The American Legal History Podcast

Today we have two very special guests, Professor Orville Vernon Burton and Professor Armand Derfner. Their book Justice Deferred: Race and the Supreme Court, is the first that comprehensively charts the Court's race jurisprudence. Addressing nearly two hundred cases involving America's racial minorities, they explore the parties involved, the justices' reasoning, and the impact of individual rulings. Orville Vernon Burton is a prizewinning author of many books, including The Age of Lincoln. He is the Judge Matthew J. Perry Chair of History at Clemson University and Emeritus University Scholar at the University of Illinois. Inducted into the Morehouse College Martin Luther King Jr. Collegium of Scholars, he is also a recipient of the Southern Historical Association's John Hope Franklin Lifetime Achievement Award. Armand Derfner, a graduate of Princeton University and Yale Law School, has been a civil rights lawyer for more than a half century.  As part of that work, he helped shape the Voting Rights Act in a series of major Supreme Court cases and in work with Congress to help draft voting rights and other civil rights laws.  He is currently Distinguished Scholar in Constitutional Law at the Charleston School of Law. 

In this episode we will explore American law between the Revolution and the Civil War. Sometimes referred to as the Golden Age of American Law, it featured some of the most celebrated lawyers and judges in our history. We will also take a close look at the development of the common law of contracts and torts. I will tell you about John Marshall's successor as Chief Justice of the United States Supreme Court, Roger Brooke Taney and his very different judicial outlook. Lastly we will examine the extraordinary story of the birth of the business corporation and its impact on American life. 

During the course of the long nineteenth century, a great debate took place between those who wanted to base the law of the United States in common law, and those who wanted it based in codified law. The proponents of the movement had three goals, which can be characterized as procedural, jurisdictional, and aspirational. The movement achieved considerable success with the first two and was at least partially successful with the third. The procedural goal was to replace the elaborate, arcane, and madding system of special pleading with simple and uniform codified court procedures. The jurisdictional goal was an effort to merge the courts of equity with the courts of law, and the aspirational goal was the wholesale replacement of the common law with a comprehensive codified or civil law legal system.

In episode twenty-two, we will continue our examination of the early Supreme Court and the staggering impact of Chief Justice John Marshall on the Constitutional development of the early Republic. Most of the cases discussed in the episode were decided between 1810 – 1823, the most productive period in Supreme Court history, during this time Marshall and his fellow justices, were at the height of their intellectual and persuasive powers. Cases discussed include: Fletcher v Peck; United States v. Hudson and Goodwin; Martin v. Hunter's Lessee; United States v. Coolidge;  McCulloch v. Maryland; Trustees of Dartmouth College v. Woodard,  and Gibbons v. Ogden 

In episode twenty-one we will discuss the early years of the United States Supreme Court and the most influential Chief Justice in its history, John Marshall. We will examine in detail what is considered the most famous case in American legal history, Marbury v. Madison (1803). We will also explore the origins of judicial review, the power of the court to determine if a statute, case, or treaty comports with the Constitution. We will end with an examination of how Marshall and the United States Supreme Court were able influence nearly every important political issue of the first half of the nineteenth century.

In Episode twenty, we will take a close look at the creation and substance of the first ten Amendments of the Constitution of the United States; The Bill of Rights. We will also discuss the three distinct eras of Constitutional growth and the strange story of the twenty-seventh Amendment. 

In episode nineteen, we will examine the fight and the procedures utilized for the ratification of the Constitution of the United States. Often treated by historians as little more than a postscript in the process, it did in fact represent, in itself,  a great epoch in American political thought and development. The debate and votes which lasted a bit less than a year were thorough, egalitarian, passionate, thoughtful, and non-violent. In addition to ratification it also planted the seeds for the first political parties. 

In  episode eighteen, we will deal with what would prove to be the most contentious issue of the summer proportional representation, discuss some the lessor known contributors to the final form of the Constitution, we will also examine the work of the so called “Committee of Detail” a little discussed but an incredibly influential body on the final form of the Constitution and last the election and power of the executive branch.

In episode seventeen we will continue with our fascinating discussion on Federal Indian Law with one of the most distinguished scholars in the field Professor Matthew L.M. Fletcher. In this wide-ranging interview examining Federal Indian Law from the mid-nineteenth century to the present day, we will cover the 1846 case of United States v. Rogers, the Treaty Era, the Removal Era, the Allotment Era and the 1903 case of Lone Wolf v. Hitchcock. In addition, we will examine the federal government's efforts to assimilate Indian children, and the 1887 Dawes Act, the Indian New Deal, the Termination Era, the Era of Self-determination and last the 1978 Indian Child Welfare Act. Matthew L.M. Fletcher is the Harry Burns Hutchins Collegiate Professor of Law at the University of Michigan School of Law, and is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians. He has also published numerous casebooks and treatises on Federal Indian Law and is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk, http://turtletalk.wordpress.com/.

In Episode 16 we are going to take a break from our linear march through American Legal History to present an interview with Professor Matthew Fletcher. He is in short, the most important legal scholar in the discipline of Federal Indian Law in the United States. Matthew L.M. Fletcher is the Foundation Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He also sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court. He is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians. He has also published numerous casebooks and treatises on Federal Indian Law and is  the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk, .

This is the third of several episodes on the creation, ratification, and implementation of the Constitution of the United States. In this episode we will examine the opening stages of the Constitutional Convention. We will look at James Madison's long preparation process, the venue in which the deliberations took place, and the nature and character of the 55 delegates. Lastly, we will examine the three major plans for the new national government: the Virginia Plan, the New Jersey Plan, and the Hamilton Plan.

