Talk:Law of the United States/Archive 2

Louisiana and the Napoleonic code??

Someone should read the entry for Louisiana Law, as it specifically denies that Louisiana is based on the Napoleonic Code and points out that the Code was not enacted until after Louisiana was purchased by the United States. Discrepancies emerge... —Preceding unsigned comment added by 67.187.111.152 (talk) 07:30, 1 October 2008 (UTC)

Territories and Federal Law

Do all federal laws apply to territories or are there exceptions? If there are exceptions, what are they?Blaylockjam10 (talk) 05:26, 4 December 2008 (UTC)

Under the federal Constitution's Supremacy Clause, the Constitution and federal laws are the law of the land. This means that federal laws by default also apply to all territories, unless Congress specifically wrote an exception for a territory into a particular law. An example of such an exception is that the citizens of the U.S. Virgin Islands pay income tax to the USVI's Bureau of Internal Revenue using slightly modified versions of the standard IRS forms. In contrast, the vast majority of Americans file their tax returns with the federal Internal Revenue Service. --Coolcaesar (talk) 08:56, 4 December 2008 (UTC)

Why I reverted some edits

First of all, one would flunk out of law school (or graduate programs in many other fields, for that matter) for such a poorly written citation list. Come back when you learn how to write citations correctly. I spotted at least 10 errors in less than 5 seconds and there appear to be dozens more but as a busy attorney I don't have the time, energy, or interest in teaching you remedial English (writing proper citations is normally taught in sophomore English in high school). You remind me of User:Essjay, the maniac who claimed he had a Ph.D. when he did not.

Second, almost all of the materials cited are not directly relevant to a broad general-purpose article on American LAW, which by definition is such a huge field that an article targeted for laypersons (like an encyclopedia article) is necessarily cursory. This is NOT an article on jurisprudence, the judiciary, sociology of law, anthropology of law, ethics, civil procedure, etc. If you go to a relevance standard that includes all those areas, you're essentially opening up the door to cite an entire law library, which would result in endless edit wars. Anyway, there are numerous sources that do focus squarely on the question of WHAT IS AMERICAN LAW, a few of which are already cited in the article (e.g., Lawrence Friedman's works). --Coolcaesar (talk) 09:25, 10 December 2008 (UTC)

Oops, it turns out it was Wikidea who inserted most of that garbage; Mervyn merely attempted to annotate it. But I still stand by my criticism---namely, that the vast majority of materials listed are not directly relevant to American law, unless they have a different conception of relevance over there in England. Which might explain why the quality of so many recent English judicial opinions (Peter Denning notwithstanding) is so mediocre (apparently because the English have not followed the plain English trend pioneered in the U.S. by the legendary David Mellinkoff and carried on by people like Bryan Garner). --Coolcaesar (talk) 17:55, 12 December 2008 (UTC)

WP:Layout Further reading: "A list of recommended books, articles, or other publications that have not been used as sources and may provide useful background or further information." I will appreciate restoration of the section entitled "Further reading" to this article if you have nothing better to offer. It is not appropriate for one editor to simply delete the contributions of another because it does not suit ones tastes. Mervyn Emrys (talk) 04:21, 23 December 2008 (UTC)

Um, you totally failed to respond to my core argument, implying that you have no defensible position! To repeat: This is NOT an article on jurisprudence, the judiciary, sociology of law, anthropology of law, ethics, civil procedure, etc. There are about 2,000 volumes in a typical American law library that could easily be added to the list of books that had been added by Wikidea (and that's not including the 100,000 more volumes that consist of law reviews, case law, regulations, statutes, legal encyclopedias, and so on). Should we add them all?

My point is that there are about 10 to 15 major books which focus on the law of the United States alone, such as several of Lawrence Friedman's works. If we need a list appended to this article, it should consist of those, not miscellaneous works on jurisprudence, sociology of law, and anthropology of law (which are all rather peripheral and distant from the core topic, American law). These are highly abstract, super-specialized fields which most human beings do not understand, nor do they want to. If you don't know what I'm talking about, try to explain the difference between John Rawls and Robert Nozick to strangers on the bus and watch people's eyes glaze over. If you don't understand why most people would be bored by such a discussion, get out of the ivory tower and go live in the real world for a while.

