The Volokh Conspiracy
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Today in Supreme Court History: May 6, 1776
5/6/1776: Virginia Declaration of Rights by George Mason is published. Thomas Jefferson relied on this document when drafting the Declaration of Independence.
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United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (decided May 6, 1940): important antitrust case which holds that price fixing agreements (here, between oil companies as to tank car prices) are per se illegal under the Sherman Act; famous for its footnote 59, which notes that it is not necessary that there be power to fix prices, nor intent, nor even any overt act (I suppose there still must be “winking”)
Paige v. Banks, 80 U.S. 608 (decided May 6, 1872): I didn’t know that the appointed reporter of decisions (of the Court of Chancery, at the time the highest court in New York) could have a copyright on his manuscripts of the decisions. Here, Mr. Paige (of “Paige’s Chancery Reports”, who served as reporter while moonlighting as a state senator) lost his copyright by failing to give notice of renewal. He died in 1868, and the Court of Chancery was abolished in 1847. Currently the highest court is called the Court of Appeals, and after 30 years of practice in that state I have as much chance of appearing in that court as I do of getting into a time machine and having Mr. Paige transcribe my arguments.
In re Kansas Indians, 72 U.S. 737 (decided May 6, 1867): a state can’t tax land owned by Native Americans on reservations
Mathis v. United States, 391 U.S. 1 (decided May 6, 1968): IRS investigator conducting a “routine tax investigation” must give Miranda warnings if person is in prison (it was for an unrelated offense)
Fok Yung Yo v. United States, 185 U.S. 296 (decided May 6, 1902): courts can’t review decision of customs official to deport Chinese citizen
Sayward v. Denny, 158 U.S. 180 (decided May 6, 1895): Supreme Court doesn’t automatically accept writs of error from state courts; it decides by itself whether a federal question is involved, and if so, it must be central to the case
Schware v. Board of Examiners of New Mexico, 353 U.S. 232 (decided May 6, 1957): Details a bar applicant’s complicated history, including past membership in the Communist Party and being forced to take an alias to avoid anti-Jewish prejudice. The Court holds that New Mexico wrongfully denied his license in violation of the Equal Protection Clause. An interesting opinion to read.
Konigsberg v. State Bar of California, 353 U.S. 252 (decided May 6, 1957): denial of Equal Protection to deny bar admission due to articles published criticizing the Korean War, past membership in the Communist Party and refusal to answer questions about political affiliations; no showing that he advocated government overthrow (people got denied on much lighter grounds; in the 1990’s the New York Law Journal — the world’s most boring newspaper, which every N.Y. attorney was required to read every day — ran a more or less innocuous series of reminiscences by Mordecai Rosenfeld, “A Backhanded View of the Law”, but I remember one with real bite, as to being flunked at a Good Character interview because he did work for a group headed by Eleanor Roosevelt)
Federal Power Comm’n v. Sunray DX Oil Co., 391 U.S. 9 (decided May 6, 1968): The Federal Power Commission (now the Federal Energy Regulatory Commission) must set prices (and issue certificates) allowing producers to sell to pipelines so as to benefit consumers, but at the same time, if it sets prices too high, the producers simply won’t produce. This complicated opinion by Harlan (which is pre-Chevron) is a course in itself on how the administrative state dealt with the oil industry. It holds that the “pipeline proceeding” set up by the FPC was proper and affirms the resulting decision as to pricing and refunds.
Tigner v. Texas, 310 U.S. 141 (decided May 6, 1940): overruling Connolly v. Union Sewer Pipe Co., 1902 (see March 10) and holding that state statute exempting agricultural/livestock producers from criminal antitrust liability (though still could be liable in civil suit) did not violate Equal Protection (due to changed economy requiring cooperation between farmers)
“I didn’t know that the appointed reporter of decisions (of the Court of Chancery, at the time the highest court in New York) could have a copyright on his manuscripts of the decisions.”
The original reports of decisions were not official; they were a form of for profit legal journalism. The first Supreme Court reporter of decisions in this country, Alexander Dallas, was a legal reporter working for a newspaper.
And of course these reports contained headnotes, annotations, syllabi, etc., and even their reports of what the judges/justices/lords said were not verbatim transcripts. So of course the reports were copyrightable and in many cases copyrighted. Of course, they were subject to what eventually evolved into the fair use doctrine- the use of a quotation or snippet was de minimis and did not constitute actionable copyright infringement. But if someone tried to copy the entire reporter or a whole bunch of cases wholesale it would have.
In 1874, Congress nationalized the Supreme Court reports. And of course, as the transcription of oral remarks from the bench was replaced by written opinions, the amount of uncopyrightable material in court reports grew. Plus big legal publishers like West and Bancroft-Whitney started buying up the individual reporters’ franchises and producing official reports. That’s what got us to where we are now.
Thanks!
Wonder if he screwed his Slaves like Tommy the J did.
My assumption (which comes in part from the observations of Mary Chesnut, the confederate sympathizing diarist of the Civil War who traveled in the highest circles of the confederacy and wrote openly about how everyone had Black children on the plantations who look just like the masters) is that most slaveholders raped slaves.
“Having sex with” is the same as “rape” in that situation. The slave can’t very well refuse. I suppose there were situations where the slave felt like she wanted it but how would she know there wasn’t subconscious coercion?
It’s all rape. As you say, it’s impossible to read slaves’ minds, but how many slaveholders gave their female slaves any real opportunity to refuse? And of course, there were all sorts of favors and favoritism dangled in front of those who did what the master wanted as well. There’s just now way to come up with any coherent theory of consent in that situation. It was all rape.
Think of a similar situation happening today and it sure looks like rape.
“Virginia Declaration of Rights by George Mason is published”
The Virginia Declaration had an escape clause to protect slavery – you had to be admitted into a state of society in order to enjoy fundamental rights. Slaves of course weren’t considered members of society.
The Continental Congress, in contrast, said all men* are created equal and have rights, without mentioning exceptions.
*Which under the sexist standards of the day was in this context a broad term including women.
“Men” was the standard term for describing adult humans in general. As late as the 1960s even feminists used it in that way.
However it was also (of course) used to describe male adults and the Founders understood it that sense.
Mason inherited his life and owned many slaves throughout his life.
What kind of assholes would name a school after him?