Georgetown Law Faculty Blog

Book Chapter by Dan Ernst posted to SSRN and BePress

"The Ideal and the Actual in the State: Willard Hurst at the Board of Economic Warfare," a chapter in Total War and the Law: The American Home Front in World War II (Daniel R. Ernst & Victor Jew eds., Westport, Conn.: Praeger 2002), has been posted to SSRN and BePress:

Abstract:

Unlike other proteges of Felix Frankfurter in the 1930s, James Willard Hurst left his clerkship with Supreme Court Justice Louis Brandeis in 1937 not for law job in Washington but to teach at the University of Wisconsin Law School. Together with his dean Lloyd K. Garrison, Hurst developed “Law in Society,” a New Dealer’s first course in law, centered not on courts but administrative agencies. When the war came, Hurst had the chance to test out his notions of law and administration as a lawyer at the Board of Economic Warfare. Headed by Vice President Henry A. Wallace, the BEW was a bastion of New Dealism in an increasingly business-oriented war effort. Among other things, it was charged with developing and procuring new overseas supplies of war materiel to replace sources that had fallen into enemy hands. Hurst contributed one of the BEW’s most controversial measures, a provision in procurement contracts obliging employers to observe minimum labor standards. This attempt to fight “a New Deal war” by improving the lives of African and Latin American workers failed not long after Hurst’s departure for the U.S. Navy. Still, the affair elucidates much of Hurst’s pioneering scholarship on legal history and the legal profession in the postwar period.

New Book Chapters by Robin West posted to SSRN and BePress

Three forthcoming chapters by Robin West have been posted to BePress and SSRN:

"Ennobling Politics," in Law and Democracy in the Empire of Force (H. Jefferson Powell & James Boyd White eds., Ann Arbor, Mich.: Univ. of Michigan Press forthcoming) [SSRN BePress]:

The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we perhaps unwittingly tie our political morality to a form of decision making -- adjudication -- that must and likely should police against abuses of public power, just as it polices in the civil law sphere against abuses of private power. Constitutionalism and constitutional discourse cannot, so long as it is conducted through adjudicative channels, develop a body of principles conducive to the moral deployment of power, as opposed to challenging or bucking its misuse. One cost of this, relatively unreckoned even by our contemporary critics of judicial review, is the erosion of any conception of politics (rather than law) as being a potentially ennobling human practice.

"Sex, Law and Consent," in The Ethics of Consent: Theory and Practice (Alan Wertheimer & William Miller eds. forthcoming) [SSRN BePress]:

The article defends the now fairly conventional liberal reform position that consent ought to be the demarcation between rape and non-criminal sex, responding to both radical feminist and modern queer theoretic arguments that problematize it. It then criticizes liberal arguments that legitimize virtually all consensual sex, leaving all of it relatively insulated not only against criminalization but also against moral and political critique. Consensual sex can be wanted or unwanted, and when unwanted, it can be harmful in ways that cannot be recognized by liberal understandings of consensual sex. Lastly, the article defends this claim, again, against both radical feminist and queer theoretic critiques that for opposing reasons seek to undermine the distinction between unwanted and wanted consensual sex.

"Literature, Culture, and Law – at Duke University" in Teaching Law and Literature (Catherine Frank & Matthew Anderson eds., forthcoming) [SSRN BePress]:

The article compares programmatic questions from the Law and Literature movement from the 1970s to 1990s with more recent suggestions regarding the foundational questions for the Law and Culture movement. It argues that in both movements, but particularly the latter, scholars have focused on questions regarding the nature of law, culture, and interpretation, and neglected substantive jurisprudential claims regarding law sometimes found in literature and other cultural texts. It argues that this emphasis on theory over substance is unfortunate. To illustrate, the piece examines a false rape claim brought against some university athletes in Durham, North Carolina in the summer of 2006, and a novelistic depiction of sexual exploitation in Tom Wolfe's popular novel, I Am Charlotte Simmons. The novel was repeatedly invoked by commentators and bloggers when the charge was first made and widely believed, to make the case that the Duke campus was drenched in a culture tolerant of rape. The novel, then, might be sensibly understood as central to a cultural understanding of how this false rape charge was interpreted, and then came to be widely believed. Although true enough, the article argues that we miss something important, if we look at (and indict) Wolfe's novel only as a part of a cultural/legal explanation for a sex panic that resulted in a miscarriage of justice. We miss Wolfe's substantive, narrative account of sexual exploitation (not rape) and the harms, quite specific, that undesired, unwanted and unwelcome sex can occasion, on college campuses and elsewhere.

