Allen Porter Mendenhall

Archive for the ‘Jurisprudence’ Category

An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

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This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.
Read more at http://spectator.org/articles/62383/issue-supreme-importance-2016

Es buena la Decimocuarta Enmienda?

In America, American History, Arts & Letters, Austrian Economics, Historicism, History, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, Nineteenth-Century America, Philosophy, The Supreme Court on February 18, 2015 at 8:45 am

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El artículo original se encuentra aquí. Traducido del inglés por Mariano Bas Uribe.

Pocas cosas dividen a los libertarios como la Decimocuarta Enmienda de la Constitución de Estados Unidos. Gene Healy ha observado que “Liberales clásicos de buena fe se han encontrado en ambos lados de la discusión”.

Por un lado están los que alaban la enmienda por evitar el poder de los estados para prejuzgar, dirigir, regular o usar fuerza de cualquier tipo para imponer leyes discriminatorias sobre sus ciudadanos. Por el otro están los que, aunque reconozcan la naturaleza problemática de las malas conductas y los actos inmorales del estado, no están dispuestos a consentir la transferencia de poder de los estados al gobierno federal, y en particular al poder judicial federal.

La división se reduce a las visiones del federalismo, es decir, al equilibrio o separación de los gobiernos estatales y nacional.

Las secciones primera y quinta de la Decimocuarta Enmienda son las más polémicas. La Sección Uno incluya la Cláusula de Ciudadanía, la Cláusula de Privilegios o Inmunidades, la Cláusula de Proceso Debido y la Cláusula de Igual Protección y la Sección Cinco otorga al Congreso la autoridad para aplicar legislativamente la enmienda. Estas disposiciones han dado mayores poderes al gobierno nacional, permitiendo a los tribunales federales a hacer que los estados cumplan las leyes federales con respecto a ciertos derechos (o supuestos derechos) individuales.

El Tribunal Supremo de Estados Unidos, en Barron v. Baltimore (1833), sostuvo que la Declaración de Derechos (las primeras diez enmiendas a la Constitución de EEUU) obligaban solo al gobierno federal y no a los gobiernos estatales. Mediante la Decimocuarta Enmienda, que fue ratificada oficialmente en 1868, el Tribunal Supremo de Estados Unidos y los tribunales federales inferiores han “incorporado” gradualmente la mayoría de las disposiciones de la Declaración de Derechos para aplicarlas contra los estados. Así que el gobierno federal se ha empoderado para hacer que los gobiernos estatales cumplan disposiciones que originalmente solo pretendían restringir los abusos federales.

Si el gobierno federal fuera el único o el mejor mecanismo para reducir el tipo de discriminación y violaciones de derechos prohibidos por la Decimocuarta Enmienda, esta sería bienvenida y aceptada. Pero no es el único correctivo concebible y, aparte, ¿no es contraintuitivo para los libertarios aplaudir y defender un aumento tanto en el ámbito como en el grado del poder federal, incluso si ese poder, en algunas ocasiones, haya producidos resultados admirables?

En contextos no relacionados con la Decimocuarta Enmienda, casi nunca resulta polémico para los libertarios promover remedios no gubernamentales, locales o descentralizados, para leyes y prácticas injustas y discriminatorias. A menudo se alega que la industria y el comercio y la simple economía son mejores mecanismos para reducir el comportamiento discriminatorio, ya se base en raza, clase, sexo, género o lo que sea, que la fuerza del gobierno. Aun así, frecuentemente esos libertarios que hacen sonar las alarmas acerca de las aproximaciones gubernamental, federal y centralizada de la Decimocuarta Enmienda a las leyes y prácticas discriminatorias son tratados de forma poco sincera, en lugar de con argumentos, como defensores de aquellas leyes y prácticas, en lugar de como oponentes por principio de las reparaciones federales centralizadas para daños sociales.

Cualquier debate sobre la Decimocuarta Enmienda debe ocuparse de la validez de esta aprobación. Durante la Reconstrucción, la ratificación de la Decimocuarta Enmienda se convirtió en una condición previa para la readmisión en la Unión de los antiguos estados confederados. Healy ha llamado a esto “ratificación a punta de bayoneta”, porque, dice, “para acabar con el gobierno militar, se obligó a los estados sureños a ratificar la Decimocuarta Enmienda”. La condición natural de esta reunificación contradice la afirmación de que la Decimocuarta Enmienda fue ratificada por un pacto mutuo entre los estados.

Los jueces federales consideran irrelevante el propósito de la enmienda

En 1873, el juez Samuel F. Miller, junto con otros cuatro jueces, sostuvo que la Decimocuarta Enmienda protegía los privilegios e inmunidades de la ciudadanía nacional, no la estatal. El caso afectaba a regulaciones estatales de mataderos para ocuparse de las emergencias sanitarias que derivaban de sangre animal que se filtraba en el suministro de agua. El juez Miller opinaba que la Decimocuarta Enmienda estaba pensada para ocuparse de la discriminación racial contra los antiguos esclavos en lugar de para la regulación de los carniceros:

Al acabar la guerra [de Secesión], los que habían conseguido restablecer la autoridad del gobierno federal no se contentaron con permitir que esta gran ley de emancipación se basara en los resultados reales de la contienda o la proclamación del ejecutivo [la Declaración de Emancipación], ya que ambos podían ser cuestionados en tiempos posteriores, y determinaron poner estos resultado principal y más valioso en la Constitución de la unión restaurada como uno de sus artículos fundamentales.

