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WESTERN LEGAL History WESTERN LEGAL HiSTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VOLUME 23, NUMBER 1 2010 Western Legal History is published semiannually, in spring and fall, by the Ninth Judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena, California 91105, (626) 795-0266/fax (626) 229-7476. The journal explores, analyzes, and presents the history of law, the legal profession, and the courts- particularly the federal courts-in Alaska, Arizona, California, Hawai'i, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Western Legal History is sent to members of the NJCHS as well as members of affiliated legal historical societies in the Ninth Circuit. Membership is open to all. Membership dues (individuals and institutions): Patron, $1,000 or more; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499; Sustaining, $100-$249; Advocate, $50-$99; Subscribing (nonmembers of the bench and bar, lawyers in practice fewer than five years, libraries, and academic institutions), $25-$49. Membership dues (law firms and corporations): Founder, $3,000 or more; Patron, $1,000-$2,999; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499. For information regarding membership, back issues of Western Legal History, and other society publications and programs, please write or telephone the editor. POSTMASTER: Please send change of address to: Editor Western Legal History 125 S. Grand Avenue Pasadena, California 91105 Western Legal History disclaims responsibility for statements made by authors and for accuracy of endnotes. Copyright @2010, Ninth Judicial Circuit Historical Society ISSN 0896-2189 The Editorial Board welcomes unsolicited manuscripts, books for review, and recommendations for the journal. Manuscripts (three copies, and one disk in Microsoft Word for Windows, if possible) should be sent to the Editor, Western Legal History, 125 S. Grand Avenue, Pasadena, California 91105. Texts, including quotations and endnotes, must be double spaced. Notes must be numbered consecutively and appear in a separate section at the end of the text. Authors are requested to follow the style for citations used in this journal. Manuscripts that are no more than thirty pages in length, not counting notes, charts and tables, and photographs, are preferred. Also preferred are manuscripts not concurrently under consideration by another journal. Whether because of prejudice or custom, writers in earlier times often used language considered strange or offensive today. Because Western Legal History publishes articles that present the historical record as accurately as possible, it occasionally publishes quotations containing such language. The publication of such is not to be construed as representing the attitudes of either the authors or Western Legal History. Communication with the editor is encouraged before submission of any manuscript. At that time, other guidelines for the preparation and publication of an article may be discussed. Consultation about punctuation, grammar, style, and the like is made with the author, although the editor and the Editorial Board are the final arbiters of the article's acceptance and appearance. Articles published in this journal are abstracted and indexed in America: History and Life; HistoricalAbstracts; the Index to Legal Periodicals;and the Legal Resources Index. NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY BOARD OF DIRECTORS JEFFREY M. FISHER, ESQ. HON. CHRISTINA ANN SNYDER Chair Los Angeles San Francisco MICHAEL A. WHITE, ESQ. JOHN FRANCIS CARROLL, ESQ. Saipan Chair-elect San Pedro GARETH T. EVANS, ESQ. BOARD MEMBERS EMERITI Treasurer HON. JAMES R. BROWNING Los Angeles San Francisco PAUL T. FRIEDMAN, ESQ. Secretary SHIRLEY M. HUFSTEDLER, ESQ. Los Angeles San Francisco MARC M. SELTZER, ESQ. Immediate Past Chair ADVISORY COUNCIL Los Angeles SETH ARONSON, ESQ. RITA M. HAEUSLER, ESQ. Los Angeles Co-chair JEROME L BRAUN, ESQ. Los Angeles San Francisco LEROY J. BARKER, ESQ. JOHN CARSON, ESQ. Co-chair Los Angeles Portland HON. DAVID 0. CARTER J. BRUCE ALVERSON, ESQ. Santa Ana Las Vegas HON. RICHARD R. CLIFTON HON. CHRISTINE W. BYRD Honolulo Los Angeles WILLIAM I. EDLUND, ESQ. PARKER C. FOLSE III, ESQ. San Fr ncisco Seattle ROBERT H. FAIRBANK, ESQ. FREDERICK P. FURTH, ESQ. Los Angeles Healdsburg GERSHAM GOLDSTEIN, ESQ. HON. LLOYD D. GEORGE Portland Las Vegas PETER F. HABEIN, ESQ. HON. ALFRED T. GOODWIN Billings Pasadena RITA M. HAEUSLER, ESQ. HON. RONALD M. GOULD Los Angeles Seattle HON. ROBERT J. JOHNSTON HON. PROCTER HUG, JR. Las Vegas Reno ROBERT D. LOWRY, ESQ. HON. SUSAN Y. ILLSTON Eugene San Francisco THOMAS J. MCDERMOTT, JR., ESQ. CURTIS A. JENNINGS, ESQ. Palm Desert Phoenix HON. M. MARGARET MCKEOWN TIMOTHY M. LYNCH, ESQ. San Diego Anchorage HON. GERALDINE MUND HON. MARGARET M. MORROW Woodland Hills Los Angeles TERRY NAFISI RONALD L. OLSON, ESQ. Los Angeles Los Angeles HON. DIARMUID F. O'SCANNLAIN PER A. RAMFJORD, ESQ. Portland Portland HON. MANUEL L. REAL GERALD K. SMITH, ESQ. Los Angeles Phoenix HON. PAUL