New book: Asylum Denied: A Refugee's Struggle for Safety in America

The University of California Press has just published Asylum Denied: A Refugee’s Struggle for Safety in America, by David Ngaruri Kenney, a former client of the Center for Applied Legal Studies (Georgetown’s political asylum clinic) and his lawyer, Georgetown University Law Professor Philip G. Schrag, the clinic’s director.

The book explores U.S.immigration law and its administration (particularly but not exclusively) asylum adjudication, through Kenney’s first-person narration of his Kafkaesque encounters with the entire panoply of American immigration bureaucracies and courts. Kenney was a poor farmer in Kenya who led a boycott to protest certain agricultural policies of the country’s strongman President, Daniel arap Moi. For this act of defiance, Kenney was nearly executed, tortured, and imprisoned. After an amazing escape to the United States, he applied for asylum, but his application was rejected at every level, and he was finally forced to return to Africa, where he was once again nearly murdered.

 Some comments from prominent readers:

 "Asylum Denied is riveting and essential reading for anyone interested in the lives and struggles of immigrants. Kenney's story will astonish, frustrate, and inspire you."–Dave Eggers, author of What is the What

"This is a fabulous book-a love story, a law story, a struggle against death, a battle for justice, and much more. I urge you to read it."–Bruce Ackerman, Yale University

"Asylum Denied is at once a page-turner, a penetrating critique of the U.S. asylum system, and an exquisite exploration of humanity and politics, of emotion and law, of tension and release. It has the same narrative power that distinguished Jonathan Harr's A Civil Action."–Hiroshi Motomura, University of North Carolina

"In Asylum Denied, David Kenney and Philip Schrag bring us a deeper understanding of the vagaries of our asylum process by telling David's riveting story. What society wouldn't be enriched by such stoic, courageous and principled strivers as Kenney? The more we learn of the lives and yearnings of such people, the closer we will be to an asylum process worthy of our values."–Senator Patrick Leahy, Chairman, Senate Judiciary Committee

Publisher’s Weekly (March 24, 2008): Astonishing in its power to move and inform, this fluent first-person narrative, a collaboration between a young Kenyan political refugee, Kenney, and his stalwart American attorney, Schrag, depicts the flaws and corruption at the heart of the U.S. asylum process. Kenney fled Kenya in 1995 after being arrested and nearly executed for leading a peaceful protest against the government's treatment of his fellow tea farmers; he survived torture and escaped to
America where he was plunged into an incomprehensible and hostile immigration system. Kenney and Schrag's dealings with the Department of Homeland Security and federal immigration courts reveal a system that is "disquietingly random." Applicants are victims of "refugee roulette," their fates largely dependent on the sympathies of the government officials who hear their cases. Schrag's recommendations to make the system more consistent and compassionate give the book-and Kenney's heartbreaking story-an added sense of purpose and real practical potential. Kenya's recent political implosion lends this book added topical relevance, but its core concerns for justice and reform remain directed at American society, especially (though not only) its byzantine asylum system.

The book is available in book stores and on Amazon.com.

Professor Luban's Newest Book: Legal Ethics and Human Dignity

Legal Ethics and Human Dignity, Professor David Luban's newest book, has recently been published by the Cambridge University Press.

From the Cambridge University Press description:

"In this collection of his most significant papers from the past twenty-five years, he ranges over such topics as the moral psychology of organisational evil, the strengths and weaknesses of the adversary system, and jurisprudence from the lawyer's point of view. His discussion combines philosophical argument, legal analysis and many cases drawn from actual law practice, and he defends a theory of legal ethics that focuses on lawyers' role in enhancing human dignity and human rights. In addition to an analytical introduction, the volume includes two major previously unpublished papers, including a detailed critique of the US government lawyers who produced the notorious 'torture memos'. It will be of interest to a wide range of readers in both philosophy and law."

