Category: History of Law


John Bingham–The Man

Another interesting discovery in Cadiz was a recollection by William Lucas, who was a prominent African-American in the town (he was the municipal clerk for thirty years).  I think this gives us a taste of Bingham’s personality:

“It was my fortune to know Mr. Bingham intimately from my boyhood days.  Being a poor colored boy, I entered his family when about 17, and remained to do family chores and errands while attending the leading public schools—from 1867 to 1872.

From the first Mr. Bingham took a personal interest in me and assisted me much in my efforts to pass through schools here.  . . . In 1872 I graduated, and to rest up from school work I took a trip to Richmond Virginia to visit relatives there.

During this summer Mr. Bingham received his appointment to Japan, and now to show his deep interest in a poor unknown colored boy!  He was in need of a private secretary to accompany him to Japan.  No sooner did he arrive at his home after receiving his appointment; then he sought me out to take the position.  He came himself down to my mother’s house to offer me the place.  When he learned that I was away, he was quite insistent that I should go with him and asked mother to give him my address that he might send for me to come home at once.  My mother, in her ignorance supposed Japan, of which she had never heard, was somewhere clear outside of the world, and fearing I might go, and never return to her again, refused to give him the proper address or to inform me of the offer till it was too late, and so I lost the opportunity which I have many a time since sincerely regretted.  But I have never ceased to appreciate the friendly interest of Mr. Bingham as shown on that occasion.  That he in the zenith of his fame, should remember the errand boy at home and offer him a position of trust.”

Lucas then recalled another encounter with Bingham almost twenty-five years later:

“[M]y oldest son Fred, by accident fell from the roof of a house, sustaining injuries that, for many days, were thought to be fatal.  Day after day, we sat in hourly expectancy for that grim messenger to make his appearance.  During one of these dark sad days, I met Mr. Bingham on the street, who having heard of the accident, stopped me and said, ‘William Henry,” the name he always called me by, “How is Fred?”  When I had told him of his precarious condition, he said “Well, that is too bad.  You tell Fred that I am coming down to see him.”  He was then walking feebly with his cane himself and I hardly expected him to come down so far.  But that same evening I heard the tap of his cane on the porch.  Opening the door there was Mr. Bingham, who came in and sat down by the bedside of my sick boy.  It was a moment of surpassing interest.  Here was a great man who had thrilled the nation with his eloquence and whose statesmanship had won imperishable and lasting renown, sitting by what seemed to be the bedside of a poor dying colored boy; and with voice trembling with emotion and eyes dimmed with tears, he talked of the nearness of eternity and the kind love of the Heavenly Father, as tenderly as a mother would comfort her sick child.  And on going to leave, in bidding him good bye he said, chokingly with emotion, “Fred, in our Father’s house there are many mansions, we shall meet again.”

Toast by W.H. Lucas, Bingham Banquet, Oct. 5, 1901 (Harrison County Historical Society)


John Bingham–Grass Roots Organizer

One frustrating thing about my research on John Bingham is that I have not found many new primary sources.  In other words, I’ve gone through all of the known materials and am trying to track down the missing ones (I’ll say more next week about what might be in them), but I have not located much that was unknown.  There is, however, one significant exception.

What follows is an excerpt of a letter from Bingham to Salmon P. Chase written in 1845, when Bingham was a private lawyer in Ohio.  I think that this letter has not been quoted until now:


“I think I may safely vouch for Liberty men generally in this vicinity, that your views and suggestions are fully approved.  We try to be as active as possible, in efforts to advance the cause, though we labor under many discouragements.  The counties of Scioto, Lawrence, Jackson, Gallia, and Meigs, are collectively, perhaps as inveterately Proslavery, as the same number of contiguous counties any where else in the State.  If there be any portion of the Ohio field demanding a greater share of anti-slavery Labor than any other, it would seem that these central frontier counties embrace that portion, and yet . . . have been wholly neglected.  Not a single Lecturer, document, or even extra newspaper has ever, to my knowledge, been sent into either of these counties, or any other kind of labor bestowed under the State Society’s patronage.  We have felt entirely neglected, and not a little surprised that the Committee should have found time to . . . direct three copies of their circular to the Post Office at Pine Grove.  For myself, hoping against hope I almost felt like hailing the circumstance as the harbinger of better days.  . . . . [T]he sending of Lecturers and printed documents into any part of the field where Liberty men are too few, or too poor to pay the expense, . . . seems to me imperative.  No doubt an immense amount of good might be done here, just in this very neighborhood, by the single week’s labor of a good Speaker . . . Being 10 miles from Gallipolis, back from the river, just far enough from that miserable pro-slavery atmosphere to be able to take breath without the danger of suffocation, and by dint of effort, obtained an under-current in our favor if we can . . . make a demonstration here, the influence will be seen and felt throughout the five counties . . . I pray you if possible, send us a laborer for a short time this fall, one who has a missionary spirit, whose heart and soul is in the cause; who will be willing to address small meetings or large ones, who will go from neighborhood to neighborhood, from one appointment to another . . . until this half-dead community shall begin to wake up and show signs of life . . .

