Category: General Law

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Bushrod Washington on Judicial Modesty

I like the following quote from Justice Washington in McFadden v. The Exchange, which was a circuit opinion addressing whether the admiralty jurisdiction could hear a claim that an American vessel was illegally seized by France. It nicely combines the confidence that judges must display in their decisions with the healthy skepticism that keeps them open-minded:

I am fully sensible of the delicate nature of the question which is here decided, and I feel cheered by reflecting that the error of my judgment, if I have committed one, can and will be corrected by a superior tribunal; for surely a question of such national importance as this is, ought not, and I hope will not, rest upon the decision of this court. I can at the same time truly declare that if I could be so wicked as to decide this case different from the opinion which I must sincerely entertain respecting it, my humble genius and talents would not enable me to give one single reason which my conscience or judgment could approve.

Sure enough, Washington was reversed by the Supreme Court in an opinion that he joined.

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Justice Washington and the Erie Doctrine

Everyone knows that Erie R.R. Co. v. Tompkins overruled Justice Story’s 1842 opinion in Swift v. Tyson and held that federal courts hearing cases in diversity jurisdiction should use the applicable substantive state law on matters involving contracts, torts, and other common-law subjects. People also usually learn that Holmes was a sharp critic of Swift v. Tyson during his tenure on the Court.

What you may not know, though, is that Bushrod Washington appears to be the first judge who articulated why the Erie doctrine made sense and why Swift did not. I learned this from reading something by Robert Jackson that cites Washington’s 1814 circuit opinion in Golden v. Prince. In Prince, Washington was called upon to interpret the same provision of the Judiciary Act of 1789 that was later read by Swift to empower federal courts to create their own general common law.  Here is what Washington said in rejecting that suggestion (it’s a long passage):

The powers bestowed by the constitution upon the government of the United States, were limited in their extent, and were not intended, nor can they be construed to interfere with other powers, before vested in the state governments; which were, of course, reserved to those governments impliedly, as well as by an express provision of the constitution. The state governments, therefore, retained the right to make such laws as they might think proper, within the ordinary functions of legislation, if not inconsistent with the powers vested exclusively in the government of the United States, and not forbidden by some article of the constitution of the United States, or of the state; and such laws were obligatory upon all the citizens of that state, as well as others who might claim rights or redress for injuries, under those laws, or in the courts of that state. The establishment of federal courts, and the jurisdiction granted to them in certain specified cases, could not, consistently with the spirit and provisions of the constitution, impair any of the obligations thus imposed by the laws of the state; by setting up in those courts a rule of decision, at variance with that which was binding upon the citizens, if the suit had been instituted in the state court. Thus, the laws of a state affecting contracts, regulating the disposition and transmission of property, real or personal, and a variety of others, which, in themselves, are free from all constitutional objections; are equally valid and obligatory within the state, since the adoption of the constitution of the United States, as they were before. They provide rules of civil conduct for every individual who is subject to their power, in all their relations to society; and consequently cannot, in cases where they apply, cease to be rules by which the conduct of those individuals is to be decided, when brought under judicial examination, whether the decision is to be made in a federal or state court.

The injustice, as well as the absurdity of the former deciding by one rule, and the latter by another, would be too monstrous to find a place in any system of government. Thus, for example, if the laws of a state, which regulated the distribution or transmission of property in the year 1789, should be totally varied by a subsequent law, the latter only would be the rule by which property could be distributed or transmitted from the time the law came into operation; and it can never be seriously contended, that a person inter- ested in this property, and from the adventitious circumstance of his residence in another state, entitled to make his claim, either in the federal or state court, should recover more by resorting to the former, than he would have recovered had he applied to the latter court.

With respect to rules of practice for transacting the business of the courts, a different principle prevails. These rules are the laws of the court and are, in relation to the federal courts, laws arising under the constitution of the United States, and consequently not subject to state regulations. It is in reference to this principle, that the 17th section of the same judicial act authorizes the courts of the United States to make all necessary rules for the orderly conducting business in the said courts, provided the same are not repugnant to the laws of the United States; and under this power, the different circuit courts, at their first sessions, adopted the state practice as it then existed, which continues to this day, we believe, in all the states, except so far as the courts have thought proper, from time to time, to alter and amend it Indeed, the counsel for the plaintiff, in this case, seemed to admit the distinction between general laws affecting rights, and those which relate to the practice of the courts; but still he contended, that the act of assembly in question, afforded no rule of decision for this court and could not be pleaded in bar of the action, because it was enacted since the year 1789. Now, it is most clear, that a law which discharges a contract is no more a law of practice, than one, under the sanction of which, the contract was made. If it would bar the action in a state court it would equally do so in a federal court; although the particular mode of setting up the bar, might depend upon the practice and rules imposed by the state laws upon the former courts, and those which the latter may have thought proper to adopt.

