| Book Reviews |

The Body of John Merryman: through their state, Lincoln replied: not give the Supreme Court original ju- Abraham Lincoln and the Sus- risdiction to issue writs of habeas cor- pension of Habeas Corpus I must have troops to defend this pus, but section 14 of the Judiciary Act Capital. Geographically it lies sur- of 1789 gave this power to both indi- By Brian McGinty rounded by the soil of Maryland; vidual justices and district court judges; Harvard University Press, Cambridge, MA, and mathematically the neces- therefore, in either event, Taney was 2011. 253 pages, $29.95 sity exists that they should come acting legally when he ordered General over her territory. Our men are George Cadwalader, the military com- Abraham Lincoln and Treason in not moles, and can’t dig under mander of Fort McHenry, to “have the the Civil War: The Trials of John the earth; they are not birds, and body of John Merryman” brought to his Merryman can’t fly through the air. There is courtroom. no way but to march across, and Cadwalader declined Taney’s order, By Jonathan W. White that they must do. But in doing citing President Lincoln’s suspension of Louisiana State University Press, Baton Rouge, this there is no need of collision. the writ of habeas corpus as his justi- LA, 2011. 191 pages, $49.95 (cloth), $18.95 Keep your rowdies in Baltimore, fication. For, on April 27, Lincoln had (paper) and there will be no bloodshed. written to General Winfield Scott: “If Go home and tell your people at any point or in the vicinity of the Re v i e w e d b y He n r y Co h e n that if they will not attack us, we military line” between Philadelphia and will not attack them; but if they Washington, “you find resistance which On April 12, 1861, the South fired on do attack us, we will return it, renders it necessary to suspend the writ Fort Sumter and the Civil War began. and that severely. of Habeas Corpus for the public safety, On April 15, President Lincoln issued a you ... are authorized to suspend the proclamation calling for 75,000 state mi- Following the Pratt Street riot, state writ.” In response to Cadwalader’s dis- litiamen and summoning a special ses- authorities ordered members of the obedience, Taney issued a writ of at- sion of Congress for July 4. Two days Baltimore police and Maryland militia tachment, citing Cadwalader for con- later, Virginia seceded from the Union, to burn railroad bridges north of Bal- tempt of court. A marshal brought the putting Washington, D.C., in danger timore to prevent additional Union writ to Fort McHenry, but he was not and making it imperative that Maryland troops from passing through the city. admitted and Cadwalader would not not secede and cause the capital to be On April 23, John Merryman, a wealthy appear to be served with it. On May 28, surrounded by enemies. Militiamen Baltimore County farmer, slaveholder, the day Taney had specified for return from Massachusetts and Pennsylvania and first lieutenant in the Baltimore of the writ, the federal courtroom was started to stream into Maryland on their County Horse Guards (which was at- jammed, as a crowd estimated to be way to Washington. On April 19, they tached to the Maryland militia), burned as large as 2,000 formed on the street. arrived by railroad at Baltimore’s Presi- at least six bridges. A month later, on Taney read from a written memoran- dent Street Station (today the site of a May 25, at 2 a.m., a Union military dum he had prepared, stating that, un- Civil War museum). There the railroad force entered Merryman’s home, ar- der the Constitution, the President had cars had to be detached and pulled by rested him, and imprisoned him in Fort no power to suspend the writ of ha- horses for more than a mile west on McHenry in the Baltimore harbor. Fort beas corpus. He followed up his state- Pratt Street to be hooked to a locomo- McHenry, today an attractive tourist ment with a written opinion known as tive at the Camden Street Station (still site, was the birthplace, during the War Ex parte Merryman. a railroad station) to proceed to Wash- of 1812, of the poem that became “The Article I, section 9 of the Constitu- ington. Star Spangled Banner.” tion provides, “The Privilege of the Although Maryland had not seceded And now to the legal part of our sto- Writ of Habeas Corpus shall not be (and did not secede), it was a slave ry. Through his lawyers, Merryman pe- suspended, unless when in Cases of state, and much of its population was titioned Chief Justice Roger B. Taney, Rebellion or Invasion the public Safety sympathetic to the Confederacy. On a fellow Marylander and author of the may require it.” Taney, of course, did April 19, an angry mob of some 10,000 Dred Scott decision, for a writ of ha- not deny that the Civil War constituted men attacked the railroad cars as they beas corpus. Federal law in those days a rebellion, but he found that the pow- carried the troops on Pratt Street. The required Supreme Court justices to ride er to suspend the writ belonged solely soldiers got out and started to march. circuit, and historians to this day de- to Congress. Article I, he observed, “is Some of the rioters fired pistols at the bate whether Taney’s role in the Merry- devoted to the Legislative Department soldiers, and the soldiers shot back. man case was as a circuit judge for the of the United States, and has not the Four soldiers and 12 civilians fell dead, District of Maryland or as a Supreme slightest reference to the Executive De- and dozens more were wounded. Court justice in chambers. The differ- partment.” But that is not true. Article Three days later, when a group from ence this makes is uncertain, but both I, section 9 has several limitations on Baltimore called at the White House to books under review discuss the ques- executive power, including the provi- demand that he forbid troops to pass tion. Article III of the Constitution does sion that “No Money shall be drawn

