Wisdom from the 42nd Page

Academic Legal Writing

On the forty-second page of “Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review” law professor & blogger Eugene Volokh wrote (emphasis added):

courts should err on the side of nondiscrimination and thus coeducation.

This is especially true for historical or empirical claims. It's hard to be sure about what people really believed or did many decades or centuries ago, or about what's happening in thousands of courtrooms or workplaces today; and readers who think deeply about such matters realize this. Make your descriptive claims clearly and forcefully, and explain why your interpretation of the history or of the data is the best one. But also acknowledge what other interpretations there might be.

4. Acknowledge costs

Finally, the difficulties can make you acknowledge that your proposal is not cost-free—that it to some extent sacrifices important government interests, or causes some possibly harmful side effects, or may at times be hard to administer. Skeptical readers will see these problems on their own, even if you don't admit that they exist. If you ignore the problems, the readers may assume the worst about the problems' magnitude.

If, however, you acknowledge the costs of your proposal but explain why the benefits exceed the costs, you can persuade many readers. No one expects any new proposal to be perfect. Explaining the proposal's downside can actually make it more credible—and can make you look more forthright and realistic.

4. Make Your Article Richer: Connect to Broader Issues, Parallel Issues, and Subsidiary Issues

1. Go beyond the basic claim

So far, we've focused on the core claim: The nugget of novelty, nonobviousness, and utility that will be your contribution to the state of legal knowledge. This is the heart of your article, and you should focus primarily on explaining and proving it.

Most claims, though, can provide insights that go beyond their narrowest boundaries; the claims have unexpected implications that flow naturally from them, even though these implications don't strictly need to be discussed. Exploring these matters can add nuance to your core claim that will make it more novel and nonobvious.

More broadly, if you can make your article richer and more sophisti[cated]

More information about “Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review” (and the book itself) is available from:

• Barnes & Noble
• Amazon.com
• Powell's Books

(Foundation Press, December 2004. Paperback, 262 pages. ISBN: 1599411954; EAN: 9781599411958.)

Conquest by Law

On the forty-second page of “Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands” author Lindsay G. Robertson wrote (hyperlinks & emphasis added):

There was no time. The Philadelphia shareholders were anxious not to miss the present opportunity, and Harper and Etting accommodated them by simply instructing their Baltmire publisher to reprint the 1810 memorial, appending a 1775 opinion by a London lawyer recognizing the validity of individual purchases of Indian lands together with the endorsements of the opinion by London lawyer John Glynn, Philadelphia patriot Benjamin Franklin, and Virginia revolutionary firebrand Patrick Henry.⁴⁸ The 1816 memorial closed with an extract from the Companies' 1797 memorial, "presented," it was noted, "by [Supreme Court] Judge [James] Wilson," affirming the validity of an unlicensed seventeenth-century transfer of Mohegan Indian lands in Connecticut to Major John Mason. One other change was made, presumably to avoid the appearance of any conflict of interest: Harper's name, which had appeared prominently at the close of the 1810 memorial, was deleted from the 1816 version.

The First Session of the Fourteenth Congress convened on December 4, 1815. On January 25, 1816, Jeremiah Morrow of Ohio presented the memorial to the Senate; the memorial was read and referred to committee.⁴⁹ Two days later, as noted, Maryland elected Harper a senator. When he arrived at the Capitol on February 5, Harper immediately went to work on his new colleagues. As the month progressed, his efforts appeared to be bearing fruit; on February 28, Brinton, Simon Gratz, and Callender Irvine wrote from Philadelphia that they had been "most gratified by the latest accounts from Washington" stating "that there is a greater disposition prevailing to do justice to the claims of the Illinois and Wabash Companies than heretofore and that there is every reason to believe we shall have a favorable Report in the Senate."⁵⁰

Only eight weeks remained in the session, however. The Companies began fearing that "the business w[ould] not be taken up" before Congress recessed for the summer, "owing to the press of business of a public nature." Congress, they knew, was always "disinclined ... towards the conclusion [of a session] to enter on matters that they take little Interest in."⁵¹ In the end, despite the best efforts of Harper and his agents, this is precisely what happened. Congress adjourned on April 30 with no action having been taken by the Senate committee.⁵²

Ironically, however, the same Congress did finally break the logjam on

More information about “Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands” (and the book itself) is available from:

• Barnes & Noble
• Amazon.com
• Powell's Books

(Oxford University Press, USA, 20050727. Hardback, 272 pages. ISBN: 019514869X; EAN: 9780195148695.)

