Category: History of Law

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FAN 175.1 (First Amendment News) More from FIRE — New Podcast Series Charts History of Free Speech

“The podcast provides an engaging and inspiring history of free speech that is accessible to anyone interested in a topic that is fundamental to every human being and society. If you want to understand what’s at stake and know about the battles that our predecessors were engaged in the fight for free speech there can be no better place to start than with Jacob Mchangama’s podcast.”  Flemming Rose 

The folks at FIRE (Foundation for Individual Rights in Education) are on fire when it comes to almost anything having to do with free speech. They

And now, they have just released the first installment (an introduction) to an incredible podcast series on the history of free speech. It is titled: 

The series is spearheaded by Jacob Mchangama, a Danish lawyer, human-rights expert, and social commentator and the founder and director of Justitia, a Copenhagen think tank focusing on human rights and the rule of law. For six years he served as chief legal counsel at CEPOS. This year Mchangama is a Visiting Fellow at FIRE.

Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.

Jacob Mchangama

Description

A prologue introduces the background of the podcast series and is being released today. The first official episode will be aired on February 1st. Subsequent episodes will be released on a bi-weekly basis.

Each episode focuses on a particular historical era or theme, providing listeners with a deeper understanding of how, where and why free speech has developed over time.

The first episode takes listeners back to ancient Athens focusing on the trial of Socrates and the crucial role that equal and uninhibited speech played in the world’s first democracy.

“We mustn’t allow free speech to fade into a feel-good slogan. It is an unintuitive principle with a rationale that many don’t appreciate and a history that many don’t know. Mchangama’s lucid history of free speech fills that gap and deepens our understanding of this precious concept” Steven Pinker 

The following episodes will visit places and eras such as Ancient Rome, Central Asia’s Golden Age, the Abbasid Caliphate, The Renaissance, Enlightenment and beyond.

The podcast will also feature “Expert Opinions,” interviews with leading historians and experts.

You can follow the podcast on the website (www.freespeechhistory.com), Facebook (www.facebook.com/freespeechhistory) and on Twitter (@CAPD_freespeech).

Disclosure: I work on FIRE’s online First Amendment Library and am also working with them on a forthcoming e-coursebook on free speech (stay tuned!).

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FAN 174 (First Amendment News) Special Issue on Legal History — New article “reorients our understanding of the history of speech and press freedoms”

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean? A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.

Cass Sunstein, The Originalism Blog

Leonard W. Levy (1923-2006)

History forever haunts us. Even if it did not, there is always that temptation to look into the rear-view mirror to catch a fleeting glimpse of the world of the dead. Even some of the great who wrote about the dead are themselves now dead. Remember this constitutional historian?

Still, the living continue to dig up the dead and tell their stories . . . as best they can frame them. For example,

Of course, there is more, much more. That said, there’s a new player in the First-Amendment-history town; he is Professor Jud Campbell and he has an impressive new article in the Yale Law Journal. It is titled

Natural Rights and the First Amendment

ABSTRACT. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

Professor Jud Campbell

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Nico Perrino over at FIRE interviews Professor Campbell in a So to Speak podcast

Newly Posted Historial Documents Read More

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Bushrod Washington and West Ford

One controversy that I will explore in my Bushrod Washington books concerns the parentage of West Ford, one of the Justice’s slaves. Some scholars contend that Ford was fathered by a Washington, in part because he was freed by Bushrod and given a large parcel of land at Mount Vernon, which was highly unusual.

 

Without commenting further, take a look at a portrait of the Justice and an engraving of Ford done when he was a young man.

 

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Law as Beauty

Law book illustrations serve many practical purposes. Yet they also can be items of simple beauty. Our gallery tour closes with books in which the bridge between abstraction and the real—the two polarities at the heart of legal experience—opens onto a view of the aesthetic.

In this magic space of the imagination, law gives birth to art that stands on its own.

These books gently overflow the boundaries of law as a field of knowledge and the law book as a category of publishing. They thereby pay tribute to law and to the publishing of books as endeavors that implicate our deepest humanity. Read More

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Worth a Thousand Words

Sometimes a picture says it all. Or that’s what lawyers have often hoped. And beginning with the development of modern printing technologies, publishers have worked hard and well to oblige them.

