jaw,” recalled Holmes, “until after midnight.” One of celebrants went so far as to write “some very pretty verses,” which touched the white-haired Justice. By the time the parting hour arrived, Holmes was quite content: “Altogether it was very charming.”

UnknownSecond, there was the Harvard Law Review festschrift (29 Harv. L. Rev. 565) that Felix Frankfurter had organized. Now OWH was being publicly honored, and in print. And what an esteemed group of men: Professors Felix Frankfurter and Frederick Pollock, Deans Roscoe Pound and John Henry Wigmore, Judge Learned Hand, and Morris Cohen, the philosopher. Writing to Frankfurter in April of 1916, Holmes expressed his appreciation: “Very few things in life have given me such pleasure.”

Third, in June of 1916 the Senate confirmed Louis Brandeis. Once confirmed, Holmes opined that Brandeis “will make a good judge.” And so he sent him a very short telegram: “WELCOME.” It was the beginning of a judicial friendship that would help buttress Holmes’ fame . . . even at 75.

And finally, that was the year that Holmes met Harold Laski, a young British political theorist who would also have a hand in shaping the future of Holmes’ thought.

Of course, Holmes lived another 15 years, during which time he solidified his reputation and further secured his position in the gallery of great jurists. In the years following his 1916 birthday, Holmes wrote memorable opinions (majority and separate) in cases such as: Hammer v. Dagenhart (1918), Schenck v. United States (1919), Abrams v. United States (1919), Silverthorne Lumber Co. v. United States (1920), Adkins v. Children’s Hospital (1923), Gitlow v. New York (1925), United States v. Schwimmer (1929), and Baldwin v. Missouri (1930).

* * * *

Holmes savored the shared life; Posner bears it. Holmes socialized, Posner exercises. As for birthday celebrations and the like, RP has no time and little patience for such flattery: “I don’t like celebrations or parties” he says with icy certitude. At 75, there were no festschrifts for Posner (though an issue of the University of Chicago Law Review commemorated his 25 years on the bench – notably, the issue contained several critical essays). And no Louis Brandeis or Harold Laski is likely to influence his cerebral course (though in earlier years he had Aaron Director, George Stigler, and Gary Becker, who all helped to shape his thoughts). And so, when his life clock turned 75, it came and went sans any surprises . . . and that’s the way he likes it.

Screen Shot 2015-01-02 at 10.57.57 AMBy three score and fifteen, Posner, like Holmes, has accomplished much. Notably, he has written more (far more) than the famed jurist, and Posner’s Economic Analysis of Law may well have as much influence and staying power as Holmes’s The Common Law. And in his finer opinions, Posner displays “a fierce intellectual curiosity, a genuine engagement with ideas, an eagerness to cut through the legal babble to get to the core of the issue,” says Professor Geoffrey Stone, “and an evident delight in occasionally reaching results that startle admirers and critics alike” — all exceptional traits for a sitting federal appellate judge.

While Judge Posner has no single opinion that is likely to be as memorable as Holmes’s Lochner dissent (he is, after all, a circuit judge, not a Justice), the cumulative impact of Posner’s many writings (both on and off the bench) has certainly left a significant imprint on American law. Even so, the question remains: Will he prove to be like Holmes and further solidify his fame, or has he already reached the pinnacle of his career in law and letters?

Methodology Matters

Judicial greatness is often in the eye of the beholder. Many of the standards adopted for determining the greatness of a judge are designed to ensure the selection of particular judges or to favor judges who reach certain substantive outcomes. For example, in suggesting creativity, intelligence, and frequency of citation as plausible yardsticks for measuring judicial greatness, Judge Richard Posner has largely settled on standards that reflect best on himself. — Michael J. Gerhardt (1995) 

Though he cares not about reputation or greatness when it comes to his own record (or so he likes to say), he does like to fish in such waters – only witness his book Cardozo: A Study in Reputation (1990) and his 1994 Yale Law Journal review essay of Gerald Gunther’s biography of Learned Hand (the review is titled “The Hand Biography and the Question of Judicial Greatness”). In both works Posner went to great lengths to formulate criteria for measuring judicial reputation and/or greatness. Though it is hard to imagine that the idea did not occur to him, Professor Gerhardt’s point is surely true – Posner does rather well by Posnerian criteria. (See Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991.)

