1. that English common law was in force in the colonies from the time of the first English settlement;
2. that, quoting Paul S. Reinsch, the colonies “underwent ‘a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of English common law’”;
3. or instead, citing Julius Goebel, that the colonists instead adopted the “customary law of the local courts the colonists had known in England” and not the common law “of the king’s courts at Westminster.”

Before discussing the historical record, Stoebeck first bookends the problem by noting that, first, “there was no common law in America on 12 May 1607″ and, second, there are case reports and so on available post-Revolution that provide solid insight on where “common-law reception … must have stood on Independence Day” (395–96).

A lack of lawyers

In the 17th century, there was a paucity of lawyers in the colonies. There were very few English-trained lawyers in Massachussetts, only three were known to be in Connecticut, one in Maine, thirty-some-odd in Virginia, two in Maryland, and none anywhere else (405). With no law schools, no real bar, and no real apprenticeship possibilities, there were likely few, if any, American-trained colonial lawyers either. Kermit Hall’s 1989 book reinforces this:

Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the Fundamental Constitutionsof the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. (Hall 21–22)

As a result of the limited availability of trained lawyers, Stoebeck suggests that it’s unlikely that the colonists would have adopted or used the complex English common-law system in anything other than a limited manner.

What law?

Even when charters of the new colonies referenced the laws of England, Stoebeck points out, there is an additional problem: which laws of England? According to Edward Coke, a 17th-century jurist, lists fourteen types of law in England: “the law of the crown, law of parliament, law of nature, statute law, customs, ecclesiastical law, etc., of which the ‘common law of England’ was only one” (397).

Even contemporary discussions of the “common law” in the 17th century often did not clearly distinguish what was meant. Colonists, for example, would clamor for the protections of the “common law of England” when resisting unpopular or autocratic actions by English or colonial governments. They were not, however, advocating for the “king’s law,” nor for the common-law writ system, but rather for what we might consider today to be Constitutional protections, like a right to a trial by jury (410).

Every colony is different

Stoebeck explores the complexities of the various colonies, each of which has a different foundation story and a different relationship with England. Virginia, for example, was founded by an English corporation and intended to benefit investors back in England, while Massachusetts was founded by religious dissidents who often preferred Biblical precedent. As a result, it’s hard to speak of a single “reception” in America.

1700 is a turning point

Nonetheless, Stoebeck suggests that the turn of the eighteenth century marked a turning point for all the colonies (407, 410). The 1696 Navigation Act, for example, imposed much more clearly English legal control over admiralty jurisdiction in the colonies (408). The Privy Council began examining court procedures and the Council of Trade and Plantations began to exert pressure to codify colonial laws (409). (I should note, too, that the first Virginia Slave Code dates from 1705, and other slave codes were enacted from the 1660s into the early 1700s.)

Conclusions

Stoebeck clearly rejects the first theory of common-law adoption (that it was applied from the moment of settlement), since most of his historical discussions involve the complex ways in which English common law was not in use in the colonies before the Revolution. But beyond that, his account explores a variety of paths that each different colony took. Some more quickly adopted English practices than others, and all began to do so more at the turn of the 18th century, but none fully adopted English practice until late in the century (if they even did then). Some did apply more local custom and practice as used at home in England, others used indigenous procedures and approaches, and all codified distinct statutory laws.

But whatever their path, by the end of the 18th century the colonies–now the United States–explicitly adopted English common law (even if what that was, exactly, wasn’t always clear) through statute or in their Constitutions, and jurists used English precedent into the 19th century (and occasionally today, too).

Stoebeck ends his account by saying,

The reception process had been very much an indigenous affair, for the English home government had acted only haltingly to impose adoption of the common law.

And, finally, he says,

The post-Revolutionary evidence makes it nigh conclusive that Chief Justice Daniel Horsmanden spoke not only  for New York but of colonial America when he said in 1765 that the court applied the common law ‘in the main.’”

Thus, the end of the reception story is “secure,” even if the story of the process “has some missing planks.”

