Legal Theory Blog

Roosevelt on Stare Decisis & Non-Article III Actors

Kermit Roosevelt III (University of Pennsylvania Law School) has posted Polyphonic Stare Decisis: Listening to Non-Article III Actors (Notre Dame Law Review, Vol. 83, 2008) on SSRN. Here is the abstract:

This article explores the input that non-Article III actors can and should have in the Supreme Court's decision to reconsider a prior constitutional decision. It employs a model of constitutional decision-making that distinguishes between the articulation of constitutional meaning and the construction of constitutional doctrine to identify several different stages at which a court can adhere to or depart from precedent and examines the persuasive power of non-Article III input at each stage.

And from the text:

One answer might be that the Constitution does in fact require some form of stare decisis (which would imply the unconstitutionality of legislation abrogating stare decisis, though not that of legislation prescribing some particular form). Paulsen rejects this view on the ground that the Constitution says nothing about the practice and the Court’s frequent observations that stare decisis is “not an inexorable command” “illustrate the sub-constitutional, policy-based nature of the doctrine.”23 But to say that courts are not always required to adhere to precedent (“stare decisis is not an inexorable command”) is not to say that they can do without stare decisis entirely. The possibility remains that the Constitution requires some form of respect for precedent, although that form does not require adherence in every case. To put the assertion in constitutional language, it may be in the nature of the “judicial power” (and one of the things that distinguishes it from the legislative) that departures from precedent require some justification. On this view, precedent must have some force.

Indeed, if one looks at what the Supreme Court has said about precedent, there are many statements to this effect. Perhaps the best evidence comes from the Court’s struggles with the question of retroactivity: what to do when a judicial decision changes the law. At one point, the Court adopted a solution whereby it would announce a new rule in one case but then not apply that rule to cases pending on direct review in which the relevant events (typically a state-court conviction) occurred before the law-changing decision.24 But in Harper v. Virginia Department of Taxation,25 the Court pronounced this “selective prospectivity” unconstitutional, stating that “the nature of judicial review” barred the Court from holding that its decision in one case should have no effect on other similarly situated cases.

Highly recommended.

Choi, Gulati, and Posner Rank State Courts

Stephen J. Choi , G. Mitu Gulati and Eric A. Posner (New York University - School of Law , Duke University - School of Law and University of Chicago - Law School) have posted Which States Have the Best (and Worst) High Courts? on SSRN. Here is the abstract:

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.

A bit more from the paper:

In earlier work, we showed that the relationship between institutional design and judicial quality is complex, and does not lend much support to the conventional wisdom. Appointed judges write more frequently-cited opinions than elected judges do, but elected judges are more productive, while there seems to be no difference between their levels of independence.18 Judicial pay has little effect on judicial quality, except among elected judges, who are more productive when paid more.19 It is not the purpose of this Article to review or reproduce these findings. Our goal instead is to generate a ranking of the state high courts on the basis of the data that we collected for the earlier studies. We will argue that our ranking overcomes many of the defects of the U.S. Chamber of Commerce study, as well as those of earlier academic work.

Rankings make people uneasy. They seem to trivialize activities that are of public importance, and they may stimulate the ranked agents or institutions to engage in destructive competition or demoralize those that have no ability to escape from the bottom. The most serious objection to rankings is that they unavoidably rely on measures that neglect hard-toobserve but important aspects of performance. If nonetheless those who achieve a high ranking are rewarded with resources or public esteem, institutions will distort their missions so as to do well on whatever measures are used.20

We address this objection by making our rankings as transparent and flexible as possible. Readers might disagree about how to weight the different measures that we use, and we show how such disagreements may lead to different rankings of the state courts. The alternative to rankings is, as a practical matter, virtually no information, and public institutions that are not carefully monitored and evaluated will rarely have strong incentives to perform well. Rankings, however imperfect, serve an important information-forcing function.21 Institutions that do poorly on rankings should have the burden of coming forth with an explanation for their performance; but if the explanation is plausible, then the ranking should be discounted. Better still, if the stakes are high enough – and the amounts of money spent by institutions like the U.S. Chamber of Commerce on commissioning rankings suggest there are22 – competitor rankings should emerge that improve upon the prior ones.

