JUDGING CRIMES

While recently clearing a layer of wood-pulp debris from my office ("Don't toss that!  It might come in handy some day."), I came across a law review article by Richard D. Friedman, Framer of the current sixth amendment. 

Friedman has written a few gazillion articles about the confrontation clause -- in fact, it's difficult to find a recent article about the confrontation clause that he didn't write -- but this one was published before the March, 2004 constitutional convention that amended the amendment.  (Surprisingly few delegates showed up.  Only nine, in fact.)

It's about the forfeiture principle, the subject of a forthcoming Supreme Court opinion, Giles v. California, which is featured prominently in Professor Friedman's blog.  The article was published in the Israel Law Review, and it's called "Confrontation and the Definition of Chutzpa."  (For the missing final "h" in khutspe, see this discussion.)

The article has many excellent things to say.  The alternative to Friedman's approach -- the one adopted by New Mexico courts, in fulfillment of their historical mission to preserve the state's late 19th-century culture -- amounts to a double or nothing bet.  If a criminal feels lucky, he might as well commit a second crime by killing or intimidating witnesses to the first.  If he gets by with the second crime, he gets away with the first one, too.

So basically American courts are faced with a choice between (a) entrusting the physical safety of witnesses and the integrity of their own judicial processes to the discretion of violent criminals, in the hope that they won't feel lucky; or, (b) Friedman's recommended robust forfeiture principle. 

Judges find it a very difficult choice, for a reason well stated in the Friedman article I'm fixing to recycle: they prefer to think of the accused's constitutional rights as absolute.  Toward the end of the article, discussing the victimization of children, Friedman includes these paragraphs:

Fourth, if a child's caretakers are genuinely concerned that, no matter what precautions are taken, testifying will cause the child severe trauma, they simply need not require her to do so.  Of course, if absent her live testimony secondary evidence of the prior statement is inadmissible, the probability of securing a conviction against the accused may diminish to the vanishing point.  And, when the accused is in fact guilty, that is a very unfortunate result.  But it is nothing new.  Often prosecutions are lost, or never brought, because the complaining witness is unwilling to testify.  Again, the case of adult rape provides a prime example.

Finally -- a point that will not have universal appeal -- I find disturbing an approach that says to the accused, in effect, "Well, perhaps you have a fundamental right at stake here, but someone else would be hurt if we allowed you to invoke it against the state and yet insisted on prosecuting you".  Perhaps it is too late in this "age of balancing" to argue against such willingness to balance away the rights of accused against the state.  But I prefer viewing the accused's fundamental rights, at least at their core, as truly fundamental and not subject to be balanced away.

Now, Friedman is obviously a very smart guy, and he's an almost infinitely better writer than the average law professor, and I've been told secondhand that he's a good guy -- a true gentleman -- possessed of a fine sense of humor. 

So how come it's not obvious to him, as it is obvious to me, that his approach involves "balancing" quite as much as the approach he deplores?  ("Balancing," in a judicial context, is an euphemism for choosing, of course.  See post 248 and post 332.)  Specifically, he balances away a child's right to protection from the community. 

I know that in the courtroom, we have to pretend that the particular crime charged is the only one the criminal ever committed, but who believes that about a pedophile?  I think it's safe to assume that a man who's sexually attracted to children will experience that attraction about as often as any other man is sexually attracted to objects of his desire, which is to say, roughly, whenever they come within his field of vision.

Volumes of social science data show that child sexual abusers routinely "report vastly more victim-involved incidents than those for which they were convicted."  (That's from "Child Sexual Molestation: Research Issues," National Institute of Justice Research Report (NCJ-163390, June 1997), which apparently isn't available on-line but can be ordered here.)

So it's not just "a very unfortunate result" when a guilty child sexual abuser goes free.  It amounts to sentencing additional children to sexual abuse.   Friedman proposes balancing away those children's rights, too. 

That has consequences for non-pedophile, peace-loving, minding-their-own-business adults, too, as described here.  The rights of those future adult victims of grown-up abused children are also subordinated to Friedman's elegantly simple conception of the sixth amendment.