Lo que dice el juez Miller es que el significado y propósito de la Decimocuarta Enmienda (proteger y preservar los derechos de los esclavos liberados) se desacredita cuando se usa para justificar la intervención federal en los asuntos económicos cotidianos de un sector estatal concreto. La regulación estatal de los mataderos de animales no es una opresión del mismo tipo o grado que la esclavitud de gente basada en su raza. Argumentar otra cosa es minimizar la gravedad de la ideología racista.

El juez Miller reconocía que la regulación estatal en cuestión era “denunciada no solo por crear un monopolio y conferir privilegios odiosos y exclusivos a un pequeño número de personas a costa de una buena parte de la comunidad de Nueva Orleáns”, la ciudad afectada por los mataderos en cuestión, sino asimismo como una privación del derechos de los carniceros a ejercitar su profesión. Sin embargo, el juez Miller no creía que el gobierno federal tuviera derecho bajo la Constitución a interferir con una autoridad que siempre se había concedido a gobiernos estatales y locales.

Habiendo establecido al alcance limitado de la cláusula de privilegios o inmunidades en los Casos de los mataderos, el Tribunal Supremo acudió posteriormente a la Cláusula de Igual Protección y la Cláusula del Proceso Debido para echar abajo leyes bajo la Decimocuarta Enmienda. Pero el Tribunal Supremo no se ha detenido ante las leyes estatales: ha usado la Cláusula de Igual Protección y la Cláusula del Proceso Debido como pretexto para regular a ciudadanos y empresas privadas. La Decimocuarta Enmienda, que pretendía reducir la discriminación, se ha usado, paradójicamente, para defender programas de acción afirmativa que discriminan a ciertas clases de personas.

Ceder el poder a los jueces federales no les predispone a la libertad. Como la Sección Cinco de la Decimocuarta Enmienda permite al Congreso aprobar enmiendas o leyes que traten de infracciones estatales a la libertad individual, no es necesario ni constitucionalmente sensato que el poder judicial federal asuma ese papel. Los miembros del Congreso, al contrario que los jueces federales que disfrutan del cargo vitaliciamente, son responsables ante los votantes en sus estados y por tanto es más probable que sufran por su infidelidad a la Constitución.

A nivel conceptual, además, parece extraño que los libertarios defiendan internamente lo que condenan en relaciones exteriores, a saber, la doctrina paternalista de que un gobierno central más poderoso tendría que usar su músculo para obligar a cumplir a unidades políticas más pequeñas.

El legado de la enmienda

¿Ha generado resultados constructivos la Decimocuarta Enmienda? En muchas áreas, sí. ¿Son deplorables algunas de las ideologías contra las que se ha dirigido? En muchos casos, sí. ¿Eran malas las normas contra el mestizaje, las normas de segregación escolar y las normas prohibiendo a los afro-americanos actuar como jurados? Sí, por supuesto. Sin embargo no se deduce que solo porque algunos casos bajo la Decimocuarta Enmienda hayan invalidado estas malas leyes, esta sea necesaria o incondicionalmente buena, especialmente a la vista de la pendiente resbaladiza de precedentes que con el tiempo distancian a las normas de su aplicación pretendida. “Si los tribunales empiezan a usar la Decimocuarta Enmienda para aplicar derechos naturales libertarios”, advierte Jacob Huebert en Libertarianism Today, “no sería más que un pequeño paso para que empezaran a usarla para aplicar derechos positivos no libertarios”.

Intelectuales de la izquierda como Erwin Chemerinsky, Charles Black, Peter Edelman y Frank Michelman han defendido la protección y aplicación de “derechos de subsistencia” bajo la Decimocuarta Enmienda. Estos incluirían los derechos a comida, atención sanitaria y salario mínimo proporcionados por el gobierno. Las leyes estatales que evitaran estos derechos (que no proporcionaran estas prestaciones sociales) se considerarían inconstitucionales; el ejecutivo federal aseguraría así que todo ciudadano de los estados transgresores reciba atención sanitaria, alimentos y una renta básica, todo subvencionado por los contribuyentes.

Estoy dispuesto a admitir no solo que en la práctica yo litigaría bajo las disposiciones de la Decimocuarta Enmienda para representar competente y éticamente a mi cliente (imaginar un sistema en el que el poder federal no esté tan atrincherado es inútil para litigantes en un sistema real en que el poder federal está profundamente arraigado), pero también que, en un mundo más ideal, podría haber otras formas menos deletéreas de luchar contra discriminación y violaciones de derechos que la Decimocuarta Enmienda. El taller de la actividad diaria no atiende abstracciones esperanzadas. No se puede deshacer un sistema de la noche a la mañana: los abogados deben actuar con las leyes que tienen disponibles y no pueden inventar otras nuevas para sus casos o agarrarse a una mera política. No si quieren tener éxito.

En ausencia de la Decimocuarta Enmienda, muchas personas y empresas con quejas válidas podrían no tener soluciones constitucionales. Sin embargo eso no significa que los términos y efectos de la Decimocuarta Enmienda sean incuestionablemente deseables o categóricamente buenos. Se pueden celebrar las victorias logradas mediante la Decimocuarta Enmienda mientras se reconoce que debe haber un modo mejor.

La Decimocuarta Enmienda no es en sí misma un bien positivo sino un animal peligroso a manejar con cuidado. Los libertarios como clase tienen una devoción manifiesta impropia a su funcionamiento. Necesitamos en su lugar un debate, abierto, honrado y colegiado acerca de los méritos y la función de esta enmienda, no sea que otras criaturas similares miren al futuro y a costa de nuestras amadas libertades.