Democracy's Privileged Few

On the forty-second page of “Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions” author Josh Chafetz wrote (some emphasis added):

time be impeached, stayed or delayed by or under colour or pretence of any privilege of Parliament."⁸⁸ The Privy Council determined that this language applied only to "Members of Parliament in respect of their debts and actions as individuals and not in respect of their conduct in Parliament as Members of Parliament."⁸⁹ Thus, the 1770 act did not prevent the House from treating the institution of a libel suit against an MP for words written in proceedings in Parliament as a breach of privilege. Lord Denning, in a dissent that remained unpublished for over a quarter of a century,⁹⁰ thought that privilege was a defense to be raised in court, rather than a bar preventing recourse to the courts in the first place. Article 9 of the Bill of Rights, he wrote, "did not prevent a plantiff from commencing an action or laying an information. It only prevented him from prosecuting it in the court. ... The article is a direction to the courts of law not to allow speeches or debates or proceedings in Parliament to be impeached or questioned."⁹¹ In other words, while the Privy Council's decision adhered to conception 1 of the courts' role in questions of lex parliamenti, Lord Denning's dissent favored conception 2.⁹²

But while the decisions in the Graham-Campbell and Strauss cases were strongly in favor of the primacy of lex parliamenti, several subsequent cases were more nuanced. In the 1972 case Church of Scientology v. Johnson-Smith,⁹³ the plantiff in a libel action sought to introduce statements that the defendant, an MP, had made on the House floor in order to demonstrate that statements made by the defendant during a television interview were malicious. The Queen's Bench, however, refused to allow the floor statements to be introduced, holding that "what is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House."⁹⁴ The court's decision was based on functional considerations: "[A] member must have a complete right of free speech in the House without any fear that his motives or intentions or reasoning will be questioned or held against him thereafter,"⁹³ and such fear could certainly result from a decision allowing floor statements to be used against Members in actions for things said elsewhere. In 1993, the House of Lords, in Pepper v. Hart,⁹⁶ held that it did not violate privilege for courts to refer to parliamentary debates when seeking to interpret legislation. Lord Browne-Wilkinson held that the purpose of the Article 9 speech privilege

was to ensure that Members of Parliament were not subject to any penalty, civil or criminal for what they said and were able ... to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule [against referring to parliamentary debates] will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard [the

More information about “Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions” (and the book itself) is available from:

• Amazon.com
• Barnes & Noble
• Powell's Books

(Yale University Press, February 2007. Hardcover, 320 pages. ISBN: 0300113250; EAN: 9780300113259.)

Crow Dog's Case

On the forty-second page of “Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century”—a book whose title is taken from the very interesting life and story of Chief Crow Dog—author Sidney L. Harring wrote (hyperlink & some emphasis added):

Creeks could have given any white a more ignbole trial than Georgia had provided Corn Tassel.

The 1833 Tennessee statute that extended state criminal jurisdiction over the Cherokee Nation was a model of moderation when compared with those of Alabama and Georgia. As the federal government would later do in the Major Crimes Act of 1885, Tennessee limited its criminal jurisdiction over Indians to the specific crimes of murder, rape, and larceny. The statute specifically recognized "all other usages and customs of the Cherokee," granting legitimacy to Indian customary law by statute. The law went on to prohibit settlement by whites "on the lands of the Indians" and required that the act not be construed "to invalidate any law or treaty of the United States made in pursuance of the constitution thereof."⁶⁸ The lattern provision represents an explicit acknowledgement of the Worcester case and distinguishes Tennessee from Georgia and Alabama in the state's unwillingness to defy federal authority directly.

State v. Forman, Tennessee's parallel case to Caldwell and Corn Tassel, followed those cases' same general arguments, but it was handed down in 1835 and was therefore the first case to confirm state criminal jurisdiction over Indian tribes in direct contradiction to the clear holding of Worcester.⁶⁹ Since President Andrew Jackson was Tennessee's most dominant political figure and at that time was anxious to avoid the constitutional crisis that the Cherokee cases had created, it is not inconceivable that Forman represents an effort by southern nationalists to find a middle ground between Corn Tassel and Caldwell on the one hand and Worcester on the other and thereby avoid the sectional strife the Cherokee cases had caused.⁷⁰

