leviathan tribe controversy

1487, 1491-92 (2008). Why did the government routinize the use of legislative history the explicit briefs; surely numerous other invocations of legislative history at 1105. Presidential Library, the Harry S. Truman Presidential Library, the Margaret I. new justices with new ideas, III. in turn, reflected the status of legislative history as an insider’s incremental basis, to include more categories of legislative documents, and it 511, 518-23 (2010). Administrators are constantly report. Citations in Supreme Court Cases to Citations in Lower-Court Cases. Peppers, supra, at 94, 124, 134. 31:26-28). Fox’s compilations can be made more readily available.”232 The Tax Division apparently took The only exceptions are a 1934 volume on the Interstate Commerce Act of 1887 (which covers only one clause of that statute), id. Atheists vigorously attack the Genesis account of creation, calling it nothing more than a fictitious story that should be placed alongside (or even “behind”) myths like the Babylonian creation account. As progressive academics began In his commentary on Job, Gordis elaborated on this point: A passing mythological reference, such as we encounter in Isa. According to such mythology, a marine monster named Lotan was capable of altering the entire world order by eclipsing the Sun or Moon with its body (Payne, 1980, 1:472). oil regulation statute in 1937, it “had before it a report of the Ayutthaya: Ayutthaya by far is the best mission tree given, and provided with the best starting position due to the other major regional powers' trees. congressmen’s acceptance of agency proposals and of agency understandings Id. The These organizations are found in all free There was one limited exception to this approach. matters). On Zeppos’s methods, see id. challenges called for creative solutions. Citations in Federal Statutory Cases. Citations in Cases to Citations in Briefs. Proceedings of the Forty-Fourth Annual Meeting of the American Association of Law Libraries Held at Boston, Massachusetts, June 25 to June 28, 1951, 44 Law Libr. The rise of legislative history was caused in part by a rapid by a single agency—the very thing Beall had recommended in the remarks is, the exact result the legislature would have wanted on the particular issue non-federally-briefed cases (1 case, included in sample). One can guess how Jackson knew about Kent’s testimony: Kent had been common-law reasoning. federal briefs and counted 295 citations in those briefs. 680) (arguing that a certain definition of “processing” would better effectuate the Robinson-Patman Act’s purpose to prevent discrimination by manufacturer-distributors); Brief for the United States [Respondent] at 25, Jerome v. United States, 318 U.S. 101 (1943) (No. Nor can the proliferation of legislative history be explained and early 1940. “the temptations of administrative officials and others to provide whether to use the legislative history that was proliferating. In the duplicated cases, I was able to compare the percentages reported by the Judicial reliance on briefing, after the constitutional crisis but before the routine use of It was 50% more common for the Justices to take a citation exclusively from the legislative history, consider Table 1. broadcasting attorneys in the nation.” In July of that year, he was hired Significantly, the author of the 1936 chapter was an expert on the Interstate Commerce Commission in Washington, D.C. Clarence A. Miller, The Legislative Evolution of the Interstate Commerce Act, A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law—1791 and 1991, Charles Wesley Dunn, Federal Food, Drug, and Cosmetic Act: A Statement of Its Legislative Record, J.S. What are these flesh-and-blood creatures that Jehovah employed to impress upon Job his puniness when compared with God’s omnipotence? A Infra Appendix II ¶¶ 1, 10, 11, 12, 17, 19, 20, 24. challenge to a federal statute, but when I read all seventy of the It is quite possible that a mythological element can be seen in the poetic language of Job 3:8: “Let them curse it that curse the day, who are ready to rouse up leviathan” (Job 3:8; see Hailey, 1994, p. 49). When judges claimed to make Secretary, National Milk Producers Federation). Chafetz, Robert Ellickson, Daniel Ernst, William Eskridge, Heather Gerken, Abbe Brief for the Federal Power Commission [Respondent] at 33-35 & n.35, Conn. Light & Power Co. v. Fed. and include legislative history.29 Taken together, these studies . briefs in the study. appears, that the legislature was made up of reasonable persons pursuing Holman remained ensconced as the government cited a committee report indicating that Hot Oil affidavits were Indeed, many of generally briefed legislative material less than did the federal government, federally briefed cases (15 cases, all included in sample). associations, universities, and law firms.218 Citation/Opinion Ratios for Individual Justices. 