Furthermore, on Wikipedia we have already have articles devoted to subjects like jurisprudence. If there has to be a list of further reading of jurisprudence works, it should go there, not in this article. Otherwise you end up with overlapping and redundant information which is already a major problem on Wikipedia because no one has the time, energy, or interest in cleaning it up. And if you don't realize that's a problem, then you haven't been editing Wikipedia long enough.

Most people, including most lawyers, find philosophy of law to be incredibly dry, abstract, and boring. The only reason I even find it mildly interesting myself is because I took political philosophy in college; once one survives reading G.W.F. Hegel (a tremendously exhausting experience), then almost all other philosophers are a piece of cake.

It looks like you've never had to write for a general audience. As an attorney with prior interests in history and journalism, I have learned the hard way to ALWAYS keep one's audience in mind and to always write to their level, not the other way around. In this case, one has to assume that the audience for this article is mainly laypersons trying to get a broad general overview of American law written for a lay audience. The further reading section should be limited to sources calibrated to that general level of interest. Give them highly abstruse academic sources which they cannot understand (short of going to law school) and they'll throw up their hands in exasperation, thus further weakening Wikipedia's credibility and confirming the long-running criticism of Wikipedia by Encyclopedia Britannica's editor that Wikipedia is comparable to a public restroom---its condition depends upon whomever last used the facilities. --Coolcaesar (talk) 08:39, 23 December 2008 (UTC)

I see your previous edits here above have been cleaned up a bit to remove references to "dumb edits" from your message of 12 December at 17:55, reminiscent of (and about as effective as) the old Perry Mason admonition that "the jury will disregard that statement." However, your manner remains extremely condescending, offensive, and your argument inconsistent at best. No judge I know would find it persuasive.

It was certainly a thrill to see the works of some of the best legal minds in the law of the United States denigrated as "most of that garbage" (Benjamin Cardozo, H.L.A. Hart, Thurgood Marshall, Roscoe Pound, Warren Burger, K. Llewellyn). One may only presume that your own publications (contributions to Wikipedia?) are far superior to theirs. Yet at the same time you decry the lack of references for the lay person, apparently ignoring those by Griswold, Dees, Lewis, Stone, Nizer, and others, all of which are quite accessible to the lay reader. Quixotic, or merely arbitrary, capricious, and an abuse of discretion? Perhaps consistency is the hobgoblin of small minds like mine?

It took considerable effort to compile and annotate all those references, only to see you trash them. I request you take a step back and ask yourself whether this article exists merely for you to express your preferences, or if it really is an attempt to compile an encyclopedia. And consider please, what portion of your efforts would you like to see destroyed in such a manner? How would you respond?

Having written many encyclopedia articles for general audiences (as well as several books and a few articles in American law journals), I can fairly say that, based on my experience, they generally include a list of references for further reading. This article does not.

Your single-minded adherence to a single author, Friedman, doesn't serve the reader well (or your advocacy position). If you wish to have a civil discussion about which titles should be retained, and which might be more appropriate elsewhere, we can do that after you restore the references. But arbitrarily deleting the entire section without discussion is a bit severe and unwarranted. Usually, discussion precedes action, in a civil society. Mervyn Emrys (talk) 15:27, 23 December 2008 (UTC)

M'learned friends, civility is always a Good Thing (Sellar and Yeatman), however this page is for discussing article content. Coolcaesar makes a good point – this is a concise article about a specific subject, not a home for a reading list covering a wide range of related legal issues. Mervyn Emrys, while I'm sure that you're the author of many eminent publications, the circumstances here are different. Due to the wonders of wikilinking we can keep articles concise and on topic by linking to more detailed information elsewhere. The deleted information wasn't "references" which would have been cited for specific parts of the body of the article, it was a Further reading section. While your books or articles may usefully include such sections as a guide to your own preferred reading material for interested students, in Wikipedia that's original research and the selection needs a source. As you may have noticed, if you don't want your writing to be edited mercilessly or redistributed for profit by others, do not submit it. Verifiability policy fully authorises the removal of unsourced material. If you do feel strongly that Wikipedia needs a reading list of books on US law, suitable sources could be lists provided for introductory courses at leading law schools. A properly sourced article of that sort could then be wikilinked from relevant articles. Of course others might disagree about the suitability of such a list, and consensus would have to be sought to keep such an article. . dave souza, talk 18:19, 23 December 2008 (UTC)