This is the Erie doctrine, stated succinctly more than a century before Justice Brandeis did so for the Supreme Court. Pretty remarkable.

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On Ree Dolly, J.D. Vance and Empathy for Low-Income Whites (or, What Hillbilly Elegy is Good for)

This is my fourth and final installment about J.D. Vance’s Hillbilly Elegy:  A Memoir of a Family and Culture in Crisis.

One striking aspect of the wide-spread kudos heaped on Hillbilly Elegy is that readers do not seem put off by J.D. Vance.  That is, many (most?) readers appear to sympathize (for lack of a better word) with him, even if they cannot empathize with the circumstances of his upbringing and his struggle socially to transition to Yale Law.  When you consider how many outlets exist for poking fun at low-income, low-education whites, sometimes referred to as “white trash” (think:  Wal-Mart shoppers,  lots of reality television shows poking fun at the white working class, lots of hateful Tweets demeaning this group, the presumptive Trump voter), this attraction to Vance is surprising.  Is it really possible to “clean up” so well, so quickly?  I knew Yale law degrees were valuable, but Vance’s seems to be working miracles.

This generally positive response to Vance reminds me of a similar response to Ree Dolly, the 17-year-old heroine of the movie “Winter’s Bone,” which won the Grand Jury prize at Sundance in 2010.  If you saw the film and remember it, that is likely because Jennifer Lawrence starred as Ree.  Indeed, for this her breakout role,  Lawrence was nominated for the Academy Award for best actress. (The film was nominated for best picture).  Ree is the daughter of what would widely be considered a “white trash” family.  Yet she is nothing short of heroic as she courageously rises above the meth-making and hillbilly-version-of-organized-crime circumstances of her extended family.  She takes plenty of hard knocks–literally as well as psychologically–in the quest to prove her father’s death so that she can prevent loss of the (very modest and “trashy”) family home to the bail bond company that secured her father’s release after his last foray into the illicit drug scene.  Along the way, however, it is clear that Ree prioritizes the well-being of her younger siblings–and keeping her nuclear family together in the face of her mother’s mental incapacity and father’s death.  I recorded some of my thoughts about “Winter’s Bone,” Ree and our reaction to her and her milieu back in 2010 here and here.   The most salient quote from one of those posts follows:

Film critics have touted Ree as brilliant, a feminist heroine, a modern-day Antigone.  Like many film goers to whom I have spoken, they look past her trappings and her kin, and they see her value.  This is progress—but then, Ree’s character and courageous acts are exceptional.

So Ree is brilliant, and J.D. is compassionate and discerning.  (And if Ree is Antigone, what figure from Greek tragedy might J.D. be?)  I guess I’m surprised by these assessments because I grew up a little too close to where both of these “characters” come from.  As I have suggested elsewhere in this series of posts, maybe my response, my skepticism is a case of familiarity breeding contempt.  (And to be clear, I feel contempt for neither Ree nor J.D., but my relationship to both is complicated by considerable familiarity with their milieu.)

Or maybe I’ve just heard so much denigration of low-income whites in my years as an academic that I expect the worst (at least in this regard) from liberal elites.  A number of scholars of socioeconomic class have observed that hillbillies, rednecks and such are the only “identity” group not protected by political correctness (see here, here and here, collecting sources; plus herehere, and here).  Given that it’s ok to engage in micro-aggressions (and worse!) against low-income, low-education whites, what gives for Ree and J.D.?  How can they be heroes?  Presumably because  both rise above their circumstances.  (Interestingly, both also remain loyal to parts of their families, despite those family members’ anti-social practices).

If we coastal elites have this capacity to respond with compassion to Hillbilly Elegy despite the provenance of its protagonist, maybe the book has some redeeming value after all.  Maybe it’s good for something besides satisfying our voyeuristic curiosity about the enigmatic Trump voter (and, of course, making J.D. Vance a very rich man).  Maybe, in fact, it’s particularly useful for educators– including legal educators.