 

Review of Damon Root’s “Overruled: The Long War for Control of the U.S. Supreme Court”

In American History, Arts & Letters, Book Reviews, Books, Judicial Activism, Judicial Restraint, Jurisprudence, Libertarianism on January 28, 2015 at 8:45 am

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This review originally appeared here in the American Spectator.

The sounds coming from the echo chamber suggest that Damon Root’s new book Overruled: The Long War for Control of the U.S. Supreme Court has been an uncheckered success. On the book’s cover Randy Barnett declares it

a riveting account of the raging debate over the future of our Constitution between those who contend that judges must ‘defer’ to legislatures and those who view the judiciary as an equal branch of government whose mandate is to secure the rights and liberties of the people by holding government to its just powers.

Writing for the Volokh Conspiracy blog at the Washington Post, Ilya Somin praises the book as the “most thorough account of the libertarian-conservative debate over judicial review so far.”

In the Wall Street Journal Michael Greve critiques the obvious weaknesses in Root’s narrative — its oversimplification — with which, Greve says, “legal historians may quarrel.” But Greve accepts Root’s negative portrayal of Justices Oliver Wendell Holmes, Jr., Louis Brandeis, and Felix Frankfurter, notable expositors of the doctrine of judicial restraint. The trio, Greve claims, “had not the foggiest notion of the Constitution,” which they “loathed… as inimical to their vision of government by experts.”

Here’s a contrary opinion from a libertarian student of the law: Root’s book suffers from caricature. His approach pits essentialized binaries (what he calls “two competing visions”) against one another in a fight for the good that one binary allegedly represents. History is rich and complex and not simply or without consequence pressed into two-sided struggles. Root would have benefited from a more concerted effort to understand the range of perspectives and heuristics embraced by jurists across a spectrum of backgrounds and beliefs.

Root purports to tell a story “which stretches from the Civil War period to the present,” but the key players are just three people: Holmes, Robert Bork, and Justice Stephen Field. The first two represent the doctrine of judicial restraint that might send “the whole country straight to the devil”; the third man represents an “aggressive legal approach” that Root attributes to libertarianism. Root seeks to show how conservatives over the course of the twentieth century adopted a jurisprudence of restraint that was once the darling of progressives. The subtext is twofold: that today’s conservatives need to be told their legal theory derives from the left, and that current libertarian jurisprudents are part of a more dependable school of thought.

The problem is that the divide between libertarians and conservatives is not so clear in the legal context. In fact, many of both adhere to the basic tenets of originalism and textualism, although within those operative paradigms they may disagree. It’s also difficult to discern whether a judge is conservative or libertarian, since his job is to analyze constitutional provisions and statutes and prior decisions to determine what the law is, not what he wants it to be. A judge may be forced to rule against his political interests if the statutory authority is both unambiguous and constitutional; in such moments the judge has no power to overturn the will of the voters as manifest in legislation or to alter the Constitution.

The most devastating shortcoming of Overruled is its tendency to reduce complicated cases and figures to artless political categories. Root’s Holmes is a fictional type, a stock character, not the actual jurist of history. Look no further than Thomas Sowell for a libertarian — or someone often categorized as a libertarian — who champions Holmes’s jurisprudence rather than considering him an enemy. The real Holmes had much in common with F.A. Hayek, as Richard Posner has revealed in law review articles and in his book Law, Pragmatism, and Democracy.

Before Hayek, Holmes formulated his own version of “the knowledge problem,” maintaining that no one judge or group of judges should presume to understand the facts on the ground well enough to direct the goings on in local communities with disparate values and conflicting objectives. We learn the diverse preferences of citizens through the feedback mechanisms of the market and should not have them prescribed for us through the commands of judges and justices. That’s why Holmes deferred to state legislatures to, in his words, “prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states.”

Root advocates an inversion of Holmes’s jurisprudence, for something loosely akin to rule by Platonic Guardians: put wise activist philosophers on the bench, he seems to say, and they can waive their magic wands to perform libertarian miracles. With such power and leeway, couldn’t they also do the opposite? Couldn’t they impose on us a scheme of “rights” — to subsistence or a basic income — that’s antithetical to the free market? Scholars on the left such as Erwin Chemerinsky, Charles Black, Peter Edelman, and Frank Michelman champion the same expansive approach that Root celebrates. Their goal, however, is to empower the judiciary to impose a statist agenda by regulating business and eradicating economic liberties.

If Root’s claim is true that libertarian jurisprudents are “the sworn enemies” of Holmes, then why has Posner — who’s no dummy — declared Holmes to be “liberal only in the nineteenth-century libertarian sense, the sense of John Stuart Mill and, even more, because more laissez-faire, of Herbert Spencer”? Posner goes further, suggesting that Holmes “made laissez-faire his economic philosophy.”

Holmes was influenced by Spencer and versed in Mill. It isn’t accurate to assert, as Root does:

Spencer was regarded as the late nineteenth century’s leading proponent of full-throated laissez-faire. That’s why Holmes cast him as a villain in his Lochner dissent.

For starters, Holmes did not cast Spencer as a villain; he simply stated that Spencer’s views on economics were irrelevant to the Fourteenth Amendment, which secured federal citizenship for former slaves and prohibited the states from abridging the privileges or immunities of that citizenship. In reality, Holmes’s assessments of Spencer were mixed, and the justice’s letters are sprinkled with references to him. He cited Spencer while developing a theory of torts. He read Spencer’s autobiography. He criticized Spencer less for his philosophy than for his style and idealism, saying, for instance, “He is dull. He writes an ugly uncharming style, his ideals are those of a lower middle class British Philistine.”

