The jury trial . . establishing credible knowledge

 "A core function of the jury trial is to discriminate between truth and falsehood, and so the courtroom offers an instructive microcosm of the American struggle to establish credible knowledge amid the disorientation of modernity."

Andrew Porwancher, John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law at 1 (2016)

Louie Gohmert sues Mike Pence for a declaratory judgment holding the Electoral Count Act unconstitutional! Sorry, Louie, that is ridiculous.....

December 28, 2020

Yesterday, Sunday, December 27th, Congressman Louie Gohmert of Tyler, Texas filed a civil action (No. 6:20-cv-00660-JDK) in the U.S. District Court for the Eastern District of Texas, seeking a declaratory judgment holding the Electoral Count Act unconstitutional under the 12th Amendment, in his hope of undoing the results of the presidential electors' votes and give the election to the loser, Donald Trump.

 I will have more to say, but having read his complaint and accompanying motion for expedited relief: Louie, your pleading is ridiculous.

December 31, 2020

The federal judge in this case set an expedited response deadline for the Vice President of today at 5:00pm, and the Justice Department filed a response for him. It rather weakly says that Gohmert sued the wrong defendant -- should have sued the houses of Congress. That is the solely ground of defense to Gohmert's request for emergency, injunctive relief against Pence. Immediately thereafter counsel for the House of Representatives filed a brief in opposition that is fuller, stronger, and better drafted. 

With Pence not acquiescing to Gohmert, this gambit seems doomed. I certainly hope so as Gohmert's request is almost pathetically insupportable. I will continue to watch the docket in this case.

January 1, 2021

The District Court in Tyler dismissed the complaint for lack of jurisdiction because Gohmert and the other putative plaintiffs lack standing. The order of dismissal, containing the court's opinion, was entered just hours after Gohmert filed his reply to the Vice President's response (not a strong pleading, by the Justice Department, but it did the job). 

January 2, 2021

Gohmert appealed, but the same day the Fifth Circuit Court of Appeals entered its per curiam order affirming the District Court. Next destination for Gohmert in this quest--which I labelled as ridiculous initially but now must call absurd--the SCOTUS!

"Twilight zone that lies between living memory and written history"

"[The] twilight zone that lies between living memory and written history is one of the favorite breeding grounds of mythology." 

C. Vann Woodward, The Strange Career of Jim Crow xvi (New York: Oxford University Press, 1955, reissued 2002).

"We can but find out what its significance was, and this is the work of historians"

"Philosophies of history attempt to capture the future without realizing that if we knew the future, we could control the present, and so falsify statements about the future, and so such discoveries would be useless. We capture the future only when it is too late to do anything about the relevant present, for it is then past and beyond our control. We can but find out what its significance was, and this is the work of historians: history is made by them."

Arthur C. Danto, Narration and Knowledge at 284 (1985). 

From an earlier "Texas" case in the SCOTUS

I hope I've made clear that I find Ken Paxton's recent state-versu-state filing in the Supreme Court of the United States styled Texas v. Pennsylvania et al, to be at the least insupportable and ill advised and really an embarrassment to our State--and I have a large question whether he had any authority to file it. But it is the holiday season now, so I offer something a lot better, from an earlier "Texas" case in the U.S. Supreme Court:

"Life, liberty, property and the equal protection of the law, grouped together in the Constitution, are so related that the deprivation of any one of those separate and independent rights may lessen or extinguish the value of the other three."

Smith v. Texas, 233 U.S. 630, 636 (1914).

An important part of Texas legal ethics

An important part of the legal ethics applicable to lawyers licensed in Texas or practicing in its courts or in the federal courts situated within the state:

Texas Disciplinary Rules of Professional Conduct

Sec. 8.03 Reporting Professional Misconduct

(a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

My review of Arthur Downey's book, Civil War Lawyers

Arthur T. Downey, Civil War Lawyers:  Constitutional Questions, Courtroom Dramas, and the Men Behind Them (Chicago: American Bar Ass’n, 2010)

The title of this book is long but apt. The author, like me, a retired lawyer, covers those things that lawyers and avid readers of nonfiction love to hear and read about most, in any era, monumental legal issues and gripping courtroom dramas. When the era is the Civil War, the book instantly is all the more deserving of a look. But while the pathbreaking, nationally significant legal issues of that period are described, this book’s greatest contribution is to place some of the focus on those persons who actually formulated and wrestled with those issues and who also conducted the high-profile proceedings in courtrooms: the lawyers with responsibility for these matters.  