In January, I participated in an AALS 2017 panel on “Cultivating Empathy.” I spoke about how the use of film excerpts in both my Law and Rural Livelihoods and Feminist Legal Theory courses helped to foster student empathy for low-income, low-education whites.  My law school, UC Davis, features an overwhelmingly left-leaning student body, and as a community we were nearly universally flummoxed by the outcome of the 2016 Election.  In a sense, our law school is its own echo chamber.  Yet I noticed that when I showed even brief excerpts from films such as “The Accused,” “North Country,” and “Winter’s Bone,” students responded with great empathy to characters like Sarah Tobias, Josey Aimes, and Ree Dolly–all low-income, low-education, working-class white women.   If we see these socioeconomically disadvantaged whites first as human beings and only secondarily as  (presumptive) Trump voters,  it’s not so hard to empathize with them, to process the stories of their lives, to “get into their heads” in some small way and to imagine having to make the very difficult choices they must make to survive, never mind thrive.

After that AALS panel, a  law professor who teaches at a state university law school in the midwest approached me and said he thought my plea for a more empathic approach to low-education whites could help him and his colleagues better understand their students, most of whom are conservative to one degree or another, and many who are Trump supporters.  Of course, not all conservative white voters are low-income and/or low-education (an angle on the 2016 election often lost on the media; see more here and here) but some overlap exists.  So, wouldn’t it be great if law profs could take their generally positive reaction to J.D. Vance and Hillbilly Elegy and use it to inform how they engage their own students who may be similarly situated to J.D. before he got that fancy schmancy Yale Law degree.  In this regard, we should credit Yale Law’s Amy Chua, who saw value in Vance as a student and mentored him while we was at Yale.  (One can’t help wonder the extent to which the sensationalism of Chua’s Battle Hymn of the Tiger Mother inspired similar sensationalism in Hillbilly Elegy, but I digress).

UC Davis Undergraduate Education has just launched a #firstgen initiative.  In its initial phase, the program encourages professors who are the first generation in their family to get a college degree to “out” themselves (as by wearing to class these cool T-shirts they have supplied to us) so that first gen students can find us, seek us out for mentoring.  The program also aims to educate faculty about first gen student perspectives, encouraging us to be transparent about expectations and grading, reminding us that not all of our students will have parents who can coach them toward success, who will understand the significance of opportunities on offer, let alone how to actively seek out those opportunities.  Among the startling figures that have come to the fore with this new UC Davis initiative:  42% of our undergrads are first gen, a number that no doubt reflects the enormous racial and ethnic diversity of California and our student body.  Further, more than 300 faculty members from across campus have self identified as first gen by joining an online faculty directory.  At an initial gathering, I noticed that many of them/us appeared to be non-Hispanic white, though perhaps that is a generational thing.  Our law school also has a #firstgen program in the works.  A few other law schools already boast these, and numerous undergraduate programs do, too (see more here, here, herehere, and here).

These “#firstgen” initiatives are important in that they remind us to see and assist  not only racial and ethnic minority students, but also would-be class migrants who are white.  We must be mindful of what all of these students need to succeed in a very different world than the one from whence they come.  White skin is not a magic tonic.  And as much as Hillbilly Elegy annoys me (see prior posts here, here and here for elaboration), if the book is good for something , that something may be cultivating empathy among those who can help aspiring class migrants–whatever their race or ethnicity, remembering that white people “have race,” too–to achieve the increasingly elusive “American Dream” via access to higher education.

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Bushrod Washington and the Presumption of Constitutionality

One of Randy Barnett’s many contributions to constitutional law is his argument that the current presumption of constitutionality should replaced by a presumption of liberty. While there is no single source for the presumption of constitutionality, Justice Washington is often cited for this proposition. The quote comes from the conclusion of his opinion in Ogden v. Saunders (1827):

It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt. This has always been the language of this Court when that subject has called for its decision, and I know that it expresses the honest sentiments of each and every member of this bench.

While this line was quoted in three different dissenting or concurring opinions by Justice Brandeis, what catapulted Justice Washington’s admonition to fame was Franklin Roosevelt’s Fireside Chat defending his 1937 Court-packing proposal:

For nearly twenty years there was no conflict between the Congress and the Court. Then Congress passed a statute which, in 1803, the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.”

But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.

I wonder if Brandeis and FDR chose this quote because Justice Washington seemed to invoke the authority of George Washington. Unlike Corfield v. Coryell, which was about a constitutional clause that became even more important as a reference following the ratification of the 14th Amendment, there is nothing particularly special about Ogden or about Washington’s view of judicial deference.