62 | The Federal Lawyer | April 2012 from the Treasury, but in Consequence whenever, in his judgment, the public on May 11, 1866, allowing federal of- of Appropriations made by Law.” This safety may require it, is authorized to ficials and military officers to sue state is only one of a number of legal prob- suspend the privilege of the writ of ha- judges who refused to remove their lems with Taney’s opinion that Brian beas corpus in any case throughout the cases to federal court. McGinty ably discusses in The Body of United States, or any part thereof.” But, The two books under review cover John Merryman. McGinty does so by if Lincoln already had this power, then much of the same ground, but they also examining the writings of such legal this statute actually limited his power, contain much that is different. The his- scholars of the time as Reverdy John- because it provided that the secretary tory that this review has narrated thus son, Joel Parker, and Horace Binney. of state and the secretary of war shall far has been drawn from both books, But whether Taney was right or wrong, give federal judges a list of all prison- but more heavily from McGinty’s, be- Lincoln suspended habeas corpus sev- ers detained without the benefit of ha- cause McGinty is especially cogent eral times after Taney issued his opin- beas corpus, and, “in all cases where on the legal issues on which this re- ion in Ex parte Merryman. McGinty a grand jury ... has terminated its ses- view has focused. But White discusses quotes Clinton Rossiter: “The one great sion without finding an indictment ... the 1863 act in more depth than does precedent is what Lincoln did, not what against any such person, it shall be the McGinty, and White includes more his- Taney said.” duty of the judge of said court forth- torical detail than does McGinty. (Not In his July 4, 1861, written address with to make an order” discharging the surprisingly, McGinty is a lawyer and to Congress, Lincoln defended his sus- prisoner, provided the prisoner takes White is a historian.) White “remind[s] pension of habeas corpus, asking, “are “an oath of allegiance to the Govern- legal scholars to delve more deeply all the laws, but one, to go unexecuted, ment of the United States, and to sup- into unpublished case materials and to and the government itself go to pieces, port the Constitution thereof; and that rely on more than the published court lest that one be violated?” Congress he or she will not hereafter in any way reports,” and, in Abraham Lincoln and had been out of session when Lincoln encourage or give aid and comfort to Treason in the Civil War, he reproduces suspended habeas corpus. Because the present rebellion. ...” a previously unpublished letter by John the power to suspend, Lincoln argued, As Jonathan White observes in Merryman that he discovered. In the “was plainly made for a dangerous Abraham Lincoln and Treason in the letter, Merryman claimed that his moti- emergency, it cannot be believed the Civil War, this provision of the 1863 vation for burning the railroad bridges framers of the instrument intended, act made suspension of habeas corpus was to protect the city of Baltimore that in every case, the danger should “practically worthless. It is little won- from harm that would result should run its course, until Congress could be der, then, that Lincoln disregarded it,” Union troops again enter the city and called together; the very assembling as he had disregarded Taney’s opinion face “opposition.” (He did not add “in of which might be prevented, as was in Ex parte Merryman. According to the form of violent pro-Confederate intended in this case, by the rebel- White, “Lincoln had a war to fight and mobs.”) Furthermore, Merryman wrote, lion.” In any case, even though Lincoln a nation to save and he would not al- if such harm had occurred, “would not believed that what he had done was low himself or his administration to be the N.C. Railway have been injured, to constitutional, he left the question of hamstrung by another branch’s inter- a greater extent, than by stopping its “[w]hether there shall be any legislation pretation of the suspension clause”— opperations [sic], for a few weeks?” So, upon the subject ... entirely to the bet- be it the judicial branch or the legisla- he was doing the railway a favor by ter judgment of Congress.” tive branch. burning its bridges. Congress accepted Lincoln’s invita- The 1863 act also dealt with the White notes that it has been estimat- tion and passed a statute, which Lin- problem of civil suits and criminal ed that at least 14,000 civilians were coln signed into law on August 6, 1861. prosecutions of federal officials who arrested by Union military authorities It provided that “all the acts, proclama- arrested people and denied them ha- during the Civil War. Lincoln claimed tions, and orders of the President of beas corpus. It allowed defendants that his concern was “for prevention, the United States, after the [day Lincoln to have their cases removed to fed- and not for punishment—as injunc- took office], respecting the army and eral court, and it made “any order of tions to stay injury, as proceedings to navy of the United States, and calling the President, or under his authority, keep the peace. ...” White finds this out or relating to the militia or volun- made at any time during the existence claim to be, “at best, disingenuous,” as teers from the States, are hereby ap- of the present rebellion ... a defence many of these civilians were prosecut- proved and in all aspects legalized and in all courts to any action or prosecu- ed by military commissions and sen- made valid. ...” This measure did not tion, civil or criminal ... for any search, tenced “to hard labor or prison terms mention the suspension of habeas cor- seizure, arrest, or imprisonment, made fixed for years (and not the duration pus but was broad enough to include ... under and by virtue of such order. of the conflict),” and these sentences it. ...” Some state judges, particularly in “were punishments, pure and simple.” A year and a half later, Congress Kentucky, which, like Maryland, was a In addition, some of the activities for enacted a more specific statute, which slave state that did not secede, refused which civilians were prosecuted and Lincoln signed on March 3, 1863. It to remove these cases to federal court. convicted were far less serious than provided that “during the present rebel- In response, Congress enacted a statute lion, the President of the United States, that President Andrew Johnson signed reviews continued on page 64