The creation of lithography. Technical advances in etching and wood engraving. Anastatic printing. New iron presses. Steam-powered rotary cylinders. Photography. Starting in the nineteenth century, technological innovations such as these enabled law book publishers to depict places, objects, and events with greater accuracy than ever before—and lawyers soon perceived the value of images in crafting a winning argument.

Those images are the subject of the seventh case in our digital gallery tour, “Arguing the Law,” which features illustrations and photographs used as evidence in litigation. They are least symbolic, most literal, type of law book image.

They were used in intellectual property litigation (scroll over for links)

criminal prosecutions

Read More

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Staging Law

All the law’s a stage, and law books often raise the curtain to reveal its players carefully arranged on a complex set. They depict judges, lawyers, and litigants in the formal spaces where law takes place, especially courtrooms, law offices, and law libraries.

The illustrations in the next stop of our gallery tour—case five: “Staging the Law”—serve many purposes, including public education, political critique, and the promotion of commercial sales.

Yet whatever their purpose, by depicting law’s stage, the books also portray law’s character as a public ritual.

Gates and walls and curtains. Parallel and intersecting architectural lines. Legal players aligned on different horizontal and vertical planes. In their very their realism, the images depict law as a theater of social meaning.

They are the most concrete form of symbolic representation in the tradition of law book illustration.

Images of lawyers at work—which appear almost exclusively in German and Dutch law books—depict more intimate legal proceedings, and so reveal a wealth of details about the relationships between lawyers and their clients, and even about the lawyers’ record keeping systems, as here:

Or here:

We’re mighty fond of them. (Scroll over the images for links to the complete images.)

The scandalous trial of Queen Caroline for adultery—initiated by George IV, who sought a divorce—was one of the most notorious legal and political events of its day, and served as a vehicle for popular criticism of government. The image that starts this post depicts the House of Lords decked out for the proceedings.

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The life, trial & defence, of Her Most Gracious Majesty, Caroline, Queen of Great-Britain. London: Dean & Munday, 1820. Acquired with the Charles J. Tanenbaum Fund.

Mark S. Weiner and Mike Widener

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For the next stop on our tour, click here.

 

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Taking Law’s Measure

One aspect of law which makes it so compelling as a profession, as a field of study, and as a subject for book collecting, is that it’s a tool for solving real human problems. The peculiar beauty of law books derives in part from this usefulness.

They were made to be touched, handled, and put to work.

The books in the fourth case of our exhibit help practitioners solve legal problems through the tool of mathematics, and they focus on legal problems involving water and land. Their illustrations provide a clarity and a precision that a thousand words could never attain.

Both of us love these books. One of them, by Battisa Aimo, inspired Mike to develop Yale Law Library’s illustrated book collection in the first place.

Overflowing with formal beauty, their illustrations invite readers to shift their attention from book’s pages and onto a specific problem in the world—and then back again.

We note this toggling between text and image in the following video, referencing the long, fold-out map of the River Po at the bottom of the case:

The image at the start of this post comes from the first book of geometry for lawyers. The problem illustrated concerns the ownership of fruit produced by a tree that grows at the junction of several property lines.

In the illustration, the man perched precariously in the branches of the tree appears to have left his shoes and hat beside its trunk.

Look closely: it’s a delight.

The book takes pains to correct some formulations made in a great work of Barolo of Sassoferrato, or Bartolus, which we’ve also included in this case.

Next up in our gallery tour: “Staging the Law.”

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Jean Borrel, Opera geometrica. Lyon: Thomas Bertheau, 1554.

Mark S. Weiner & Mike Widener

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For the next stop on our tour, click here.

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Nothing so Lovely as a Tree

The books featured in this third top on our gallery tour—the case “Diagramming the Law”—all use images to overcome the limits of language for conveying complex legal and conceptual analysis.

We think they can point us to insights about the way law works in the world, and how it’s historically worked through images—especially images in books.

