Lincoln’s Anti-Slavery Gettysburg Address

Posted on Categories Constitutional Law, Legal History, Public2 Comments on Lincoln’s Anti-Slavery Gettysburg Address

As Professor Mazzie has noted, today, November 19, 2013—the day that I am writing this—is the 150th anniversary of Abraham Lincoln’s brief but iconic Gettysburg Address. Rereading its text earlier today, I was reminded how committed the speech was to the cause of emancipation. Although most of the Union dead at Gettysburg were there to save the Union, not to abolish slavery, it was clear that the emancipation of African-American slaves was very much on Lincoln’s mind when he penned the famous words.

The references to slavery are admittedly somewhat oblique, and the word ‘slavery” is never used. However, the phrase “a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” which is prominently featured as the second half of the Address’ opening sentence, clearly refers to the famous, and then not yet fully realized, words of the slaveholder Thomas Jefferson’s Declaration of Independence. In the middle section of the work, Lincoln subtly indicates that the nation for which the Gettysburg dead made the final sacrifice was not the United States of 1860 reunited, but that unrealized nation of the Declaration, committed to liberty and equality. Continue reading “Lincoln’s Anti-Slavery Gettysburg Address”

Remembering the Assassination of President Kennedy

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John_F_KennedyMost of the current affiliates of the Marquette Law School are too young to remember the assassination of President John F. Kennedy on November 22, 1963. But for those of us who do remember it, it is a date indelibly stamped in our memories. As part of the nationwide effort to mark the 50th anniversary of that tragic event, I share my memories of that day, and I encourage others to do the same.

I was in the 6th grade at King Johnston Intermediate School in Pearisburg, Virginia, in November of 1963. Although President Kennedy was extremely popular with my classmates, my family members were not especially big Kennedy fans. My parents had supported Richard Nixon in the 1960 presidential election, and I don’t think that they had ever gotten past the idea that Kennedy had won the election because he was rich, handsome, well-connected to power, and willing to say whatever it took to get elected.

Still, I was shocked when I heard that he had been assassinated. Although I prided myself on my knowledge of current events, I don’t think that I knew that the president was in Dallas that day. I knew that presidents Lincoln, Garfield and McKinley had been assassinated in the past, but I doubt that I ever had entertained the idea that a president in my own time could meet such a fate. Continue reading “Remembering the Assassination of President Kennedy”

Could Lincoln Have Been Defeated in 1860?

Posted on Categories Legacies of Lincoln, Political Processes & Rhetoric, President & Executive Branch, Public12 Comments on Could Lincoln Have Been Defeated in 1860?

This is another in a series of posts marking the sesquicentennial of the Emancipation Proclamation.

No presidential election in American history has been as pivotal as the election of 1860. Had any one of Abraham Lincoln’s three opponents been elected president in November of 1860, South Carolina would clearly not have seceded from the Union on December 20, and it and its six compatriot Deep South states would not have formed the Confederate States of America on February 8, 1861.

(Technically, Texas, one of the seven seceding states, did not join the Confederacy until the first week of March.)

Of course, one of the anomalies of that election was that Abraham Lincoln won a solid majority in the Electoral College, even though he received only 39.7% of the popular vote. The remaining 60+% was divided between the Northern Democrat Stephen Douglas of Illinois (29.5%), the Southern Democrat James Breckenridge of Kentucky (18.2%), and Tennessean John Bell (12.6%), who was the candidate of the Constitutional Union Party, essentially an effort to revive the defunct Whig Party.

While receiving only a plurality of the popular vote, Lincoln nevertheless won a substantial majority in the Electoral College, totaling 180 votes compared to 72 for Breckenridge, 39 for Bell, and only 12 for Douglas. Continue reading “Could Lincoln Have Been Defeated in 1860?”

Was There a Confederate Emancipation Proclamation?

Posted on Categories Legacies of Lincoln, Legal History, Public, Race & LawLeave a comment» on Was There a Confederate Emancipation Proclamation?

EmancipationProclamationThis is another in a series of posts on slavery, the Constitution and the Civil War written for the Marquette University celebration of the sesquicentennial of the Emancipation Proclamation.

Although the Civil War was, at its core, fought to preserve slavery, during the war concern for the preservation of the Confederate nation led some of the breakaway country’s leaders to contemplate the unthinkable—the emancipation of African-American slaves in exchange for their service in the Confederate military.