This book is that of a lawyer-author, not a historian. But it is reasonably well written, and lawyers above all other readers will find it a satisfying account. It is in fact a nice addition to the literature both of the Civil War and of legal history. In this book, Downey observes, correctly, of course, that “the history of the American Civil War period is often focused exclusively on military events,” and that one overlooked facet or element of Civil War history is “the legal issues and the lawyers who addressed those issues.”  Accordingly, his purpose is to show how significant the law and the lawyers were during “that tortured period.”  

Indeed, Downey’s thesis is that “The law, and the lawyers, dominated many of the fundamental elements of American life, social relations, economics, and the conduct of the War itself.” (emph. Added)  It was Supreme Court arguments and Presidential decisions on constitutional issues, “as well as the tense courtroom trials where individual lives were at stake,” that shaped the War legally. The law and the lawyers were “unusually important during the Civil War period. . . the warp and woof of its fabric.”

The argument Downey posits for a paramount significance of “the law and the lawyers” for and in the Civil War has three steps.  The first is to point out the key role, indeed the predominance, of lawyers in American politics and public life over the entire period from the Founding of the Republic to the Civil War.  Most Presidents were lawyers, and certainly the national legislature was filled with lawyers.  As de Tocqueville observed in the 1830s, American lawyers “naturally form a body. . . the community of studies and unity of methods bind their mind to one another as interest could unite their wills.”  And so, it is unsurprisingly, says the book, that all the key members of Lincoln’s Cabinet were all lawyers, or that all of Lincoln’s key diplomats were lawyers, or that the five men who tried to end the War at the Hampton Roads Peace Conference on February 3, 1865, were all lawyers.

The second step of the Downey argument is to zero in on seven legal issues and events of the period that he contends to have affected or influenced the course of events. Necessarily, in less than 300 pages, Downey must restrict his evidence and admittedly he ignores other important legal issues, most not decided or determined after the War, including the Legal Tender Cases, the Enrollment Act of 1863 (the nation’s first draft law), and Lincoln’s adoption of the Lieber Code in April 1863, the first military code of conduct for the U.S. Army in wartime.

The third step is to present the key lawyers themselves.  They were, Downey argues, “larger than life” and, he goes to some pains to show, how highly interconnected, or as he puts it, how their professional lives “intersected” in various ways.  

So to ground the presentation of his claim about the importance of “the law and the lawyers,” the author begins with a “30,000 foot” overview of American legal history since the American Revolution, commencing with the Declaration of Independence, the Articles of Confederation, and the Constitution.  With respect to the Constitution, he notes, “slavery was an issue, but that word did not appear in the Constitution. . . .  Slavery was camouflaged; it was orchestrated silence.  But that does not mean the Constitution was neutral on the subject:  to the contrary, it tilted in a pro-slave direction.”  The author cites the provisions for temporary protection of the slave trade, the 3/5 rule for legislative apportionment, and the obligation to return escaped slaves.  

And it was, of course, slavery that came to dominate American politics, more and more and more in the succeeding decades as the nation worked through the Missouri Compromise of 1820 and the Compromise of 1850 brokered by Henry Clay.  And as the nation became increasingly polarized over slavery, the infamous Dred Scott case began its way through the courts, beginning with a Missouri state trial court in 1846.

Downey takes time to lay out the Dred Scott v. Sanborn decision because, even though it was rendered before the War, the decision was central to the mindset of Americans of both North and South as the nation moved steadily toward and into civil war.  

Dred Scott was a slave owned by an army surgeon, Dr. John Emerson.  In 1834 Emerson moved up the Mississippi River to a fort in Illinois, a free state, and brought Scott with him.  Later he moved further North into Wisconsin and Iowa territories that would later become the state of Minnesota.  In 1836 Emerson acquired another slave, Harriett, and, with the owner’s consent, Dred and Harriett married.  In 1838 Emerson moved the Scotts to Louisiana, a slave state.  In 1842, Emerson and the Scotts returned to St. Louis.  He died in 1843 and left his estate to his wife and appointed his wife’s brother, John Sanford, a wealthy merchant in New York as executor.  Mrs. Emerson “hired out” the Scotts and collected the wages, including to an army officer who took them to Texas for a time.  In 1846 Dred Scott attempted to buy his freedom from the widow Emerson but without success.

Missouri law provided that a slave could petition a court to become free.  This statute was originally enacted in the Louisiana territory in 1807 and in 1824 became Missouri law.  In April 1846 attorney Francis Murdock filed papers for the Scotts under this freedom statute in the Missouri circuit court for the City of St. Louis.  In June 1847 the case went to trial and the jury found for Mrs. Emerson.  However, due to the use of hearsay, a new trial was ordered.  In the second trial in January of 1850, both parties had new lawyers.  Sanford had completely taken over the widow Emerson’s affairs, and she had actually moved to Massachusetts.  The judge instructed the jury that residents in a free state or free territory would destroy the Scotts’ slave status and therefore if the Scotts had in fact resided in a free area, such as Illinois or Wisconsin/Iowa territory, they would be set free. The jury found that the Scotts would be set free.