At the highest level, Friedman also proposes balancing away the rights of the American people, who are guaranteed a republican form of government in their Constitution.  That means a government controlled by the people themselves. 

Why can't the people of the various states have the type of government they want? -- one in which guilty pedophiles are stopped before they re-offend, and punished before they can make child sexual exploitation seem like a low-risk activity for those so inclined.  (Well, okay, punished so that we can gradually restore the vanishing perception that it's a high-risk activity.)

Friedman's point, or rather his assumption, is that these things don't count.  All he's really saying is that the accused's rights shouldn't be balanced against the prosecution's interest in securing the conviction of a guilty person.  Inside the courtroom, no one else has "standing" to intervene in a criminal prosecution, so therefore (it follows, as night follows dawn) no one else has any rights that a judge is bound to respect.

Friedman, in short, accepts the basic assumption on which our current criminal justice system rests, which is that real life and what happens during the course of a criminal trial must be kept strictly segregated, and only the latter counts. 

His uncritical acceptance of the big-picture status quo is certainly one reason for his incredible influence over the judicial guardians of received wisdom.  Last year, for instance, the Ninth Circuit asked him how to rule in a confrontation clause case and meekly did as they were told, giving him credit. 

He advised them (if the court's paraphrase is to be trusted) to base their decision on policy considerations, in order to prevent prosecutors from getting up to tricks (footnote 8).  Policy considerations are so much more preferable than balancing tests, of course.  Intent of the Framer and all that.

Ronald Dworkin's work is routinely described with such daunting superlatives as "the most important systematic contribution to Anglo-American legal philosophy made since the mid-1960s" (hard to tell if that's intended as a compliment, and you have to pay money to view the concluding paragraph online, so I guess we'll never know), although it seems strangely unphilosophical to dye one's hair, as he appears to have done in this official photo.  That magisterial stare, and then that hair, like Caesar wearing a propeller beanie.

Now, far be it from me to be judgmental.  It's certainly no more ridiculous for a 76-year-old philosopher to have blond hair than it is for Robert Plant, at age 59, to be prancing around with a full head of ringlets. 

Well, no, I take that back.  It's more ridiculous, after all, since men who sing soprano have long been known for non-receding hairlines, according to this remarkably scary-looking hair doc.

 Anyway, Dworkin published a piece last summer in the New York Review of Books telling his readers that the conservatives on the Supreme Court spent the 2006-07 term "overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed."  The doctrines being overruled "aimed at ... establishing a criminal process that is fair as well as effective."

No, really, I'm not kidding.  Click on the link if you don't believe me.  He really, honestly used those two adjectives to describe our criminal justice system.  Has anyone else done so, in your memory?

But then, if you examine the words closely, you'll see he didn't actually say that the doctrines succeeded in establishing a criminal process that was either fair or effective, only that the justices aimed to.  And then you can define the adjectives in various ways.  "Fair" can mean that a guilty-as-sin murderer has a 50/50 chance of walking.  What, after all, is fairer than a coin flip?

Still, I don't mean to be mean.  Dworkin only practiced law for four years, quitting while Barack Obama was still in diapers.  His practice was limited to Sullivan & Cromwell, and learning to practice law by working as an associate at a big New York firm is like learning how to sail by washing dishes on a cruise ship.  Criminal law is populated by people who are notably unconsoled by philosophy, and I'm sure it's far outside his interests.  He's a good liberal, so he knows the Court's criminal procedure decisions of the previous 45 years were Good Things.

But who were they good for?  The answer appears so obvious that at first it seems the only choice is between cynical wisecracks.  As the even-older Anthony Lewis wrote in an even-more-recent edition of the New York Review of Books, the new conservative Court is "hostile to ... the rights of criminal defendants". 

It's self-evident, isn't it, that protecting the rights of criminal defendants is good for criminal defendants?

At a micro level, dealing with one defendant at a time, the Supreme Court's method for protecting their rights has proved remarkably beneficial for certain individual defendants.  But on the macro level, looking at criminal defendants as a class, the picture is not nearly so clear.