Wendy Purdue on Trial by Jury

This is a version of comments Wendy Purdue delivered at our celebration of James Oldham's Trial by Jury:

My interest Jim’s book stems from the fact that as part of teaching Civil Procedure, I teach the 7^th Amendment and have always found it a peculiar area of law.  The Court has held that “preserved” as it is used in the 7^th Amendment means that in order to determine whether you have a right to a jury to day, you must look to history.

Interestingly, the history that the Court purports to be interested in is English practice as opposed to the purposes of the 7^th Amendment as a matter of U.S. history.

A focus on historical purposes rather than English practice would significantly alter the Court’s approach and could change the result in some cases. For example, Paul Carrington has argued that at least one purpose of the 7^th Amendment was to constrain life tenured federal judges. See Paul Carrington, The Seventh Amendment: Some Bicentential Reflections, 1990 U. Chi. Legal Forum 33. If one accepted this as a core purpose then the Court’s analysis in Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424 (2001) might have been different. In that case, the Court had to decide whether it violated the reexamination clause for a court to override a jury determination on punitive damages. The Court’s analysis seems to divide the world into questions of fact that are for juries and questions of law that are for judges. According to the Court, punitive damages are “an expression of . . . moral condemnation” rather than a determination of fact and therefore belong with judges. Of course, one might also just have well have said that “moral condemnations” are not matters of law either. If the Court’s core understanding were that the purpose of juries is to constrain elite life tenured judges then “moral condemnations” might be just the sort of thing that belong with juries and not with elite judges.

The Court has, of course, rejected a purpose based approach and has instead adopted an historical test which focuses on 18^th century English practice. (As an aside, it is interesting that with all the controversy about whether it is proper even to cite foreign law, in the area of the 7^th Amendment, the Court is comfortable not only citing foreign law (from England) but purporting to be absolutely bound by it.)

The historical test presents major complications where the cause of action is one that did not exist in 18^th century England. Here the Court looks for historical “analogies.” So, in a suit against a union for breach of its duty of fair representation, a lot of ink was spilled trying to determine whether such a suit is more like a suit to set aside an arbitration award (since the underlying complaint had to do with the handling of a grievance procedure), or like a suit against a trustee for breach of a fiduciary obligation (also an action in equity), or like a claim for professional malpractice which was an action at law. See Chauffeurs Local, 391 v. Terry, 494 U.S. 558 (1990). None of the analogies is very convincing and the whole exercise is rather like trying to decide in which room of Monticello Thomas Jefferson would have put his TV.

Historical analogies present almost insurmountable problems. However, even where the clause of action did exist in 18^th century England the historical test presents challenges, complicated by the fact that we now have a unified system (rather than separate courts of law and equity) as well as a number of new different procedural mechanisms. This is where Jim’s book comes in. He takes the Court at its word that it is interested in knowing the truth about 18^th century English practice and sets about to determine what that was.

The result is a book that is quite a fascinating exploration of English jury trial practice. I am not a historian, but it seems to me that Jim demonstrates pretty convincingly that when the ct tries to figure out 18^th century English practice, it frequently gets it wrong.

For example, in Markman, 517 U.S. 370 (1996), the issue was whether the interpretation of a word in a patent claim (the meaning of “inventory”) is a question for the judge or the jury. Jim argues that contrary to Souter’s assertion, that this type of case was not rare and that interpretation of disputed patent instruments was an issue for the jury. I think he makes a pretty persuasive case that the ct gets the history wrong.

In addition to examining the question of when there is a right to a jury in the first instance, Jim’s book also examines historical practice with respect to the reexamination of jury verdicts, which relates to the second clause of the 7^th Amendment. The book highlights some important features about English practice concerning reexamination of jury verdicts. For example, the modern practice of judgment as a matter of law was not well established, directed verdicts functioned quite differently than they do today, and issues concerning damages, including punitive damages, were sent to juries and the mechanism to respond to excessive awards was to grant a new trial.