Sanford appealed to the Missouri Supreme Court, which on March 22, 1852 reversed the decision and held that Scott was still a slave. The decision was inconsistent with decades of Missouri law on the subject, and the author suggests that it was strictly a political decision.  The Scotts’ new lawyer, Roswell Field, then figured out a way to bring the issue into the federal court system.  

Alleging diversity of citizenship of Scott, Emerson, and Sanford, Field brought suit in federal court, arguing the Scotts were assaulted and falsely imprisoned by Sanford.  This suit went to trial in May 1854.  Sanford took the position that Scott was not a “citizen of Missouri” because he was of African descent.  A federal judge rejected that position but instructed the jury that Scott’s status was to be determined by Missouri law; and since the Missouri Supreme Court had already decided that Scott was still a slave, the jury ruled in Sanford’s favor and the Scott family remained slaves.  

Scott’s lawyer filed an appeal to the U.S. Supreme Court in December 1854.  Both sides sought and obtained top lawyers to assist in the argument to the Supreme Court.  The Scotts’ St. Louis lawyer persuaded Montgomery Blair to take the case without a fee. He was a member of the free soil wing of the Democratic party opposed to the spread of slavery but not opposed to slavery itself. Joining him was George T. Curtis, a famous lawyer who happened to be the younger brother of Supreme Court Justice Benjamin R. Curtis.

Sanford retained post-slavery Senator Henry Geyer of Missouri and Reverdy Johnson of Maryland, a former U.S. senator and U.S. attorney general and perhaps the most renowned constitutional lawyer in the United States. The case was set for oral argument on February 11, 1856. Arguments lasted four days.  The briefs focused on whether persons of African descent could be citizens of the United States, whether Congress had the power to prohibit slavery in the territories, and whether the Missouri Compromise of 1820 was constitutional.  

The court was terribly divided, and it continued the case and set re-argument, perhaps because 1856 was proving to be a contentious presidential campaign year.  The re-argument was held December 15, 1856 after President James Buchannan had been elected. The argument took more than twelve hours spread over four days. By this time Dred Scott’s name had become familiar to most Americans.  

Chief Justice Roger B. Taney, just short of his 80th birthday, rendered the decision on March 6, 1857. The decision is 240 pages long.  The Chief Justice’s majority opinion is 55 pages; it took him two hours to read it.  The other justices concurring and dissenting opinions took another five hours to read the following day.  The decision was that “Scott is not a citizen of Missouri in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason had no jurisdiction in the case.” Seven of the nine justices agreed that Dred Scott was still a slave.  

Taney framed the initial issue “Can a Negro, whose ancestors were imported into this country and sold as slaves . . . become entitled to all the rights and privileges . . . guaranteed by The Constitution to the citizen . . .?” Taney grounded his decision in his understanding of the intentions of The Founders which was, he maintained, that Africans had “no rights which the white man was bound to respect.”

Taney could have stopped there, finding that the federal court had no jurisdiction.  But he forged ahead. He reviewed the facts that Scott once lived in a territory which, as a result of the Missouri Compromise of 1820, had prohibited slavery.  Concluding that Scott was mere property like any article of merchandise, freely transportable in and among the United States, the Chief Justice then held that the Missouri Compromise of 1820 was unconstitutional and void. And so, for this additional reason, Scott was not made free by virtue of having been brought into a free territory.

The reaction in the South was, unsurprisingly, pleased, while in the North reaction was mixed.  Northern business interests saw the slavery debate as a threat to commerce and hoped the decision would minimize the issue and let the nation get on with Western settlement. For the new Republican Party, however, the decision was a threat because it undercut its platform calling for a ban on slavery in the territories.  Republicans therefore determined to overturn the case via the Presidential appointment powers after winning the next election in 1860.  The result was increasing bitterness between the North and the South.

From that monumental Supreme Court decision, Downey turns to a famous pre-war courtroom scene, the trial of Virginia v. John Brown. Brown, his sons, and followers had participated in the violence in Bleeding Kansas in 1856, including killing pro-slavery settlers.  Newspaper articles brought some notoriety, and Brown began to raise large sums in New York, Massachusetts, and other states to buy rifles and pikes, in order to take the battle into the South.  In October 1859, Brown and 18 men crossed from Maryland into Harpers Ferry, Virginia, and seized the federal arsenal, with the goal of inciting a slave insurrection.  Within 24 hours, Col. Robert E. Lee and 90 Marines arrived from Washington and laid siege to the engine house.  An assault captured Brown and six others.