April 2012 | The Federal Lawyer | 63 reviews continued from page 63 burning bridges and perhaps should Keeping Faith with the Constitu- The theme identified in the intro- have been deemed protected by the tion duction is not carried forward in sub- First Amendment. sequent chapters, which are devoted By Goodwin Liu, Pamela S. Karlan, and White discusses in some depth the primarily to judicial interpretations. Christopher H. Schroeder. Baltimore riots, Merryman’s life before As the authors state, “We focus on the and after his arrest, Lincoln’s pardons Oxford University Press, New York, NY, 2010. role of the Supreme Court in the de- of traitors, the politics underlying en- 248 pages, $2l.95. velopment of constitutional meaning actment of the 1863 act, Merryman’s over across a variety of areas.” They financial connection to the railroad do, however, point to court decisions Re v i e w e d b y Lo u i s Fi s h e r whose bridges he had burned (“He may that have undermined individual rights: have,” White writes, “burned more than The intent of this book is implicit in “The Supreme Court’s proslavery deci- just physical bridges in April 1861”), its title: to show how to keep faith with sions purporting to resolve the issue Merryman’s convoluted connections to the U.S. Constitution. The purpose of only inflamed it further.” The authors Secretary of War Simon Cameron, and, interpreting the Constitution is not to also discuss the congressional initiative perhaps most significantly, lawsuits discover the original intent of the fram- in 1875 that gave African-Americans against federal officials who made the ers or to be guided by what some call equal access to public accommoda- arrests that Lincoln and his subordi- strict construction. Rather, interpreta- tions, only to have the Court declare nates had ordered. tion “requires adaptation of its text the provision unconstitutional in the White notes that this was “an era and principles to the conditions and Civil Rights Cases, 109 U.S. 3 (1883). before the legal concept of qualified challenges faced by successive genera- For some reason, the authors claim that immunity had been developed,” and tions.” For the book’s three authors, “the Constitution in 1789 made clear that “hostile judges and juries could the term “constitutional fidelity” repre- that the national government is one of make decisions and render verdicts sents the interpretation of words and enumerated powers.” Of course, that that might alter the trajectory of the principles “in ways that preserve the is only partially true. As Madison and war and reconstruction.” According to Constitution’s meaning and democrat- others argued, government must have White, “Suspected traitors in the North ic legitimacy over time.” They regard access not only to powers expressly began filing lawsuits against Union of- original understanding as an impor- stated but also to implied powers that ficials very early in the war.” Merryman tant source of constitutional meaning, can be reasonably drawn from enumer- himself sued General Cadwalader for “but so too are the other sources that ated powers. All three branches have a $50,000 in damages for wrongful arrest. judges, elected officials, and everyday number of implied powers. For the ju- “We can now see,” White writes, “that citizens regularly invoke: the text of the diciary, a major power is that of judicial the ‘civil liberties’ problem was only Constitution, its purpose and structure, review, which is not enumerated in the one side of the habeas corpus issue.” the lessons of precedent and historical Constitution but is certainly implied. On the other side, government officials experience, the practical consequences The authors acknowledge that “non- and military officers feared financial of legal rules, and the evolving norms judicial actors” have acted on their best ruin and criminal prosecution for the and traditions of our society.” understanding in promoting broad con- actions that they had taken on behalf The passage just quoted recognizes stitutional principles but add that “the of the government. that not only judges, but also elected judiciary has a special role in our sys- So, which book should you read? officials and private citizens, participate tem with respect to constitutional inter- Both, ideally. Both are well written in interpreting the Constitution, and pretation, even though the Constitution and, excluding their endnotes, bibli- the authors develop the theme for the does not explicitly provide for judicial ographies, and indexes, they total only next few pages of their introduction. review.” What makes the role of the 317 pages of text (196 in McGinty’s “Throughout our history,” they write, judiciary “special”? Why should an im- book and 121 in White’s). Lawyers may “the meaning of the Constitution’s text plied power exercised by the judiciary prefer McGinty’s book, as I did, but this and principles has been the subject of have preferred status over interpreta- preference does not reflect on the value public debate and, at times, intense tions by the elected branches about of White’s accomplishment. TFL mobilization among the American peo- their enumerated powers? The authors ple and their representatives.” Consti- do not argue explicitly in favor of an Henry Cohen is the book review editor tutional interpretation “is not a task for exclusive role for the courts in constitu- of The Federal Lawyer. the judiciary alone.” Judicial doctrine tional interpretation, but reference to a “often incorporates the evolving un- special role can tilt in that direction. To derstandings of the Constitution forged their credit, the authors do not accept through social movements, legislation, Marbury v. Madison as evidence of ju- and historical practice.” This public en- dicial supremacy. Instead, they regard gagement enables the Constitution “to it as “a claim of interpretative parity.” retain its democratic authority through Fair enough. changing times.” The “special” role of the judiciary ap-

64 | The Federal Lawyer | April 2012 pears to come from this source: life ten- its own democratically legitimate inter- The Derivatives Revolution: A ure that gives the courts independence pretative authority.” A fair rebuke! Trapped Innovation and a Blue- “from the political branches and public In the chapter on separation of pow- print for Regulatory Reform passions of the moment.” In Federalist ers, the authors refer repeatedly to the No. 78, Alexander Hamilton argued that claim that the President has certain “pre- By Raffaele Scalcione this independence gives federal judges clusive” powers in the field of national Kluwer Law International, New York, NY, 2011. a “peculiar province” in interpreting security. Apparently, this word has the 456 pages, $203.00. the laws. Nothing in the past two cen- same meaning as “inherent” powers: turies provides evidence that federal powers that inhere in the President Re v i e w e d b y Chr i s t o p h e r C. Fa i ll e courts have been a reliable guardian of and for that reason may not be limited individual rights and liberties. Only in by the other branches. The authors ap- The premise of this