By Karsten Schmidt

In “Thinking about privacy and the First Amendment,” I discussed Eugene Volokh’s critique of privacy laws in relation to  Samuel D. Warren and Louis D. Brandeis’s 1890 law review arti­cle, “The Right to Privacy.” In “Cyberspace and Privacy: A New Legal Paradigm?,” Volokh argues that “the right to information privacy–my right to control your communication of personally identifiable information about me–is a right to have the government stop you from speaking about me.”

In “Reconciling Data Privacy and the First Amendment,” Neil Richards takes issue with Volokh’s arguments. Richards instead argues that, most importantly, 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.”

Scope

Richards advocates that courts should first consider whether a privacy rule even regulates what falls within the scope of the First Amendment. To explain “scope,” Richards points out that many normal criminal laws punish “speech,” but fall outside the scope of the First Amendment: fraud, criminal threats, conspiracies, and solicitation of criminal acts, for example. Additional non-criminal laws constrain speech “in the context of securities, antitrust, labor organizing, copyrights, trademarks, sexual harassment … and vast amounts of evidence and tort law.” These too are considered outside the scope of the First Amendment. Why should privacy laws be any different?

Richards proposes an approach to treating scope that draws on concepts used in other Constitutional jurisprudence. He suggests using “rational basis” review for legal rules involving the commercial trade in customer data, but using higher levels of scrutiny for “privacy rules that restrict speech.” Disclosure of “newsworthy facts” would warrant strict scrutiny, while lesser-protected speech (telemarketing, photography) would receive “intermediate scrutiny under the commercial speech doctrine.”

Categories of Information Processing

To better analyze and target rules for different parts of information processing in the context of potentially private data, Richards proposes four different stages, only two of which potentially fall within the scope of the First Amendment at all:

1. rules governing the collection of information,
2. rules governing the use of such information,
3. rules governing the disclosure of information,
4. regulation of direct marketing.

Stages 1 and 2 can be safely regulated without bringing the rules within the scope of the First Amendment, while stage 3 can be regulated under commercial speech rules. Stage 4 clearly falls within the First Amendment, but current doctrine already permits extensive regulation of such speech.

Conclusion

In the end, then, Richards argues that “when we subject both data privacy regulations and the First Amendment to careful scrutiny, they can be reconciled without sacrificing either.” Although Volokh’s critique of privacy laws as violations of the First Amendment is rhetorically powerful, I find Richards’ arguments more compelling, as well as more reconcilable with positive societal goals. This last point is perhaps not enough on which to base a legal argument, but I appreciate legal arguments that support such ends in a rational and articulate manner.

By Robert Horwitz

Robert Horwitz’s The Irony of Regulatory Reform: The Deregulation of American Telecommunications, published in 1989, explores in depth the issue of telecommunications regulation at a time when telecommunications was once again in transition. My own interest is in the revolutions in communications technologies that occurred with the spread of American post offices in the 18th century, the telegraph in the 19th, and the telephone–and then radio, TV, and cable–in the 20th. Horwitz writes:

Telecommunications constitutes one of the four essential modes or channels that permit trade and discourse among members of a society, the other three being transportation, energy utilities, and the system of currency exchange, or money. … These services are “connective” institutions. They are central to the circulation of capital and literally constitute both the foundation and the limit for the overall functioning of a society. This is why … they are called infrastructures.

In 1989, deregulation of industries overseen by agencies created during the New Deal was in full swing. The irony for Horwitz is that “deregulation has most strongly affected those regulatory agencies whose actions have been least odious to business.” Thus, agencies created later and earlier than the New Deal were largely unaffected.

History

Looking backwards, Horwitz says that the “emergency of regulatory agencies constituted the building of a national administrative structures in a state which had been institutionally localistic and court-centered.” He argues that in the 19th century, the courts provided the oversight of economic development that would eventually be taken over by modern administrative agencies. This changed in the 1890s, after laissez-faire economic principles had created “a general crisis of social control.” The era of big business necessitated an (eventual) government response.