 

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Presidential Declassification of Information

I just wanted to observe that the recent controversy over the President’s alleged disclosure of classified information to the Russian Foreign Minister was discussed in analogous way by an episode of “Yes, Prime Minister.” Prime Minister Hacker and Sir Humphrey have a conversation after Bernard Wooley tells the press (in a garbled way) that the PM is above the law with respect to the disclosure of information under the Official Secrets Act.

The PM: We must do something to improve my relations with the press, which deteriorated considerably when my private secretary told them I felt I was above the law when it came to official secrets. What’s the constitutional position, Humphrey?

Sir Humphrey: Well, in a sense, Bernard was right. The question, in a nutshell, is what is the difference between a breach of the Official Secrets Act and an unattributable, off-the-record briefing by a senior official? The former-a breach-is a criminal offence. A briefing is essential to keep the wheels turning. Is there a difference or is it a matter of convenience and interpretation? Is it a breach of the act if there is an unofficial, non-attributable briefing by an official who’s been unofficially authorised by the Prime Minister?

Sir Humphrey: Not if it’s been authorised by the PM, no. I should decide if it’s in the national interest for something to be disclosed, not officials. Last week’s leak must’ve come from an official.

Sir Humphrey: But what if the official was officially authorised or even unofficially authorised? What if the PM officially disapproves of a breach of the act, but unofficially approves? Then a leak would be unofficially official, but officially unofficial.

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FAN 152 (First Amendment News) Gilbert Roe — Free Speech Lawyer is Subject of Forthcoming Book

Breaking News from the New York Times

“. . . Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.”

“Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”

_______________________

Do not be bluffed on this subject of free speech. Remember that the first amendment of the Constitution stands.  I would say it with greater emphasis if I were a member of the forces of the [Wilson] Administration; for I want to say that if any administration in this country wants to seek trouble, it will find it along the line of denying the constitutional rights of free speech and free press. — Gilbert Roe (1917)

Indeed, [Gilbert] Roe provided the most trenchant and prescient of all criticisms of the Espionage bill by stressing the dangers of the intent requirement. — David Rabban

Gilbert Roe

By and large, First Amendment law is Supreme Court centric. That is, we equate the law, logic and history of freedom of speech with the names of Justices — Holmes, Brandeis, Black, Douglas, Brennan, Scalia, and Roberts. The lawyers behind the cases are all-too-frequently ignored . . . save, perhaps, for Floyd Abrams. But if one looks around the black robes and then turns the clock back, one name, among others, surfaces — Gilbert Roe (1864-1929).

Among other things, Gilbert Roe was the lawyer for the Free Speech League. He  knew and once worked with Louis Brandeis before the latter became a Justice. In 1917 Roe represented Max Eastman, the petitioner in Masses Publishing Co. v. Patten (1917, per Hand., J.). Mr. Roe also argued the case on appeal to the Second Circuit (246 F. 24), which reversed Judge Hand’s opinion.

Before the Masses case Roe was Eastman’s lawyer in a criminal libel case. See People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314 (N.Y., 1915). Before that Roe was the attorney for the petitioner in Fox v. State of Washington (1915). And in April of 1917, he testified before Congress against the Espionage Act.

In his amicus brief in Debs v. United States (1919) Roe, along with the attorney for the petitioner, challenged the Blackstonian interpretation of freedom of expression.

Once this Court says that public discussion of the measures of government can be punished because of any intent which a jury may find caused the discussion, or because of any result which a jury may think will follow such discussion, then the free speech and free press of the Constitution is destroyed. — Gilbert Roe, amicus brief in Debs v. United States (1919)

 Statement of Gilbert Roe, representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”).

Gilbert Roe & Robert La Follett (credit: Wisconsin Historical Society)

Related

Gilbert Roe died in 1929.

* * * *

Beyond what Professor David Rabban wrote in his seminal Free Speech in its Forgotten Years (1999) and Mark Graber in his Transforming Free Speech (1991), this January Gilbert Roe will be the object of a full-length biography by Professor Eric B. Easton.

The book, to be published by the University of Wisconsin Press, is titled Defending the Masses: A Progressive Lawyer’s Battles for Free SpeechHere is the abstract:

“Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.”

“Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended ‘Fighting Bob’ when the Senate tried to expel him for opposing America’s entry into World War I.”

“In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.”

