Thursday, February 13, 2020

Before Law Schools

It is an important time to think about teaching law. After attending a recent teaching workshop, I noticed that (for whatever reason) I had focused on my experiences teaching doctrinal courses. My primary courses on administrative law and sales/contracts cover essential subjects. These classes span the public-private divide and incorporate my background in telecommunications litigation, as well as my scholarly interest in interpretive questions raised by regulatory statutes and contracts.

But doctrinal classes are only part of the teaching I do at Loyola. I also run a fantastic student fellowship program through Loyola’s Institute for Consumer Antitrust Studies. In addition to substantive courses on competition policy and consumer protection, our fellowship program facilitates other types of learning. We introduce our fellows to practicing lawyers through mentoring programs and monthly lunches, and fellows also engage in legal writing projects with opportunities for multiple rounds of faculty comments and revisions. These opportunities to connect with practitioners and develop writing skills are also integral to law students’ education.

My initial focus on doctrinal classes tracks a historical distinction between formal legal education and reading the law. Lawyers in the United States did not always enter the profession primarily by attending law school. Reading the law (à la Kim Kardashian) was once the norm. Aspiring lawyers who read the law in the 18th-19th centuries apprenticed in law offices, where they gained valuable exposure to professional traditions and practicing attorneys. Although this system did not do a good job of teaching broader legal principles and sometimes left apprentices alone while their teachers tended to clients, it was how most lawyers were trained. Even many Supreme Court Justices never attended law school. I explored this phenomenon in Schooling the Supreme Court — an empirical analysis of a period when Justices’ educational backgrounds were far more diverse than they are today. (I am indebted to Mike Zimmer for the title of this article, and fear I will never publish another article with a title that I like as well.)

Today law schools offer doctrinal courses, training in legal writing and other critical skills, and experiential learning. Some historical methods of teaching law, such as rambling lectures delivered by a professor sipping whiskey at the long-defunct Litchfield Law School, have gone by the wayside in today’s engaged learning environment. Law schools have also become more attuned to producing practice-ready lawyers.

My research suggests the importance of formal legal education. Historically, Justices who shared the benefit of formal legal education voted independently of the ideologies of their appointing presidents. Votes of Justices without this background were significantly predicted by ideologies of their appointing presidents. Thus, presidents lost political influence when they appointed Justices who had attended law school. Although my statistical analysis provides too blunt a measure to explain exactly why this was the case, the correlation between formal legal education and apolitical voting was significant. It suggests the value of learning about the law as a discipline with the potential to transcend the outcomes of presidential elections.  

My historical research also provides reason to think that the value of legal education extends beyond doctrine and skills taught in the classroom. Law schools currently operate as gatekeepers and control who has the opportunity to enter the legal profession. When entry into the legal profession turned on apprenticeships, these opportunities were most readily available to white men from affluent families. Today’s system of higher and legal education has expanded opportunities for women and minorities, although it still seems to favor privilege and lack optimal diversity. Law schools have made some significant strides in diversity. This year, the editors in chief of law journals at the top 16 U.S. law schools are women. Greater diversity in the legal profession and its leadership is another aspiration that the legal academy is uniquely situated to promote.

Posted by Christine Chabot on February 13, 2020 at 05:09 PM in Legal History, Life of Law Schools, Teaching Law | Permalink | Comments (3)

Monday, January 20, 2020

Could Congress Put Chief Justice Roberts on the Federal Reserve’s Open Market Committee? It’s Not As Crazy As You Might Think

The Supreme Court has paid careful attention to Article II’s Appointments Clause requirements in recent cases. Such enhanced scrutiny coincides with renewed constitutional challenges to the appointments process for members of the Federal Reserve’s Federal Open Market Committee. Drawing on my recent paper, this post provides several reasons why the Committee’s appointments should be considered constitutional. These appointments even find support in the First Congress’s decision to make Chief Justice John Jay an ex officio member of the Sinking Fund Commission. The Commission is a founding-era antecedent to the Open Market Committee, and Chief Justice Jay served on the Commission without ever receiving an appointment as a principal officer in the executive branch.