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The Progressive Era saw the first new regulatory bodies emerge, largely “in response to popular political activism.” This gave us what would become the Food and Drug Administration, the Justice Department’s antitrust division, and the Federal Trade Commission. New Deal agencies, on the other hand, were created to bring stability to specific markets, and was generally greeted with enthusiasm by businesses desperate for such stability. In the 1960s and 70s, the regulatory focus shifted to more general social protections, especially of citizens as a whole. This was the era of the Environmental Protection Agency and the Occupational Safety and Health Administration.

The New Regulatory Agencies of the 20th Century

Regulatory agencies of the 20th century are a new phenomenon. According to Horwitz,

Regulatory agencies constitute a new structure of federal political power in the American political system; they represent a mixture of legislative, executive, and judicial functions.

In the American system of separated powers, they are an odd delegation of Congressional power: legislatively created, administered by the executive branch, and often given quasi-judicial responsibilities to hear and decide cases (with judicial review, of course, the level of which has varied over time).

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While industry regulation serves a certain level of private interest–especially in the creation of stability–much regulation involves what Horwitz calls the “public interest”: “something larger, something more general.” Although the 20th-century regulatory agency was a new beast in the United States, “the construction and maintenance of infrastructures usually have been the responsibility of governments” as far back as 13th-century England (in the Anglo-American tradition, at least–but remember that the Roman state built aqueducts and roads much earlier, for example).

In the United States, the Commerce Clause justified federal government intervention. Because this economically focused rationale underpins the American regulatory approach, Horwitz argues that, “[i]f there is a general concept of the public interest informing state intervention into infrastructure industries, it is a commerce-based concept.” Thus, in regulation transportation, “nondiscrimination” has been key. The goal? To ensure “[t]hat carriers would serve the needs of commerce rather than inhibit commerce.”

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In telecommunications, the “common carrier principle is really little more than a commerce-based notion of the public interest.” It “guaranteed access to the means of transmission.” Granting individual people access was really just “a logical extension of expanding the marketplace.” But despite this limited original impetus, “common carrier law embraces principles broader than commerce” as it made the telephone “available (in principle) to all citizens.”

Liberty

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Telecommunications, though, involves essential aspects of liberty, especially the ideals of “free speech” embodied in the First Amendment to the United States Constitution. Freedom of commerce does connect to freedom of speech is historically linked to the liberal (in the tradition of Locke and Mill) ideology of the free market. Thus, the ideology of free speech has for many years been to encourage the “marketplace of ideas.” The assumption, says Horwitz, is that “a democratic public sphere will emerge consequent to the unimpeded, private actions of speech-entrepreneurs.”

But what happens when those “speech-entrepreneurs” are a few powerful corporations who demand significant money to utilize their infrastructure? The result can be that “those with wealth can disseminate their views, the First Amendment ‘right’ of most citizens is merely to listen and read. Yet a free marketplace of ideas implies dialogue.”

Image via Wikipedia

Today we have the Internet and the World Wide Web, which have the potential to turn everyone into contributors as well as consumers of information. Does this mean, then, that the natural form of these new mediums reduce of eliminate the necessity of their regulation? Or is regulation still needed to maintain a “free marketplace” of both ideas and commerce?

Deregulation

Deregulation can reduce the power of established cartels and allow for innovation and novelty: “It permits the resurgence of competition and the anarchistic play of market forces.”  This, though, is certainly not in the interest of established players–so why is modern deregulation so associated with big (entrenched) business?

Partly, says Horwitz, this is due to the divergence of “administrative rationality and economic rationality.” Regulatory agencies are conservative and bureaucratic by their nature, and the logic of rules be lost even as their enforcement continues. Irrationality–and the regulatory delay of agencies struggling to apply outdated rules to a complex environment–can lead to business uncertainty instead of stability. The burden on the regulated industries thus grows over time. This was made worse as the social goals of the 1960s and 70s created “new obligations, costs, and time delays.” The result? Deregulation won out in many–but not all!–contexts.

Spreading the news: the American postal system from Franklin to Morse By Richard R. John

In Spreading the News, Richard R. John writes about the development of the American postal system in the eighteenth century, and the police choices that leverages the system as a means of newspaper distribution.

