I had a funny recollection today of a conversation I had my third year of law school with one of my professors. We were discussing having children v. having a highly intense legal career. She said, in response to my question about whether you should put off having children, “Oh, that’s easy. One, you can only do for a little while; the other, you can do whenever.”
I nodded slowly. Finally, I asked: “Just to be clear, which one is which?”
“The kid is the one that you can only do for a while.” She didn’t even laugh at me.
Now that I have two kids under three, I can see exactly what she meant. I’m not sure I would have the energy to do it at 40!
One of the perks of my job is traveling to places that I wouldn’t otherwise get to go. I rarely discuss the arcane legal area that I primarily practice (antitrust) on my blog. It isn’t because I don’t like it–far from it, actually. It’s probably just that it consumes my workday . And because my husband is in the same field, it often subsumes large chunks of my home life too. And there are not that many of us who practice it, so it’s of limited interest. Plus, my lifelong struggle with ADD makes me eager to explore diverse things (hence my current caseload which also includes products liability, Civil rights, banking, creditor’s rights, etc…).
But, last September, I taught an antitrust class in Taiwan. Taiwan is feeling the repercussions of antitrust law for the first time on two fronts–through relatively new legislation in their own country and as the DOJ cracks down on foreign ODMs abroad. I’m excited that I get to participate in an emerging area of the law there, but it’s the weekend, so I’m going to save the law for later and just share some of my pictures of the beauty I’ve been so fortunate to be a part of there.
I am very excited about a new series that I’m beginning today: A Short History of Nearly Everything in American Law. This series is for anyone who’s interested in the topic. The language is simple on purpose: so that those of you with older children can share it with them. Unlike my regular posts, I’m not assuming any prior legal knowledge. I’ve got no agenda, political or otherwise. I just want to have some fun combining two of my favorite subjects. In many ways, the history of American law is the history of the American people. You can see what is important to different people in different places at different points in time. Fascinating!
I am leaning heavily on multiple books by Lawrence M. Friedman, as well as using other sources. Professor Friedman’s books are amazing to read for his literary talent, even apart from his excellent scholarship. I highly recommend them if you want more information. I will also try to include an “additional sources” section below each segment in this series for any works used beyond those of Friedman’s.
Let’s get started!
The Colonial Period of American Law
Defining the “Colonial Period”
The “Colonial period” refers to the 169 years between the founding of Jamestown and the Declaration of Independence. There is no such thing as a unified body of “colonial law;” after all, there was more than one colony and each colony developed its own legal history. Further, colonies didn’t have access to the reported decisions of the other colonies until after the Revolution; there simply wasn’t any type of legal record published or distributed before then.
Colonial law was not simply wholly imported from England. English law was undergoing rapid developments in this period and varied from place to place. At any point in time, each colony had a legal system that was made up of 1) the laws that the settlers remembered from England (which could be anything from national law to local customary laws), 2) laws that they developed to deal with the unique particulars of life in that colony (which were unknown to England), and 3) laws that were a product of the ideology of the colonists themselves–Puritans, for example, made laws to suit their religious beliefs.
At the time of independence, there were thirteen colonies, which became thirteen states. But before that, there were more than thirteen colonies. For instance, New Jersey was made by the fusion of East Jersey with West Jersey–two separate colonies. Further, the colonies originated and developed at different times and at different speeds.
By the time Georgia was getting started, Massachusetts was already well established. The laws of early Massachusetts are different than the laws of later Massachusetts and the laws of early Georgia are much different than the laws of Massachusetts at the same point in time. So too, the laws of bustling Boston were different than the laws of the tiny hamlets surrounding it. This is true even today; the ordinances of a small rural Kentucky town may vary quite sharply from a large New England city. (The South during the entire Colonial period was almost entirely rural).
The ideology of the colony impacted the laws; where the Puritans settled, the Puritan beliefs were a strong force in shaping the laws. The environment also impacted the laws. The soil and climate of the South favored certain crops, like tobacco, cotton and rice. Those crops led to a plantation economy with the laws necessary to support it.
In the 169 years of this period, there were families who rose to the elite status; ruling families emerged, oligarchies were established, and small groups held big powers. But, it was still a much more open society compared to the society in England. The ruling families in the colonies were often put in charge of governmental affairs by the King of England, paving the way for self-government. That means that the Revolution didn’t cause a massive legal crisis in the day to day business of the colonies; the colonists had been essentially practicing their own law and government for a long time.It’s not that they didn’t know that they were English, and subject to England. They were jealous of their own self-rule.
