Appellate Law & Practice

The perfect gift for your favorite lawyer that will give legal cover for anything in your family

Thumbscrew & Rack: Torture Implements in the 15th and 16th Centuries by George Macdonald.

It is a “...well illustrated examination of the instruments of torture used by organized Christianity to honor the God of Love and to convince unbelievers of the truth and beauty of the One True Faith.”

Reprint available on Ebay now.

I have read this book, and I think it includes some things that are not true. Sure, people have tortured each other in the name of religion or “freedom” but I don’t think they really used iron maidens. On the other hand, John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (1977), which was cited in the Second Torture Memo (the one that the administration had someone write for public consumption, but then wrote another one saying that it didn’t really apply, so GS-9s can torture away, anyway), is a much more scholarly approach. Because it was cited by the administration in the memo that they didn’t really mean, it has been reprinted.   Therefore, people can read it and see what sources the administration didn’t rely upon in telling everyone that they think torture is bad while winking and nudging.

(A helpful reader, who is against torture, points to Jean Kellaway, The History of Torture and Execution: From Early Civilization through Medieval Times to the Present available on Amazon.)

Hopefully all the pro-torture presidential candidates will post their torture reading list soon. Since I know that at least 40% of my readers are in favor of torture, and I respect you’re their opinions, I ask that you post the books you used to get some historical perspective on how to torture people in the comments.

Gift wrapping is available.

Interesting article on interrogation

Since the First is still recovering from its New Year’s hangover, CAAFlog points to MAJ Peter Kageleiry, Jr., Psychological Interrogation Methods: Pseudoscience in the Interrogation Room Obscures Justice in the Courtroom, 193 Mil. L. Rev. 1 (2007).

Personally, I think that anyone that prattles on about how Miranda hurts the police and such, should be forced to post a bond which would be forfeit as soon as one of their relatives "confesses" to a crime they didn't commit while being interrogated. 

In our post here we covered the Department of Justice's position that it does not want jurors seeing the techniques they use to get people to confess, which, they say are proper, but the jurors might not understand why the DOJ's version of morality is superior to their own.

Anyway, his points are thus:

• The [Court of Appeals for the Armed Forces] should adopt a more enlightened view of police interrogation methods.  A more informed justice system would  recognize the underlying necessity for expert assistance when law enforcement obtains a confession through the use of psychological interrogation methods....
• Recent studies of the false confession problem demonstrate that false confession theory is reliable and that expert assistance is often necessary to analyze and explain psychological interrogation methods. The article also “describes the pseudoscientific psychological interrogation methods routinely employed by police interrogators.”  (This is a great section, because it shows all the tricks that the police (and really anyone) can use to get the lower classes to confess to anything.)

The article is also of use because it collects caselaw that has ”expressed doubt about an interrogator’s ability to accurately interpret body language.”

The [Texas] Appellate Advocate

The Spring 2007 issue of The Appellate Advocate is on-line, as are the Fall 2006 and Winter 2007 issues. If you practice in Texas or the federal Fifth Circuit, you’ll find interesting stuff. (Hat tip to Texas Appellate Law Blog.)

Fun with standards of review

Christopher M. Pietruszkiewicz writes a neat article entitled Reinterpreting the Role of Special Trial Judges Through Standards of Review tracing the evolution of standards of review of Special Trial Judges in the Tax Court context.  However, there is a lot of non-tax court nerdery in there, so real lawyers will read it, too.

Obviously, real lawyers know how to manipulate standards of review to their advantage.  So, real lawyers need to read this.  If you can’t do that (or don’t think that is the role of an appellate advocate), then just quit now.  Join a think tank or become an investment banker.   Just don't represent clients. Tnx TaxProfBlog.

From Texas: The Appellate Advocate

The Texas State Bar’s Appellate Section has posted the last two issues of its newsletter, The Appellate Advocate. Each issue includes updates on the U.S. Supreme Court and Fifth Circuit, and recent developments in Texas appellate courts. (Hat tip to the Texas Appellate Law Blog.)

