Yale Law School Legal Scholarship Repository

The Contracts Notes of Timothy Merwin: Earliest Evidence of Instruction at Yale Law School

Peter Stern — Thu, 10 May 2012 13:25:19 PDT

This paper discusses the contracts notes of one of the first students at the Yale Law School. The notes were taken in 1828, making them the earliest known evidence of the method of instruction employed by the law school's founders.

Public Law and Legal Education in the Nineteenth Century: The Founding of Burgess' School of Political Science at Columbia

Alexa S. Bator — Thu, 10 May 2012 11:36:19 PDT

This paper discusses the founding of the School of Political Science at Columbia University by John W. Burgess in 1880. Burgess established the political science school after failing in his attempts to introduce a program of coursework in political science and public law at Columbia's School of Law. He hoped that the new school would supplement the private-law curriculum of the law school, with the particular aim of preparing students for a career in public service.

No Adequate Remedy at Law: Equity in Massachusetts 1692-1877

Phyllis Maloney Johnson — Tue, 08 May 2012 06:49:39 PDT

Although Massachusetts became the leading jurisdiction for trust law in the United States across the nineteenth century, it never established a separate court resembling the High Court of Chancery in England. This Article asks how the judicial system of Massachusetts functioned without a separate court of chancery. The Article explains that Massachusetts managed by gradually integrating the distinctive elements of English equity into its common law courts. Beginning in the 1690s, the legislature passed laws authorizing components of equity for use in the common law courts. By 1836 the commonwealth's Supreme Judicial Court could oversee discovery, entertain cases with multiple parties, and grant injunctions and- specific performance. The court could also administer certain areas of substantive law, including trust, guardianship, and settlement of estates, that in England belonged to the jurisdiction of the Court of Chancery. Thus, the Supreme Judicial Court had concurrent jurisdictions in law and equity early in the nineteenth century. In this respect the court resembled the federal courts before the merger of law and equity in the Federal Rules of Civil Procedure in 1938. The long process of adding the powers and substantive law of equity to the common law courts of Massachusetts ended in 1877, when the legislature granted the Supreme Judicial Court general equity jurisdiction.

The Origins of the Oral Deposition in the Federal Rules: Who’s in Charge?

Ezra Siller — Tue, 08 May 2012 05:58:43 PDT

This paper traces the origins of the oral deposition in the Federal Rules of Civil Procedure (“Federal Rules”) with an emphasis on the role of the officer in charge of the deposition. In Parts II and III, I document the origins of the deposition, drawing on published sources. In Parts IV and V, I draw upon unpublished sources regarding the 1930s Advisory Committee’s decision not to provide for a judicial officer who would have the authority to rule on the admissibility of evidence during the deposition. That decision was an important, yet overlooked, element in the shaping of modern American civil procedure, including the displacement of civil trial by pretrial discovery. A striking attribute of the modern American deposition is that opposing counsel conduct the questioning in the absence of a judicial officer. The Advisory Committee that drafted the 1938 Federal Rules considered a proposal to provide deponents (both party witnesses and non-party witnesses) with the option of requesting a master to rule on the admissibility of evidence at the pretrial examination. According to archival sources, members of the Advisory Committee concluded that the systemic disadvantages of that proposal outweighed the advantages. I describe the historical origins of three salient features of the deposition: the near-absence of the rules of evidence; the presence of an “officer in charge” who has no power the rule on the admissibility of evidence; and the breadth of the permitted scope of inquiry. I discuss why the term “officer” is misleading: the examination is conducted entirely by adverse parties in the absence of a judge or a judge-like figure. The officer in charge is simply a stenographer or notary public who swears in the deponent and records the testimony; he or she exercises no adjudicatory function.

