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Western Legal History WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY 25THANNIVERSARY ISSUE VOLUME 25, NUMBERS I & 2 2012 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 @2012, 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 GARETH T. EVANs, Eso. HON. CHRISTINE W. BYRD Chair A. MARISA CHUN, ESO. PAuL T. FRIEDMAN, EsQ. DANIEL P. COLLINS, Eso. Vice Chair HON. MORRISoN ENGLAND, JR. RITA M. HAEUSLER, ESQ. C. Treasurer TIMOTHY R. FISHER, EsQ. WILLIAM I. EDLUND, EsQ. PARKER C. FOLSE III, ESQ. Secretary FREDERICK P. FURTH, ESQ. JEFFREY M. FISHER, ESQ. Immediate Past Chair HON. ALFRED T. GOODWIN SETH ARONSON, ESo. HON. RONALD M. GOULD JEROME 1. BRAUN, ESQ. HELKEI S. HEMMINGER, Eso. JOHN CARSON, ESQ. ERNEST A. HoIDAL, Eso. HON. DAVID 0. CARTER HON. PROCTER HUG, JR. HON. RICHARD R. CLIFTON HON. SUSAN Y. ILLSTON ROBERT H. FAIRBANK, Eso. HON. ROBERT J. JOHNSTON GREGORY S. FISHER, ESQ. PROF. COLIN JONES DONALD L. GAFFNEY, EsQ. B. ANN KEITH, EsQ. GERSHAM GOLDSTEIN, ESQ. HON. VICTOR B. KENTON PETER F. HABEIN, EsQ. KENNETH N. KLEE, ESQ. DEBORAH K. KRISTENSEN, EsQ. TIMOTHY M. LYNCH, EsQ. ROBERT D. LOWRY, Eso. HON. JAMES MAHAN, ESQ. THOMAS J. McDERMOTT, JR., ESQ. RON MAROKO, Eso. HON. M. MARGARET MCKEOWN SONIA R. MARTIN, EsQ. TERRY NAFISI HOWARD G. MCPHERSON, ESo. JEFFREY R. PORTNOY, Eso. DIANE M. MYERS, ESQ. HON. MANUEL L, REAL HON. GERALDINE MUND HON. PAUL G. ROSENBLATT HON. RANDALL NEWSOME HON. MARY M. SCHROEDER RONALD L. OLSON, Eso. MARC M. SELTZER, Eso. HON. DIARMUID F. O'SCANNLAIN HON. MILAN D. SMITH, JR. HON. KAREN A. OVERSTREET HON. CHRISTINA ANN SNYDER WILLIAM D. PICKETT, EsQ. DEAN A. ZIEHL, Eso. PER A. RAMFIORD, Eso. ARuTR F. ROECA, Eso. ADVISORY COUNCIL GERALD K. SMITH, Eso. J. BRUCE ALVERSON, Eso. CAII MIGDAL TITLE, EsQ. LEROY J. BARKER, ESo. ROBERT S. WARREN, Eso. LADD A. BAUMANN, Eso. DOUGLAS R. YOUNG, EsQ. BETH MARY BOLLINGER, Eso. MERYL L. YOUNG, Eso. WESTERN LEGAL HISTORY BRADLEY B. WILLIAMs, EDIToR JUDITH FORMAN, COPY/PRODUCTION EDITOR S. DEBORAH KANG, BOOK REVIEw 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 25, NUMBERS I & 2 2012 CONTENTS Preface iX Pioneer Courthouse Through the Years: A Photographic Essay 1 Beyond the Bench: The Private Thoughts and Public Work of Judge Matthew P. Deady 1 C Lee M.A. Simpson 1 5 Judge John F. Kilkenny: An Oral History 43 The Ninth Circuit in the Pioneer Courthouse: A Reflection on Some Noteworthy Cases Diarmuid F. O'Scannlain 7 Book Reviews 95 Articles of Related Interest 107 Memberships, Contributions, & Grants 115 Cover photo: In 1875, Portland's newly completed post office and courthouse, now known as "Pionecr Courthouse," was already a symbol of civic pride, as is evident in this woodcut from the inaugural issue of the literary magazine West Shore. (Oregon Historical Society, 25011) EDITOR'S NOTE This issue marks the twenty-fifth anniversary of Western Legal History. It didn't always seem that we would make it this far. As the journal's editor and director of the Ninth Judicial Circuit Historical Society, I am enormously grateful for those subscribers and historical society members who have continued to support this publication and the NJCHS's work generally. In the inaugural issue, the eminent legal historian John Phil- lip Reid wrote of the need for this journal, noting that western legal history "is a neglected field awaiting its reapers and glean- ers." In the intervening years, the harvest by scholars in these pages and elsewhere has been bountiful. On the occasion of Western Legal History's tenth anniversary, legal historian John Wunder urged his colleagues to explore and debate "a distinct western legal culture." I hope that the articles published here in the last fifteen years have contributed to that debate. Because this issue is intended to celebrate a particular mile- stone, I thought it fitting to focus on one of the oldest cultural and judicial symbols in the American West, the oldest operat- ing federal courthouse west of the Mississippi, now known as "Pioneer Courthouse" in Portland, Oregon. The building began its life in 1875 as a post office, customs house, and federal district courthouse, symbolizing the federal government's presence on the Pacific Coast, more than 2,300 miles from the nation's capital. That this magnificent edifice was constructed a mere seventy years after Meriwether Lewis, William Clark, and company wintered near its site symbolized for many the nation's manifest destiny. For Portlanders, at its opening, the new federal building symbolized their city's progress, as illustrated on the cover of this issue. Because of the courthouse's significance to Portland, I called upon an expert in city growth and urban planning, Lee M.A. Simpson, to be this issue's guest editor. Professor Simpson, an associate professor of history and director of public history at California State University, Sacramento, is also an expert in historic preservation, as demonstrated in her article about Judge Richard Chambers' work in Western Legal History, volume 19. As readers will learn in the articles she has ably assembled, the Pioneer Courthouse also served the practical purpose of housing the U.S. District Court for the District of Oregon, where citizens had their disputes adjudicated. As a post office, it became a communication distribution point for the city. When it was abandoned for newer and larger quarters on the verge of World War II, it became a physical rallying Vi1H WESTFRN LEGAL HISTORY VOL. 25, Nos. I & 2 point for bond drives and other war efforts. The building would eventually become the focal point of a major urban renewal project as it underwent historic preservation.
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