book is that the the last six decades or so have federal proach this issue cautiously, suggesting complex array and widespread use of courts been deeply involved in matters that the war on terrorism that began financial derivatives constitute a radical of individual rights, and the record over after Sept. 11, 2001, may call “for novel change introduced in recent years into that period of time is decidedly mixed. responses.” They ask whether terror- the financial world, and that this radical In Ledbetter v. Goodyear Tire & Rubber ist threats require a departure from change poses a threat to the public wel- Co. Inc., 550 U.S. 618 (2007), the Su- “the long-standing power of Congress fare. Scalcione’s proposed solution is to preme Court struck down a claim of to regulate the President’s conduct of empower regulators to “tailor derivatives gender discrimination in employment. military campaigns.” The authors sug- regulation to the profile of each corpo- Congress overturned that ruling when gest that it “may be too soon to answer ration” so that any corporation (really it passed the Lily Ledbetter Fair Pay the question definitively,” although the any “entity,” as he says elsewhere) that Act of 2009, which President Obama claim of unchecked presidential power wants to take on derivatives exposure signed into law. The authors do not based on changed conditions “should will be required to hold reserve capital, refer to this case, which is a good ex- be viewed with skepticism.” The chap- in the manner of banks under the Ba- ample of constitutional interpretation ter concludes on a firmer note: “fidel- sel regime, to protect against “downside by all three branches, with the elected ity to the Constitution requires that we risks.” branches serving as a better guardian preserve, not abandon, the core prin- It may seem to some readers as if of constitutional rights than the Court. ciple of checks and balances by work- the above paragraph is written in code. With regard to gender equality, the ing within our system of divided power Allow me to explain, then, that in fi- authors state: “For more than a gen- to meet new challenges through demo- nancial jargon a “derivative” is an asset eration, the nation has recognized the cratic means.” that derives its value from another as- equal citizenship of men and women The authors thoughtfully explore a set, as a stock option derives its value as a core constitutional value.” The Su- number of other constitutional issues from the price movements of the un- preme Court did not strike down dis- as well as the art of interpreting the derlying stock. The “derivatives revolu- crimination against women until Reed Constitution. They could have devel- tion” about which Scalcione writes was v. Reed, issued in 1971! Compare that oped some of their points in greater a rush of innovations and extensions record to the role of Congress, which detail, and, because they did not, Keep- of the available derivatives that bank- in 1879 passed legislation (20 Stat. ing Faith with the Constitution may be ers and hedge fund managers invented 292) authorizing women to practice viewed as a primer that raises some or adopted starting in the early 1990s. law before the Supreme Court, in the central questions that invite extended Scalcione is entirely right that there has face of the Supreme Court’s having de- examination. The analytical part of the been a revolution in this area, though nied women that right. It would have book consists of only 155 pages, fol- he breaks no new ground in describ- been useful for the authors to discuss lowed by the text of the Constitution, ing it. this example to illustrate how often the endnotes, and an index. TFL He does have some fun in one long elected branches and, by extension, footnote in chapter 1 listing innovative the public are better protectors of in- Louis Fisher is scholar in residence at sorts of derivatives. Among options, dividual rights than the courts are. The the Constitution Project. From 1970 to there are “digital options … Explod- authors do fault the Supreme Court for 2010, he served at the Library of Con- ing Options … barrier options … Asian failing to recognize “the distinctive in- gress as a senior specialist in separa- options … compound options … look- stitutional capacities for fact-finding, tion of powers with the Congressional back options,” and so forth. Derivatives remedial innovation, and policy judg- Research Service and as a specialist in that are not options now include the ment that Congress brings to the task constitutional law with the Law Library. blended interest rate swap, the boost of enforcing constitutional rights.” He is the author of 20 books, including structure derivative, differential swaps, When the Court insists that legislative Defending Congress and the Constitu- digital swaps, dynamite warrants, and enforcement of constitutional rights be tion (University Press of Kansas, 2011), others. guided solely by judicial standards, the which was reviewed in the Nov./Dec. Court “effectively treats Congress as if 2011 issue of The Federal Lawyer. it were a lower federal court instead of a co-equal branch of government with reviews continued on page 66

April 2012 | The Federal Lawyer | 65 reviews continued from page 65

Scalcione’s Big Idea ther efforts to arrive at a definition by laziness. A hardworking advocate for a I believe, however, that the variety using an example. Suppose you own particular conclusion will acknowledge and complexity of all these options and or manage a grocery store, and you complicating factors and try to show swaps and the like are only symptoms make a large part of your revenue sell- why they don’t weaken his or her de- of what ails our economy, and that ing oranges or orange juice. You have sired inference. An intellectually lazy ad- Scalcione’s big idea—reserve require- just heard that very cold weather is ex- vocate will just ignore such factors. ments applied to all entities—is a lousy pected in Florida soon, which may kill Let’s look, for example, at Scal- one. much of the orange crop and drive up cione’s discussion of the “domino ef- Just one more definition then: re- your costs. fect.” He argues that the use of deriva- serve capital. As Scalcione notes, this is How would you hedge against tives by any corporation of significant a concept taken from banking. The re- this risk? Perhaps, inspired by “Trad- size to speculate or gamble in a way serve is in essence the cash that banks ing Places,” a movie that starred Dan not required by its underlying opera- keep