Louis Menand has written that Holmes’s “personal sympathies were entirely with the capitalists.” That seems right: he once jested that “if they could make a case for putting Rockefeller in prison I should do my part; but if they left it to me I should put up a bronze statue of him.” Nevertheless, Holmes was no libertarian. What libertarian would proclaim, “Taxes are what we pay for civilized society”? Just because he wasn’t a libertarian, however, doesn’t mean he offered no good insights.

Holmes read Adam Smith shortly before writing his dissent in Abrams v. U.S., in which he trumpeted that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This dissent has been dubbed “libertarian” by so many commentators that listing them all would take up the space of this entire review. Surprisingly, Root mentions Holmes’s affirmance of the conviction of Eugene Debs under the Espionage Act of 1917 but fails to address this more famous dissent, which doesn’t square with Debs’s case.

It’s possible to attack Holmes shrewdly, without raw polemics that skip over inconvenient facts. David Bernstein’s Rehabilitating Lochner does that, condemning the ideas and not the man who held them. Only the cartoonish cover of Bernstein’s book, which depicts Holmes being punched out by Justice Wheeler Peckham in a boxing ring, is unfair to Holmes.

Whether Bork can be easily lumped together with Holmes is another matter. Bork called Holmes’s dissent in Lochner “flawed,” even though he agreed with most of it. He decried Holmes’s marketplace metaphor in Abrams as “foolish and dangerous.”

Root’s book may appeal to already-within-the-pale libertarian readers but won’t interest many beyond that audience. That’s probably a good thing. The truth is that judicial restraint and judicial activism are not palpably partisan creeds that can be readily summarized or easily illustrated. Labeling them “conservative” or “libertarian” is not conclusive as to their substance. Judges with wildly divergent worldviews have pushed the limits of their authority to reach their desired result in certain cases.

In the book’s opening pages, Root asserts that Elena Kagan, who claimed in her confirmation hearings that the political branch, not the judiciary, was the proper mechanism for dispensing with bad laws, “had placed herself squarely within a long and venerable legal tradition that seeks to give the government wide control over regulatory affairs while simultaneously preventing most interference from the courts.” This is missing the point. The courts, which Root wishes to vest with wider control over regulatory affairs, are not necessarily an outside check on our problematically powerful government; they are part of our problematically powerful government.

The federal judiciary is an arm of the state, plain and simple, peopled by unelected judges and justices who aren’t accountable to the people. It’s thus strange to see Root cast the judiciary as the people’s branch. If a member of Congress isn’t representing the people’s interest, the people can, excuse me, throw the rat out. Federal judges, on the other hand, must be impeached.

Root’s recommendation for a more robust judiciary makes sense only if most judges are libertarians. Most aren’t. Therein lies the case for judicial restraint.

Remedies for Breach of Contract

In Advocacy, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, Philosophy on November 5, 2014 at 8:45 am

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A breach of contract occasions potential damages traditionally measured in the form of three remedies: “expectation,” “restitution,” or “reliance.” The goal of the expectation remedy, which is the most common measure of damages for a breach of contract and is popularly said to confer the “benefit of the bargain,” is to put the non-breaching party in as good of a position as he or she would have been in had the breaching party performed the contract.

When a breaching party has defectively performed a contract, for instance, the non-breaching party can recover the cost of remedying the defective performance, i.e., the cost of completion. In a breach of contract lawsuit for the delivery of personal property at a fixed time and place, the proper measure of damages is the contract price subtracted by the market price at the place and time of delivery. By comparison, the proper measure of damages for the failure to complete a construction contract is the cost of completion subtracted by the amount that remains unpaid under the contract.

Restitution remedies are designed to prevent “unjust enrichment.” They represent the interest of a non-breaching party in recovering the value that was conferred upon the breaching party through the effort to perform a contract. In other words, restitution seeks to restore what was lost to the non-breaching party or to make the non-breaching party whole again.

Reliance remedies, finally, aim to put the non-breaching party in as good a position as he or she was in before the promise or agreement was made. Whereas expectation damages are “forward-looking” and consider what position the non-breaching party would have been in had the contract been performed, reliance damages are “backward-looking” and consider what position the non-breaching party would have been in had the contract never been contemplated.

These are not the only remedies available when a breach of contract occurs, but they are the most widely recognized and commonly implemented of such remedies.

Causation and Criminal Law

In America, Criminal Law, Humanities, Jurisprudence, Justice, Law, Philosophy on October 29, 2014 at 8:45 am

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Actus reus, which is shorthand for the opening words in the Latin phrase actus non facit reum nisi mens sit rea (“an act does not make a person guilty unless his mind is also guilty”), is one element of a crime that a prosecutor must prove to establish criminal liability. A prosecutor must prove, in particular, that the defendant’s actus reus caused the harmful result at issue in the case. To do so, the prosecutor must show not only that the act was the “actual cause” of the harm (i.e., the “factual cause” or the “but for” cause”) but also that the act was the “proximate cause” of the harm (i.e., the “legal cause”).

The so-called “but for” test, also known as the sine qua non test, seeks to determine whether a particular act brought about the particular harm to the alleged victim. If the question whether the harm would not have happened but for the defendant’s action is answered in the affirmative, then causation is established; accordingly, if the harm would have happened notwithstanding the defendant’s act, then the defendant’s act is not a “cause in fact.” The “but for” test is not satisfied unless the prosecutor can show that the harm was foreseeable; if the harm was not foreseeable, then the defendant cannot be said to be the actual cause of the harm, only the proximate cause of the harm.