Further reading

Ok, here is the list of books that was summarily deleted from the article. Please explain why each one is not suitable for a section on "Further reading" for an article on "Law in the United States" written for readers of Wikipedia. Which ones are too heady for our readers, and which ones might be more appropriate someplace else? Let's avoid sweeping generalizations and get down to specifics. And please indicate whether one has actually read each book one comments upon. It would seem essential for one to have read a book one feels compelled to dismiss out of hand. Let's have a discussion, in the true spirit of Wikipedia, with the information right in front of us.

Note there are only a few books on American jurisprudence, and many popular titles, including introductory texts for non-lawyers.

Please note the book by Stone on Clarence Darrow has a humorous chapter entitled "Can a Lawyer be an Honest Man?" I commend it to you, despite its somewhat dated and gender-biased title. Mervyn Emrys (talk) 01:28, 24 December 2008 (UTC)

• Abel, Richard L. (1989). American Lawyers. New York: Oxford University Press. (Role of lawyers in an adversarial legal system).
• Barzilai, Gad (2003). Communities and Law: Politics and Cultures of Legal Identities. Ann Arbor: University of Michigan Press.
• Berman, Harold J., William R. Greiner and Samir N. Saliba (2004). The Nature and Functions of Law, 6th ed. New York, NY: Foundation Press. (Collection of cases and other materials for legal studies).
• Cardozo, Benjamin N. (1957). An Introduction to Law. Cambridge: Harvard Law Review Association. (Chapters by eight distinguished American judges).
• Dees, Morris (2001). A Lawyer’s Journey. Chicago: American Bar Association. (Popular biography by innovative lawyer who pioneered use of civil suits to put white supremacist organizations out of business).
• Feinberg, Kenneth, Jack Kress, Gary McDowell, and Warren E. Burger (1986). The High Cost and Effect of Litigation, 3 vols. Washington, DC: National Legal Center for the Public Interest. (On problems of judicial administration).
• Frank, Jerome (1985). Law and the Modern Mind. Birmingham, AL: Legal Classics Library. (Classic on judicial process).
• Friedman, Lawrence, and Stewart Macaulay (1977). Law and the Behavioral Sciences, 2nd ed. Indianapolis: Bobbs-Merrill. (Nature of law and role in society).
• Griswold, Erwin N. (1996). Law and Lawyers in the United States. Buffalo: W.S. Hein. (Role of lawyers in an adversarial legal system)
• Hart, H.L.A. (1961). The Concept of Law. Oxford University Press. (Classic text on "what is law?")
• Levi, Edward H. (1949) An Introduction to Legal Reasoning. Chicago: University of Chicago Press. (Classic, penetrating analysis of legal reasoning by appellate judges).
• Lewis, Anthony (1991) Gideon’s Trumpet. Birmingham, AL: Notable Trials Library. (Popular treatment of the Supreme Court).
• Llewellyn, Karl N. (1986). Karl N. Llewellyn on Legal Realism. Birmingham, AL: Legal Classics Library. (Contains classic introductory text of "The Bramble Bush" on the nature of law).
• Marshall, Thurgood (2001). Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences. Chicago: Lawrence Hill Books. (A rare and revealing popular memoir by a distinguished contemporary Supreme Court justice).
• McCloskey, Robert G., and Sanford Levinson (2005). The American Supreme Court, 4th ed. Chicago: University of Chicago Press. (Brief historical treatment).
• Miller, Arthur S. (1985). Politics, Democracy and the Supreme Court: Essays on the Future of Constitutional Theory. Westport, CT: Greenwood Press. (On judicial process).
• Nizer, Louis (1978). My Life in Court. New York: Jove. (Popular description of a lawyer's practice).
• Pound, Roscoe (1997). Social Control Through Law. New Brunswick, NJ: Transaction Publishers. (Nature of law and its role in society).
• Rostow, Eugene V. (1978). The Ideal in Law. Chicago: University of Chicago Press. (Unusually fine short treatment of problems in ethics and law).
• Schwartz, Bernard (1974). The Law in America. New York: American Heritage Publishing Co. (Evolution of American legal institutions since 1790).
• Stone, Irving (1943). Clarence Darrow for the Defense. Garden City, NY: Garden City Publishing Co. (Popular diography of innovative lawyer who largely invented the insanity defense).
• Tribe, Laurence (1985). God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History. New York: Random House. (On judicial process, by contemporary scholar).
• Zelermyer, William (1977). The Legal System in Operation. St. Paul, MN: West Publishing. (Analysis of legal reasoning process).

