Thursday, June 29, 2006

Barros and Alito on Legal History Methodolgy

Blightloc Been reading my employer's (Ben Barros') Nothing 'Errant' About It: The Berman and Midkiff Conference Notes and How the Supreme Court got to Kelo with Its Eyes Wide Open, which is up on ssrn.  I highly recommend it.  Ben has some pretty interesting moves in the paper.  He uses notes from the Justices' conferences in Berman and Midkiff to understand what the justices thought they were doing.  Dedicated propertyprof readers have already seen some of Ben's thoughts on parts of this.

As an approach to legal history, reading judges' papers has much to recommend it.  Barros goes a little beyond, I think, purely legal history questions: he's interested not just in what the justices thought they were doing.  He's interested in how that might affect our thinking in subsequent cases.  And his paper suggests that Kelo's in line with Berman and Midkiff.

So here's where I see Barros and Alito overlapping in methodology.  Alito's Note in the Yale Law Journal took a similar approach.  Alito read the justices' notes in the "released time" cases (separation clause challenges to schools' giving release time to students to attend religious instruction).  Alito had, I thought, a very fine reconstruction of what the justices thought they were doing.  And it was more limited than how subsequent cases interpreted what the justices thought they were doing.  From that, I read Alito as suggesting that subsequent interpretations of those cases ought to be limited.  Pretty interesting methodology for reading precedent, actually: we should go behind what the justices wrote to further limit their opinions.  (Barros and Alito depart on outcome, because Barros says that Kelo's in line with previous cases.)

I thought when I read Alito's Note last December that it might get some play in his confirmation hearing, because I think that is a window into his thinking (at least as a student).  Pretty interesting to think that Alito was writing advocacy-oriented legal history (of a conservative kind, I think) at the same time that Robert Cover was writing advocacy-oriented legal history (of a more liberal, though not necessarily so) kind.  Alito published his Note in the same year that Cover published Justice Accused: Anti-Slavery and the Judicial Process.  Wow--lots of exciting ideas in circulation in New Haven in 1975.  I wonder what Laura Kalman would have to say about this?

Now, I'm a huge fan of student works; some of my most memorable and enjoyable moments are working with students on their notes.  And I've been real fortunate to supervise some terrific ones on property in the last few years, including Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law.  I'm skeptical of how much we can read into a student's jurisprudence, thought I think they may give us a sense of a person's thinking.

Now two closing questions: so, Ben, should we start calling Alito, Barrolito?  Or, perhaps, calling you Alitorros?

Endnote: As I was looking on the Library of Congress website for a public domain image to illustrate this post, I was surprised to see how many photographs there are of "blight" from the 1930s.  (The photograph I used here, for instance, was taken in 1935 and is of a apartment house that's been converted in a gas station.  Looks pretty nice to me, but it's described as blighted.)  No surprise that there are lots of photos from the 1930s, but what does surprise me is how many homes are defined as blighted.

Alfred L. Brophy

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Thanks, Al. I kind of like Alitorros – sounds like a large spiny dinosaur. Since I disagree with all of the justices about half of the time, I figure I’ll do the same with Alito. We’ll have to see what he does on takings.

The methodology question is an important one, and I’ve been giving it some thought recently. I think it is possible to over-read the conference notes, and it is important to keep in mind that the printed opinions are the only official statements of the Justices’ positions on particular issues. But the Justices themselves aren’t above making arguments about what particular Justices thought about various issues. E.g., Justice O’Connor’s assertion in Kelo that some language in Berman and Midkiff was included in error, or Justice Blackmun’s assertion in Lucas that Justice Holmes appeared to buy into the methodology of Miller v. Schoene. The conference notes show that both of those assertions are wrong. The Justices also use a lot of vague language, and the conference notes provide a sort of legislative history of the opinions (with many of the same pitfalls of legislative history in the statutory context). But to me, the most interesting thing about the conference notes is the insight they give us into the Justices’ struggles with very complex issues. In this context, I think of the Justices as scholars with differing viewpoints, and the conference as a symposium on the issues in a case. Even if you disagree with them, many of the Justices had robust and interesting ideas on takings issues – for me, Justices Holmes, Brennan, Scalia and Stevens are most the interesting.

Posted by: Ben Barros | Jun 29, 2006 11:15:02 AM

All very interesting stuff. The notes are immensely useful; I've benefitted a lot from Dickson's mamouth volume. More data points are better in this case, of course.

But then there's the question: what do we make of the extra knowledge. For Alito's very well-crafted Note, I think the implication was we should be more circumspect in using precedent. He had (perhaps still has?) a preference for a modest interpretation of the precedent. I'm not sure that I want to be bound by justices' notes in interpreting precedent, though. That's a subject worth some (electronic) ink for another time.

Posted by: Al Brophy | Jun 29, 2006 2:46:28 PM

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