Appellate Practice Bookworm: If you liked last week…

In lieu of finding out some new area of law, I decided to expand last week’s post, which, as competent lawyers will remember, contains a list of books that will be helpful to modern lawyers that are now in the public domain, and Google has scanned in, in full.  You can read them on your screen, download them .pdf, print and bind them, and Google allows you to search within the scanned book.  I now have almost 70 books listed by author.  I have concentrated on: 1) the nature of the common law; 2) the common law of evidence; 3) constitutional treatises; and 4) military law.  If anyone finds any other books, available in full, leave a comment.

There are some strange hiccups in Google’s indexing system, which causes references to OCLC numbers to default to the latest version of a work, which might, itself, not be in the public domain.  I think I have fixed this problem with all of the works. 

Home Office Lawyer has some comments on this project here.  See a description of the process here.

And, in the “neat thing” category, Google provides a map of all the placenames mentioned in the books like so:

The Ultimate Appellate Practice Bookworm

Google Print has made a number of improvements.  Namely: 1) its “in-line” reader is nicer; and 2) the button which allows you to download, and hence, print books now works for most books. Anyway, here are some nice finds for the appellate practitioner.  They are all “full view” books.  Most of them seem to be from the Harvard Law School library. Some of them are practical, especially if you need to know the state of the law in the 19th century of what the common law of something is (so you can show abrogation.)  Some of them are good reading, so you can sound like a pretentious upper-class twit and/or make better legal arguments regarding the common law. There are now, many, many books in this virtual library, so this is just a sample:

• Benjamin Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence (1879)
• Andrew Jackson Baker, Annotated Constitution of the United States (1891)
• Henry Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States (1837)
• Simeon Eben Baldwin, The American Judiciary (1905)
• Jeremy Bentham, John Stuart Mill, Of Judicial Evidence, Specially Applied to English Practice  (1927)
• Thomas Blount, Glossographia Anglicana Nova (1707)
• Richard Rogers Bowker, Copyright, Its History and Its Law: its history and its law (1827)
• Emile Gaston Boutmy, Albert Venn Dicey, E. M. Dicey, Studies in constitutional law: France--England--United States (1891)
• Elmer De Witt Brothers, Medical Jurisprudence: A Statement Of The Law Of Forensic Medicine (1914)
• Francis Buller, Henry Bathurst Bathurst, An Introduction to the Law Relative to Trials at Nisi Prius (1788)
• John William Burgess, Civil War and the Constitution, 1859-1865 (1901)
• Hampton Lawrence Carson, The Supreme Court of the United States: Its History (1892)
• Charles Wallace Collins, The Fourteenth Amendment And The States: A Study Of The Operation Of The Restraint Clauses Of Section One Of The Fourteenth Amendment To The Constitution Of The United States (1912)
• Thomas McIntyre Cooley, Andrew Cunningham McLaughlin, The General Principles of Constitutional Law in the United States of America (1898)
• Edward Samuel Corwin, The Doctrine of Judicial Review, Its Legal and Historical Basis (1914)
• George Clarke Cox, The Public Conscience: Social Judgments in Statute and Common Law (1922)
• Samuel Benjamin Crandall, Treaties, Their Making and Enforcement (1904)
  
• Cushman Kellogg Davis, The Law in Shakespeare (1884)
• Robert Desty, A Manual of Practice in the Courts of the United States (1893)
• John Hampden Dougherty, Power of Federal Judiciary Over Legislation (1912)
• Eaton Sylvester Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States (1879)
• Heinrich Brunner, William Hastie, The Sources of the Law of England: An Historical Introduction to the Study of English Law (1888)
• Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States (1922)
  