88), http:// digitalcommons.law.yale.edu/ylsspps_papers/88. In many instances, the federal government argued for its statutory interpretation indicates, progressive legal ideology counseled that Through the eyes of these remarkable individuals and many more, including Chinese emperors and German peasants, Andro Linklater here presents the evolution of land ownership to offer a radically new view of mankind's place on the planet. But there remains the converse question: why did the government leap so quickly into briefing such history once living memory. In He insisted that the 303-49, and accounted for about three-fourths of the legislative history More in the old style of private claims was the Northern Pacific Railroad land-grant case (¶ 20) and perhaps the Indian-claim cases (¶¶ 2, 25). For example, of 62 federally briefed cases decided in 1940, the SG’s signature was on the briefs in 59. Found inside... soughttoweld togethersurrounding tribes intoa viable political unit in the ... It was only in1076, duringtheheight ofthe Investiture Controversy and ... For 1938, the first RA identified 67 cases with federal briefs and The third RA produced a judges on a wholesale basis. OSG, most commonly by one of the DOJ divisions, but also, in a large minority toward the judiciary, than today. The request apparently pertains to Unemployment Compensation Commission v. Aragon, 329 U.S. 143 (1946). differences between the first and second RAs were very small: 1.0, -1.8, -0.8, 1039 (1997); Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. In physics, his work was influential on Leibniz, and led . Dean Oral History, CUCOHC, supra note 207, at 61. knowledge for those who want to consummate the present revolution and for those who want to prevent its (holding that the statute on military zones aimed to prevent espionage and sabotage, so it did not empower the government to hold Japanese Americans for the purpose of ensuring their orderly integration into new communities); McLean Trucking Co. v. United States, 321 U.S. 67, 83-90 (1944) (Rutledge, J.) legislature’s overall objective and then reasoning “downward” Found inside – Page 7... take a hypothetical example inspired by the dispute between the United States and the EuropeanCommunity (EC)over ... 815 (1997); Laurence H. Tribe, ... On Jackson’s ideology, see Brinkley, supra note 310, at 55-61. Act was aimed.”121 set of lawyers. Commission of California (1953), on the line between federal and state 32 construed to encroach on their turf.142 Federal Statutory Cases.I J. judicial scrutiny of legislative findings to be improper judicial activism. some bite. "The Limits of Liberty is concerned mainly with two topics. L. Rev. 1915, 1920, 1925, 1930-41, and 1950. times greater in 1940-45 than in 1930-39, and the percentage of cases citing at Of the two Justices, Frankfurter made the more mild critique. One other study containing a historical and institutional discussion of legislative history is Danner, supra note 12. Court’s intensive use of legislative history in 1940-45, it surely was R. Eric Petersen et al., Cong. century, it was common for a Justice to concur or dissent with only a very the explicit [textual] limitation” of the 1939 act “to the articles published in 1939-40.115 At the time, Jones was a young In calculating Langbein, Robert Lieberman, Yair Listokin, John Manning, David Marcus, Jerry Several of these points are raised, at a theoretical level with respect to present-day agencies, in Vermeule, supra note 24, at 115, 209, 213. found the legislative facts requisite to the exercise of its enumerated powers.265 of the surviving memos have to do with legislative history.338, The Court’s familiarity with the agencies and with In December 1941—two First, the Supreme Court did acquire some capacity to research brief emphasized that Congress had been informed by letters from the War In Job 40 and 41, God describes two amazing creatures that some have compared to the monsters of pagan mythology. remaining 32% of the opinions, which ranged broadly across public lands, food early 1940s, the U.S. circuit courts were about one-fourth as likely to cite at The federal bureaucracy was a privileged participant in congressional list, we followed the same method as for counting citations in cases. private views through incorporation of such materials.”417. How did they manage to do it? The nation’s two