on hand to pay to depositors who Ackroyd and Eddie Murphy, you could tions is a risk not just to those immedi- walk in the door and make an appro- invest in the orange juice futures mar- ately affected but to the whole global priate withdrawal demand. Generally, ket yourself, betting on that increase in financial system—it is a “systemic risk.” the bank commits itself, or is required wholesale prices you had been worried He invokes the metaphor of the “dom- by the relevant regulators, to maintain about. With your bet in place, if the ino effect” in the text, then explains it a certain fraction of deposits, called the price of oranges does increase, even in a footnote: “The domino effect de- reserve ratio, in readiness. A nation’s though you will still end up taking a hit scribes the risk that the failure of an banking regulators can often adjust the on the operational side of your busi- intermediary in the derivatives market reserve ratio, both for the purpose of ness, namely the actual store, you will causes other intermediaries to fall in a protecting the banking system against be consoled because your losses will domino-like effect.” the consequences of a “run” of wor- be mitigated by the gain you’ve made This is a wonderful example of the ried depositors and as a mechanism on the futures contracts. On the oth- general clumsiness of his prose, an infe- for controlling the supply of money in er hand, suppose you’re wrong about licity of style so severe that it alone can circulation–either heating up or cooling the weather and orange prices actually make the book difficult to read for long the economy as desired. drop. This means a loss on the finance stretches. He defines the “domino effect” Scalcione doesn’t propose specific side, namely the futures contracts, but by telling us that it alludes to a domino- numbers for the new broader sort of (if you’ve planned well) you more than like effect. I submit that literal dominoes reserve requirements he would like to make up for that by the higher profit are sufficiently familiar, and their meta- see. The correct specific number, he margin you’re getting on the resale of phorical invocation here sufficiently in- tells us, is a “highly technical” question the cheap oranges you’re buying on tuitive, to make the extra sentence of “outside the scope of the present work.” the operational side. explanation only a hindrance. But he does think that such require- All this brings us back to Scalcione’s Beyond that, though, there is an obvi- ments should apply, around the globe proposal. He would probably regard the ous objection to the notion that failures through international agreements, to dealing I’ve just imagined for your store among derivatives intermediaries have “every entity engaging in the trading of as “strictly for hedging purpose,” and such cascading consequences. Deriva- derivatives not strictly for hedging pur- thus as exempt from the new reserve tives contracts net out to zero. For every poses.” This would be a (vast) exten- regulations he would establish. But there trader who bet that the price of oranges sion of the regime of cooperation on would need to be careful monitoring in would rise, another somewhere has bet banking reform now accomplished, fit- every participating nation to distinguish that the price would fall. Anything won fully, through the Basel Committee on which trades are “strictly hedging” and on the long side is lost on the short side, Banking Supervision. which cross the line (however defined) and vice versa. It is as if, in a lineup of In sum, Scalcione sees the failure of into speculation. This monitoring would, dominoes, the fall of one would neces- unwise derivative plays as a phenom- in principle, have to incorporate even sarily cause the next domino in the line enon analogous to old-fashioned runs your corner grocery store and might well to become more firmly cemented into on banks by panicked depositors, so prove quite onerous. position. That idea rather plays havoc he proposes the same solution for the with the metaphor. former problem that seems to have ren- Lazy Advocate This somebody-has-to-win argument dered the latter problem largely a mat- I disagree strongly with Scalcione’s is no innovation of mine. It is common in ter of historic interest. conclusions. I also found this book ex- the literature. Scalcione, who tells us on tremely disappointing. Those two ob- his “About the Author” page that he has Strictly Hedging servations are not related. I could—and been researching derivatives since 1997, But let’s go back to the phrase “not often do—find much to intrigue and is surely familiar with this point. So why strictly for hedging purposes.” What enlighten me in books that fail to per- didn’t he mention it? It just seems lazy. does “hedging” mean in this context? suade me of their conclusions. Not here. All in all, The Derivatives Revolution is a It is a broad term, and I’ll evade fur- A key difficulty is Scalcione’s intellectual disappointing performance, and I can’t

66 | The Federal Lawyer | April 2012 imagine any buyer to whom it would be What all of them also had in com- man who Roosevelt most believed had worth $203. TFL mon was their boss, President Frank- the talent to succeed him as President. lin D. Roosevelt. He was not a boss At the age of 40, Douglas was one of Christopher Faille is the co-author, with in the usual sense of the word, but he the youngest people ever appointed to David O’Connor, of Basic Economic was very much the commanding fig- the Court and (despite impeachment Principles (2000), and the sole author ure who recruited their services and, attempts) went on to become, with 36 of a just-released book on the financial with them, shaped history. Today, it is years and seven months of service, its crisis of 2007-08, Gambling with Bor- considered improper for the judiciary longest serving member. In addition to rowed Chips. to have a close relationship with the his Court duties, he was a prolific au- White House, but absent that relation- thor, an internationalist, and an envi- Scorpions: The Battles and Tri- ship in the 1930s and 1940s, the stat- ronmentalist long before the word was umphs of FDR’s Great Supreme utes ameliorating the impact of the De- invented. Court Justices pression, America’s entry into World Two cases epitomize the Roosevelt War II, and the expansion of individual Court’s reversal of long-standing prec- By Noah Feldman rights might not have blossomed. May- edents. In West Coast Hotel Co. v. Par- Twelve, Hachette Book Group, New York, be Roosevelt wasn’t the justices’ boss, ish, 300 U.S. 379 (1937), the Court up- NY, 2010. 