Winkler on Corporations and Their Quest for Civil Rights

I haven't posted in a while, partially because work is busy, but also because I have been making more time for recreational reading (a hobby that can be difficult to pursue when one is an associate in the field of civil litigation).

But I've somehow managed to get some reading done recently, so partially to highlight some darn good books (and partially to dilute the frequency of posts fixating on ordinances banning "distracted walking"), here's the first of a couple posts on what I've been reading!

First up is We the Corporations: How American Businesses Won Their Civil Rights by Adam Winkler. I bought the book partially because I was a student at UCLA Law and had the opportunity to take one of Professor Winkler's classes, and partially because I read Winkler's previous book, Gunfight: The Battle Over the Right to Bear Arms in America a few years ago and thought it was excellent.

Winkler's We the Corporations, like Gunfight, showcases his remarkable ability to tell a story. Many cases that are explored in his book are covered in typical law school classes or casebooks on constitutional law. The cases, while significant, are often dry, dense, and confusing. Not here. In discussing significant cases or doctrine, Winkler develops the plot by delving into facts behind each case, the drama of the conflicting interests involved, and the pitfalls of the litigation preceding the various opinions. Winkler explores the characters involved by discussing the histories, backgrounds, quirks, and vices of the corporations, their officers, and the attorneys involved in the cases. All of this combines to create an engaging series of stories that paint a picture of the development of various rights, or sets of rights, that corporations have managed to secure. It is a vast undertaking that is nevertheless straightforward and clear enough to appeal to attorneys and non-attorneys alike. 

The books is nearly 500 pages (closer to 400 if you don't count the endnotes), but you can expect to breeze through it in far less time than you might think because the writing is so clear and engaging. And I hope that many choose to engage, as Winkler reveals that the common debate over whether "corporations are people," is far more nuanced than may be expected. For instance, Winkler points out that corporations have won some of their greatest victories when their personhood is ignored. Rather, it is when courts pierce the corporate "veil" and focus on the people behind the corporation, that corporations have made some of their most dramatic strides in their quest for civil rights. Winkler also draws attention to the recurring phenomenon of corporations' sheer ability to get what they want through the courts. Through hiring the best lawyers, choosing the best cases, and persisting as only tireless business entities can, corporations have often gained recognition of their rights earlier than the other disadvantaged groups who are typically central to the study and discussion of civil rights.

You can find reviews of We the Corporations here, here, here, and here.

Next up will be my thoughts on The Justice of Contradictions: Antonin Scalia and the Politics of Disruption by Richard Hasen. Spoiler alert: it's also pretty dang good.

P.S.: For those looking for recommendations for shorter things to read, check out this post at Josh Blackman's blog on Justice Brennan's correspondence with Barack Obama.

The Law of Pews

I finally finished R.H. Helmholz's Roman Canon Law in Reformation England. While most of my friends have reacted to my reading this book with disdain, furrowed brows, and concern for my sanity, I maintain that the book, while arcane at times, contains numerous fascinating anecdotes and important insights regarding legal history. I have blogged about several of the more interesting subjects Helmholz discusses here and here.

On finishing the book, I thought that I would share one final, humorous passage on the law of pews:

The law of church seats or pews provides a different but equally clear example of this attitude [of resisting change to spiritual courts' jurisdiction] held by civilians. Large numbers of causes dealing with this strange and trivial subject are to be found within contemporary act books. Evidence about men sitting obstinately in each others' laps, or putting tacks on the seats to keep their enemies from sitting there, figured in contemporary litigation. In these causes, the normal issue of law (slightly simplifying) was whether or not one could acquire a right to a particular seat by sitting there long enough. That is, the outcome of the litigation turned on the law of prescription. Men fought intemperately over who would sit where on a particular Sunday, precisely because they wanted to guard against any interruption of their prescriptive and customary rights. 

Regrettably, no simple and definitive answer to the underlying legal question about pews was ever given. At least none emerges from the records. One opinion held that nothing within a church could be prescribed because it was res sacra. Another was that possession time out of mind could raise a presumption that the right had been legitimately granted. I have not been able to tell which eventually prevailed, if indeed either did, though the persistence of the question suggests that the first view did not carry the day. For present purposes, however, the important fact is that discussion and resolution of the issue went on in spiritual courts without the slightest reference to the English common law. The judges of the ecclesiastical courts treated questions about the existence and validity of this particular sort of custom as belonging fully within their own sphere of determination. (176-77).

While the book was at times dense and difficult to approach, I must acknowledge that I approached the subject matter as somebody with limited knowledge of history and virtually no formal historical education. Even so, I found Helmholz's discussion of the legal community's transition from spiritual law to common law enlightening and often fascinating, and I was struck by the breadth of original case law Helmholz draws upon in reaching his conclusions.

Charles Donahue Jr. reviews Helmholz's book here, and you can find the first sixteen pages of the book here. Here is the Amazon page for the book as well.

Review: Bond on Justice McReynolds

I recently read James E. Bond's book, I Dissent: The Legacy of Chief Justice James Clark McReynolds. I am not exactly sure what drove me to read Justice McReynolds' biography -- from what I knew of the justice, he was bad-tempered, prejudiced, and not a very noteworthy legal mind. A Google search for "worst supreme court justice" leads to the Wikipedia page on McReynolds. Business Insider also labels McReynolds as the worst justice ever, emphasizing his antisemitism.

I guess that I wanted to learn more about McReynolds in order to get an idea of just how bad a Supreme Court Justice can be. To other readers with this goal -- I do not recommend Bond's book. While Bond presents some of the negative history of the Justice, the book overall paints an almost glowing picture of the man. For those readers seeking to obtain knowledge about one of the lesser-known Justices, Bond's book may be useful -- the book gives a pretty decent account of McReynolds life and career before his time on the Court, and gives a helpful survey of some of McReynolds' better-known opinions.