Determining causation is difficult when two people are performing different acts at different times, and each of their acts could have caused the harm at the time the harm occurred. The two acts by the two different people constitute concurrent sufficient causes under the “but for” test. Because there are two different people who could have “caused” the harm according to the “but for” test, yet only one of the two people actually caused the harm, the “but for” test fails to establish causation.

There are two tests that courts may apply when there are multiple sufficient causes under the facts. The first is the substantial factor test, according to which a defendant is criminally liable if his acts are shown to be a substantial factor leading to the harm to the alleged victim. This test is not commonly used because it can be arbitrary and subjective. The better test is a modified form of the “but for” test, formulated this way: “But for the defendant’s voluntary act, the harm would not have occurred not just when it did, but as it did.” Even this revised test falls short of ideal. For instance, it is not clear how this test is applied when two non-lethal acts combine to cause the death of one victim.

Regardless of which tests for causation obtain or prevail in a particular case, a prosecutor must establish each element of a crime beyond a reasonable doubt. That standard, at least, is a legal certainty.

The Felony-Murder Rule: Background and Justification

In American History, Britain, Criminal Law, History, Humanities, Jurisprudence, Justice, Law, Oliver Wendell Holmes Jr., Philosophy on October 8, 2014 at 8:45 am

Allen 2

The rule at common law as incorporated into the legal system of the early United States was that a person is guilty of murder (and not some lesser offense of killing) if he killed another person during the commission or attempted commission of any felony. This rule is known as the “felony-murder rule.” It was abolished in England in the mid-20th century and never existed in such continental nations as France or Germany. The rule became common, however, in various jurisdictions throughout the United States, although it never escaped criticism.

Felony murder is bifurcated into first-degree and second-degree murder: the former arises when the killing of another results from the commission of an enumerated felony; the latter arises when the killing of another results from the commission of an unspecified felony. The felony-murder rule negates any investigation into the objective intent of the offender; it obtains regardless of whether the offender killed his victim intentionally, recklessly, accidentally, or unforeseeably. Although it dispenses with the element of malice that is requisite to a finding of murder, the felony-murder rule retains by implication the concept of malice insofar as the intent to commit a felony is, under the rule, constitutive of malice for murder. The rule, in essence, conflates the intent to commit one wrong with the intent to commit another wrong, namely, the termination of another’s life. The intent to do a felonious wrong is, on this understanding, sufficiently serious to bypass any consideration of the nature of the exact wrong that was contemplated.

The most common justification for the felony-murder rule is that it deters dangerous felonious behavior and decreases the chance that an innocent bystander will suffer bodily harm from a high-risk felony. The possibility of a more severe conviction and sentence, according to this theory, reduces the number of negligent and accidental killings that might have taken place during the commission of a felony. Oliver Wendell Holmes, Jr., supported the felony-murder rule, believing as he did that a felonious offender who kills another person during the commission of any felony ought to be punished as a murderer, even if the killing was not foreseeable based on the circumstances of the felony. Critics of the deterrence justification for the felony-murder rule have argued that no rule can deter an unintended act.

Another justification for the felony-murder rule is that it affirms the sanctity and dignity of human life. This justification answers in the affirmative the question whether a felony resulting in death is more serious than a felony not resulting in death. Because a felony resulting in death is, in fact, more serious, according to this logic, a felony murderer owes a greater debt to society and must accordingly suffer a more extreme punishment. Critics of this view argue that the culpability for the two separate harms—the felony and the killing—must remain separate and be analyzed independently of each other. These critics suggest that the felony-murder rule runs up against constitutional principles regarding proportional punishment (i.e., whether the punishment “fits” the crime) and that there is no justice or fairness in punishing a felon for a harm (death) that was unintended.

The Immunity Community

In America, American History, Arts & Letters, Britain, History, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy on September 10, 2014 at 8:45 am

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This piece first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

The doctrine of sovereign immunity derives from the English notion that “the king can do no wrong” and hence cannot be sued without his consent. The purpose of this doctrine was, in England, from at least the Middle Ages until eighteenth century, to bar certain lawsuits against the monarch and his or her ministers and servants. With the rise of the English Parliament after the death of Elizabeth I, government officers and politicians sought to gain the power of immunity that the monarch and his or her agents had enjoyed.

In practice, however, English subjects were not totally deprived of remedies against the monarch or the government. The doctrine of sovereign immunity was not an absolute prohibition on actions against the crown or against other branches of government;[1] subjects could avail themselves of petitions of right or writs of mandamus, for instance, and monarchs fearful of losing the support of the people would often consent to be sued.

It was not until the monarchy had been demonstrably weakened that the doctrine of sovereign immunity began to be espoused with added urgency and enforced with added zeal. In the late eighteenth century, Sir William Blackstone intoned in his Commentaries on the Laws of England that the king “is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly of weakness.” These lines convert sovereign immunity into sovereign infallibility, a more ominous yet more dubious pretension.

