Terrett v. Taylor

In a prior post I talked about the Supreme Court’s decision in Terrett v. Taylor, which in a sense was the first federal case that assessed church/state relations. Taylor has many fascinating details, and I thought that I would elaborate.

Virginia, like many other colonies, had an established church. In 1776, Virginia enacted a statute that disestablished its church but maintained that all of the church’s property would remain church property. Twenty plus years later, though, the state enacted a law asserting that the state actually owned the church’s property.

As a private lawyer, Bushrod Washington advised the Church that any revocation of their land grants would be unconstitutional. In part, this was an argument sounding in property rights, but he addressed the thought that letting the church keep its property after its disestablishment violated the Free Exercise Clause of the Virginia Declaration of Rights. Rejecting this claim, he said that the free exercise issue “cut both ways.” (I was surprised to see this phrase because I thought this as a modern expression, but evidently it is not.) Washington pointed out that the free exercise of the church would be adversely impacted by withdrawing property that was important for its financial well-being, though you could also say that the free exercise of other churches was impeded by the special property privileges of the Episcopal Church. He also stated that the statute that secured the church’s property in 1776 possessed a special presumption of constitutionality because it was contemporaneous with the Declaration of Rights.

The Supreme Court, in an opinion by Justice Story, agreed with these conclusions and held the Virginia law taking away the church property unconstitutional. The Court relied on no federal constitutional provision to strike down this law. Instead, Taylor invoked the “great and fundamental principle of  a republican government, the right of citizens to the free enjoyment of their property.” (In short, a natural law justification that would never pass muster today.) Justice Story also opined that the 1776 statute guaranteeing church property did not violate the Virginia Declaration of Rights; an odd position for a federal court to take, though to be fair the distinctions between state and federal authority were not so clear in 1815.

On the latter point, I am leaning in the direction of saying that Washington must have contributed his earlier analysis to Story’s opinion. We’ll see if I can learn more


Trump as Litigator-in-Chief and Other Real World Stories

Donald Trump (credit: Business Insider)

Donald Trump (credit: Business Insider)

Miriam Cherry and I are thrilled to announce release of our new book, CONTRACTS: A REAL WORLD CASEBOOK.  We spent the last decade ripping cases from the headlines to show students how classic cases and principles that seem dusty still control today’s contract disputes they hear about.  Seeing the old and the new together engages students and we hope contracts teachers will consider this book.

We pulled this together after years of bringing contracts in the news into our classrooms, onto this blog, into a Cambridge U paperback and now, formally into a casebook that’s both fresh and familiar.  For example, thanks to our country’s litigator in chief, the litigious Donald Trump, students tomorrow morning can work out how ancient principles on liquidated damages control current events, as Jennifer Taub explains over at Slate.

Trump shows up in our casebook multiple times, though we omitted a few stories I’ve written on his legal foibles simply to avoid too many encounters.  But below is a reprise of one I wrote a few years ago that did make the cut.  In our casebook, we turned this example into a problem and then excerpted the relevant case precedents, such as the Kel Kim case discussed below along with the classics Taylor v. Caldwell and Krell v. Henry.  Skimming it and comparing it what we put in the casebook gives a sense of our process which, above all, was fun, and the students can tell.  Read More


FAN 183 (First Amendment News) Pushback: Seidman’s “Can Free Speech Be Progressive?” article draws critical response

Declining support for unfettered debate among politicians, academics, and the public doesn’t bode well for the future of free speech.  — J.D. Tuccille, March 19, 2018

There’s dissent in the air — from the Left, the Right, and from Libertarian quarters, too. Everybody is getting ever more worked up about free speech in America.

J.D. Tuccille

Donald Trump wants to revive old defamation laws; some on the Left want to amend the First Amendment; some on the Right want the government to regulate violent movies and video games; many college administrators appear determined to abridge the First Amendment; college students gather en masse to silence speech that offends them; First Amendment scholars ask What’s Wrong with the First Amendment?; and Libertarians, well, they can never have enough free-speech freedom.

Make no mistake: the future of the First Amendment hangs in the balance as never before.  This is no “the sky is falling” claim. Rather, it is an observation on our times. No, not like the late 18th century, or WWI, or the McCarthy Era. Not at all. But we are in a state of transition. Take heed: the goal lines are shifting.

