Law Commons^™

A Short History Of Hearsay Reform, With Particular Reference To Hoffman V. Palmer, Eddie Morgan And Jerry Frank, Michael S. Ariens

Faculty Articles

Much of the history of the American law of evidence, including its most contentious issue, hearsay, is the story of stasis and reform. The case of Hoffman v. Palmer represents one of few cases concerning hearsay known by name, and illustrates that “false” evidence has often been used to caution against efforts proclaiming “radical reform” of the law of evidence.

In this case involving a collision between a car and a train, the critical question was: Is the defendant railroad permitted to introduce into evidence the transcript of a question and answer session made two days after the accident between …

Wouldn’T You Like To Be An Expert, Too?, Michael S. Ariens

Faculty Articles

It was once an open secret among lawyers that finding an expert to testify on your client’s behalf was one of the easiest aspects of litigating. Lawyers not in possession of private lists of experts easily located persons willing and able to sell their expertise in the back pages of the state bar journal, in advertisements in legal newspapers, and in direct mail appeals from companies whose business is selling expertise. One consequence was that the phrase “a battle of the experts” came about, and people began referring to both lawyers and experts as “hired guns.” Another consequence was a …

A Thrice-Told Tale, Or Felix The Cat, Michael S. Ariens

Faculty Articles

Few legal scholars would dispute the constitutional, historical, and political importance of the events of 1937, when the Supreme Court, faced with President Franklin Delano Roosevelt's plan to reorganize the federal judiciary, ultimately approved a sweeping interpretation of governmental authority to implement socioeconomic legislation. The course of events, although frequently canvassed, has yielded conflicting interpretations of the actions and motivations of the Justices who took part in the fabled "switch in time that saved nine."

Felix Frankfurter arguably played a pivotal role in disseminating a particular history of the events of 1937. Reversing his own privately expressed position of dismay …

Know The Law: A History Of Legal Specialization, Michael S. Ariens

Faculty Articles

Legal specialization is an unexceptional aspect of the profession of law because specialization and concentration are expected of lawyers. There has been a transformation in lawyers’ understanding of the reasons justifying their position in society and, therefore, a transformation in their understanding of what it means to be a “professional.” The ideological reasons for this transformation include: (1) the influence of the ABA in promulgating and proselytizing specialization standards; (2) a continuing insistence by the legal profession of the importance of the idea of a unified bar; (3) the large increase in size and influence of the legal academy, consisting …

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …

Modern Legal Times: Making A Professional Legal Culture, Michael S. Ariens

Faculty Articles

Lawyers’ belief in their professionalism was fostered by the creation and development of modern legal institutions. Law schools, bar associations, organizations like the American Law Institute, as well as the system of legal directories, the regional case reporter system, and continuing legal education groups all contributed greatly to the making of a distinctly professional culture of law in America. These institutions prospered in part because of their ideological fit with the professionalizing ethos embodied in Christopher Columbus Langdell’s statement that “law is a science.”

Legal institutions, then, must be evaluated through the ideological lens which encouraged and fostered the notion …

Evidence Of Religion And The Religion Of Evidence, Michael S. Ariens

Faculty Articles

When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim. Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good. However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional. In light of this inherent difficulty of evidence of religion, …

The Law Of Evidence And The Idea Of Progress, Michael S. Ariens

Faculty Articles

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view. However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs. What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter.

Consideration of these aspects of evidence law …

Progress Is Our Only Product: Legal Reform And The Codification Of Evidence, Michael S. Ariens

Faculty Articles

Twentieth century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a "rational" resolution of disputes.

Morgan’s decision to emphasize the rational resolution of disputes …

On The Road Of Good Intentions: Justice Brennan And The Religion Clauses, Michael S. Ariens

Faculty Articles

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect …

Dutiful Justice (Book Review), Michael S. Ariens

Faculty Articles

Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditional biography of one of the most important public figures in the United States since the Civil War.

Although the author disclaims it, Honorable Justice is a defense of Holmes. Novick writes of some of Holmes’ faults, but too often Holmes’ human imperfections are defended as strengths. It appears that Novick was trying hard to defend Holmes from late twentieth century critiques. This defense of Holmes seems a misguided attempt to re(de)ify Holmes to a group of readers which will likely include a large proportion of skeptical, …

Just A Bigger Fish (Book Review), Michael S. Ariens

Faculty Articles

Shark Tank: Greed, Politics, and the Collapse of Finley, Kumble, One of America’s Largest Law Firms is a non-fiction potboiler written by Kim Isaac Eisler. The story is generally about the decline and fall of an institution instrumental to capitalism that prospered during much of the 1980s. In particular, it is about the decline and fall of men whose hubris and greed make the decline and fall so satisfying to read.

While it would be easy to dismiss the demise of Finley, Kumble, because it was not an old, established “white shoe” law firm, or to analogize it to the …

Suicidal Rights, Michael S. Ariens

Faculty Articles

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual.

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual …

The Politics Of Law (Teaching) (Book Review), Michael S. Ariens

Faculty Articles

The satiric novel, as a “message” novel, can provide unvarnished truths about the object of satire. Institutions of higher learning, particularly law schools, and the denizens of those institutions, are prime subjects for satire because they take themselves so seriously. Unfortunately, though, The Socratic Method by Michael Levin takes itself as seriously as the law school it is criticizing.

One of the hazards of the satiric novel is that the message may overwhelm the plot and characterization. Levin, in his zeal to awaken the reader to the torture of the law school, and particularly the torture of the law school …

A Uniform Rule Governing The Admission And Practice Of Attorneys Before United States District Courts, Michael S. Ariens

Faculty Articles

The increase in the interstate and international practice of law necessitates a review of the rules governing the admission of attorneys to practice before federal district courts. By virtue of the sweep of their jurisdictional net, federal district courts are likely to be the fora for litigating most interstate or international disputes. The present rules, based upon the antiquated notion that lawyers only rarely practice law in federal district court, and then only in the federal district court located in the state in which they practice, do not address this change in the practice of law.

For these reasons, a …

Mueller V. Allen: A Fairer Approach To The Establishment Clause, Michael S. Ariens

Faculty Articles

The decision upheld by the United States Supreme Court in Mueller v. Allen helds a new dawn in establishment clause jurisprudence. This five-to-four decision, written for the majority by Justice Rehnquist, upheld a Minnesota statute permitting taxpayers to deduct the tuition, textbook, transportation, and instructional material expenses of their children when calculating their state tax liability. By this decision, the Court has cleared the way for an accommodation between church and state that more equitably recognizes the principles and values that the religion clauses were intended to protect.

Following a review of the history of the establishment clause, tuition tax …