As Jim’s book notes, the Court has been far less wedded to a strict historic approach with respect to the reexamination clause. The result is that on the one hand, the Court has been quite expansive in finding a right to a jury as an initial matter, but also more expansive in supplementing juries through directed verdict and in over riding jury verdicts.

The final point concerns the composition of juries. Jim’s book details the very interesting history concerning the use of specialized juries, including juries of matrons and other special juries. The composition of juries is not something the Court has pegged to historical practice. Modern requirements that juries reflect a reasonable cross-section and be selected in a non-discriminatory way, reflect values outside the 7^th Amendment and indeed may reflect values that go beyond the fairness of the trial and instead may reflect concerns about inclusiveness in civil society. But Jim makes the point that to the extent there is interest in experimenting with special juries composed of particular types of experts or even people with particular education levels – that would not appear to violate the 7^th Amendment (at least to the extent it is understood as historically based).

Let me just say a word about the complexity exception. Jim explains that in many complex cases, the matter was referred to special masters or to commercial arbitration. It strikes me that there are two ways to look at this history. On the one had, it seems to support the proposition that frequently complex cases were not decided by common juries. But, if I understand the history, one could also say that complex cases were frequently not decided by judges.

When people talk about a complexity exception, they frequently mean that in complex cases, the case might not be decided by a jury but instead by a judge. But I am no sure that the history supports that so much as the idea that complex cases might be decided by special juries.

A final thought: in Chauffeurs Local v. Terry, the Court considered the question of whether there was a right to a jury trial in a suit against a union for breach of its duty of fair representation. The opinion produced long opinions examining 18^th century practice concerning suits against a trust fiduciary and suits for malpractice. Justice Brennan filed in concurrence in which he wrote: “to be sure, it is neither unusual nor embarrassing for members of the Court to disagree and disagree vehemently. But it better behooves judges to disagree within the province of judicial expertise.” He suggested cutting back somewhat on the historical test. Justice Brennan was metaphorically hooted down by the rest of the Court in this suggestion.

It is clear to me after reading this book that if the Court is going to continue to do this historical test, that they really have no choice but to officially appoint Jim as the federal court special master on 18^th century English practice and refer to him these historical questions.

Trial by Jury

James Oldham    Comments on Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (NYU Press 2006)

    Here are a few paragraphs about my recently-published book:

