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Love and the Law Professors

In Academia, Arts & Letters, Book Reviews, Books, Conservatism, Jurisprudence, Law, Law School, Legal Education & Pedagogy, Legal Research & Writing, Liberalism, Oliver Wendell Holmes Jr., Pedagogy, Scholarship, Teaching, Writing on March 29, 2017 at 6:45 am

This review originally appeared here in The University Bookman. 

As improbable as it sounds, someone has written “a love letter to the teaching of law.” At least that’s what Stephen B. Presser sets out to do in Law Professors, which is less pedagogical than it is historical and biographical in approach. If not a love letter, it’s at minimum a labor of love about the genealogy of American legal education, for which Presser is admirably passionate.

Even more improbable is how a book about three centuries of law professors could be enjoyable. Yet it is. Every rising law student in the United States should read it as a primer; experienced legal educators should consult it to refresh their memory about the history and purpose of their profession.

Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Prizker School of Law and the legal-affairs editor of Chronicles. He’s a leading voice of what is sometime referred to as paleoconservatism, who maintains that our political dysfunction derives in part from the methods and jurisprudence of law professors. His book might be called a diagnosis of our social ailments, the cure being the repurposing of legal education.

Beneath his silhouettes—two involve fictional figures (Lewis Eliot and Charles Kingsfield) while the other twenty deal with actual flesh-and-blood teachers—lies a structural dualism that enables him to classify his subjects under mutually exclusive heads: those who believe in higher law and divine order, and those who believe that laws are merely commands of some human sovereign. The former recognize natural law, whereby rules and norms are antecedent to human promulgation, whereas the latter promote positivism, or the concept of law as socially constructed, i.e., ordered and instituted by human rulers.

These binaries, Presser says, explain the difference between “common lawyers and codifiers,” “advocates of Constitutional original understanding and a living Constitution,” and “economic analysts of law and Critical Legal Studies.” Here the dualism collapses into itself. The common-law method is at odds with originalism in that it is evolutionary, reflecting the changing mores and values of local populations in a bottom-up rather than a top-down process of deciphering governing norms. Constitutionalism, especially the originalism practiced by Justice Scalia, treats the social contract created by a small group of founding framers as fixed and unamendable except on its own terms. The law-and-economics movement as represented by Judge Posner and Judge Easterbrook is difficult to square with natural law because it’s predicated on cost-benefit analysis and utilitarianism. In short, it’s a stretch to group the common law, originalism, and the law-and-economics movements together, just as it’s strange to conflate legislative codification with critical legal studies. Distinctions between these schools and traditions are important, and with regard to certain law professors, the binaries Presser erects are permeable, not rigid or absolute.

Presser’s narrative is one of decline, spanning from the late eighteenth century to the present day. It begins with Sir William Blackstone, “the first of the great modern law professors.” Presser may overstate the degree to which Blackstone propounded a common-law paradigm that was frozen or static and characterized by biblical principles. The influence of Christianity and moral principles is unmistakable in Blackstone’s Commentaries on the Law of England, especially in its introductory and more general sections, but the vast majority of the treatise—which was intended for an audience of young aspiring lawyers, not scholars or jurists—describes basic, mundane elements of the British legal system and organizes judicial principles and decisions topically for ease of reference. Presser is right that, more than anyone else, Blackstone influenced early American lawyers and their conception that the common law conformed to universal, uniform Christian values, but Jefferson’s more secular articulation of natural law as rooted in nature had its own adherents.

Other teachers included here are James Wilson (after whom Hadley Arkes has named a fine institute), Joseph Story (whose commitment to natural law is offset by his federalist and nationalist leanings), Christopher Columbus Langdell (whose “original and continuing impact on American legal education is unparalleled”), Oliver Wendell Holmes Jr. (whose career as a professor was short and undistinguished), John Henry Wigmore (whose “sometimes idol” was Holmes), Roscoe Pound (“a figure of extraordinary talent”), Karl Llewellyn (the “avatar” of the legal-realist movement), Felix Frankfurter (“no longer the God-like figure at Harvard”), Herbert Wechsler (“the anti-Holmes”), Ronald Dworkin (who reformulated the theories of John Rawls), Richard Posner (the subject of William Domnarski’s recent biography), Antonin Scalia (“best known for his bold conservative jurisprudence”), and several still-living contemporaries.