James Forman, a Cherokee, was indicted for killing John Walker, another Cherokee, within the boundaries of the Cherokee Nation. Forman's defense was that he was a Cherokee and not under the jurisdiction of Tennessee. The local state court rejected this argument and convicted him. Forman's appeal, like Caldwell's, resulted in a lengthy analysis of the state's claims to jurisdiction over the Indian nations. Nearly half of the Tennessee Supreme Court's 115-page opinion is a historical analysis of the history of Indian-white relations in North American that closely follows the interpretation of Caldwell. It further provides a detailed history of Cherokee-white relations

68. State v. Forman, 8 Yerg. 256 (1835).
69. Ibid.
70. Michael Green argues that President Jackson's role in these southern Indian matters was a complex one. While fully agreeing with Georgia that no Cherokee Nation could be allowed to function within Georgia's borders, he later used federal troops to protect the rights of Creeks in Alabama against white encroachment. The key difference was that the Creeks had ceded their lands to the whites and had agreed to move West; hence Jackson was protecting Indians who were not challenging the authority of any state. Green, Politics of Indian Removal, 174–81.

More information about “Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century” (and the book itself) is available from:

• Powell's Books
• Barnes & Noble
• Amazon.com

(Cambridge University Press, February 1994. Paperback, 317 pages. ISBN: 0521467152; EAN: 9780521467155.)

Summer for the Gods

On this day in 1925 Dayton, TN football coach John Scopes was put on trial for teaching the theory of evolution (at the behest of the ACLU) while substituting in a biology class.

On the forty-second page of the Pulitzer Prize winning “Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion” historian Edward J. Larson wrote (emphasis added):

history would seem enough to condem Darwinism," Bryan thundered, drawing heavily on evidence from Leuba, Kellogg, and Kidd.²⁹ A second speech against Darwinism, "The Bible and Its Enemies," joined Bryan's repertoire later that year. The Commoner broke out of the starting blocks so fast that the back cover of the 1921 pamphlet containing the "Enemies" speech already referred to "Mr. Bryan and his crusade against evolution."³⁰

In addition to stressing the dangers of Darwinism, both speeches denounced the theory as unscientific and unconvincing. "Science to be truly science is classified knowledge," Bryan maintained, adopting an antiquated definition of science. "Tested by this definition, Darwinism is not science at all; it is guesses strung together."³¹ He entertained his audiences with exaggerated accounts of seemingly far-fetched evolutionary explanations for human organs—such as the eye, which supposedly began as a light-sensitive freckle. "The increased heat irritated the skin—so the evolutionsts guess, and a nerve came there and out of the nerve came the eye! Can you beat it?" Bryan asked rhetorically. "Is it not easier to believe in a God who can make an eye?"³² As the horistian Ronald L. Numbers noted, "Bryan was far from alone in balking at the evolutionary origin of the eye. Christian apologists had long regarded the intricate design of the eye as 'a cure for atheism,' and Darwin himself had readily conceded his vulnerability on this point."³³ Yet Bryan possessed an uncanny ability to exploit any such weakness in his opponent's arguments, at least with respect to winning over a popular audience—the only one that mattered to him. "The scientist cannot compel acceptance of any argument he advances, except as, judged on its merits, is convincing," the Commoner maintained in defiance of scientific authority. "Man is infinitely more than science; science, as well as the Sabbath, was made for man."³⁴

This sort of thinking predisposed Bryan to his later course of seeking a legislative judgment on teaching evolution and accepting a trial by jury to enforce any resulting restriction. Indeed, Bryan's mode of operation and optimistic temperament required offering readily political solutions to outstanding social problems—such as a silver-based currency to promote domestic prosperity or arbitration treaties to secure international peace—and his followers, especially those who called him their Perless Leader, expected an agenda for action. The Menace of Darwinism speech, however, included only a vauge call for "real neu[trality]

More information about “Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion” (and the book itself) is available from:

• Amazon.com
• Powell's Books
• Barnes & Noble

(Basic Books, October 2006. Paperback, 336 pages. ISBN: 046507510X; EAN: 9780465075102.)

Speaking Freely

Today is famed First Amendment attorney Floyd Abrams 72nd birthday. In his honor we turn to the forty-second page of “Speaking Freely: Trials of the First Amendment,” where he wrote (emphasis added):

Congress could make some laws abridging freedom of the press?

A: No, sir. Only in that I have conceded, for purposes of this argument, that some limitations, some impairment of the absoluteness of that prohibition is possible, and I argue that, whatever that may be, it is surely at its very least when the President acts without statutory authority because that inserts into it, as well—

Q: That is a very strange argument for The Times to be making. The Congress can make all this illegal by passing laws.