Prof. Eric Easton

How the book came about: “I was looking to write something about Masses Publ. Co. v. Patten, but couldn’t find an approach that hadn’t already been done . . . and done well.  I decided to look at the human side of the case. Again, I found Hand and Eastman well covered (and Patten not terribly interesting).  But Roe seemed like a possibility, although I didn’t know who he was. Brief mentions of him in books I had read (Rabban, Graber) hadn’t really registered with me.

“I wrote to the University of Wisconsin Law Library, among others, to see if they might have some of Roe’s papers, and a librarian there sent me a Westlaw printout of Roe’s published cases (something I could have done myself, but didn’t). My interest was really piqued when I saw some familiar names as parties. When I read the cases, I knew I had something, and plunged into his papers (with La Follette’s in the Library of Congress) and his wife’s (at the Wisconsin Historical Society).”

“What followed was the most enjoyable scholarly experience of my career:  a new discovery nearly every day, a fascinating cast of characters, and a true unsung hero in the evolution of American freedom of speech.  I only hope I have done him justice.” [Source: e-mail to RKLC]

Professor Easton will present a paper at the October Masses conference at New York University Law School. His paper is entitled: “The Role of Gilbert Roe, the Masses attorney.”

Cert. Petition filed in Right to Assembly Protest Case Read More

2

Thomas Marshall’s Dilemma

Fantasies never die. The one that comes up more frequently than most is that Vice-President Pence, the members of the Cabinet, and supermajorities in both Houses of Congress are going to somehow invoke the Twenty-Fifth Amendment and remove President Trump from office. There are a million problems with this thought, but let’s focus on just one.

Even when we had a President who was disabled by a stroke at a time when immense political issues were being debated, neither the Vice-President nor the Cabinet (let alone Congress) acted to remove him.  I’m talking, of course, about Woodrow Wilson. Granted, President Wilson’s colleagues did not have the benefit of the Twenty-Fifth Amendment or any helpful precedents, but still their collective response to Wilson’s illness was passive to the point of denial.

Vice-President Thomas Marshall (a Hoosier, I might add) took the position that he would assume the Presidency only if a joint resolution of Congress, Mrs. Wilson, and Wilson’s doctor all agreed that Wilson was unfit to serve.  This was an impossibly high burden that was probably designed to avoid that outcome. Lots of people in Washington knew that Wilson could not think things through clearly, but virtually nobody said that publicly. If not then, why now?

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Is Justice Story Overrated?

This is a question that I am asking myself as I begin researching the life of Bushrod Washington. The typical story about the Marshall Court is that Marshall and Story towered above everyone else. Part of Justice Story’s reputation rests on his voluminous scholarly writings, most notably his 1833 treatise on constitutional law.  But if you look at his judicial opinions, the record is quite mixed.

Aside from Martin v. Hunter’s Lessee, it’s hard to think of a great Supreme Court opinion by Story. By contrast, I can think of two that were terrible (Prigg v. Pennsylvania and Swift v. Tyson). As a circuit Justice, Story did write some important decisions (such as the one that essentially created the copyright fair use doctrine), but over 34 years you’d expect more given his importance.

Moreover, I see indications that Justice Story made mistakes that Washington had to clean up.  For instance, Story’s 1821 opinion for the Court in Green v. Biddle was so poor that it led to a rehearing where Washington (in 1823) wrote a new opinion reaching the same result. (Justice Washington was ill when Biddle was decided the first time.) As my research progresses, I’ll flesh this out.

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Rurality and “Government Retreat”

The New York Times ran a story yesterday, dateline Roseburg, Oregon (population 21,000), headlined “Where Anti-Tax Fervor Means All Government Will Cease.”  This is not exactly breaking “news.”  This story has been around in some form, with varying degrees of urgency, for about five years.  See earlier installments here, here and here.  The gist of it is that many rural counties in the West which rely on federal funding streams (e.g., PILT, Secure Rural Schools and Community Self Determination Act monies, covered by stories herehere and here), have seen those monies taper off and in some cases dry up.

I want to be clear before going further that the federal funding streams these counties rely on are not giveaways, at least by my assessment.  They are intended to replace, in some small measure, tax dollars the counties cannot generate because property taxes cannot be levied on federal lands, which comprise vast portions of the West.  (The existence of such extensive public lands is also associated with other controversies, of course; read more here and here).  The existence of public lands may also have an impact on other ways local governments might choose to plump up their public coffers (read more here and here), and the existence of these lands limits the ways in which locals can earn a living, as in the timber industry or in ranching.