Education Reform That Works: What the United States can Learn from Finland

Christopher Hines — Mon, 30 Apr 2012 09:20:26 PDT

Education reform is currently a hot topic for politicians and policy makers in the United States. Recent international assessments have shown that the United States ranks in the middle among more than 60 countries in reading, mathematics, and science education. A recent study by McKinsey & Company found that if the United States could close this gap between its educational achievement and that of countries that consistently score highest on such assessments, it could add $1.3 ‐ $2.3 trillion to its GDP. This represents 9% ‐ 16% of current GDP. There are many education reform efforts currently being discussed by politicians, special interest groups, and others interested in reforming the American education system. The most controversial of these include abolishing teachers’ unions and implementing merit pay for teachers. Less controversial ideas involve increased spending or increased instructional time. Rather than arguing for or against any of these particular policies in the isolated context of the United States, this paper looks to Finland – a country that consistently scores at the top of international assessments. In Part I, I describe the education results in Finland and compare those to results in the United States. In Part II, I give a brief history of the Finnish education system and describe its current structure. Part III examines seven current education reform initiatives in the United States and examines if and to what extent any of them are in place in Finland. Part IV looks at the unique aspects of the Finnish education system and identifies four key elements that are largely responsible for its success. Finally, Part V discusses the paper’s findings and suggests implications for policy makers in the United States.

What it Takes to Transform a School: Inside a Juvenile Justice Facility

James Forman Jr et al. — Sat, 28 Apr 2012 10:58:49 PDT

A Circle of Trust: The Story of the See Forever School

James Forman Jr et al. — Sat, 28 Apr 2012 07:47:43 PDT

In April 1997, we left our jobs as lawyers to start a school for court-involved kids. We had $50,000, donated office space, and lots of energy. We had no staff, site, curriculum, or other funding. But we had a mission—we wanted to create the best school in the country for kids who had been arrested. And we were in a hurry. We knew kids who needed the school—and they needed it right then—not years down the line. Five months later we opened our doors to 20 kids and a small staff, crammed into a row house in the heart of Washington, DC. This is the story of how we got started.

Community Policing and Youth as Assets

James Forman Jr — Sat, 28 Apr 2012 07:42:33 PDT

Children, Cops, and Citizenship: Why Conservatives Should Oppose Racial Profiling

James Forman Jr — Sat, 28 Apr 2012 07:36:41 PDT

The Maya Angelou Public Charter School in Washington, D.C.,

is the kind of institution conservatives support—a place that offers

opportunity but demands responsibility. Students are in

school ten and a half hours a day, year-round, mostly studying core subjects

such as reading, writing, math, and history. When not in class, they

work in student-run businesses, where they earn money and learn job

skills. Students who achieve academically are held in esteem not only by

their teachers but by their peers. Those who violate the school rules are

subject to punishment, including expulsion, as determined by a panel of

students.

Revitalizing the “liberty of the ancients” through citizen participation in the legislative process

Athanasios E. Psygkas — Sat, 28 Apr 2012 07:27:54 PDT

In a 1819 lecture Benjamin Constant distinguished between two kinds of liberty: the “liberty of the moderns” and the “liberty of the ancients.” He identified the former with individual autonomy, while the latter consisted in “exercising collectively, but directly, several parts of the complete sovereignty.” Constant pointed out the inadequacy of the “liberty of the ancients” due to the danger of individuals being fully subjected to the unbridled collective authority; however, modern safeguards of individual autonomy aspire to keep in check potential excesses of collective power. The additional challenge with which we are faced today is that, in focusing on the “liberty of the moderns,” we not lose sight of the “liberty of the ancients” in the sense of “active and constant participation in collective power.”

This essay departs from a case of the South African Constitutional Court, Doctors for Life International v. the Speaker of the National Assembly & Others, regarding citizen participation in the legislative process. The piece establishes a scheme of four generations of participation rights and situates Doctors for Life in this context as a fourth-generation right. It reads the case as an invitation to reconsider the content of the “liberty of the ancients” by recognizing the importance and limitations of an enforceable regime of citizen participation in the legislative process. In that respect, the essay addresses both the novelty of the case but also tries to connect it with more traditional ideas, showing how it might revitalize the “liberty of the ancients.”