Once the monarchy had been abolished altogether, the idea that the sovereign had to consent to be sued no longer held credence. As Louis L. Jaffe explains, “Because the King had been abolished, the courts concluded that where in the past the procedure had been by petition of right there was now no one authorized to consent to suit! If there was any successor to the King qua sovereign it was the legislature,” which, having many members subject to differing constituencies, was not as accountable as the monarch had been to the parties seeking to sue.[2]

The principle of sovereign immunity carried over from England to the United States, where most states have enshrined in their constitution an absolute bar against suing the State or its agencies and officers whose actions fall within the scope of official duties. The Eleventh Amendment to the U.S. Constitution likewise states that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This provision, which applies only in federal courts and which does not on its face prohibit a lawsuit against a state by a citizen of that same state, was adopted in response to the ruling in Chisholm v. Georgia (1793), a case that held sovereign immunity to have been abrogated and that vested in federal courts the authority to preside over disputes between private citizens and state governments.

Notwithstanding the complex issues of federalism at play in the Chisholm decision and in the Eleventh Amendment, the fact remains that the doctrine of sovereign immunity has been applied with widening scope and frequency since the states ratified the Eleventh Amendment in 1795. The U.S. Supreme Court has contributed to the doctrine’s flourishing. “The Supreme Court’s acceptance of sovereign immunity as constitutional principle,” explains one commentator, “depends on its determination of the intent of the Framers, which ignores a great deal of historical evidence from the time of the founding and relies primarily on a discredited account of the Eleventh Amendment first articulated in the 1890 case of Hans v. Louisiana.”[3]

State and federal courts have now built an impregnable wall of immunity around certain state and federal officers. The sovereign immunity that is enshrined in state constitutions is, in theory, not absolute because it is conferred only to certain agents and officers and does not prohibit lawsuits to enjoin such agents and officers from performing unconstitutional or other bad acts. In practice, however, the growth of qualified immunities, which is in keeping with the growth of government itself, has caused more and more agents of the State to cloak themselves in immunity.

Bus drivers, teachers, coroners, constables, high school coaches, doctors and nurses at university hospitals, security guards, justices of the peace, government attorneys, legislators, mayors, boards of education and health, university administrators, Indian reservations, prison guards and wardens, police officers and detectives, janitors in government facilities, licensing boards, tax assessors, librarians, railroad workers, government engineers, judges and justices, school superintendents and principals, towing companies, health inspectors, probation officers, game wardens, museum docents and curators, social workers, court clerks, dog catchers, contractors for public utilities, public notaries, tollbooth attendants, airport traffic controllers, park rangers, ambulance drivers, firefighters, telephone operators, bus drivers, subway workers, city council members, state auditors, agricultural commissioners—all have sought to establish for themselves, with mixed degrees of success, the legal invincibility that comes with being an arm of the state.

Yet the idea that “the king can do no wrong” makes no sense in a governmental system that has lacked a king from its inception. Its application as law has left ordinary citizens with limited recourse against governments (or against people claiming governmental status for the purpose of immunity) that have committed actual wrongs. When the government, even at the state level, consists of vast bureaucracies of the kind that exist today, the doctrine of sovereign immunity becomes absurd. If it is true that in nine states and in the District of Columbia the government employs more than 20% of all workers, imagine how many people are eligible to claim immunity from liability for their tortious conduct and bad acts committed on the job.

Local news reports are full of stories about government employees invoking the doctrine of sovereign immunity; few such stories find their way into the national media. Judge Wade McCree of Michigan, for instance, recently carried out an affair with a woman who was a party in a child-support case on his docket, having sexual intercourse with her in his chambers and “sexting” her even on the day she appeared as a witness in his courtroom. Although McCree was removed from office, he was immune from civil liability. An airport in Charleston, West Virginia, is invoking the doctrine of immunity to shield itself from claims that it contributed to a chemical spill that contaminated the water supply. Officer Darren Wilson may be entitled to immunity for the shooting of Michael Brown, depending on how the facts unfold in that investigation.

The U.S. Supreme Court once famously declared that the doctrine of sovereign immunity “has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”[4] A disestablishment is now in order. The size and scope of government is simply too massive on the state and national level to sustain this doctrine that undermines the widely held belief of the American Founders that State power must be limited and that the State itself must be held accountable for its wrongs. Friedrich Hayek pointed out that the ideal of the rule of law requires the government to “act under the same law” and to “be limited in the same manner as any private person.”[5] The doctrine of sovereign immunity stands in contradistinction to this ideal: it places an increasing number of individuals above the law.

If the law is to be meaningful and just, it must apply equally to all persons and must bind those who enforce it. It must not recognize and condone privileges bestowed upon those with government connections or incentivize bad behavior within government ranks. Sovereign immunity is a problem that will only worsen if it is not addressed soon. The king can do wrong, and so can modern governments. It’s time for these governments to be held accountable for the harms they produce and to stop hiding behind a fiction that was long ago discredited.

________

[1]See generally, Louis L. Jaffe, “Suits Against Governments and Officers: Sovereign Immunity,” 77 Harvard Law Review 1 (1963).

[2]Jaffe at 2.

[3]Susan Randall, “Sovereign Immunity and the Uses of History,” 81 Nebraska L. Rev. 1, 4 (2002-03).

[4]U.S. v. Lee, 106 U.S. 196, 207 (1882).

[5]F. A. Hayek, The Constitution of Liberty, Vol. 17 of The Collected Works of F.A. Hayek, ed. Ronald Hamowy(Routlege, 2011), p. 318.