Removed titles on American jurisprudence as suggested by editor in comment above, in a conciliatory gesture designed to reduce the effort needed to address the issues here. Mervyn Emrys (talk) 14:38, 26 December 2008 (UTC)

Responses

Too long and unfocussed for this article, and not needed. Much better to improve citations to the article, using the best of these books as references. If you change the referencing system to Harvard referencing with inline Template:Harvard citation cites linking to a Notes section to show page numbers, then a separate References section with each book listed alphabetically using Citation templates. That way the reference/page number in the "notes" links down to the relevant book source, and you get a nice list of references. See Charles Darwin for an example. It's a system I find useful when referring to several pages of a book. Alternatively, if you think such a list is useful for other articles on US law, make it into a stand-alone article which would come under Category:Bibliographies by subject in the same way as Physics (further reading), structured to relate books to areas of law. It would be good to meet WP:V and WP:NOR by providing references to recommended reading lists from leading law schools. . . dave souza, talk 10:12, 26 December 2008 (UTC)

Why refuse to recognize I am not currently proposing inclusion of the entire list, but requesting input on individual titles? Why decline to discuss individual titles? Is it because one is not familiar with these titles and prefers merely to dismiss all of them out of hand? Is that an informed position to take? Will it improve Wikipedia? Or is it merely a tactic (e.g., making work for somebody else) to deflect attention from the wholesale deletion of a contribution by another editor? Mervyn Emrys (talk) 14:23, 26 December 2008 (UTC)

If one is concerned the article is too long, perhaps deleting the explanatory text in note #3 (leaving the cite) and the quote from Scalia in note #16 (leaving the cite) would be helpful. Both look like law review footnotes rather than inline encyclopedia references. Neither adds anything of value to the article that is not already there or in the cite itself. That would reduce the length by many lines of text. Mervyn Emrys (talk) 00:37, 27 December 2008 (UTC)

If you're unable to see how inherently unfocused and rambling the list is, then we have a huge problem. I used to have such a broad and unfocused view of relevance---before I took English composition in my freshman year at a very prestigious public university and encountered professors and graduate student instructors who rigorously pruned my writing of irrelevant tangents and taught me to carefully tailor my writing for a particular audience.

The major problem with your list is that it is so broad as to become the basis for a general bibliography on the sociology and philosophy of American law targeted for an elite academic audience, which is grossly inconsistent with the topic of the article (the law of the United States) and the intended audience (educated English speakers in general).

It sounds like you're not thinking through what the general audience of this article wants, and you're also forgetting that the structure of a hyperlinked encyclopedia enables people to drill down to ever-more specific articles. Someone who looks at this article is obviously asking the implicit question, "What is American law?" Sources for further reading should be limited to works that directly answer that question (by elaborating further on the system of law which this article currently describes).

Instead, the further reading list includes biographies and memoirs of famous lawyers and judges, sociological studies of the American judiciary and legal profession, and general works on Anglo-American jurisprudence and ethics. We have articles on all those people, the American legal profession, the American judiciary, and jurisprudence on Wikipedia. So those works should be attached to further reading lists for those articles, not this one. Someone who just wants to know what is American law will ignore most of the works on the further reading list (which then raises the question of why they are on that list) and focus on the ones that answer their immediate question: What is American law? Obviously, if their curiosity about related subjects is piqued while reading books on the general topic of American law, they can always come back to Wikipedia to find articles about those related subjects and find books specific to those subjects.

