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Friday, April 02, 2021

More Easter Eggs in the Youngstown Concurrence

With Easter upcoming, I thought I would share some interesting tidbits that I've discovered so far in my research on Justice Jackson's concurring opinion.

1. This appears to be the first Supreme Court opinion to use the term "relativity." Jackson uses it to talk about his famed three categories of analysis. I've also been fascinated by the use of scientific metaphors in judicial opinions, as this was the first that could be ascribed to Einstein's theory.

2. A few paragraphs of the opinion were lifted from a speech that Jackson gave in 1951 at Buffalo Law School. There are three paragraphs there describing emergency powers in Weimer Germany, the Third French Republic, and Britain during World War II that were essentially just copied into his opinion.

3. He quoted Rudyard Kipling's line: "Leave to live by no man's leave, underneath the Law." This is from "The Old Issue," an 1899 poem in which Kipling celebrates English history in restraining royal power. (Kipling talks about Magna Carta twice, for example.) This quote was an especially apt one for Youngstown because that was a case about executive power.

4. Jackson cited and relied in part on an analysis of executive power by Judge Augustus Hand in the 1920s. Six months before Youngstown, Jackson delivered a tribute to Learned and Augustus Hand at a bar function in New York. This may explain why Hand's opinion occurred to him in Youngstown.

Next week I'll post on what I've learned about the canonization of the opinion in the 1970s.   

Posted by Gerard Magliocca on April 2, 2021 at 08:53 PM | Permalink


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