Today we will continue our discussion of deeds and warranties. Here is a sample warranty deed from Texas, an earnest money contract.
Today’s lecture notes are here. The livechat is here.
Today at noon the Federalist Society will host an event on Atticus Finch and Legal Ethics. My favorite professor from Law School, Michael Krauss will be presenting. If you are interested in the difficulties of being an ethical lawyer–or want some food from Phoenicia, please consider attending.
On Thursday I flew from Houston (IAH) to Ft. Lauderdale (FLL) to visit my Grandpa in Boca (contrary to my fears in my last post in August, he is still with us, though mostly in body). On Friday, I drove across Florida to attend the GMU LEC Conference in Captiva. I left Captiva Monday and flew from Ft. Myers (RSW) back to Houston (IAH).
On Tuesday, I taught my two classes, and immediately after classes were over, I hightailed it to Houston’s other airport, Hobby (HOU) and flew to Reagan (DCA) with a layover in Atlanta (ATL). I got into DC around midnight.
Wednesday morning, I presented on a panel at Georgetown Law Center from 10:45-12:00, then did a number of important interviews for my book. I returned to GULC at 4:00 for an all-star panel on the Supreme Court. I was supposed to fly home from DCA to ATL to HOU on Airtran, but there were some massive thunderstorms in Atlanta. While following the Supreme Court panel, my DCA flight went from delayed by 20 minutes to 40 minutes to 1 hour to 2 hours (it was cancelled around 9:00 p.m.). At that point, I realized I would never make my connection in Atlanta.
I have class Thursday at 9:00 a.m., and I am loathe to cancel class unless absolutely necessary (it hasn’t happened yet). I even made provisions to teach the class by Skype in the event I got stranded. So I checked other flights, and purchased a direct ticket on Southwest from BWI to HOU. Rather than taking the Metro to Reagan, I took the MARC to BWI (my 7th airport!) and flew direct back to HOU.
Major props to Airtran. They refunded the cost for the leg from Reagan to Atlanta to Houston, even before the flight was cancelled–and they did it from the BWI ticket counter!
I am really excited, because in addition to class tomorrow, Professor Michael Krauss from GMU (one of my all-time favorite profs) will be speaking at the South Texas Federalist Society on Atticus Finch and legal ethics. My colleague Professor Jim Paulsen will provide commentary. The students are in for a treat.
As hectic as this journey is, this does not beat my previous record of six airports in 36 hours during my November 2012 whirlwind trip from Houston to Detroit to Lansing to O’Hare, and MIdway to Dulles, followed by a return trip from Reagan back to Houston.
John Robertson has very interesting paper that mashes up the Second Amendment and organ markets, and sprinkles in a little Abigail Alliance and Washington v. Glucksberg for good measure. The title is “Paid Organ Donation and the Constitutionality of the National Organ Transplant Act”
A person can buy a handgun for self-defense but cannot pay for an organ donation to save her life because of the National Organ Transplantation Act’s (NOTA) total ban on paying “valuable consideration” for an organ donation. This article analyzes whether the need for an organ transplant, and thus the paid organ donations that might make them possible, falls within the constitutional protection of the life and liberty clauses of the 5th and 14th amendments. If so, government would have to show more than a rational basis to uphold NOTA’s ban on paid donations.
The article begins with an examination of Flynn v. Holder, a 2012 9th Circuit case, that found that NOTA ban paying for bone marrow donations by aspiration was constitutional under rational basis review, even though bone marrow was renewable tissue and donation involved comparable risks to the paid blood, sperm, and egg donations which are excluded from NOTA’s ban.
It then argues that some form of heightened scrutiny should apply to laws banning paid bone marrow, kidney, and cadaveric donations as well as bans on paid kidney and cadaveric donations. It bases that argument on the resurgence of constitutional interest in self-defense seen in the Second Amendment handgun cases and in a substantive due process right to life and liberty. Together those developments form the basis of a constitutional right of medical self-defense (a negative right to use a safe and established medical treatment when reasonably necessary to protect a person’s life), despite the narrow test for recognition of new rights contained in Washington v. Glucksberg and Abigail Alliance v. Eschenbach.
Applying heightened scrutiny to four situations involving paid organ donation, the article shows that banning paid donation may be rational based on speculation or conjecture about harm to donors, unsafe organs, crowding out of altruism, exploitation of the poor, or moral distaste at paying for body parts. But those concerns hardly satisfy the heightened scrutiny that interference with a person’s right to life should require. A highly regulated private system of paying donors should be found constitutional when government is unwilling to act.
H/T Larry Solum
My talk should begin at 10:45ish.
Check out information on the symposium and my panel here:
10:45 a.m. – 12:00 p.m.
Panel 2: Big Data Applications in Scholarship and Policy I
- Josh Blackman, Assistant Professor of Law, South Texas College of Law
- Carole Roan Gresenz, Professor, Georgetown University School of Nursing & Health Studies
- Bill LeFurgy, Digital Initiatives Manager, National Digital Information and Infrastructure Preservation Program, Library of Congress
- Kathy Zeiler, Professor of Law, Georgetown University Law Center
- Moderator: Kumar Percy Jayasuriya, Associate Law Librarian for Patron Services, Georgetown University Law Center
This is a great story.