First consider the Appointments Clause issues raised by the Open Market Committee. Its monetary policy decisions have enormous ramifications for the U.S. economy, and yet only seven of the Committee’s twelve members (the governors) are appointed as principal officers. The remaining five members of the Committee are presidents of regional Federal Reserve banks. The bank presidents vote independently and as the governors’ colleagues on the Open Market Committee, but their appointments are approved by the governors rather than the President and Senate. Thus the bank presidents meet only the requirements for inferior officers. Peter Conti-Brown has argued that multiple vacancies on the board of governors have exacerbated the problem by granting bank presidents a majority of votes on the Open Market Committee. It’s not clear that this change (or underlying factors) would render bank presidents principal officers under current precedent. A minority of governors would still retain power to remove bank presidents at will, and regional bank presidents cannot form a quorum of the Committee necessary to transact business without the presence of at least two governors.  (Please see my paper for citations to relevant authority.)

Nor do the bank presidents’ appointments run afoul of originalist arguments for broader Appointments Clause requirements. The Sinking Fund Commission, which again was the Open Market Committee’s founding-era antecedent, provides helpful precedent on this issue. As explained earlier, the Sinking Fund Commission was proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington. Like the Open Market Committee, the Sinking Fund Commission conducted open market purchases of U.S. securities pursuant to a statutory mandate. In this legislation, Congress specified that five principal officers would become ex officio members of the Sinking Fund Commission: the President of the Senate/Vice President, the Chief Justice, the Secretary of State, the Secretary of Treasury, and the Attorney General. The decision to bestow ex officio positions upon five persons who were already properly appointed principal officers is distinct from appointments concerns raised by the Open Market Committee. Still, the Sinking Fund Commission’s ex officio provisions suggest that some members of multi-member agencies may serve without meeting Appointments Clause requirements for executive officers.

Consider the Chief Justice. Chief Justice Jay was first appointed to an Article III office outside of the executive branch and performed judicial duties that had nothing to do with the Sinking Fund Commission’s open-market purchases of U.S. securities. The new duties Congress assigned as a Sinking Fund Commissioner were not germane to his existing judicial duties or even duties within the judicial branch. It would seem that the Chief Justice served on the Commission without a second appointment qualifying him to be an executive officer. The historical record does not clarify whether the Chief Justice’s role was permissible because he served alongside other properly appointed executive officers, or because the Commission’s open-market purchases were quasi-private actions that did not involve significant authority of the United States. Either way, Chief Justice Jay’s service on the Commission without an appointment to an executive post suggests that the limited appointments process for regional Federal Reserve bank presidents is also permissible.  

Posted by Christine Chabot on January 20, 2020 at 10:17 AM in Constitutional thoughts, Legal History | Permalink | Comments (1)

Monday, February 11, 2019

Peter Gonville Stein Book Award-ASLH

The following is from the American Society for Legal History

The Peter Gonville Stein Book Award is awarded annually for the best book in legal history written in English. This award is designed to recognize and encourage the further growth of fine work in legal history that focuses on all non-US regions, as well as global and international history. To be eligible, a book must sit outside of the field of US legal history and be published during the previous calendar year. Announced at the annual meeting of the ASLH, this honor includes a citation on the contributions of the work to the broader field of legal history. A book may only be considered for the Stein Award, the Reid Award, or the Cromwell Book Prize. It may not be nominated for more than one of these three prizes.

The Stein Award is named in memory of Peter Gonville Stein, BA, LLB (Cantab); PhD (Aberdeen); QC; FBA; Honorary Fellow, ASLH, and eminent scholar of Roman law at the University of Cambridge, and made possible by a generous contribution from an anonymous donor. Read more about Dr. Stein here.