I'll also note that the current version of the list in the article is an improvement, but again, the Louis Nizer memoir should not be there because it reflects one lawyer's memoir rather than an attempt to comprehensively summarize American law as a coherent whole.

I also strongly disagree with several other recent edits, such as the deletion of almost all of the originalism discussion. It appears you're unfamiliar with Posner's famous analysis of American case law as inherently uncertain and always in tension. The originalism discussion was my attempt to explain a key facet of that instability in the law to a lay audience. --Coolcaesar (talk) 10:11, 30 December 2008 (UTC)

A lengthy discussion about originalism might be appropriate for an academic law review article on Constitutional interpretation--in which case there are more articulate and authoritative sources than Scalia--but is not appropriate for a general article on Law in the United States. Is it so difficult to learn something of value about American law by reading a popular book about an American law practice written by a prominent American lawyer? I expect Cardozo and Marshall might be a bit surprised at that position. Mervyn Emrys (talk) 20:11, 30 December 2008 (UTC)

Glad to see dialogue in progress. That's a more reasonable length if we are to have a "further reading" list, and the case for and against Nizer can be discussed. It does seem remarkable that Mervyn, having been so sensitive about his own work being removed, has been quick to remove Coolcaesar's work. Trust you two can have a constructive and civil discussion on the extent to which these various issues should be covered in the article. . . dave souza, talk 20:39, 30 December 2008 (UTC)

I have been too busy for weeks to deal with this article but finally got around to looking at it this morning. I just restored a deletion by some anon IP which Mervyn had countermanded. I had forgotten that Hart's book was actually more concerned with English law until that anon IP user pointed it out. That is precisely the point I have been making all along---Mervyn's view of relevance is too broad. Plus Mervyn's really out of touch with how ordinary people think. Most lawyers, especially litigators, make a point of staying in touch with how nonlawyers think and constantly reminding themselves to Keep It Simple Stupid. Because next week might be the week your big case goes to trial, and you find yourself having to explain complex legal concepts to a bewildered jury of laypersons. Or watch Judge Judy and notice how she hisses at people to get to the point. Louis Nizer was certainly famous in his time, but if we have to include personal memoirs on the further reading list, Roy Black's Black's Law is far more entertaining, insightful, and relevant to contemporary audiences. Also, while Cardozo's writing was remarkably clear by the standards of 1930s legal writing, it's not as accessible to modern nonlawyers as some contemporary textbooks. I obtained photocopies of relevant portions two weeks ago and will insert citations at the next opportunity (probably when I am switching airports en route to my next vacation in a few months). --Coolcaesar (talk) 10:31, 14 February 2009 (UTC)

I respectully request that Coolcaesar review WP:Personal attacks, and especially the lead paragraph that says:

"Do not make personal attacks anywhere in Wikipedia. Comment on content, not on the contributor. Personal attacks will not help you make a point; they hurt the Wikipedia community and deter users from helping to create a good encyclopedia. Derogatory comments about another contributor may be removed by any editor. Repeated or egregious personal attacks may lead to blocks."

It is always disappointing to see such a cramped and narrow view of the content and practice of the law, especially in a profession where reasoning by analogy is essential to success. Mervyn Emrys (talk) 18:41, 14 February 2009 (UTC)

Don't let his pseudological smoke distract you. Personal attacks are a common strategy for someone who is intellectually insecure (which many U.S. lawyers have reason to be). He makes some good points, and if you ignore the smoke, you can challenge him to clarify his arguments, which is much more useful. Zoticogrillo (talk) 20:34, 14 February 2009 (UTC)

Entheogens

In the constitution of the United States it states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..." Yet, they still continue to make laws which are making illegal the entheogens which are used in religious and spiritual journeys and practice. My question is, which part of law makes it okay to do this? Where have my rights to freely exercise my religious practice gone?DiscoElf (talk) 19:19, 16 March 2009 (UTC)