It is all a mistake, that nothing can be done . . . in the large, wealthy, and populous portions of the State.  There people are entirely too fashionable—and it is just as different to get them to lay aside fashionable politics, as the fashionable . . . coat, or frock, or pair of breeches.  In the country we [are] not so accustomed to ape the fashions of the great, and considerations founded on moral truth and patriotism have more easy access to the heart and conscience, and produce more corresponding action.”


Bingham was 30 when he wrote this, and what’s striking to me is how similar it sounds to what any civil rights lawyer in any age might say.  Next week I’ll be in Cadiz (Bingham’s home for most of his life), and I’ll post from there if I find anything worthwhile in the local archives.


UCLA Law Review Vol. 58, Issue 3 (February 2011)

Volume 58, Issue 3 (February 2011)


Good Faith and Law Evasion Samuel W. Buell 611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 Katherine Florey 667
The Need for a Research Culture in the Forensic Sciences Jennifer L. Mnookin et al. 725
Commentary on The Need for a Research Culture in the Forensic Sciences Joseph P. Bono 781
Commentary on The Need for a Research Culture in the Forensic Sciences Judge Nancy Gertner 789
Commentary on The Need for a Research Culture in the Forensic Sciences Pierre Margot 795


What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation Samuel M. Kidder 803
Defendant Class Actions and Patent Infringement Litigation Matthew K. K. Sumida 843


Interesting Cases That You’ve Never Heard Of — The Pueblo Indians

Several years ago I wrote an article that examined how the debate over Native American rights, especially the Cherokee Removal, influenced the framers of the Fourteenth Amendment.  The paper also explained there that this component of the original understanding should alter the way that we think about equal protection by introducing the possibility that the regulation of cultural choices, not just immutable traits, could be subjected to heightened scrutiny.  I must admit that I’m disappointed that nobody really picked up on this idea, but I thought I’d talk about one intriguing case that fleshes out the concept somewhat.

In United States v. Joseph, 94 U.S. 614 (1876), the Supreme Court held that the Pueblo Indians of New Mexico were not an Indian Tribe under federal law.  An 1834 statute prohibited anyone, under penalty of a fine, from settling on land secured to a Tribe by a treaty with the Federal Government.  The United States brought an action seeking to fine somebody who took a homestead on Pueblo land. The New Mexico Territorial Supreme Court rejected this action, on the grounds that the Pueblos were civilized and not an Indian Tribe. That court pointed out that the Pueblos lived in villages, were farmers, spoke Spanish, and were Christian.  By contrast, “[w]hen the term Indian is used in our acts of Congress, it means that savage and roaming race of red men given to war and the chase for a living, and wholly ignorant of the pursuits of civilized men.”  Though the Court conceded that the Pueblos could be racially defined as Indians, it explained that this was irrelevant.  Culture was what mattered.

The U.S. Supreme Court unanimously affirmed in an opinion by Justice Miller.  He distinguished the Pueblos from other tribes in the territory acquired during the Mexican-American War, who were incapable of self-government and therefore required “guardian care.” Although the Pueblos held their land in common rather than in fee simple, “they only resemble in this regard the Shakers and other communistic societies in this country, and cannot for that reason be classed with the Indian tribes . . .”.


The Cross of Gold Speech — The Audio Version

I was doing some research to put together a seminar on constitutional law and came across something surprising.  It turns out that William Jennings Bryan recorded his Cross of Gold Speech on a record in the 1920s.  Obviously, this is not the same as hearing the original version in a hall full of people, but it is neat to hear what he sounded like.


Ronald Reagan and Gay Rights

I wanted to follow up on my post on Monday reproducing Ronald Reagan’s 1978 op-ed against Proposition 6 (the “Briggs Amendment”), which would have barred gays from teaching in public schools.

The first thing that struck me was that Reagan linked his opposition to that measure to his opposition to another ballot measure that would have expanded state regulation of smoking.  This libertarian rationale was probably intended to ward off criticism from social conservatives who supported Proposition 6 (and seems to have worked).  (Personally, I agree with most of what the op-ed said about anti-smoking laws–I’m much more of a “live and let live” type in that respect, but that argument has not fared well over the past thirty years.)

Second, his argument against Proposition 6 was based in part on an overbreadth claim, especially with the measure’s language about prohibiting the advocacy of a gay lifestyle.  Reagan correctly pointed out that this could curtail the free speech rights of teachers outside of the classroom (even for straight teachers) and should be rejected on that basis.