Indicative of that shift is a headline over at Reason.com: “Trump’s Anti-Speech Agenda Gets a Boost From Lefty Lawyers and Academics.” Among other things, it is offered up as a sort of reply to something I posted last week: Professor Louis Seidman’s forthcoming Columbia Law Review article titled Can Free Speech Be Progressive?  J.D. Tuccille authored the article. He is a former managing editor of Reason.com and current contributing editor. Here are some excerpts from his article:

  • “We have an environment in which the president of the United States is dismissive of the free speech rights of his opponents, prominent constitutional scholars sniff at free speech unless it’s used by the “right” people for their favored goals, and the country’s leading civil liberties organization is suffering an internal revolt by staffers who oppose “rigid” support for free speech protections.”
  • “[I]f you’re an academic with expertise in constitutional law, and you have months to watch a populist politician who commands the power of the presidency fulminate about punishing those who criticize him, what do you do? If you’re Georgetown Law’s Louis Michael Seidman, you suggest that the president might be on to something.”
  • “In 2016, [Professor Seidman] wrote for the Nation, ‘Would the election of Donald Trump threaten the sanctity of the United States Constitution? We should be so lucky.’ In fact, Seidman has long been an advocate for dumping the Constitution and its protections in their entirety. He just thinks that Trump is the wrong vehicle.”
  • “And Seidman isn’t alone in arguing from academia that free speech is overrated. His paper favorably quotes Laura Weinrib of the University of Chicago Law School, author of The Taming of Free Speech: America’s Civil Liberties Compromise. Weinrib complained in a Los Angeles Times op-ed last summer that “free speech has served to secure the political influence of wealthy donors,” while “labor’s strength has plummeted, and the Supreme Court is poised to recognize a 1st Amendment right of public sector employees to refuse to contribute to union expenses.”
  • “Last fall, about 200 of the [ACLU’s] staff members signed a letter objecting to the groups’ ‘rigid stance’ on the First Amendment. The letter was characterized by former ACLU board member Michael Meyers as ‘a repudiation of free-speech principles.'”
  • “[I]ntolerance has pretty clearly become a dominant theme at colleges, where the likes of Seidman and Weinrib teach that free speech is overrated and important primarily as a tool to be reserved for the right ideas.”

There is more, much more, but you’ll need to read the full article to discover what you missed.

Court Reporters’ assessments of arguments in California abortion-speech law case

Yesterday the Supreme Court heard oral arguments in National Institute of Family and Life Advocates v. Becerra.

Issue: Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the F Fourteenth Amendment.

Facts: This from Amy Howe over at SCOTUSblog: “The California legislature passed the law because it was worried that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options. The act requires nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) to post notices to inform their patients that free or low-cost abortions are available, while centers without such licenses – which try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help.”


  • Michael P. Farris argued on behalf of the Petitioners.
  • Jeffrey B. Wall, Deputy Solicitor General, Department of Justice, argued on behalf of the United States, as amicus curiae, in support of neither party, and
  • Joshua A. Klein, Deputy Solicitor General, California, argued on behalf of the Respondents

Commentators — Consensus: Justices skeptical of constitutionality of California law 

  • Adam Liptak (NYT): “A California law that requires ‘crisis pregnancy centers’ to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday. . . . Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.”
  • David Savage (L.A. Times): “The Supreme Court sounded ready Tuesday to strike down a California disclosure law that requires pregnancy centers — including those that are faith-based — to notify women that the state offers subsidies for abortion. . . . [M]ost of the justices took sharp issue with all or parts of the California law. They said it was unfairly targeted at the faith-based centers. Doctors and for-profit clinics were exempted from the law. . . . Tuesday’s case marked the third time in recent months that the justices weighed a conservative group’s claim that a liberal state law amounts to unconstitutional ‘compelled speech.'”
  • Nina Totenberg (NPR): “Supreme Court justices on both sides of the ideological spectrum expressed skepticism about California’s ‘truth-in-advertising’ law requiring anti-abortion clinics to more fully disclose what they are.”
  • Robert Barnes (Washington Post): “Supreme Court justices on Tuesday indicated that a California law requiring antiabortion pregnancy centers in California to notify women that the state provides free or low-cost health care, contraception services and abortion, could violate free speech rights. . . . [Justice Kennedy’s questions] were almost uniformly hostile to the law, and he was even short with other justices who seemed to defend it.”


EXCERPTS from aruments in California abortion-speech law case Read More


Contract Interpretation 2.0: Not Winner-Take-All But Best-Tool-For-The-Job

In a centuries-old debate among contracts scholars, one group supports a presumption favoring a text-centered approach to the interpretation of a written agreement — the plain meaning taken from the four corners — while opponents urge a broader understanding of context — what the parties intended and the circumstances of their negotiation. The contending positions have so hardened that, in a jarring juxtaposition my new Essay will reveal, recent academic classifications of the same state laws are exactly opposite to each other: contextualists classify certain states as contextualist that textualists say are textualist!

Yet despite the persistence of acute polarization, the author also documents — and applauds — promising trends in the literature toward hybridization and compromise, a search for factors to guide the selection of interpretive tools rather than putting some off limits or setting up default rule presumptions. While scholars have thus long obscured a common-sense reality, a new wave of research is making it clearer to all sides that text and context are both useful, depending on the details of different jobs.

