Alexis de Tocqueville was a French aristocrat sent by his country to inspect American penitentiaries during the 1830s. He dutifully delivered his report, but he also found himself interested in more than penitentiaries. In Democracy in America(1835), he provided a wide-ranging and to this day highly regarded account of life in the youthful, rambunctious American Republic. Somewhat surprisingly, de Tocqueville discussed at length the role and function of jury duty.
Although de Tocqueville recognized the jury as a “juridical institution,” that is, a body that renders verdicts, he was more interested in the jury as a “political institution.” He argued that the jury “puts the real control of affairs into the hands of the ruled, or some of them, rather than into those of the rulers.” The jury was a vehicle through which the citizenry could exercise its sovereignty.
What’s more, jury duty struck de Tocqueville as a “free school.” “Juries, especially civil juries,” he thought, “instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.” As a form of “popular education,” jury duty offers practical lessons in the law and teaches jurors their rights under the law.
Overall, de Tocqueville was pleased Americans took eagerly to jury duty and felt robust, active juries were extremely important in the success of the nation. Jury duty, he said, “makes men pay attention to things other than their own affairs” and thereby “combat that individual selfishness which is like rust in society.”
How disappointed de Tocqueville would be learn how people perceive jury duty in the present. While people who actually serve on juries tend to say their experiences were positive ones, a huge percentage of Americans dread receiving a summons for jury duty and do their best to avoid serving. Websites such as “How to Get Out of Jury Duty” and “10 Ways to Avoid Jury Duty” are popular. Continue reading “Jury Duty in de Tocqueville’s Time and in the Present”
Thank you to my colleague, Professor David A. Strifling, director of Marquette Law School’s Water Law and Policy Initiative, for his generous post a few weeks ago concerning Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). The book ranges over almost two centuries and the different stories that led to the Chicago lakefront’s varied but largely integrated and altogether splendid whole. Given these temporal and geographic variations, “the core insight that shapes Kearney and Merrill’s Lakefront”—that “[t]he making of Chicago’s extraordinary landscape along Lake Michigan required law, lots and lots of law” (Professor Hendrik Hartog of Princeton University)—made intuitive sense to us from the beginning. Or at least it did to my coauthor, a noted scholar of property law.
Yet as our book’s title suggests, however much other law has been involved, the public trust doctrine has been at the forefront of lakefront controversies, at least since the Supreme Court of the United States used the Lake Front Case (more formally known as Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892)) to announce the American experiment with the doctrine. So Professor Merrill and I took a guest-blogging opportunity at the Volokh Conspiracy this past week to focus on the public trust doctrine. Here are links to our series of posts:
You can find us a month or so from now guest-blogging at The Faculty Lounge, where we expect to consider the rules that govern—or might govern—who has standing to raise the different sorts of legal claims whose disposition has helped shape the Chicago lakefront. Each of these rules is in some way problematic, and differences among them have had notable effects on what a resident or tourist today finds on the lakefront—and what he or she does not. “[L]ots and lots of law,” it has been said.
“Urbs in Horto”— city in a garden—is the motto Chicago’s founders chose upon the city’s incorporation on March 4, 1837. At the time, this was more of a vision than a statement of fact, as the city had few public parks then, and preserving its existing open spaces seemed uncertain at best. Given the industrial waterfronts in many other large cities, it is a marvel that Chicagoans made that early vision a reality, at least along the water, by creating the city’s magnificent lakefront parks and protecting open space over nearly two centuries. How did it happen, and what are the lessons for urban development more generally? The definitive account is provided in Lakefront, a remarkable new book twenty years in the making, coauthored by Marquette Law School Dean (and Chicago native) Joseph D. Kearney and Columbia University’s Thomas W. Merrill.