513 pages, $30.00 (cloth), $16.99 but he was certainly the captain of the held the constitutionality of a minimum (paper). team. wage law of Washington state, finding Noah Feldman tells us that, prior to that, contrary to Lochner v. New York, being named to the Supreme Court, 198 U.S. 45 (1905), the Constitution Re v i e w e d b y Ge o rg e W. Go w e n “Frankfurter drafted New Deal legisla- does not protect freedom of contract tion and staffed New Deal agencies. from state laws that reasonably regulate What a terrible title for this highly His closest associates enjoyed daily certain activities for the public good. readable book that is so rich in per- access to the president.” As for Robert In the second case, Brown v. Board of sonalities, politics, and law! Although Jackson, he “would arrive in Washing- Education, 347 U.S. 483 (1954), with Hugo Black, William O. Douglas, Felix ton in 1934 as counsel to the Bureau Roosevelt dead but his four key ap- Frankfurter, and Robert Jackson had of Internal Revenue. In the next six pointees still sitting, the Court, with the their differences while serving together years, he would become an intimate ringing phrase, “Separate educational on the Supreme Court, theirs is a saga of Roosevelt, solicitor general, attorney facilities are inherently unequal,” re- of America. Scorpions indeed! Horatio general, a potential candidate for vice versed the “separate but equal” doc- Alger can take a backseat to these real president, and a justice of the Supreme trine of Plessy v. Ferguson, 163 U.S. life successes. Court of the United States.” 537 (1896). Although Brown is neither Noah Feldman begins his tale: Although Hugo Black (his past a masterpiece of judicial writing nor membership in the Ku Klux Klan was as convincing as it might have been, A tiny, ebullient Jew who started conveniently kept quiet) was not a Chief Justice Earl Warren deserves all as America’s leading liberal and Roosevelt intimate, he was a senator the credit for putting together a unani- ended as its most famous judicial and, as such, could be easily confirmed mous decision. conservative. A Ku Klux Klans- by the Senate. Feldman writes, “In As much as Earl Warren deserves man who became an absolut- choosing Black, Roosevelt was moving credit for upholding the rights of mi- ist advocate of free speech and a generally reliable vote in the Senate norities in Brown, his performance as civil rights. A backcountry lawyer to an equally reliable spot on the Su- the governor of California in pushing who started off trying cases about preme Court.” Roosevelt was saying, for the internment of Japanese-Amer- cows and went on to conduct the in effect, that a Supreme Court justice icans tarnishes his reputation. Finley most important international tri- “did not need judicial experience, nor Peter Dunne said that “th’ supreme co- al ever. A self-invented, tall-tale was it a problem if he had not prac- ort follows th’ iliction returns,” and that Westerner who narrowly missed ticed law in more than a decade. What was clearly the case when the Court the presidency but expanded in- mattered was his political philosophy, yielded to popular sentiment in Ko- dividual freedom beyond what demonstrated in this case through ag- rematsu v. United States, 323 U.S. 214 anyone before had dreamed. gressive Senate service.” (1944). Finding a perceived espionage Douglas had a meteoric rise from threat to outweigh individual rights, the Four more different men could law student to professor to chairman of Court upheld (by a vote of six to three) hardly be imagined. Yet they had the Securities and Exchange Commis- the internment of Japanese-Americans certain things in common. Each sion (Joseph P. Kennedy helped). On by rationalizing that Korematsu was in- was a self-made man who came the way up, Douglas garnered a politi- terned not “because of hostility to him from humble beginnings on the cal patron: Roosevelt, who, according or his race,” but “because we are at war edge of poverty. Each had a driv- to Feldman, “saw in Douglas limitless with the Japanese Empire. ...” Neither ing ambition and a will to suc- energy, personal charm, and a capacity the Court nor Roosevelt (who backed ceed. Each was, in his own way, for self-mythologizing that was essen- a genius. tial in a politician.” Douglas was the reviews continued on page 68

April 2012 | The Federal Lawyer | 67 reviews continued from page 67 the internment) paid much attention written in 1932 when Darrow was in than existed in a small town, Darrow when FBI director J. Edgar Hoover ad- his 70s: “It is obvious that I had nothing decided to become a lawyer. vised that there was no evidence for to do with getting born. Had I known Darrow spent an unsuccessful aca- the view that Japanese submarine at- about life in advance and been given demic year at the University of Michi- tacks were facilitated by reports from any choice in the matter, I most likely gan Law School, then worked for a Japanese spies in America. would have declined the adventure.” lawyer’s office in Youngstown, Ohio, Scorpions is more than a history of the Kersten frequently refers to Darrow’s and, in 1878, was admitted to the Ohio leading cases decided by the Roosevelt pessimism and fatalism, which stood bar. Darrow’s legal practice got off to Court. The book delves into the back- in stark contrast to Darrow’s amazingly a slow start, but he nevertheless mar- ground of the decisions and the foibles robust, action-filled, and highly produc- ried Jessie Ohl and settled with her in of those who wrote the opinions, with a tive career in labor and criminal law. Andover, Ohio, a town of 400 residents little gossip and sex thrown in. It will re- Kersten also highlights Darrow’s politi- that had little need for a new lawyer. fresh the recollections of readers regard- cal activism and finds Darrow a lifelong Darrow sustained his practice on “a ing the Sacco and Vanzetti case, the Se- contrarian, who drew great pleasure steady diet of relatively minor infrac- curities Exchange Act of 1934, Andrew from “flailing against minds that were tions of the law,” and he honed his trial Mellon’s tax problems, Roosevelt’s at- as sprung and shut as an iron trap. ...” techniques, “master[ing] a keen, calm tempt to pack the Supreme Court, Rich- Born in the small rural town of rhetorical style ... to unhinge his oppo- ard Whitney and the New York Stock Farmdale, Ohio, Darrow could trace his nent’s case.” After three years, Darrow Exchange, the