Inspired (and how) by a post up at Crime & Federalism, which is at
http://federalism.typepad.com if you can't just follow my blogroll link, I wanted to write about the Cases that Get You.
Everyone hears about a case sometime or other. Even if you've never cared a whit about the law, something has reached up and grabbed you by the throat (or heart, or mind) and shaken you. "My Lord, they don't really believe that's the right decision," you think. Or, "Wow... I'm so amazed that the Justices actually came out and got that one right, and in such stirring language, too."
Those of who have gone (will go, are in) law school tend to have a few of these. The Good, the Bad, and the Ugly.
Let's leave aside the Good for now, and talk about Bad and Ugly. The wrong decisions, the poor reasoning.
One need not look high up to see bad reasoning; it is on display every day of the year, in one courtroom or another, by lawyers or by judges or by individuals. It's on t.v. But sometimes it comes out of the Supreme Court, the highest court in the land and the one which is "Not final because we are infallible; but we are infallible only because we are final" in the words of Robert H. Jackson, see
http://en.wikipedia.org/wiki/Robert_H._Jackson and the main page at
http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States.
So: here's what Mike posted:
Seminal Opinion:
Was there a particular case — a Seminal Opinion — that strongly influenced your attitude toward the legal system or the legal profession, or that helped you decide the role you wanted to play within the profession? Did one majority or dissenting opinion plant seeds from which your lawyer psyche grew? If so, what was it and what difference has it made in your professional goals or practice?
quoting
David Giacalone of Harvard in a post which was
picked up by Prawfsblawg.
And I answered at length, as follows:
Seminal? Twig-bending? (as the twig is bent, so grows the branch)
I hated Wickard, but there were so _many_ I hated. Scalia's ED v Smith, as noted, the "peyote" case, got it wrong where it counted. O'Connor in the gravesite case, Lyng v. Northwest Indian CPA, same criticism: my God that was badly decided.
The Reynolds case which is still binding law as to marriage is interesting, too; the Supreme Court in 1878 laid down what remains the Law of the Land on marriage as one's conscience and religion dictates, by addressing much the same question as ED v. Smith, which is why that case is only half wrong (right on the precedent, awful on the reasoning and decision to apply that precedent): "whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land." See 98 U.S. 145.
The one where the jurors are partying, Tanner v. U.S., 483 US 107 (1987), but because it's not an "extrinsic influence" (wrong, doubly wrong) there's no way to bring in the "not relevant" evidence of the massive, inconceivably awful due process violation presented by drugged, high, felony-drug-weight-selling jurors. This is my least favorite rule ever, Rule 606(b); Mike, I promised I'd cover some of that kind of thing. "Substantial policy considerations" my ASS. That decision makes me very angry, to this day.
One of the worst decisions ever: Johnson and Graham's Lessee v. M'Intosh, one of the famed Marshall trilogy which demolished Indian rights in their own land, by judicial approval of legislative and executive and private theft. In M'Intosh, aka McIntosh, reported at 8 Wheat. 543, the Court decided that since Indians cannot hold absolute rights in land (!) that when the government allowed them to have any rights in the property they lived on, it was a life tenancy only; when they attempted to sell their land for money to another white man, but the government had sold the same land later to a different white man, title derived from the Native American grant was no good. Amazing outcome, uplifting language, despicable language. It burns me, even at this great distance of 182 years.
I meant to write "amazing outcome, uplifting and lofty language, startling outcome, despicable reasoning." But close enough, I was in rant mode.
So, M'Intosh has been on the books for over 180 years, since March of 1823.
What's your least favorite long-standing rule?
I also listed some of my least favorite cases (the Bad, and the Ugly) above. Do you have a most-hated, a Best of the Worst outcome or rule?