The Child Remonstrance, in Massachusetts Bay (1646), illustrates the point. Dr. Child attacked the ruling circles of the colony in writing and called for a return to the “Fundamentall and wholesome Lawes” of England. He pointed to the large gap between the laws of England and the laws of Massachusetts Bay. The colony tried to keep Child’s writings from reaching England. John Cotton supposedly warned a shipmaster not to “carry any Writings” that were “complaints against the people of God”; it would be “as Jonas in the ship,” he said. If “storms did arise,” the master should “search if they had not in any chest or trunk any such Jonas aboard”; any such writings should be thrown to the boiling sea.
The colony did not rely on the storm gods alone; it also argued, in England, that its charter precluded appeals from the colony to London. By this time, it was already clear that there was a problem to be resolved: what was the exact relationship between center and periphery, between London and the colonies? It was also clear that the colonies would resist encroachments from London. England never had a clear policy mapped out for the rule of the colonies.
When Colonials Become the Colonizers
Just as English people colonized the colonies, the colonies themselves colonized the rest of what is now the US and Canada. The land was full of native tribes, which yielded complex and varied interactions. Treatment of Native populations by the colonists changed throughout the period. At the beginning, the native populations were often treated as equals; however, treatment became harsher as time wore on.
These things are important to keep in mind as we go forward and look at the legal system in colonial times. Up next is Part 2: The Colonial Courts.
1. George L. Haskins, Law and Authority in Early Massachusetts (1966), p. 4ff (Friedman notes Haskins’ mistakes in scholarship).
2. Goebel, Julius, Jr. “King’s Law and Local Custom in Seventeenth-Century New England,: 31 Col. L. Rev. 416 (1931).
3. Allen, David Grayson. “In English Ways: The Movement of Societies and the Transferal of English Local Law and Custom in Massachusetts Bay in the Seventeenth Century.” (1981). p. 20.
4. The Laws and Liberties of Massachusetts (1648).
The Law School Admission Council has agreed to pay more than $8 million to settle allegations brought by the DOJ and California’s Department of Fair Employment and Housing that the council failed to properly accommodate disabled test takers in accordance with the Americans with Disabilities Act.
The suit alleged that LSAC routinely denied testing accommodation requests, even in cases where applicants had a permanent physical disability or submitted extensive supporting documentation. The law school test takers’ disabilities included attention deficit disorder, visual impairment, dyslexia, a severe shoulder injury and paralysis, according to the suit. Most asked for extra time to complete the test, while others requested a large table on which to write, a computer or a scribe, the complaint said.
The settlement calls for LSAC to pay a total of $8.73 million in damages and penalties, of which $6.73 million will be equally distributed to an estimated 6,300 individuals nationwide who applied for testing accommodations on the Law School Admission Test over the past five years, court filings said. LSAC didn’t admit any wrongdoing under the agreement and continues to deny the plaintiffs’ allegations, according to court documents.
LSAC said in a statement that it had agreed to resolve the suit in order to avoid prolonged litigation.
In addition to requiring a $6.73 million payment into a settlement account, the agreement calls for LSAC to pay a $55,000 civil penalty and compensatory damages of $585,000 to DFEH; $225,000 to the federal government; and a total of $135,000 to the three test takers. LSAC has also agreed to pay $900,000 in attorneys’ fees to the DFEH and $100,000 to the test-takers’ attorneys at the Legal Aid Society-Employment Law Center, according to court documents.
The case is The Department of Fair Employment and Housing v. Law School Admission Council Inc., case number 3:12-cv-01830, in the U.S. District Court for the Northern District of California.
The Law School Tuition Bubble blawg has some updated data on the oversupply of attorneys updated by state (found here).
Arkansas appears to fall on the higher side of the spectrum. The data in this study is from 2011. It would be interesting to see the data from 2012, but the comparisons from 2009-2011 show a rather dismal trend.
In the Southeast region, there are approximately 1.92 grads for each legal job available. Arkansas ranks higher (24 overall) with an overproduction ratio of 2.07. It’s no secret that the legal job market is tough right now. Many people have raised the question of whether Arkansas should have two law schools. Obviously, that’s a heated debate.