Lakefront is, at its core, a story about Chicago and the development of its world-renowned lakefront. But Kearney and Merrill also make a significant contribution in untangling the American development of the public trustdoctrine, which has been called “unquestionably one of the most important elements of U.S. natural resources law.” The Supreme Court has recognized the doctrine’s ancient origin and its roots in Roman law.Scholars have traced it to the Code of Justinian. Today the doctrine is generally thought to protect and preserve certain natural resources of a “special character,” through a perpetual trust intended to prevent the unimpeded exercise of private rights upon them. But clarifying the doctrine’s operational reach has proven difficult, and it has evolved into many different strains of varying strength primarily governed by state common law. However, all agree that Justice Stephen Field’s 1892 opinion for the U.S. Supreme Court in Illinois Central Railroad Co. v. Illinois was the moment at which the doctrine became a prominent feature of American law. Lakefront provides groundbreaking new details and a blow-by-blow account of how the case originated from the battles between public and private rights on the Chicago lakefront.
On Saturday, December 19, former Wisconsin Chief Justice Shirley S. Abrahamson, died after battling pancreatic cancer. She was 87. Just two ways she was like another famous, short, tough, trailblazing Jewish jurist: Ruth Bader Ginsburg.
Abrahamson, the daughter of Polish Jewish immigrants who arrived in the United States in the early 1930s, grew up in New York City. She graduated magna cum laude from NYU with her bachelor’s degree in 1953. Three years later, she graduated first in her class from Indiana Law School; she was also the only woman.
She met her husband Seymour in Indiana; they moved to Madison in the early 1960s, where Abrahamson earned her S.J.D. from UW Law in 1962. Thereafter, she became the first female lawyer at the Madison law firm La Follette, Sinykin, Doyle & Anderson. She was named a partner within a year. All throughout the time she was in practice, she also taught at UW Law.
In the decade after the American Civil War, Congress ratified three Amendments (the Thirteenth, Fourteenth, and Fifteenth) and passed five civil rights statutes (the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875) in an attempt to integrate African Americans into society and provide them with the full rights and privileges of citizenship. From rights to vote, hold property, and contract, to rights of access to the courts, public infrastructure, and the marketplace, these enactments represented a dream of reconstruction that strove toward a more universal application of the ideals of the Declaration of Independence. In striking down and interpreting these laws, the decisions of the Supreme Court played a crucial role in curtailing the promise of this older civil rights movement. The Court’s undermining of the laws led to the legal segregation, discrimination, terrorizing, denial of due process, lynching, murdering, exploitation, and injustice that characterizes the African American experience in the century that followed.
The highlight reel that we all study in Constitutional Law class includes:
The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.
The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.
Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.
In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”
On April 18 at 4 pm Pulitzer Prize winning author Garry Wills will speak at the Marquette University Law School. The topic of his talk is “Does Democracy Protect Human Rights? Constitution vs. Plebiscite.”
The event is sponsored by a grant from the UW Stout’s Center for the Study of Institutions and Innovation.
Garry Wills is Professor Emeritus of history and a cultural historian at Northwestern University. His many books include studies of George Washington, Richard Nixon, the Kennedy family, Ronald Reagan, and religion in America. His 1992 book, “Lincoln at Gettysburg: The Words That Remade America,” won the 1993 Pulitzer Prize for General Nonfiction and the 1992 National Book Critics Circle Award for Criticism. Wills won the 1979 Merle Curti Award from the Organization of American Historians and the 1978 National Book Critics Circle Award for General Nonfiction for his 1978 book, “Inventing America: Jefferson’s Declaration of Independence.” Wills has also been awarded the National Humanities Medal, and he was inducted as a laureate of The Lincoln Academy of Illinois and awarded the Order of Lincoln. His most recent book is “What The Qur’an Meant and Why It Matters.”
On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.
The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments. Continue reading “The Mirror of Racial Tyranny in The Civil Rights Cases”
The ongoing refusal of President Donald Trump to both reveal the specifics of his personal finances and to decline any income from sources outside of his official salary as President has brought renewed attention to the Emoluments Clauses of the United States Constitution. There are two such clauses, which state as follows:
The Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” absent “the Consent of the Congress.” U.S. Const. art. I, §9, cl. 8. The Domestic Emoluments Clause entitles the President to receive a salary while in office and forbids him from “receiv[ing] within that Period any other Emolument from the United States, or any of them.” U.S. Const. art. II, §1, cl. 7.