A: I did not really argue that, Mr. Justice.

Q: That was the strong impression that was left in my mind.

Bickel's answers to Justice Douglas were as interesting and also as irrelevant as Griswold's clash with Black. Both justices' votes were ours—both had voted in our favor before any oral argument and surely would not be changed by it—and nothing Bickel said could have lost them, just as nothing Griswold said could have won them. But what of Justices Stewart and White, the center of the Court in those days?

Bickel's most critical answers, which were central to winning the case, came in response to a hypothetical question put by Justice Stewart:

Q: Mr. Bickel, it is understandbly and inevitably true that in a case like this, particularly when so many of the facts are under seal, it is necessary to speak in abstract terms, but let me give you a hypothetical case. Let us assume that when the members of the Court go back and open up this sealed record we find something there that absolutely convinces us that its disclosure would result in the sentencing to death of 100 youg men whose only offense had been that they were 19 years old and had low draft numbers. What should we do?

A: Mr. Justice, I wish there were a statute that covered it.

Q: Well there is not. We agree, or you submit, and I am asking in this case what should we do.

A: I am addressing a case of which I am as confident as I can be of anything that Your Honor will not find that when you get back to your chambers. It is a hard case. I think it would make bad

More information about “Speaking Freely: Trials of the First Amendment” (and the book itself) is available from:

• Barnes & Noble
• Amazon.com
• Powell's Books

(Viking Adult, April 2005. Hardback, 336 pages. ISBN: 0670033758; EAN: 9780670033751.)

The Tyranny of Good Intentions

On the forty-second page of “The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice” authors Paul Craig Roberts & Lawrence M. Stratton wrote (hyperlinks & some emphasis added):

of felicity—to assess everything, including mandatory chapel at Oxford.

Bentham defined torture as making a person suffer "any violent pain of body in order to compel him to do something or to desist from doing something which done or desisted from the penal application is immediately made to cease." Dispelling the "sentimental prejudice" against torture with the "dictates of reason and utility," Bentham concluded that "torture might be made use of with advantage." Just as "a Mother or Nurse seeing a child playing with a thing which he ought not to meddle with, and having forbidden him in vain pinches him till he lays it down," the government can promote security against crime by torturing suspects. Bentham dismissed dangers of sadistic impulses and false confessions to terminate unbearable pain. He believed judges could be as trusted to prescribe the proper degree of torture as they are to properly sentence the guilty. We hear much the same thing today from those who tell us we can trust prosecutors and police with wide latitude and discretion.

As much as Jeremy Bentham disliked William Blackstone, only with Blackstonian law taming government could Bentham credibly advocate torture. Commenting on Bentham's advocacy of torture, English legal historians W. L. Twining and P. E. Twining write that "apart from the enourmous practical difficulties of devising workable safeguards, there is the perennial question of the extent to which one is prepared to trust those in authority." Bentham benefited from the fact that government is trustworthy only when the Rights of Englishmen are in place. The Rights of Englishmen are most appreciated when they are absent.

Tyranny was such a distant memory for Bentham that he did not take protections against it very seriously. Undercutting the legal achievements proscribing torture would restore tyranny quickly. Torture would, by definition, establish a class of torturers who were prone to violence and who would endanger society. Torture treats individuals as means to an end, rather than ends unto themselves who are shielded by the Rights

More information about “The Tyranny of Good Intentions” (and the book itself) is available from:

• Amazon.com
• Barnes & Noble
• Powell's Books

Exporting American Dreams

Today (July 2nd) marks the one hundredth birthday of Thurgood Marshall who made history in 1954 by succesfully arguing Brown v. Board of Education, and later by becoming the first African American solicitor general and supreme court justice.