Consider these drearily familiar statistics:

On December 31, 2006 —

    – 2,258,983 prisoners were held in Federal or State prisons or in local jails -- an increase of 2.9% from yearend 2005, less than the average annual growth of 3.4% since yearend 1995.
    – there were an estimated 501 prison inmates per 100,000 U.S. residents -- up from 411 at yearend 1995.
    – the number of women under the jurisdiction of State or Federal prison authorities increased 4.5% from yearend 2005, reaching 112,498, and the number of men rose 2.7%, totaling 1,458,363.

As we all know, that's a lot of prisoners.  Human Rights Watch says: "The country that holds itself out as the 'land of freedom' incarcerates a higher percentage of its people than any other country."  (Um, that's actually "land of the free.")  Even if, for the sake of accuracy, that ought to read "than any other country you could imagine yourself voluntarily choosing to live in," that's still pretty stunning.

I haven't looked hard enough to find prison population figures for 1961, but if you take a look at this chart you'll see 1961 is the base camp at the foot of Everest.  (You can find a more elegantly-presented version of the chart on page 43 of this pdf .)  Almost as soon as the Supreme Court began the federal takeover of criminal procedure in 1961, the prison population began climbing up to the sky.

If one looks only at the two variables - Supreme Court intervention in state criminal law and prison population - one would hardly be able to avoid the conclusion that the judiciary's policy has had a less-than-wholly-benign  effect on criminal defendants as a whole.

But surely that can't be right.  It must be a coincidence.  Right? 

In part, sure.  There are lots and lots of partial explanations for the weird growth of the prison population in America - which is, really, a very strange social development.  But to assert that the policy pursued by the courts isn't one of those explanations is to discount the importance of the courts themselves.  After all, if their policies don't have a real-world effect, why do they bother?

I don't think it's a coincidence at all.  And I think Dworkin actually suggests why not, though I suspect he didn't have this in mind when he talked about effectiveness and fairness.  The underlying idea of the whole judicial project since 1961 is that criminal law is a zero-sum game: that a detriment to the prosecution is a benefit to the defense, and vice versa.  Dworkin buys it: in his world-view, fairness and effectiveness in the criminal law are opposing values.  (Mind you, I'm pretty confident he hasn't actually thought about it, but that's what his second-hand rhetoric translates into.)

But life is far more complicated than that world-view allows.  What the courts have done since 1961 is decrease the risk of punishment.  Even if you're caught red-handed - hell, even if you take the police to the body - you might still walk.  Our democratic branches of government can't alter that, because the courts have decreed it to be required by the Constitution.  So our democratic branches alter a different variable - the severity of the punishment.  They increase the sentences.

This, I think, is a perfectly logical and, on the terms imposed by the Supreme Court, entirely reasonable course of action for Congress and state legislatures to pursue.  It's also socially destructive: we've raised a generation of young men who think it's normal for daddy to be in jail.  But which governmental institution first started spinning the top?

Still, I don't think we should criticize the elderly gents harumphing in the pages of the New York Review of Books  for failing to notice.  At their age, they have every right to hunker down behind their psychological defenses. 

Ever since Jacob Weisberg took over as boy-wonder editor of the Washington Post's farm team, Slate, we've missed the minutes of the media conspiracy.  Instead, we get the complacently-recycled conventional wisdom straight, without the kibitzing. 

Some of us regret the change, but maybe we're wrong to do so.  Maybe it's just the inevitable process of journalistic growing up.  Maybe we should be happy for Jacob instead that he's found such a comfortable home in corporate media.  Why, I bet the Charlie Rose show wouldn't even misspell his name again if he were invited back today.

The latest evidence that Weisberg has gone over to the other side of the mockery barrier was last week's column by David Greenberg.  Greenberg is great - fabulous, even - when writing about his subject, which is American political history viewed as a manifestation of popular culture.  But that's also his limitation: he sees all American history, including pop culture itself, as an expression of American politics.

Last week's column asked what Ronald Reagan's audience heard when he talked about "state's rights" in  Mississippi during his 1980 campaign.  I don't dispute Greenberg's thesis insofar as it concerns Reagan, Nixon, Goldwater, Wallace or any other politician.   But they weren't the only people alive in 1980.

