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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).
February 2012 / 1 min.
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.”
December 2011 / 2 min.
“The Right to Privacy” by Warren and Brandeis
The modern “right to privacy” is frequently attributed to Warren and Brandeis’ groundbreaking 1890 law review essay of that same name. Its initial purpose, according to Steven Childress, was to recognize, within the traditional common law, “a civil and non-contractual right of protection against invasions of privacy.”
December 2011 / 4 min.
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.
December 2011 / 3 min.
Civil law’s influence on early United States law
It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law.
December 2011 / 5 min.
The (scientific) development of common-law precedent
One of the defining characteristics of common law (as opposed to civil law) is the binding nature of precedent, sometimes referred to by its Latin name of stare decisis. But before the seventeenth century, the defining characteristic of English common law was not this one, but rather that common law reflected universal and customary law, and as such the goal was for judges to utilize previous decisions as merely guides to help them get closer to the true (unwritten) laws of England, not as binding in themselves.
December 2011 / 4 min.
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?
December 2011 / 5 min.
Daniel Solove’s six general types of privacy
Daniel J. Solove’s 2008 book, Understanding Privacy, attempts to characterize and understand the complex and contradictory modern views and approaches to privacy. For Solove, “[p]rivacy concerns and protections do not exist for their own sake; they exist because they have been provoked by particular problems” and it “is protection from a cluster of related problems that impinge upon our activities in related ways.”
December 2011 / 8 min.
Narrative, free will, and legal responsibility: reading Cathy Gere reading Michael Gazzaniga
Michael Gazzaniga suggests that his finding that we construct post-hoc narratives potentially undermines the criminal requirement of mens rea (the “guilty mind” element of most crimes): if our actions are in many situations automatic, and our explanations of them-our decision-making moral sense, as it were-only post-hoc, then “‘My brain made me do it’ threatens to become a get-out-of-jail-free card available to everyone, not just to sufferers of fetal alcohol syndrome or schizophrenia.”
December 2011 / 6 min.
Common law originalism: the common law was not so common
One reason to examine the reception of English common law in the American colonies is the reliance by modern originalists (like Antonin Scalia) on the generalized understandings of what the Constitution meant in light of its common-law context. But finding that stability may not be as easy as it might seem, at least in part because jurists of the time were, in many ways, as sophisticated as we are today in arguing with, against, and around precedent-which itself was hardly either stable or fixed.
November 2011 / 6 min.