Category: History of Law


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


Book Review: LaCroix’s The Ideological Origins of American Federalism

Alison L. LaCroix, The Ideological Origins of American Federalism (Harvard University Press, 2010) 314 pages, $35

A clamor about states’ rights and federalism currently suffuses the media, often in the context of the Patient Protection and Affordable Care Act and states’ attempts to challenge the constitutionality of this legislation.  These challenges use the term federalism to describe a bilateral political system whereby the states, as the assumed arbiter of good small government, should be protected from the national government’s assumed overreaching.  Alison LaCroix’s The Ideological Origins of American Federalism shows why these debates are wrongly framed and why federalism’s intellectual roots demand that federal structure be understood as much more than a war cry for states’ rights.  Many seem to conflate history or historical study with originalism, but the two are clearly different projects.  This book mines colonial history to understand federalism as a core structure with intellectual pedigree, but those searching for an originalist bent should probably look elsewhere.  On the other hand, anyone who wants to understand the structure and meaning of Our Federalism would be well served by taking the time to read Professor LaCroix’s book.

The history begins by studying the work of eighteenth century theorists to gain understanding of the intellectual and political debates surrounding “imperium in imperio,” literally the “dominion within the dominion.”  Though some believed that autonomous sub-government with substantive power within the larger imperial government was undesirable, it was also a structure that existed within the British Empire.  The early political theories of the empire and of Parliament’s legislative dominance formed a unique foundation for American politics.  This account conveys that colonial thinkers did not inherently have a problem with the king as sovereign over the colonies, or with Parliament as having legislative power over empire-wide concerns, but they also believed that the colonies should be able to govern themselves as to local matters.  The parallels between this colonial system and the soon-to-be formed American federal structure are clear.

The heart of the book is the discussion of James Madison’s ideas regarding the need for the national legislature to negate state laws in order to protect the coherence and power of the national government.  Madison apparently believed that Congress should be able to reverse state laws that contradicted federal efforts, similar to the role of Parliament in the Privy Council (a monarchical authority that reviewed colonial legislative and judicial acts), an idea LaCroix refers to as “Madison’s negative” or the “federal negative.” (138)  Madison was determined to ensure that the central government would not fail and could not be torn apart by the states, but others were not convinced that the federal negative was the proper route to ensuring state compliance.  However, as LaCroix describes it, the Privy Council had both legislative and judicial functions from which the prior colonists could learn.  Thus, the lawyer Thomas Jefferson’s compromise was to emphasize the power of judicial review through strong language in the Supremacy Clause and the concomitant structure of Article III courts, which were essentially an American invention.

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UCLA Law Review Vol. 57, Issue 5 (June 2010)

Volume 57, Issue 5 (June 2010)


Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes Nan D. Hunter 1129
Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality Kathryn Abrams 1135
The Sex Discount Kim Shayo Buchanan 1149
What Feminists Have to Lose in Same-Sex Marriage Litigation Mary Ann Case 1199
Lawyering for Marriage Equality Scott L. Cummings Douglas NeJaime 1235
Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive William N. Eskridge, Jr. 1333
Sticky Intuitions and the Future of Sexual Orientation Discrimination Suzanne B. Goldberg 1375
The Dissident Citizen Sonia K. Katyal 1415
Raping Like a State Teemu Ruskola 1477
The Gay Tipping Point Kenji Yoshino 1537


Book Review: Gordon S. Wood, Empire of Liberty

Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009)

This is a big book by one of the greatest living scholars of the early Republic. It is worth reading. Gordon Wood, of course, is the author of The Creation of the American Republic and numerous other works on the founding period. Empire of Liberty weighs in at 738 pages and is part of the not yet complete Oxford History of the United States. This volume covers the period from the adoption of the Constitution to the end of the War of 1812. It is a marvelous synthesis of contemporary scholarship on the period and a well-spent career by a careful and imaginative scholar. Enough with the superlatives and adjectives.

The book is organized as a narrative, with a nice mix of a somewhat gossipy treatment of elite politics interspersed with chapters on social history. On the social history front, the book is strong on economics and (thankfully from my point of view) religion. If there was one subject where I wasn’t entirely impressed, it was his treatment of military history. Having gone through a Civil War history phase as an adolescent, however, I suspect that I probably have a higher tolerance for the analysis of troop movements, battles, and logistics than the ordinary reader. Also, the volume has a good bibliographic essay, which is extremely useful as a scholar from another discipline who might be interested in using some of the literature on this period.