That was was 27 years ago.   The majority of voting-aged Americans in 1980 had no difficulty skipping back in time another 27 years, to 1953.  To us, living in 2007, 1953 America seems like another planet.  For example,  people slept outdoors in the public parks during heat waves.  The link is to a picture from 1936 Detroit, but Eric Klinenberg's great Heat Wave: A Social Autopsy of Disaster in Chicago includes a similar photo from Chicago, 1963 (follow the Amazon search inside feature to figure 20 on page 57).  And I'm pretty sure the custom survived during the interval between those photos.

No one was sleeping outdoors during heat waves in 1980, unless they had no choice.  America had, in fact, changed from 1953 to 1980, and the change was not necessarily for the better in every detail.  For the entire decade of the 1950s, the national homicide rate was between 4.1 and 4.9 per 100,000 inhabitants.  In 1953 there were 7,210 recorded homicides in the 48 states.  In the year of Reagan's speech, by contrast, the national homicide rate was 10.2 per 100,000.  The total number of homicides in 1980 was 23,040, a three-fold increase from 1953.

Keep in mind the rapidly falling lethality rate of knife wounds and gunshots during the post-penicillin era.  Wounds that would have been fatal in 1953 could be survived in 1980.  The three-fold increase in homicides from 1953 to 1980 meant a greater-than-three-fold increase in the incidence of extreme violence.

With that background, here's Greenberg analyzing Reagan's 1980 speech.  In 1980, he writes,

racial inequities had become intricately woven into many policies and structures of American life—from housing patterns to popular notions about crime and welfare—and any discussion of these issues invariably carried a racial subtext.

Invariably?  Any discussion?  It was impossible to talk about, say, the murder of an acquaintance without talking about race?  Or about how inadvisable it had become to sleep in the park?  Well, perhaps so, but how does Greenberg demonstrate it?  What sort of evidence satisfies the academic historian's exacting standards?  He tells us: authors he admires have written books asserting that

Reagan's success hinged on forging messages to Americans—not just Southern whites, incidentally, but also Catholic blue-collar workers and neoconservative intellectuals—that eschewed explicit racism while still tapping into sublimated resentments of blacks or anger at racially fraught policies like busing, welfare, and crime.

Homicide is racially fraught?  Crime is a policy?  People were angry at that policy, rather than at crime itself?  Well, okay, if you say so.

On one issue after another, Reagan's image and appeal was shot through with a hostility to assisting minorities with positive measures—affirmative action, legal protections for criminal defendants, welfare programs (which mainly helped whites but were perceived as mainly helping blacks).

Legal protections for criminal defendants are a positive measure assisting minorities?  That (I'm convinced) was a primary motive for the Warren Court's federalization of criminal procedure.  But isn't it possible that good motives might produce unintended consequences?  Who, exactly, does Greenberg think was being killed as the homicide rate tripled?  Neoconservative intellectuals?

According to Greenberg - and many, many other liberal intellectuals before him - Reagan succeeded by his deft use of "code words."  Again, I wouldn't be surprised to learn that Reagan's handlers thought in those terms.  That's not my point. 

But notice the projection.  The academic historian of 2007 thinks of Reagan's words as symbols, conveying a message that contrasted with the common understanding of their meanings as words.  Therefore Reagan's listeners in 1980 understood them that way, too.

The academic historian of 2007 has no concern at all about becoming a victim of violent crime in 1980.  Therefore Reagan's listeners in 1980 weren't worried about becoming victims of violent crime, either.

The historian doesn't believe for one second that Reagan was sincere.  Therefore Reagan's listeners didn't believe it, either.

More than that, he believes Reagan's supporters were, without exception, warped idealists, in that they didn't vote to further their own personal interests but rather to advance a racial agenda.  After all, if the voters had genuinely been concerned about crime, Reagan's appeal to them wasn't hidden in "code words."  Greenberg's thesis depends on assuming the paradoxical selflessness of Reagan's nasty-minded voters - all 43,903,230 of them.

In short, the historian despises Reagan and everyone who voted for him.  Therefore he assumes they all thought just like him. 