For the 2019 prize, the Stein Award Committee will accept nominations of any book (not including textbooks, critical editions, and collections of essays) that bears a copyright date of 2018 as it appears on the printed version of the book. Translations into English may be nominated, provided they are published within two years of the publication date of the original version.

Nominations for the Stein Award (including self-nominations) should be submitted by March 15, 2019. Please send an e-mail to the Committee at [email protected] and include: (1) a curriculum vitae of the author (including the author’s e-mail address); and (2) the name, mailing address, e-mail address, and phone number of the contact person at the press who will provide the committee with two copies of the book. This person will be contacted shortly after the deadline. (If a title is short-listed, four further copies will be requested from the publisher.)

Please contact the committee chair, Matthew Mirow, with any questions at [email protected].

Posted by Howard Wasserman on February 11, 2019 at 02:39 PM in Legal History, Teaching Law | Permalink | Comments (0)

Monday, January 14, 2019

A Bit of History on the Presumption of Regularity

Several years ago, when I was writing a paper about prosecutorial discretion, I ended up doing a bunch of research on the presumption of regularity.  As you may know, the presumption of regularity is a presumption that executive officials have properly discharged their official duties.  It has become a hot topic during the Trump administration.  But I was interested in the presumption because it forms the basis of a few cases that I find troubling --- most notably, the Supreme Court’s ruling in United States v. Armstrong, which denied criminal defendants discovery in support of their selective prosecution claim unless they could first “produce some evidence that similarly situated defendants could have been prosecuted, but were not.”  The Armstrong Court justified setting the standard to obtain discovery so high (thus creating a barrier to obtaining discovery), in part, on the presumption of regularity.  It also indicated that the presumption of regularity is a justification for the broad discretion that the Court affords to prosecutors.

The paper ended up going in another direction, and so the research on the presumption of regularity never saw that light of day.  But I thought I’d go ahead and share it now, given how many people I see talking about the presumption.  People might think it is interesting because the research shows that the presumption has expanded well beyond the cases that have been used to justify it.

Armstrong cites United States v. Chemical Foundation, a 1926 Supreme Court case, as support for the presumption of regularity.  But that case doesn’t seem to provide a particularly sound foundation for the presumption—at least not for the presumption as it is currently invoked by the Court.

In Chemical Foundation, the United States sued to invalidate the sale of foreign patents to Chemical Foundation.  The government had seized the patents pursuant to the Trading with the Enemy Act of 1917, and the President had delegated the power to sell the patents to Frank Polk, who was a counselor for the Department of State.  Polk then ordered the sale of various patents to the Chemical Foundation.  The United States subsequently sought to invalidate the sale, alleging that Polk’s decision to sell was “induced by misrepresentation and [was] made without knowledge of the material facts.”  The government lost at trial, with the lower court finding that the U.S. had “failed to establish any conspiracy, fraud or deception alleged.”  The Supreme Court declined to disturb the factual findings of the lower court, because they were not clearly erroneous.

I assume the Supreme Court could have disposed of Chemical Foundation on this limited ground—namely, that the government had failed to meet its factual burden.  But the Supreme Court went on to state:

The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Under that presumption, it will be taken that Mr. Polk acted upon knowledge of the material facts. The validity of the reasons stated in the orders, or the basis of fact on which they rest will not be reviewed by the courts.

The Chemical Foundation Court cited three other cases in support of the presumption.  None of those cases referenced a presumption of regularity.  Nor do any of those cases reveal where the Chemical Foundation Court located authority for the presumption or what it thought the contours of that presumption to be.  And, most important, none supports the presumption as it was expressed and applied in Armstrong.

The first of these cases, The Confiscation Cases, involved a seizure that the President was authorized by Congress to make, but was actually made by a marshal acting on directions by the district attorney, who was in turn acting at the request of the Attorney General.  The cited portion of the opinion states that, because the statute authorized only the President to make the seizure, “a direction given by the Attorney-General to seize property liable to confiscation under the act of Congress must be regarded as a direction given by the President.”  The Court suggested that this holding was related to a previous decision that “the President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.”  It is possible that the Chemical Foundation Court relied on The Confiscation Cases for the proposition that the Attorney General is presumed to act at the request of the President.  But the Chemical Foundation Court did not provide this (or any other) explanation.

