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Friday, March 08, 2024

What Was In This Brief?

In 1918, a man who was conscripted into the Army for World War I sought a writ of habeas corpus claiming that the draft statute was unconstitutional. The Court rejected this claim in Cox v. Wood and then said this at the end of the opinion:

But before so ordering we must notice a suggestion made by the government that because of impertinent and scandalous passages contained in the brief of the appellant the brief should be stricken from the files. Considering the passages referred to and making every allowance for intensity of zeal and an extreme of earnestness on the part of counsel, we are nevertheless constrained to the conclusion that the passages justify the terms of censure by which they are characterized in the suggestion made by the government. But despite this conclusion which we regretfully reach, we see no useful purpose to be subserved by granting the motion to strike. On the contrary we think the passages on their face are so obviously intemperate and so patently unwarranted that if as a result of permitting the passages to remain on the files they should come under future observation, they would but serve to indicate to what intemperance of statement an absence of self-restraint or forgetfulness of decorum will lead and therefore admonish of the duty to be sedulous to obey and respect the limitations which an adhesion to them must exact.

What were these "scandalous" passages that the Government wanted stricken? Stay tuned when I find them!

Posted by Gerard Magliocca on March 8, 2024 at 08:25 PM | Permalink


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