Apropos to a timely post at Balkinization by legal historian Mary L. Dudziak we're pleased to turn to the forty-second page of her brand new book, “Exporting American Dreams: Thurgood Marshall's African Journey,” which reads (emphasis added):

constitutional deliberations. But Marshall had something that an "underdeveloped" region like Kenya was thought to need: expertise in a "developed" legal system. Americans had long thought of the world as divided into developed and underdeveloped spaces. President Harry Truman argued in 1949 that promoting economic expansion was "the key to prosperity and peace" and that technical expertise would bring about development. Soon, American lawyers lent a hand in bringing law to bear to aid "underdeveloped" nations. By the 1960s, the idea of development was ubiquitous; as anthropologist Arturo Escobar put it, the world was "colonized by the development discourse," and "it seemed impossible to conceptualize social reality in other terms." According to this mind-set, Marshall's expertise in American law was all he really needed.¹¹

Marshall had done legal work overseas before. In the early 1950s, during the Korean War, he responded to the pleas of African American soldiers who had received harsh sentences for misconduct. Korea was the first major U.S. military engagement after President Truman issued an executive order to desegregate the military in 1948. The war finally desegregated the army if only because it proved impractical to send needed replacement troops according to race. But reports surfaced of disparities in punishment for misconduct based on race, resulting in horrific sentences for African American soldiers. Concerned about discrimination, Marshall traveled to Japan and then to Korea to investigate, interviewing soldiers near the front lines. He was successful in reducing the sentences of thirty soldiers.¹²

When he left for Africa, Marshall had no preconceived set of constitutional plans for the colony. Legal Defense Fund (LDF) attorney Jack Greenberg recalled that he did research on British Commonwealth constitutions and gave Marshall a book on the topic that he took on the trip. James Nabritt III, a young LDF lawyer, also provided Marshall with materials, including a copy

More information about “Exporting American Dreams: Thurgood Marshall's African Journey” (and the book itself) is available from:

• Amazon.com
• Barnes & Noble
• Powell's Books

Patent Failure

On the forty-second page of “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk” authors James Bessen & Michael J. Meurer wrote (hyperlinks & emphasis added):

of wealth, landowners devised complicated schemes for distributing their land to their heirs. Besides dividing the land geographically, they often divided ownership rights over time and included contingencies linked to births and deaths of potential heirs. Primogeniture was a feudal rule that restricted inheritances on land to the oldest son. The rule was intended to preserve the feudal order but it also had the effect of preserving large estates. The common law of both England and the United States abandoned primogeniture but developed other, more subtle doctrines to regulate temporal fragmentation and weakn the grip of the "dead hand of the past" on transactions by the living. Property taxes and registration fees obviously discourage fragmentation when the fixed minimum taxes or fees are large relative to the value of the property. The registration fees imposed under the federal mining law forced the abandonment of stale mining claims prevalent on federal lands. Finally, minimum lot size and setback requirements prevent the land in residential neighborhoods from fragmenting too much.

Newly Acquired Property Rights

Devising efficient property rights is particularly difficult in the context of newly acquired rights—a constant challenge for patent law. New property rights should be clearly defined to provide adequate notice to strangers who might be affected by the rights and who might want to contract for permission to use newly created property. Also, the law should strive to minimize social losses that might accrue as parties compete to acquire new property rights.

To a great extent, property law addresses the notice problem by relying on possession to govern allocation of new rights. The law often adopts nonlegal intuitions about physical control over an asset as the key sign of ownership. Simple possession rules make it easier for third parties to recognize the existence and scope of a property right. In the classic case, Pierson v. Post, a court was called on to award ownership of a fox to one of two hunters. Post was in hot pursuit of the fox with a pack of hounds. Pierson stepped in, killed, and took possession of the fox knowing Post was in hot pursuit. The court favored Pierson, perhaps because his possession of the fox left no doubt about when the property right was established and who

More information about “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk” (and the book itself) is available from:

• Amazon.com
• Barnes & Noble
• Powell's Books

My Grandfather's Son

Sixty years ago today, Supreme Court Justice Clarence Thomas was born. On the forty-second page of his book “My Grandfather's Son: A Memoir” he wrote (emphasis added):

2

As Good As Us

My grandparents and I were never in any doubt about what I would do after graduating from St. Benedict's. St. Pius X was Savannah's only Catholic high school for blacks, and it was a ten-minute walk from our house. I had dreamed of going there, and I was excited to don the school uniform of gray slacks, white shirt, gold tie, and burgundy blazer. Franciscan nuns also taught at St. Pius X, and not only were they as demanding as the nuns of St. Benedict's, but they assigned far more homework. I ofted studied at the Carnegie Library until it closed at nine o'clock, then came back home and put in another hour or two at the kitchen table while listening to R&B on WSOK, the local black radio station. When Daddy and I delivered fuel oil late on winter nights, I would ask him to wake

More information about “My Grandfather's Son: A Memoir” (and the book itself) is available from:

• Amazon.com
• Powell's Books
• Barnes & Noble