Wood has two chapters that will be of special interest to lawyers and legal scholars. The first is “Law and an Independent Judiciary” and the second is “Chief Justice John Marshall and the Origins of Judicial Review.” Both of these chapters are heavily weighted toward federal constitutional law and the rise of the Supreme Court. However, in comparison to Howe’s What Hath God Wrought (the next volume in the Oxford History and another book that is worth reading), Wood has a more in depth discussion of legal developments beyond the Supreme Court. His discussion of the intellectual roots of judicial independence in eighteenth-century English legal thought is excellent, as is his discussion of the politics of debtor-creditor law in the early Republic. Finally, while I feel called upon to carp at the way that developments in the common law consistently get relegated to second place vis-a-vis constitutional law in most histories, I was fascinated by Wood’s discussion of Marshall’s maneuverings against Jefferson. My employer is pleased to claim both men as alums (although the claim is stronger in the case of Jefferson than Marshall), but as between the two, Marshall comes across as the more pleasant, canny, and ultimately wise man.

In terms of political history, Wood organizes his narrative around the rise of Jeffersonian democracy. It’s a story in which the losers are, to my mind, ultimately much more interesting than the winners. One of the ways that Wood illustrates this story is through a series of portraits of middling political figures — congressmen, unsuccessful senators, successful grandees in state legislatures, and the like — which make for a nice contrast to a story dominated by Washingtons, Adamas, Jeffersons, and Hamiltons. I found myself sympathizing — if not entirely agreeing — with curmudgeonly Federalists like James Fenimore Cooper who had to live on in the increasingly crass and democratic society that Jefferson helped to midwife even if it was not ultimately his creation. Indeed, at the end of the book Wood provides a striking portrait of Jefferson in retirement, increasingly crotchety, disoriented by the grasping hucksterism of nineteenth-century America, and, perhaps most pathetically, more and more apologetic for slavery while still desperately clinging to the increasingly threadbare mantle of enlightenment prophet of human freedom. Indeed, Wood ends the volume with a peroration on the evil of slavery and its blight on the nation. It is, I think, the least compelling prose in the book, but there is no denying the evil that it condemns or the way in which it came to warp so much of American political, social, and intellectual life.


The Founders and the Tea Party

I’ve found it interesting to see the way in which the tea party movement (and some of my neighbors who are involved in it) invoke the Founders and the constitution. Without exception every law professor with whom I have talked treats these tropes with derision, seeing the tea party movement as a bit of reactionary hysteria or worse. I think, however, that there is a deep affinity with some of the ways of political thinking one sees among at least some tea partiers and the political thinking of the founding generation.

First, many tea partiers invoke the constitution in political debate. This may seem unremarkable, but it does gesture toward a certain view of politics that is both genuinely congruent with the founders political thinking and, I believe, deeply mistaken. Gordon Wood has written about what he calls the “adjudicative politics” that were held up as an ideal by the American revolutionaries and the politicians of the early republic. In this vision, there is a single, unitary public good and the job of statesmen is to act as kind of super-adjudicators, applying known principles of good government to particular issues. As Wood documents, this vision of politics broke down in the 1790s and 1800s as it became clear that there was no widespread agreement on the meaning of the public good. Rather politics, far from being an exercise in adjudication, consisted of a continuous debate about the content of the public good and – more unsettling to the adjudicative model – the bargaining between constituencies over claims to political power.

So what does this have to do with the tea partiers? Read More


Book Review: A Giant of American Law (Reviewing Urofsky’s Louis D. Brandeis)

Louis D. Brandeis: A Life, by Melvin I. Urofsky.  Pantheon, Sept. 2009.  976 pp.

The politics and jurisprudence of Supreme Court justices have always been  spread broadly across the legal spectrum. Depending upon the descriptive phrase in vogue at the time, court members have been portrayed as conservatives, liberals, moderates, activists, strict constructionists, pragmatists, originalists and countless other terms that often attempt to oversimplify and label judicial beliefs. At any given moment in its history, the members of the Supreme Court have rarely found themselves in philosophical unanimity.

The nine justices currently serving on our highest court do share one common trait on their distinguished resumes. All came to the court from service on the federal courts of appeal. Indeed, to a man and woman, their judicial and federal experience far outweighs any legal background outside of the judiciary. While some of the current justices had private practice experience during their legal careers, it was their judicial background that was perhaps the most influential factor in their nomination and confirmation to the Supreme Court.

Depending upon one’s personal viewpoint regarding federal judicial experience as a sine qua non for selection to the Supreme Court, reading Melvin Urofsky’s Louis D. Brandeis: A Life, one cannot help but be struck by the undeniable fact that the political climate of the 21st Century means that a man like   Brandeis would have great difficulty being nominated and confirmed to any vacancy on the Supreme Court. Because Brandeis was an outstanding and passionate advocate for causes both popular and unpopular he had a lengthy legal record that would certainly give opponents of his nomination substantial ammunition to battle his occupying a seat on the Court.

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Research Mystery — I Need Your Help!