The Interpreter, first published in 1607 by John Cowell, was one of the first law dictionaries in English. Cowell was a civil law professor at Cambridge. The full title is “The Interpreter: Or Booke Containing the Signification of Words: Wherein is Set Forth the True Meaning of All, or the Most Part of Such Words and Termes, as are Mentioned in the Law Writers, or Statutes of This Victorious and Renowned Kingdom, Requiring Any Exposition or Interpretation. A Work not Onely Profitable, but Necessary for Such as Desire Throughly to be Instructed in the Knowledge of Our Laws, Statutes, and Other Antiquities.”
The South Texas Library has an original copy of the Interpreter in its archives, with an original printing date of 1607. Amazingly, this document is roughly equal in time from Magna Carta (393 years) and the Present (405 years).
So of course the first thing I do is look up the definition of the word liberty.
LIbertas (libertas) is a priuiledge [privilege] held by graunt or prescription, whereby men enjoy some benefite or fauour [favor] beyond the ordinarie subject, Liberties royal what they be, see in Bracton. lib. 2. cap. 5. Broke hoc titulo. See Franchise.
Bract. refers to Bracton on the Laws and Customs of England. Interestingly, I found a citation to that same chapter in Coke’s Institute’s which were published between 1628 and 1644. The Interpreter came first.
Coke cited this passage in a section talking about feudal property law and Magna Carat.
A later version of The Interpreter, which the library also has a copy of, from 1708 has a mostly similar definition of liberty, though it is referred to as “liberty” as well as “libertas.” Also, the spelling has become more consistent with how we spell today.
Liberty, Libertas, Is a Privilege held by Grant or Prescription, whereby men enjoy some benefit or Favour beyond the ordinary subject. Liberties Royal, what they be, see in Bract. lib. 2. cap. 5 and Broke hoc titule. See Franchise.
From Legal bibliography, or a thesaurus of American, English, Irish, and Scotch law books: together with some continental treatises. Interspersed with critical observations upon their various editions and authority. To which is prefixed a copious list of abbreviations (1847), of which the school also has an original copy, we learn a fascinating fact–this book was banned! By Sir Edward Coke, who used the same citation to Brachton for liberty!
“Sir Edward Coke, discovered that the Interpreter contained what they represented to be dangerous doctrines under the titles, Subsidy, Parliament, King, Prohibition, &c.” Cowell was charged with “villifying the laws of England and endeavoring to expose Littletons’ Tenures; whereas, in truth, all that could justly be charged on him (as to this particular) was only a modest recital of Hottomans’ raillery and objections. But this, together with Coke’s proverbial hatred of the civlians was enough to excite his deep and continued animosity towards Cowell, who, chiefly through Coke’s influence, was thrown into prison, threatened to be hanged, and his Interpreter was suppressed by a royal proclamation and publicly burned; for which the Commons returned thanks with great joy at their victory.”
Coke is burning books! Wow!
William Holdsworth wrote that King James I suppressed the book in support of Coke and other common law lawyers, who it seems did not like the Civil-law inspired digest, based on Justinian.
“Cowell follows exactly the order and books of the Justinian Institutesand forces the English material into this exotic mold….
“Unfortunately, the (Interpreter) trespassed upon the domain of politics by expressing pronounced absolutist views in its definitions of Prerogative, Parliament and Subsidie….
“Coke and the common law lawyers … combined with the constitutional opposition to attack Cowell and his book and James I thought it politic to disown him. The book was suppressed by Royal proclamation.”
Julius Marke wrote:
“Its publication provoked controversy. At a time when Parliament and crown were vying for power, the Commons disapproved of Cowell’s royalist sympathies, which were evident in such definitions as “King,” “Parliament,” “Prerogative,” “Recoveries” and “Subsidies.” When a joint committee of Lords and Councilors reviewed the work, the ensuing controversy nearly halted the affairs of government….
“James I intervened in fear that his own fiscal interests would not be approved by Parliament. Encouraged by Coke, the king imprisoned Cowell, suppressed the book and ordered all copies burned by a public hangman on March 10, 1610 (Ed. note: correct date is 26 March). Moreover, The Interpreter contained a quotation that criticized Littleton’s scholarship, which alienated and enraged Sir Edward Coke. It comes as no surprise that he was instrumental in the book’s suppression and in Cowell’s persecution.”
Here is the indictment:
“Anno 7 Jacobi, 1909, Dr. Cowell, Professor of the Civil Law at Cambridge, writ a book called The Interpreter, rashly, dangerously and perniciously asserting certain heads to the overthrow and destruction of Parliaments, and the fundamental laws and government of the Kingdom.”
Treason for publishing a dictionary. Bryan Garner would not have been so prolific back in the day…
This was all a battle between the common law courts and civil law courts.
Good thing a copy of the original, banned version from 1607 survived. Here is how Parliament and Perogative of the King are defined:
“Parliament: A solemn conference of all the states of the kingdom summoned together by the Kings only authority to treat of the weighty affairs of the realm.
“Prerogative of the King: That special power, preeminence or privilege which the king hath over and above other persons and above the ordinary course of the common law in the right of his crown.”
Thanks to Heather Kushnerick, the Special Collections Librarian at South Texas for showing me this gem and providing me with information about the history of the book.