A must read.  And even if these rankings are imperfect, they are certainly a huge improvement over the status quo.  Bravo!

Horwitz on Posner & Powell on Judging

Paul Horwitz (University of Alabama School of Law) has posted Review - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner on SSRN. Here is the abstract:

This is a short review of two new books on judging - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner. Although both books examine the same topic, and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law, their approaches diverge significantly. Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case. Posner brings his economist's toolkit, supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism, to many of the same questions. Their goals are somewhat different, and their conclusions, despite some common ties, present a striking contrast. These books may be read as complementary and not just competitive accounts. Nevertheless, I suggest that Posner's account is far more descriptively accurate, although Powell leads us, commendably, to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account.

And from the paper:

Despite their wildly divergent paths, though, Posner and Powell in fact share many common ties. Both, for example, share interesting and important views on how we might reform legal education – in Powell’s case, to focus more on “how constitutional questions can be resolved with integrity and their resolution expressed with clarity,” and in Posner’s to master conventional legal skills and then move beyond them and focus on the actual underpinnings of judicial decision. And although Posner might reject Powell’s approach as tending towards the “moral vanguardism” of a Justice Kennedy, he repeatedly emphasizes that some of the most important constraints on the judicial task are, “first, the desire for self-respect and for respect from other judges and legal professionals generally, which a judge earns by being a good judge, and, second (and closely related), the intrinsic satisfactions of judging, which usually are greater for a good judge than for a bad one.” So even a Posnerian judge may have recourse to the kinds of quasi-moral constitutional “virtues” that are at the heart of Powell’s work.

And a bit more:

Too much is missing from Powell’s account. Nowhere in his book do we find a serious accounting for the many real-world factors in which judicial decision making takes place: the role of law clerks as canned reasoners for judges who perforce need do little reasoning of their own; the extent to which judging is a social and collegial process rather than the purely solitary and deliberative act of a cloistered monk in a cell; the host of human motivations and limitations that drive and hem in a judge and make unlikely any effort to set down a reliable instruction manual for any would-be judicial Hercules; and any number of broader institutional factors that might add depth to his romantic view of the judiciary. His constant refrain that his picture of constitutional virtue must be true because “much of what we do and say and do in constitutional interpretation” would otherwise be meaningless, a “solemn mockery,” begs the question: What if it is? You cannot prove God’s existence by saying that life would be bleak if God did not exist; no more can Powell prove the necessity of his approach by arguing that it would be depressing to think otherwise. Posner writes that “for judges to acknowledge even just to themselves the political dimension of their role would open a psychologically unsettling gap between their official job description and their actual job”; Powell’s apparent response is, then let us not acknowledge it. But that is not a proof; he is mixing his “is” and his “ought.”

Highly recommended.

Landes & Posner on Rational Judicial Behavior

William Landes and Richard Posner have posted Rational Judicial Behavior on SSRN.  Here is the abstract:

This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge's confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge's voting's is affected by the voting of the other judges he serves with. We find a a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).

Highly recommended.

Olken on Justice Sutherland

Samuel R. Olken (John Marshall Law School) has posted Justice Sutherland Reconsidered (Vanderbilt Law Review, 2009) on SSRN. Here is the abstract:

Long considered one of the Supreme Court's more conservative justices in matters of economic liberty, George Sutherlan's reputation has suffered largely because of his vigorous opposition to the fabled revolution of the 1930s in which a bare majority of the justices began to adapt the Constitution to changing economic circumstances and departed from the jursiprudential premises of legal classicism and guardian judicial review. Neither laissez-faire economics, Social Darwinism nor natural rights wielded much influence upon his perspective. Rather, his skepticism about public regulation of private economic affairs emanated from his aversion toward political factions and his abiding commitment to the equal operation of the law. Sutherland adhered to guardian review in which judges used seemingly neutral principles of law, historical custom and precedent in assessing the constitutional limits of governmental authority to protect individual rights and liberties from the tyranny of democratic majorities manipulated by political factions. However, Sutherland often failed to perceive the practical effects of his decisions and the limits of his constitutional vision. His was essentially a negative view of the Constitution in terms of economic affairs; it restricted governmental authority to protect individual liberty. Yet this prevented him from appreciating the importance of adapting its provisions to changing economic circumstances. Nor did Sutherland recognize the growing obsolescence of his jursiprudence and its inability to resolve issues arising from conflicts between interest groups. In dissent, his jursiorudence appeared myopic and vulnerable to misconceptions about his judicial motivation. Consequently, Sutherland's more progressive views about criminial procedure and the business of expression have received much less attention than they deserve, overshadowed by his seemingly reactionary opinions concerning economic liberty. Indeed, the ultimate lesson of Sutherland's economic liberty jursiprudence is how strict adherence to the past can relegate even the most conscientious jurist to the dustbin of obsolescence.

Tamanaha on Legal Realism

Brian Z. Tamanaha (St. John's University - School of Law) has posted Understanding Legal Realism on SSRN. Here is the abstract:

Legal realism is well known, but generally misunderstood. Through a close examination of the work of the legal realists and their predecessors, this article presents a complete reconstruction of legal realism. The most startling finding of this article is that all the key insights now identified with the realists were set forth by prominent jurists much earlier. The article shows that Pound, Cardozo, and the legal realists, and their entire (respective) legal generations, were exposed to so much realism that they could not help but see judging in realistic terms. It is often said today, "We are all realists now." Ample evidence will be presented in this article to show that at least three decades before the arrival of the legal realists, "They were all realists then too." What was said about judging at the time "a full century ago" sounds exactly like what is said about judging today.

The reconstruction completed in this article will simultaneously confirm the insights of realism about judging while dissolving the historical distinctiveness of the legal realists as a group. This finding is consistent with Llewellyn's own insistence (in the closing words of his essay defining legal realism) that "A group philosophy or program, a group credo of social welfare, these realists have not. They are not a group." Llewellyn also wrote that "Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say, Langdell." Modern accounts of legal realism, which typically present the legal realists as a distinctive group, have ignored these puzzling assertions, but they hold the key to understanding what legal realism was about.

The aim of this exploration is to rescue realistic views about judging from the clutches of the prevailing misunderstanding about legal realism. It is a follow-up to "The Bogus Tale About the Legal Formalists" (available on SSRN). The combined effect of these two pieces is to show that the formalist-realist divide is entirely false as a historical matter, and should be discarded. Modern debates about judging are structured by and remain trapped within this false antithesis.

And from the text:

Although Llewellyn gleefully exposed the manipulability of precedent and the openness of statutory interpretation, he consistently retracted the most radical implications of these observations, cautioning that “while it is possible to build a number of divergent logical ladders up out of the same cases and down again to the same dispute, there are not so many that can be built defensibly [Llewellyn’s emphasis]. And of these few there are some, or there is one, toward which the prior cases definitely press. Already you see the walls closing in around the judge.”189 A skilled lawyer asked to predict the fate of a case on appeal, Llewellyn conjectured, ought “to average correct prediction of outcome eight times out of ten, and better than that if he knows the appeal counsel on both sides or sees the briefs.”190 When identifying the sources of this high degree of reckonability, Llewellyn elaborated on several “steadying factors”: judges are indoctrinated into the legal tradition such that they “see things…through law spectacles;”191 much legal doctrine—including rules, principles, and statutes—is reasonably clear and well developed;192 judges follow accepted doctrinal techniques, strive to produce a just result, and strive to come up the right legal answer;193 judges sitting together on an appellate bench interact “to smooth the unevenness of individual temper;”194 and the judges’ desire and commitment to live up to the obligations of the judicial role, to earn the approval of their legal audience for appropriate judicial behavior, and their desire to avoid reversal by a higher court, prompts judges to engage in a good faith effort to conduct an unbiased search for the correct legal result.195

The realists, to be sure, harped on the various limitations of and room to maneuver allowed by legal rules, principles, statutory interpretation, stare decisis, and the finding and stating of facts in judicial decision making. But their position is easily misunderstood if their target is not kept in mind: They were attacking the notion that judging merely entailed the logical application of legal rules and principles. Their refutation of this view—a straw man, as it was196—did not mean that they embraced its polar opposite: the notion that legal rules and principles do not have a significant role in judges’ decisions.