Whatever the methodology of measuring judicial greatness, the sheer volume and diversity of the Posner corpus of writings render the evaluative biographical task rather daunting. It is a brute biographical fact: The Posnerian tentacles are too numerous and reach too far for any single work by a lone biographer to grapple with authoritatively. To further the biographical process along, some exacting scholarly work would have to be done by several experts who could evaluate Posner’s take on a given field of the law (see e.g. here). Those areas would include:

  • administrative law
  • animal rights (see here & here for RP’s views)
  • antitrust
  • arbitration
  • bankruptcy
  • civil procedure
  • constitutional law
  • contracts
  • corporate law
  • criminal procedure
  • federal courts
  • habeas corpus
  • insurance
  • intellectual property
  • jurisprudence
  • labor law
  • prisoners’ rights
  • securities law
  • taxation
  • telecommunications law, and
  • women’s rights

By the same measure, there would also need to be experts in economics and various areas of the humanities. Posner’s writing style would have to be studied as well (on this count Mr. Domnarski has already done much, and ably so, and will do more in his forthcoming biography of the Judge). Then there is Posner’s view of judging.

Judges are not umpires, calling balls and strikes.Richard Posner (1995)

My job is to call balls and strikesJohn Roberts (2005)

Additionally, there would have to be some allowance for a probing study the man himself — the persona of Richard Posner. After all that, someone would have to step back and compile a comprehensive overview in order to put things in full biographical perspective. (Such a work might be along the lines of one of the books in the Cambridge Companion series.)

And yet more is needed: If it were to be rigorously true to its subject, any intellectual-biographical portrait of Richard Posner would include, but could not be limited to, some tabulation of how other courts and scholars have referenced him – not just the number, but also the nature of the citations. Beyond the citation count, there is this question: If one were to map out the effects, if any, of Posnerian thinking over time, what would they show? Not just the economic effects, but also the jurisprudential, political, social, psychological, environmental, and human (as in humane) effects? If his reputational footprint were to prove as immense as his publication record, what would what future generations think of a Posnerian social order?

Masked Man Read More

Posner
14

The Promethean Posner – An Interview with the Judge’s Biographer

When one considers that the appellate judge is the central figure in Anglo-American jurisprudence, the dearth of evaluative writing on individual judges that is at once systematic, nonpolitical, and nonpolemical is remarkable. Richard Posner (1990)

This is the eleventh and next-to-last  installment in the Posner on Posner series.

William Domnarski is the author of a forthcoming biography of Judge Richard Posner. The table of contents for that biography is set out at the end of this post.  

Mr. Domnarski is a California-based lawyer who both practices law and teaches English. He is the author of four books:

  1. Swimming in Deep Water: Lawyers, Judges & Our Troubled Legal Profession (American Bar Association, 2014) (See here re Judge Richard Kopf’s comments on this book) 
  2. Federal Judges Revealed (Oxford University Press, 2009)
  3. The Great Justices: 1941-54 — Black, Douglas, Frankfurter and Jackson (University of Michigan Press, 2009)
  4. In the Opinion of the Court (University of Illinois Press, 1996)

Mr. Domnarski has likewise authored many scholarly articles (on law and also on literary criticism), including an article titled “The Correspondence of Henry Friendly and Richard A. Posner 1982-86.” In the Posnerian spirit, in 2012 he published a New York Times op-ed titled “Judges Should Write Their Own Opinions.”