Prosecution might have taken place in federal court, since the arsenal was federal property, but the Virginia courts were much more accessible and Gov. Henry Wise secured the acquiescence of President James Buchanan after a Cabinet meeting.  The charges were treason and murder.  Wise promised a fair trial, and the court did assign competent local lawyers for the accused.  The trial occurred from October 25-31, 1859.  Brown’s lawyer initially pled insanity, but Brown rose and repudiated it.  After two days, the local lawyers resigned, but three Northern lawyers, funded by Brown’s backers, arrived to take up the defense.

After thirty minutes, the verdict was guilty.  The court asked Brown if he had anything to say, and he addressed the court, stating that he had not intended treason or murder.  He concluded:

If it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood with the blood of my children and the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments—I submit; let it be done!

The court sentenced Brown to hang.

Downey calls this trial “the first modern courtroom event,” with daily media coverage thanks to the telegraph.  Brown was not a stranger to the courtroom, and he used this one as a stage to project a battle of good vs. evil.  After the trial, his lawyers hired William Green, the best lawyer in Richmond, for the appeal, and he filed a good, printed 16-page brief in record time.  The Attorney General of the Commonwealth, John Randolph Tucker, filed nothing and no argument was held. In 24 hours, the Virginia Court of Appeals denied the appeal.

The day before the execution, Brown asked the prosecutor, Henry Hunter, to prepare a will, which he generously did. On December 2, 1859, with 1000 troops at attention, including John Wilkes Booth as a member of the Richmond militia, Brown was hanged. Immediately he was demonized in the South and beatified in the North, and the nation lurched closer toward war.

Next, Downey tackles the issue of secession. I will not recapitulate Downey’s take on it, except to note his emphasis on the role of lawyers in advising both Buchanan and Lincoln about it, as South Carolina slid to secession at the very end of the former’s administration. 

In South Carolina, as soon as the ordinance of secession was adopted, all federal officials resigned, and the agencies of the national government in that state literally ceased to function.  President Buchanan’s cabinet was divided, so he called for an opinion of his Attorney General, Jeremiah Black, as to the authority of the President to respond to an act of secession.  Within 72 hours, Black delivered a ten-page opinion that “you may use such parts of the land and naval forces as you may judge necessary, for the purpose of causing the laws to be duly executed” and also to protect federal property such as forts, dock yards, and custom houses.” As for secession, only Congress, not the President, could recognize and deal with a declaration of secession of a state.  

That legal opinion animated Buchanan’s State of the Union address in January 1861:  the federal government would act only defensively with respect to a seceding state, it was up to Congress to determine whether to seek to compel a state to remain in the Union, and the Constitution ought to be amended in a spirit of conciliation to avoid secession.

In December Lincoln had issued a statement that there could be no compromise on the issue of slavery expanding into the territories.  On December 20, 1860, South Carolina’s called convention adopted its Ordinance of Secession. By February 9th, seven states had seceded and formed the Confederate States of America (the “CSA”). On March 4th, Lincoln was inaugurated, and in his address Lincoln qua the lawyer stated that ordinances of secession are legally void and asserted that “no State upon its own mere motion can lawfully get out of the Union.” He discussed the legalities of fugitive slave rights and obligations; he also addressed the “contract” theory of the Union:  “one party may violate it, but does that require all to rescind it”? He concluded that he would use executive power to hold and possess the property and places belonging to the national government but “there will be no invasion, no using of force against or among the people anywhere.” Seven days later the CSA elected Jefferson Davis as President.  

The remaining chapter of the book covers legal events during the War.  Downey’s discussion of Ex parte Merryman is one of the strongest parts of the book.  Downey notes that Lincoln’s inaugural address warned the Supreme Court not to meddle in political policy; its decisions are binding only upon the parties to the particular suit, and are not policy for the entire nation. The Associated Press reported that Chief Justice Roger Taney’s hands were shaking during this passage.

Downey is fascinated that both men were lawyers. He notes that in the 1840’s Lincoln argued a case in the Supreme Court and that Taney authored the decision against Lincoln’s client. On Saturday, May 25, 1861, ten weeks after inauguration, a petition for writ of habeas corpus was presented to Taney at his apartment in Washington by two Maryland attorneys for one John Merryman. It alleged that at 2:00am that same morning, a detachment of troops had arrested him in his bed at his home and locked him up in Fort McHenry, Merryman had been informed that he was arrested on order of a General Keim because Merryman was the captain of a militia company, which he denied. Taney was the circuit justice for Maryland, and he traveled to Baltimore the next day and issued a writ ordering the commanding general of the Fort, Gen. George Cadwalader, to appear the next day, Monday, at the federal courthouse, and to bring with him the prisoner.