Trial by jury in the United States, however controversial in application, remains a treasured part of most citizens’ concept of liberty. Everyone is familiar with the safeguards that trial by jury supplies to criminal defendants. Nearly everyone knows that the right to a jury trial also applies to civil cases, although it can be waived. The source of the right in civil cases in federal courts is the Seventh Amendment, and in state courts the right is preserved by comparable provisions of state constitutions.
    The Seventh Amendment provides that in suits at common law involving more than twenty dollars, the right to jury trial shall be preserved. This seems simple and straightforward, but what does it mean?  What right to jury trial?  What did the framers have in mind by their simple formulation?
    Unavoidably, it fell to the Supreme Court to fashion a test that could be used to measure the scope of the protection embodied in the Seventh Amendment, or in state imitations. The Court did so in 1812 in the case of United States v. Wonson, in which Justice Story wrote:  “Beyond all question, the common law here alluded to [in the Seventh Amendment] is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence.”
    The rule thus fashioned by the Supreme Court came to be called “the historical test.”  A commonly-quoted, succinct version of the test is the following 1935 formulation in the case of Dimick v. Scheidt: “In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791.”  This test survives to the present day, despite unrelenting criticism, mainly from legal academics.
    In the past decade, the Supreme Court had several opportunities to revisit the historical test for the scope of the Seventh Amendment right to jury trial.  In 1996 in Markman v. Westview Instruments, Inc., the Court emphatically declined the opportunity, unanimously reaffirming the historical test.  In Trial by Jury, I do not try to revisit the argument that the Court should discard the historical test; rather, I take that test as a given and then measure its scope by examining actual trial practices in England in the late 18th century, especially as revealed by archival sources.  This leads me to conclude that the Court in Markman improperly withdrew the construction of patent claims from the jury.  Yet at the same time, I claim that a complexity exception to the Seventh Amendment guarantee would be legitimate under the historical test.
    Other matters addressed in Trial by Jury include the question of law versus fact, jury nullification, and the jury’s role in determining damages, both compensatory and punitive.  Also, I explore how substantially jury trial in the United States has been influenced by a 20th-century development, the “reasonable cross-section” rule.  Whenever this rule applies (and its applications are by now sweeping), the jury pool is required to reflect a reasonable cross-section of the community from which the jurors are drawn.  This development is ahistorical, since historically juries were frequently made up of jurors with special qualifications.  One prominent example was the jury of merchants, used extensively in commercial cases in the late 18th and 19th centuries.  (A variation of this type of jury is still possible in Delaware in complex civil cases.)
    Another example was the all-woman jury (jury of matrons) that was relied upon for  centuries to determine whether or not a female litigant was pregnant, or more precisely, whether she was “with quick child.”  Usually this happened when a female defendant had been convicted of a capital offense, and she “pleaded her belly” to escape the noose.  In the English experience, if a jury of matrons found such a female defendant to be pregnant, it was often possible for the woman to obtain a pardon, conditional on transportation for life to the colonies.  Thus in Daniel Dedfoe’s famous novel, Moll Flanders (1722), this is how it came about that Moll was born in Virginia.  The jury of matrons can be viewed as a true example of a “jury of peers.”
    The “jury of peers” notion has an ancient lineage that still reverberates as a supposedly important part of every American’s heritage. An opinion in 1996 of the United States District Court for the Eastern District of Pennsylvania (In re. Tiffany Green) illustrates the modern, nostalgic perception of this heritage. Judge Hutton wrote that, “The right to a trial by a jury of one’s peers is one of the cornerstones of the American judicial system. It is a birthright cherished by generations of American citizens.” Similarly, the Supreme Court in Duncan v. Louisiana (1968) observed that, “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt, or overzealous prosecutor and against the compliant, biased, or eccentric judge.”
    Who were the “peers” in the so-called “jury of peers”? According to Henry Toulmin, United States Judge for the Mississippi Territory and author of an 1807 book called The Magistrate’s Assistant, “The fundamental principle of this institution [trial by jury] is, that a man should be tried by his peers or equals, a commoner by commoners and a nobleman by nobles.” This proposition, however, is, and for the most part always has been, a fairy tale. Historically, we boasted about juries of our peers while excluding half the population--women--from any jury service other than the rare, single-purpose jury of matrons. We also followed practices that kept racial and other minorities off juries or that left them drastically under represented. In the not so distant past, the United States also maintained requirements of property ownership that excluded the poorest segments of the economic spectrum of society.
    Both the jury of peers concept and the reasonable cross-section requirement relate to jury composition procedures. They do so, however, with sharply different objectives. As Judge Toulmin suggested, the jury of peers notion is aimed at giving the defendant a fair trial by placing on his jury at least a representative number of people that share the defendant’s cultural, linguistic, ethnic, or possibly socioeconomic circumstances.  The reasonable cross-section requirement, by contrast, is designed to ensure that members of all significant, or “cognizable,” segments of the community have the opportunity to be jurors.  This egalitarian requirement pulls strongly against any procedure or tradition that would permit the formation of juries from lists of persons with special qualifications.
    The idea of drawing exclusive special juries from specialized lists seems to be anachronistic today. Elite special juries surely are antithetical to the hard-fought, long-delayed goal of opening up jury service to everyone. Having eliminated the unsavory exclusions of the past, how can there remain a place in modern American society for an exclusive special jury?
    I argue that there is still such a place--that our history justifies continued experimentation with jury composition, including the special jury. However desirable the reasonable cross-section requirement is as a means of keeping an increasingly stratified people personally involved in the business of democracy, the requirement contributes little or nothing to other goals, such as coping effectively with jury trial of complex cases, or striving for fairness to litigating parties.

Steve Goldberg on Trial by Jury

At our Sept. 12 discussion, Steve Goldberg delivered a version of the following remarks:

Jim Oldham, the preeminent authority on Lord Mansfield, is fast becoming the preeminent authority on the history of the civil jury. His new book, Trial By Jury, is an indispensable contribution to that important field. 