Finally, he made the point that sexual orientation is determined very early in life.  He didn’t quite say that it was a inborn trait, but if you say that teachers don’t influence that much then that would imply that it must be set before you start school.

Anyway, the entire op-ed is definitely worth reading.  That’s why I put it up.


George Washington and James Madison

I am working my way through Ron Chernow’s terrific new biography of George Washington.  From a constitutional perspective, it’s interesting to reexamine how the Framers tried to figure out the practices of the new Government in 1789.  For instance, Washington came to the Senate in person a couple of times to complain or ask questions about some items of legislative business.  In effect, he was treating the Senate as the King treated the Privy Council, but quickly abandoned that model.  I was also charmed by the image of Washington going on a fishing trip with Jefferson and Hamilton in 1790. (My nominee for “smartest fishing boat” of all time.)  And I did not know that Washington became gravely ill in 1790 and that John Adams nearly became President then.  (That would have been a disaster.  No matter what David McCullough and Paul Giamatti say, that guy was a ridiculous pain-in-the-neck with almost no political skills.)

My favorite story, though, was that James Madison drafted Washington’s First Inaugural, drafted Congress’s reply to the Inaugural, and drafted Washington’s reply to the reply!  Do you feel lazy now?  I sure do.


Book Review: Newman’s The Yale Biographical Dictionary of American Law

Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (Yale University Press 2009)

The Yale Biographical Dictionary of American Law (The Yale Biographical Dictionary) attempts to “gather together for the first time in a single volume concise yet comprehensive biographical entries on the men and women who . . . are the most significant in the history of American law and have had a lasting impact and influence as judged by contemporaries or by history.”  Introduction, p. xii.

There are numerous entries in The Yale Biographical Dictionary which meet this goal.  The entries for recognized historical figures are sound.  Those for Chief Justice John Marshall,  Justice Louis Brandeis, Justice Felix Frankfurter, and Justice Oliver Wendell Holmes, Jr., for example, are succinct, clear, and accurate.  Flipping through the entries for lesser known historical personages can be revelatory.  The New York trial lawyer Emile Zola Berman, in 1964, successfully defended a 14-year-old African American boy in a rape case in Lafayette, Louisiana.  “They wanted the death penalty.  I was the Jew from New York, and he was a Negro kid.  It was tough, I can tell you.”  p.  41.  Myra Colby Braswell led a public campaign to get Mary Todd Lincoln released from involuntary committal at an insane asylum.  Fanny Holtzmann “persuaded Richard Rodgers and Oscar Hammerstein II to set Anna and the King of Siam to music.”  p. 273.

But while the idea behind The Yale Biographical Dictionary is sound, there are significant flaws in the execution.   As a result of these flaws, The Yale Biographical Dictionary could have been better than it actually is.  The flaws come from three sources: 1) a Yale Law School and law school faculty-centric focus on the biographical subjects; 2) problems in the selection of contributors; and 3) a failure, at times, to grapple with the complexities of the biographical subjects.

Read More


BRIGHT IDEAS: Collins on Justice Holmes and Free Speech

In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr.   Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.

Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books.  Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout.  Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment.  There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.

I recently had a chance to talk with Ron about the book.

SOLOVE: What inspired you to write this book?

COLLINS: Long story.  It began when I was in law school and read Holmes’s 1919 free speech opinions.  And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time.  This was in the 1970s when I was an impressionable law student.  Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book.  That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes.  True, he challenged my mind, and I like that sort of thing even when I disagree with someone.

SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?

COLLINS: There are so many things; Holmes was such a complex man.  Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions.  So, not much surprise there.  I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.

SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?

COLLINS: Hard call.  But here they are, in no special order:

Read More


A Contracts Chestnut for Tort Theorists

Of late I have been reading and thinking about the theory of private law, mostly torts. This is a bit odd as I am generally a “contracts guy” not a “torts guy.” What interests me for now, however, are those features that contract shares with tort, in particular the bilateralism of damages (wrongdoers pay victims) and private standing (the law empowers victims to act against wrongdoers rather than providing third-party enforcement or the like). One of the big debates in this area is between corrective justice theorists — like Ernest Weinrib and Jules Coleman — who see tort law as vindicating a duty compensation and civil recourse theorists — like Ben Zipursky, John Goldberg, and my soon-to-be colleague Jason Solomon — who see tort law as providing a means for victims to act against tortfeasors. I tend to think that the civil recourse folks have the upper hand in this debate. Indeed, I have even offered a modified civil recourse theory of contractual liability based on the dismemberment of goats. It occurs to me that a venerable debate from contract theory might be of use to the torts guys. Read More