For centuries, the most common illustration in law books was a visual metaphor drawn from the natural world: the tree. As a graphic device—a chart—used in legal textbooks and treatises, trees of consanguinity and affinity helped readers grasp the legal significance of kinship for marriage and inheritance. The very first image in a printed law book, in 1473, was a tree of consanguinity.

We could have filled the entire Grolier Club exhibition hall with images, images, and more images—of trees … oh, man, could we ever (no, seriously, we could have).

Looking at them arrayed together across the big wooden tables of the Yale Law Library rare book gave new force to the idea—developed by the post-structuralist theorists Deleuze and Guatarri—that the western cultural and intellectual tradition is characterized by “arborescent thought.”

A “tree grows in our minds”? Our thinking is structured by this metaphor?

You’d better believe it—perhaps especially within the common law tradition, where the organic comparison fits so well.

By depicting legal relationships in spatial terms, trees represent those relationships more efficiently than is possible through language alone. They thus stand beside their text neither as allegories of the spirit of the whole, as we saw in our first case, nor as illustrations of a specific part, as in case two, but rather as concise charts of an extended structure of analysis.

The metaphor of the tree long persisted as a beguiling way to depict kinship and its legal consequences.

Yet the success of the tree also gave bud to new ways to crisply display legal and conceptual relationships, and those are represented throughout the case, too. On the very right-hand side, you can spy the colorful Atlas of German Law, which substantially advanced the tradition in contemporary Germany. We were happy to have its author, Eric Hilgendorf, speak at a recent symposium about the exhibit.

This post begins with an image from the seminal, first work of English jurist William Blackstone, which concerns a question of legacy admission to All Souls College, Oxford. In the words of legal historian S.F.C. Milsom, Blackstone’s creative use of graphic aids enabled him “to compress into a single chapter the mass of detailed rules which would in every possible case identify who a man’s heir was.”

The image above is an innovative descendant of hundreds of years of tradition in legal publishing.

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William Blackstone, An essay on collateral consanguinity. London: W. Owen … and R. Clements, in Oxford, 1750.

Mark S. Weiner & Mike Widener

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For the next stop on our tour, click here.

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Kozinski reviews new book — THE JUDGE: 26 MACHIAVELLIAN LESSONS

Judge Alex Kozinski (credit: The Recorder)

So you thought a judge’s job is to be fair and impartial? To renounce personal gain? To have no agenda? According to Ronald K.L. Collins and David M. Skover in their new book, The Judge: 26 Machiavellian Lessons, that’s all malarkey. If you believe it, you’re a chump. And if you’re a judge who believes it, you should quit and make room for someone who will use his power to advantage. “Power,” the authors tell us, is “that ability to make something happen.” Like Niccolo Machiavelli, whose 16th century guide to executive power they channel, the authors explain how the modern judge can exploit the opportunities his position and Fortuna bestow upon him.

So begins Ninth Circuit Judge Alex Kozinski’s book review published on Law360. Here is another excerpt:

 “The ethics of a great judge are counter-ethics. They do not bow to law’s old pieties, the ones grounded in the myths of justice impartially applied. … Still, the myth of impartiality lives on and, strangely enough, some judges (the weaker ones) actually take their decisional cues from such pious norms.” The ideal judge “appreciate[s] the value of deception.”

Collins and Skover give example after example where U.S. Supreme Court justices have (in the authors’ view) manipulated the law, lied about history, undermined precedent while pretending to follow it, “cram[med] their opinions with half-truths” and generally pulled the wool over the eyes of their colleagues and the public. The authors speak in glowing terms about justices who achieve their ends through skullduggery and disparage justices who are ineffectual because they’re proud, priggish, wedded to precedent or fooled by their own rhetoric. According to Collins and Skover, “a Justice must be hypocritical and strive to appear objective, judicious, and collegial.” John Marshall, William J. Brennan Jr., William Rehnquist, Antonin Scalia and (usually) John Roberts make the grade while James Clark McReynolds, Felix Frankfurter, William O. Douglas (except in Griswold), Warren E. Burger, and Roberts in Obergefell don’t. Frankfurter draws particular scorn as “arrogant, combative, spiteful, and manipulative (but not in effective ways).”

 Of course, there is more, much more.  The full text of the review is here: The Judge, 26 Machiavellian Lessons