The second case cited by Chemical Foundation is United States v. Page. That case involved a requirement that the result of all court-martial proceedings were to be signed by the President.  In Page, that requirement had not been technically satisfied.  The Secretary of War testified that he had forwarded the proceedings to the President, but the Secretary, rather than the President, had signed the copy of the proceedings. Nevertheless, the Court refused to dismiss the court-martial charge.  It stated that “where the record discloses that the proceedings have been laid before the president for his orders in the case, the orders subsequently issued thereon are presumed to be his, and not those of the secretary by whom they are authenticated: and this must be the result here.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that, if the Secretary of War said he forwarded something to the President for approval, that statement ought to be presumed correct.  But that is hardly the only possible way to read this case.

The final case, United States v. Nix, involved a dispute over the travel fees of a marshal to serve arrest warrants.  The marshal claimed travel not only for miles that he traveled, but also for miles traveled by his deputies.  The deputies were not available for testimony or depositions to verify the miles they traveled.  But the marshal was able to show that “his accounts” of the miles traveled by his deputies “had been allowed by the district judge.”  The Court deemed this decision by the district judge “prima facie evidence of the correctness of the items of that account” that “was sufficient to place upon the government the burden of showing any error of fact in his account.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that the official accounting of the marshal ought to be presumed correct.  But it is difficult to tell what, precisely, was entitled to the presumption—the representation of the marshal, or the fact that the lower court found the representation credible.  In short, this line of precedent hardly provides a solid foundation for the presumption.

Although Armstrong was a criminal case, the presumption is not limited to criminal prosecutors.  Many Supreme Court cases discussing the presumption are unrelated to the criminal justice system.  For example, in National Archives and Records Administartion v. Favish, the Court referenced the presumption in creating a higher threshold showing for disclosure in certain FOIA cases.  The Court stated: “[T]here is a presumption of legitimacy accorded to the Government’s official conduct. The presumption perhaps is less a rule of evidence than a general working principle. However the rule is characterized, where the presumption is applicable, clear evidence is usually required to displace it.”

But, as with the cases applying the presumption to decisions by prosecutors, these other cases tend to make only brief reference to the presumption, sometimes including little more than citations to previous cases, which themselves made only brief reference to the presumption.  Indeed, a case that has long been associated with the presumption of regularity afforded to administrative agencies—Citizens to Preserve Overton Park v. Volpe—states only: “Certainly, the Secretary’s decision is entitled to a presumption of regularity. But that presumption is not to shield his action from a thorough, probing, in-depth review.”

Although the Supreme Court has not made the connection explicit, one suspects that the presumption of regularity afforded to prosecutors is related to the ancient maxim “Omnia praesumuntur rite esse acta,” which roughly translated means “All things are presumed to have been done rightly.”  The maxim is sometimes recounted as “Omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium”—that is, “All things are presumed to have been done rightly and with due formality unless it is proved to the contrary.”  Recent cases involving the presumption of regularity do not invoke the maxim, but some older opinions do.  Justice Story invoked the maxim in Bank of U.S. v. Dandridge, stating:

[The law] presumes that every man, in his private and official character, does his duty, until the contrary is proved; it will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donec probetur in contrarium. Thus, it will presume that a man acting in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; that, upon proof of title, matters collateral to that title shall be deemed to have been done; as, for instance, if a grant or feoffment has been declared on, attornment will be intended, and that deeds and grants have been accepted, which are manifestly for the benefit of the party. The books on evidence abound with instances of this kind, and many of them will be found collected in Mr. Starkie’s late valuable Treatise on Evidence.