trade to war-torn England origins to early settlers from England. moved to Ashtabula, Ohio, a town of of aging destroyers in exchange for the His father was a furniture maker and an 5,000, where, a year later, he ran un- lease from England of naval bases in the undertaker, and his mother managed opposed for the office of city solicitor, Atlantic and the Caribbean, the four Ger- the household and took care of seven which paid him $75 a month and al- man saboteurs who landed on a beach children (excluding one who died in lowed him to continue to take private on Long Island, the Nuremberg trials, infancy), of whom Clarence was the cases, although he dropped all interest the constitutional theory of originalism, fourth. Clarence’s parents had a pas- in insurance, real estate, and collec- Truman’s seizure of the steel mills, and sion for reading and a personal library tions cases. the right of privacy. These inviting mor- that was exceptional compared with Darrow became involved in Ohio sels and many more are spread before those of their neighbors, who tended politics and “made a name for him- readers of this tasty and nutritious of- to own only a Bible and an almanac. self as the unapologetic and ambitious fering. TFL Clarence’s parents were also unusual Democrat amid Republicans.” In 1885, in that they were freethinkers, albeit he ran unsuccessfully for a seat in the George W. Gowen is a partner with the of the middle-of-the-road sort: they state’s General Assembly and, in 1886, New York law firm of Dunnington, Bar- celebrated Christmas, and Clarence’s he ran unsuccessfully for the office of tholow & Miller LLP. His areas of prac- mother never completely broke from Ashtabula prosecuting attorney. He tice are trust and estates, corporate, and the church. Not surprisingly, Kersten was unwilling to switch parties, even sports law. He was an adjunct professor writes, Clarence “came to reject the though doing so might have improved at the New York University Graduate darker sides of small-community life, his chances to be elected to higher of- School of Business and has served on particularly its tendency to promote fice. Instead, in 1887, Darrow moved United Nations commissions, as coun- intellectually suffocating homogeneity. to Chicago, which Kersten says was, sel to leading sports organizations, and ...” Perhaps the only thing that he had without question, “the most important as chair of environmental and humane in common with his schoolmates was a decision in his life. In Chicago, Darrow organizations. love for baseball. finally found a public stage to match Darrow attended Allegheny College his ego and ambitions. … To put it Clarence Darrow: American but, after a year, returned home to Kins- simply: no Chicago, no attorney for Iconoclast man (a nearby small town, to which the damned,” as Lincoln Steffens later the family had moved when Darrow called Darrow. By Andrew E. Kersten was young), having found Greek and Kersten writes that “Chicago was Hill and Wang, New York, NY, 2011. 306 pages, Latin and geometry useless. He went to known as the Windy City for its blow- $30.00. work for his father, but Clarence hated hard politicians as well as for the fre- furniture making and decided that he quency of its winter blizzards.” The “was made for better things” than man- second largest city in the nation, Chica- Re v i e w e d b y Jo h n C. Ho l m e s ual labor. He taught in a county school go was also the nation’s most decadent In this perceptive biography of one for three winters, during which time he and corrupt city. Disease, prostitution, of America’s most famous lawyers, An- began to read law books. He actively and political corruption were standard drew E. Kersten quotes Clarence Dar- participated in the Saturday night de- vices in the hardscrabble city, where row (1857–1938) from his own excel- bates in Kinsman, and, with little other the stench of stockyards and high un- lent autobiography, The Story of My Life, purpose than to seek broader horizons employment reigned. Rather than be

68 | The Federal Lawyer | April 2012 discouraged by this scenario, Darrow attorney general, according to Kersten, polls, his wife, Jessie, feeling lonely in found it a place of legal opportunities “a team of two U.S. federal judges is- a busy city with little support from her where he could become “a central cog sued an injunction against ... the strike self-centered husband, whom she sus- in the Chicago political machine.” on the grounds that the union had vio- pected of infidelity, decided to return At the time that he arrived in Chi- lated the 1890 Sherman Antitrust Act. to the less conflicting confines of small- cago, “Darrow had become a great ...” Union leaders, including Eugene V. town Ohio, taking their son with her. sympathizer of the common man and Debs, were arrested for violating the She later married an Ashtabula judge. women, but he was not yet their cham- injunction, and Darrow felt compelled Darrow seemed to take her departure pion.” Rather, he practiced corporate to act. At the age of 37, he left his well- in stride, never having lived up to his law, which Darrow described as a paying job “and his life among Chica- commitments in the marriage. After his “bum profession ... utterly devoid of go’s elite and went to defend a lowly divorce, Darrow “desired to establish idealism and almost poverty stricken man of the working class. ...” a bohemian enclave where Darrow as to any real ideas.” However, his law The case against Debs proceeded would lead a group of culturally mod- practice allowed him to garner friends on two fronts—one for civil contempt ern Americans in explorations of hedo- among the wealthy industrialists of the and one for criminal conspiracy. The nism, radical politics, arts and letters, city, some of whom were Democrats judge sentenced the defendants to six and of course sexuality, all the while whom he was able to approach for months in prison on the civil contempt making his living from the law and ad- contributions to political candidates charge. In the criminal case, Darrow vancing his left-wing political causes in such as John Peter Altgeld, who ran put the prosecution on the defensive, the courtroom and occasionally at the successfully for governor of Illinois showing that the railroad executives ballot box too.” as a reformer and became Darrow’s had cornered the union into calling In 1902, Darrow and labor leader lifelong friend. Darrow became even the strike and the boycott, then using George Schilling formed an inde- more adept at public speaking