The liberal academic believes that when millions of Americans told themselves they were alarmed at the rising crime rate, they were either lying or (at best) kidding themselves.  And so here's one more paradox: the academic brand of liberalism, championed by Weisberg's Slate, defines itself by its contempt for citizens of the poorest section of the country and members of the working class (or at least the Catholics among them), and views as unworthy of notice the sufferings of victims of violent crime - people who are, by definition, the most vulnerable among us.

Twenty-seven years from today, will another academic historian find in Greenberg's article a clue as to how the Democrats succeeded in excluding themselves from the White House during 19 of the past 27 years?

A few months ago Christina Hoff Summers wrote an op-ed for my local newspaper  in which she criticized the "political fervor of the faculty" of the UNM law school.  ("Fervor" sounds a bit energetic to me, but maybe Summers has a fervor-inducing quality I lack.)  She reported that a "2004 study by the New Mexico Federation of College Republicans found that 100 percent of the full-time professors at the law school were registered Democrats."

The law school's dean responded with an op-ed piece of her own that said exactly the right things – that is, the things that a dean is obligated to say on such occasions.   (The dean didn't dispute that the faculty was 100% Democratic, though she didn't admit it, either.)

The interesting thing about the exchange of op-eds wasn't its entirely predictable content but the terms on which it was conducted.  Summers charged that the law school had a "strict 'liberals only' hiring policy."  She said the dean "and her faculty seem not to question the ethics of running a public, taxpayer-supported law school as if it were a re-education camp for the political left." 

The dean, in her riposte, insisted instead that "we hire professors who will challenge students to broaden their views and perspectives, to move beyond narrow thinking."

Both these statements seem to me false - for the same reason.  And before explaining why I should add that I don't think there's anything unique about the UNM Law School.  (Though I will say that from most angles its building is not nearly as hideous-looking as that picture.) 

There are few substantive differences between American law schools, U.S. News standings notwithstanding.   (The idea that reading a torts casebook within the moneyed walls of Yale imparts greater wisdom than reading the same casebook in the hallowed barns of the University of Northern South Dakota at Hoople is a fantasy cherished by those engaged in hocking their future to pay Ivy League student loans, for obvious reasons – the weird thing is that it's cherished by those at UNSDH, too.)

The actual teachers move around from law school to law school, and the curriculum is standardized.   Literally the same class will be taught at Syracue (# 100) one year and at USD (# 50) next year, if the heliophilic assistant professor plays his cards right.  The star professors make their contribution merely by gracing the campus, like rhododendrons.   So the generalizations I'm about to make are, I think, equally applicable to all American law schools.

The thing about American law schools is that they're conservative places.  Extremely conservative places.  All of 'em.

In the early 1980s, Duncan Kennedy made his scholarly name by criticizing "hierarchy" in the law.  Everyone listened to him because he was a professor at Harvard Law.  The irony was too thick for anyone to move their position even a fraction of an inch.  It was like swimming in a pool of Jell-O.

Law schools are in the business of teaching people to submit to hierarchy.  That's what they do.  It begins as the prospective lawyer chooses where to apply.  You literally can't begin your legal education until you figure out where you fit on the scale.   You're just wasting your money if you try to get above yourself.

Law professors teach obedience to arbitrary power - that's the meta-lesson of the narcissistically-misnamed "Socratic method."  (See post 188.)  All American law schools employ the "case method" – a 19th-century pedagogical tool that should not be confused with the case method of business schools.  Business students study reality.  Law students, by contrast, study words. 

Specifically, law students study the words of appellate judges as found in their published opinions.  The underlying assumption is that the proper study of law students is the exercise of power by the powerful.   The typical chronological arrangement of cases teaches that every day, in every way, the law is getting better - that the legal tradition cannot be improved upon, yet will improve itself.

As taught in law schools, the published opinions of judges are assumed to be accurate reflections of the judge's process of ratiocination, so that by studying what is written one can learn the way in which the problem was approached and resolved.  That, in turn, rests on the assumption that understanding the judge's reasoning will explain the result reached in the case. 