Holmes’s Dissent in Bartels v. Iowa

In America, American History, Arts & Letters, History, Humanities, Jurisprudence, Law, Literary Theory & Criticism, Oliver Wendell Holmes Jr., Rhetoric, Rhetoric & Communication, Writing on June 18, 2014 at 8:45 am

Allen 2

Bartels v. Iowa, 262 U.S. 404 (1923), is short and to-the-point, extending and confirming the principles released by the United States Supreme Court that very day in Meyer v. Nebraska,[i] a companion case to Bartels that is also short and to-the-point. In Meyer, the Court struck down a Nebraska law restricting the teaching of modern foreign-languages to students from kindergarten to eighth grade. The majority in Meyer found that the law violated the Due Process Clause of the Fourteenth Amendment on the grounds that it infringed upon the liberty interests of teachers, who had a right to practice their profession without the interference of the state with their curriculum so long as that curriculum did not violate explicit State policy.[ii] There was, the Court reasoned, no link between the putative purpose of the law—to protect the welfare of children—and a threat to the public interest.[iii] The law was deemed arbitrary and not reasonably related to a legitimate state interest and, therefore, unconstitutional.

Holmes reserved his Meyers dissent—which maintained that this Nebraska law was constitutional—for the Bartels opinion. In Bartels, the United States Supreme Court addressed an Iowa law similar to the Nebraska regulation and reversed a decision of the Iowa Supreme Court, which had upheld the criminal conviction of a teacher who taught German to his students. “We all agree, I take it,” Holmes began his dissent, “that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one” (Bartels 412). The pronoun “we” lacks a clear referent. Does Holmes mean “we” justices or “we” Americans? The answer is probably the latter because “we” was (and is) widely and fluidly used to signify the assembled justices on the bench.

Holmes claims that the “only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment” (Bartels 412). He submits that he will not judge the law according to whether it is good or right but only pursuant to the terms of the Fourteenth Amendment. He states, to that end, that he may “appreciate the objection to the law” (“I think I appreciate the objection to the law”) but that the role of the judge is not to take sides on moral or political issues “upon which men reasonably might differ” (Bartels 412). “I am not prepared to say that it is unreasonable,” Holmes explains, using litotes, “to provide that in his early years [a student] shall hear and speak only English at school” (Bartels 412). If it is not unreasonable, then it is reasonable, and “if it is reasonable it is not an undue restriction of the liberty either of teacher or scholar” (Bartels 412).

Holmes’s dissent in Bartels is not known as one of his most notable or outstanding dissents. Nevertheless, it has been referenced not only by the United States Supreme Court[iv] but also by federal and state courts.[v] Although the majority opinion has never been overruled, Holmes’s dissent generally is cited favorably. My approximate calculation based on Westlaw searches is that this dissent has been cited almost 200 times in cases, administrative decisions, and federal court documents such as amicus curiae briefs.

The topic of his dissent—foreign languages in public schools—has been revisited by later courts because it remains relevant, and in that respect, it is not surprising that the dissent continues to be cited. Yet the topic alone does not explain why Holmes’s dissent in particular remains popular, especially if it is not binding precedent. There are other non-binding documents on the topic, including social science studies and law review articles, that are also relevant but that have not been cited in large numbers. Although Holmes’s reputation has something to do with the abundance of citations to his dissent, insofar as his legal opinion carries great weight among jurists, the properties of his dissent likely contribute to its ongoing appeal.

What are these properties? Besides litotes, mentioned above, there is also aphorism: “No one would doubt that a teacher might be forbidden to teach many things.” These words are carefully chosen. It would be absolutist to state that no one would doubt that a teacher is forbidden to teach many things, or to state that no one doubts rather than no one would doubt that a teacher might be forbidden to teach many things, or to state that no one would doubt that a teacher might be forbidden to teach a particular thing rather than many things. This short sentence is so well qualified that it manages to articulate a pithy generalization without succumbing to embellishment or misrepresentation. Moreover, the phrase “no one would doubt that a teacher might be” is anapestic, sharing the same feet of such memorable verses as “’Twas the night before Christmas and all through the house.”

In the opening line to a dissent about language, the deliberate use of sigmatism, or the repetition of “s” sounds for dramatic effect, is striking: “[…] is desirable that […] citizens of the United States should speak.” It is as if Holmes defamiliarizes the “common tongue” (his words) as he writes about the “time [of youth] when familiarity with a language is established.” At the very least, he highlights the nuances of language in a dissent expressed in nuanced language and addressing the very legality of language acquisition within a public institution. In addition, Holmes empowers his dissent with a religious-like seriousness by referring to his fellow justices as “brethren,” and he appears figuratively to objectify his “mind” as something separate from his “consciousness” when he claims that “I cannot bring my mind to believe.”

These moves are not merely literary grandstanding but the instantiation of an important feature of Holmes’s philosophical pragmatism: the fallibility of human intelligence. He will not profess certainty but will formulate his reasoning only in cautious qualifications.

Holmes follows, therefore, with the declaration that the objection to the prohibition on the teaching of foreign languages in Iowa “appears to me to present a question upon which men reasonably might differ”  (my emphasis). His belief in the inherent limitations of human faculties prevents him from saying that the objection does present a question upon which reasonable men may differ.

Having introduced the theme of human knowledge, he turns to metonymy by referring to the state legislation as an “experiment” that the United States Supreme Court should not prevent from taking place. For aught that appears, either the term “experiment” or the state legislation may indicate the other; they are reversible concepts within the paradigm that Holmes establishes here. Treating the states as if they were laboratories, he gestures toward his conviction that the widening capacity of the aggregate knowledge of the community is made possible by allowing social experiments to take place on the most local levels, where the consequences of failure are minimized, whereas the failure of United States Supreme Court justices to rule properly regarding some law or another will have vast consequences that affect social coordination throughout the entire country. Subtle turns of phrase are enough for Holmes to implicate this grand philosophical notion to which he owes his most insightful dissents.