This is the second of several episodes on the creation, ratification, and implementation of the Constitution of the United States. We will discuss the many factors that led to the decision of 12 of the 13 states' to send delegates to Philadelphia in the summer of 1787. These factors include: the many security threats facing the young republic, the dismal financial state of the Confederation, disputes between the states, and Shay's Rebellion, just to name a few. 

This is the first of several episodes on the Constitution of the United States. We will examine the many factors that immerged in the 1780s that led to the calling of the Constitutional Convention. We will also look at the incredible story of the Convention itself, the fascinating personalities and behind the scenes deals that made the document possible. In the episode we will examine the Articles of Confederation, the Confederation Congress, and America in 1787.

In episode twelve we will discuss the end of the so called "quiet period" with the passage of the Tea Act in 1773. The Boston Tea Party and Parliamentary reaction; the First and Second Continental Congress and efforts at reconciliation. We will examine the impact to Tom Paine's earth-shaking pamphlet Common Sense. The drafting, editing, and political theory underpinning the Declaration of Independence and finally the Revolutionary War and the strategies that led to America's improbable victory. 

The most interesting fact about the American Revolution, which makes it unique in the annals of all our wars, is that it was the unintended consequence of a dispute about the law. Two principle arguments emerged on both sides of the Atlantic and it was the failure to reconcile these competing views of the law that led to open warfare in 1775, and the decision in 1776 of 13 of the British colonies to declare their independence. In episode eleven we will examine the legal arguments on both sides, the role of the French & Indian War as a prime mover in the dispute, the Royal Proclamation of 1763, the Stamp Act, important court cases and more. 

In episode ten we will discuss the deadliest war in American history as a proportion to population, King Phillips War. Native American legal culture in the south; the importance of the Amerindian Confederacies in the 17th and 18th centuries. The different perspectives of the Crown and the colonies toward Native peoples. The Marshall trilogy and Indian removal. 

In episode nine we will explore the fascinating but often neglected topic of the influence of Amerindians on the law. We will discuss why the English gained supremacy along the North American coast at the expense of other European powers; how "virgin soil epidemics" devastated indigenous peoples throughout the New World; the starkly different world views concerning the possession of land and concepts of ownership; the Amerindian method of dispute resolution and finally the sad legacy of early military conflicts between the new comers and native peoples.

In episode eight we will continue our examination of the law in early Colonial America. First, we will examine the trial and banishment from the Massachusetts Bay Colony of Anne Hutchinson in 1637. Next, we will discuss one of the strangest episodes in American legal history, the Salem Witch Trials of 1692. Last, we will take on the codification of law in the 17th century, with a particular emphasis on the 1648 Laws and Liberties of the Massachusetts Bay Colony.

In this episode we will explore the motivations for the founding of colonies in British North America; how their corporate charters served as a template for the organization of their governments; the highly coercive legal system initiated in Jamestown to control the immigrants; the Massachusetts Bay Colony, its founding, leaders, religious beliefs, and governmental structure; a big-picture view of the court structure, and organization throughout the colonies; social services and business regulation throughout the colonies; and the Protestant Ethic and its impact on subsequent American legal history. 

In Episode Six, Part II, on the birth of the Common Law in Medieval England, we will discuss the origins, legal significance, and enduring legacy of "Magna Charta." In addition, we will examine the abolition of the "ordeals" as the principle method of determining the guilt or innocence of those accused of major crimes, the effect on legal procedure, and the changing role of the jury in wake of their abolition. We will also look at civil justice, and the birth, growth, proliferation, and importance of the "writ system."

In the first of two episodes we will explore the origins and growth of the common law in Medieval England. First, we will attempt the difficult task of defining the common law; then we will take a big picture view of English society in the 10th and 11th century,  the feudal system and its influence on the common law. Next, we will look at the revolutionary judicial reforms of King Henry II in terms of criminal law and procedure. Lastly, we will see how a series of important laws paved the way for the introduction of the jury and writ system. 

In episode four we will examine the extraordinary story of the creation of the Corpus Juris Civilis at the direction of the emperor Justinian I in the sixth century. This work was and is the foundational template for all civil law countries today. I will also discuss the lose and rediscovery in Western Europe and the birth of the university. Finally, you will learn about the merger of Roman law, canon law, and feudal law to form a common legal culture the ius commune across continental Europe.

In episode three we will examine the unwritten Spartan legal code, so coercive that one historian has described it as a "human molding" system, We will also look at the creation and enduring legacy of Rome's first written code of laws, the Twelve Tables, Last, we will examine the origins and practice of law in Classical Athens and Republican Rome. 

In this episode we will begin with a note on how we measure time. Then we will look at the Laws of the Bible and the Mitzvot. The Greek contribution to the development of the law through an examination of their law codes, philosophy, and theater. 

In Episode One you will learn about the science of human equality; the ancient roots of the law and the steps in its evolution; the Code of Hammurabi and the astonishing sophistication of the Mesopotamian legal system. 

This podcast will trace the history and evolution of American Law from its most ancient roots, through the birth of the Common Law in medieval England, the early colonial and revolutionary era, through the early days of the Supreme Court, the Civil War years, the tumultuous twentieth century, and on to the present day. Although legal theory and philosophy will be discussed it is not a podcast on jurisprudence. The entire podcast should have about 60 installments, with each episode approximately 30 minutes in length.