• George Lewis Canfield, George Walton Dalzell, Jasper Yeates Brinton, The Law Of The Sea: A Manual Of The Principles Of Admiralty Law...(1921) [updated because Google was defaulting to copyrighted version]
• Robert Destry, A Manual of Practice in the Courts of the United States (1893)
• Edgar Swartwout Dudley, Military Law and the Procedure of Courts-martial (1907)
• Horace Edgar Flack, The Adoption of the Fourteenth Amendment (1908)
• Thomas Welburn Hughes, A Treatise on Criminal Law and Procedure (1879)
• James F. Johnston, The Suspending Power and the Writ of Habeas Corpus (1862)
• James Kent, Commentaries on American Law  (1840)
• Alexander Macomb, The Practice of Courts Martial (1841)
• Frederic William Maitland, Frederick Pollock, The History of English Law Before the Time of Edward I (1898)
• Frederic William Maitland, James Fairbanks Colby, A Sketch of English Legal History (1899)
• Frederic William Maitland, Select Pleas in Manorial and Other Seignorial Courts: Volume I. Reigns of Henry III. and Edward I (1889)
• Emlin McClain, Constitutional Law in the United States (1905)
• Lassa Oppenheim, International Law: A Treatise (1905)
• John Ordronaux, Commentaries on the lunacy laws of New York: and on the judicial aspects of insanity at common law (1878)
  
• John Ordronaux, The Jurisprudence Of Medicine In Its Relations To The Law Of Contracts, Torts, And Evidence (1869)
  
• George Washington Paschal, The Constitution of the United States Defined and Carefully Annotated (1868)
  
• Frederick Pollock, The Expansion of the Common Law (1904)
• Frederick Pollock, The Genius of the Common Law (1912)
• Gilbert Thomas Stephenson, Race Distinctions in American Law (1910)  (This book displays a disgustingly racist view of the law.  But, I suspect that this is the way some lawyers thought at one point.)
• James Fitzjames Stephen, A Digest of the Law of Evidence (1877)
• Theodore Sedgwick, A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law (1857)
• George Clarke Sellery, Lincoln's Suspension of Habeas Corpus as Viewed by Congress (1907)
  
• E. Fitch Smith, Commentaries on Statute and Constitutional Law and Statutory and Constitutional Construction (1848)
  
• Anthony Stokes, A View of the Constitution of the British Colonies in North America and the West Indies (1783)
  
• Harlan Fiske Stone, Law and Its Administration (1915)
• Horatio Robinson Storer, Franklin Fiske Heard, Criminal Abortion: Its Nature, Its Evidence, and Its Law (1868)
• Joseph Story, Melville Madison Bigelow, Commentaries on the Conflict of Laws, Foreign and Domestic (1901)
• Joseph Story, Commentaries on the Constitution of the United States (1858)
• Joseph Story, Commentaries on Equity Pleadings: And the Incidents Thereof, According to the Practice of the Courts of Equity, of England and America (1844)
• James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (1898)
• Joel Tiffany, A Treatise on Government, and Constitutional Law: Being an Inquiry Into the Source and Limitation (1867)
• Charles Francis Trower, The Anomalous Condition Of English Jurisprudence Considered With Especial Reference To A Proposed Fusion Of Law And Equity (1851)
• Henry St. George Tucker, Limitations on the treaty-making power under the Constitution of the United States (1915)
• John Randolph Tucker, The Constitution of the United States (1899)
• United States Bureau of Rolls and Library, Documentary history of the Constitution of the United States of America, 1786-1870 (1905)
• United States War Dept, Manual for Courts-martial, Courts of Inquiry, and Retiring Boards, and of Other Procedure Under Military Law (1908)
• Emer de Vattel, The Law of Nations: Applied to the Conduct and Affairs of Nations and Sovereigns (1797)
• Emer de Vattel, The Law of Nations: Or, Principles of the Law of Nature (1883)
• Francis Wharton, Commentaries On Law Embracing Chapters On The Nature, The Source, And The History Of Law; On International Law, Public And Private; And On Constitutional And Statutory Law (1848)
• Edward Joseph White, Commentaries on the Law in Shakespeare: With Explanations of the Legal Terms Used in the Plays (1911)
• James Wilson; Thomas McKean, Commentaries on the Constitution of the United States of America (1792)
• William Winthrop, Military Law (1886)
• Quincy Wright, The Enforcement of International Law Through Municipal Law in the United States (1916) [readable, but .pdf file seems to have disappeared]
• James Wylie, International Law (1911)