Although Confederate diplomats, in their search for support in England and France, somewhat disingenuously implied that the South planned to eventually abandon slavery during the early years of the Civil War, Southern efforts to abolish the “peculiar institution” really began in late 1863 with Confederate general Patrick Cleburne of the Army of the Tennessee. Fearing the worst for his adopted country, the Irish-born Cleburne circulated a written document to his fellow officers that proposed that the Confederacy replenish its ranks with armed black soldiers who would be brought into the Rebel Army with a promise of freedom for themselves and their families. As Cleburne must have realized, the widespread emancipation of black soldiers and their families would make it impossible to keep other African-Americans as slaves once the war was over.

Continue reading “Was There a Confederate Emancipation Proclamation?”

Farewell to Ronald H. Coase

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CoaseAlmost every student who has attended law school in the past 40 years has encountered Ronald Coase and the Coase Theorem. Even professors who disagree with Coase feel compelled to expose their students to his famous theorem, even if only to rebut its argument. As a long-time teacher of both Torts and Property who is not an advocate of law and economics, I cannot imagine teaching either course without references to the Coase Theorem as a way of evaluating the correctness of legal rules.

In a nutshell, Coase, widely acknowledged as the founder of the law and economics movement, posited that in a world without transaction costs, individuals would bargain with each other to achieve the most efficient use of resources, and legal rules would be irrelevant. As a consequence, in a world with transaction costs, Coase seemed to suggest that legal rules should be constructed so that they favor the most efficient user, since that is the party who will eventually end up with the resource . The Coase Theorem was presented to the world in a 1960 article entitled, The Problem of Social Cost, which appeared in the Journal of Law and Economics and is still the most frequently cited law review article in history. Continue reading “Farewell to Ronald H. Coase”

A Sensible Approach to Reforming College Sports

Posted on Categories Public, Sports & Law2 Comments on A Sensible Approach to Reforming College Sports

The modern university is essentially a corporation with four lines of production, the four lines being: education, research, medical services, and entertainment. Understanding the proper role of athletics in the university framework is complicated by the fact that sports are both part of the university’s educational “mission,” and the primary form of public entertainment it produces.

The confusion between athletics as a component of undergraduate education and athletics as entertainment has produced no end of problems for universities and for the NCAA, the primary regulator of college sports.

The primary source of the confusion is the labeling of participants in revenue generating college sports as student athletes, as though they were somehow ordinary students who just happened to choose to participate in sports as an extracurricular activity, as opposed to college radio, theater, or their school’s African-American heritage organization.

In reality, scholarship athletes are paid entertainers whose wages are, thanks to the salary cap imposed by the NCAA and tis member schools, paid in kind in the form of free food and lodging, free textbooks, the opportunity to attend classes and pursue a degree, and special tutoring not available to ordinary students. If these particular university employees lose interest in their sport, or simply fail to perform at an acceptable level, their employment can be terminated. Continue reading “A Sensible Approach to Reforming College Sports”

Dean Howard Eisenberg–Appellate Litigator

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Howard Eisenberg, dean of Marquette law school from 1995 until his untimely death at age 55 in 2002, was renowned as an appellate litigator. After his death, the American Academy of Appellate Litigators created the Howard Eisenberg Award in his honor to be given annually to the best article on appellate practice and procedure published in a journal. (One of the winners of this award is our own Prof. Oldfather.)

Howard’s talents evidenced themselves early in his career, beginning with a highly successful performance in Moot Court at the University of Wisconsin Law School. The picture below recently resurfaced on the Internet and shows Howard’s championship moot court team from 1970. Howard is the individual on the far right of the photo.

A fuller description of Dean Eisenberg’s career can be found here.



Is the American Bar Ready for Different Types of Law Schools?

Posted on Categories Legal Education, Public3 Comments on Is the American Bar Ready for Different Types of Law Schools?

Recent statements from the American Bar Association suggest that the national lawyers’ organization may be on the verge of abandoning one of its most “sacred” principles: the idea that that law is a unitary profession. Though lawyers have long had specialized practices, the dominant professional ideal in the United States, at least since the 1920’s, has been that there is only one kind of lawyer. One is either a lawyer or one is not, and there is no distinction between advocates, solicitors, notaries, conveyancers, patent specialists, or judicial officials, as there are in many European countries.