More modern, advanced, and sensible, this new view of contract interpretation replaces a stubborn “winner-take-all” approach to the debate with a flexible and practical “best-tool-for-the-job” approach. To illuminate its importance and value — call it contract interpretation 2.0 — my new Essay turns to Warren Buffett’s contracting philosophy and practices. The famous investor and businessman is also a polyglot teacher, and his approach to contracts, especially acquisition agreements and employment arrangements, illustrates the imperative of using the right tool for the job.


The Hidden Hand

The great mystery of the Marshall Court is how the Justices worked together. Because most of those opinions were unanimous and there are few internal documents available on the Court’s deliberations, scholars often fall back on the thought that the author of any given opinion (usually Chief Justice Marshall or Justice Story) supplied all of the reasoning. In some sense we know that cannot be true, but how to prove that?

In writing about Bushrod Washington, I hope to answer that question. Thus far, I have two clues. One is the Justice’s journal that is in the Chicago History Museum. Here you can find draft opinions for a few Supreme Court cases during the 1820s, and I can use those notes as a basis for comparison with the final product.

The second clue relates to an opinion written by Justice Story (Terrett v. Taylor). Taylor is a very interesting case (I’ll say more about it in another post) that addressed the legality of a Virginia statute that sought to strip the state’s Episcopal Church of its property. The Court’s opinion finding the statute unconstitutional can be compared to an opinion that Washington wrote as a private attorney about the issue in the 1790s. Story’s opinion and Washington’s earlier analysis are quite similar in many passages. I’m not sure yet whether this is a coincidence or indicates that Washington (who knew a lot about the matter) contributed significantly to Story’s draft.

Anyway, it’s another piece of the puzzle. The search for more continues.


John Bingham on C-Span3

This Saturday at 4:50PM, C-Span3 will air my 2013 talk on John Bingham that was hosted by the National Constitution Center. It’s part of a weekend set of special programming on the Civil War and Lincoln.


Vanderbilt Law Review, Volume 71, Number 2

The Vanderbilt Law Review is pleased to announce the publication of our March 2018 issue:


Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018).

Tara Leigh Grove,The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465 (2018).

Thomas W. Merrill, Interpreting an Unamendable Text, 71 Vand. L. Rev. 547 (2018).


Matthew D. Cain, Jill Fish, Steven Davidoff Solomon, & Randall S. Thomas,The Shifting Tides of Merger Litigation, 71 Vand. L. Rev.  (2018).603


Richard Turner Henderson, Sink or Sell: Using Real Estate Purchase Options to Facilitate Coastal Retreat, 71 Vand. L. Rev. 641 (2018).

Alexandra Michelle Ortiz, Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee, 71 Vand. L. Rev. 681 (2018).




FAN 182 (First Amendment News) Can free speech be progressive? Professor Seidman thinks not

Civil liberties once were radical.  Laura Weinrib (2016

The notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. Louis Michael Seidman

Professor Louis Michael Seidman

Can Free Speech Be Progressive? That’s both the question raised and the title of a forthcoming Columbia Law Review article by Professor Louis Seidman. Without mincing words, Seidman responds: “The answer is no. At least the answer is no if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. . . .” Of course, there’s more to the story, the nuanced part.  That said, here are a few excerpts:

Sword for the Powerful: “With the receding of Warren Court liberalism, free speech law took a sharp right turn. Instead of providing a shield for the powerless, the first amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the LBGTQ community, labor unions, animal rights advocates, environmentalists, targets of hate speech, and abortion providers. While striking down laws that protected all of these groups, the Court upheld a statute that cut off all funding to colleges and universities that refused to allow the military to recruit on campus and a statute that criminalized purely political speech that constituted neither incitement nor a clear and present danger when the speech “materially support[ed]” a group that the State Department labelled as a “foreign terrorist organization.”

Mere Instrumental Utility for Progressives: The free speech victories of the past “do not make free speech progressive. The working class might be slightly better off because of the few crumbs cast their way by the Trump tax law. That does not make the law redistributive. Similarly, the fact that free speech protects the left from the most extreme threats to it does not make the speech right progressive. The question that I address here is not whether the speech right has instrumental utility in isolated cases or whether it is necessary to minimize extreme downside risks. Instead, I address the claim that the amendment has significant upside potential. Can progressives weaponized free speech by tinkering with constitutional doctrine? Can they convert the first amendment from a sporadically effective shield against annihilation to a powerful sword that would actually promote progressive goals? To answer that question, we need to think hard not just about isolated cases, but about the theory behind the right and the right’s basic structure.”

