January 22, 2007

First day.

After a seemingly endless winter break, it is finally the first day of what we call the Spring Semester. I'm here before sunrise, so the thick snow out there is looking very blue. But I'm happy -- as symbolized by my taxi-yellow walls -- and eager to get started. The courses are Constitutional Law I and Federal Jurisdiction, and both start -- propitiously -- with Marbury v. Madison.

Office portrait

The poster shows part of a painting by Pierre Bonnard. Would Pierre like the blue and yellow in the photograph combined with his pinkish purple? Consider this:

35 comments:

Mark Daniels said...

After a winter reverie on Sunday, the professor looks recharged and ready to tackle the world--and Marbury v. Madison.

Have a good academic term.

Thanks for blogging.

Mark Daniels

corporate law drudge said...

I hated Federal Jurisdiction. The only princple that sort of stuck was Professor Williams' three-pronged standing test, more or less as follows:

1. Did the plaintiff get screwed?

2. Is this the defendant that screwed the plaintiff?

3. If the court grants the relief sought, will the defendant stop screwing the plaintiff?

Anonymous said...

Well, I won't be the first to say that the top pic should be the new profile pic...but it should.

Marbury...Madison...in Madison...where's Oscar Madison?

Simon said...

Ann, are you still teaching federal jurisdiction from your own casebook, per Late Night Confessions?

Anonymous said...

I keep hearing about Marbury v. Madison, but finally looked it up in Wikipedia. The upshot is whether a court can overturn the legislature based on the Constitution, or so I think.

Do you have an unusual Althousian twist in your lecture on it?

Does your interpretation coincide with that of the majority viewpoint within law schools? Is there a minority viewpoint?

hdhouse said...

"....and both start -- propitiously -- with Marbury v. Madison..."

Good start. 1 lesson plan for 2 classes. No sense getting crazy right off.

Ann Althouse said...

Monroe is second. In Fedjur, Marbury is a reminder of what we learned back in Conlaw1, and it contains a lot of things we'll always be looking back on, like the idea that rights require remedies and that it is the role of the courts to "say what the law is."

Actually, having Marbury start both classes can be kind of tricky, rather than easy, because Conlaw1 is for first year students, just warming up to constitutional intepretation, and Fedjur is aimed at much more experienced students.

I'm not using my materials this year. I shift around and adopt new books to get new perspectives on things. It's especially hard to present the habeas corpus cases in a reasonably short, digestible form.

Ann Althouse said...

Hdhouse thinks I'm slacking, even though nearly every casebook for these two courses begines with Marbury.

Gahrie said...

Am I the only one who thinks that Marbury V Madison was an inside job, a controversey created specifically so that Marshall could create the power of Judicial Review?

Anonymous said...

Things are always exciting at the start of a new term, no? thanks for the Bonnard painting, it is a real spirit lifter on a dismal Cincinnati morning, with the little bit of snow already dissolving to slush.

S.T. Steiner said...

Any Cliff Notes on this case?

Simon said...

Kirby,
It is indeed the case that enshrines judicial review as a principle, but it did not - contrary to some people's contentions - invent judicial review, which was inherent in the original meaning of "the judicial power." Randy Barnett has a good article on the subject here (despite his rather silly spat with Scalia over Raich, and some views I would dissent from in the strongest terms, Randy has still contributed some important and fascinating scholarship to the originalist canon).

As Justice Frankfurter wrote, "[i]n endowing this Court with 'judicial Power' the Constitution presupposed an historic content for that phrase ... Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union." Coleman v. Miller, 307 U.S. 433, 460 (1939). This principle - that the original understanding of the term "the judicial power" supports extratextual content - has far-reaching possibilities. Prof. Lee Strang has provocative and persuasively argued that stare decisis may well form as much a part of the original understanding as did judicial review, meaning that originalists much account for it; I am presently writing an essay on that subject, concurring in part and dissenting in part, insofar as I am persuaded by Strang's argument that originalists must have a theory of stare decisis, but I think that his proposed theory misses the mark, being neither a satisfying originalist theory of precedent, nor remotely a formalist one.

Mark the Pundit said...

I do not normally comment on anything having to do with fashion, but I have to say I do like your taste in necklaces - both in the picture on this post and your profile picture.

Any significance in them (heirlooms)?

Simon said...

HDhouse - I think you're misconstruing Ann's questioning of "[m]ust we always begin with The Man and His Commission? ... Can you plunge into Federal Courts without [Marybury's] classic aphorisms? Would putting federalism before separation of powers jog some new thinking?" That doesn't exclude the possibility of starting with Marbury, it just raises the question of whether it might be more productive to start elsewhere, assuming students have already done ConLaw1.

Personally, I'm not sure that ConLaw should begin with Marbury, either, but far better that than some alternatives I've heard of (I'm trying to remember which case it was, but one visiting Prof at Prawfsblawg once said that he starts with one of the Warren Court cases. Crazy!)

Maxine Weiss said...

