T R HREE EVOLUTIONS I N A L MERICAN AW Based on lectures presented at Lewis & Clark Law School, October 22, 2009, University of Oregon and Oregon State University, October 23, 2009. http://public.resource.org/oregon.gov/ CC-Zero, No Rights Reserved. http://creativecommons.org/publicdomain/zero/1.0/ Cover photograph of the Sixes River by Point.B Studio. http://memory.org/point.b/ T R HREE EVOLUTIONS I N A L MERICAN AW . CARL MALAMUD 1. Based on lectures presented at several Oregon universities, this pleading is respectfully addressed to the Honorable John Kroger, Attorney General of the State of Oregon. 2. Edmund Burke, Speech of Edmund Burke, Esq. on Moving His Resolutions for Conciliation With the Colonies, Macmillan (Mar. 22, 1775, reprinted 1917). 3. The definitive Burke can be found in F.P. Lock, Edmund Burke: Volume 1 (1730-1784), Oxford University Press (1999) and F.P. Lock, Edmund Burke, Volume II (1784-1797), Oxford University Press (2006). 4. To smatter is “to have a slight taste; to have a slight, superficial, and imperfect knowledge,” e.g., to dabble. Samuel Johnson, A Dictionary of the English Language, Volume II, 6th Edition (1785). 5. William Blackstone, Commentaries on the laws of England, 13th Ed., A. Strahan (1800). 6. Burke, On Conciliation, p. 22. THREE REVOLUTIONS IN AMERICAN LAW 1 There were three revolutions in American jurisprudence, three revolutions in the mechanics of our legal system. The first is the American Revolution itself, and we start in England. 2 On March 22, 1775, the Right Honorable Edmund Burke, a leading member of the British Parliament, gave the speech of a lifetime, “On Conciliation With the Colonies.” 3 He gave a half-dozen reasons why fighting America was not the right course of action. The reasons were quite persuasive. For example, he argued that there were already a couple million Americans. That’s a lot of people to fight. Furthermore, these Americans were all on the other side of an ocean. It is hard to fight a people a couple of months away. He went on to assert that these Americans were very clever, and seemed to be making lots of money. Maybe England could make money too if they weren’t trying to blow the Americans up? 4 The last reason was the corker. “In no country perhaps in the world is the law so general a study ... the greater number of the deputies sent to the Congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science.” 5 As evidence, Burke cited the fact that “they have sold nearly as many of Blackstone’s Commentaries in America as in England.” The effect of this widespread study of the law by the general populace was profound. 6 “This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only 7. We focus here on the specific issues of reporting the law. For a more general description of the evolution of American jurisprudence, see Morton J. Horwitz, The transformation of American Law, 1780-1860, Oxford University Press (1992). 8. See Craig Joyce, Reporters of Decisions of the Supreme Court of the United States, University of Houston Law Center No. 2005-A-11 and Craig Joyce, ‘A Curious Chapter in the History of Judicature’: Wheaton v. Peters and the Rest of the Story (of Copyright in the New Republic), Houston Law Review, Vol. 42, p. 325 (2005) from which much of this history of the early reporters is drawn. For more on Dallas, see Alexander James Dallas, Life and writings of Alexander James Dallas, J.B. Lippincott & Co. (1871). 9. Even when reports were timely, they were notoriously inaccurate. In 1762, the eminent British reporter Michael Foster remarked that “hasty and indigested Reports” had “become the burden and scandal of the profession.” Quoted in John William Wallace, The Reporters Arranged and Characterized With Incidental Remarks, Soule and Bugbee (1882). 10.William F. Carne, Life and Times of William Cranch, Judge of the District Circuit Court, 1801-1855, Records of the Columbia Historical Society, Vol. 5, pp. 294-310 (1902). THREE REVOLUTIONS IN AMERICAN LAW by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze.” 7 The first revolution was thus one of attitude, a new country with a general interest in reading the law. The second revolution was one of mechanics, a 200-year path to create a new jurisprudence for the United States. 8 The law had a degree of informality at first. Even the Supreme Court didn’t issue written opinions in the early days. They just said what they thought. In 1790, a gentleman named Alexander J. Dallas started issuing reports on all the local Philadelphia courts. In 1791, when the new federal government moved to Philadelphia, Dallas started reporting them as well. Of course, the Supreme Court wasn’t doing very much, so his first volume, Volume 1 of the United States Reports, actually doesn’t have any Supreme Court opinions. 9 Dallas was slow, and he had a tough time catching the extemporaneous ramblings of the justices. By slow, it took him 5 years after the last case was decided to issue 2 Dallas. And, after he retired as reporter in 1800 it took him 7 years to publish 4 Dallas! 10 In 1800, the new government moved to Washington, D.C., and William Cranch, nephew of President John Adams, had just moved to the city where he failed spectacularly in a real estate speculation. Needing some income, he appointed himself the reporter of the Supreme Court. 11.Richard Rush was just 34 when he was appointed Attorney General. His distinguished career includes diplomatic postings and appointments as Secretary of the Treasury, Comptroller of the Treasury, and acting Secretary of State. See Richard Rush of Pennsylvania, Political Portraits with Pen and Pencil, Democratic Review (1840) reprinted by William H. Colyer (1840). 12.Henry Wheaton, A Digest of the Law of Maritime Captures and Prizes, M’Dermut & D.D. Arden (1815). Justice Story joined the Supreme Court at the age of 32 in 1812 and served until 1845. His Commentaries on the Constitution of the United States, Little (1873) is still considered to be a definitive and relevant treatise. 13.Alfred J. Beveridge, The Life of John Marshall, Volume III, Houghton Mifflin (1919) quoted in Joyce, Curious Case, note 87. 14.See Henry Wheaton, Reports of Cases Argued and Adjudged in the Supreme Court of the United States, February Term, 1819, R. Donaldson (1819). 15.M’Culloch v. State of Maryland et al., 17 U.S. 316, 4 L.Ed. 579, 4 Wheat. 316 (1819) and Gibbons v. Ogden, 22 U.S. 1, 6 L.Ed. 23, 9 Wheat. 1 (1824). 16.William Vail Kellen, Henry Wheaton: An Appreciation, Being the Address Delivered Before the Alumni of Brown University on the Occassion of the One Hundredth Anniversary of His Graduation, Merrymount Press (1902).