I wanted to say a few words about Jim’s chapter on the Complexity Exception to the right to a jury trial. The Supreme Court has never ruled on whether such an exception exists, and apart from a Third Circuit decision in 1980, it has rarely been successfully invoked in the federal courts. As a result, juries today hear cases of enormous economic and scientific complexity in areas ranging from antitrust to toxic torts. Because the Supreme Court has adhered to the historical test for the scope of the Seventh Amendment, many observers see us stuck with an outdated system that uses overburdened juries.

Jim dismantles this argument. Writing with characteristic elegance and insight, he goes beyond Lord Devlin’s well known arguments, and demonstrates more strongly than Devlin ever did that if we look at the actual practice in England in 1791 the complexity exception can be justified. Jim points out that in the late eighteenth century numerous cases in England were decided by arbitrators with specialized knowledge, not by juries. Jim couples this with the undisputed fact that the English at this time also used special merchant juries as well as other special juries for many complex cases, a practice that has faded away in this country. In sum, if we actually adhered to the historical practice approach, juries would be relieved of many complex cases today.

Jim’s book got me thinking about an analogous issue that is much-discussed today. If you ask a modern lawyer about the problem of juries grappling with complex matters, he is likely to say that at least the Daubert decision removes some of those problems. Daubert, as you know, gave the trial judge a gatekeeper function so that he could keep from the jury expert witnesses who were too far out of the mainstream, that is, who were not using reliable scientific methodologies. But Jim’s insights lead us to look more closely at that assertion. Think about it. If a judge finds that an expert, offering (for example) a novel theory about whether a product is toxic, is indeed reliable, the case goes to the jury where it will be confronted with a true nightmare of complexity: the much-feared battle of the experts, which the jury will have to somehow sort out.

And what is a judge doing when he keeps an expert off the stand? The judge is either deciding that the testimony is not reliable, a question that is supposed to involve looking at the presence or absence of peer reviewed publications and other factors that are not themselves necessarily complex. Moreover, as Mike Gottesman has argued in an important article, in some cases the judge in a Daubert hearing may not be able to penetrate the expert’s work, but he keeps the expert off the stand because the judge has decided that the expert is a charlatan, the very sort of classic demeanor-style question that juries are supposed to resolve.

So I’m indebted to Jim for sharpening my thinking in this field, and we are all indebted to him for his outstanding work in this book.

James Oldham, Trial by Jury

Last week, Professor James Oldham participated in a discussion of his new book, Trial by Jury.  This is his explanation of the striking cover image:

This all-woman jury sat on November 2, 1911 to try A.A. King, editor of the Watts News, for having published indecent and obscene language in an issue of his newspaper. According to an article in the Los Angeles Times on November 3, King had printed, verbatim, “hard epithets” used about him by a City Councilman. King testified that he wanted the people of Los Angeles to know what kind of a man the councilman was. The jury clearly approved, deliberating only twenty minutes before returning an acquittal.

Women’s suffrage was granted in California by constitutional amendment in October 1911, and in the month following over 80,000 women in Los Angeles registered to vote. See Rebecca J. Mead, How the Vote Was Won: Women Suffrage in the Western United States, 1868-1914 (New York and London: New York University Press, 2004): 148. Court officials responsible for impaneling juries evidently assumed that eligibility for jury service accompanied the right to vote. For A.A. King’s trial, the Deputy Constable summoned 36 women for jury duty. All 36 appeared, and 12 were chosen (their names appear in the Los Angeles Times article, as does a description of the voir dire). On April 25, 1912, however, the District Attorney of Sacramento County issued an opinion letter pointing out that all references in the California Code to jurors were to men, and that since “the constitutional guaranty of the right to trial by jury is everywhere recognized as only the right to a jury as it existed at common law; that the legislature would have to change the law expressly if it were intended that women be eligible for jury duty.” In 1917, the California legislature amended the law to make women’s jury eligibility official. See Leland Stanford, “Early Women Jurors in San Diego,” The Journal of San Diego History 11 (April 1965): 16.