William Domnarski has been a lawyer and legal writer for 30 years. He is the author of three previous books on federal judges, as well as a book on the nature of practicing law. He has a JD from the University of Connecticut School of Law and a Ph.D. in English from the University of California, Riverside. (Publisher’s statement)

Note: Some of the links below will open in Firefox or Chrome but not in Safari.

Question: How did you first come to know Richard Posner?

William Domnarski

William Domnarski

Domnarski: It was through some correspondence in the late 1980s on Tom Wolfe’s Bonfire of the Vanities (1987). I challenged his 1988 Yale Law Journal review essay concerning the novel; he was gracious enough to concede that there was something to my point. A correspondence over the years then ensued.

Question: You have written about Judge Posner before. Tell our readers a little bit about that.

Domnarski: In 1996 I wrote a book on judicial opinions that featured a lengthy chapter on Posner’s opinions. In that chapter I argued that he was writing opinions the likes of which we had never seen before. In that regard, a few years ago I was delighted to find at the Harvard Law School a 1983 letter from Henry Friendly to Posner (they corresponded during the last four years of Friendly’s life) in which Friendly wrote essentially the same thing to Posner, this as part of his assessment that Posner was the greatest appellate judge of his generation.

It was from Judge Friendly . . . that Posner learned the surprising truth that Holmes was wrong when he said that you can live greatly in the law. . . . With judging, Posner feels, you cannot know enough about one thing. The knowledge is too much on the surface because so much is required. To live greatly as an intellectual contributor, Posner has determined that he must go beyond law. William Domnarski (1996)

Question: Oxford University Press is publishing your forthcoming biography (with David McBride as your editor). Had you submitted the book elsewhere or did you go to Oxford because you had published with that house before?

Domnarski: I had a contractual obligation to go to Oxford first with my proposal because it had published my last book. That said, I would gone there anyway because Oxford is so good at what it does.

Question: How long will your biography be?

Domnarski: It will probably be a happy medium, around 125 thousand words [RC: Oxford lists it at 336 pages]. Long books turn most readers off, and a short book just wouldn’t let me cover all that I need to cover.

Question: When is it scheduled for publication?

Domnarski: It should be available sometime during the Spring-Summer of 2015.

Question: What kind of response did you get from the people you were able to interview?

Answer: First of all, almost everyone, wanted to talk to me. There were only three or four people who took a pass, one rather huffily. Nearly everyone I contacted long thought that there was something special about him. It was as though they knew that they would be asked about Posner sometime in the future.

Question: Did you interview any sitting Justices?

Domnarski: In an earlier book, I interviewed Justice Antonin Scalia and then Judge Stephen Breyer about Posner. Thereafter, I met once with Justice Breyer at the Supreme Court, this when I was thinking about taking the Posner biography on as a project.

Question: There was a wide conceptual gap between the thought of the late Ronald Dworkin (1931-2013) and that of the Judge. Did you have an opportunity to interview Professor Dworkin? If so, what can you tell us about that?

Domnarski: I suspect Dworkin would have been willing to talk (only a few have declined), but he was ill when I wrote to him. Thus, I did not get a chance to interview him. I did, nonetheless, talk with some people close to Dworkin. They provided me with some information and insight about how Dworkin responded to Posner when they famously clashed (helmets flashing) at a 1979 conference on the issue of wealth maximization. [RC: See Guido Calabresi, “An Exchange: About Law and Economics: A Letter to Ronald Dworkin“]

Question: What individual(s), living or dead, do you think has had the greatest impact on the Judge’s thinking? And why?

Domnarski: Three great economists come to mind – Aaron Director, George Stigler, and Gary Becker. From them Posner learned economic analysis and the way that it can illuminate the connections, large and small, between economics and the way we live.

Publisher’s Blurb

Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. 

THE CHALLENGES OF WRITING POSNER’S BIOGRAPHY

Question: What was the biggest challenge in doing this biography?