At the appointed time, a major appeared for the General and read a statement that Merryman was charged with treason and the General was authorized by the President to suspend the writ of habeas corpus.  The Constitution, art I, sec. 9 provides “The Privilege of the Writ of Havbeas Corpous shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” 

So Taney issued a writ of attachment for contempt, ordering General Cadwalader to appear before him the next day, Tuesday.  Apparently, Taney feared that he himself would be arrested that night, a fear the author finds well founded in that in the following months, the U.S. military imprisoned the mayor and police chief of Baltimore, a member of Congress, 31 members of the Maryland legislature, and multiple newspaper editors and publishers. It even arrested a state court judge who was on the bench conducting a trial.  

The U.S. Marshal took the writ to Fort McHenry and was turned away.  At the appointed hour of Noon, Taney announced that we would write an opinion “to be laid before the President, in order that he might perform his constitutional duty, to enforce the laws, by securing obedience to the process of the United States.”  

His June 1 opinion of 20 pages makes a strong case that Lincoln had overstepped his bounds.  The suspension power is in Article I “expressed in language too clear to be misunderstood by anyone.” He reviewed English legal history and noted the violation of a number of Merryman’s constitutional rights. If such rights could be “usurped” by military power, then “the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happened to be found.” Taney placed the burden squarely on Lincoln to discharge his duty.

Lincoln did not respond, until the 4th of July. He sent a message to Congress, and midway through it he claimed a duty to authorize the military to suspend the writ.  He said: “Are all the laws but one to go unexecuted, and the government itself go pieces, lest that one be violated?  Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?”  He concluded that whether there should be any legislation upon this subject is submitted entirely to the judgment of Congress.

Lincoln also asked his Attorney General, Edwin Bates, to prepare a legal opinion. It essentially argued that only the President has the duty to preserve, protect, and defend the Constitution, and that includes the obligation to put down a rebellion, and in doing so must be the sole judge of both the emergency and the manner of exercising power entrusted to him. This is so obvious, he wrote, that “I never thought of first suspending the writ of habeas corpus, any more than I thought of suspending he writ of replevin before seizing arms and munitions destined for the enemy.”  

Downey concludes that Lincoln knew he was on the wrong side of this issue legally, but he felt strong enough politically, with the war getting underway, to ignore Taney’s decision. The next year, Lincoln issued a proclamation suspending the writ everywhere as to “all rebels and insurgents, their aiders and abettors.”  

But Congress was moving forward with legislation on the topic, the Habeas Corpus Act of 1863. It authorized the President to suspend the writ throughout the United States, but it provided a specific procedure to get prisoners out of military hands and into the judicial system. It ordered the Secretary of War to provide to the federal courts lists of all prisoners held (except prisoners of war) and to release those not indicted by the first available grand jury. Thus Congress in effect agreed with Taney.  

And the coda to the story is the Supreme Court’s decision in Ex parte Milligan in 1866.  Milligan was an Indiana lawyer and a strong Confederate sympathizer.  The military arrested him in October 1864 and a military tribunal sentenced him to death in May 1865. His lawyer sought habeas corpus, and the matter reached the Supreme Court in 1866. In a unanimous decision, the Court discharged Milligan.  Under the Habeas Act of 1863, Milligan was entitled to release unless indicted.  “The Constitution of the United States is a law for rulers and people, equally in ware and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances,” the Court held.

So the Court in essence joined Congress is agreeing with Taney’s decision in Merryman.  For Downey, “Lincoln was wrong…personal liberty and national security are not mutually exclusive.  But Lincoln’s decision was perfectly understandable in the circumstances of 1861-62.  The nation was fortunate to have both Lincoln and Taney, a perfect balance in retrospect,” opines the author.

From there Downey moves to the Civil War at sea and the issues of international law and diplomacy that it spawned there.  For instance, in the first year of the war, the commissioning of privateers by the Confederacy and Lincoln’s imposition of a naval blockade resulted in the so called Prize Cases. The Union captured four commercial ships sailing out of Southern ports in violation of the blockade, and the ships and their cargos were condemned in federal district courts. The owners appealed and the cases were consolidated in the Supreme Court. The owners were anxious for a decision, but the Lincoln administration dragged its heels long enough for the President to appoint three new justices that ultimately provided a five-to-four victory for Lincoln. The key issue was whether a state of war existed at the time of the imposition of the blockade. The Supreme Court held “a civil war always begins by insurrection and is never solemnly declared.” The world acknowledges them as belligerents, and the contest is a war. Thus the seizure of all four ships was held to be lawful.