and be- the federal government to crush the pendent party they called the Public gan to address causes that favored the strikers. He seemed to have the jury Ownership League, and, running on oppressed and disadvantaged, thereby convinced, but a juror became ill and its ticket, Darrow won a seat in the Il- furthering his reputation among the the trial was temporarily and then per- linois legislature. He worked to pass many reformers, socialists, anarchists, manently suspended without a verdict. the Mueller Act, which authorized cit- and outcasts in Chicago. He was also Darrow took the civil case to the U.S. ies in Illinois to own and operate pub- ushered into the byzantine world of Supreme Court, which, in In re Debs, lic utilities, including street railways. Chicago Democratic politics, where unanimously denied his petition for a However, Darrow’s other efforts, such “friends” played dirtier tricks and used writ of habeas corpus. as abolishing imprisonment for debtors harsher language on one another than During these tumultuous years, the and ending capital punishment, failed. they used on Republicans. Pullman Railroad Company case was He found his experience in the legisla- One of Darrow’s early cases was de- not the only loss for Darrow. With his ture disheartening and had no desire to fending Gene Prendergast, a deranged old friend and mentor, Altgeld, Darrow run for a second term. young man who had shot and killed helped organize the short-lived Popu- Two of Darrow’s most famous cases the mayor of Chicago, because Pren- list Party, aiming to enlist workers in were the Leopold and Loeb case and dergast, who had no legal training, was particular. Both men felt that President the Scopes monkey trial. The first one refused a job as corporation counsel Cleveland, a Democrat whom they had involved Nathan Leopold and Rich- for the city. Prendergast had already previously worked to elect, had taken ard Loeb, who came from among the been convicted when Darrow entered too conservative a path. At the 1896 wealthiest families in Chicago. In June the case to try to save him from the Democratic National Convention in Chi- 1924, at the age of 19 and 18, respec- death penalty on grounds of insanity. cago, William Jennings Bryan, support- tively, they planned and carried out Despite Darrow’s energetic work, it ing the expansion of the money supply what they intended to be the perfect took the jury only 20 minutes to reaf- through the minting of silver, famously crime: the murder of Loeb’s cousin. firm Prendergast’s death sentence. It proclaimed, “You shall not crucify man Although they initially sought ransom was Darrow’s first capital case and the upon a cross of gold” and won the from the victim’s parents, their main only one of more than 100 in which he Democratic nomination for President. motivation was the thrill of killing. The failed to save his client’s life. Darrow spoke at the convention and, boys pled guilty, and Darrow was de- As counsel for the Chicago North encouraged by Altgeld, who was run- termined to save them from the death Western Railroad, Darrow observed ning for re-election as governor, ran for penalty. He had opposed the death from a neutral standpoint the heated what Altgeld considered a safe Demo- penalty on principle since the 1880s, contest between the Pullman Railroad cratic congressional seat. Surprisingly, not to mention that he needed the Company and the American Railway both Altgeld and Darrow were defeat- money that the boys’ parents (unlike Union, which went on strike because of ed, as William McKinley, the Republi- Darrow’s labor clients) could pay. At a poor pay and harsh employment condi- can who won the presidential election mitigation hearing before a judge and tions. Against Governor Altgeld’s wish- in 1896, carried other Republicans to a packed courtroom, Darrow made a es, President Grover Cleveland sent in electoral victory on his coattails. troops, and, “under the direction” of his On top of Darrow’s defeats at the reviews continued on page 70

April 2012 | The Federal Lawyer | 69 reviews continued from page 69 closing statement that, according to presidential elections and now sought none of which show him smiling. All Kersten, “left everyone in the court- solace in religion. The trial was memo- the photographs suggest a rugged and room in tears.” The judge sentenced rialized in the movie “Inherit the Wind,” somber person and appear to confirm the defendants to life imprisonment, starring Spencer Tracy as Darrow. Dar- Kersten’s statement that “Darrow was and, although Darrow’s remuneration row bested Bryan in legal and philo- a skeptic and a pessimist,” who “ada- turned out to be less than he sought, sophical arguments that pitted Darwin’s mantly refused to believe in an after- his enhanced celebrity status permitted book, On the Origin of Species, against a life” and who “thought that reality was him to demand lucrative fees for his literal reading of the Bible, as advocated essentially evil and that happiness was lectures and writings. by Bryan. Darrow ridiculed Bryan’s ar- just beyond reach.” Yet, Kersten adds, The second case that gained national guments, but the jury found that Scopes Darrow “devoted much of his life in attention for Darrow was the Scopes had broken the law, and he was fined politics and in the courtroom to rectify- monkey trial, which involved a Ten- $100. Once again Darrow was the de- ing the injustices that plagued the typi- nessee law that made it illegal to teach fender of unpopular opinions. cal American.” TFL evolution in public schools. In John According to Kersten, Clarence Dar- T. Scopes, the American Civil Liberties row: American Iconoclast, “is largely John C. Holmes served as a U.S. admin- Union found a teacher who was willing about Darrow’s political activism, inside istrative law judge for 30 years, retir- to disobey the law and face prosecution. and outside court.” The book exposes ing in 2004 as chief administrative law At the trial, which was held in the swel- Darrow’s many character flaws, contra- judge at the U.S. Department of the In- tering summer heat in the small town of dictions, and human failings, showing terior. He currently works part time as a Dayton, Tenn., Darrow was confronted how Darrow often infuriated allies and legal and judicial consultant and can by his longtime Democratic rival, Wil- turned them against him. The book in- be reached at [email protected]. liam Jennings Bryan, who had lost three cludes many photographs of Darrow,

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