The technological devices of the post and the newspaper were not new in the eighteenth century; horses, paper, and printing presses had been around for centuries. But the new American government prioritized newspaper delivery, and utilized postage fees from merchants to subsidize the development of profit-losing rural routes in order. Of course, the eighteenth and nineteenth centuries brought to Europe a new technological development of a different kind: bureaucracies and various corporate forms that more efficiently organized people and their actions.

Nonetheless, the technologies did not determine the outcome that John discusses, but rather enabled it. Instead, it was the policy choices in Washington, D.C. that determined (retrospectively, anyway) the outcome. These policies favored newspapers and avoided using the postal system (despite the fact that in the early nineteenth century it composed roughly 3/4 of the entire federal government and federal budget) to subsidize other federal activities. The result? A sense of national–and even world–identity beyond mere connection to one’s individual state or locality.

Neither Virginia nor New England established their initial legal approaches on English common law. Instead, Virginia sought to pay its investors by extracting maximum labor from local inhabitants “through intimidation and brutality,” not English law (8). New England, on the other hand, looked to “the law of God, not the law of England” as they sought to unify religion and the state and create their religious utopia (8). Maryland, on the other had, sought to protect its initial Roman Catholic settlers by immediately adopting English law and insisting on its protections as more and more Protestants immigrated.

As the need to reassure English investors–who provided Virginia tobacco farmers the capital they needed–that they could recoup their debts grew, Virginia adopted English law. The interest was commercial, and the goal was to create predictability for investors, not to create fairness or justice for its inhabitants. As a result, the bulk of seventeenth century court cases in Virginia revolved around debt collection.

As the importance of protection Roman Catholics lessened and as Maryland began to adopt the plantation practices of Virginia, so too it began to adopt the focus on “black-letter law” that Virginia emphasized as well. Thus rule of law in Maryland joined Virginia’s approach of committing “to government by clear, unchanging dictates that would guarantee the certainty and predictability needed to entrepreneurial investment” (11).

The New England colonies differed in purpose and approach. They were founded on Puritan religious goals that emphasized the importance of religious involvement and the unity of church and state (53). Their farming did not consist of tobacco plantations, but rather emphasized  yeoman farmers who lived close to town and community. Their religion required adherence to community norms (which were strict), but also emphasized justice for both servants and masters. Self-restraint was key, and the community reigned in its most powerful members through increasingly codified laws. Religious belief was fundamental to the different outcome and approach in New England:

Puritanism and its related ideal of harmonious community … kept seventeenth-century Massachusetts from becoming the debt-ridden outpost of British colonialism that Virginia became (63).

New England cared about commerce, but debt collection was never a central concern of its courts. Instead, New England courts dealt with land titles, road building, and schools, as well as the collection of taxes that accompanied a focus on community and community building. English common law provided the backdrop to New England’s laws, but its colonists insisted on codification to increase fairness and reign in abuses by its leadership.

In fact, English common law provided the backdrop to all these American colonies, but “on the ground” social forces “gave legislation a preeminence in American law that it had lacked in England” (131). Religious values gave New England’s colonies a distinct approach that strongly differed from approaches fostered by the economic conditions of Virginia and Maryland. By 1660, there was a distinctly “American” feel to each of these areas approaches to law, but there was not yet a unifying power above all of them that would draw them closer together.

The Magic Mirror by Kermit Hall and Peter Karsten

The question of why we should do legal history at all is one that has occurred to me a number of times over the last few years. I have advocated–as I mentioned in previous remarks–the point of view that legal history provides access to more than just changes in statute or changes in judicial viewpoints. Legal history reflects broader and deeper social forces and social contexts. Each case reflects individual concerns of particular people at particular moments in time–but the judicial decisions (especially the appellate opinions) express larger social concerns beyond the specific case or controversy .

In The Magic Mirror: Law in American History, Kermit Hall quotes former Supreme Court Justice Oliver Wendell Holmes, Jr. (1902–1932) to support his version of my point:

This abstraction called the Law is a magic mirror, [wherein] we see reflected, not only our own lives, but the lives of all men that have been!