This piece and its companion (see above) are absolutely essential.

Highly recommended. Download it while its hot!

Tamanaha on the Bogus Story of Legal Formalism

Brian Z. Tamanaha (St. John's University) has posted The Bogus Tale About the Legal Formalists on SSRN.  Here is the abstract:

It is widely accepted that legal formalist views dominated at the turn of the last century: judges, legal academics, and lawyers purportedly believed that law was comprehensive, gapless, and logically ordered, and believed that judges reasoned mechanically or deductively from this body of law to produce right answers in individual cases. This view of law held sway until the 1920s and 1930s, when the legal realists destroyed formalist beliefs by exposing gaps and indeterminacy in law, and by arguing that bias infects judging.

This story has been repeated innumerable times by legal historians, legal theorists, political scientists, and many others. The formalist-realist antithesis shapes contemporary views and debates about judging.

This familiar story is false. A previous draft, The Realism of the Formalist Age, showed some of the evidence for this, but inadequately and without understanding its full implications. This completely revised version expands on the evidence and explains how the story got started, why it is fundamentally wrong, and how it nonetheless successfully secured a place in conventional accounts of US legal history. Through a combination of mistakes and deliberate deceptions, the initial piece of the story was constructed early in the century by political opponents of courts. In the 1970s, motivated by contemporary concerns, leftist legal historians and legal theorists reached back to the earlier period and reinvented the story about the legal formalists, producing an account which then swept the legal academy. This false story has been taken as true ever since.

This article is not just about getting our history right. It provides an object lesson in how modern practices of legal history and legal theory - how reliance upon specialists, and the adoption and repetition of stock stories - can lead to the spread and perpetuation of a falsehood, with real consequences.

And from the text:

Every account of the formalists and their belief in “mechanical jurisprudence,” it turns out, has been written by critics like Roscoe Pound and Jerome Frank, and by modern historians and theorists relying upon their accounts. As legal theorist Tony Sebok observed, “Formalism, so to speak, does not really have an identity of its own: As a theory of law, it exists only as a reflection of scholars like Holmes, Pound, Llewellyn, and Frank.”19 Although Pound repeatedly claimed that turn-of-the century judges and lawyers, influenced by legal science and prevailing jurisprudential theories, widely believed that judging was an exercise in mechanical deduction, he offered no quotes or citations to that effect by anyone who actually espoused this purportedly dominant view of judging. The main authority Pound identified for this set of beliefs came from German legal scholars discussing German legal science.20 This pattern shows up repeatedly in writings about the formalists.

And:

The seminal originating piece in the creation of the image of judging as an exercise in mechanical, deductive reasoning was Roscoe Pound’s 1908 article, “Mechanical Jurisprudence.” Pound began his inquiry by posing the question: “What is scientific law?”127 To which, he answers: “the marks of a scientific law are, conformity to reason, uniformity, and certainty. Scientific law is a reasoned body of principles for the administration of justice, and its antithesis is a system of enforcing magisterial caprice, however honest, and however much disguised under the name of justice or equity or natural justice.”128 The danger of scientific law, Pound warned, is a “petrification” which “tends to cut off individual initiative in the future, to stifle independent consideration of new problems and of new phases of old problems, and so to impose the ideas of one generation upon the other.”129 Contemporary U.S. law, Pound claimed, was mired in this state: “the jurisprudence of conceptions tends to decay. Conceptions are fixed. The premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules. This is the condition against which sociologists now protest, and protest rightly.”130 He argued that historical jurisprudence and analytical jurisprudence, the main legal theories of the day, exacerbated this stultified approach because they tended to emphasize abstract concepts and logical analysis.131