Presser is particularly hard on Holmes, relying on Albert Alschuler’s harsh and often careless assessments of the Magnificent Yankee. He charges Holmes with embracing the view that judges were essentially legislators and suggests that Holmes was “policy-oriented.” Although this portrayal is popular, it is not entirely accurate. In fact, Holmes’s jurisprudence was marked not by crude command theory (the Benthamite version of which he adamantly rejected) but by deference and restraint. Presser himself recalls Alschuler in claiming that Holmes “was prepared to approve of virtually anything any legislature did.”

So was Holmes a policy-oriented judge legislating from the bench, or did he defer to legislatures? Undoubtedly the latter. Only once during his twenty years on the Massachusetts Supreme Judicial Court did he hold legislation to be unconstitutional. As a Supreme Court Justice, he almost programmatically deferred to state law. “[A] state legislature,” he said, “can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States,” adding that courts “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Rather than imposing his personal policy preferences, Holmes believed that a judge’s “first business is to see that the game is played according to the rules whether [he] like[s] them or not.” If Holmes’s conception of judicial restraint and the Fourteenth Amendment had carried the day, the holdings in Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges, among others, would not have occurred.

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

Donald Trump, the Cowboy

In America, American History, Art, Arts & Letters, Conservatism, Film, History, Humanities, Literary Theory & Criticism, Philosophy, Politics on March 22, 2017 at 6:59 am

Allen Mendenhall

This article originally appeared here at The Daily Caller. 

Americans love film, a medium we’ve popularized across the globe. We’re home to Hollywood; we pioneered cinema as an industry and an art form.

Film has enabled cultural memory and iconography to survive in residual form from generation to generation. Since early motion pictures, images that flashed across our screens have become part of our communicative coding, manifesting themselves in political discourse in subtle, unexpected ways.

Perhaps the most foundational figure in American cinema is the nomadic cowboy, that romantic hero of the frontier whose moral ambiguity thrills and troubles us. Frederick Jackson Turner announced his frontier thesis in 1893, drawing attention to the rugged individualism and westward expansion that characterized American liberty and differentiated the New World from Europe.

The masculine figure of the cowboy embodies this thesis. He’s an archetype. Garbed in buckskins and spurs, he conquers the wilderness and the Indians, exacting ruthless revenge on his foes and exercising his menacing skills to achieve justice, at least his notion of it.

But he has a dark side. One is never certain whether he’s a bad guy with good qualities or a good guy with bad qualities. He can be, like Wyatt Earp, both lawman and outlaw, and his very presence creates dysfunction, jeopardizing the harmony of the community and the stability of the nuclear family. Even Shane, the most impeccable of cowboys, endangers the affection between Joe Starrett and his wife and risks undermining the sense of corporate community he’s fighting to uphold.

The cowboy is a paradox: heroic yet savage, mannered yet unruly, tamed yet wild, gentle yet violent. He’s a beloved and mysterious loner, reckless in the pursuit of civilized life. There’s dissonance in his desire to establish domestic settlement and close the frontier while exploring nature, roaming the open range, and maintaining noble independence. With his code of honor, he’s the American version of the brave and chivalrous knight who rides off on quests and adventures.

Former presidents have sought to embed themselves in the Western genre, troping the image and lore of the cowboy. President Reagan, a friend of John Wayne, acted in Westerns and was known to clad himself in big shiny belt buckles and Stetson hats. George W. Bush played up his Texas swagger, wore boots and shot rifles, vacationed on his ranch and applied the pioneering spirit to foreign affairs.

Unlike his immediate predecessor, Donald Trump is a cowboy, or the semiotic mutation of one. That’s why he appeals to so many Americans. This may come as a surprise. He might seem more like the cowboy’s close cousin, the urban gangster. After all, he’s a New York casino and real-estate magnate who wears dark suits and bright ties and displays his money and wealth. He’s gaudy and flashy like Tony Montana, and a wealthy patriarch like Vito Corleone. He’s charismatic and travels in groups, and there’s a noirish quality to his messaging, which the media keeps calling “dark.”

Yet his narrative arc is not one of dramatic rise and inevitable fall.  Nor is he an immigrant figure with ties to drugs and organized crime. He is, instead, the brawling gunslinger, marked by vanity and bravado, irresponsible in his boastfulness. He speaks for a community not his own, glamorizing his triumphs and victories. His bombast and boisterousness have an inexplicably moral feel, as if he represents more than himself and speaks for others—the common man, the forgotten man, the ranchers and laborers.