Domnarski: The easy answer is the staggering amount of paper I had to push through. I have been on Posner’s slip opinion mailing list (now sent via e-mail) since the late 1980s. I read the opinions as they came out, but once I took on the project I had to read them all over again, this time annotating them – there are some three thousand of them. Then there are the dozens of books and the hundreds of articles. But that wasn’t the hardest part. The hardest part was the ongoing challenge of trying to figure out what mattered in Posner’s career and how I could make that matter to my readers.

Judicial biography is one of the most difficult genres in which to write. Few, if any, writers meet the challenges that the genre presents. In Posner’s case, you are essentially writing a book about someone who sits at a desk and reads and writes. It’s all a judgment call, I guess, about what one thinks matters most. The hope is that one will have answered all or most of the questions the reader will have, and this in an appealing and intelligible way.

Question: What has it been like to work with the Judge in writing this biography? Have there been any awkward moments?

Domnarski: He’s been a prince about cooperating with me. The book is not, however, an authorized biography, by which I mean that I have no obligations to Posner and he has no right to review the manuscript or to insist on changes.

The Judge agreed to give me complete access to his archive at the University of Chicago Regenstein Library. He also agreed to sit for recorded interviews, and to answer any questions I might e-mail him. On that score, I would sometimes send e-mails at eleven or twelve in the evening (California time) and get an immediate response. He also took me through three boxes of childhood memorabilia, including baby pictures and the report cards.

The only moments that could possibly come close to being awkward were a few times when I relayed or just mentioned a story someone told me (I interviewed people dating back to his grade school years). Sometimes he remembered the story differently or said that what I had been told did not happen. Of course, that is not unusual as any biographer knows.

Question:

  1. Given the complexity of his character, the volume of his work, and nature of his jurisprudence, how did you go about juggling all those biographical balls while at the same time moving your narrative along?
  1. How analytical will your biography be? That is, are there any extended critiques (by you or others) of his opinions and jurisprudence generally, or is your book largely descriptive?

Domnarski:

  1. It was easy enough to write separate chapters on Posner’s early years, such as chapters taking him through high school and then through college at Yale and law school at Harvard. And it was also easy grouping together Posner’s various Washington jobs and then writing a separate and fairly long chapter on his full-time teaching years at Chicago. The hard part was dealing with all those opinions and all those books and articles once he went onto the bench. I’ve tried to move the narrative forward by dividing the mass of work by decades and following different themes and threads in each decade so that the reader always has something fresh.
  1. I analyze why his opinions are special and try to pinpoint his contributions to the law by looking at the way his opinions have been used by other circuit court judges. I also track how the Supreme Court has responded to his opinions when they were reviewed by the High Court. This is as part of my broader interest in tracking a kind of marketplace response to his jurisprudence. I do the same with his many books. I don’t argue, though, that he is the most influential judge of his time or that he is the most respected. I take these points as givens and try to explain how and why his reputation is what it is. Put differently, I have tried to avoid jurisprudential analyses that I think weigh down other judicial biographies.

Question: The last major biography of a federal court of appeals judge was David Dorsen’s Henry Friendly, Greatest Judge of His Era (2012), also a practicing lawyer-authored biography. What was your sense of that biography and how does it differ in form and style from the one you are doing of Judge Posner?

Domnarski: For all of its strengths, the Dorsen book left me wanting because I wanted to hear more about Judge Friendly from people who knew him at various stages of his life. That’s the difficulty with writing about someone who is so far in our past such as Friendly, who died in 1986 – like him, his contemporaries have all passed.

There are, to be sure, inherent problems in writing about a subject based in part on information gathered in interviews in the same way that there are inherent problems in interviewing a subject to gather information. But from the point of view of being able to make the subject come alive for the reader, this kind of information is first tier, nearly equal I’d say to what the subject writes in private correspondence. (in that respect, I had access to Posner’s many letters by way of his Chicago archive.)

THE “BRASH YOUNG MAN” Read More