Hall sums up his perspective on what the law is by saying that “law is a system of social choice, one in which government provides for the allocation of resources, the legitimate use of violence, and the structuring of social relationships” (Hall 1). Law is part of a social context: “Without society we need no law; without law we would have no society” (Hall 1).

Hall is points out two different approaches to legal history, one internalist and one externalist (a distinction science studies scholars also make). Internalist legal history looked at the “black-box” development of legal rules in a straightforwardly–if complex–chronological fashion. Externalist legal histories address larger questions of casual relationships: “We want to know the law by what it has done, or failed to do, or by what has been done to it, rather than simply by what it was” (Hall 2).

Law, then, is individual and personal, but “its meaning reaches to the values of society” as well (Hall 2). We must, says Hall–and I find myself in agreement–pursue both an internalist understanding of the rules and processes of law as well as an externalist understanding of the laws connection to society as a whole.

It is, in a sense, a traditional historical work, and seeks to communicate “broad generalizations” about the “essences” of the “subjects and their times” (White 3). Many current historians might quibble about the possibility of such a project, but it is, I think, a fundamental pretense (at least) for any work that attempts to make sense of broad swaths of history.

Core to his entire analysis is the idea that the first Chief Justice of the Supreme Court, John Marshall, established a new and enduring American legal tradition that continues today. Marshall, White argues, establish three key elements:

• a “tension between independence and accountability”;
• a “delicate and unique relation to politics”;
• and a “trade-off” between the power and independence of a judge and the restrains placed on the judiciary (White 3–4).

Although Marshall helped establish an enduring American legal tradition, jurisprudential theories have changed over time. Especially important, according to White, is the shift from a nineteenth century “oracular” view of judge as “law finder” to the twentieth century view of judge as “law maker” (White 4). White ends his work with the Rehnquist Court, but I am left wondering how well this distinction continues to work today given conservative justices like Antonin Scalia, who seems opposed to law making by judges and embraces instead an “originalist” approach to constitutional interpretation. This seems, in a sense, to be more like the nineteenth century’s approach than the twentieth’s.

White’s biographical approach to history could easily fall into “great man” historiography, despite White’s assertion that he advances no such “‘great man’ theory” (White 6). But he seeks less to glorify individual judges than to use them as a means of “reflect[ing] the governing social and intellectual assumptions of various periods of American history” (White 6). White does what so many historians love to do: he rejects theory as a defining force in his work, and instead argues that he’s not pursuing one theory of history over another, but rather “convey[ing] an understanding of what it has meant to be an American appellate judge” (White 6).

White strongly suggests–and I myself have at least somewhat advocated–that the relation between the judiciary and “its social context is one of total integration” (White 6). In other words, the words of appellate judges is at least as much about larger society as it is about the specific case, controversy, or judge. This last point is a key one for any historian seeking to look at legal history as a means of access to broader historical issues, and it’s one that I look forward to developing further–and for which I hope that I can continue to find support.

As just one example, many vaccination opponents focus on potential conflicts of interest by researchers, especially when researchers may be influenced by pharmaceutical companies and the potential profits such companies may enjoy through the use–especially the mandated use–of vaccines they manufacture.

These “[a]ccusations of having engaged in mercenary practices” are intended to reduce the authority of scientific experts. Many anti-vaccine Web sites, according to a 2002 study published in Archives of Disease in Childhood, take the accusation further, casting doctors and scientists as either “willing conspirators cashing in on the vaccine ‘fraud’ or pawns of a shadowy vaccine combine.”

Conflict-of-interest criticisms are also used by proponents of vaccination when they evaluate and review claims. For example, critics of vaccine opponent and scientist Andrew Wakefield, author of a now-retracted study published in The Lancet, accuse him of being “paid big bucks by trial lawyers” and of not revealing this “conflict of interest.”

Most proponents of vaccination see themselves, in the words of Dr. Paul Offit, as “science advocate[s],” not “vaccine advocate[s].” A major critique they make of vaccination opponents is that they ignore or distort science, equate correlation with causation, or fasten on preliminary or poorly-conducted studies as the final word on a subject.