[i]262 U.S. 390 (1923).

[ii] “As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.” (Meyer 403)

[iii] “The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the state’s power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v. Tanner [citation omitted] pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state.” (Meyer 403).

[iv] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 518-19 (1969).

[v] Examples of federal court cases referencing Holmes’s dissent include the following: Yniguez v. Arizonans for Official English, 42 F. 3d 1217, 1242 (9th Cir. App. 1994); Kramer v. New York City Bd. of Educ. 715 F. Supp. 2d 335, 342 (E.D. New York 2010); and Cary v. Board of Ed. of Adams-Arapahoe School Dist. 28-J, Aurora, Colo. 598 F. 2d 535, 540 (10th Circ. App. 1979). Examples of state court cases referencing Holmes’s dissent include State v. Hoyt. 84 N.H. 38, 146 A. 170, 171 (N.H. 1929), and Hamilton v. Deland, 198 N.W. 843, 227 Mich. 111, 113 (Mich. 1924).

 

 

Oliver Wendell Holmes, Jr., and the Literary Quality of his Prose

In America, American History, American Literature, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Oliver Wendell Holmes Jr., Poetry, Rhetoric, Writing on June 11, 2014 at 8:45 am

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Oliver Wendell Holmes Jr.’s writings are known for their literary qualities.  The Class Poet at Harvard, the son of a famous poet, and a lifelong devotee of Emerson, Holmes often rendered his judicial writings in poetic prose.  Consider the following lines from Gitlow v. New York, which I have reformulated as a poem:

 

                 Gitlow v. New York[i]

                 A Poem[ii] (1925)

Every idea

is an incitement.

It offers itself for belief

and if believed

it is acted on

unless some other belief

outweighs it

or some failure of energy

stifles the movement

at its birth.

The only difference

between the expression

of an opinion and an incitement

in the narrower sense

is the speaker’s enthusiasm

for the result.

Eloquence may set fire

to reason.

But whatever may be thought

of the redundant discourse

before us

it had no chance of starting

a present conflagration.

 

The plain, raw idioms and variable feet in these lines resemble those characteristically employed by Stevens and William Carlos Williams. Holmes’s language here is similar in tone and rhythm to Williams’s in “The Red Wheelbarrow,” which was published just two years before this dissent. Holmes’s alliterative use of the letter “n” emphasizes mobility, momentum, and ignition: “incitement,” “energy,” “movement,” “incitement,” “enthusiasm,” “conflagration.” These nouns suggest provocation, stimulus, instigation; they are tied to ideas themselves, as in the line “every idea is an incitement,” hence the correspondingly alliterative “n” sounds in the words “expression” and “reason.” The metrical regularity of “Every,” “offers it…,” “for belief,” “failure of,” “energy,” “stifles the,” “at its birth,” “difference,” “narrower,” “Eloquence,” and “had no chance” accents the activity associated with thinking insofar as these dactylic words and phrases pertain to ideas or beliefs. Holmes follows a series of dactyls with spondaic feet just as he describes the possibility of combustion: “Eloquence [stress / slack / slack] may set fire [stress / stress / stress / slack] to reason [stress / stress / slack].” It is as though he wishes to create the sense of building pressure and then of sudden release or combustion. Two unstressed lines abruptly interrupt the heightened tension; the first appears with the transitional conjunction “But,” which signals a change in the tone. Holmes appears to reverse the intensity and calm his diction as he assures us that the “redundant discourse,” a phrase made cacophonous by the alliterative “d” and “s” sounds, has “no chance of starting a present conflagration.” A sudden move to iambic feet and hence to a lightened tone rounds out these lines and suggests that Holmes has smothered or extinguished whatever energy had been building with the three-syllable feet. These lines have become some of the most famous in American constitutional history most likely because of their memorable qualities, which contributed to the eventual vindication of the dissent.

Be that as it may, feet and meter are basic to English speech and writing and may be displayed in many other legal writings by less able judges and justices. It would be difficult to prove that Holmes deliberately set out to invest these lines with literary features, at least those pertaining to alliteration and feet. Holmes no doubt had an ear for language and probably intended to employ alliteration, rhythm, and rhyme in his writings, but how far does his intent extend?  Does the scanning exercise above give Holmes too much credit and attribute to his writings undeserved praise?  There is no empirical way to answer this question, but the speculation is, I think, worth the time.

 

[i] Gitlow v. N.Y., 268 U.S. 652 (1925).

 

[ii] My addition.

 

Lines to Holmes

In America, Arts & Letters, Creative Writing, Humanities, Jurisprudence, Law, Law-and-Literature, Literature, Oliver Wendell Holmes Jr., Poetry, Writing on May 14, 2014 at 8:45 am

Allen 2

Lines to Holmes

A canon of rules and principles,

embodied in individual cases,

aggregated by judges

from different courts

and with different ranks,

makes up the common law system.

Perhaps the better way to put it

is that the common law is a canon

unto itself.

Rules and principles

that regulate people

are always engaged in a struggle for existence,

always subject to challenge and subversion

by the trends and movements of culture.

Tested by their ability

to obtain to society

and to yield constructive results,

they compete with one another

and become canonized

only if they prove

fit to survive the test of time,

the onslaught of new technologies,

which necessitate new approaches

to lawyering.

This is the law of the law

today as always.

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