Comment: I notice that a lot of people have been coming to this page from sites aimed at non-lawyers. Please, please, I beg of you, do not think that these old books necessary represent the state of the law. Modern lawyers are generally only interested in these books for 1) historical interest; or 2) to make arguments that are based on a showing of a change in the law. It may well be that the law has not changed, but unless you have the facilities to thoroughly verify this, using the authorities contained in these books may do you more harm then good.

Appellate Issues

Appellate Issues, the newsletter of the ABA's Council of Appellate Lawyers, is on-line. Articles include the following:

• Cicero on Oral Argument, by Steven Emmert, who somehow snagged an interview with the great Roman rhetorician.
• The Promise of Arbitration is Broken by "Poor Losers," by Linda Morkan.
• Appealing a Bankruptcy Court's Order Directly to the Court of Appeals, by Ben Mesches.
• Preventive Medicine for Your Case: See Your Appellate Lawyer Long Before Trial, by Leane Caps Medford.
• Supreme Court Opens Door for Citation of Unpublished Opinions — But Debate Likely to Continue, by Joseph Kuiper.

Congratulations to John Bursch, CAL's publications chair and editor of Appellate Issues, for putting this issue together.

Free Louisiana appellate stuff

In about an hour, I will present the appellate portion of the Bridging the Gap seminar organized by the Louisiana State Bar Association. For anyone who may be interested, I've uploaded my seminar materials, PDF of my PowerPoint presentation, plus a few extra goodies. With the exception of one article (How to Write an Appellate Brief), all this stuff deals with Louisiana appellate procedure. If you're interested, please visit The (New) Legal Writer to browse and download.

University of Michigan’s Original Intent Bonanza!

The saintly folks at the University of Michigan have scanned and uploaded a dumptruck of legal works to the web as part of their Making of America (MOA) project.

This is truly a-freakin’-mazing!

Now, you can read and download treatises that the framers of the constitution and the 14th amendment were reading without actually leaving your office!  No more will you have to breath the poisonous air of the environment or go to the library and risk having to be around law students.  There are many, many books online.  Some, like the ones about slavery and subjugation of women, are of little use to lawyers in most states.  Others are quite relevant to issues before the courts now.  So, for your convenience, I picked a few that might be of use.

• Henry Adams et al., Essays in Anglo-Saxon Law (1876).  Go here. 
• L.J. Bigelow, Bench and Bar: A Complete Digest of the Wit, Humor, Asperities, and Amenities of the Law (1867).  Go here.
• Joseph Chitty, The Law of Nations; Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. From the French of Monsieur de Vattel (1853).  Go here.
• Luther Stearns Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America (1856).  Go here.
• Sherburne Blake Eaton, A Discussion of the Constitutionality of the Act of Congress of March 2, 1867, Authorizing the Seizure of Books and Papers for Alleged Frauds upon the Revenue, Together with a Brief Statement of Certain Objections to the Practical Working of the Law (1874).  Go here.
• Sidney George Fisher, The Law of the Territories (1859).  Go here.
• William Lawrence,  The Law of Claims Against Governments, Including the Mode of Adjusting Them and the Procedure Adopted in Their Investigation. Pub. by order of the Congress of the United States of America (1875). Go here.
• Robert Phillimore, Commentaries Upon International Law (1854).  Go here.
• Furman Sheppard, The Constitutional Text-book: A Practical and Familiar Exposition of the Constitution of the United States, and of Portions of the Public and Administrative Law of the Federal Government (1855).  Go here.
  
• Henry Wheaton, Elements of International Law.  Go here.
• Theodore Dwight Woolsey, Introduction to the Study of International Law, Designed as an Aid in Teaching and in Historical Studies (1871).  Go here.