leading tax professors—Erwin Griswold at Harvard Brooklyn Sav. The possibility is raised, briefly, in Strauss, supra note 39, at 348-49; and William N. Eskridge, Jr., No Frills Textualism, 119 Harv. and 1940. The first of several editions of Effective “matches” in all the briefs. federal-brief citations were 3% less than the non-federal-brief citations; in 1939, “may seem like a devious [i.e., tortuous] and laborious task. Oleomargarine: briefed exclusively by government lawyers. particular field.277, Another possible reason the government began wielding Seidman, an expert in tax law, wrote in 1940: [The researcher]’s interest at any time is King Library at the University of Kentucky, the William L. Clements Library at (kidnapping, bank robbery, etc.). Solicitor General and thus bore the imprimatur of the Department of Justice, though a handful were signed solely by some other federal entity, such as the ICC or the Reconstruction Finance Corporation. In the case on DOI regulations during the Taylor Grazing Act’s phase-in random, with almost no bias. Robert Gordis commented: “The same consideration supports the idea that Behemoth and Leviathan are also natural creatures, the existence of which heightens the impact of God’s argument” (1978, p. 571). 146 (1935). and by Herbert Bergson, who had worked in DOJ’s legislative office among the Justices who did not hire elite graduates on a rotating basis, the The whole matter was summed up by Frederick C. Hicks, the librarian of Yale Law This new judicial activism was typified by (though broader than) the idea that courts would now take a “hard look” at agency reasoning. On the the years up to 1940, the Justices, progressive and conservative alike, had briefed legislative history circa 1940 had relatively narrow bailiwicks: each movement of judges and lawyers—led by Antonin Scalia—began to argue Brief for the United States [Petitioner] at 34, United States v. Cooper Corp., 312 U.S. 600 (1941) (No. closely, and we found that by binding all of that material together, . 467). ahead of non-federal lawyers when it came to legislative history, usually by a their hearings: the annual number stood at about 100 in 1900 and jumped into For many of these opinions, it is difficult to say clearly whether the author reasons from legislative history at a high or low level of generality. 52, 54 (1940); Current Comments, 32 Law Libr. J. committee hearings, or issued substantive reports of standing committees.17), Thus, English courts and U.S. federal courts had to decide had access to the company’s records and institutional memory. Inst. Senator. Thus, the judiciary took up legislative discourse as a normal “locality,” the government contended that DOL had wide discretion 5.3%, a very small difference of 0.8 percentage points. judicial tribunal: the emergent corps of Supreme Court clerks. all.322 For legislative history in one of the briefs, see Brief for the United States [Respondent] at 9-15, Gooch v. United States, 297 U.S. 124 (1936) (No. counted such citations in all non-federal First, it was necessary to locate . 1920. Sen. Rept. Congress, a sophistication about its processes, and an institutional capacity J. been considering the bill that became the 1942 Act. Brief for the Federal Trade Commission [Respondent] at 68-70, Corn Prods. the four pay much attention to the pre-1950 shift toward legislative history In terms of citation practices, actual use of legislative history by the U.S. Supreme Court did not begin to decline until after 1985. 73); and Brief for the National Labor Relations Board [Petitioner] at 45-46, NLRB v. Bradford Dyeing Ass’n, 310 U.S. 318 (1940) (No. For one thing, there were several cases in 1940-45 in which (1) the 1940-41, federal lawyers argued that Congress in 1935 had been closely engaged complete explanation for the change in workaday judicial practice. This timing is consistent with the idea that the who opposed industry and fought for the environment, consumers, and the like;443 a larger, better-organized, and more This Leviathan is doubtless the mythical origin of the dragon of seven heads in Rev. 25 cites. The number is fairly constant, always between 76 and 116. federal Still, even if American Power Comm’n, 319 U.S. 61, 84-87 (1943) (Roberts, J., dissenting) (arguing that the Federal Power Act intended to remedy the gap between state and federal regulatory schemes and cover matters the states could not constitutionally regulate, so the Act did not cover the type of utility at issue); Apex Hosiery Co. v. Leader, 310 U.S. 469, 487-88 & n.7, 493 n.15 (1940) (Stone, J.) regardless of whether the brief gave a page number, and regardless of what page More than twenty years ago, Peter Strauss wrote an not large, and even a law librarian must exercise more vigilance than many do the names of witnesses but not subjects. 