But those assumptions would make sense only if (a) all judges are honest and unswayed by emotion, antipathy toward disrespectful lawyers, ties of friendship, and so on; (b) all judges are always prepared to be completely open about what they are thinking and feeling; and (c) all judges have the literary skill necessary to translate that openness into prose.

Of course, no one actually believes any of those assumptions, much less all of them.  Which means that the case method is flattery directed toward judges.  It's a method for teaching students the insincere arts of the courtier - kissing up.

In all these mutually-reinforcing ways, law school is an institutionalized "disposition ...  to preserve what is established", an academic "philosophy based on tradition and social stability, stressing established institutions, and preferring gradual development to abrupt change".  And that, of course, is the dictionary definition of conservatism. 

Moreover, law school is vocational training.  Most law professors, I think, prefer to think in grander terms, but as a part-time teacher of paralegal students at something that until last year was called a Technical-Vocational Institute, I'm the last person to imply something negative by that term.  If a law school doesn't train its students to be functioning lawyers, it doesn't have much excuse for existing. 

But the vocation they're teaching is to serve the government - the existing power structure.  Many lawyers, like federal judges, like to pretend there's a difference between judges and "the government."  Judges do it to disguise from themselves their role in preventing democracy.  (See post 13 and post 39.)  Lawyers do it because they don't like to think of themselves as courtiers, fawning on the satrap of the moment.  But fawn is what lawyers do best.  If it please the court - I mean, Court.

Judges are the government.  They are the power structure.  Law schools  in America fulfill something of the role of France's École Polytechnique, training the next generation of technocrats.  They teach law students how to make themselves useful to the powerful, so that they can one day accede to power themselves.

There's more.  For four centuries now, law has been the only area of intellectual effort in which arguments from authority are treated seriously.  And not only are they treated seriously in American law, but they are the best arguments of all.  Law isn't a social science; it's pre-scientific.  You can't get much more conservative than outright retrogression.

Still more: you don't get to be a professor at a law school unless you yourself enrolled in a law school at the top of the school hierarchy, and then clawed your way to the top of the hierarchy of students.  "It is vastly easier for the graduate of a fourth-tier law school to become a partner at an elite law firm than it is to be hired as a tenure-track assistant professor at even a non-elite American law school."  (The peculiar thing is that the professor who wrote those words was deploring the inability of law professors to free themselves from received notions of hierarchy.)

You don't get to be a law professor, in short, unless you buy unquestioningly into the status quo, to the point where you're prepared to sacrifice your youth to rising within the existing power structures.  Instead of having sex, drinking, enjoying time with friends, reading for fun, going to concerts or ball games, you devoted the prime of your life to reading law books in a library carrel when you weren't cultivating established professors for purposes of future references.   Law professors are, by a process of self-selection enforced by hiring committees, people incapable of rebellion.  They are, in temperament, the most conservative people on the planet.

So Christina Hoff Summers is wrong.  Law faculties might be 100% Democratic, and they might be enthusiastic - nay, fervid! - about identity politics.  But that's only because those are safe, predictable, highly conventional things to do.  And the law school dean who says that her faculty challenges students to open their minds is wrong, too.  The faculty is training students to be conventional, to adapt to the status quo, to pay power the respect it demands - without first pausing to wonder whether it deserves it. 

Members of the Supreme Court - especially Justices Stevens and Scalia - are very big on appeals to history.  They're constantly talking about "the Framers" while being coy about who those people actually were.  (see post 79.)   And, in the manner of the lazy pop historian who tells us what some historical personage "must have been thinking" and "no doubt felt", the justices are quick to tell us that "the Framers were no more willing" to do one thing than another, and "the Framers certainly would not have condoned" something else. 

One distinguishing characteristic of lazy pop historians is their sentimentality, and the justices spread the schmalz thickly all over the past.  (See post 30 and post 192.)  One reason for this is that they draw their ideas from such an extremely narrow range of sources, principally those few appellate court opinions that have been transmitted down to us, and the words of those few cranky egotists who thought posterity deserved the benefit of their recorded thoughts.