G. ROSENBLATT ROBERT S. WARREN, ESQ. Phoenix Los Angeles HON. MARY M. SCHROEDER DOUGLAS R. YOUNG, ESQ. Phoenix San Francisco WESTERN LEGAL HISTORY BRADLEY B. WILLIAMS, EDITOR JUDITH FORMAN, COPY/PRODUCTION EDITOR EDITORIAL BOARD JUDITH AUSTIN ARTHUR D. HELLMAN Boise University of Pittsburgh GORDON MORRIS BAKKEN School of Law California State University, DAVID J. LANGUM Fullerton Samford University MICHAL BELKNAP Cumberland School of Law California Western CLARE V. MCKANNA, JR. School of Law San Diego State University HON. JAMES R. BROWNING R. JAMES MOONEY Senior Circuit Judge, University of Oregon U.S. Court of Appeals Law School for the Ninth Circuit CLAUS-M. NASKE ELIZABETH J. CABRASER, ESQ. University of Alaska, San Francisco Fairbanks LAWRENCE M. FRIEDMAN PAULA PETRIK, PH.D. Stanford Law School George Mason University CHRISTIAN G. FRITZ PETER L. REICH University of New Mexico Whittier Law School School of Law JOHN PHILLIP REID DALE GOBLE New York University University of Idaho School of Law School of Law HARRY N. SCHEIBER, PH.D. HON. ALFRED T. GOODWIN University of California Senior Circuit Judge, Boalt Hall School of Law U.S. Court of Appeals MOLLY SELVIN, PH.D. for the Ninth Circuit Santa Monica PAUL BRYAN GRAY, ESQ. ROBERT S. WOLFE, ESQ. Claremont Santa Ana MICHAEL GRIFFITH, PH.D. JOHN R. WUNDER, J.D., PH.D. Oakland University of Nebraska STEPHEN W. HAYCOX, PH.D. University of Alaska, Anchorage WESTERN LEGAL HiSTORY VOLUME 23, NUMBER 1 2010 CONTENTS The Railroads Must Have Ties: A Legal History of Forest Conservation and the Oregon and California Railroad Land Grant, 1887-1916 Sean M. Kammer The Coldest Case of All? Lloyd Gaines and the African American Struggle for Higher Education in Missouri Sarah Riva Upholding Culture and Language in Guadalupe, Arizona: Bilingual Education Activism in the 1970s Lindsey Passenger Wieck r7 Book Reviews 87 Articles of Related Interest 95 Memberships, Contributions, & Grants 103 Cover photo: Edward H. Harriman, shown here, and his role in the conservation of Oregon's timber lands is the subject of Sean Kammer's essay in this issue. (Courtesy of Union Pacific Museum) JEROME 1. BRAUN (Courtesv of Fareiba Bratin & Martel) JEROME 1. BRAUN: A TRIBUTE Jeffrey M. Fisher* About a dozen years ago, one of my colleagues at Farella Braun & Martel came into my office and asked me if I wanted to work on a project-a biog- raphy of the late Ninth Circuit Judge Cecil Poole- with one of the firm's senior partners. So began my relationship with Jerome I. (Jerry) Braun. Since that time, Jerry has been a wonderful mentor, teacher, and friend to me. Throughout his distinguished career, Jerry has maintained a diverse trial and appellate practice in areas such as commercial litigation, complex and multidistrict litigation, securities regulation, anti- trust, and legal malpractice. He became president of the California Academy of Appellate Lawyers and was elected a fellow in the American College of Trial Lawyers. He is also a Fellow of the American Academy of Appellate Lawyers and served as the edi- tor of its newsletter, "The Appellate Advocate," for six years. He remains one of the finest writers-with one of the deepest vocabularies-I have ever known and is the author of many articles in professional and scholarly publications. Jerry was also the propo- nent of California Supreme Court Rule 29.5, permit- ting certification of questions of state law by federal appellate courts. At age eighty-one, he is still going. He now concentrates on federal practice and on his work as an arbitrator and mediator, and has served the federal courts as a special master. Jerry also has been very active in Ninth Circuit governance issues and on behalf of Stanford Uni- *Jeffrey M. Fisher is chair of the Ninth Judicial Circuit Historical Society Board of Directors. Vmii WEs-rERN LEGAL HiSTORY VOL. 23., No. 1 versity (he graduated from Stanford Law School in 1952) and Jewish philanthropies. He has served for more than thirteen years on the board and currently serves as chair of fundraising efforts for The Other Bar, a nonprofit network of recovering lawyers and judges throughout the state of California. He is an inspirational speaker about issues relating to alcohol and substance abuse problems and how they affect lawyers. Hearing Jerry speak about his personal experiences with overcoming alcoholism is a truly moving experience. Jerry also twice served as a member and then chair of the Lawyer Representatives to the Ninth Circuit Judicial Conference and was chair of the Ninth Circuit Judicial Senior Advisory Board. He was one of the early members of the Ninth Judicial Circuit Historical Society, acting as president from 1990 to 1993. He continues to serve the society in a variety of ways; among his greatest accomplishments was his leadership in the society's effort to publish Cecil Poole, A Life in the Law, a biography of Judge Poole geared toward young readers. This important biog- raphy would never have been written without his tireless efforts.
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