As a result of these funding cuts, many nonmetropolitan counties–those least likely to have other funding sources (taxes on robust business enterprises, for example)–are  cutting critical services.  Most news reports to date have focused on cuts to law enforcement, which has cultivated some “informal justice”/citizens “militias” type activity.  But this NYTimes story focuses on cuts to other services.  Highlighted in the story and illustrated by a photo is the fact that Douglas County–at 5,134 square miles, more than 2.5 times the size of Delaware and nearly as large as Connecticut–is about to close the last of the 11 library branches it previously boasted.  The one in Roseburg, the county seat, will be the last to go.  Kirk Johnson, NY Times reporter based out west, reports that Douglas County residents recently voted down a ballot measure that “would have added about $6/month to the tax bill on a median-priced home,” a measure that would have saved the libraries from crisis and closure.

I could digress here into a long discussion about how critically important libraries are for all sorts of reasons, not least these days that–in my suburb and many other California locales–they accommodate many homeless people during the day, providing them a lifeline (the Internet) to identifying and getting services.  I know that my family and I use our neighborhood library on a weekly basis, even though I have ready access to a fabulous academic library.  A 2013 story about the particular benefits of libraries in rural communities is here, and broadband is a big part of the story.   A more recent library story out of rural northern California about the power of books in children’s lives is here.

But Johnson makes the point that libraries are not the only thing on the chopping block in Douglas County.  The failed library initiative is like many others in Douglas and neighboring counties (e.g., Curry and Josephine) that voters have rejected in the last decade.  Another very sobering illustration of the southwest Oregon situation is the fact that Curry County has only one full-time employee in the elections division of its clerk’s office and therefore may have difficulty holding an election this fall.  (I’ve documented here and here similar phenomena in my home county in Arkansas, another place heavily reliant on PILT because of the presence of public lands set aside as Ozark National Forest and Buffalo National River).

There is so much I could say about this particular rural trend to shrink government, sometimes to an extreme degree.  But I just want to make a few points in regard to theoretical legal geography regarding how spatiality and law are co-constitutive.   I have argued as a related matter that rural society and rural spatiality are co-constituting, as reflected in a less robust presence of law, legal actors, and other institutions and agents of the state in rural places.  I framed it as “space tames law tames space” in a frustrating feedback loop:  it is expensive for the state to do its work when the area to be governed is vast and when residents emotionally and intellectually resist vesting power (including via tax dollars)  in the state.  I would characterize this feedback loop as disabling, though I understand some rural residents of a more libertarian bent would see it as enabling–enabling the individual, that is, fostering self-sufficiency.

My argument about the relative “lawlessness” of rural and remote places has not been uncontroversial.  Lots of folks see small towns as the epitome of order and law-abiding-ness and have pushed back against my argument.  Yet it seems that my point is very well illustrated by this detail from Johnson’s article, which he offers as an illustration of “government retreat”:

It looks like the house on Hubbard Creek Road in Curry County, where owners went for more than 10 years without paying any property taxes at all because the county assessor’s office couldn’t field enough workers to go out and inspect. The house, nestled in the woods with a tidy blue roof and skylights, dodged more than $8,500 in property taxes that would have gone to support the schools, fire district and sheriff, because government had gotten too small to even ask. So things fall even further, with cuts to agencies that actually bring in revenue prompting further cuts down the line.

So there you have it:  a community envisages itself as not needing law, regulation and the state, so it underfunds government to such an extent that the state can no longer support itself and perform (m)any government functions.  This, in turn, further fuels the imaginary–and reality–of an anemic and unhelpful state.  The state is thus discredited, thereby further undermining the state’s ability to justify the raising of revenue or to do, well, much of anything.

Which came first, the chicken or the egg?  the state’s inability to be effective?  or the perception that it would necessarily be ineffective and a consequent decision not to fund it, thereby rendering it (more?) ineffective, unhelpful, and inefficient?

As for when a community goes too far in its retreat from public institutions…well, the defeat of the library tax crossed that line for some.  Johnson quotes a Douglas County resident, 54-year-old Terry Bean, a construction manager who supported the library tax, though he had opposed other local taxes.  In explaining his position he invoked another concept associated with rural livelihoods:  community.

There is conservative, said Bean, flicking a cigarette butt into the bed of his pickup truck, and then there is community. And people got them confused.

The library, he said, was something a person could use — for computers, if not for books — even if that person didn’t have a dime, and he still respects that.

And that, in turn, brings me back to my earlier point:  doesn’t everyone reap communitarian benefits from the public library?  even the richest of folks who may never darken its doors.