The meaning of these two provisions has become the subject of public debate and also litigation. In one leading case, the State of Maryland and the District of Colombia have sued Donald Trump for violating these constitutional provisions. They are suing for declaratory and injunctive relief which would compel President Trump to comply with the terms of the Constitution. Continue reading “Emoluments, Textualism and Original Intent”
On May second, the Marquette community lost one of its most interesting, wonderfully eccentric, and beloved members, Professor Gordon Hylton, who died of complications from cancer. Academics by and large are an enthusiastic group of people with extraordinary jobs that give them a privileged opportunity to study and share their passions with colleagues and students. No one more thoroughly enjoyed and reveled in being part of that world than Gordon Hylton. He was a devoted teacher, a relentless, careful, and thorough scholar, and a cherished colleague.
I personally found Gordon to be one of the most interesting people of my acquaintance largely because he had so many interests, found so many things fascinating, and, aided by a legendary memory, pursued them with passion and rigor and a remarkable urge to synthesize, to explain everything. And he was generous. He enjoyed nothing so much as chatting with his students and his colleagues about baseball, country music, the odd personalities who sat on the Supreme Court, the reasonableness of property doctrines, the early history of Christianity, and always with great enthusiasm and courtesy, as if knowledge and insight were both important and the most fun.
Professor Hylton was a native of Pearisburg, a small town (population, 2,699 in 2016) in Giles County in the SW corner of Virginia near the border with West Virginia. He began his college and university career at Oberlin College in Ohio, where, he often explained, he enrolled because they let him play baseball. In the course of his four years at Oberlin, the student radio station also let him host a country music program in the late night, early early morning hours. Oberlin nurtured a pronounced competitive streak. His roommates recall Gordon organizing them to enter a team in every intramural sport including inner tube water polo despite the fact that Gordon did not know how to swim, something his teammates discovered only well into the water polo season.
The Marquette Law School community is saddened by the news that Professor J. Gordon Hylton has passed away at age 65, following a battle with cancer.
Gordon was a wonderful colleague on the Law School faculty. He joined the faculty at Marquette University Law School in 1995, after teaching previously at the Chicago-Kent College of Law of the Illinois Institute of Technology. Gordon left Marquette Law School in 2015 to join the faculty at the University of Virginia School of Law full time (having visited at UVA many semesters previously). He also served a memorable year as the Fulbright Professor of Law at Kyiv-Mohyla Academy in Kiev, Ukraine. A wonderful In Memoriam webpage celebrating Gordon’s career appears on the website of the University of Virginia School of Law.
Gordon taught courses in Property Law, Trusts and Estates, and Legal History, among others, and was also closely involved with the National Sports Law Institute at Marquette Law School. He was a frequent contributor to the Marquette Law School Faculty Blog, where he was known for his posts on the history of Marquette Law School in general and on the often overlooked athletes who had a historical connection with our institution. His blog posts were sometimes quirky, often obscure, but always among the most interesting to appear on the Faculty Blog. Continue reading “Remembering Professor Gordon Hylton”
This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 2L Kelly Owens.
“In Bellingham, Washington, it is illegal for a woman to do what while dancing?” my dad asked the family during a heated game of Balderdash while I was home for the Easter holiday.
For those who might be unfamiliar with the (highly entertaining) game of Balderdash, the game poses questions across various categories to the players, and each player must come up with a convincing answer to attempt to trick other players into picking their answer over the correct one.
During this particular round, the category was weird laws. And, apparently, Bellingham, Washington, has at least one such law.
No, Bellingham does not make it illegal for a woman to kick her legs into the air while dancing (my mom’s answer), but it is illegal for a woman to take more than three steps backward while dancing. Or is it?
My immediate thought after getting through the round and hearing the answer was, How did such a ridiculous thing become a law? Better yet, how does one even go about enforcing such a law? My law student curiosity got the best of me, so I of course decided that this law required some more investigating. Continue reading “It’s Illegal to Do What? Strange Laws and Why They Exist”