Well, can we please start from the beginning----I mean the very beginning...

...as in--

What's a plaintiff? What's a defendant?

I'm not kidding.

Peace, Maxine

Simon said...

Hehe - my previous comment was written before Gahrie's comment was approved, but obviously addresses its point: judicial review does not flow from Marbury, any more than the proscription on state-mandated segregation flows from Brown. A case may legitimately recognize what is already present in the Constitution (as in the two cases above), no matter what the practical consequences; a case that creates a new prohibition or restraint is rather suspect, begging the question of what authority it rests on (although obviously I recognize that there is some disagreement as to what is already in the Constitution. ;))

Simon said...

Maxine - respectively, person or entity who brings a lawsuit; person or entity against whom it is brought. In the normal course of business, a case name will be plaintiff v. defendant, excepting that in appellate cases, the case name will usually be appellant v. respondent regardless of who originally brought the suit.

Of course, if you really want to start from the very beginning, you have to go back to 1166 and the Assize of Clarendon, which I would argue represents the closest thing there is to a single event marking a definite beginning of the Anglo-American legal tradition.

hdhouse said...

Ann Althouse said...
Hdhouse thinks I'm slacking, even though nearly every casebook for these two courses begines with Marbury.


Don't be defensive. frankly looking at a well debated and foundation case from a couple perspectives might enlighten the students...show them a different slant/new perspectives/differnt angle.

I had an architectural history prof once who had us go out with a camera to find the best example of greek revival (picture 1) and the same building from a different perspective to demonstrate the why it was the worst example (picture 2). It was a great lesson.

Maxine Weiss said...

Actually, the very very very beginning is Long Island Railroad.

Forget Marbury. Nobody gets a law degree without understanding Long Island Railroad.

---Which is why I don't have a law degree.

Peace, Maxine

Palladian said...

You just started the spring term? Lucky you! We're in week three already...

Richard Dolan said...

The contrast between Ann's window/office and the Bonnard is striking, but in a way that flatters only the Bonnard. The blues in the two scenes are quite similar, but the visual warmth of the Bonnard otherwise puts to shame the cold aesthetic of the modern office. Partly, I think it's the aluminum frame of Ann's window -- how to make that work visually without just hiding it is a real challenge -- and partly it's the washed-out grayish black of the furniture beneath it.

It's nice to see that Ann is rebelling against the blandness that institutions are constantly trying to impose -- it's all of that least common denominator stuff striking again. And it goes without saying that no one would want her office to look too much like the Bonnard -- all that painterly effect would be far too distracting especially where the work to be done in that space focuses on Fed Jurisdiction and Con Law (there's some serious shades of gray for you!). But from the evidence here, the fight against institutional blandness at UWLS is still stuck in the "journey, not a destination" phase.

Mike said...

1. Did the plaintiff get screwed?
2. Is this the defendant that screwed the plaintiff?
3. If the court grants the relief sought, will the defendant stop screwing the plaintiff?


For this you have to go to law school???

vbspurs said...

GREAT eye about the Bonnard scheme, and colouring in both pics.

Knock 'em dead, Ann.

As bleary-eyed as you looked in the cafe snap, is as sassy and full of youth you look in this one.

Cheers,
Victoria

Simon said...

Mike,
As someone who maintains that business school is where rich people go to learn what normal people know instinctively, I appreciate the sentiment -- but you say that with the disbelieving sarcasm of someone unfamiliar with the ligitation brought by various environmental groups over the last twenty years, most of whom are either wholly ignorant of those precepts, or hope the court will set them aside. It's hard to see how anyone who accepted some version of Williams' three tests - or the more formal Lujan framework - could have brought the Massachusetts et al v. EPA litigation presently at bar. The answers to Williams' questions in that case are not yet, no really, and without any doubt no. Evidently, some people went to law school and still don't get this.

Echo Victoria, btw.

JohnK said...

That is a very flattering picture of you. We should all be so photogenic Ann.

Mike said...

I was joking, Simon, though as a non-lawyer I marvel at how often the courts seem to fail applying this simple test. And it is the court's job, isn't it, not the litigants?

Ruth Anne Adams said...

Do you still love school?

Anonymous said...

From reading this it seems that originalists are conservatives (they want to conserve the Constitution) whereas -- what do you call the other side -- not plagiarists presumably but how about inventists or something like that. It's a little like the controversy over the Bible. Some argue that the Word as it's set in ancient society determines the way it's to be interpreted and others claim that God has progressed a lot since then, and to be up to date with God, we should abandon most or all of the Bible and insert whatever the heck we want.

I'm with the originalists on the Constitution. I'm not decided about the Bible. I think the Constitution should trump the Bible where legal matters are concerned.

Luther sets a precedent for that in terms of two kingdoms' theory.

The Bible is exclusively about the afterlife according to Luther. Whereas law has to be what settles disputes in this kingdom (Caesar's).