A key part of my examination of John Bingham’s life involves his relationship with Titus Basfield, an African-American college classmate who later became a minister.  In a study of Bingham written twenty years ago, Erving Beauregard claimed that Bingham and Basfield were lifelong friends and corresponded about political and legal issues.  Beauregard also quoted from some of those letters, which contained some interesting insights into Bingham’s thinking about the Fourteenth Amendment.

Here’s the problem–nobody knows where these letters are.  Beauregard (who is deceased) did not make copies of those documents and no other scholar has seen them.  They are cited as belonging to “Lloyd Martin, Portsmouth, Ohio,” but there is no other information.  Some suspect that these sources were fabricated, but I’m going to treat that as a last-resort explanation.  My working assumption is that this collection is privately held and that the trick is to track down what has happened to them and then make sure that they are made available to researchers.

If anyone has any insights about this, I’d be much obliged to hear them.


Church-owned Cows and Inflation

I recently taught Sherwood v. Walker, the famous case involving a Michigan cow named Rose 2nd of Aberlone, as well as a number of other mistake cases in contracts dealing with cows. I’ve got bovine jurisprudence on the mind. It seems that the same is true for Eugene Volokh, who recently noted a case involving a “church owned cow.” The cow in question was owned by the Mormon Church and seems to have negligently collided with a motorcycle. In the interests of extending our jurisprudential understanding of cows, I can’t resist adding another twist to the church-owned cow story.

The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. As a result of this practice, in the nineteenth century, the church acquired large herds of cattle as well as other food stuffs. It then issued so-called “tithing scrip,” which was in effect private currency. The holder of scrip could redeem it for foodstuffs, including beef, at church storehouses. The scrip then circulated as money, in effect providing liquidity to the perpetually cash starved economies of the Intermountain West in the nineteenth century. Because the currency was in effect backed by cows, however, it was subject to some odd monetary pressures. For example, when a particularly harsh winter killed off a large proportion of the church’s cattle herds, it was forced to reduce the purchasing power of tithing scrip at church storehouses because there simply wasn’t as much beef available as previously. The result was price inflation as the value of the scrip declined.

As part of its efforts to raise revenue during the Civil War, the U.S. government passed a series of banking acts designed to decrease government borrowing costs. All nationally chartered banks were required to hold their reserves in the form of treasury bonds, and non-federally chartered institutions were hit with a heavy tax on the notes that they issued. The effect was to slap a punitive tax on any bank depositor who did not loan his or her savings to the U.S. government. During the 1880s federal prosecutors in Utah decided that the various scrip-issuing bodies of the Mormon church were subject to this tax, and demanded decades of back taxes, eventually killing off the scrip and replacing it with currency issued by federally chartered banks.

Taxes. Regulation. Inflation. Cows. Some things never change.


Book Review: The Charge Was Treason — The Trial of John Brown

John Brown’s Trial by Brian McGinty.  Harvard University Press, 2009.  384 pp. $27.85

That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.

§ 8 The Bill of Rights, Constitution of the Commonwealth of Virginia, June 12, 1776

Now when many believe it is weakness to treat as criminals those who attacked us on September 11, 2001 Brian McGinty’s John Brown’s Trial is a timely arrival.  His compelling narrative shows Virginia thought it had something to prove by both the swiftness and the propriety of the trial and prosecution that began eight days after the anti-slavery warrior’s capture and ended forty seven days later with Brown’s death by public hanging on December 2, 1859.  Yet Virginia afforded a trial by jury, and Brown was represented by appointed lawyers, slaveholders who diligently advocated for the leader of a cause they deplored.

The modern narrative is of the Bill of Rights imposed clause-by-clause on the states by the  Supreme Court. But we see in McGinty’s account that Virginia did not need the Sixth Amendment.  The 1787 Federal Convention’s omission of a bill of rights was not oversight but reliance on the States which, like Virginia in 1776, had adopted bills of rights.

On October 16, 1859 `Captain’ John Brown and a company of twenty one  overwhelmed the lightly defended United States Arsenal at Harpers Ferry.   Like Khalid Sheikh Mohammed John Brown was seized on the battlefield. Yet no one pressed for a court martial.   Virginia Governor Henry Alexander Wise embraced trial in state court.  No one denounced a civilian jury trial as a plan to “wrap our enemies in our Bill of Rights” as former federal prosecutor Andrew McCarthy said of the plan to try 9/11 planners in federal court in New York.

An `unlawful combatant’ and enemy of the slave state, Brown’s raided Harper’s Ferry as part of a plan to free the slaves.  His men pledged allegiance to Brown as Commander in Chief.  His anti-slavery “Provisional Constitution and Ordinances of the People of the United States” included a new constitutional office – Commander in Chief.  Since Article II of the 1787 Constitution designates the President “commander in chief of the Army and Navy of the United States” there could be little doubt of Brown’s seditious intent despite his protestations after capture.

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