Category: History of Law


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

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

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

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


The Cross of Gold Speech — The Audio Version

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


Ronald Reagan and Gay Rights

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

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

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

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

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


George Washington and James Madison

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

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


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

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

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

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

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

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BRIGHT IDEAS: Collins on Justice Holmes and Free Speech

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

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

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

SOLOVE: What inspired you to write this book?

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

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

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

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

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

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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.