As an example of conceptual jurisprudence, Pound offered the infamous Lochner (and Adair) case, in which the Supreme Court invalidated as a violation of the freedom of contract a New York law limiting the working hours of bakers to no more than 10 hours a day and six days a week.132 “The conception of freedom of contract is made the basis of a logical deduction” wrote Pound. “The court does not inquire what the effect of such a deduction will be, when applied to the actual situation.”133 With courts paralyzed in this state of mechanical jurisprudence, Pound argued, the only solution was for legislation to provide new starting points for the common law.134

Pound’s Mechanical Jurisprudence picked up on themes pressed a few years earlier by Oliver Wendell Holmes. In The Path of the Law (1897), one of the most famous legal articles ever written, Holmes took as his target the “fallacy” “that the only force at work in the development of the law is logic.”135 “The danger of which I speak is…the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms.”136

This Section will produce evidence that, contrary to what Pound and others have asserted (and Holmes implied), lawyers, academics, and judges at the time did not widely believe that judging was an exercise in mechanical deduction. Before moving to examine the evidence, it is worth noting once again that when setting out his portrayal of mechanical judging Pound quoted no actual “formalists” making these claims, and he made repeated references to German jurists discussing German legal science.137 It is also essential to recognize that the image of mechanical, deductive judging was deprived of its main conceptual underpinning in the preceding Section. The earlier quotes from Pound, Haines, Frank, and Gilmore all tied the mechanical view of judging directly to the traditional view of the common law (updated in terms of legal science): judges purportedly reasoned mechanically from—and were able to do so because—the law pre-existed in a comprehensive, gapless, logically ordered complex of rules and principles. If most people in legal circles did not in fact believe in this classic theory of the nature of law (updated to law as science), the theory of deductive judging loses its mooring.

And finally:

Almost without warning,298 a cluster of articles from important legal historians and legal theorists discussing the “legal formalists” and “legal formalism” arrived in the mid-1970s. Gilmore’s Ages of American Law was published in 1977, preceded by the publication of an advance synopsis in the 1975 Yale Law Journal.299 Morton Horwitz published “The Rise of Legal Formalism,” also in 1975, in the American Journal of LegalHistory.300 Duncan Kennedy published a theoretical analysis entitled “Legal Formalin the 1973 volume of the Journal of Legal Studies.301 William Nelson extensively elaborated on the rise of legal formalism in connection with antislavery cases in a 1974article in the Harvard Law Review.302 Legal formalism was a central theme in JusticeAccused, Robert Cover’s book on judicial treatment of slavery cases.303 All of these scholars worked at elite law schools (Harvard, Yale, and Pennsylvania), and all were politically on the left. Kennedy and Horwitz were founding members of the Critical Legal Studies Movement, which mounted a radical critique of liberal legalism from the late 1970s through the the 1980s.

There is undoubtedly a connection between this sudden critical attention to legal formalism and the searing political events of the 1960s and 1970s—when universities anlaw schools were wracked by civil rights and anti-war protests. Cover drew the linkhis Acknowledgements, mentioning that his book was inspired by a comparison of“judicial complicity in the crimes of Vietnam” with “judicial acquiescence in the injustices of Negro slavery.”304 Among the left, it was a time of seething skepticism about law.305 The student editors of the Harvard Law Review wrote in 1970 that “It is true that what passes for logic in some judicial opinions (and in many classrooms) is a little more than finely spun sophistry. It is also important to note that pure logic doeoffer a solution to all [legal] problems.”306 Little imagination is required to see the parallels between these attitudes and the forthcoming preoccupation with legal formalismIn the closing Chapter of Ages of American Law, Gilmore argued that the 1970s were ushering in a “New Conceptualism” resembling that of the formalist age. “In our own history, both in the late nineteenth century and in our own time,” he wrote, “the components of the formalist approach have included the search for theoretical formulas assumed to be of universal validity and the insistence that all particular instances should be analyzed and dealt with in the light of the overall theoretical structure.”307 A group of scholars deeply disaffected at the law in the 1970s reached back to the work of the previous episode of disaffection (Pound and the legal realists) to resurrect a portrait of what was perceived to be a common enemy.