Current opponents of vaccination also seek to align themselves on the side of science. Even as they criticize the mainstream scientific perspective on vaccination, nonetheless, “in what appears as a paradox, the appeal to scientific expertise” remains:

In the context of a controversy, any group which attempts to present its case and to participate in the critical assessment of alternative viewpoints without appealing to any scientific expertise puts itself in a very vulnerable position.

Despite this appeal to science, expertise in the vaccination debates remains a contested issue. Sharon Kaufman, a professor of medical anthropology at the University of California, San Francisco, says that with the proliferation of “experts” on the Internet, “many parents see even the most respected vaccine experts’ perspective on the issue as just one more opinion.”

Vaccination opponents often combine references to science with a powerful emotional hook. Citing the 2002 study mentioned earlier, Liza Gross writes, “The bulk of antivaccination Web sites present themselves as legitimate sources of scientific information, using pseudoscientific claims and emotional appeals.”

The National Vaccintion Information Center site, for example, combines a “Memorial to Vaccine Victims” with a “Doctor’s Corner” containing materials written by physicians.  Gross adds that, on many anti-vaccination Web sites, intuitive views about vaccines were elevated above “cold, analytical science,” and accounts of children “maimed or killed by vaccines” were common–a finding that may help explain why those who advocate immunization receive death threats.

This combination of science plus emotion–validating the intuition of parents while providing alternative expertise to back up their beliefs–is a compelling one.

Scientific knowledge–or, at least the appearance of such knowledge–remains key on anti-vaccination Web sites. This is visible in “informed choice” rhetoric, for example, and is a key theme of the NVIC site.  It is also, perhaps obviously, a key component of pro-vaccination rhetoric as well.

For more specific comparisons of pro– and anti-vaccination Web sites, see Markers of Trust: How Pro– and Anti-Vaccination Web Sites Make Their Case on SSRN.

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• J.B. Handley and the anti-vaccine movement: Gloating over the decline in confidence among parents about vaccines (sciencebasedmedicine.org)
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• Contaminated Childhood Vaccines (lewrockwell.com)

On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices. In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

via Feds push for tracking cell phones | Politics and Law — CNET News.

Magistrate Judge Lisa Lenihan wrote the lower-court opinion [PDF], which was signed on to by four other magistrate judges. The lower court emphasized the importance of requiring a probable-cause standard for accessing location data — the same standard used for search warrants generally — and not a “articulable, reasonable belief” standard used to obtain so-called “pen-register” data (information that includes the phone number called, when, and for how long).

Pen-register data is subject to a lower standard because the courts consider that individuals knowingly provide the data to a third party (the telephone company) and thus have a limited expectation of privacy for that information (vs. their actual telephone conversations, for example, which have a higher level of protection due to a higher expectation of privacy).

The lower-court wrote, essentially, that location date can potentially reveal “extraordinarily personal and sensitive” information about a person without the involvement of that person (or their attorney) in the proceedings (it is “ex parte,” in the language of the court). Balancing the interests, says the court, means that a probable-cause standard is most appropriate. This balancing, along with detailed statutory interpretation, forms the core of the court’s analysis.

One weakness I see is that the court does not do a deep analysis of a “reasonable expectation of privacy” and the issue that giving that information to third parties reduces the expectation of privacy, noting only the the E911 legislation suggests that individuals have, and should have, a strong privacy expectation in their location data.

I think this is a good, balanced decision, but I wish it had dealt more with the potential attack on it due to the third-party data issue. I’ll be interested to see what happens at the 3rd Circuit (I expect it to be overturned, unfortunately).

A federal judge has dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency’s mass surveillance of millions of ordinary Americans’ phone calls and emails.

via EFF Plans Appeal of Jewel v. NSA Warrantless Wiretapping Case | Electronic Frontier Foundation.

The government had argued, first, that sovereign immunity applied and, second, that the state secrets and related privileges would prevent the introduction of critical evidence. The judge, however, avoided ruling on these (potentially controversial) grounds, and instead ruled that the harm alleged was a “generalized grievance shared … by all or a large class of citizens,” citing Seegers v. Gonzalez (this is sometimes called “ducking the question”).

The EFF plans to appeal.