Another strong chapter of the book concerns the ending of slavery. At the beginning of the war in 1861, steps to end slavery were taken as military measures. Finally, in January 1863, Lincoln’s Emancipation Proclamation reflected a major shift in the approach to ending slavery, although with little practical results. Slavery was finally ended in 1865, before the end of the war, with the adoption of the 13th Amendment. Downey ends the book with a short chapter on what he calls “the revenge trials, the trial of the assassination conspirators, the trial of Henry Wirz, the commandant of Andersonville Prison, and the “non-trial” of Jefferson Davis.”

The book ends with an appendix of 100 short bios of lawyers who were prominent in the legal, political, and civic affairs during the Civil War. 

This book points up something that, often, the academic practitioners of legal history overlook and that is the central role lawyers play in the spinning out of such history. Law is the fundamental element of legal history, and while the conceptions of what law is have enlarged in recent decades, see Markus D. Dubber & Christopher Tomlins, eds., The Oxford Handbook of Legal History at 486-89 (2018), but it remains that the "specially skilled, knowledgeable, or experienced person who, serving by mutual agreement as another person’s agent, invokes and manipulates, or advises about, the dispute-resolving or transaction-effectuating processes of the legal system for the purpose of solving a problem or causing a desired change in, or preserving, the status quo for his or her principal" is a lawyer. See Josiah M. Daniel, III, "A Proposed Definition of the Term 'Lawyering',” 101 Law Library Journal 207, 215 (2009). As a lawyer himself, the author Arthur Downey knows this central reality and he shows and explains it in his book. I recommend this book to all interested in American legal history. 

My pecan pie

 Josiah’s Pecan Pie 

1.    In a bowl, combine: 

o    two (2) tbs melted butter

o    three (3) wholesome eggs

o    one (1) cup blend of (a) half sorghum syrup and half Karo light syrup or (b) half regular molasses and half Karo light syrup [note: some people do and some do not like the taste of sorghum syrup, so the molasses alternative is provided] 

o    7/8 cup granulated sugar

o    1-3/4 tsp fine vanilla extract

o    one (1) healthy splash of good-quality bourbon

o   plenty of pecans: (i) halves are great but pieces are just fine and taste the same, and (ii) if you can 

get the smaller size, "native" pecans, use them because they are the tastiest variety

2.    Now here is where finesse comes in. The goal is a pie that is focused on the pecan, a pie in which the filling is not really filling but rather a sort of cement or mortar (to analogize to masonry or building a stone wall), holding the pecans in place and letting them provide the majority of the flavor. On the other hand, you do not want a flat, dry pecan tarte. Use your judgment—but absolutely do not skimp on the pecans such that they will be found at the end floating atop a sea of filling. So if your pie plate is relatively shallow, reserve, say, 1/4 of the mixture and add 1-3/4 cups pecans to the rest. If the result is too dense with pecans, then add more of the reserved portion of the mixture. If the result is too thin and runny, add more pecans. If your pie dish is deeper, then go ahead with the full amount of the mixture and add an additional half cup of pecans. For the pecans, use the small, native pecans if you can get them—they are the tastiest—but in any event pieces work just as well as halves, and the pie will cut more easily if you use pieces. 

3.    Using pie weights, prebake the crust in the pie plate, but not too much. 

4.    Add the mixture with the pecans to the crust. Remember that the baking expands the mixture slightly so do not overfill. 

5.    Bake at 350 degrees. The timing varies depending on depth of the pie dish and unknown and uncontrollable factors such as barometric pressure. A rule of thumb is about 55 min. or so, but definitely check it at about 40-45 minutes, and if the crust is getting too brown, place a sheet of aluminum foil over the pie. If in doubt about done-ness, insert the tines of a fork to judge. 

6. Enjoy!

"The future is unknowable, which is why we study the past."

"The future is unknowable, which is why we study the past. The long record of humanity is the best laboratory we have for understanding how people are likely to act in a range of different, often unanticipated circumstances. Patterns of behavior, not genetics, define markets, organizations, and ultimately societies."

-Jeremy Suri, Historical Thinking for Resilient Leaders, GOVERNMENT EXECUTIVE (Dec. 10, 2020), available at https://www.govexec.com/management/2020/12/historical-thinking-resilient-leaders/170669/

Quo warranto, Ken Paxton? (12/10/2020, updated 12/11/2020)

Texas Attorney General Ken Paxton filed on December 7, 2020, an original action, together with a request for an injunction, in the U.S. Supreme Court styled State of Texas v. Commonwealth of Pennsylvania, and the States of Wisconsin, Michigan, and Pennsylvania, Case No. 220155, seeking to overturn the vote certifications for presidential electors from those four states. The Clerk ordered responsive papers filed by 3pm on December 10th, and the four defendant-states did so. 

Apart from the procedural stance, the averments, and the merits, I ask: by what authority has Ken Paxton filed these papers? 

All the Texas Constitution and the Texas Government Code say, as far as I can see in my quick research just now, about the scope of Paxton's authority are:

Tex. Const.

