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Liberty or inflexibility: reading Antonin Scalia
Antonin Scalia, Supreme Court justice and originalist extraordinaire, wrote “Common-Law Courts in a Civil Law System” as a part of A Matter of Interpretation: Federal Courts and the Law. In it explains his approach to legal reasoning and especially to Constitutional interpretation, and especially rejects both legislative history and the so-called “living Constitution” of liberal justices like Stephen Breyer.
October 2011 / 2 min.
National identity through postal delivery of newspapers
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.
October 2011 / 2 min.
Civil law’s influence on American common law: the appeal
In “Salamanders and Sons of God,” an article in The Many Legalities of Early America, Mary Sarah Bilder writes about the “Culture of Appeal in Early New England,” and situates the embrace of the right to appeal by New Englanders within the larger English and Roman legal tradition.
October 2011 / 3 min.
On the legal basis for English possession of North America
James Muldoon’s article in The Many Legalities of Early America, “Discovery, Grant, Charter, Conquest or Purchase,” discusses the surprising influence the Pope’s validation of Spanish and Portuguese possessions in the New World played in English justifications for their own American territory. But this justification was merged with an English focus on improvements to the land.
October 2011 / 1 min.
Colonial Law in Early America
In The Common Law in Colonial America: The Chesapeake and New England, 1607-1660, William Edward Nelson writes about three main colonial legal traditions: Virginia, New England, and Maryland. These three centers drew to various degrees from English common law, but deviated from it in a number of important respects and for reasons related to their establishments and purposes.
October 2011 / 3 min.
Will legal software replace lawyers?
Software won’t replace lawyers, but it will reduce the demand for certain routine legal services and raise the complexity of litigation. Those without the software will be at a disadvantage. It will also cut into the work of paralegals. But not lawyers.
September 2011 / 2 min.
Early lawyering in colonial America
In the seventeenth century, according to Kermit Hall and Peter Karsten, “there were few lawyers and their status was problematic.”
September 2011 / 2 min.
Why do legal history? First remarks on Kermit Hall’s The Magic Mirror
In The Magic Mirror: Law in American History, Kermit Hall quotes former Supreme Court Justice Oliver Wendell Holmes, Jr. to explain why we should do legal history: “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!”
September 2011 / 2 min.
Was early Supreme Court Justice John Marshall an originalist?
The question of whether John Marshall, Chief Justice of the United States Supreme Court from 1803-1835, was an originalist is, of course, anachronistic, as the term had not yet been invented during his lifetime. Still, given the ongoing controversy regarding judicial interpretation today, it’s an interesting question to ask about one of the foundational justices in American jurisprudence.
September 2011 / 4 min.
First remarks on G. Edward White’s The American Judicial Tradition
I’m reading G. Edward White’s The American Judicial Tradition: Profiles of Leading American Judges as part of my general background reading on American legal history. Lawrence Friedman may argue that “[t]here really isn’t a canon for legal history,” but I think White’s book at least comes close.
September 2011 / 3 min.