The prerequisite of passage of a broad-based bar examination in most jurisdictions has reinforced this position. All those who make their living from the practice of law take the same bar examination.

A logical corollary of this principal, also long embraced uncritically, is that all lawyers should receive the same type of legal education at the same type of law school. Continue reading “Is the American Bar Ready for Different Types of Law Schools?”

Is It Time to Expand the Size of Congress?

Posted on Categories Congress & Congressional Power, Political Processes & Rhetoric, Public4 Comments on Is It Time to Expand the Size of Congress?

Seal of US House of RepresentativesOn August 8, 1911, President William Howard Taft signed a bill authorizing an increase in the size of the House of Representatives from 391 members to 433. A provision in the bill also provided that two additional members would be added in 1912, following the scheduled admission of New Mexico and Arizona as the 47th and 48th states, and thereby raising the size of the House to 435, which is still the size of the House.

This means that since the admission of Arizona as the 48th state on Valentine’s Day, 1912, the size of the House of Representatives has remained unchanged for the 101.5 years. (The admission of Alaska and Hawaii in 1959 increased the size of the United States Senate from 96 members to 100, but a decision was made at that time to keep the size of the House at 435.)

The 1910 Census reported the population of the United States as slightly more than 92 million people. In comparison, the figure for 2010 was slightly less than 309 million, an increase of more than 330%. This means that every Congressman today represents more than three times as many people as his or her counterpart of a century ago. Continue reading “Is It Time to Expand the Size of Congress?”

Moral Lessons from the Boomer

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George ScottOne of the many disappointments of growing older is the awareness that the Big League baseball players you idolized in your youth are dying off. Word came yesterday (July 30) from the pages of the Journal Sentinel that George “Boomer” Scott, former first baseman for the Brewers and Red Sox, has passed away at age 69 in his home state of Mississippi.

While he never ranked as one of my all-time favorite players, what I read about Scott in the papers and the sporting press made me like him a lot, and I followed his major league career from its beginning in 1966, when I was in the 8th grade, until his retirement at the end of the 1979 season when I was in graduate school. The lesson that I learned from Scott’s experiences as a baseball player was that life can be a series of very high highs and very low lows and that you just have to ride out the low parts as best you can, although at some point you do have to realize that it is time to call it quits and do something else.

Scott broke into the majors with a very bad Boston Red Sox team in 1966. He won the team’s starting first baseman’s job in spring training and ended up playing in all 162 of the team’s games that season. Scott was a gifted fielder and a perennial gold glove winner during his career, but first basemen are in the line-up to hit. And hit he did in 1966.

Continue reading “Moral Lessons from the Boomer”

Are There Three Factions on the United States Supreme Court?

Posted on Categories Federal Law & Legal System, Public, U.S. Supreme Court2 Comments on Are There Three Factions on the United States Supreme Court?

SCtThe way that the media reports on the Supreme Court, one gets the impression that the Court is divided into two intractable four-justice blocs, with Justice Anthony Kennedy deciding most of the cases by swaying back and forth between the two blocs.

(Under this interpretation, the conservative block is made up of Chief Justice John Roberts, as well as Justices Alito, Scalia and Thomas, while the liberal bloc includes Justices Breyer, Ginsburg, Kagan, and Sotomayor.)

Using data compiled from the SCOTUS blog regarding the Court’s 5-4 decisions since the appointment of Chief Justice Roberts, the Court actually divides into three three-justice blocs: Continue reading “Are There Three Factions on the United States Supreme Court?”

America’s Largest Law Firms Keep Getting Larger

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law-firm-12086-largeEven with a seemingly endless stream of stories in the lawyer press about lay-offs at large corporate firms, the largest law firms in the United States continue to grow larger and larger.

In the National Law Journal’s recently released list of the 350 largest law firms in the United States, two Chicago-based law firms have broken through the 4000 lawyer barrier. DLA Piper leads the list with 4036 lawyers while Baker and McKenzie is close behind at 4004.

There is a considerable gap between these two firms and the next largest firm, although three law firms–Jones Day (New York), Hogan Lovells (Washington, D.C.), and Latham & Watkins–each have more than 2000 attorneys. An additional 17 firms had more than 1000. Continue reading “America’s Largest Law Firms Keep Getting Larger”