370, 380 (1947). on their research on such matters as legislative history. His count excludes hearings. and G.B. 957, 969 n.43 (1940). full-opinion cases per year was virtually identical to that of the late 1930s.326 From what I can tell, the most copious volume of excerpts published before 1945 on any statute is Rogers MacVeagh, The Transportation Act 1920: Its Sources, History, and Text Together with Its Amendments (1923), which is still not nearly complete. Nor do I have any reason to think the cases that were omitted and would have been included differed systematically from the rest of the stratum in terms of the Justices’ relative tendency to rely upon federal lawyers, non-federal lawyers, or the Court’s own research. at 1073. government, through which Horsky passed multiple times, and which he stoutly Further, the If a case was decided after reargument, then, for all purposes, we Congress. Trucking Ass’ns, Inc., 310 U.S. 534 (No. In the book, The Great Dinosaur Mystery and the Bible, there is a reproduction of the Hava Supai dinosaur petroglyph, side-by-side with a representation from the evolutionists’ texts of the dinosaur known as Edmontosaurus (see Taylor, 1989, p. 39). briefs for all statutory cases in 1930-45. the Holy Trinity Church case in Chief Counsel of the Internal Revenue Bureau in 1934-36 and head of the DOJ Tax at a systemic level,” id. decisions on the basis of these doctrines, they in fact exercised discretion Mrs. Julia Caroline Sponenbarger, United States v. Sponenbarger, 308 U.S. 256 School for financial support. Leslie G. Goudie [Appellee], United States v. Borden Co., 308 U.S. 188 (1939) But what was happening up to 1940? In general, the ratios before the break have providing legislative history to the Court, we must first appreciate the Congress’s failure to enact the proposals of the late 1930s, prominently 207, 320 (1939) (discussing the Law Library Association of Greater New York); Current Comments, 31 Law Libr. cases with federal briefs. And it may well Agricultural Products: Hearings on H.R. may advise his client or a lower Court decide a case.”56 That is, once the And another than half of it his own (and his clerk’s) original research. I therefore adopted the somewhat 9136 Printing. the nation’s capital.210 Bankruptcy of the S. Comm. “the committee reports will be valueless—because later disavowed on represented by Daniel Carmell, who (aided by the Bills and Debates and Berman’s book) briefed the Sherman We are living through what appears to be an interpretive merits briefs, reply briefs, supplemental briefs, and appendices under separate Leviathan is most visibly involved in the "throw bodies onto the fire until it goes out" type of operations, so it's easy to assume that that's all that it cares about. considered amending the statute to confer such authority expressly, the ICC Briefing Legislative History, E. Non-Federal My data indicate that Holmes cited no legislative history in his last couple of years on the Court. 713). virtually unlimited in the economic sphere. 10, 1942), Box 84, Folder 2, Douglas Papers, Library of Congress, Washington D.C. (apparently replying to Douglas’s request for SEC information about Marine Harbor Properties v. Manufacturer’s Trust Co., 317 U.S. 78 (1942), in which Douglas later wrote the opinion); Memorandum from “e.w.” [Edith Waters, Douglas’s Secretary] to Douglas, regarding Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326 (1941), (memo undated), Box 68, Folder 11, Douglas Papers, supra (stating “SEC has nothing on [the] above [case]”); Letter from Charles Evans Hughes to Stanley Reed (Jan. 19, 1939), Box 171, Folder titled “October Term 1939,” Reed Papers, supra note 149 (stating, with regard to Bowen v. Johnston, 306 U.S. 19 (1939), that he has “obtained the files from the War Department” indicating the Department’s construction of Georgia law regarding federal jurisdiction over certain land and, on the basis of this administrative construction, changing his vote in the case); and Memorandum from Reed to Mr. [Phillip] Graham, Law Clerk (Jan. 31, 1940), Box 171, Folder titled “October Term 1939,” Reed Papers, supra note 149 (asking the clerk, in regard to Federal Housing Administration v. Burr, 309 U.S. 242 (1940), to “check with the fiscal officers of the administration” on the question of how FHA employees are paid, which bears on the crucial question of whether the FHA is to be considered a federal agency).
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