Determining Character: A New Perspective on Character Evidence

Barrett Anderson — Fri, 27 Apr 2012 12:00:49 PDT

“Character” is a difficult concept to define, as Chief Justice Montgomery discovered. It seems intuitive that individuals have characters and that these characters influence the way people behave; that character is a person’s “propensity,” “disposition,” “proclivity,” or “tendency” to act in certain ways in certain situations. Well known examples of character traits include “honesty,” “violence,” “temperance,” and “cruelty,” as well as their opposites (among countless others). Evidence of character traits is heavily regulated in trial because proof of these propensities—that a defendant or witness has general tendencies to behave in either “good” or “bad” ways according to their character traits—can have enormous consequences on trial outcomes. This is especially true in criminal prosecutions, where character can be a life-or-death matter for criminal defendants. Yet even with the high stakes riding on determinations of what is and is not character, there is still “no general agreement about the precise meaning of the term [character].” And there is reason to believe that, because of this lack of an articulated standard, courts have been getting the answers wrong.

The law of evidence considers character proof to be especially dangerous but still relevant and has therefore developed special mechanisms to permit and restrict its use. Few would call these mechanisms rational, but they exist to guide courts in mediating the influence of character evidence in trials. Under this current structure, courts must juggle two competing considerations: relevance and prejudice. However, too often courts lose sight of these fundamental pieces as they evaluate whether or not a given trait is, in fact, character. Such a wooden application of meaningless definitions of character could result in juries being exposed to the very character evidence the law was designed to exclude from trial. Courts require a clear, reasoned standard for identifying “character” when it comes before them to ensure a consistent, predictable, and rational application of the law of evidence. They need help determining character.

Test Paper

John Doe — Wed, 18 Apr 2012 07:38:34 PDT

Test upload for SAW series

THE COSTS OF COMPLEX LAND TITLES: TWO EXAMPLES FROM CHINA

Robert C. Ellickson — Sat, 07 Apr 2012 10:59:11 PDT

For thousands of years, Chinese customs and law typically have directed an owner of land, when transferring it, to retain a right to reclaim it in the future. Prior to the Communist Revolution of 1949, the pertinent rules were provided by the custom of dian, which emerged in ancient China and was formally recognized in legal codes as early as the Ming Dynasty (1368-1644). Dian provided the seller of a tract of land the option of buying the tract back many years later at the original sale price. When the seller died, this right of redemption descended to his heirs. Current Chinese policies also prohibit the outright sale of land. Since the 1980s, when China began to dismantle many of the collectivist policies characteristic of the Mao era, the government has authorized the conferral of land use rights on private individuals and entities. But Chinese law does not permit the national government, or a village collective, to transfer use-rights in perpetuity. Instead, a private land interest is limited to a fixed-term, for example, 40 years in the case of urban commercial land.

Commentary on William Fischel’s The Evolution of Zoning Since the 1980s: The Persistence of Localism

Robert C. Ellickson — Sat, 07 Apr 2012 10:54:28 PDT

THE INEVITABLE TREND TOWARD UNIVERSALLY RECOGNIZABLE SIGNALS OF PROPERTY CLAIMS: AN ESSAY FOR CAROL ROSE

Robert C. Ellickson — Sat, 07 Apr 2012 10:49:27 PDT

Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith

Robert C. Ellickson — Sat, 07 Apr 2012 10:45:44 PDT

Viewing property rights as a “bundle of sticks” can be descriptively clarifying because the law commonly entitles an owner of a particular resource to split up entitlements in it. Nonetheless, Thomas Merrill and Henry Smith, the most prominent critics of the metaphor, assert that this conception both ignores the existence of various legal constraints on the decomposition of property rights, and also encourages lawmakers to support the excessive splintering of entitlements. These concerns are well-grounded. More controversial are Merrill and Smith’s inclinations to equate private property with property generally, to deny that human capital can be characterized as property, and to assert that affirmative duties never attach to property ownership.