As the excerpt from Justice Story’s opinion indicates, the presumption had a number of iterations.  But it also indicates that the presumption of regularity is not limited to executive officials—or even public officials; instead, it applies to everyone.  It is an evidentiary presumption that people act appropriately—an presumption that the party claiming otherwise bears the burden to disprove.

So how on earth did a presumption that applies to everyone and merely sets a burden of proof transform to shield prosecutors from discovery?  I’m not sure.  But I imagine that it is attributable, at least in part, to the fact that the courts do not want to be inundated with cases challenging executive action.  And I imagine that it is also related to the fact that the post-Warren Court has (at least at times) made a big show out of not interfering in the business of the political branches.

In any event, I think that it is worth noting the shaky foundations of the modern presumption of regularity.  History shows that it is an evidentiary presumption that applied to public and private actors alike; it was used to allocate burdens of proof, not to prevent discovery or to insulate executive action from judicial review. 

Posted by Carissa Byrne Hessick on January 14, 2019 at 07:06 AM in Carissa Byrne Hessick, Criminal Law, Legal History | Permalink | Comments (3)

Wednesday, August 29, 2018

Guest Post: A Law Faculty Candidate and His Judicial Reference (1934)

The following guest post is by John Q. Barrett (St. John's and The Jackson List)

In summer 1934, Harold Roland Shapiro was a young lawyer.  It seems that he had earned his Bachelor of Laws degree eight years earlier at New York Law School, and that he had gone on to work in Washington, D.C., in a government position that had something to do with trade and antitrust law.  [I have not been able to find many sources on Mr. Shapiro’s background—I welcome any pointers.]

It also seems that Shapiro was acquainted with U.S. Supreme Court Associate Justice Benjamin N. Cardozo.

We know this because Shapiro wrote to Justice Cardozo during the Court’s 1934 summer recess.    Shapiro reported some good personal news:  positive signs that he would be employed by his alma mater to teach Administrative Law.  And Shapiro asked for Cardozo’s help—he requested a letter from the Justice to New York Law School’s dean, recommending Shapiro for the teaching position.

Cardozo declined to send the “Supreme Court justice letter” that surely would have been, if Shapiro had needed it, an employment-clincher.  Instead, Cardozo, summering in Westchester County outside New York City, wrote back to Shapiro, explaining his policy of not volunteering recommendations:

Rye, N.Y.

                        August 12, 1934

Dear Mr. Shapiro,

            I am much gratified

at the word that you are

likely to give instruction in

administrative law at the

New York Law School.  You

have many qualifications

for the work and will

be happy in it.

            As for writing to the

Dean, I have a fixed rule

never to recommend any one

for appointment to a

position of any kind unless

my opinion has been solicited

by the appointing power.

You will agree with me, when

you reflect about the matter,

that this is the only

appropriate attitude for a

judge to take.

            With all good wishes and

kind regards

                        I am faithfully yours

                                    Benjamin N. Cardozo

It’s not clear what happened next.  Maybe Shapiro got the Dean to ask the Justice for his views and Cardozo then endorsed, or maybe Shapiro did not and his application went forward without it.

In any case, Shapiro got the job—he became an Assistant Professor at New York Law School (at least by 1938, which is the earliest press reference I can find, but I assume that it happened in Fall 1934).

This all seems extra-relevant to me because I am, like many law professors, on my school’s Appointments Committee this year and going through candidate resumes.  Many are excellent.  I wish every applicant the luck of Shapiro and each of us who gets to think, teach, and write as a law professor.

And I am reminded, by Justice Cardozo, that when an interesting candidate lists a great Judge as a reference and I might wish to hear his or her views, I should take the initiative to make contact.

And a final point, for history:  For any collector, or any would-be benefactor of an appropriate archive, the Cardozo-to-Shapiro letter is available for purchase—click here if you have $1,500 to spend for it.

Posted by Howard Wasserman on August 29, 2018 at 09:31 AM in Legal History, Teaching Law | Permalink | Comments (0)