For example, when Justice Thomas wanted some lessons from history about the way felons were sentenced when the Constitution was being drafted, he looked at appellate opinions from half a century later, explaining in a footnote that he (meaning his Federalist Society clerks) couldn't find any appellate opinions closer in time.  You might think that examining the press releases of appellate courts is a somewhat indirect way to look at what was happening in jails and county courthouses, but apparently it's the only way the clerks know.

But the main reason for the haze of sentimentality, the vaseline-on-the-lens soft focus of the justices' faux-history, is that they're really writing about themselves.  For both Scalia and Stevens, and for every other judge who pretends to draw lessons from history, the past is a place where everyone agrees with you.  

So it's good to be reminded from time to time that real people lived in the past, too.  They weren't all cartoons.  From a biography of that great English magistrate, Henry Fielding, comes this description of one of his predecessors in office:

[Sir Thomas] De Veil kept a private closet for the judicial examination of women and boasted his ability of being 'diligent and expeditious in doing a lady's business for her.'  He was known for his 'knack at coming at kept mistresses'.  When a female defendant caught his fancy, he took care that the case was settled before him on easy terms.  Then, 'he would enquire of the fair criminal, if she had not a back-door to her lodging, where a chair might stop without suspicion? at what season her friend was out of town or engaged? and when an amicable visit might be received without interception?'  He looks out from his portrait by De La Cour as a well-fleshed man with sharp eyes and an air of vigour.  He was routinely corrupt in taking money ...  In 1747 he issued a manual for magistrates called Observations on the Practice of a Justice of the Peace.  He advised his colleagues to take only the fees and what he called vaguely 'Perquisites' to which their office entitled them, and always to receive the money through the clerks as a matter of dignity.

In case you're wondering whether the perquisites of judicial office have changed much in the past 250 years, the answer, I'm afraid, can be found by following this link.  And this one.  These examples are aberrations, in more ways than one, but it would be foolish to imagine all such cases become public.

Over at 3L Epiphany, Ian Best asks: "Where is the Hudson v. Michigan blog?"   Part of the reason for the founding of law reviews in the first half of the 20th century was that they provided student-written "comments" or "notes" on recent legal developments.  There was actually a reason for practicing lawyers to read them.

That day is long gone.  A quarterly or bimonthly publishing schedule seems pretty hectic when you're meeting it during those spare moments you can spare from studying, pizza-binging, nursing hopeless crushes across the lecture hall, and trying to corner some faculty member into a long-term commitment to write as many recommendation letters as changing circumstances in your future life might demand. 

But to people on the other end of the mailing list, it means  notes and comments appear months, even years, after the cases they're intended to inform readers about.  Anybody who hasn't already read the case in question can't be seriously interested in it.  So the notes and comments in the back of law reviews have gradually turned into a species of term paper, their purpose fulfilled by their writing.

As for the featured articles in law reviews, mostly articles written by professors, well ...  At the risk of sounding critical, not all of them are as pithy as might be.   (Check out these word totals.)

It's no wonder that law professors typically publish a note giving thanks to a list of all the people who read the article in draft and provided such valuable comments, etc.  I mean, how many other authors can say they have thanked in writing every person who will ever read their work?  Because, really, no matter how fascinating a topic might be as a conundrum of administrative law, by the time the article grows longer than the history of time itself, well ...  I'm sure their mothers were very proud to receive the offprint.   And justly so.  It's not easy to achieve that level of unpithiness.

Scholarship-by-accretion remains the dominant mode in law schools.  Here's a good description of the scholarly method employed by students and assistant professors alike:

In the scriptorium, or writing studio, of every monastery the brethren dipped their sharpened goose quills into their phials of coloured acid and bent over their transcriptions of ancient manuscripts.  The writing stand of each monk held two books, the manuscript on which the scribe was working and the volume from which he was copying, for to be learned in the year 1000 was to copy.  You did not innovate.  You learned by absorbing and reproducing the wisdom of earlier authorities.

Do that long enough and you have a law review article.

Given that the monks and monkettes have, in the last 5 or 10 years, turned in their quills for laptops, shouldn't they be posting instead of copying?  The old purpose of law reviews might once more be served, if Ian can convince others to take up his blog challenge.

(Incidentally, I'm deeply grateful to all those who read this posting, including in particular you.)