Telling the Story of the Hughes Court

When Justice Oliver Wendell Holmes, Jr., died in 1935, he left the bulk of his estate to the United States Government. This gift, known as the Oliver Wendell Hnlmes Devise, sat in the Treasury for about twenty years, until Congress set up a Presidential Commission to determine what to do with it. The principal use of the money has been to fund a multivolume History of the United States Supreme Court. The history of the project itself has not always been a happy one, for some of the authors have been unable to complete their volumes. Among them was one of my teachers, the late Paul Freund, who was the first general editor of the project and also planned to write the volume on the period in which Charles Evans Hughes was Chief Justice, from 1930 to 1941. I have had the good fortune to receive the succeeding assignment to write this volume. I feel fortunate to be part of the Devise History not only because it places me in a wonderful neighborhood of authors, but also because it is a tremendously important prosect; its period of gestation has been very long, but so will be its shelf-life. And I feel particularly fortunate to have the Hughes Court assignment not only because I have already spent considerable time studying the Hughes Court - in what seems like a prior life, I wrote a dissertation on Hughes as Chief Justice - but also because of the importance of the period. For the Court, as for society at large, this was an era of enormous turmoil and transformation. Indeed, I believe it was The Crucible of the Modern Constitution. That, at any rate, will be the subtitle of my volume. The period began with what has been called the old constitutionalism still apparently dominant, continued through the crisis that culminated in the struggle over Franklin Roosevelt\u27s plan to pack the Court in 1937, and ended as the Justices appointed by Roosevelt consolidated their hold on the Court and on the dramatically new constitutionalism that still prevails. So I have a story to tell and a mystery to solve. The story is of how this transformation was achieved. And at the heart of the ston lies this mystery: In the spring of 1937, shortly after Roosevelt\u27s landslide re-election victory and during the height of the Court-packing battle, the Court seemed suddenly to become more liberal. To what extent, if any, did these political factors account for this apparent suitch? But implicit in this question, as I have phrased it, is another: To what extent was there actually a suitch

Chief Justice Hughes\u27 Letter on Court-packing

After one of the great landslides in American presidential history, Franklin D. Roosevelt took the oath of office for the second time on January 20, 1937. As he had four years before, Chief Justice Charles Evans Hughes, like Roosevelt a former governor of New York, administered the oath. Torrents of rain drenched the inauguration, and Hughes’ damp whiskers waved in the biting wind. When the skullcapped Chief Justice reached the promise to defend the Constitution, he “spoke slowly and with special emphasis.” The President responded in kind, though he felt like saying, as he later told his aide Sam Rosenman: Yes, but it’s the Constitution as I understand it, flexible enough to meet any new problem of democracy-not the kind of Constitution your Court has raised up as barrier to progress and democracy. Roosevelt’s emphasis in pronouncing the oath was not lost on the crowd; some thought he repeated it “as if it had been an accusation.” Nor, Rosenman was sure, was there any doubt that Hughes, sitting just behind the rostrum, understood the President’s emphasis when he declared in his address that the people “will insist that every agency of popular government use effective instruments to carry out their will.” Though the Supreme Court had upheld some of the responses to the Depression attempted by the New Deal and the states, several of its decisions, particularly those invalidating New Deal programs, had frustrated the President immensely

Who Must Testify to the Results of a Forensic Laboratory Test? Bullcoming v. New Mexico

Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report through the in-court testimony of a supervisor or other person who did not perform or observe the reported test

Just Say No to the Cheap Double Play

The Infield Fly Rule has drawn a considerable amount of attention from legal scholars for nearly half a century. Much of the writing, in keeping with the tone of the keynote work discussing the rule, the famous Aside by William Stevens published in the University of Pennsylvania Law Review in 1975, has been whimsical and ironical. But the Aside was also a genuine piece of legal scholarship. And now, Howard Wasserman has written a book—an entire book!— on the rule, and done so without whimsy or irony

Controlling the Jury-Teaching Function

When evidence with a scientific basis is offered, two fundamental questions arise. First, should it be admitted? Second, if so, how should it be assessed? There are numerous participants who might play a role in deciding these questions—the jury (on the second question only), the parties (through counsel), expert witnesses on each side, the trial court, the forces controlling the judicial system (which include, but are not limited to, the appellate courts), and the scientific establishment. In this Article, I will suggest that together, the last two—the forces controlling the judicial system and the scientific establishment—have a large role to play in determining how statistically based evidence shall be explained to, and may be used by, the jury. For this purpose, the scientific establishment includes not only statistical experts but also legal academics with an expertise in problems of inference and proof; they should assist the judicial system in devising pattern instructions to help the jury avoid well-recognized pitfalls in handling statistical evidence in certain well-defined and recurrent circumstances. Trial courts should be required to give those instructions in the prescribed circumstances, and neither the parties (themselves or their counsel) nor their experts should be allowed to say anything at variance with those instructions

The Crawford Transformation

Crawford v. Washington, 124 S. Ct. 1354 (2004), is one of the most dramatic Evidence cases in recent history, radically transforming the doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Crawford is a very positive development, but leaves many open questions - and forces Evidence teachers to rethink how they teach hearsay and confrontation

Irrelevance, Minimal Relevance, and Meta-Relevance (Response to David Crump)

Professor Crump\u27s analysis runs the full traverse from academic theorizing to practical observation. I will attempt to follow him over the same course, addressing three questions among the congeries that he raises. First, is it true that all evidence satisfies the minimalist definition of relevance? Second, should evidentiary codes include a tighter definition of relevance? Third, how should we assess lawyers\u27 use of evidence that, loosely speaking, is irrelevant

Grappling with the Meaning of \u27Testimonial\u27

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word testimonial

The Death and Transfiguration of Frye

The rule of Frye v. United States was seventy years old, and had long dominated American law on the question of how well established a scientific principle must be for it to provide the basis for expert testimony. Even after the passage of the Federal Rules of Evidence, several of the federal circuits, as well as various states, purported to adhere to Frye\u27s general acceptance standard. But now, unanimously, briefly, and with no apparent angst, the United States Supreme Court has held in Daubert v. Merrell Dow Pharmaceuticals, Inc. that the Frye rule is incompatible with the Federal Rules