Art. IV. Sec. 22. ATTORNEY GENERAL. 

The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law.

-and-

Tex. Gov't Code:

        Sec. 402.001. ASSISTANTS. (a) If the attorney general is absent or unable to act, the attorney general's first office assistant shall perform the duties of the attorney general that are prescribed by law.

(b)  The attorney general shall, at the request of an agency, designate one or more assistants to attend the meetings of the agency if the attorney general served as an ex officio member of the governing board of the agency on August 23, 1963.

 Sec. 402.002.  REGISTER.  (a)  The attorney general shall keep in a proper book a register of:(1)  the official acts and opinions of the attorney general;  and (2)  actions, demands, and related proceedings involving state revenue prosecuted or defended by the attorney general or a district or county attorney. (b)  The attorney general shall deliver the register to the successor to that office.

Sec. 402.003.  REPORT.  The attorney general shall report to the governor on the first Monday of December of each even-numbered year.  The report must include the following information for the preceding two years:

(1)  a summary of the cases in which the state was a party that were acted on by the supreme court and court of criminal appeals;  and

(2)  a summary of civil cases in which the state was a party that were prosecuted or defended by the attorney general in other state or federal courts.

Sec. 402.004.  ADMISSION, AGREEMENT, OR WAIVER.  An admission, agreement, or waiver made by the attorney general in an action or suit to which the state is a party does not prejudice the rights of the state.

Sec. 402.005.  ACCEPTANCE OF GIFTS, GRANTS, AND FORFEITED ASSETS;  CREATION OF SPECIAL ACCOUNT.  (a)  The attorney general may not accept or use money offered by an individual, firm, partnership, corporation, or association for investigating or prosecuting a matter.

There are a number of other references to the Texas AG scattered through Texas Statutes but all are for specific purposes such as defense of or making of monetary claims. 

One commentator's conclusion supports my analysis from review of the Texas Constitution and the Texas Statutes:

"The issue is not whether the elected Attorney General [of Texas] or any other government lawyer should be independent. The issue is what constitutes legitimate independence. Legitimate independence of the attorney assigned to represent state agencies should mean essentially the same thing it means for private attorneys: independence to discern and argue the law in the best way to help achieve the client's lawful goals. Legitimate independence is not the power of an attorney to command the client's goals or policies-and certainly not the power of an attorney to deny the client her day in court. In sum, there are plenty of generals to run the state government. The Texas Attorney General should just be the attorney."

Bill Aleshire, The Texas Attorney General: Attorney or General, 20 REV. LITIG. 187, 231 (2000) (emphasis added).
        One who serves as "just the attorney"--i.e., Ken Paxton--does not have authority to make the decision to initiate litigation--such as Paxton's freelancing in the filing of Texas vs. Pa., Mich., Wisc. & Ga.
UPDATE: The Supreme Court has just now flushed Ken Paxton's ridiculous original action against Pa., Wisc., Mich., and Ga. in a terse order the text of which is simply posted as a docket entry. Sweet that it was entered immediately after Ken filed his reply to the opposition papers of those four states. The fact that it is not even in th form of a separate document illustrates that the Court has treated Paxton as harshly as it can:

My question persists: did Ken Paxton have any authority to purport to represent the State of Texas--with no legislative or gubernatorial authorization or even input--in filing this absurd original action.

A Texas Oil and Gas Lease is Not an Executory Contract under Bankruptcy Law

The bankruptcy of a counterparty to just about any business or property transaction can be an unhappy event.  Certainly it is not a picnic for the business entity or the businessman who is compelled to seek relief under the federal Bankruptcy Code; filing for bankruptcy should always be a last resort and undertaken for a bona fide purpose of rehabilitating the firm and maximizing the value of assets for the benefit of all parties, including specifically creditors.  When the transaction is an oil and gas lease and the party filing a bankruptcy case is the lessee, the lessor will naturally have concern about its rights and the survival of the oil and gas lease without alteration.  Fortunately, the courts that have addressed these issues have issued decisions that are sensible and protective of the lessor. 

Business bankruptcy process features two modes of relief:  liquidation, either under a Chapter 11 plan or in a liquidation proceeding under Chapter 7, or rehabilitation under a plan of reorganization in a case under Chapter 11.  For purposes of the following discussion, it does not matter whether the debtor’s bankruptcy case is filed under either Chapter 11 or Chapter 7.  There are differences—in Chapter 11, the debtor remains in possession and operation of its assets, while in Chapter 7 a trustee is appointed to take control of the debtor’s property and to liquidate it for the creditors—but a powerful tool of bankruptcy law is applicable in both types of cases: the ability to “reject” executory contracts and unexpired leases under section 365 of the Bankruptcy Code.