Must the Bible still be used in terms of the swearing in process? I guess if it is it's still used as a source of an authority of some kind.

Simon, and Ann, thanks for your answers on Marbury. I won't press my luck further in terms of asking more questions. I was really interested to read the abstracts that Simon presented and to get more of the picture through the perusal of the articles. Law seems so fun: the language is so precise, whereas in literature ambiguity is actually encouraged in many ways -- puns, undecidability, etc. I mean, I prefer the latter as an object of study, but the former is much better for deciding upon a citizen's fate.

In literature there's been a dreadful destruction wrought by the French postmodernists who just make a text say anything they like. I prefer this originalist viewpoint of trying to get back to understanding an author's intentions, and the world in which they were formed. That kind of literary criticism may yet make a comeback. We call that kind of criticism "recuperation," whereas we call criticism that takes off and invents new ideas a criticism of "invention."

hdhouse said...

maxine...

i've ridden the LIRR for 16 years..from well before the double deck cars...

if i can suffer through that agony i can take another look at marbury...but god i've ghosted so many papers on that i want to scream.

Simon said...

Kirby,

You can always ask, but you should trust Ann's answers more than mine. ;)

Re originalism and conservatism - I think it's safe to say that originalism is usually seen as a conservative doctrine, but there are at least two caveats to that point. Firstly, originalism does not always lead to conservative results; just today, for example, the Supreme Court handed down the latest in a series of cases protecting the need for the jury to find all facts that bear on sentencing. Conservatives are generally for law and order, but the original meaning of the Bill of Rights provides significant protections for the accused that conservatives aren't so fond of. Yet, you will find the court's two certified originalists, both of whom are on the court's conservative wing, in today's majority. Secondly, there is at least a reasonable argument that stare decisis is very much a conservative doctrine, and yet originalists are generally more likely to conserve the Constitution's meaning, while jurisprudential liberals are far more willing (now) to conserve established precedent (albeit some more than others - Justice Thomas, for example, is far more willing to overturn precedent than is Justice Scalia). Just as how moderate a jurist is depends on your definition of moderate, so how conservative originalism is depends on the originalist and their understanding of conservatism. ;)

It's fair to say that what "the other side" is called is charitably called living constitutionalism, or less charitably, "non-originalism," which (correctly, in my view) implies a menagerie of more and less coherent alternatives. It isn't a stupid idea, by any means, and in many ways, it's very seductive; it means that you don't have to deal with a Constitution that permits things you don't like. It was quite amusing to watch Jan Crawford Greenburg skewer Justice Breyer a few weeks ago - pressed, Breyer couldn't name a single case where he'd written or joined an opinion that was right as a matter of law, but unfair or unreasonable per his normative preferences. Still, it has certain virtues, and it might well be that the Brennanite way to run a country is the best - wise platonic guardians determining what new rights the Constitution now protects from iniquitous majority sentiment. That is, however, in my view, fundamentally illegitimate within the Constitutional system that this country has enacted. Prof. Steve Calabresi has an excellent essay on the importance of the writtenness of the Constitution here, and Prof. Ethan Leib from Prawfsblawg has a nice (and short) paper that he circulated recently that talks about originalism and living constitutionalism in the context of Jack Balkin's claim to have switched teams, you can find it here.

I have things I could (and sometimes do) say about originalism and Biblical interpretation, but I'm an agonostic, so I'm going to hold my tongue on that front for once. I have no standing in that debate. ;)

The language isn't always as unambiguous as one would like. The imprecision of language - and the unpredictability of experience - is why we need courts. ;) Lamentably, even when the language is perfectly clear, that doesn't always stop courts from finding ambiguity. ;)

vbspurs said...

Awww, Ruth Anne, that is the cutest pic you dredged up of kindergarten Ann.

And I too thought she was the chubette to the left, with uncrossed legs. You know, challenging the rules even then.

Cheers,
Victoria

Anonymous said...

JohnK said...
That is a very flattering picture of you. We should all be so photogenic Ann.


I agree, that is a wonderful picture of our dear host.

Johnny Nucleo said...

Lovely. Very crisp-pretty. Now for for the backhand. The current profile photo? Goth chick. Can we vote? Change it to this.

Mortimer Brezny said...

I was going to comment on Ann's wonderful new picture, but suddenly I grew lackadaisical and rolled over to sleep.

4500:1 moderation survival odds

Anonymous said...

Simon, this is very helpful. I can only add that something identical is going on in literary and in Biblical scholarship.

Thanks very much for your explication.

In terms of Biblical matters it's very hard to get at what was originally meant since it's so much more ancient than our own Constitution, and often the original is two languages or more removed. All the red ink for instance was in Aramaic. Paul wrote in Greek.

The role of Hebrew behind Paul's Greek is often used to sway a phrase.

And then it's all been run through Latin before it got into the modern languages.

But we have a lot of progressives in every denomination who argue that we have the right to overturn all of the precedents in favor of ... whatever they want right now which could be anything just about.