Friday, May 17, 2013

YJL&H 24:2 (2012)

We just realized that the latest issue of the Yale Journal of Law and the Humanities has two works of legal history, The first is Personal and Official Authority: Turn-of-the-Century Lawyers and the Dissenting Opinion, by Hunter Smith:
Around the turn of the last century, many American lawyers wanted to ban dissenting opinions in all courts of last resort. They derided dissenting opinions as a pernicious waste of time, one that caused uncertainty in the law, shook the public's faith in the courts and was fundamentally inconsistent with the nature of judicial authority. A dissenting opinion, they claimed, was no more than a statement by a judge as individual, but such statements should not be published in law reports. Though the idea never got very far - only one state prohibited the publication of dissenting opinions in official reports - the debate over whether to publish dissent engaged the energies of leading legal periodicals, bar associations, judges and lawyers for a considerable span of years.

The turn-of-the-century controversy over the publication of dissenting opinions has escaped contemporary academic attention. To the extent that the criticism of dissenting opinions has appeared in scholarship at all, it has been understood as an example of "classical legal thought." As one account puts it, because classical legal thought strove to portray "law [as] neutral, objective and prepolitical," it was embarrassed by and adamantly opposed to the public expression of judicial disagreement. In an article on the opinion-writing practices of the Taft Supreme Court, Robert Post quotes some of the lawyers from this earlier era who inveighed against the publication of dissent. He too uses turn-of-the-century articles opposed to the publication of judicial dissent as examples of "a jurisprudential understanding of the nature of law [as] a grid of fixed and certain principles designed for the settlement of disputes," an understanding which he argues the members of the Taft Court gradually abandoned.

Around the turn of the last century, many American lawyers wanted to ban dissenting opinions in all courts of last resort. They derided dissenting opinions as a pernicious waste of time, one that caused uncertainty in the law, shook the public's faith in the courts and was fundamentally inconsistent with the nature of judicial authority. A dissenting opinion, they claimed, was no more than a statement by a judge as individual, but such statements should not be published in law reports. Though the idea never got very far - only one state prohibited the publication of dissenting opinions in official reports - the debate over whether to publish dissent engaged the energies of leading legal periodicals, bar associations, judges and lawyers for a considerable span of years.

The turn-of-the-century controversy over the publication of dissenting opinions has escaped contemporary academic attention. To the extent that the criticism of dissenting opinions has appeared in scholarship at all, it has been understood as an example of "classical legal thought." As one account puts it, because classical legal thought strove to portray "law [as] neutral, objective and prepolitical," it was embarrassed by and adamantly opposed to the public expression of judicial disagreement. In an article on the opinion-writing practices of the Taft Supreme Court, Robert Post quotes some of the lawyers from this earlier era who inveighed against the publication of dissent. He too uses turn-of-the-century articles opposed to the publication of judicial dissent as examples of "a jurisprudential understanding of the nature of law [as] a grid of fixed and certain principles designed for the settlement of disputes," an understanding which he argues the members of the Taft Court gradually abandoned.
The second is After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801 by Jed Glickstein, which we noted as an SSRN paper:
Most law students encounter the midnight judges, if at all, in a footnote to "perhaps the most famous case in American history." In the words of the judges' foremost historiographer, "the appointment of the 'midnight judges' has lingered because it affords the appropriate essential for a springboard introduction to an analysis of John Marshall's decision in Marbury v. Madison." To summarize: Thomas Jefferson and the Democratic-Republicans defeated the reigning Federalist Party, led by President John Adams, in the election of 1800. In response, the lame-duck Federalists tried to shore up their position in the short time before Adams left office. Just a few weeks before Jefferson's inauguration, the outgoing Federalist Congress passed the Judiciary Act of 1801, creating sixteen new federal circuit judgeships. In a separate act, Congress created three additional circuit judgeships and over forty justices of the peace for the District of Columbia. Adams hastily filled as many of these positions as he could with his supporters. As a Federalist senator famously observed to a friend, his party was "about to experience a heavy gale of adverse wind; can they be blamed for casting many anchors to hold their ship thro the storm?"

In short order, however, President Jefferson and the Republicans regained the initiative. Shrugging off the Federalists' protests, the new Congress repealed the Judiciary Act, abolished the new courts, and put the so-called "midnight judges" out of their jobs. Jefferson also ordered his Secretary of State to ignore some signed commissions that the Adams administration had forgotten to deliver to justices of the peace during the chaotic changeover, leading William Marbury and several other would-be JPs to sue to get hold of their commissions. Marbury lost, but in deciding his case Chief Justice John Marshall promulgated what has become the classic statement of judicial review, the proposition

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