LEGAL SOURCES OF RESIDENTIAL LOCK-INS: WHY FRENCH HOUSEHOLDS MOVE HALF AS OFTEN AS U.S. HOUSEHOLDS

Robert C. Ellickson — Sat, 07 Apr 2012 10:37:25 PDT

In a given year, a resident of the United States is roughly twice more likely to move to a different home than is a resident of France (or of western Europe as a whole). Cultural differences undoubtedly account for some of this gap. The central thesis of this Article, however, is that much of this disparity in residential mobility can be chalked up to differences between U.S. and French (and other European) legal policies—in particular, taxation statutes, land-use policies, landlord-tenant laws, and housing assistance programs. This Article also offers a normative framework for analyzing the desirability of household relocations. Legal policies that foster residential moves can enable individuals to better match themselves with a job, a dwelling, a set of housemates, a tenure arrangement, a neighborhood, and a municipality (à la Tiebout). A decision to move, however, may give rise to negative externalities, such as erosion of local social capital. In theory, although rarely in practice, people thus can move too often.

THE CASE OF THE ZIA: LOOKING BEYOND TRADEMARK LAW TO PROTECT SACRED SYMBOLS

Stephanie B. Turner — Sat, 24 Mar 2012 07:10:14 PDT

This Article tells the story of a tribe’s fight, over the past two decades, to reclaim its sacred symbol. Members of the Zia tribe, a Native American group located near Albuquerque, New Mexico, have been using their sacred sun symbol in religious ceremonies since 1200 C.E. Today, the symbol appears on the New Mexico state flag, letterhead, and license plate, and on numerous commercial products, including motorcycles and portable toilets. The tribe claims that the state appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the Zia people. This Article considers the harms the tribe faces when outsiders appropriate its symbol and the possible solutions within current trademark law. Ultimately, this Article illustrates that, for the Zia, non-legal measures have been more effective than legal ones. The case of the Zia thus suggests that indigenous groups should look beyond trademark law in the fight to protect their sacred symbols.

A Modern Fiduciary Theory of the Necessary & Proper Clause

Philip J. Levitz — Thu, 15 Mar 2012 07:35:09 PDT

This Article offers a new originalist account of the Necessary and Proper Clause, with important implications for the Supreme Court’s pending decision on the constitutionality of the Affordable Care Act’s individual mandate. In United States v. Comstock, the Supreme Court recently offered a substantial rethinking of the Necessary and Proper Clause, for perhaps the first time since McCulloch v. Maryland. Underlying the Court’s Comstock decision are two puzzles. First, there is a puzzle on the surface of the opinion as to how to apply Justice Breyer’s novel five “considerations” in future cases, which this Article demonstrates has already left lower courts deeply confused, notably in the cases on the constitutionality of the Affordable Care Act. Second, Comstock brings back to the surface a deeper puzzle that has sat dormant in Necessary and Proper Clause jurisprudence from the beginning: the puzzle of what it really means for congressional legislation to be rationally related to an enumerated constitutional end.

This Article seeks to solve both puzzles together by proposing a modern fiduciary theory of the Necessary and Proper Clause that provides meaning to Breyer’s considerations and clarifies the nature of a rational relation between legislated means and enumerated ends. After canvassing the range of possible readings of Comstock and its means-end fit test, the Article draws on newly uncovered history of the fiduciary and agency law roots of the Necessary and Proper Clause to argue that the means-end test that is the best reading of Comstock would ask whether Congress, in legislating, is acting as a proper fiduciary of the people of the United States, within the context of its enumerated powers. Using the Affordable Care Act as a case study, the Article demonstrates that the modern fiduciary theory brings to bear a new and valuable toolset in interpreting the Act, and ultimately makes clear that the Necessary and Proper Clause should not pose a challenge to the law’s constitutionality.

RACIAL CRITIQUES OF MASS INCARCERATION: BEYOND THE NEW JIM CROW

James Forman Jr — Fri, 09 Mar 2012 08:33:28 PST

In the last decade, a number of scholars have called the American criminal justice system a new form of Jim Crow. These writers have effectively drawn attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals. This Article argues that despite these important contributions, the Jim Crow analogy leads to a distorted view of mass incarceration. The analogy presents an incomplete account of mass incarceration’s historical origins, fails to consider black attitudes toward crime and punishment, ignores violent crimes while focusing almost exclusively on drug crimes, obscures class distinctions within the African American community, and overlooks the effects of mass incarceration on other racial groups. Finally, the Jim Crow analogy diminishes our collective memory of the Old Jim Crow’s particular harms.