Accordingly, whether an oil and gas lease covering oil, gas, and other minerals in Texas is an executory contract or an unexpired lease for purposes of Bankruptcy Code § 365 is a question of significant interest. An "executory contract" is "a contract on which performance remains due to some extent on both sides." NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522-23 n. 6 (1984). An "unexpired lease" is the rental of real or personal property for a set term. See, generally, Josiah M. Daniel, III, Lawyering on Behalf of the Nondebtor Party in Anticipation of, and During the Course of, an Executory Contract Counterparty's Chapter 11 Bankruptcy Case, 14 Hous. Bus. & Tax L.J.230 (2014). 

The Code provides the debtor three options for each of its executory contracts and unexpired leases (with some technical issues not relevant here): (i) the debtor may assume it—in essence ratifying or reaffirming its obligations; the debtor may pick and choose which executory contracts to assume; and to assume it, the debtor must cure all defaults; (ii) the debtor may reject it—walking away from it with no further responsibility to perform and no further benefit to be obtained from it; and the non-debtor party is left with a general unsecured claim for its contract damages; and (iii) the debtor may assign it—regardless of contrary contractual provisions. An 

The short and clear answer to whether a Texas oil and gas lease is an executory contract is “No.”

Under a long line of precedents by Texas appellate courts, including its Supreme Court, an oil and gas lease in Texas is a grant of the right to explore, extract, sell, or own the oil, gas, and other minerals with respect to a specific tract of land or strata of the subsurface for a period of time and so long thereafter as oil and gas are produced.  In Texas, the oil and gas lease, despite its “lease” nomenclature, creates a fee simple determinable, which is a real property interest.  As a real property interest rather than a true leasehold interest, an oil and gas lease in Texas is not subject to Bankruptcy Code § 365.  

Two judicial decisions clearly so state.  In one decision, the U.S. District Court in Houston explained succinctly: “A mineral lease in Texas is a determinable fee.  It is not a lease or other form of executory contract that a debtor may accept or reject.” Terry Oilfield Supply Co., Inc. v. American Security Bank, N.A., 195 B.R. 66, 70 (S.D. Tex. 1996).

In addition, the Court of Appeals for the Fifth Circuit has written:

While we interpret the Bankruptcy Code as a matter of federal law, state law determines whether these contracts constitute unexpired leases subject to Section 365. . . . In Texas, they do not. Instead, they convey interests in real property. . . . The term “oil and gas lease” is a misnomer because the interest created by an oil and gas lease is not the same as an interest created by a lease governed by landlord and tenant law. . . . [T]he so-called [oil and gas] leaseholds at issue in this case actually constitute determinable fee interests. 

River Production, Co., Inc. v. Webb (In re Topco, Inc.), 894 F.2d 727, 740 n.17 (5th Cir. 1990).

A Delaware bankruptcy court decision is consistent. Construing an overriding royalty interest document (i.e., a transfer of an interest in the oil and gas lease), the court wrote:

The Instrument in question is the "Conveyance of Overriding Royalty Interest." In standard oil and gas parlance, the term "overriding royalty" means a given percentage of gross production carved from the working interest in the land but, by agreement, not chargeable with any of the expenses of operation. . . . An overriding royalty interest is an interest carved out of, and constituting part of, the working interest created by an oil and gas lease. . . .  It is a type of royalty. And, like any ordinary oil and gas royalty, it is an interest in real property regarded as a covenant running with the land between the assignor and the assignee, and is enforceable by the assignor against the assignee.

Foothills Texas, Inc. v. MTGLQ Investors, L.P. (In re Foothills Texas, Inc.), 476 B.R. 143 (Bankr. D. Del. 2012). The court held that the royalty conveyance is not an executory contract. Id. at 157. 

In each of the three cases quoted above, the debtor is either the lessee of a Texas oil and gas lease or is the lessee and assignor of an interest in such lease. 

Under Texas law, from the earliest days of the oil and gas industry, an oil and gas lease conveys a fee simple determinable estate in the oil and gas in place under the leased premises. For representative Texas precedents, see Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002) and Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex. 1982). The lessee obtains a possessory interest in the minerals, leaving the lessor with a royalty interest and a reversionary interest, which may ripen into a possessory interest if the oil and gas lease terminates. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 9 (Tex. 2008). The reported bankruptcy decisions respect the real property character of Texas oil and gas leases. That there are not more reported decisions coming out of bankruptcy cases that also state that Texas oil and gas leases are not subject to § 365 simply reflects how well known and  unimpeachable this characterization is.  

A Texas oil and gas lease is a grant by the lessor of a fee simple determinable under state law and is recognized as such, and is not characterized as an executory contract or an unexpired lease, under the bankruptcy law.