Once again, a must read from Tamanaha, who has produced a compelling case for a pattern of distortion in writing about "legal formalism."  Tamanaha's work suggests that we all need to rethink fundamental assumptions about the development of legal thought.

Highly recommended.  Download it while its hot!

Turner on Ideological Voting on the NLRB

Ronald Turner (University of Houston Law Center) has posted Ideological Voting on the National Labor Relations Board on SSRN.  Here is the abstract:

This article considers the role that ideology has played in the decision making of the National Labor Relations Board. Ideology, as used herein, is generally understood as normative commitments and refers, more specifically, to the political party of the President appointing an individual to a seat on the NLRB, the Board member's political party affiliation, and the professional background of the Board member prior to his or her appointment. The article concludes that the ideology of Board members, so understood, is an important jurisprudential element, and that in certain contested areas of labor law and policy ideology has been a persistent and, in many instances, a vote-predictive factor in NLRB decisions.

Oman on Mormon Courts

Nathan B. Oman (College of William & Mary Law School) has posted Preaching to the Court House and Judging in the Temple on SSRN. Here is the abstract:

A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century's end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession's claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons' rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the "public law" side of this story, showing how the federal government's effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.

And a bit more from the text:

The case of Leavitt v. Birdsall illustrates these problems.268 The Birdsall family moved from Nebraska to Utah in 1881, eventually settling in Sevier County, located in the central part of the Territory.269 Three years later the family converted to Mormonism. Members of the Birdsall family began trying to acquire land under various federal statutes. They purchased land from the Rio Grande railroad, which had been given huge tracts by Congress as a subsidy.270 They also claimed land under the Timber Culture Act, which granted a quarter section of public land to any person “who shall plant, protect, and keep in healthy growing condition for eight years ten acres of timber.”271 The land the Birdsalls claimed, however, had long been claimed by an early settler, who sold the property to a James Leavitt in 1883.272 Leavitt, who had “owned” the land for a decade in 1893 when the Birdsalls first claimed it, insisted later that they agreed to sell to him the portion he occupied thus quieting title.273 The Panic of 1893, however, kept Leavitt from obtaining financing, although he apparently gave the Birdsalls some cows in partial payment.274 In doing so, Leavitt seems to have been trying to follow the established Mormon policy for dealing with title conflicts between older settlers and claims based on federal statutes.

And skipping a bit:

Upon his return to Utah, Isaac Birdsall, acting as guardian for his daughter, sued Leavitt for the disputed land, arguing that the deed Cora had executed was invalid. The district court rejected his claim that she was mentally incompetent and that the elders who “labored” with her to comply with the church court’s decision exercised undue influence, writing:

All churches … have a right to discipline their members and … they have a right to handle such person so far as their fellowship in such … church is concerned. The members, however, are under no legal obligations to obey such regulation or decision of their … church organizations … .282

On appeal to the Utah Supreme Court, however, Birdsall prevailed.283 The Court held that “[Cora] at the time she executed the deed was mentally incapacitated and therefore incompetent to make the same.”284 The justices went on to signal their concerns with the church courts:

While courts do not interfere in disputes between churches and their members in respect to church or spiritual affairs, the property rights of the members will be protected as readily from church interference as from any other.

Oman's article tells a fascinating story that connects in interesting and important ways with contemporary theorizing about legal pluralism.  Highly recommended.

Siegel on Learning Curves at the Supreme Court

Check out Learning Curves at the Supreme Court by Andy Siegel at PrawfsBlawg.  A tiny taste:

Yesterday's oral arguments at the Supreme Court are the first of the young term to excite much interest.  Though much can be said about the substance of the arguments--particularly California v. Cunningham, the latest in the Apprendi-Blakely-Booker line of cases--what I found most interesting about the arguments was the degree to which they reminded us of the steepness of the learning curves in the early years of the Roberts Court.

After a decade-long period in which the membership of the Court remained static, last year's two new appointees have rippled the waters.  Before things settle down to predictability at the Court, three distinct groups of individuals are going to have to do some quick studying.