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constitution
Freedom to contract at the end of the nineteenth century
In Kermit Hall’s words, the nineteenth century saw the “triumph of contract” over property, tort, and equity, as the law came “to ratify those forms of inequality that the market system produces.” (196-97) The early twentieth century continued this–at least until the Great Depression and Franklin Roosevelt’s New Deal forced the court to reconsider.
Post-war contract law in the nineteenth century
In many respects, the so-called “black codes” put in place in the South immediately after the Civil War exemplify the potential extremes of nineteenth-century contract law.
Contract law in the antebellum 19th century
The common law before the nineteenth century required contracts to be fair and reasonable: a “sound price warrants a sound commodity.” But by mid-century, William Wetmore Story’s famous treatise on contracts recognized that this basic understanding had radically altered. Contracts now required only “mutual assent of the parties” and “valuable consideration.”
If the Fourteenth Amendment didn’t exist, could Obama still be President? (Yes)
Periodically various lay people attempt to interpret the law in ways that fit their version of (un)reality. While I appreciate the mainstream media simply ignoring these people (in general), it can occasionally be educational to refute its points as if they were logical and rational. A good example of this is the lawsuit Gordon Warren Epperly filed in Alaska challenging President Obama’s inclusion on the 2012 presidential ballot. It shows a fuzzy grasp of the law, legal terminology, logic, and history (a little reading of case law is a dangerous thing!), but pointing out some of its flaws can help illustrate these concepts.
Protecting vested interests in the face of new technology: the case of the Charles River Bridge
New developments and new approaches had permitted a new corporation to build a new bridge at a lower cost–and to make it free within a few years of its opening, while still turning a profit for its investors. But in doing so, the profit-making potential of the old bridge was destroyed (although investors had already made back their initial investment multiple times over).
But hadn’t the old company taken a risk initially? Didn’t its investors deserve to reap their new profits because they had taken the risk initially? Wouldn’t setting a precedent that their state-granted monopoly could be limited later actually inhibit future investment?
Federal common law in the nineteenth century
When the United States Constitution bound the states together in 1789, the common law (in sense #2)–inherited largely from England–was slowly but inexorably being replaced by statutory laws that often, but not always, codified earlier practices.
Federal vs. State Power in Antebellum America
Before the Civil War, the states and the federal government were locked in an uneasy balance of power. The federal constitution listed certain areas (treaties, post offices, patents, interstate commerce, constitutional interpretation, and more) where federal supremacy was clear (via Article VI, Clause 2), but other areas defaulted to the states (made explicit by the 10th Amendment).
Lecture on 19th-Century Legal History Before the Civil War
I gave a lecture the other day to an undergraduate history class on the topic of 19th-century legal history, mostly before the start of the Civil War (with hints to the future, of course). This is hardly comprehensive–I only had 50 minutes!–but I thought I’d share anyway.
Ben Bratman on the First Amendment and Brandeis & Warren’s “The Right to Privacy”
Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy.”
What is the First Amendment?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Privacy and the silo/filter/echo problem
The push for “privacy” that demands an ability to allow us to restrict who sees what–enabled, for example, by new tools in Facebook and Google+–also creates and reinforces silos (filter bubbles, echo chambers) that prevent our exposure to different ideas. But this move highlights potential conflicts between a number of rights: freedom of association and freedom of speech and the press (both from the First Amendment) and rights to privacy (from the First, Fourth, Fifth, and Fourteenth Amendments). What is this conflict? Is it real? How can we (begin) to resolve it?
Privacy as secrecy and privacy as autonomy
The concept of “privacy”–as in “the right to privacy”–can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).
Freedom of speech in the “Second Gilded Age”
In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments.
Neil Richards on “Reconciling Data Privacy and the First Amendment”
In “Reconciling Data Privacy and the First Amendment,” argues that privacy regulation is not speech regulation at all, and, additionally, that in commercial contexts at least, “speech restrictions … have never triggered heightened First Amendment scrutiny.” In other words, either the data being protected isn’t “speech” in the legal sense, or “because they are legitimate speech regulations under existing doctrine.”
Thinking about privacy and the First Amendment
This post is about Eugene Volokh’s article on free speech and privacy in relation to Samuel D. Warren and Louis D. Brandeis’s 1890 law review article, “The Right to Privacy.” This highly influential piece advocated for “the fundamental right to be let alone.” But is it impossible to reconcile such a right with an equally compelling right to free speech?