Not Much Historical Help: “At its core, free speech law entrenches a social view at war with key progressive objectives. For that reason, it is not surprising that throughout American history, the speech right has, at best, provided uncertain protection for the left. The modern, anti-progressive first amendment amounts to the delayed presentation of traits built into the genetic material of the speech right.”

Four Reasons Why Free Speech Cannot be Progressive

  1. The Link Between Free Speech and Property Entitlements: “There is an intrinsic relationship between the right to speak and the ownership of places and things. Speech must occur somewhere and, under modern conditions, must use some things for purposes of amplification. In any capitalist economy, most of these places and things are privately owned, and in our capitalist economy, they are distributed in dramatically inegalitarian fashion.”
  2. “Granting speech opportunities to some often denies speech opportunities to others. For that reason, the speech right harms speech, as well as nonspeech, interests.”
  3. Free Speech & Government Neutrality: “American speech law is dominated by a concern about equality and neutrality. Free speech law’s core commitment is to the proposition that the government may never suppress speech simply because of disagreement with the message that it expresses.”
  4. Free Speech & Free Thought: “The assertion of a constitutional right to freedom of speech is dictatorial. . . . [C]onstitutionalizing the right to freedom of speech leads to an anti- liberal mindset. An assertion that the Constitution requires a certain state of affairs is a way of avoiding the necessity for producing actual reasons for why that state of affairs is desirable and just. If the Constitution requires something, then that is the end of the argument, at least in American constitutional culture. Short of a constitutional amendment, a constitutional requirement that a thing must be done just means that it must be done. Once the requirement is established, there is nothing left to talk about.”

A Different Take

David Cole of the ACLU

“[W]hile it is true that a right to universal free speech can be invoked by the powerful as well as the weak, by business as well as labor, the right is nonetheless more valuable for the weak. By definition, the powerful are able to achieve their interests through the political process. As a result, they are less likely to need constitutional protections. For the weak, however, constitutional protections may be all they have. While “civil liberties” in their liberal form are universal, they are designed to protect those whose interests are not served by the political process. And that gives them radical potential, even if they are available to all. . . .”

“The classical liberal conceptions of free speech and free press may not be enough to produce a fully informed electorate or to redress the social and economic ills that skew public debate. But as a constitutional matter, they remain the single best defense against an overweening state. More than ever, those are the rights and liberties that will now need our support.”

Headline: “ACLU files First Amendment lawsuit over mural featuring controversial Trump quote”

Read More


Constitutional Heads of State

The recent Italian elections resulted in a hung Parliament. As a result, the Italian President will play a crucial role in the coming weeks as an honest broker between the parties as they attempt to assemble a coalition. This illustrates an important difference between our Constitution and those of many nations. We do not divide the role of head of state from the head of government.

The function of a head of state in a democracy receives little attention in law reviews. (Indeed, a search shows that law review articles on heads of state are almost always about whether they have immunity from criminal prosecutions or civil suits.) I think that this is a significant oversight. Walter Bagehot’s book on The English Constitution, which is the best book ever written on how constitutions work, spent a great deal of time discussing the powers of the Crown as distinct from the Prime Minister. The fact that many countries deliberately reject the American fusion of the two roles must say something. Maybe separation of powers is incomplete with that extra separation.

One thing that you can say about an elected head of state (let’s leave the Queen or the Japanese Emperor aside for the moment) is that it creates space for a nonpartisan force within constitutional politics. This might be especially helpful when party passions are running hot, while also serving as a reserve authority in moments of crisis (such as a hung Parliament). The lack of any such person in the United States partially explains why we have such a hard time handling presidential election disputes. (The Supreme Court became the de facto head of state, you might say, during the 2000 election.)

The topic is also relevant because, as I’ve posted in the past, President Trump is acting as something of an anti-head of state. What I mean by that is that he makes statements (usually on Twitter) that his officials then say are not government policy. How can that be? Isn’t he the head of government? Or are these officials going rogue? Maybe neither. Perhaps when the President tweets he is not acting as the head of government. It’s not the posture of a traditional head of state, but it has head-of-state aspects.

Anyway, this may be my next article after the one on the ERA.


University of Toronto Law Journal – Volume 68, No.1

Special Issue

Transfiguring Justice: Trans People and the Law

University of Toronto Law JournalVolume 68, No. 1 


Don’t be so hateful: The insufficiency of anti-discrimination and hate crime laws in improving trans well-being – Florence Ashley

Gender identity, gender pronouns, and freedom of expression: Bill C-16 and the traction of specious legal claims – Brenda Cossman

The origins of gender identity and gender expression in Anglo-American legal discourse – Kyle Kirkup

The banishment of Isaac: Racial signifiers of gender performance – Ido Katri

Review Articles:

The definitive article – Alice Ristroph

Thinking like a private lawyer – Christopher Essert