The cowboy stands up to cattle-baron cronies, just as Trump takes on leading news outlets and the so-called “establishment.” He portrays himself as an outmatched Will Kane, ready to confront gangs of rivals against all odds—as he did in the election when he knocked off his primary opponents and then the presumptive Democratic president, proving an entire class of pollsters and the commentariat wrong.

Like Old Rough and Ready, Trump is vague on political positions and policy prescriptions. His supporters speak of the “Trump Train,” a phrase suggestive of the nineteenth-century railroad, which dominated American industry. His derogatory comments about Mexicans and immigrants are alike in kind if not degree to those of Ethan Edwards regarding the Comanche. Think John Wayne in The Searchers.

Trump is married, but not domesticated. He blurs the lines between truth and embellishment, decrying and creating fake news in the same breath. He harnesses the power of the maxim from The Man Who Shot Liberty Valence: “When the legend becomes fact, print the legend.”

Trump’s high-soaring rhetoric is reminiscent of an earlier moment in American history when there were, in the American psyche, clear winners and losers. The slightest insult can cause him to seek revenge that’s both personal and heedless, having something of the showdown about it.

He’s a tweet-dueler. The Internet being the new frontier, in an age when you can’t get away with gratuitous killing, he trades characters, not bullets. And he’s quick on the draw, able to unload rounds of tweets in mere seconds.

Like William Munny, the aging anti-hero in Clint Eastwood’s Unforgiven, Trump doesn’t drink. His infatuation with Mexico and insistence on building a wall across the Southern border recall the boundary disputes of a bygone era. Imagine Santa Anna and the Republic of Texas as historical antecedents to current border anxieties.

Trump’s carefully orchestrated press conferences, campaign rallies, and inaugural address suggest that he demands a spectacle that’s as visually magnificent as a John Ford film. He fancies the long-shot panorama with American flags in the background. He flies in and out of small towns, ever the roving myth, and he doesn’t have a single place to call home.

During a period of economic contraction, aging population, shifting demographics, and declining American power, ordinary Americans understandably look to a time of territorial growth, when heroes defeated “the Other,” solved their problems, and overcame adversity. With the advent of Google Maps and Street View, folks long for a past of exploration and geographic mystery—when there were borders between known and unknown lands. Trump talks about Greatness. Speaking in superlatives, he refers to things as Amazing, Huge, Tremendous, and Wonderful. His vision for America is as wide in scope as the Western landscape.

Trump is a construct of the mythic figure we’ve come to expect from viewing Western symbols, plots, and motifs. He reminds us of the William Faulkner line: “The past is never dead; it’s not even past.” The cowboy is indeed alive and well, even if he’s a sign of the past. He comes in the improbable, astonishing form of Donald Trump. And he wants to win.

 

Mens Rea and the Common Law

In Criminal Law, History, Justice, Law, Teaching on March 15, 2017 at 6:45 am

Allen Mendenhall

At common law, a victim had to prove four elements to demonstrate that a crime had occurred: mens rea (the mental element of a crime whereby intent or blameworthiness must be established), actus reus (the physical elements of a crime whereby the actions of a defendant must be established), causation, and damages or harm. This brief post concerns the first element, mens rea.

The concept of means rea involved three kinds of intent at common law: (1) general intent (the wish to do something prohibited by law), (2) specific intent (the wish to do something prohibited by law and to cause a particular result), and (3) transferred intent (which arises when the intention to harm one person results in harm to a different person).

The definition of intent traditionally included not just the results an actor wanted to occur when he contemplated taking some action, but also the results he knew would almost certainly occur from that action even if he did not truly wish to bring them about.

The landmark case of People v. Conley (1989) demonstrated that it was not always necessary, when establishing the elements of a crime, to show that an actor consciously desired the result of a particular harm as long as he knew that his conduct was virtually certain to cause general harm. A prosecutor may accordingly establish the element of intent by showing that a person consciously desired to occasion a particular harm or that he knew that his conduct was practically certain to cause harm.

Under the doctrine of transferred intent, a prosecutor may demonstrate that the defendant committed a crime if he intended to cause harm to one person but accidentally harmed a different person. This principle is also revealed in People v. Conley, in which an individual named William Conley attempted to strike Marty Carroll with a wine bottle but mistakenly struck Sean O’Connell instead. Because Conley attempted to commit a battery and did in fact strike someone as he intended, he was guilty of the crime of battery. The fact that his victim was not his intended victim was immaterial to his case.

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